SERAP wants court to stop Akpabio, others from collecting salaries, pensions as senators  (2)

 

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

 

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

 

SUIT NO: FHC/ABJ/CS/1360/2023

BETWEEN

 

THE INCORPORATED TRUSTEES OF THE SOCIO-ECONOMIC             

RIGHTS AND ACCOUNTABILITY PROJECT [SERAP]                     APPLICANT

 

AND

 

1. SENATE PRESIDENT CHIEF GODSWILL OBOT-AKPABIO
2. SENATOR ABDULAZIZ YARI
3. SENATOR DAVE UMAHI
4. SENATOR AMINU TAMBUWAL
5. SENATOR ADAMU ALIERO
6. SENATOR ADAMS OSHIOMOLE RESPONDENTS
7. SENATOR GBENGA DANIEL
8. SENATOR IBRAHIM GAIDAM
9. SENATOR SERIAKE DICKSON
10. SENATOR IBRAHIM DANKWAMBO
11. SENATOR ALIYU WAMMAKO

 

 

MOTION EX-PARTE

BROUGHT PURSUANT TO ORDER 34 RULES 1(1)(A)&(B); 2; 3 (1) (2)(A)(B)(C) OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2019; SECTION 1, 2, 3(4), 4, 7(1)&(5), 9, 14(2)(B)&(3), 19(2) & 20 OF THE FREEDOM OF INFORMATION ACT 2011 AND UNDER THE INHERENT JURISDICTION OF THE HONOURABLE COURT

 

TAKE NOTICE that this Honourable Court will be moved on the _____day of_________ 2023 or so soon thereafter as Counsel may be heard on behalf of the Applicant praying this Honourable Court for the following orders:

1. AN ORDER for extension of time within which the Applicant may file its motion exparte seeking leave to apply for judicial review against the 1^st to 11^th Respondents as detailed in reliefs 2 to 5 below.

 

2. AN ORDER granting leave to the Applicant to apply for judicial review and seek an order of mandamus directing and compelling each of the 1^st to 11^th Respondents to promptly clarify and provide information if they have collected and/or currently collecting life pensions as former governors in their respective states.

 

3. AN ORDER granting leave to the Applicant to apply for judicial review and seek an order of mandamus directing and compelling each of the 1^st to 11^th Respondents to disclose details and amounts of the pension received by each of the 1^st to 11^th

 

4. AN ORDER granting leave to the Applicant to apply for judicial review and seek an order of mandamus directing and compelling each of the 1^st to 11^th Respondents to stop collecting any such pensions and return the pensions collected to their respective state treasuries.

 

5. AND for such further order[s] the Honorable Court may deem fit to make in the circumstance.

 

Dated this _______ day of ______________ 2023

 

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

 

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

 

SUIT NO: FHC/ABJ/CS/1360/2023

BETWEEN

 

THE INCORPORATED TRUSTEES OF THE SOCIO-ECONOMIC             

RIGHTS AND ACCOUNTABILITY PROJECT [SERAP]                     APPLICANT

 

AND

 

1. SENATE PRESIDENT CHIEF GODSWILL OBOT-AKPABIO
2. SENATOR ABDULAZIZ YARI
3. SENATOR DAVE UMAHI
4. SENATOR AMINU TAMBUWAL
5. SENATOR ADAMU ALIERO
6. SENATOR ADAMS OSHIOMOLE RESPONDENTS
7. SENATOR GBENGA DANIEL
8. SENATOR IBRAHIM GAIDAM
9. SENATOR SERIAKE DICKSON
10. SENATOR IBRAHIM DANKWAMBO
11. SENATOR ALIYU WAMMAKO

 

APPLICANT’S AFFIDAVIT IN SUPPORT OF MOTION EX-PARTE

 

I, JOEL EKONG, Male, Adult, Christian, Nigerian Citizen and Litigation Assistant of 18, Bamako Street, Wuse, Abuja do hereby make oath and state as follows:

 

 

1. That I am the Litigation Assistant to the Applicant in this matter and by virtue of my position, I am very conversant with the facts deposed herein.

