Socio-Economic Rights and Accountability Project (SERAP) has dragged the Federal Government to the Federal High Court, Ikoyi over failure to provide information on the spending of the N700bn borrowed between December 31, 2012 and April 30, 2013, and details of projects on which this money was spent.
Socio-Economic Rights and Accountability Project (SERAP) has dragged the Federal Government to the Federal High Court, Ikoyi over failure to provide information on the spending of the N700bn borrowed between December 31, 2012 and April 30, 2013, and details of projects on which this money was spent.
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The Suit Number FHC/L/CS/978/13 was filed last week following a request made under the FOI Act by the organization.
Joined as Defendants in the suit are the Accountant-General, Jonah Ogunniyi Otunla and the Attorney-General of the Federation and Minister of Justice, Muhammed Adoke. The suit is seeking the following reliefs:
A DECLARATION that by virtue of the provisions of Section 4 (a) of the Freedom of Information Act 2011, the 1st Defendant is under a binding legal obligation to provide the Plaintiff with up to date information on the spending of N700bn borrowed between December 31, 2012 and April 30, 2013 and details of projects on which the money was spent.
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A DECLARATION that the failure of 1st Defendant to provide the Plaintiff with the information requested is a breach of section 4(a) of the Freedom of Information 2011.
AN ORDER OF MANDAMUS directing and/or compelling the 1st Defendant to provide the Plaintiff with up to date information as requested.
According to the organization, “by the clear provisions of section 2(3)(d)(V) of the FOI Act, documents containing information relating to the receipt or expenditure of public or other funds of a public institution constitute part of the information which a public institution is obligated to publish, disseminate and make available to members of the public.”
The organization also argued that the 1st Defendant “is legally mandated by the provisions of section 4(a) of the FOI Act to comply with a request for access to public information except where the FOI Act exempts a public official from so disclosing.”
The organization further argued that the 1st Defendant “has no legally justifiable reason for refusing to provide the Plaintiff with the information requested” and urged the court “to compel it to comply with the provisions of the Act by providing the Plaintiff with the information requested.”
No date has been fixed for the hearing of the application.
Signed
Adetokunbo Mumuni
SERAP Executive Director
21/7/2013
Lagos Nigeria
www.serap-nigeria.org
IN THE FEDERAL HIGH COURT
HOLDEN AT IKOYI
SUIT NO:
IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW
BETWEEN
THE REGISTERED TRUSTEES OF THE SOCIO-ECONOMIC
RIGHTS AND ACCOUNTABILITY PROJECT (SERAP) PLAINTIFF
AND
THE ACCOUNTANT GENERAL OF THE FEDERATION
THE ATTORNEY-GENERAL OF THE FEDERATION DEFENDANTS
ORIGINATING SUMMONS
LET THE DEFENDANTS, Accountant General of the Federation and Attorney-General of the Federation at C/O Attorney–General of the Federation and Minister of Justice–Federal Ministry of Justice, Federal Secretariat, Abuja, within 30 days after the service of this summons on them inclusive of the day of such service cause an appearance to be entered for them to this summons on the application of the Plaintiff for the determination of the following question:
(a) Whether by virtue of the provision of section 4(a) of the freedom of information act 2011, the 1st defendant is under an obligation to provide the plaintiff with the information requested for.
AND THE PLAINTIFF CLAIMS AGAINST THE DEFENDANTS AS FOLLOWS:
A DECLARATION that by virtue of the provisions of Section 4 (a) of the Freedom of Information Act 2011, the 1st Defendant is under a binding legal obligation to provide the Plaintiff with up to date information relating to information on the spending of N700bn borrowed between December 31, 2012 and April 30, 2013 and details of projects on which the money was spent.
A DECLARATION that the failure of 1st Defendant to provide Plaintiff with the information requested is a breach of section 4(a) of the Freedom of Information 2011.
AN ORDER OF MANDAMUS directing and/or compelling the 1st Defendant to provide the Plaintiff with up to date information requested including information on:
1. The amount that has been spent from the N700bn borrowed between December 31, 2012 and April 30, 2013.
2. Details of project on which this money was spent.
THIS SUMMONS was taken out by CHINYERE NWAFOR for the above – named Plaintiff.
The Defendants may appear hereto by entering appearance personally or by legal practitioner either by handing in the appropriate forms duly completed, at the Federal High Court Registry, or by sending them to that office by post.
Note:
If the Defendants do not enter appearance within the time and at the place above mentioned, such orders will be made and proceedings may be taken as the Judge may think just and expedient.
