By: Hameed Ajibola Jimoh Esq.
The Freedom of Information Act, 2011-herein referred to as FOIA- by its Long Title, is ‘An Act to make public records and information more freely available, provides for public access to public records and information, protect public records and information to the extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences disclosing certain kinds of official information without authorization and establish procedures for the achievement of those purposes and; for related matters’. Section 20 of the FOIA provides that ‘Any applicant who has been denied access to information, or a apart thereof, may apply to the Court for a review of the matter within 30 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 30 days fix or allow’ while Order 34 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2019- herein after referred to as the FHCR, provides thus ‘An application for judicial review shall be brought within 3 months of the date of occurrence of the subject of the application’. The provision of the Order 34 Rule 4 of the FHCR therefore a form of a limitation law in regard to judicial review. This paper is aimed at submitting to the effect that the provision of Section 20 of the FOIA constitutes an exception to the provision of the said Order 34 Rule 4 of the FHCR, hence, this topic.
First and foremost, it is my humble submission that the right of citizens to freedom of information under the FOIA is indeed a constitutional and fundamental right with constitutional limitation and internationally guaranteed under the International Human Rights Laws. For instance, section 39 of the Federal Republic of Nigeria Constitution, 1999-herein after referred to as the Constitution- in Chapter IV. This section provides thus: (1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impact ideas and information without interference. (3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society- (a) for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph; or (b) imposing restrictions upon persons holding office under the Government of the Federation or of the State, members of the armed forces of the Federation or members of the Nigeria Police Force or the Government security services or agencies established by law’. (Underlining is mine for emphasis). Also see: section 45(1) of the Constitution. Also see Article 9(1) of the African Charter on Human and People’s Rights.
Furthermore, in respect of a limitation law, on determining when an action has become statute barred, it is the trite law that where a court of law is called upon to consider when a matter is statute barred, the court is obliged to consider the date the cause of action complained about or the wrongs alleged and or complained about occurred and the date the Applicant/Appellant filed his suit in the lower court. I humbly refer to the case of Adekoya v FHA (2008)11 NWLR (Pt. 1099) 539,at page 557, para. E-F, where the Supreme Court of Nigeria held thus ‘In determining whether an action is statute-bared or not, the most crucial consideration is when the cause of action arose. A cause of action arise the moment a wrong is done to the Plaintiff by the defendant. And the wrong which is the basis of a dispute represents factual situation which entitles the Plaintiff to seek a remedy in a court of law by way of enforcement’. Furthermore, on this subject matter of when an action is statute-barred, the Supreme Court of Nigeria had to determine what amounts to a ‘cause of action’ in the case of Amede v U.B.A. (2008)8 NWLR (pt. 1090) 623, at page 656, paras. B-F where the Apex Court held thus ‘In Egbe v Adefarasin (1987) 1 NWLR (pt. 47) 1 at 20, Oputa JSC defined ‘cause of action ‘as the facts which establishes or give rise to a right of action. It is the factual situation which gives a person a right to a judicial relief’. See also Yusufu v Cooperative Bank Ltd. (1994)7 NWLR (pt. 359) 676; Alao v N.I.D.B. (1999) 9 NWLR (pt. 617) 103 and Humbe v A.G. Benue State (2000) 3 NWLR (pt.649) 419 and L.U..T.H.. & M.B. v Adewole (1998) 5 NWLR (pt. 550) 406’. The cumulative effect of these cases shows that the test of determining when a cause of action begins to run is when it can be said or there exist in the person who can sue on all the facts that have happened which are natural to prove that the plaintiff is entitled to judgment. That notwithstanding, a cause of action has to be looked at from the peculiar circumstances of any given case. Thus, when a cause of action is said to have arisen varies from one case to another and it is always the function of the facts of the case which gives rise to a right of action thus entitling the person to a judicial relief. Thus, time in relation to cause of action begins to run when there is in existence a person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed’.
