(2018) lpelr-45856(ca)lawpavilionpersonal.com/ipad/books/45856.pdfmohammed mustapha justice, court...
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CBN & ANOR v. PPDC LTD/GTE
CITATION: (2018) LPELR-45856(CA)
In the Court of AppealIn the Abuja Judicial Division
Holden at Abuja
ON THURSDAY, 10TH MAY, 2018Suit No: CA/A/556/2016
Before Their Lordships:
ABDU ABOKI Justice, Court of AppealEMMANUEL AKOMAYE AGIM Justice, Court of AppealMOHAMMED MUSTAPHA Justice, Court of Appeal
Between1. CENTRAL BANK OF NIGERIA2. THE GOVERNOR, CENTRAL BANK OF NIGERIA - Appellant(s)
AndPUBLIC & PRIVATE DEVELOPMENT CENTRELTD/GTE (PPDC) - Respondent(s)
RATIO DECIDENDI
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1. EVIDENCE - EVALUATION OF EVIDENCE: Duty of trial judge to evaluate evidence and nature of the duty of an appellate court in reviewing such evaluation on appeal"It is very important to bear in mind that the nature of evidence required in matters like this, which involve the supervisory jurisdiction of the High Court exercised in the review ofthe acts of governmental bodies, otherwise referred to as judicial review, is essentially affidavit evidence, see ABC LTD V. NWAIGWE (2011) LPELR-208-SC.It is settled that the evaluation of such evidence and indeed any other evidence by a Court involves a reasoned belief of the evidence of one of the contending parties anddisbelief of the other or a reasoned preference of one version to the other. There must be something on record to show why the Court preferred one piece of evidence to the otherin arriving at the conclusion it did, see OYEKOLA V. AJIBADE (2004) 17 NWLR (PT. 902) 356. It is therefore the duty of the trial Court in this case to properly evaluate the affidavitevidence placed before it, for the just determination of the dispute before it, especially as there are no witnesses called by either of the parties.?The counter affidavit of the appellants is quoted verbatim in earlier parts of this judgment; and paragraph 15 thereof, at page 41 of the record of appeal, stated clearly that byexhibit CBN1 the appellants have a pending administrative proceeding being conducted by the National Assembly, which the trial Court did not take into account in arriving at thedecision it did. This failing is more glaring in view of the fact that the said counter affidavit is not controverted in any way, given that the legal position of uncontroverted evidenceis settled, see OGUNYADE V. OSHUNKEYE (2007) 15 NWLR (Pt. 1057) 218.Where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the trial Court to act on theunchallenged evidence before it, unfortunately the trial Court could not apply this trite position of the law because it did not take it into account the counter affidavit of theappellants in the first instance, if it did it would have found the unchallenged and uncontradicted evidence of the appellants as accepted in establishing the facts therein, seeODULAJA V. HADDAD (1973) 11 SC 357; NIGERIAN MARITIME SERVICES LTD. V. ALHAJI BELLO AFOLABI (1978) 2 SC 79, see also NZERIBE V. DAVE ENG. CO. LTD. (1994) 8 NWLR124; EBEINWE V. THE STATE (2011) 7 NWLR 402 and OKIKE V. L.P.D.C. (2005) 15 NWLR (Pt. 949) 471. The finding of the trial Court at page 104 of the record of appeal, that "...I donot see any third party trade secret information being requested. All the appellant is asking for are the bids tender documents, contract evaluation and award..." is far from whatthe state of pleadings in the case disclosed.Ordinarily this Court does not interfere with the findings of a trial Court, unless it is satisfied that such findings are perverse or that the trial Court did not adequately utilize theopportunity or advantage of documentary evidence before it, and therefore occasioned a miscarriage, unfortunately that clearly is the case in this case, because the trial Court'sfailure to take into account the uncontradicted depositions of the appellants in the counter affidavit did indeed occasioned a miscarriage of justice. See DANIEL GARAN VS. STAFFOLOMU (2013) 10 SCM 88 AT 102 1 TO 103 and also LEKAN SHODIYA VS. THE STATE (2013) 12 SCM 175 AT 187.The trial Court's failure to properly evaluate the content of the appellants' counter affidavit, particularly paragraphs 14, 16 and 17 thereof, to the extent that the said informationrequested by the respondent was such that could not be disclosed, being subject especially of investigation by the National Assembly, as per Exhibit CBN1 amounted to afundamental breach of the appellants' right to be fairly heard, thus occasioning a miscarriage of justice. If the trial Court had averted its mind to those paragraphs of the affidavit,it would surely have arrived at a different conclusion.Learned counsel to the respondent's argument in response that the appellants failed to discharge the burden of proof laid down by Section 24 of the Act is neither here nor therein the circumstances of this case.It is for these reasons that I now resolve this issue too in favour of the appellants, against the respondent."Per MUSTAPHA, J.C.A. (Pp. 22-26, Paras. F-D) - read in context
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2. LEGISLATION - FREEDOM OF INFORMATION ACT, 2011: Right of the public to information under the Freedom of Information Act, 2011 and its exceptions"The Freedom of Information Act, 2011 was enacted clearly with the intention of making public records and information freely available to any member of the interested public.Section 1 of the Act confers the right to commence proceedings to compel compliance by any unwilling custodian; however, right to information is not absolute, as certain formsof information are exempted from disclosure.The first set of information sought by the respondent from the appellants are:1. A certified copy of the signed contract document between the Federal Government of Nigeria or Central Bank of Nigeria and Systemspec Nigeria limited in respect of the use ofcompany's Remita (funds) e-payment/e-collection solution platform as part of the medium for the implementation of the Federal Government TSA policy.2. What is the company's fee/remuneration or commission for the services rendered/to be rendered to the government under the contract?3. What is the duration of the contract; and4. How much has accrued to the company from the inception of its engagement for the implementation of the TSA