 

2. That I have the consent and authority of the Applicant to depose to the facts stated in this Affidavit and the facts deposed herein are within my personal knowledge.

 

3. That the Applicant is a non-profit, nonpartisan, legal and advocacy organization with the mandate of promoting human rights, transparency, accountability and respect for socio-economic rights in Nigeria. The Applicant received the Wole Soyinka Anti-Corruption Defender Award in 2014, and was nominated for the UN Civil Society Award and Ford Foundation’s Jubilee Transparency Award. The Applicant is a member of the UNCAC Coalition, a global anti-corruption network of over 350 civil society organizations (CSOs) in over 100 countries, which is committed to promoting the ratification, implementation and monitoring of the UN Convention against Corruption. The Applicant previously served as one of two Sub-Saharan African civil society representatives on the governing Committee of the Coalition. A certified true copy of the Certificate of Incorporation and Constitution of the Applicant is attached and annexed as Exhibits B1 and B2

 

4. That the Applicant’s basic objective is for the promotion of transparency and accountability in Nigeria through progressive mobilization and advocacy for human rights.

 

5. That the 1st Respondent is the Senate President in the National Assembly of the Federal Republic of Nigeria.

 

6. The 2^nd to 11^th Respondents are former Governors of their respective states and they are currently serving Senators in the National Assembly in the Federal Republic of Nigeria.

 

7. That there are fourteen former governors in the 10th Senate in the National Assembly they are: Godswill Akpabio (Akwa-Ibom State); Adams Oshiomhole (Edo State); Adamu Aliero (Kebbi State); Dave Umahi (Ebonyi State); Aminu Tambuwal (Sokoto State); and Abubakar Sani Bello (Niger State); Ibrahim Danwkambo (Gombe State); Danjuma Goje (Gombe State); Abdulaziz Yari (Zamfara State); Gbenga Daniel (Ogun State); Aliyu Wammako (Sokoto State); Orji Kalu (Abia State); Ibrahim Gaidam (Yobe State); and Seriake Dickson (Bayelsa State).

 

8. That according to information available in the public domain, the states currently implementing life pensions for former governors reportedly include Akwa-Ibom, Abia, Edo, Jigawa, Niger, Kebbi, Kano, Sokoto, Jigawa, Cross River, Ebonyi, Enugu, Benue, Gombe, Yobe, Taraba, Kaduna, Plateau, Katsina, Rivers, and Delta.

 

9. That under Akwa Ibom Life Pension law [as amended] a former governor is entitled to an annual pay of N200 million, two official vehicles with chauffeurs, furniture allowance of 300 per cent of basic salary replaceable every four years, an aide, a cook, and lifetime security guards worth N5 million monthly for ex-governors and N2.5 million for their deputies.” There is also state-sponsored annual medical service of about N100 million for ex-governors and their spouses and N50 million for the ex-deputy governors, five-bedroom mansions in Abuja and Akwa Ibom. Other benefits include: 300% annual basic salary as ‘severance gratuity’, 300% of annual basic salary for ‘car maintenance’; 100% of annual basic salary for ‘entertainment’; and 100% of annual basic salary for ‘utility.

 

10. That in Abia State, a former governor is entitled to 100 per cent of the salary of the incumbent. Benefits for former governors include an official car, a police orderly, two operatives of two policemen for the security of his house and allowances for cooks, stewards, driver and gardener.

 

 

11. That in Gombe State, there is N300 million executive pension benefits for the ex-governors. An ex-governor is also entitled to a 30-day paid travel expenses annually to any country of his choice alongside his wife, so also the deputy governor and his wife. A former governor is also entitled to two utility cars, while his deputy is entitled to one car to be replaced periodically. Both the governor, deputy governor and their wives are entitled to paid medical treatment at home or abroad.

 

12. That in Sokoto State, former governors and deputy governors are to receive N200m and N180m respectively being monetization for other entitlements which include domestic aides, residential and office accommodation and vehicles replaceable every four years. According to the 2013 life pension law, the pension should be charged upon the consolidated revenue fund of the state. Former governors and their deputies are also entitled to other privileges, such as free medical treatment for themselves, their spouses and biological children both within and outside the country. They are also entitled to the payment of all their utilities, such as electricity and water bills.

