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Incorporated Trustees of Digital Rights Lawyers Initiative & Ors. v NIMC (2021) – CA

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➥ CASE SUMMARY OF:
Incorporated Trustees of Digital Rights Lawyers Initiative (Suing For And On Behalf Of Other Data Subjects In Nigeria) & Ors. v National Identity Management Commission (NIMC) (2021) – CA

by Branham Chima (SAL).

➥ COURT:
Court of Appeal – CA/IB/291/2020  

➥ JUDGEMENT DELIVERED ON:
24 September 2021

➥ AREA(S) OF LAW
Fee to correct date of birth;
Data Protection;
Right to privacy;

➥ PRINCIPLES OF LAW
⦿ WHERE COUNSEL ABSENT, BRIEF WILL BE DEEMED ADOPTED
The Respondent’s Brief of Argument dated and filed on 3rd November, 2020, which was settled by Adedotun Ishola Osobu Esq, was deemed adopted pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016. — A.B. Mohammed, JCA.

⦿ ONLY FUNDAMENTAL RIGHTS CAN COME THROUGH THE FUNDAMENTAL PROCEDURE RULES
It is also settled law that for an action to be properly brought under the Fundamental Rights (Enforcement Procedure) Rules, 2009, (as was done by the Applicants at the trial Court), it must relate to infringement of any of the fundamental rights guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See: UNIVERSITY OF ILORIN and ORS v. IDOWU OLUWADARE (2006) 14 NWLR (Pt.100) 751; ACHEBE v. NWOSU (2003) 7 NWLR (Pt. 818) 103; ADEYANJU v. WAEC (2002) 13 NWLR (Pt.785) 479; and DIRECTOR, SSS v. AGBAKOBA (1999) 3 NWLR (Pt. 595) 314. In other words, for an action to be cognizable under the fundamental rights procedure, the infringement of any of the rights under Chapter IV of CFRN, 1999 must be the primary wrong forming the basis of the claim. — A.B. Mohammed, JCA.

⦿ RIGHT TO PRIVACY INCLUDES RIGHT TO PERSONAL DATA
The trial Court had, in my view, rightly held above, that the right to “privacy of citizens” as guaranteed under the Section includes the right to protection of personal information and personal data. — A.B. Mohammed, JCA.

⦿ PERSON MAY HAVE STANDING TO SUE YET DISABLED
Locus standi which simply means capacity or standing of a claimant to institute an action by more than one person. A person may have the standing to sue, yet have his suit disabled by the procedure he has adopted. — A.B. Mohammed, JCA.

⦿ BY INTERPRETATION ACT, SINGULAR MEANS PLURAL IN ANY LEGISLATION
Let me hasten to state that even if the phrase any person denotes singular, by Section 14 of the Interpretation Act, in construing enactments, words in the singular include the plural and words in the plural include the singular. See COKER v. ADETAYO (1996) 6 NWLR (PT 454) 258 at 266, UDEH v. THE STATE (1999) LPELR (3292) 1 at 16-17 and APGA v. OHAZULUIKE (2011) LPELR (9175) 1 at 24-25. — U.A. Ogakwu, JSC.

⦿ ONLY BREACH OF FUNDAMENTAL RIGHTS CAN BE ENFORCED THROUGH FREP
It is trite that it is only actions founded on a breach of the fundamental rights guaranteed in the Constitution that can be enforced under the Rules. The facts relied upon by an applicant must therefore disclose a breach of his fundamental right as the basis for his claim. Where the facts relied upon discloses a breach of the fundamental right of the Applicant as the basis of the claim, there exists a redress through the Fundamental Rights Enforcement Procedure. Where the alleged breach of right is ancillary or incidental to the main grievance or complaint, it is incompetent to proceed under the rules. See SEA TRUCKS NIGERIA LIMITED v. ANIGBORO (2001) 2 NWLR (PT. 696) 189; WEST AFRICAN EXAMINATIONS COUNCIL v. AKINKUMI (2008) 9 NWLR (PT. 1091) 151; NWACHUKWU v. NWACHUKWU (2018) 17 NWLR (PT. 1648) 357. — F.A. Ojo, JCA.

➥ LEAD JUDGEMENT DELIVERED BY:
Abba Bello Mohammed, J.C.A.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Solomon Okadara Esq.
Olumide Babalola, Esq.

