➥ CASE SUMMARY OF:
Code of Conduct Bureau (CCB) & Ors. v Stephen U. Nwankwo (2018) – CA
by Branham Chima (SAL).
Court of Appeal – CA/E/141/2017
➥ JUDGEMENT DELIVERED ON:
8th June 2018
➥ AREA(S) OF LAW
Asset declaration form;
Freedom of Information;
➥ PRINCIPLES OF LAW
⦿ WHEN A LACUNA IN LAW MEETS WITH THE RIGHT OF A CITIZEN
A lacuna is said to exist in law when there is a lack of specific and or general law or a law which is of universal application which can be applied in a matter or situation before the Court. Where there is no specific law but there are existing general laws enacted in respect of similar matters, the general principle is that the general law enacted in respect of similar matters or a law which is of universal application and which has provisions relating to a similar situation before the Court must be applied to resolve the situation. Even, where in very rare cases, there is no existing law regulating or relating to a particular situation brought before the Court, a citizen who has a genuine grievance and has approached the Court for a solution will not be left without a remedy. That is the purport of the Supreme Court’s decision in PDP v. INEC (SUPRA) AT 241 (D-F) where the Court per Uwais JSC held as follows: “For this Court to perform its function under the Constitution effectively and satisfactorily, it must be purposive in its construction of the provisions of the Constitution. Where the Constitution bestows a right on the citizen and does not expressly take away nor provide how the right should be lost or forfeited in the circumstance, we have the duty and indeed the obligation to ensure that the enured right is not lost or denied the citizen by construction that is narrow and not purposive. To this end the established practice of this Court is where the constitutional right in particular, and indeed any right in general, of a citizen is threatened or violated, it is for the Court to be creative in its decisions in order to ensure that it preserves and protects the right by providing remedy for the citizen.” — M.O. Bolaji-Yusuff, JCA.
⦿ PREAMBLE OF A STATUTE MAY BE TAKEN INTO CONSIDERATION TO DETERMINE THE MISCHIEF IT SEEKS TO CORRECT
The general principle of interpretation of statute is that the preamble or explanation note to a statute is not part of the statute. However it is permissible to take into consideration the explanatory note to a statute in determining the purpose of the statute and the mischief it seeks to correct. See YABUGBE v. C. O. P (1992) LPELR 3505 (SC) AT 28 (F-G) (1992) 4 NWLR (PT. 234) 152 AT 171 (A-C). INAKOJU and ORS. v. ADELEKE and ORS. (2007) LPELR 1510 (SC). OGBONNA v. A. G. OF IMO STATE and ORS. (1992) LPELR 2287 (SC) (1992) 1 NWLR (PT. 220) 647 AT 672(C-); FRN v. IBORI and ORS. (2014) LPELR 23214 (CA) 67 (A-D). — M.O. Bolaji-Yusuff, JCA.
⦿ FREEDOM OF INFORMATION ACT IS TO MAKE PUBLIC INFORMATION AVAILABLE
It is clear from the explanatory note to FIA that the purpose of the Act is to make public records and information more freely available and provide access to all citizens to all public records and information. The Act however provides for the protection of personal information of a public officer in the custody of a public institution. This is made clear by Section 14(1) of the Act which excludes personal information in the custody of any public official, agency or institution from the information to which any citizen of Nigeria is entitled to have access. — M.O. Bolaji-Yusuff, JCA.
⦿ CRITERIA TO HAVE PERSONAL INFORMATION OF A PUBLIC OFFICIAL – FREEDOM OF INFORMATION ACT
It is clear from the provisions of Section 14(1) of FIA that the right of access to information in custody of a public official, agency or institution is not an unbridled, uncontrolled and absolute right. It is curtailed by Section 14(1) of the Act by denying access to private or personal information of a citizen in custody of a public official. For any citizen to have access to personal information in custody of a public official or institution, he must show that: (1) The individual to whom the information relates has given his consent to the disclosure or (2) That the information is publicly available anyway or (3) That the disclosure is in the public interest and the public interest outweighs the protection of the privacy of the individual to whom the information relates. — M.O. Bolaji-Yusuff, JCA.
⦿ ENTIRE PROVISIONS OF THE STATUTE MUST BE READ TOGETHER TO DETERMINE INTENTION OF THE LEGISLATURE
The law is settled that in order to discover the real intention of the legislature, the entire provisions of statute must be read together as a whole. No section of a statute should be read and construed in isolation. If the entire provisions of the FIA are read together, it becomes clear that before a request for access to information relating to personal information of an individual in the custody of a public official or public institution can be granted, the applicant must show to the institution or the Court where an applicant approaches the Court for a review of decision of a public institution to deny access to personal information in its custody, the existence of any of the conditions or situations stated under Section 14(2) and (3) of the Act. — M.O. Bolaji-Yusuff, JCA.