policy till date (i.e. up to 12th November, 2015); andThe second set of information sought is:1. Certified true copies of procurement plans and information, including needs assessment and evaluation, and identification of services required.2. Certified true copy of advertisement of invitation for bids published in at least two national dailies apart from the federal tender's journal and a relevant internationallyrecognized publications. Also evidence of the advertisement on your website and notice board.3. Copies of the standard bidding documents that were issued to all bidders in the course of the procurement.4. A Certified True Copy of the list of all bids tendered in respect of this procurement from when advertised till the closure of bid advertisement.5. Certified True Copy of bid submission registers and duplicate copies of receipts issued to bidders on submission of bids.6. Certified True Copy of minutes of public bid opening meeting.7. Certified True Copy of minutes of bid evaluation meeting and records of bids evaluation report containing the recommendation of the bid evaluation committee.8. Certified True Copy of minutes of the tender's board awarding the contract to the successful bidder.9. Certificate of No Objection issued in respect of the procurement (if any)10. Letter of notification of award of contract at page 13 of appellants brief.Now the question that arises is whether the information sought falls within the category of information exempted by the Act Section 12, 14 and 15.It is important at this point to have recourse to the relevant provisions of the Act on exemption, and they provide as follows:Section 12:1) Public institution may deny an application for any information which contains-(a) Records compiled by any public institution for administrative enforcement proceedings and by any law enforcement or correctional Agency for law enforcement purposes or forinternal matters of a public institution, but only to the extent that disclosure would-i. Interfere with pending or actual and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional Agency.ii. Interfere with pending administrative enforcement proceedings conducted by any public institution.iii. Deprive a person of fair trial or an impartial Hearingiv. Unavoidably disclose the identity of a confidential source.v. Constitute an invasion of personal privacy under Section 15 of this Act except where the interest of public would be better served by having such records being made available,this exemption to disclose shall not apply; andvi. Obstruct an ongoing criminal investigation. Section 14(1)Subject to Subsection 2, a public institution must deny an application for information that contains personal information and information exempted under this subsection includes;(c) Files and personal information maintained with respect to any Applicant, registrant or Licensure or discipline.Section 15(1a, b, c)A public institution shall deny an application for information that contains;a. Trade secrets and commercial or financial information obtained from a person or business where such trade secrets or information are proprietary, privileged or confidential orwhere disclosure of such trade secret or information may cause harm to the interest of the third party provided that nothing contained in this subsection shall be construed aspreventing a person or business from consenting to disclosure.b. Information the disclosure of which could reasonably be expected to interfere with the contractual or other obligation of a third party andc. Proposal and bids for any contract, grant or agreement, including information which if it were disclosed would frustrate procurement or give an advantage to any person.At pages 2, 3, 11, 12, 19 and 20 of the record of appeal the respondent set out the specific information sought, and it is these information that was ordered by the trial Court to bedisclosed, when the trial Court came to the conclusion that the information sought by the respondent did not fall within the various exemptions provided under the Act, see pages95 and 104 to 105 of the record of appeal.On the first set of information sought and directed to be released by the trial Court, it is important to refer to the appellants, counter affidavit, particularly paragraphs 14 to 17 atpages 35 to 40 of the record of appeal for the determination of whether the appellants' depositions satisfactorily bring the information sought within the ambits of the exemptionsprovided by the Act.Paragraphs 14 - 17 states: -"14. That I know of a fact that information being requested from the 1st and 2nd Respondents is currently the subject of administrative enforcement proceedings by both publicinstitutions and Law Enforcement Agency particularly the Presidency, the National Assembly, the Ministry of Finance, the Economic and Financial Crimes Commission and CentralBank.15. That further to the above, I have checked our records and was able to find one of the invitations from the public institutions and the law Enforcement Agency inviting theRespondents with respect to the ongoing administrative enforcement proceedings relating to the information being sought by the Applicants. The House of Representatives letterof 19th November 2015 inviting the Respondent to appear before it is hereby Exhibited and marked as Exhibit CBN 1.16. That I know for a fact that apart from the invitation from the House of Representatives in Exhibit CBN 1 above, that the Senate, Presidency, Economic and Financial CrimesCommission and the Central Bank of Nigeria are conducting administrative enforcement proceedings with respect to the contract which is current on-going.17. That I know for a fact that the information being sought if released will interfere with the pending administrative enforcement proceedings, review and investigation beingconducted by the public institution and the law enforcement agencies."It is clear from the depositions in the counter affidavit of the appellants that the information sought to be made available is the subject of an ongoing administrative enforcementproceedings by the National Assembly, the Federal Ministry of Finance and the EFCC, and the appellants have clearly stated that the information if released will interfere with allthe pending administrative enforcement proceedings, thus bringing the information squarely within the exemptions