⦿ FOR THE RESPONDENT
Adedotun Ishola-Osobu Esq.

➥ CASE FACT/HISTORY
The brief facts of the case as presented by the Appellant before the trial Court was that the 2nd Appellant (2nd Claimant) who had registered with the Respondent (Defendant) for the issuance of the National Identity Card was given a National Identification Number Slip which bore a month of birth different from his actual month of birth. The 2nd Appellant then applied to the Respondent for the rectification/correction of his date of birth. To have this done, the Respondent requested the 2nd Appellant to pay a fee of N15,000.00 (Fifteen Thousand Naira only), in accordance with its laid down official policy and procedure. The 2nd Claimant then objected to this request for payment, claiming that it violated his fundamental right to private and family life as guaranteed by Section 37 of the Constitution of the Federal Republic of Nigeria, 1999.

Thus, by an Originating Summons which was supported by a statement, an affidavit and a written address all dated 12th February, 2020 (contained in pages 1–15 of the Record of Appeal), the Appellants, as Applicants sought from the trial Court the determination of the following questions: “1. Whether or not by the construction of Section 37 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Respondent’s act of demanding for payment for rectification/correction of personal data is likely to interfere with the Applicant’s right to private and family life? 2. Whether or not by the provisions of Article 3:1(1)(7)(h) of the Nigeria Data Protection Regulation, 2019 (NDPR), the Applicants can request for rectification/correction of personal data from the Respondent free of charge.”

In response to the Appellants (Claimants) suit, the Respondent filed a Memorandum of Conditional Appearance, a Notice of Preliminary Objection challenging the trial Court’s jurisdiction, as well as a Counter Affidavit to the Originating Summons, all dated 16th March, 2020 and filed on 23rd March, 2020. The Appellants then countered with a written address in opposition to the Respondent’s preliminary objection and a reply on points of law all dated 27th May, 2020 and filed on 29th May, 2020.

Available:  Emmanuel Omozeghian v. Chief J. J. Adjarho & Anor (2005)

Having joined issued on the preliminary objection and the originating summons, the trial Court heard the parties and in its final judgment at pages 82–94 of the Record of Appeal, the Court upheld the preliminary objection of the Respondent, declined jurisdiction and struck out the Originating Summons. Dissatisfied with the judgment of the trial Court, the Appellants appealed to this Court on three grounds as contained in the Notice of Appeal dated 16th July, 2020, which is at pages 96 -101 of the Record of Appeal.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL SUCCEEDS IN PART, BUT DISMISSED]

I. Whether or not the trial Court was right when it held that rectification of date of birth has nothing to do with right to private and family life guaranteed under Section 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) & Whether or not the trial Court was right when it held that the Appellants’ suit which bordered on data protection did not disclose a cause of action under Section 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and thereby occasioned a miscarriage of justice to the Appellants?

RULING: IN RESPONDENT’S FAVOUR.
A. PERSONAL DATA PROTECTION FALLS UNDER SECTION 37 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
“Even from the holding of the trial Court at pages 89-90 of the Record which I have quoted above and the dictum of Agim, JCA (as he then was) in NWALI v. EBSIEC (supra), as well as the provisions of Article 2.9 of the NDPR, 2019 which I have quoted above, it is beyond doubt that, even as the scope of “privacy of citizens’ as used in Section 37 of CFRN, 1999 remains undefined, such a scope will undoubtedly include the privacy and protection of the personal data of citizens. On the relationship between the NDPR, 2019 and Section 37 of the CFRN, 1999, it is pertinent for me to state that the CFRN, 1999 makes provisions in Chapter IV guaranteeing the various fundamental rights of the citizens. But as I stated earlier, the nature and scope of those rights and even their limitations, are in most instances furthered by other statutes, regulations or other legal instruments. It is in this instance that the NDPR, 2019 must be construed as providing one of such legal instruments that protects or safeguards the right to “privacy of citizens” as it relates to the protection of their personal information or data, which the trial Court had rightly adjudged at page 89 of the Record to be part of the privacy right guaranteed by Section 37 of the CFRN, 1999. Apart from the provisions of Article 2.9 of the NDPR, 2019 quoted above, which specifically linked the NDPR, 2019 to the fundamental rights guaranteed in  Chapter IV of  CFRN, 2019, a further look at the provisions of the NDPR, 2019 tends to reinforce this position. In Article 1.2 relating to the scope of the Regulation, it is stated in paragraph (c) that “this Regulation shall not operate to deny any Nigerian or any natural person the privacy rights he is entitled to under the law, regulation, policy, contract for the time being in force in Nigeria or in any foreign jurisdiction.” From the foregoing therefore, I have hesitation in holding that personal data protection as provided in the National Data Protection Regulations generally falls under the fundamental right to privacy which is guaranteed by Section 37 of the CFRN, 1999. This was in a way also acknowledged by the trial Court when it held that right to privacy guaranteed in Section 37 of CFRN, extends to anything that is private and personal, including personal communication and personal data.”