 

13. That under the life pension law in Jigawa State, former governors are entitled to the same salary as the incumbent, two vehicles replaceable every four years, a six-bedroom apartment, furnished office, two personal assistants not below grade level 10, and two drivers.

 

14. That in Edo State, former governors and their deputies are entitled to a house in any location of their choice, pension for life at 100 per cent of their last salary, three brand new cars after five years, drivers, domestic members of staff, medical bills for them and their immediate families, amongst many other benefits.

 

15. That as part of the effort made by the Applicant to obtain details of the pension laws in Nigeria, the Applicant sent a freedom of information to governors of 36 States in December 2019 requesting for details of pension laws in their states but they refused to disclose same wherein it is a subject of litigation in suit number FHC/ABJ/CS/19/2020 at the Federal High Court Abuja.

 

16. That the 1^st to 11^th Respondents are public officers within the meaning of the Nigerian Constitution 1999 (as amended).

 

17. That in the pursuit of its mandate, which is geared towards transparency and accountability in governance and public service, and in accordance with the Freedom of Information Act, 2011, the Applicant wrote a letter dated 17th June, 2023 to each of the 1st to 11^th Respondents requesting them to do the following:

 

1. promptly clarify if they have collected and/or currently collecting life pensions as former governors from your respective states, to stop collecting any such pensions and return the pensions collected to the treasury.

 

1. Provide and disclose details and amounts of the pensions received.

 

 

18. That the Applicant requested the Respondents to provide the information within 7 days of the receipt and/or publication of the said letter. Copies of the Applicant’s letter dated 17^th June, 2023 were delivered to the 1^st Respondent on 22^nd June, 2023, the 2^nd to 10^th Respondents on 7^th August, 2023, and the 11^th Respondent on 10^th August, 2023. Copies of the Applicant’s letters dated 17^th June, 2023 sent to each of the 1st to 11th Respondents by the Applicant showing acknowledgement of the Applicant’s letter by the 1^st to 11^th Respondents are attached and marked as Exhibit B3 to B13

 

19. That since the receipt of the letters by the Respondents and up till the filing of this suit, the 1st to 11^th Respondents have so far failed, refused and/or neglected to comply with the Applicant’s request.

 

20. That this application is seeking leave of the Honourable to enable the Applicant apply to seek an order of court to compel the 1^st to 11^th Respondents to promptly act as requested and expected under the law.

 

21. That the Applicant in pursuit of its objectives have filed many public interest lawsuits on freedom of information requests to promoting transparency and accountability wherein the Court has ruled in favour of the Applicant.

 

22. That in 2019, the Applicant filed Suit Number FHC/ABJ/CS/1447/2019 [SERAP v. Minister of Finance & Anor] at the Federal High Court Abuja to compel the Minister of Finance and Minister of Police Affairs to make available to the Applicant information on the total amount of money paid to contractors, with specific details of names of companies local contractors involved, from the $460 million loan obtained in 2010 from China by the Federal Government of Nigeria to fund the failed Abuja CCTV contract wherein the Court ruled in favour of the Applicant. A certified true copy of the judgment of court delivered by Honourable Justice Emeka Nwite of the Federal High Court Abuja on 15 May, 2023 in Suit Number FHC/ABJ/CS/1447/2019 is attached as Exhibit B26.

 

23. That in 2020, the Applicant filed Suit Number FHC/ABJ/CS/407/2020 [SERAP v. Minister of Finance & Anor] at the Federal High Court Abuja to compel the Minister of Finance and the Attorney General of the Federation to disclose details of exact amount of money stolen by General Sani Abacha from Nigeria, and the total amount of Abacha loot recovered and all agreements signed on same since 1999 details of the projects executed with the recovered funds, locations of any such projects and the names of companies and contractors that carried or carrying out the projects. The Court ruled in favour of the Applicant. A certified true copy of the judgment of court delivered by Honourable Justice J. K. Omotosho of the Federal High Court Abuja on 3rd July, 2023 in Suit Number FHC/ABJ/CS/407/2020 is attached as Exhibit B27.