provided in Section 12 (1) (a) of the Act, and that much isclear from Exhibit CBN1, attached to the counter affidavit of the appellants, particularly referred to at paragraph 15, see page 41 of the record of appeal.For the avoidance of doubt, Exhibit CBN1 is an invitation by the House of Representatives to the appellants, informing them of an ongoing investigation with respect to issuesrelated to the subject matter, i.e. Treasury Single Account contract award to Systemspec Nigeria Limited.It is argued for the respondents that Section 24 of the Act places the burden on the appellants as a public institution to prove that they are indeed authorized to deny theinformation sought, that in the considered opinion of this Court is exactly what the appellants did in their counter affidavit quoted verbatim above, particularly at paragraphs 14,16 and 17 at pages 38 to 39 of the record of appeal; and it is very important not to lose sight of the fact that the depositions in the counter affidavit are not controverted; and thatbeing so, the law is settled that where facts provable by affidavit evidence are duly deposed to in an affidavit by a party, his adversary has a duty to controvert those facts in anaffidavit of his own, be it counter or further affidavit, if he disputes them, failing which such facts may be regarded as duly established; see LONG-JOHN & ORS V. BLAKK (1998) 6NWLR part 555 page 524; It is noteworthy that the foregoing affidavit evidence has not been denied, challenged, or controverted by the respondent in this case, and the settledposition of the law is that affidavit evidence that is not denied is deemed admitted, and being unchallenged evidence, the Court is not only to accept same, but must act on it. Seealso UZODINMA V. IZUNASO (2011) 5 (PT. 1) MJSC 27, OKOEBOR V. POLICE COUNCIL (2003) 12 NWLR (PT. 834) 444; ATT. GEN, ONDO STATE V. ATT. GEN. EKITI STATE (2007) 17NWLR (PT. 706); EGBUNA V. EGBUNA (1989) 2 NWLR (PT. 106) 773. The argument of learned counsel for the respondent that the appellants failed to prove or establish theirentitlement to the exemption is without basis, in view of the clear and uncontroverted proof of pendency of administrative review proceedings and investigation by publicinstitutions with respect to the information sought, as deposed in the counter affidavit, and demonstrated by Exhibit CBN1.With regard to the second request, it is clear, even from casual inspection that the information is in respect of the company's fees or services to be rendered under the contract,and the company, i.e. Systemspec Nigeria Limited is clearly not a party to the suit. To buttress that fact the appellants deposed to that in paragraphs 20, 21, 22, 23 and 24 oftheir counter affidavit, see page 39 of the record of appeal. That being so, Section 15 (1) (a) of the Act clearly exempts the information sought, not least because the company inissue is not a party to the suit, as earlier pointed out.Learned counsel to the respondent's argument that the exemption does not apply to the information sought by reason of the fact that that Section 12 (1) (a) of the Act appliesonly to records 'compiled by any public institution' clearly cannot hold, because a Court of law lacks jurisdiction to hear any matter or cause in favour of, or against persons whoare not parties before it; see SHERIFF & ANOR V PDP & ORS (2017) LPELR-41805-CA. Furthermore, the Court does not have powers also to make orders either in favour of oragainst persons who are not parties to an action before it, see BIYU V. IBRAHIM (2006) 8 NWLR (PT. 981) 1 and NNAEMEKA V. CHUKWUOGOR (2007) 5 NWLR (PT. 1026) 60.It is one thing to request for information from an institution, as provided by the Act, it is entirely another thing when it comes to compelling that institution to release information,where it refuses to release such information as requested, because if the information is indeed of such a nature that it affects a third party interest, it is expedient to also includethe third party in the suit so instituted, at least as a nominal party, otherwise no Court will lawfully make an order against a third party, whose interest will be affected, when infact he is not a party to the suit at all.Several reasons may necessitate the joinder of a party to a suit, on application or even suo motu by the Court, in this case the third party's joinder is desirable not only because itmay be aggrieved or likely to be aggrieved by the result of the litigation to the extent that it will be directly, legally or financially affected by the result of the litigation but alsomost importantly to avoid loss of jurisdiction by the fact of non-joinder, See UKU vs. OKUMAGBA (1974) 3 S.C. 35; GREEN VS GREEN (1987) 3 NWLR (PT. 61) 4580; IGE VS FARINDE(1994) 7 - 8 S.C.N.J (PT. 2) 284.It is not in doubt that the information sought relates to the process of the award of contract to a third party, i.e. Systemspec Nigeria Limited, who is not a party to the suit, by theFederal government of Nigeria, and so the order of the trial Court is not enforceable, as it is contrary to the letter and spirit of Sections 12, 14 and 15 of the Freedom ofInformation Act, 2011.?The Freedom of Information Act, 2011 is undeniably a vital component in a democratic society; its aim is to make information relating to governance freely available to thegoverned, without let or hindrance. It is that desire that also informed the wisdom of the legislature in exempting certain kinds of information, such as international affairs anddefence, law enforcement and investigation, personal information, third party information, research materials, professional and other privileges conferred by law. This protectionfrom disclosure it should be understood is in the same public interest that makes it necessary for certain kind of information to be made available to the public on request; withoutthese exemptions there can only be chaos.The trial Court was therefore clearly in error to have held that the information sought did not fall within the exemptions, as copiously deposed in the uncontradicted counteraffidavit of the appellants."Per MUSTAPHA, J.C.A. (Pp. 9-21, Paras. C-B) - read in context
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MOHAMMED MUSTAPHA, J.C.A. (Delivering the
Leading Judgment): This appeal is against the Ruling of
the Federal High Court, sitting in Abuja; Coram Hon.