B. THE APPELLANT CASE THOUGH MASQUERADING DOES NOT FALL UNDER FUNDAMENTAL RIGHT
“Before that Court, the Appellants have in their Originating Summons only tried to masquerade their challenge to the executive/administrative policy of the Respondent of charging fees for rectification of personal data in its National Identity Database, as a fundamental right suit pursuant to Section 37 of CFRN, 1999. However, even the provisions of the NDPR, 2019 upon which they relied to masquerade their suit as a fundamental right suit under Section 37 of CFRN, 1999, does not grant an absolute right to rectification of personal data free of charge. Rather it subjects such a right to other public policies or regulations. In other words, the NDPR, 2019, even though a regulation that generally relates to data protection, it recognizes that there may be other public policies or regulations on data management covering specific areas.”

C. CHARGING OF FEE FOR RECTIFICATION OF DATA DOES NOT FALL UNDER FUNDAMENTAL RIGHTS
“My consideration of the provisions of the National Identity Management Commission Act, 2007 as well as those of the National Data Protection Regulations has clearly revealed that the charging of fee for rectification of personal data by the National Identity Management Commission cannot constitute a cause of action under the right to privacy guaranteed by Section 37 of the CFRN, 1999 (as amended). As rightly held by the trial Court, the Appellants’ suit before the trial Court is rather clearly a challenge to the Respondent’s public policy decision of charging fees for rectification of personal data, which it is expressly empowered to do by its enabling legislation.”

D. IT IS THE FEDERAL HIGH COURT THAT HAS JURISDICTION
“By the express provision of Section 251(1)(r) of the CFRN, 1999, all civil causes and matters relating to any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies fall under the exclusive jurisdiction of the Federal High Court and a State High Court has no jurisdiction to entertain such an action. See NEPA v. EDEGBERO (2002) LPELR-1957(SC), per Ogundare, JSC at pages 14 – 15, paras. C – D; OLORUNTOBA-OJU and ORS v. DOPAMU and ORS (2008) LPELR-2595(SC), per Muhammad, JSC at pages 30 – 32, paras. F – B; OLUTOLA v. UNILORIN (2004) LPELR-2632(SC), per Tobi, JSC at pages 40 – 43, paras. D – C; and OBI v. INEC (2007) LPELR-24347(SC), per Aderemi, JSC at pages 39 – 41, paras. E – A.”
.
.
II. Having regard to the position of the law in Udo v. Robson (2018) LPELR-45183(CA) and Solomon Kporharo v. Michael Yedi (2017) LPELR-42418(CA), whether the lower Court was right in holding that a joint application cannot be validly brought under the provisions of the Fundamental Human Rights (Enforcement Procedure) Rules, 2009?

Available:  Kossen (Nig.) Limited & Anor v. Savannah Bank of Nig. Limited (1995) - SC

RULING: IN APPELLANT’S FAVOUR.
A. JOINT HUMAN RIGHT ACTIONS CAN BE FILED TOGETHER
“To demonstrate that public spirited litigation in fundamental rights related cases is now the norm, the FREPR 2009 made pursuant to Section 46(3) of the 1999 Constitution and thus clothed with constitutional force expanded the horizon of locus standi in fundamental rights cases in paragraph 3(e) thereof thus – “3(e) The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates or groups as well as any non-governmental organizations, may institute human rights application on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following: (i) Anyone acting in his own interest; (ii) Anyone acting on behalf of another person; (iii) Anyone acting as a member of, or in the interest of a group or class of persons; (iv) Anyone acting in the public interest, and (v) Association acting in the interest of its members or other individuals or groups.”