 

24. That in 2019, the Applicant filed Suit Number FHC/L/CS/803/2019 [SERAP v. UBEC & 2 Ors] at the Federal High Court Lagos to compel the Universal Basic Education Commission and the Government of Delta State to make available to the Applicant details of disbursement and administration of Universal Basic Education Commission (UBEC) funds disbursed through the Delta State Universal Basic Education Board to the Delta State Government and details of actual spending of the Delta State Government on primary school education monitored by the Delta State Universal Basic Education Board between 2015 and 2019, including specific projects carried out to improve access to free and quality primary education in Delta State, the locations of such projects and the primary schools that have benefited from the projects. The Court ruled in favour of the Applicant. A certified true copy of the judgment of court delivered by Honourable Justice Daniel Osiagor of the Federal High Court, Lagos on 17 July, 2023 in Suit Number FHC/L/CS/803/2019 is attached as Exhibit B28.

 

25. That the Applicant, through its public interest litigation and advocacy for transparency, has contributed to the development of legal jurisprudence, democracy and good governance in Nigeria.

 

26. That I believe that the interest of the public in granting the orders and access to the information sought is far greater than any other interest the Respondents may be trying to preserve in this matter.

 

27. That the interest of the Applicant is to promote the ongoing efforts to combat mismanagement of public funds, and to offer the government an important opportunity of being open and transparent with the citizenry.

 

28. That this suit is of major public interest as it bothers on issue of national interest, public welfare, public interest of human rights, social justice, good governance, transparency and accountability.

 

29. That the Freedom of Information Act [FOI] Act prescribes a period of 30 days within which the Applicant should bring an action to enforce its right to access to information.

 

30. That the Applicant could not file this action within the 30-day period prescribed by the FOI Act due to several unsuccessful attempts made by the Applicant to serve the Respondents with the Applicant’s letter in the offices allocated to each of the Respondents within the premises of the National Assembly.

 

31. That the Applicant also tried other advocacy strategies to persuade the Respondents to provide the information sought by the Applicant.

 

32. That I believe that it is in the interest of justice for the Applicant’s reliefs to be granted.

 

33. That I make this declaration in good faith, believing its content to be true to the best of my knowledge and in accordance with the Oaths Act.

 

_________________

DEPONENT

Sworn to at the Federal High Court Registry, Abuja

 

This _______ day _____________________ 2023

 

 

BEFORE ME

 

 

COMMISSIONER FOR OATHS

 

 

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

 

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

 

SUIT NO: FHC/ABJ/CS/1360/2023

BETWEEN

 

THE INCORPORATED TRUSTEES OF THE SOCIO-ECONOMIC             

RIGHTS AND ACCOUNTABILITY PROJECT [SERAP]                     APPLICANT

 

AND

 

1. SENATE PRESIDENT CHIEF GODSWILL OBOT-AKPABIO
2. SENATOR ABDULAZIZ YARI
3. SENATOR DAVE UMAHI
4. SENATOR AMINU TAMBUWAL
5. SENATOR ADAMU ALIERO
6. SENATOR ADAMS OSHIOMOLE RESPONDENTS
7. SENATOR GBENGA DANIEL
8. SENATOR IBRAHIM GAIDAM
9. SENATOR SERIAKE DICKSON
10. SENATOR IBRAHIM DANKWAMBO
11. SENATOR ALIYU WAMMAKO

 

 

STATEMENT PURSUANT TO ORDER 34 RULE 3(2)(A) OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2019

 

1. NAMES AND DESCRIPTION OF THE APPLICANT

The Applicant is the Socio-Economic Rights and Accountability Project (SERAP), a non-governmental organization, non-profit, nonpartisan, legal and advocacy organization devoted to promoting human rights, transparency, accountability and respect for socio-economic rights in Nigeria. The Applicant received the Wole Soyinka Anti-Corruption Defender Award in 2014, and was nominated for the UN Civil Society Award and Ford Foundation’s Jubilee Transparency Award. The Applicant is a member of the UNCAC Coalition, a global anti-corruption network of over 350 civil society organizations (CSOs) in over 100 countries, which is committed to promoting the ratification, implementation and monitoring of the UN Convention against Corruption. The Applicant previously served as one of two Sub-Saharan African civil society representatives on the governing Committee of the Coalition.

