By Sesugh Akume
wo weeks ago, on Monday 29 January, the Honourable Mr Justice Emeka Nwite of the Federal High Court (Court 9) sitting in Abuja held in the matter of Sesugh Akume v Chief Registrar, Supreme Court of Nigeria (FHC/ABJ/CS/1491/2020) that the Chief Registrar of the Supreme Court erred when a Freedom of Information (FOI) application I had made to the Supreme Court was not answered within 7 days as stipulated by law.
Some time in 2020, I made an FOI application at the Supreme Court to find out the status of Osakue v EDOCASA (the second FOI case filed at the Supreme Court since 2018 which seeks to establish that the FOI Act is applicable at the state level), but was denied.
After a week, I again wrote the Supreme Court’s chief registrar about the obligation to respond to mine within 7 days, and of the optics and implications of the apex court in the land being a lawbreaker. I again got no response.
Left with no further choice, I approached the Federal High Court, Abuja a second time over the same subject of FOI, against the same Supreme Court. The first was the matter of Sesugh Akume v Supreme Court of Nigeria & Another (FHC/ABJ/CS/1161/2020 seeking the status update of Martins Alo v Speaker, Ondo House of Assembly — the first FOI case filed at the Supreme Court since 2018 which seeks to establish that the FOI Act is applicable at the state level. Upon doing so, I was furnished with the information requested.
The questions before the court were whether the Supreme Court was right in not providing the information within 7 days as stipulated by law. And where the answer was in the negative, a declaration that the Chief Registrar of the Supreme Court erred in not doing so. Also an order compelling them to immediately furnish me with the information; and an award of five hundred thousand naira (N500 000.00) fine, being the statutory amount for denying an FOI application; and two million (N2 000 000.00) naira as damages and the cost of the litigation.
After several hearing notices were served on the Chief Registrar of the Supreme Court (the respondent in the case) a defence was finally entered one year later on 27 September 2021, wherein a counter-affidavit in opposition to the suit along with an exhibit and a written address in support of the counter affidavit were filed.
The respondent contended that due to COVID-19 the information could not be provided as there were few staff working at the time on a rotational basis, and the record rooms were fumigated and, therefore, out of bounds within that period and long afterwards. That these I ought to have known and was indeed aware. Furthermore, that the information applied for had been provided and the case was thus overtaken by events.
The FOI Act provides that where information requested cannot be provided within 7 days the public institution is to inform the party applying for the information.
In reply, our lawyers wanted the court to determine whether there was any evidence that the Supreme Court notified me that the applicant might take longer than 7 days even if by a text message.
They contended that the issue before the court was no longer about providing the information after being sued, but whether it ought to have been provided timeously within the stipulated 7 days, and whether on the balance of probability the information would have been provided had the respondent not been dragged to court.
Justice Nwite held that indeed there was no evidence before the court that respondent contacted me of the inability to provide the information within 7 days, not even after my reminder letter, which was wrong.
The judge, however, declined awarding the fine, damages and costs on the ground that the FOI Act provides that upon conviction the erring party is to pay the sum of N500 000 but there was no conviction in this matter, as the term ‘conviction’ usually applies to criminal matters, but this is not a criminal matter.
This is one area I respectfully disagree with the judge, and hope to necessarily appeal this part of the judgement for further interpretation and illumination at the higher courts. Whether or not there can be conviction in a civil matter? And whether or not declaring a party to have erred but without consequences for wrongdoing, and without compensation to the injured party is miscarriage of justice?
It is my firm belief that there is indeed conviction in civil matters and such convicted party is made to pay a fine, even if the nature of this conviction is different from that in criminal matters. Second, that there must be consequences for wrong doing, and whenever there is an injury there must be a remedy/compensation.
To be sure, Section 7(5) of the FOI Act 2011 states that: ‘Where a case of wrongful denial of access is established, the defaulting officer or institution commits an offence and is liable upon conviction to a fine of N500,000.’
First, the framers of that provision knew from the outset that FOI is a civil not a criminal matter but went ahead to use the expression ‘conviction’, and it ought to be understood and interpreted in the context it is used, in my view.