“It must also be pointed out that whilst the decision of this Court in KPORHAROR’s case (supra) which was followed in UDO v. ROBSON (supra) were essentially based on the 1979 FREP Rules, the decision in OLUMIDE BABALOLA v. AGF and ANOR (supra), was based on the 2009 FREP Rules, which is the extant applicable procedure for enforcement of fundamental rights actions.”

“With due respect to the learned trial judge, I do not agree with that distinction in respect of this case. The issue clearly deals with whether or not there is a collective right to institute an action under the fundamental rights enforcement procedure rules. It is therefore one which deals squarely with the interpretation of the right of action in fundamental rights enforcement as provided in Section 46(1) of the 1999 Constitution and as furthered by the Fundamental Rights (Enforcement Procedure) Rules, 2009 made pursuant to Section 46(3) of the same Constitution. As shown above, unlike the 1979 FREP Rules, the 2009 FREP Rules has in line with the trite law of interpretation expanded the right of action in fundamental rights proceedings to include joint action by several persons provided the basis of the complaint arose from the same cause of action.”

“I need to add that no set of cases foster public confidence in the judiciary as an adjudicatory system of redress, than fundamental rights cases. This is primarily because most human rights enforcement cases are complaints by seemingly “weak” individual members of the public against apparently “powerful” state actors. For this reason, a narrow interpretation of Section 46 of the 1999 Constitution and the FREP Rules, 2009 that springs which restricts access in fundamental rights proceedings to only individuals will unduly retard the objective of ensuring the promotion and due observance by all, of the fundamental human rights so constitutionally guaranteed.”

“The trial Court was wrong to have relied on the decisions of this Court inUDO v. ROBSON (supra) and KPORHAROR v. YEDI (supra) to hold that a joint application cannot be validly brought under the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009.”
.
.
.
✓ DECISION:
“I have already found in resolving those issues, that the trial Court was right in its judgment declining jurisdiction to entertain the Appellants’ suit, not being a cause of action that can be brought under the fundamental rights civil procedure rules, but one that falls under executive/administrative actions/decisions of a Federal Government agency, which by Section 251(1)(r) of the 1999 Constitution falls under the exclusive jurisdiction of the Federal High Court. Having so held, I could only determine that this appeal is in the final analysis lacking in merit. Accordingly, this appeal is hereby dismissed and the decision of the High Court of Ogun State, per Honourable Justice A. A. Akinyemi delivered on the 15th of July, 2020 striking out the Appellants’ suit is hereby affirmed. Cost of N100,000.00 is hereby awarded against the Appellants.”

➥ MISCELLANEOUS POINTS
** THE HOLDING OF THE TRIAL COURT ON SECTION 37 OF THE NIGERIAN CONSTITUTION VIS-À-VIS DATA PROTECTION
In declining jurisdiction to entertain the Appellants’ Originating Summons, the trial Court had, at pages 89–90 of the Record of Appeal, considered the decisions of this Court in FRN v. DANIEL (2011) LPELR-4152(CA) and NWALI v. EBSIEC (2014) LPELR-23682(CA), on which the Appellant relied, and held as follows: “These two decided cases clearly explain the scope and ramifications of the right guaranteed under Section 37 of the Constitution.  The kernel of both the provision of Section 37 of the Constitution and these illuminating decisions is to my mind, that privacy of a citizen of Nigeria shall not be violated. From these decisions, privacy to my mind can be said to mean the right to be free from public attention or the right not to have others intrude into one’s private space uninvited or without one’s approval. It means to be able to stay away or apart from others without observation or intrusion. It also includes the protection of personal information from others. This right to privacy is not limited to his home but extends to anything that is private and personal to him including communication and personal data. From the facts of this case, there is no evidence that the defendant or its staff or agents intruded or attempted to intrude into the privacy or personal territories of the Claimants or obtain their data without their consent. It would have been different if the Defendant obtained and retained the Claimants’ data without their consent. See: IBIRONKE v. MTN (2019) LPELR-47483(CA). It would also be an invasion of the Claimants’ privacy if the defendant gave unauthorized access to the Claimants’ data to third parties. See: EMERGING MARKETS v. ENEYE (2018) LPELR-46193(CA).  To the contrary, the facts show that the defendant accorded recognition to and allowed an exercise of the 2nd and 3rd Claimants’ rights, by granting them registration as Nigerian citizens, entitled to be registered for identification as Nigerians.  Also, from the facts presented before this Court, the demand for payment of a fee was not a condition precedent for registration, but for something that came after registration, as administrative fee for correction of the error in the data supplied by the 2nd Claimant, for his registration. As I have earlier noted, the claimants have not asserted that the error in the 2nd Claimant’s date of birth arose as a result of the Defendant’s default. I am unable to fathom how this requirement constitutes an infraction to the Claimant’s right to privacy under Section 37 of the Constitution. This suit is clearly a challenge of the power of the Defendant to charge a fee for the rectification or correction of the error contained in the 1st Claimant’s birth date and not a challenge of a denial of his right to be registered for identification as a Nigerian citize.  The decision of the Defendant, a Federal Government Agency, to charge a fee for its services is clearly an executive/administrative one, in my humble view. The Courts have held that suits challenging executive and administrative decisions of Federal Government Agencies fall within the exclusive jurisdiction of the Federal High Court.”