Dated this………………day of ……………….2013.
CHINYERE NWAFOR
SOCIO-ECONOMIC RIGHTS AND ACCOUNTABILITY PROJECT (SERAP),
4 AKINTOYE STREET IKEJA, LAGOS.
TEL: 08160537202
EMAIL: [email protected]
SOLICITORS TO THE PLAINTIFF
FOR SERVICE ON:
THE 1ST DEFENDANT
THE ACCOUNTANT-GENERAL OF THE FEDERATION
TREASURY HOUSE,
LADOKE AKINTOLA BOULEVARD
5 ZARIA STREET
GARKI
ABUJA
THE 2ND DEFENDANT
C/O ATTORNEY-GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE
FEDERAL SECRETARIAT,
FEDERAL MINISTRY OF JUSTICE,
ABUJA.
IN THE FEDERAL HIGH COURT
HOLDEN AT IKOYI
SUIT NO:
IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW
BETWEEN
THE REGISTERED TRUSTEES OF THE SOCIO-ECONOMIC
RIGHTS AND ACCOUNTABILITY PROJECT (SERAP) PLAINTIFF
AND
THE ACCOUNTANT-GENERAL OF THE FEDERATION
THE ATTORNEY- GENERAL OF THE FEDERATION DEFENDANTS
AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS
I, ADETOLA ADELEKE, male, Nigerian, Christian and litigation clerk of Socio-Economic Rights and Accountability Project (SERAP) of 4 Akintoye Shogunle Street, Off John Olugbo Street, Off Awolowo Way, Ikeja, Lagos do hereby MAKE OATH and STATE as follows:
1. That I am a Litigation Clerk of the Socio-Economic Rights and Accountability Project (SERAP), the Plaintiff in this suit.
2. That I have the consent and authority of the Plaintiff herein to depose to this affidavit.
3. That by virtue of my position and the fact stated in paragraph 2 hereof, I am conversant with the facts of this case and with the facts deposed to herein.
4. That the Plaintiff is a human rights non-governmental organization established in Nigeria and incorporated under Part C of the Companies and Allied Matters Decree, 1990. A copy of the Certificate of Incorporation of SERAP is attached herewith as EXHIBIT 1.
5. That the Plaintiff seeks to promote transparency and accountability in government through human rights. A copy of the Constitution of the Plaintiff is hereby attached as EXHIBIT 2.
6. That the Federal Government of Nigeria has enacted the Freedom of Information Act, 2011.
7. That in the pursuit of its mandate and pursuant to the right of access to information guaranteed by the Freedom of Information Act 2011, the Plaintiff, by letter dated 27 May 2013, requested the 1st Defendant to provide it with up to date information relating to the spending of N700bn borrowed between December 31, 2012 and April 30, 2013 and details of projects on which the money was spent.
8. But since the receipt of the request/application letter, and up till the filing of this suit, the 1st Defendant has so far failed, refused and/ or neglected to provide the Plaintiff with the details of the information requested for. Now produced, shown to me and marked EXHIBITS A and B are copies of the letter sent to the 1st Defendant and the evidence of receipt of the letter by the 1st Defendant.
9. I was informed by Counsel to the Plaintiff and I verily believe him as follows:
(i) By virtue of Section 1 (1) of the FOI Act 2011, the Plaintiff is entitled as of right to request for or gain access to information which is in the custody or possession of any public official, agency or institution.
(ii) By the provisions of Section 2(7) and 31 of the FOI Act 2011, the 1st Defendant is a public institution.
(iii) By virtue of Section 4 (a) of the FOI Act when a person makes a request for information from a public official, institution or agency, the public official, institution or agency to whom the application is directed is under a binding legal obligation to provide the plaintiff with the information requested for, except as otherwise provided by the Act, within 7 days after the application is received.
(iv) The information requested for by the Plaintiff relates to the information on the N700bn borrowed between December 31, 2012 and April 30, 2013 and details of projects on which this money was spent.
(v) By Sections 2(3)(d)(i-vi), (e)(i-iii) & (4) of the FOI Act, a public institution is under a binding legal duty to ensure that documents containing information relating to policies, factual reports, expenditure of public funds, names, salaries of officers and employees, and the receipt or expenditure of public or other funds by such an institution are widely disseminated and made readily available to members of the public through various means.
(vi) The information requested for by the Plaintiff does not come within the purview of the types of information exempted from disclosure by the provisions of the FOI Act.
(vii) Up till the time of filing this action the 1st Defendant has failed, neglected and refused to make available the information requested by the Plaintiff. The particulars of facts of the failure, negligence and refusal are contained in the verifying affidavit in support of this application and shall be relied upon at the hearing of this application.