Justice B.M. Nyako, delivered on 1st day of July, 2016 in
Suit No: FHC/ABJ/1045/2015.
The Respondent as the Plaintiff before the trial Court vide
its Originating Motion on Notice filed on the 18th day of
December, 2015 sought for a declaration of the trial Court
that the failure of the Appellants to release various
information it sought and requested from them pursuant to
the Freedom of Information Act 2011 was wrongful in the
circumstance. Consequent upon that, the Respondent
further prayed for an order of the trial Court compelling
the Appellants to within 7 days of the judgment of the
Court to furnish the Respondents with the information
sought.
Pleadings were filed and exchanged by parties and in a
considered judgment the trial found that the information
and documents sought by the Respondent did not fall
within the exceptions under the provisions of the Freedom
of Information Act, 2011 and proceeded to make an Order
mandating the Appellants herein
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to release the said information and documents requested
by the Respondent.
Dissatisfied with the said judgment, the appellants filed a
Notice of Appeal to this Court on the 8th day of July, 2016
on the following grounds shorn of their respective
particulars: -
GROUND ONE:
The Learned Trial Judge erred in law when she held that
the information/documents sought by the Respondent are
public documents and as such can be released by virtue of
the Freedom of Information Act 2011.
GROUND TWO:
The Learned Trial Judge erred in law when it held that the
information sought by the Respondent did not fall under
third party documents and information exempted by
Section 15(1)(a), (b), (c) of the Freedom of Information Act
2011.
GROUND THREE:
The Learned Trial Judge erred in law when it ordered the
Appellant to release to the Respondent the information
relating to the contract with Systems Spec Nigeria Ltd.
GROUND FOUR:
The ruling of the Learned Trial Court was against the
weight of evidence adduced.
From the above grounds, Aare Olumuyiwa Akinboro SAN,
of counsel for the Appellants submitted two issues for the
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determination of this appeal in the Appellants' Brief of
Argument filed on the 21st April, 2017 but deemed
properly filed on the 13th November, 2017; thus:
1. Whether the decision of the Court below was right
in law, justifiable and sustainable in view of the
provisions of Sections 12(1A), 14(1c) & 15(1A, B, C)
of the Freedom of Information Act, Cap F43 LFN
20113.
2. Whether the Learned Trial Court's findings and
Judgment was not against the weight of evidence
placed before the Court and therefore perverse.
In response, Godwin N. Chigbu Esq., of counsel for the
Respondent adopted the issues formulated by the
Appellants in the Respondent's Brief filed on the 27th day
of December, 2017 but deemed properly filed on the 13th
day of March 2018.
Issue One:
Whether the decision of the trial Court is right in law,
in view of the provisions of Sections 12 (1a), 14 (1c)
and 15 (1a, b, & c) of the Freedom of Information Act,
2011, grounds 1, 2 & 3.
It is submitted for the appellants on this issue that the right
to information under Section 1 (1) of the Act is not
absolute, with respect to the type of information that can
be
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released to an applicant, and the information sought by the
respondent and consequently ordered to be released by the
trial Court are exempted under the Act.
That information related to international affairs and
defense, law enforcement and investigation, personal
information, third party information, professional or other
privileges conferred by law and course or research
materials are all prohibited and exempted by law from
disclosure.
That a proper appraisal of the processes filed by the
appellants before the trial Court would have led to the
conclusion that the said information fell within the several
exemptions provided under the Act, in Sections 12, 14 and
15.
Learned senior counsel submitted that the first set of
information sought was subject of ongoing administrative
enforcement proceedings by both public institutions and
law enforcement agency, and that much was deposed to in
the appellants' counter affidavit at paragraphs 14 to
17, and that if released the information will interfere with
the pending proceedings, and therefore exempted under
Section 12 (1) (a) of the Act.
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That the depositions in the counter affidavit of
the appellants were not controverted and therefore deemed
admitted; learned senior counsel referred the Court to
CHIEF M.A. INEGBEDION V. DR. SELO-OJEMEN &
ANOR (2013) 8 NWLR part 1356 page 211, ISRAEL
ARUM V. OKECHUKWU NWOBODO (2013) 10 NWLR
part 1362 page 374 and ONWUKA V. OWOLEWA
(2001) 7 NWLR part 713 page 695 and contended that
the fact of the pendency of an administrative proceedings
by public institutions with the information sought was
established.
On the second request of the respondent, it is submitted for
the appellants that it relates to the proprietary, commercial
and financial confidential information of a third party, i.e.
Systems Spec Nigeria Ltd, the owner of the copy right over
Remita E-payment solution, which if released will adversely
affect the proprietary rights, information and trade secrets
of a third party; learned counsel referred this Court to S. 15
(1) (a) of the Act and paragraphs 20, 21, 22 and 23 of the
appellants' counter affidavit, as well asAWONIYI V. REGT
TRUSTEES, AMORC (2000) 10 part 676 page 522 and
MARK OGBECHE UKPO V. GREGORY NGAJI (2010).