 

 

2. RELIEFS SOUGHT BY THE APPLICANT

 

1. AN ORDER for extension of time within which the Applicant may file its motion exparte seeking leave to apply for judicial review against the 1^st to 11^th Respondents as detailed in reliefs 2 to 5 below.

 

1. AN ORDER granting leave to the Applicant to apply for judicial review and seek an order of mandamus directing and compelling each of the 1^st to 11^th Respondents to promptly clarify if they have collected and/or currently collecting life pensions as former governors in their respective states.

 

1. AN ORDER granting leave to the Applicant to apply for judicial review and seek an order of mandamus directing and compelling each of the 1^st to 11^th Respondents to disclose details of the pension received.

 

1. AN ORDER granting leave to the Applicant to apply for judicial review and seek an order of mandamus directing and compelling each of the 1^st to 11^th Respondents to stop collecting any such pensions and return the pensions collected to their respective state treasuries.

 

 

1. AND for such further order[s] the Honorable Court may deem fit to make in the circumstance

 

3. GROUNDS FOR SEEKING RELIEFS
4. By the combined provisions of Sections 1; 2; 3(4); 4; 7(1)&(5); 9; 14(2)(b)&3; 19(2); 20 of the Freedom of Information Act, 2011 (among other provisions), Article 9 of the African Charter on Human and Peoples’ Rights and Article 19 of the International Covenant on Civil and Political Rights to which Nigeria is a state party; the right of access to information is guaranteed and there is a statutory obligation on each of the Respondents, being a public officer in his official capacity as a public institution, to proactively keep, organize and maintain all information or records about its operations, personnel, activities and other relevant or related information or records in a manner that facilitates public access to such information or record.

 

1. Public interest in the disclosure of the information sought by the Applicant outweighs any private interest each of the Respondents may be protecting.

 

• That in the pursuit of its mandate, and in accordance with the expectations of each of the Respondents as enshrined in the 1999 Constitution (as amended), the FoI Act, Public Procurement Act and the country’s obligations including under the African Charter on Human and Peoples’ Rights [Ratification and Enforcement] Act, and the International Covenant on Civil and Political Rights, the Applicant wrote a letter dated 17th June, 2023 to the 1^st to 11^th Respondents, wherein the Applicant made some requests.

 

 

1. Since the receipt of the letter and the publication of same, each of the 1^st to 11^th Respondents has so far failed, refused and/or neglected to grant the Applicant’s request, thus denying the Applicant access to the information requested.

 

1. By the provision of Section 20 of the Freedom of Information Act, 2011, the Applicant is entitled to apply to this Honourable Court for a review of the actions of each of the Respondents and for an extension of time within which the Applicant can do so.

 

2004. Unless the reliefs sought by the Applicant are granted, the Respondents will not provide the Applicant with the information requested and will continue to be in continued breach of the Freedom of Information Act, 2011 and the African Charter on Human and Peoples’ Rights [Ratification and Enforcement] Act 2004.

 

Dated this _______ day of ______________ 2023

 

___________________

Olúwádàre A. Kóláwolé

Adelanke Aremo Mrs.

Valentina Adegoke.