(viii) The 1st Defendant has no reason whatsoever to deny the Plaintiff access to the information sought for.
(ix) The information requested for, apart from not being exempted from disclosure under the FOI Act, bothers on an issue of National interest, public concern, social justice, good governance, transparency and accountability.
10. That the information the Plaintiff requested for do not form part of records compiled by the 1st Defendant for law enforcement purposes.
11. That the 1st Defendant will not suffer any injury or prejudice if the information is released to the Plaintiff.
12. That the information the Plaintiff requested for is not privileged in any way or manner.
13. That the information the Plaintiff requested for do not concern any research material.
14. That the information the Plaintiff requested for is not in respect of a scientific material, or matter kept in the National Museum or the National Library.
15. That it is in the interest of the public that the information be released.
16. That I was informed by Counsel to the Plaintiff and I verily believed him that in views of the above actions by the 1st Defendant, the Plaintiff has been denied access to the information requested for
17. That unless the reliefs sought herein are granted, the 1st Defendant will continue to be in breach of the Freedom of Information Act, and other statutory responsibilities
18. That it is in the interest of justice to grant this application as the 1st Defendant have nothing to lose if the application is granted.
19. That I make this declaration in good faith.
……………
DEPONENT
SWORN TO at the Federal
High Court Registry, Ikoyi
This………….day of …………………. 2013
BEFORE ME
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT
HOLDEN AT IKOYI
SUIT NO:
IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW
BETWEEN
THE REGISTERED TRUSTEES OF THE SOCIO-ECONOMIC
RIGHTS AND ACCOUNTABILITY PROJECT (SERAP) PLAINTIFF
AND
THE ACCOUNTANT-GENERAL OF THE FEDERATION
THE ATTORNEY-GENERAL OF THE FEDERATION DEFENDANTS
WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS
1.0 INTRODUCTION
1.1. This Written Address is filed on behalf of the Plaintiff and in support of this application.
1.2. The main issue or thrust of this case touches on or concerns the binding-ness of the provisions of the FOI Act 2011 on the Defendants.
2.0 BACKGROUND FACTS
2.1. The background facts in respect of this Application are well set out in the supporting affidavit of Adetola Adeleke. I humbly refer your Lordship to the said affidavit.
2.2 In the Application, the Plaintiff is seeking the following reliefs:
A DECLARATION that by virtue of the provisions of Section 4 (a) of the Freedom of Information Act 2011, the 1st Defendant is under a binding legal obligation to provide the Plaintiff with up to date information relating to information on the spending of N700bn borrowed between December 31, 2012 and April 30, 2013 and details of projects on which the money was spent.
A DECLARATION that the failure of 1st Defendant to provide Plaintiff with the information requested is a breach of section 4(a) of the Freedom of Information 2011.
AN ORDER OF MANDAMUS directing and/or compelling the 1st Defendant to provide the Plaintiff with up to date information requested including information on:
1. The amount that has been spent from the N700bn borrowed between December 31, 2012 and April 30, 2013.
2. Details of project on which this money was spent.
3.0 ARGUMENT OF THE SOLE ISSUE WHETHER BY VIRTUE OF THE PROVISION OF SECTION 4(a) OF THE FREEDOM OF INFORMATION ACT 2011, THE 1ST DEFENDANT IS UNDER AN OBLIGATION TO PROVIDE THE PLAINTIFF WITH THE INFORMATION REQUESTED
3.1 Sections 1(3) and 2(6) of the FOI Act 2011 confer upon an individual, who has a right of access to information under the Act, the right to institute proceedings in a court to compel any public institution to comply with the provisions of the Act when such an institution has failed, refused and or neglected to comply with the provisions of the Act by refusing or declining to give access to a record or information requested for.
3.2 In the case at hand, the Plaintiff through its letter dated 27th May, 2013 requested information as contained in the letter. Exhibit A has been received by the 1st Defendant, and Exhibit B is the acknowledgement of receipt of Exhibit A by the Defendant. However, the 1st Defendant has since the receipt of the request letter failed, refused and or neglected to provide the Plaintiff with the information it requested for.
3.4 By Section 4 of the FOI Act 2011, a public institution, to whom an application for access to information is made, is under an obligation to either supply the information requested for within 7 days of receipt of the application or communicate its notice of denial within 7 days of receipt of the application if it considers that the application should be denied.