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Learned senior counsel further submitted that the third and
fourth requests made is subject of an administrative
enforcement proceedings by the National Assembly,
Federal Ministry of Finance and the EFCC; and if released
will interfere with pending administrative enforcement
proceedings and investigation as exempted under Section
12(1) (a) of the Act; and that much was deposed to at
paragraphs 14 to 17 of the appellants' counter affidavit.
That the second set of information requested relates to the
process of award of the contract between the Federal
Government and Systemspec Nigeria Ltd; that also is a
subject of administrative proceedings by the National
Assembly, Federal Ministry of Finance and the EFCC, and if
released will interfere with pending administrative
enforcement proceedings, especially as it is exempted from
disclosure under Section 15 (1) (b) and (b) of the Act.
It is submitted for the respondent in response on this issue
that by the provisions of Section 24 of the Act the onus of
proof rests on the appellants as public institutions to prove
that they are authorized to deny the information sought on
the ground that they are exempted under the relevant
provisions of the Act, and that the appellants
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failed to discharge that burden before the trial Court, as
such the trial Court was right in ordering them to furnish
the respondent with the requested information; learned
counsel referred this Court to Section 24 of the Act.
That what is exempted under Section 12 (1) (a) of the Act
applies only to records specifically compiled for any of the
purposes covered by the Act, and the respondent is not
asking for records compiled, as exempted under Section 12
of the Act.
That also the information requested by the respondent is
related only to information generated in the course of
procurement proceedings conducted by the appellants and
information arising from the contract entered into by the
appellants with Systemspec Nigeria limited.
Learned counsel further submitted that the information
requested cannot be denied merely for forming part of
records compiled because for information to be exempted
under Section 15 of the Act, the conditions provided must
co-exist concurrently, and the existence of such information
must be deposed in the affidavit of the party seeking
exemption.
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That also the counter affidavit of the appellants does
not disclose any fact capable of satisfying the necessary
conditions set out in Section 15 of the Act, i.e. non-
involvement of trade secrets and commercial or financial
information, let alone third party interest, as such the
exemption does not apply in the circumstances of this case.
Learned counsel also submitted that even though item four
of the first set of information could be said to relate to
financial information the exemption does not apply because
the appellants did not prove the existence of the conditions
necessary for exemption, especially as it is not information
obtained from a third party, but information appellants
know as of right.
On item two of the first set of information, learned counsel
submitted that it has nothing to do with bid or tender
documents, and does not contain any information exempted
under Section 15 of the Act.
That the appellants failed to show how the exemptions in
Sections 12, 14 and 15 of the Act applied to the information
sought by the respondents under the second set of
information, and it is not the duty of the Court to fish for
the exemptions, and having failed to show how the
exemptions applied to the
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set of information requested the appellants cannot expect
to succeed.
Learned counsel further submitted that the exemption
under Section 15 of the Act is only for the purpose of
preventing the frustration of procurement or giving
advantage to any person interested in the procurement,
and so the exemption can only apply were procurement
proceedings have not been concluded.
RESOLUTION:
The Freedom of Information Act, 2011 was enacted clearly
with the intention of making public records and information
freely available to any member of the interested public.
Section 1 of the Act confers the right to commence
proceedings to compel compliance by any unwilling
custodian; however, right to information is not absolute, as
certain forms of information are exempted from disclosure.
The first set of information sought by the respondent from
the appellants are:
1. A certified copy of the signed contract document
between the Federal Government of Nigeria or Central
Bank of Nigeria and Systemspec Nigeria limited in respect
of the use of company's Remita (funds) e-payment/e-
collection solution platform as part of the medium for the
implementation of the Federal Government TSA policy.
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2. What is the company's fee/remuneration or commission
for the services rendered/to be rendered to the government
under the contract?
3. What is the duration of the contract; and
4. How much has accrued to the company from the
inception of its engagement for the implementation of the
TSA policy till date (i.e. up to 12th November, 2015); and
The second set of information sought is:
1. Certified true copies of procurement plans and
information, including needs assessment and evaluation,
and identification of services required.
2. Certified true copy of advertisement of invitation for bids
published in at least two national dailies apart from the
federal tender's journal and a relevant internationally
recognized publications. Also evidence of the advertisement
on your website and notice board.
3. Copies of the standard bidding documents that were
issued to all bidders in the course of the procurement.
4. A Certified True Copy of the list of all bids tendered in
respect of this procurement from when advertised till the
closure of bid advertisement.
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5. Certified True Copy of bid submission registers and
duplicate copies of receipts issued to bidders on submission
of bids.
6. Certified True Copy of minutes of public bid opening
meeting.
7. Certified True Copy of minutes of bid evaluation meeting
and records of bids evaluation report containing the
recommendation of the bid evaluation committee.
8. Certified True Copy of minutes of the tender’s board
awarding the contract to the successful bidder.
9. Certificate of No Objection issued in respect of the
procurement (if any)
10. Letter of notification of award of contract at page 13 of
appellants brief.
Now the question that arises is whether the information
sought falls within the category of information exempted by
the Act Section 12, 14 and 15.
