The FOI Act Should Be The Envy Of Any Democracy, Says Judge (FOI Law Report 9)

FOI Law Reports

In the High Court of Justice of Benue State of Nigeria

In the Benue State Judicial Division

Holden at Makurdi

July 15, 2013

Before his Lordship, Honourable Justice A. O. Onum, Judge

Suit No. MHC/137/2013

Between:

Rommy Mom                                                                                                                                                                                              – PLAINTIFF

And

1. The Executive Secretary Benue State Emergency Management Agency

 2.The Attorney-General &

Commissioner for Justice Benue State                               – DEFENDANTS

The process was filed on April 18, 2013 at the instance of Rommy Mom (“the Applicant”) against the Executive Secretary of the Benue State Emergency Management Agency and the Attorney General of Benue State.

The process is essentially for an order compelling the Executive Secretary to release information under his custody to the Applicant pursuant to the provisions of the Freedom of Information Act, 2011.

 Barrister Rommy Mom, Lawyers Alert

Barrister Rommy Mom, Lawyers Alert

It also sees a determination of the question whether or not the Executive Secretary, being a public servant, is entitled to deny the Applicant access to the information that he has requested.

Under the provisions of the Freedom of Information Act, 2011, “anybody who desires information about the activities of any public institution is generally at liberty to promptly access it without any hindrance, whether or not he has any special interest in the subject-matter for which he demands the information.” 

The reliefs sought are couched in the following terms:

  • An order compelling the Respondents to provide the Applicant with information/records of the total monies collected by the 1st Respondent from the Federal Government, State Government, Local Government, private organizations, and donor agencies as aid to flood victims as a result of last year’s flooding that affected Benue State.
  • An order directing the 1st Respondent to disclose how the monies collected have been or are being allocated, clearly showing the expenditure heads and the exact amounts thereto.
  • An order directing the 1st Respondent to provide the Applicant with the records showing the persons monies were paid to and the amounts paid to them and other relevant details.
  • Any further order or orders as the Court may deem fit to make in the circumstances of the application.

The grounds upon which the reliefs were sought are stated as follows:

  • On March 27, 2013 the Applicant wrote a letter to the 1st Respondent demanding for information and records from the Respondents on how much monies they got and how they spent these monies on the flood victims, and records of such expenditures.
  • Since that date, the 1st Respondent has refused or neglected to provide the Applicant with the said information.
  • The Applicant has therefore resorted to Court to compel the 1st Respondent to provide him with this information, under the Freedom of Information Act, 2011.

The Supporting Affidavit of one Benedict Asan Gabin, the Litigation Secretary in the Law Chambers of the Applicant, is as follows in its relevant part:

“3. That I was informed by the Applicant at our office at No. 71 Ankpa Quarters Road Makurdi, during his interview with his Lawyer T. K. Agba Injo of Counsel on the 16/4/2013 at about 2:30pm and I verily believe him as follows:

i. That on the 27/3/2013 he wrote a letter to the 1st Respondent asking for the information/records of the total monies that the State Emergency Management Agency had collected from the Federal Government, State Government, Local Government, private organisations, and donor agencies as aid to flood victims as a result of last year’s flooding. That the letter is attached and marked Exhibit T.K. 1.

ii. That the letter was delivered to them on 28/3/2013, and up till now there has being no response from the 1st Respondent.

iii. That the period of seven days has lapsed”.

“Section 2 of the Act particularly imposes a duty on every public institution to keep account of its stewardship and so to ensure that the records of all its activities, operations and businesses are properly available for purposes of meeting prospective demands of those who may seek for such information.”

As against these facts, including the supporting affidavit evidence, paragraph 4 (a) – (e) of the counter-affidavit deposed to by one Agbo Ella, the Principal Litigation Registrar in Benue State Ministry of Justice, on behalf of the Respondents reads as follows:

“(a)  That the State Emergency Management Agency has not collected any monies from the Federal Government, State Government, Local Government, private organisation and donor agencies as aid to flood victims as a result of last year’s flooding in the State.

(b)  That the relief committee has not operated account for the purpose and is yet to incur direct expenditure.

(c)  That the 1st Respondent only makes recommendations to the State Government concerning approval and release of relief to victims of flood and other natural disasters.

(d) That the Respondent is not in custody or control of the information sought by the Applicant via his letter dated 27th March, 2013 hence their lack of response thereto.

(e)  That the 1st Respondent is not the proper agency to furnish the information sought by the Applicant.

His lordship, Justice Onum said the process puts the provisions of the Freedom of Information Act, 2011 regarding the right to source for and obtain information to test.

He said the particular provisions of the Act called to attention are Sections 1, 2, 4, 20 and 25, adding that he had looked at the provisions and it is without doubt that by their combined effect, “anybody who desires information about the activities of any public institution is generally at liberty to promptly access it without any hindrance, whether or not he has any special interest in the subject-matter for which he demands the information.”

The judge said the provisions however clearly anticipate that only such information as are real and available to either the person from whom they are required or to some other person within his knowledge to whom he could re-direct the request of the person who seeks for the information.

