Cause of action under FOI Act can only be commenced by method stated in Section 20 – Tunde Osinubi

An Abuja legal practitioner, Mr. Tunde Osinubi has asked the Chief Judge of the Federal High Court, to issue Practice Directions in respect of Judicial Review cases arising from the Freedom of Information Act.

Osinubi in a letter to the Chief Judge said this is “due to the misconception in the minds of some Judges and Legal Practitioners that Applicants for Judicial Review under the Freedom of Information Act are to approach the court by way of Order 34.”

Part of the letter reads: “It is hereby humbly requested that My noble Lord should exercise his inherent powers, especially as contained in Order 1, Rule 3 (4) of the Federal High Court (Civil Procedure) Rules 2019, to issue Practice Directions in respect of Judicial Review cases arising from the Freedom of Information Act…”

According to Osinubi, the said Order 1, Rule 3 (4) states thus “The Chief Judge may give practice directions, generally or in respect of a particular case, for carrying out any of the rules in these Rules.”

Also, Order 1, Rule 4 of the Rules on Fundamental Objective states thus “The fundamental objective of these Rules is, just and expeditious disposition of cases” which the drafters of the Freedom of Information Act seek to achieve by creating its own mode of commencement of action under Section 20 of the Act thereby making Order 34 of the Rules not to be relevant.

We are now being compelled to implore your Lordship to use your good offices to issue Practice Directions, in view of the special nature of the Freedom of Information Act even if it means just repeating that Section 20 of the Act which states thus “20. Any applicant who has been denied access to information, or a part thereof, may apply to the Court for a review of the matter within 30 days after the public institution denies or is deemed to have denied the application, or within such further time as the Court may either before or after the expiration of the 30 days fix or allow”.

However, Order 34 of the Rules on APPLICATION FOR JUDICIAL REVIEW stated Cases appropriate for application for Judicial Review are: 

 (1) An application for (a) an order of mandamus, prohibition or certiorari, or

 (b) an injunction restraining a person from acting in any office in which he is not entitled to act shall be made by way of an application for judicial review in accordance with the provisions of this order. 

(2) An application for a declaration or an injunction (not being an injunction in rule (1) (b) of this rule) may be made by way of an application for judicial review, and the Court may grant the declaration or injunction if it deems it just and convenient to grant it by way of judicial review, having regard to:

 (a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition, or certiorari,

(b) the nature of the persons and bodies against whom relief may be granted by way of such an order, and

 (c) all the circumstances of the case.

Furthermore, there must be a grant of leave to apply for Judicial Review as stated in Order 34, Rule 3 thus: “No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule, etc.”   

Time within which to bring application under the Act and the Order

May we humbly, once again, draw the attention of my noble Lord to Section 20 of the Freedom of Information Act which requires an Applicant to apply to the Court for a review of the matter within 30 days after the denial whereas “An application for judicial review under Order 34 shall be brought within three months of the date of occurrence of the subject of the application”.

Sufficient interest in the matter under Order 34 and no specific interest under the Act     

Order 34 Rule 3 (4) states that “The Judge shall not grant leave unless he considers that the applicant has a sufficient interest in the matter to which the application relates” whereas Section 1 (2) of the Act states thus “An applicant under this Act needs not demonstrate any specific interest in the information being applied for.”                  

Also, Section 1 (1)  of the Act states thus “Notwithstanding anything contained in any other Act, law or regulation, the right of any person to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution howsoever described, is established.” 

Even the Illiterate or disabled applicants who by virtue of their illiteracy or disability are unable to make an application for access to information or record in accordance with the provisions of Section 3, sub-section (1) of this section, may make that application through a third party and as such category have been considered by the Lawmakers.

Finally, the right to initiate proceedings in Court is guaranteed by Section 1 (3) of the Freedom of Information Act thus “Any person entitled to the right to information under this Act, shall have the right to institute proceedings in the Court to compel any public institution to comply with the provisions of this act.” But this right is being continually denied some Applicants due to the insistence of some Courts to hold on to Order 34 of the Rules of this Honourable Court as being relevant to an application for judicial review under the Freedom of Information Act and NOT Section 20 of the Act itself.  

My noble lord, on ‘whether Order 34 of the Rules of this Honourable Court is relevant to Freedom of Information Application’, may we humbly submit that the Freedom of Information Act, 2011 is not only superior to Orders of Courts in the hierarchy of Laws but it is sui generis and, therefore, a complete Act that requires no external aid as “An applicant under this Act needs not demonstrate any specific interest in the information being applied for” while Order 34 of the Rules of this Honourable Court makes sufficient interest in the matter to which the application relates a MUST.

Finally, on ‘whether where a law prescribes that proceedings in respect of a particular cause of action should be commenced by a method, such an action cannot be commenced by any other method’, may I refer My Lord to Ratio 2 in the case of KANKARA v. COP, KATSINA STATE & ORS (2002) LPELR – 10967 (CA), where the Court of Appeal held thus:- “The law is now well settled that if a law or a rule of practice prescribes that proceedings in respect of a particular cause of action shall be commenced by one method, a litigant would be wrong to commence the proceedings in respect of that particular cause of action by any other method. ….” Per MOHAMMED, J.C.A. (P. 21, paras. A-C)  (Underlining for emphasis)

In the light of the foregoing submissions, we humbly urge My noble Lord to hold that any cause of action under the Freedom of Information Act can only be commenced by the method stated in Section 20 of the Act which confers jurisdiction on this noble Court and NOT by Order 34 of the Rules of this Honourable Court as some might erroneously believe or want to mislead the Court.