It is important at this point to have recourse to the relevant
provisions of the Act on exemption, and they provide as
follows:
Section 12:
1) Public institution may deny an application for any
information which contains-
(a) Records compiled by any public institution for
administrative enforcement proceedings and by any law
enforcement or correctional Agency for law enforcement
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purposes or for internal matters of a public institution, but
only to the extent that disclosure would-
i. Interfere with pending or actual and reasonably
contemplated law enforcement proceedings conducted by
any law enforcement or correctional Agency.
ii. Interfere with pending administrative enforcement
proceedings conducted by any public institution.
iii. Deprive a person of fair trial or an impartial Hearing
iv. Unavoidably disclose the identity of a confidential
source.
v. Constitute an invasion of personal privacy under Section
15 of this Act except where the interest of public would be
better served by having such records being made available,
this exemption to disclose shall not apply; and
vi. Obstruct an ongoing criminal investigation. Section
14(1)
Subject to Subsection 2, a public institution must deny an
application for information that contains personal
information and information exempted under this
subsection includes;
(c) Files and personal information maintained with respect
to any Applicant, registrant or Licensure or discipline.
Section 15(1a, b, c)
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A public institution shall deny an application for
information that contains;
a. Trade secrets and commercial or financial information
obtained from a person or business where such trade
secrets or information are proprietary, privileged or
confidential or where disclosure of such trade secret or
information may cause harm to the interest of the third
party provided that nothing contained in this subsection
shall be construed as preventing a person or business from
consenting to disclosure.
b. Information the disclosure of which could reasonably be
expected to interfere with the contractual or other
obligation of a third party and
c. Proposal and bids for any contract, grant or agreement,
including information which if it were disclosed would
frustrate procurement or give an advantage to any person.
At pages 2, 3, 11, 12, 19 and 20 of the record of appeal the
respondent set out the specific information sought, and it is
these information that was ordered by the trial Court to be
disclosed, when the trial Court came to the conclusion that
the information sought by the respondent did not fall within
the various exemptions provided under the Act, see pages
95 and 104 to 105 of the record of appeal.
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On the first set of information sought and directed to be
released by the trial Court, it is important to refer to the
appellants, counter affidavit, particularly paragraphs 14 to
17 at pages 35 to 40 of the record of appeal for the
determination of whether the appellants' depositions
satisfactorily bring the information sought within the
ambits of the exemptions provided by the Act.
Paragraphs 14 - 17 states: -
"14. That I know of a fact that information being
requested from the 1st and 2nd Respondents is
currently the subject of administrative enforcement
proceedings by both public institutions and Law
Enforcement Agency particularly the Presidency, the
National Assembly, the Ministry of Finance, the
Economic and Financial Crimes Commission and
Central Bank.
15. That further to the above, I have checked our
records and was able to find one of the invitations
from the public institutions and the law Enforcement
Agency inviting the Respondents with respect to the
ongoing administrative enforcement proceedings
relating to the information being sought by the
Applicants. The House of Representatives letter of
19th
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November 2015 inviting the Respondent to appear
before it is hereby Exhibited and marked as Exhibit
CBN 1.
16. That I know for a fact that apart from the
invitation from the House of Representatives in
Exhibit CBN 1 above, that the Senate, Presidency,
Economic and Financial Crimes Commission and the
Centra l Bank o f Niger ia are conduct ing
administrative enforcement proceedings with respect
to the contract which is current on-going.
17. That I know for a fact that the information being
sought if released will interfere with the pending
administrative enforcement proceedings, review and
investigation being conducted by the public
institution and the law enforcement agencies."
It is clear from the depositions in the counter affidavit of
the appellants that the information sought to be made
available is the subject of an ongoing administrative
enforcement proceedings by the National Assembly, the
Federal Ministry of Finance and the EFCC, and the
appellants have clearly stated that the information if
released will interfere with all the pending administrative
enforcement proceedings, thus bringing the information
squarely within the exemptions
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provided in Section 12 (1) (a) of the Act, and that much is
clear from Exhibit CBN1, attached to the counter affidavit
of the appellants, particularly referred to at paragraph 15,
see page 41 of the record of appeal.
For the avoidance of doubt, Exhibit CBN1 is an invitation
by the House of Representatives to the appellants,
informing them of an ongoing investigation with respect to
issues related to the subject matter, i.e. Treasury Single
Account contract award to Systemspec Nigeria Limited.
It is argued for the respondents that Section 24 of the Act
places the burden on the appellants as a public institution
to prove that they are indeed authorized to deny the
information sought, that in the considered opinion of this
Court is exactly what the appellants did in their counter
affidavit quoted verbatim above, particularly at paragraphs
14, 16 and 17 at pages 38 to 39 of the record of appeal; and
it is very important not to lose sight of the fact that the
depositions in the counter affidavit are not controverted;
and that being so, the law is settled that where facts
provable by affidavit evidence are duly deposed to in an
affidavit by a party, his
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adversary has a duty to controvert those facts in an
affidavit of his own, be it counter or further affidavit, if he
disputes them, failing which such facts may be regarded as
duly established; see LONG-JOHN & ORS V. BLAKK
(1998) 6 NWLR part 555 page 524; It is noteworthy that
the foregoing affidavit evidence has not been denied,
challenged, or controverted by the respondent in this case,
and the settled position of the law is that affidavit evidence
that is not denied is deemed admitted, and being
unchallenged evidence, the Court is not only to accept
same, but must act on it. See also UZODINMA V.
IZUNASO (2011) 5 (PT. 1) MJSC 27, OKOEBOR V.