The judge said he used the word “generally” in conscious recognition of the fact that there are exemptions to the general rule and that “Section 2 of the Act particularly imposes a duty on every public institution to keep account of its stewardship and so to ensure that the records of all its activities, operations and businesses are properly available for purposes of meeting prospective demands of those who may seek for such information.”

Noting that the Act is indeed a piece of legislation that should be the envy of any democratic setting, the judge said the provisions however clearly anticipate that only such information as are real and available to either the person from whom they are required or to some other person within his knowledge to whom he could re-direct the request of the person who seeks for the information.

He said “in exercising jurisdiction to enforce the right to information the Court is therefore entitled to ensure that it does not just draw conclusions from unverified accounts, even if rumours of such accounts abound in the public domain.”

The judge stressed that the request for information must be based on concrete facts so that any order compelling the Respondent to supply same is not directed into a vacuum, with the concomitant result of bringing such order to ridicule.

He said that this is more importantly so because the Freedom of Information Act cannot be intended to provide an avenue for chasing shadows or be used as an instrument for witch-hunting.

He said “in exercising jurisdiction to enforce the right to information the Court is therefore entitled to ensure that it does not just draw conclusions from unverified accounts, even if rumours of such accounts abound in the public domain.” 

The judge noted that in the instant process, it is quite clear from the affidavit evidence filed and exchanged between the parties that while the parties may not have made any issue of the occurrence of the flood disaster in Benue State, leaving victims in its wake, the statement of facts and the affidavit in verification of the facts are merely built around the figment of the Applicant’s imagination that certain amounts of money were donated to the 1st Respondent by Government and other donors towards the management of the disaster.

He noted further that it has been alleged in the counter-affidavit that no monies were received by the 1st Respondent on account of the flood, which denial raises the important point of whether or not the information required is available within the domain of the 1st Respondent or to any other person within his knowledge to whom he could re-direct the request for information.

He held that the law is clear on the point that a Court is not expected to be speculative in deciding conflicts in affidavit evidence either way, and, generally, that such conflicts can only be resolved by recourse to oral evidence or some other facts in evidence that render either side more credible as against the other.

He cited the case of F.S.B. International Bank Limited v. Imano Nigeria Limited (2000) NWLR (Pt. 19) 392 at 408 paras. F – G where Achike, JSC said as follows on the need to resolve conflicts in affidavits evidence before a decision can be based thereon:  “Conflicts in affidavits on fundamental issues to the matter in controversy must be attended to and not just glossed over. A Court of law, be it trial or appellate, is not imbued with divine or magical powers in the sense that it can divinely or magically resolve conflicts in factual matters which may only be done, in certain circumstances, by dispassionate and painstaking evaluation of the facts or evidence placed before it.”

Justice Onum said the known exceptions to this general rule include instances where:

  • Some documentary evidence attached to either of the affidavits makes it more probable that the case of either side to the conflict is more authentic.  He cited Okere v. Nlem (1992) 4 NWLR (Pt. 234) 132.
  • The conflict only touches on some flimsy or immaterial aspects of the substantive matter in controversy between the parties, in which case the conflict may be ignored.  He referred to First Bank of Nigeria Plc v. May Medicine Clinics and Diagnostic Centre Limited (2001) 4 SCNJ 1 at 12.
  • The facts in conflict are inadmissible in evidence. He referred to Yusuf v. Cooperative Bank Ltd.(1989) 6 SCNJ (Pt. I) 108.
  • One of the parties has filed affidavits that are self-contradictory, in which case the Court may consider that the contradiction has weakened such a party’s case to the advantage of the other’s case. He cited Arjay Limited v. Airline Management Support Limited (2003) FWLR (Pt.156) 943 at 969 paras. F – H.
  • Where the issue before the Court is interlocutory and the conflict touches on some point of importance on the main case, in which case the Court must exercise its discretion in a manner that will avoid a pre-judgment on the conflict.  He referred to the cases of Anyaegbunam v. Attorney-General of Anambra State (1995) 9 NWLR (Pt. 417) 97 at 108 para. B; and Obeya Memorial Specialist Hospital Limited v. Attorney-General of the Federation (1987) 3 NWLR (Pt. 60) 325.

The judge stressed that the request for information must be based on concrete facts so that any order compelling the Respondent to supply same is not directed into a vacuum, with the concomitant result of bringing such order to ridicule. 

His lordship said he had assiduously perused the processes filed and exchanged in the instant process and I did not see the Applicant’s case to come within any of these known exceptions.

He noted that the Applicant is, of course, also entitled, by dint of this same Freedom of Information Act, to demand information from some relevant officers of the Federal, State or Local Government on the important question whether or not either tier of government made any funds available to the 1stRespondent following the flood disaster that is in the focus of the instant process.

He noted further that if the Applicant had been provided with any such information before filing the suit, he has not equipped the Court with such information to enable the Court exercise its judicial powers in line with the substantive prayer in the suit.

The judge held that in the same light the question posed whether or not the 1st Respondent could deny the Applicant the information he seeks is only hypothetical.

He held further that after considering the processes filed and exchanged, he saw no substance in the suit and accordingly dismissed it.

Leave a Reply