⦿ APPELLATE COURT WILL NOT INTERFERE WITH AN AWARD OF DAMAGES AWARDED
The law is settled that an appellate Court will not ordinarily interfere with an award of damages made by a trial Court unless it is shown that in the assessment and award of damages, the trial Court applied a wrong principle of law or misapprehended the facts or that the award is so high or so low. — M.O. Bolaji-Yusuff, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Misitura Omodere Bolaji-Yusuff, J.C.A.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The respondent herein by an originating summons filed at the Federal High Court of Nigeria, Abakaliki Judicial Division presented the following questions to the Court for determination: “1. Whether the assets declaration of the plaintiffs late father, Chief Michael Anene Nwankwo are public documents within the meaning of Section 102 of the Evidence Act, 2011. 2. Whether having regard to the combined provisions of paragraph 3(c), Part 1, Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 as amended; Section 104(1) of the Evidence Act 2011 and Section 1(1), (2) and (3) of the Freedom of Information Act 2011, the plaintiff is entitled to be issued with the certified true copies of the afore mentioned assets declaration.”
In a considered judgment delivered by Honourable Justice Akintayo Aluko on 6/10/2016, the Court answered the questions presented for determination in the affirmative and granted the following reliefs: “(1) A declaration that the plaintiff is entitled to be issued with the CTC of assets declaration of his late father, Chief Michael Anene Nwankwo, which asset declarations are in the custody of the defendants; (2) An order commanding the defendants (particularly the 3rd defendant) to furnish the plaintiff with CTC of the assets Declaration of his father, Chief Michael Anene Nwankwo as mentioned in the plaintiffs letter to the 2nd and 3rd defendants dated 29th January, 2016. (3) An order awarding general damages to the plaintiff in the sum of ₦250,000.00 (Two Hundred and Fifty Thousand Naira) only against the 1st defendant for the unnecessary stress and troubles it put the plaintiff through.”
Dissatisfied with the judgment, the appellants have appealed to this Court vide a notice of appeal filed on 13/12/16.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL SUCCEEDS IN PART]
I. Whether the Court below was right in holding that the respondent was entitled to be given access to the assets declaration of his deceased father and that the terms and conditions for access to assets declaration of public officers are those scattered in various enactments relied on by the Court?
RULING: IN RESPONDENT’S FAVOUR.
A. THE RESPONDENT IS ENTITLED TO OBTAIN THE C-T-C OF HIS FATHER’S ASSET DECLARATION FORM
“Having made the above clarification, I agree with the Court below that in the facts and circumstances disclosed in the instant case, the respondent is entitled to have access and to obtain a certified true copy of his father’s assets declaration because he has demonstrated that it is in the public interest and that the public interest outweighs the protection of his father’s privacy. It is not only in the public interest to prevent commission of a crime, it is also in the public interest and a duty of the state to ensure that the alleged victim of a crime is not denied access to justice by denying him access to the materials and evidence in the custody of the state which he believes will assist his quest for justice. The respondent clearly demonstrated before the Court below that there is a dispute on a land allegedly bequeathed to him by his father which dispute has different dimensions including allegation of breach of fundamental rights for which judgment already been entered in his favour and allegation of forgery and fraud for which he intends to seek redress in Court. ”
II. Whether the Court below was right in awarding damages against the appellants?
RULING: IN APPELLANT’S FAVOUR.
A. THE GENERAL DAMAGES GRANTED BY THE TRIAL COURT DOES NOT FLOW FROM THE ACT OF THE APPELLANT
“In the instant case, the damages awarded cannot be said to flow from the act of the 1st appellant or presumed by law. The fact that the respondent intends to institute an action to reclaim the property allegedly bequeathed to him by his father is not a good reason to stop working to earn a living. The assertion that he rejected briefs from his clients so that he could prepare his case is incredible and ought not to have been believed by the Court below. The appellants rejection of the respondents application cannot be the cause of any stress the appellant allegedly suffered. This is because the law has prescribed the remedy for a wrong denial of access to information kept by a public institution.”
B. THE LAW HAS ALREADY PROVIDED A RELIEF FOR THE RESPONDENT AND THUS NOT ENTITLED TO GENERAL DAMAGES
“See Sections 20 and 25 of the FIA which provide that: 20. Judicial review 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 thirty 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 thirty days fix or allow. 25. Order to disclose information (1) Where a public institution denies an application for information or a part thereof on the basis of a provision of this Act, the Court shall order the institution to disclose the information or part thereof to the applicant- (a) if the Court determined that the institution is not authorised to deny the application for the information; (b) where the institution is so authorised, but the Court nevertheless determines that the institution does not have reasonable grounds on which to deny the application; or (c) where the Court makes a finding that the interest of the public in having the record being made available is greater and more vital than the interest being served if the application is denied, in whatever circumstance. (2) Any order the Court makes in pursuance of this section may be made subject to such conditions as the Court deem appropriate.”
“Where the law prescribes a specific remedy or relief for a particular wrong or grievance or breach of right, the Court has no power to go beyond that relief or grant a relief not envisaged by the law. The Court below made an order commanding the appellants particularly the 3rd appellant to furnish the respondent with a certified true copy of his father’s asserts declaration form. I am of the firm view that the respondent is not entitled to damages for the refusal of his request for access to the assets declaration of his father. A Court of law would refuse to grant an unreasonable and oppressive claim for damages.”
“In conclusion, this appeal succeeds in part. Reliefs 1 and 2 as granted by the Court below are hereby affirmed. The award of damages and costs against the 1st appellant is hereby set aside. Parties shall bear their own costs.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 1, 14, 20, 25, 31, of the Freedom of Information Act 2011.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)