3.5 Furthermore, Section 7(4) of the FOI Act provides that where the government or public institution to whom an application for access to information is made fails to give the plaintiff access to the information requested for within the time limit specified by the Act, the institution shall be deemed to have refused to give access.
3.6 By the provisions of Sections 2(7) and 31 of the FOI Act, the definition of a public institution includes the 1st Defendant. The 1st Defendant is a public institution within the meaning of the FOI Act and is bound to comply with the provision of Section 4 of the FOI Act.
3.7 By the provision of Section 20 of the FOI, the Plaintiff is entitled to apply to this Honorable Court for a judicial review of the matter within 30 days after the public institution denies or is deemed to have denied the request for information.
3.8 Since the 1st Defendant has failed to provide the information requested by the Plaintiff, within the time limit stipulated by the FOI Act, it is therefore deemed that he has, by that very fact, refused to give the Plaintiff access to the information requested for.
3.9 It is further submitted that the power or discretion to refuse to give access to information requested for cannot be exercised in vacuo. Such a power or discretion must be provided for by the FOI Act itself. This means, therefore, that a request for information can only be denied or turned down if the information requested is one which is exempted from disclosure under the provisions of the FOI Act.
3.10 In the case at hand, the information requested for by the plaintiff relates strictly to the spending of N700bn borrowed between December 31, 2012 and April 30 2013.
3.11 By the clear provisions of Section 2(3)(d)(V) of the FOI Act 2011, documents containing information relating to the receipt or expenditure of public or other funds of a public institution constitute part of the information which a public institution is obligated to publish, disseminate and make available to members of the public. It is therefore, submitted that since the 1st Defendant has no legally justifiable reason for refusing to provide the Plaintiff with the information requested for, this court ought to compel it to comply with the provisions of the Act as he is not above the law.
3.12 It is further submitted that the creation of a right of access to information by Section 1(1) of the FOI Act has imposed on the 1st Defendant and other public officials, institutions and agencies alike, a corresponding duty to give or provide any applicant, access to any public record or information in their custody when applied for by the latter. Therefore, the 1st Defendant must conform to the legally binding obligation imposed on him by Section 4(a) of the FOI Act.
3.13 It is submitted that Section 4(a) of the FOI Act 2011 is a mandatory and absolute provision which imposes a binding legal duty or obligation on a public official, agency or institution to comply with a request for access to public information or records except where the FOI Act expressly permits an exemption or derogation from the duty to disclose. The courts have consistently held that the use of mandatory words such as “must” and “shall” in a statute is naturally prima facie imperative and admits of no discretion. See ANIBI V. SHOTIMEHIN (1993) 3 NWLR (PT. 282) 461 @ 472 – 473. It is submitted that the use of the word “shall” in Section 4 of the FOI Act connotes that the provision is mandatory and must be complied with to the extent provided by the Act.
3.14 In GOVERNOR OF EBONYI STATE & ORS V. HON. JUSTICEISUAMA (2003) FWLR [PT. 169] 1210 @ 1227-1228, the Court of Appeal while stressing the need for public officials to obey rules of law held as follows:
“Obedience to the rule of law by all citizens but more particularly those who publicly took oath of office to protect and preserve the constitution is a desideratum to good governance and respect for the rule of law. In a democratic society, this is meant to be a norm; it is an apostasy for government to ignore the provisions of the law and the necessary rules made to regulate matters”.
3.15 In the light of the exposition of the Court of Appeal above highlighted, it is submit that this honorable court ought to make an order compelling the 1st Defendant to comply with the provisions of the FOI Act by providing the Plaintiff with the information requested for by the latter.
4.0 CONCLUSION
4.1 In conclusion I most respectfully urge this court to grant leave to the Plaintiff to seek the reliefs claimed on the basis of the arguments advanced above, and the Application.
Dated this ………………… day of …………….. 2013
CHINYERE NWAFOR
SOCIO-ECONOMIC RIGHTS AND ACCOUNTABILITY PROJECT (SERAP),
4 AKINTOYE STREET IKEJA, LAGOS.
TEL: 08160537202
EMAIL: [email protected]
SOLICITORS TO THE PLAINTIFF
FOR SERVICE ON:
THE 1ST DEFENDANT
THE ACCOUNTANT-GENERAL OF THE FEDERATION
TREASURY HOUSE,
LADOKE AKINTOLA BOULEVARD
5 ZARIA STREET
GARKI
ABUJA
THE 2ND DEFENDANT
C/O ATTORNEY-GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE
FEDERAL SECRETARIAT,
FEDERAL MINISTRY OF JUSTICE,
ABUJA.
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