Furthermore, it is my considered opinion that the Order 34 Rule 4 of the FHCR is general in nature while the section 20 of the FOIA and the entire provisions of the FOIA are specific in nature and specific is not covered by a general power. This in latin maxim is known as ‘SPECIALIA GENERALIBUS DEROGANT’. Our Nigerian courts have also held in this regard thus “Where there are 2 enactments, one making specific provisions and the other, general provisions, the specific provisions are impliedly excluded from the general provisions”: AGF vs ABUBAKAR (2007) All FWLR pt. 375 pg. 405 @ 472E, per Onu, JSC. Also held thus “Where there are 2 provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision”: SCHROEDER vs. MAJOR & CO. (1989) 1 NSCC 399 @ 406 per Agbaje & Wali, JJSC. In the case of Lamido v Turaki (1999) 4 NWLR (pt.699) 578 C.A., the Court Appeal held that ‘if the words used in a legislation are plain and unambiguous, they should be given their ordinary meaning’. The applicant also humbly refer My Lord to the case of: Chigbu v Tonimas (Nig.) Ltd. (1999) 3 NWLR (pt. 593) 115 C.A., Reg. Trustee of Ecwa Church v Ijesha (1999) 13 NWLR (pt. 635) 368 C.A., Omohiale v Umoru (1999) 8 NWLR (pt. 614) 178 S.C.
Furthermore, in the case of BROADBANK OF NIGERIA V OLAYIWOLA & SONS (2005) 1 SCM 65, where the apex court held as follows ‘The courts established by the constitution are vested with power to do justice. In their avowed onerous responsibility or duty to do justice, they are guided not just by the tenets and spirits of the law, but also by the rules of court which are aids in the administration of justice. The rules of court are statutory instrument, not elevated to the pedestal of statutes’. (Underlining is mine for emphasis). Also, in the case of AFRIBANK NIG PLC V MR. CHIMA AKWARA (2006) 1 SCNJ 223, the Supreme Court of Nigeria held thus ‘Neither practice directions nor indeed rules of court can override statutory provisions’. Similarly, the Supreme Court of Nigeria held in the case of ‘MR. POPOOLA ELABANJO & ANOR V CHIEF (MRS) GANIAT DAWODU (2006) 6 SCNJ 204, that ‘Rules of court cannot override statutory provisions of law’. I therefore humbly submit that the provision of Section 20 of the FOIA constitutes an exception to the provision of the said Order 34 Rule 4 of the FHCR
Therefore, I humbly submit and recommend an Applicant under section 20 of the FOIA may either before or after the expiration of the 30 days provided under the section 20 of the FOIA, seek leave of court to extend time to seek leave to apply for judicial review and leave to apply for judicial review, else, his suit shall then become statute barred for failure to seek leave to extend time before the processes before the court have been adopted. Also, in another alternative, where objections are raised on the suit made by the Applicant in an FOIA suit (after the suit must have been filed in court), the Applicant should apply to withdraw the suit (regardless of whether the court would award cost or not against him) and then seek leave of court pursuant to section 20 of the FOIA to extend time to apply for leave to apply for judicial review and in this case, the Applicant would be seeking: leave to apply to extend time within which to seek leave to apply for judicial review, leave of court to extend time to seek leave to apply for judicial review and leave to apply for judicial review (i.e. the TRINITY PRAYERS), else, his suit shall then become statute barred for failure to seek leave to extend time before the processes before the court have been adopted. What I am submitting here is that where the Applicant has to apply for judicial review after the 30 days under the Section 20 of the FOIA has elapsed, then, the Applicant would be seeking: leave to apply to extend time within which to seek leave to apply for judicial review, leave of court to extend time to seek leave to apply for judicial review and leave to apply for judicial review (i.e. the TRINITY PRAYERS).
Finally, I humbly submit that the provision of Order 34 Rule 4 of the FHCR cannot override the statutory provisions of section 20 of the FOIA and this is where the Applicant applying for judicial review has been seen to be diligent in prosecuting his case by seeking leave to extend time under section 20 of the FOIA either before or after the expiration of the 30 days provided under the section 20 of the FOIA, else, his suit shall then become statute barred for failure to seek leave to extend time before the processes before the court have been adopted. However, where the Applicant has to apply for judicial review after the 30 days under the Section 20 of the FOIA has elapsed, then, the Applicant would be seeking: leave to apply to extend time within which to seek leave to apply for judicial review, leave of court to extend time to seek leave to apply for judicial review and leave to apply for judicial review (i.e. the TRINITY PRAYERS).