On Monday the 29th of January, 2024 the Honourable Mr. Justice Emeka Nwite of the Federal High Court (Court 10) sitting in Abuja held that the Chief Registrar of the Supreme Court erred when a Freedom of Information (FOI) application made to the Supreme Court was not answered within 7 days as stipulated by law, in the matter Sesugh Akume v Chief Registrar, Supreme Court of Nigeria (FHC/ABJ/CS/1491/2020).
It would be recalled that sometime 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 to the Supreme Court reminding it of its 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 us with the information; and an award of five hundred thousand naira (N500 000.00) only, being the statutory amount for denying an FOI application; and two million (N2 000 000.00) naira as 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 entered one year after 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 but whether it was 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.
Today, 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.
The court, however, declined awarding damages and costs on the ground that the FOI Act provides that upon conviction the erring party is to pay the sum of N500 000.00 but there was no conviction in this matter, as the term ‘conviction’ usually applies to criminal matters, but this is not a criminal matter.
On this we respectfully disagree with his lordship, and upon conferring with our lawyers, we reached a unanimous decision that this part of the judgement of necessity needs further interpretation at the appellate 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 our 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.
The fearlessness of his lordship in being blind 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.
Hearty appreciation also go to FOI Counsel (Nigeria’s leading NGO/CSO for entrenching a culture of accountability through the use of FOI) and its lead counsel, President Aigbokhan, Esq., for the unwavering support from day one; as well as Rodney Adzuanaga, Esq., Daniel Awuapila, Esq., and Leonard Shenge, Esq., for the legal industry, grit and resilience over the years as well as exemplary commitment to the rule of law.
The rule of law means no matter how tall a person is (individual or institution), the law is taller than them, whoever they are.
It is our firm conviction that public institutions and officials must be accountable and responsive to the people in order to create an orderly, progressive, and decent society.
29 January 2024