POLICE COUNCIL (2003) 12 NWLR (PT. 834) 444;
ATT. GEN, ONDO STATE V. ATT. GEN. EKITI STATE
(2007) 17 NWLR (PT. 706); EGBUNA V. EGBUNA
(1989) 2 NWLR (PT. 106) 773.
The argument of learned counsel for the respondent that
the appellants failed to prove or establish their entitlement
to the exemption is without basis, in view of the clear and
uncontroverted proof of pendency of administrative review
proceedings and investigation by public institutions with
respect to the information sought, as deposed in the
counter affidavit, and demonstrated by Exhibit CBN1.
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With regard to the second request, it is clear, even from
casual inspection that the information is in respect of the
company's fees or services to be rendered under the
contract, and the company, i.e. Systemspec Nigeria Limited
is clearly not a party to the suit. To buttress that fact the
appellants deposed to that in paragraphs 20, 21, 22, 23 and
24 of their counter affidavit, see page 39 of the record of
appeal. That being so, Section 15 (1) (a) of the Act clearly
exempts the information sought, not least because the
company in issue is not a party to the suit, as earlier
pointed out.
Learned counsel to the respondent's argument that the
exemption does not apply to the information sought by
reason of the fact that that Section 12 (1) (a) of the Act
applies only to records 'compiled by any public institution'
clearly cannot hold, because a Court of law lacks
jurisdiction to hear any matter or cause in favour of, or
against persons who are not parties before it; see
SHERIFF & ANOR V PDP & ORS (2017) LPELR-41805-
CA. Furthermore, the Court does not have powers also to
make orders either in favour
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of or against persons who are not parties to an action
before it, see BIYU V. IBRAHIM(2006) 8 NWLR (PT.
981) 1 and NNAEMEKA V. CHUKWUOGOR (2007) 5
NWLR (PT. 1026) 60.
It is one thing to request for information from an
institution, as provided by the Act, it is entirely another
thing when it comes to compelling that institution to
release information, where it refuses to release such
information as requested, because if the information is
indeed of such a nature that it affects a third party interest,
it is expedient to also include the third party in the suit so
instituted, at least as a nominal party, otherwise no Court
will lawfully make an order against a third party, whose
interest will be affected, when in fact he is not a party to
the suit at all.
Several reasons may necessitate the joinder of a party to a
suit, on application or even suo motu by the Court, in this
case the third party's joinder is desirable not only because
it may be aggrieved or likely to be aggrieved by the result
of the litigation to the extent that it will be directly, legally
or financially affected by the result of the litigation but also
most importantly to avoid loss
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of jurisdiction by the fact of non-joinder, See UKU vs.
OKUMAGBA (1974) 3 S.C. 35; GREEN VS GREEN
(1987) 3 NWLR (PT. 61) 4580; IGE VS FARINDE
(1994) 7 - 8 S.C.N.J (PT. 2) 284.
It is not in doubt that the information sought relates to the
process of the award of contract to a third party, i.e.
Systemspec Nigeria Limited, who is not a party to the suit,
by the Federal government of Nigeria, and so the order of
the trial Court is not enforceable, as it is contrary to the
letter and spirit of Sections 12, 14 and 15 of the Freedom of
Information Act, 2011.
The Freedom of Information Act, 2011 is undeniably a vital
component in a democratic society; its aim is to make
information relating to governance freely available to the
governed, without let or hindrance. It is that desire that
also informed the wisdom of the legislature in exempting
certain kinds of information, such as international affairs
and defence, law enforcement and investigation, personal
information, third party information, research materials,
professional and other privileges conferred by law. This
protection from disclosure it should be understood is in the
same public interest that
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makes it necessary for certain kind of information to be
made available to the public on request; without these
exemptions there can only be chaos.
The trial Court was therefore clearly in error to have held
that the information sought did not fall within the
exemptions, as copiously deposed in the uncontradicted
counter affidavit of the appellants.
It is for these reasons that I resolve this issue in favour of
the appellants, against the respondent.
Issue Two:
Whether the trial Court's finding was not against the
weight of evidence placed before it and therefore
perverse; ground 4.
It is submitted for the appellants on this issue that it is the
duty of a trial Court to properly evaluate affidavit evidence
placed before it for the just determination of the case,
especially where no witnesses are called as in this case;
and that Exhibit CBN1 is conclusive prove of existence of
pending administrative proceedings conducted by a public
institution, which the trial Court is bound to consider, and
it is the failure to do so that led to the wrong conclusion
arrived at; learned counsel referred this Court
to UNIVERSITY OF ILORIN V. OYALANA (2001)
15 NWLR part 737 page 684 and RE: AMOLEGBE
(2014) 8 NWLR part 1408 page 76.
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That the trial Court failed even to mention the document
attached to the appellants' affidavit in support of its
uncontroverted assertion that the information was subject
of investigation by an organ of the government, thus failing
to evaluate the evidence presented, learned counsel
referred this Court toWOLUCHEM V. GUDI (1981) 5 SC
291.
That this Court is bound to interfere because the finding of
the trial Court is perverse, not supported by evidence and
occasioned a miscarriage of justice, learned senior counsel
referred this Court toGUARDIAN NEWSPAPERS LTD V
AJEH (2011) 10 NWLR part 1256 page 574 and
CHUKWU V. AKPELU (2014) 13 NWLR part 1424
page 359.