Second, in the (unreported) case of Alabi v National Assembly & 2 Ors with suit number FHC/L/CS/1234/2013 delivered by the Honourable Justice J T Tsoho (now Chief Judge) of the Federal High Court sitting in Lagos, and delivered on 26 September 2014, the court held that, ‘…“fine” means … a pecuniary criminal punishment or civil penalty payable to the public treasury… an imposition of a fine connotes conviction for an alleged offence.’ This reasoning was upheld on appeal in the matter of FRSC v Alabi [2020] LPELR–51060 (CA). (This case pertained to the power of FRSC to impose a fine on alleged traffic offenders, etc.)
In other words, according to the learned jurist, and corroborated by an appellate court, a fine (which can be a civil (non-criminal) penalty payable to the public treasury) connotes conviction for an alleged civil offence. It means clearly that there can be conviction in a civil (non-criminal) matter. The conviction (or declaration of wrongdoing) precedes the imposition of a fine. Just like a conviction precedes a sentencing in criminal matters.
Refusing an FOI application is an offence because Section 7(5) of the FOI Act 2011 designates it so. It is a civil (as against a criminal) offence for many reasons including the fact that the wrongdoer in this case is declared ‘liable’, as against ‘guilty’ were it a criminal offence. Another reason is the fact that I, the injured party can seek redress in court by myself, it’s not the state suing. Civil cases begin when a person (or entity) claims that another person or entity has failed to carry out a legal duty owed them.
Civil offences involve violations of administrative or civil rules resulting in civil penalties and fines. This, in my view, falls in the category of mala prohibita, whereby the actions or inactions are wrong because the law prohibit such. Refusing an FOI application is a violation of regulatory requirement or obligation under the FOI Act 2011, and therefore, could be termed a regulatory misdemeanor or regulatory infraction, with the specific penalty of a N500,000 fine. Where a court finds a party liable of wrongfully denying an FOI application, which is offence (this finding one liable is itself conviction, whether in a civil or criminal matter) but doesn’t go the full length to award the commensurate fine stated by the law for such offence, it seems a miscarriage of justice to me.
On the issue of award of damages and the cost of litigation, the Latin maxim, ‘Ubi jus, ibi remedium’, in English, ‘Where there is a right, there is a remedy’, means the law ensures that if the plaintiff has a right they must have the means to a remedy if they are injured in the enjoyment or exercise of the right.
Clearly, I suffered injury resulting from the refusal of the FOI application causing to me to seek redress in court for 4 years and all the inconvenience that goes with it. No compensation for the pain and no consequences whatsoever to the offender is like having a judgement but no justice to me.
Another issue the appellate courts are to be invited to interrogate is whether the judge was right to suo motu (by himself, on his own accord) raise the issue of ‘conviction’ and enter judgement on it without giving the parties a chance to address him, and whether this is not a denial of the right to fair hearing? In Sesugh Akume v National Primary Health Care Development Agency (NPHCDA) with suit number FHC/ABJ/CS/273/2021 before Justice D U Okorowo of the Federal High Court sitting in Abuja (which among other things seeks to enable local governments in Nigeria to directly access federal funding for primary healthcare as against State Primary Health Care Boards doing so and administering the funds on their behalf) the judge suo motu raised the issue of the joinder or non-joinder of all state governments in Nigeria seeing as what we seek affects them. We had the opportunity to address the court on why it wasn’t necessary to join them as parties in the suit, and NPHCDA also had the opportunity to oppose our view. We shall hear the court’s decision on 18 March. I think that is the proper way to go about it.
Justice Nwite’s fearlessness and blindness to the parties involved in this matter and not minding whose ox is gored in delivering the judgement to the best of his ability is worthy of note and commendation. To be honest, based on the obnoxious judgements we’ve seen from Nigerians courts, I settled and made peace with this matter being dismissed and costs awarded against me. This outcome came a pleasant and rather salutary relief.
Sesugh Akume, a public policy analyst wrote from Abuja.