Available:  Mr. Kessington Egbor, JP. & Anor v. Mr. Peter O. Ogbebor (2015)

➥ REFERENCED (LEGISLATION)
Section 37 Constitution of the Federal Republic of Nigeria 1999 (as amended);
Section 31(d)(i) & (ii) of the National Identity Management Commission Act (NIMC Act, No. 23 of 2007).

➥ REFERENCED (CASE)
⦿ ABSENCE OF THE CLEAR SCOPE OF THE RIGHT TO PRIVACY IN SECTION 37 CFRN
In highlighting the absence of a clear scope of the right to “privacy of citizens” as guaranteed under Section 37 of CFRN, 1999, this Court, per Agim, JCA (as he then was, now JSC), had held in the cited case of NWALI v. EBSIEC (2014) LPELR-23682(CA) at pages 27 – 29, para. E, as follows: “The meaning of the term “privacy of citizens” is not directly obvious on its face. It is obviously very wide as it does not define the specific aspects of the privacy of citizens it protects. A citizen is ordinarily a human being constitution of his body, his life, his person, thought, conscience, belief, decisions (including his plans and choices), desires, his health, his relationships, character, possessions, family, etc. So how should the term “privacy of citizens” be understood? Should it be understood to exclude the privacy of some parts of his life? This can be seen from its holding that the right includes “privacy in private family life and incidental matters when this aspect is not expressly provided for in that Section and that meaning is not patently obvious from the text of that Section…The privacy of home, privacy of correspondence, privacy of telephone conversations and privacy of telegraphic communication are clear and particular as to the nature of privacy protected or the area or activity in respect of which a person is entitled to enjoy privacy…  It is glaring that the phrase “Privacy of Citizens” is general and is not limited to any aspect of the person or life of a citizen. It is not expressly defined by the Constitution and there is nothing in the Constitution or any other statute from which it’s exact meaning or scope can be gleaned.”

⦿ CAUTIOUSNESS IN APPLYING FOREIGN DECISIONS TO NIGERIAN SITUATIONS
This Court had earlier on in Oruakpor Okokor v. The State (1967) NMLR 889 at 191 (per Idigbe, JSC) sounded the following note of warning:- “Trial Courts should be a little more cautious in the application of principles of English law in the face of specific provisions in our local statutes”. It is the duty of every Nigerian Court not only to uphold but to apply Nigerian Laws and rules of Court. As Obaseki, JSC rightly put it in Bendel State v. The Federation (1981) 10 SC 115:- “Just as Australian Courts apply Australian law and American Courts apply American law, be they State or Federal, Nigerian Courts are enjoined to by the Nigerian Constitution to follow Nigerian law…” Eso, JSC at pages 187-188 of the above Report stated that:- “Gone should be those days if ever they were, when the decisions of other Courts in any common law country are to be accepted in this country as precedents in the like of the Delphic Oracle.” See also Uyanne v. Asika (1975) 4 SC 233 and Esan v. Olowa (1974) 3 SC 125.”

➥ REFERENCED (OTHERS)

End

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