It is submitted in response that the appellants failed to
discharge the burden of proof placed on them by Section 24
of the Act to entitle them to the exemption sought, and also
that the respondent's case is more probable than that of the
appellants.
RESOLUTION:
It is very important to bear in mind that the nature of
evidence required in matters like this, which involve the
supervisory jurisdiction of the
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High Court exercised in the review of the acts of
governmental bodies, otherwise referred to as judicial
review, is essentially affidavit evidence, see ABC LTD V.
NWAIGWE (2011) LPELR-208-SC.
It is settled that the evaluation of such evidence and indeed
any other evidence by a Court involves a reasoned belief of
the evidence of one of the contending parties and disbelief
of the other or a reasoned preference of one version to the
other. There must be something on record to show why the
Court preferred one piece of evidence to the other in
arriving at the conclusion it did, see OYEKOLA V.
AJIBADE (2004) 17 NWLR (PT. 902) 356. It is therefore
the duty of the trial Court in this case to properly evaluate
the affidavit evidence placed before it, for the just
determination of the dispute before it, especially as there
are no witnesses called by either of the parties.
The counter affidavit of the appellants is quoted verbatim
in earlier parts of this judgment; and paragraph 15 thereof,
at page 41 of the record of appeal, stated clearly that by
exhibit CBN1 the appellants have a pending administrative
proceeding being conducted by the National Assembly,
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which the trial Court did not take into account in arriving
at the decision it did. This failing is more glaring in view of
the fact that the said counter affidavit is not controverted
in any way, given that the legal position of uncontroverted
evidence is settled, see OGUNYADE V. OSHUNKEYE
(2007) 15 NWLR (Pt. 1057) 218.
Where evidence given by a party to any proceedings was
not challenged by the opposite party who had the
opportunity to do so, it is always open to the trial Court to
act on the unchallenged evidence before it, unfortunately
the trial Court could not apply this trite position of the law
because it did not take it into account the counter affidavit
of the appellants in the first instance, if it did it would have
found the unchallenged and uncontradicted evidence of the
appellants as accepted in establishing the facts therein, see
ODULAJA V. HADDAD (1973) 11 SC 357; NIGERIAN
MARITIME SERVICES LTD. V. ALHAJI BELLO
AFOLABI (1978) 2 SC 79, see also NZERIBE V. DAVE
ENG. CO. LTD. (1994) 8 NWLR 124; EBEINWE V. THE
STATE (2011) 7 NWLR 402 and OKIKE V. L.P.D.C.
(2005) 15 NWLR (Pt. 949) 471.
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The finding of the trial Court at page 104 of the record of
appeal, that "...I do not see any third party trade secret
information being requested. All the appellant is
asking for are the bids tender documents, contract
evaluation and award..." is far from what the state of
pleadings in the case disclosed.
Ordinarily this Court does not interfere with the findings of
a trial Court, unless it is satisfied that such findings are
perverse or that the trial Court did not adequately utilize
the opportunity or advantage of documentary evidence
b e f o r e i t , a n d t h e r e f o r e o c c a s i o n e d a
miscarriage, unfortunately that clearly is the case in this
case, because the trial Court’s failure to take into account
the uncontradicted depositions of the appellants in the
counter affidavit did indeed occasioned a miscarriage of
justice. See DANIEL GARAN VS. STAFF OLOMU (2013)
10 SCM 88 AT 102 1 TO 103 and also LEKAN
SHODIYA VS. THE STATE (2013) 12 SCM 175 AT 187.
The trial Court’s failure to properly evaluate the content of
the appellants’ counter affidavit, particularly paragraphs
14, 16 and 17 thereof, to the extent that the said
information requested by the respondent was such that
could not be
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disclosed, being subject especially of investigation by the
National Assembly, as per Exhibit CBN1 amounted to a
fundamental breach of the appellants' right to be fairly
heard, thus occasioning a miscarriage of justice. If the trial
Court had averted its mind to those paragraphs of the
affidavit, it would surely have arrived at a different
conclusion.
Learned counsel to the respondent's argument in response
that the appellants failed to discharge the burden of proof
laid down by Section 24 of the Act is neither here nor there
in the circumstances of this case.
It is for these reasons that I now resolve this issue too in
favour of the appellants, against the respondent.
Having resolved the two issues for determination in favour
of the appellants, against the respondent, I find the appeal
meritorious. It succeeds per force.
The ruling of the Federal High Court Number 4, Abuja, of
the 1st of July, 2016 in suit No: FHC/ABJ/1045/2015 is
hereby set aside.
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ABDU ABOKI, J.C.A.: I have had the opportunity of
reading before now the lead judgment just delivered by my
learned brother MOHAMMED MUSTAPHA, JCA.
I agree with the reasoning and conclusion contained
therein, that the appeal is meritorious. It is accordingly
allowed by me.
I also abide by the consequential order(s) as contained in
the lead judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of
the judgment just delivered by my Learned brother,
MUSTAPHA MOHAMMED JCA. I agree with the reasoning,
conclusions and orders therein.
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Appearances:
O. Akinboro SAN; with him, Tunde Arowolo, Esq.and Christopher Iloka, Esq. For Appellant(s)
G.M. Chigbuq with him, M.E. Ogenyi Esq. ForRespondent(s)
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