Applicant’s Counsel

C/o Eko Akete Chambers

18 Bamako Street

Wuse

Abuja

Tel: 08160537202

Email: info@serap-nigeria.org

 

 

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

 

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

 

SUIT NO: FHC/ABJ/CS/1360/2023

BETWEEN

 

THE INCORPORATED TRUSTEES OF THE SOCIO-ECONOMIC             

RIGHTS AND ACCOUNTABILITY PROJECT [SERAP]                    APPLICANT

 

AND

 

1. SENATE PRESIDENT CHIEF GODSWILL OBOT-AKPABIO
2. SENATOR ABDULAZIZ YARI
3. SENATOR DAVE UMAHI
4. SENATOR AMINU TAMBUWAL
5. SENATOR ADAMU ALIERO
6. SENATOR ADAMS OSHIOMOLE RESPONDENTS
7. SENATOR GBENGA DANIEL
8. SENATOR IBRAHIM GAIDAM
9. SENATOR SERIAKE DICKSON
10. SENATOR IBRAHIM DANKWAMBO
11. SENATOR ALIYU WAMMAKO

 

VERIFYING AFFIDAVIT OF THE APPLICANT

 

I, JOEL EKONG, Male, Adult, Christian, Nigerian Citizen and Litigation Assistant of 18, Bamako Street, Wuse, Abuja do hereby make oath and state as follows:

 

 

1. That I am the Litigation Assistant to the Applicant in this matter and by virtue of my position, I am very conversant with the facts deposed herein.

 

2. That I have the consent and authority of the Applicant to depose to the facts stated in this Affidavit and the facts deposed herein are within my personal knowledge.

 

3. That by virtue of my position herein stated, I am conversant with the facts of this case and with the facts deposed herein.

 

4. That all the facts contained in the Statement in Support attached to this application are true to the best of my knowledge.

 

5. That I make this Affidavit in good faith conscientiously believing its contents to be true and in accordance with the Oaths Act.

__________________

Deponent

Sworn to at the Federal High Court Registry, Abuja

 

This ______ day of ____________________ 2023

 

 

BEFORE ME

 

 

COMMISSIONER FOR OATHS

 

 

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

 

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

 

SUIT NO: FHC/ABJ/CS/1360/2023

BETWEEN

 

THE INCORPORATED TRUSTEES OF THE SOCIO-ECONOMIC             

RIGHTS AND ACCOUNTABILITY PROJECT [SERAP]                     APPLICANT

 

AND

 

1. SENATE PRESIDENT CHIEF GODSWILL OBOT-AKPABIO
2. SENATOR ABDULAZIZ YARI
3. SENATOR DAVE UMAHI
4. SENATOR AMINU TAMBUWAL
5. SENATOR ADAMU ALIERO
6. SENATOR ADAMS OSHIOMOLE RESPONDENTS
7. SENATOR GBENGA DANIEL
8. SENATOR IBRAHIM GAIDAM
9. SENATOR SERIAKE DICKSON
10. SENATOR IBRAHIM DANKWAMBO
11. SENATOR ALIYU WAMMAKO

 

 

APPLICANT’S WRITTEN ADDRESS IN SUPPORT OF MOTION EXPARTE

 

1.0       INTRODUCTION

1.1       The Applicant, Socio-Economic Rights and Accountability Project (SERAP), is a human rights non-governmental organization, whose mandates include promoting respect for socio-economic rights of Nigerians, transparency and accountability in the public and private sectors through adequate mobilization and advocacy for human rights.

1.2       That the 1st Respondent is the Senate president of the Federal Republic of Nigeria. The 2nd to 11th Respondents are former Governors and current serving Senators in the Federal Republic of Nigeria.

 

1.3       This Motion Ex-parte is requesting for extension of time within which to institute proceedings and seeking leave of the Honourable Court to enable the Applicant seek judicial review and order of Mandamus compelling and directing each of the 1st to 11th Respondent to do all that is contained in the relief sought by the Applicant in this ex-parte application.

 

1.4       That in the pursuit of its mandate, which is geared towards transparency and accountability in governance and public service, the Applicant wrote a letter dated 17th June, 2023 to the 1st to 11th Respondent, requesting for information on whether they were still pension beneficiaries of their previous positions and to stop collecting the said pension and also return the ones previously collected.

 

1.5       However, since the receipt of the Applicant’s letter and up till the filing of this suit, the Respondents have so far failed, refused and/or neglected to respond or act on the Applicant’s requests.

 

1.6       This is a Written Address in support of the application for leave to seek judicial review and mandamus. The background facts are well set out in the Affidavit in support deposed to by JOEL EKONG together with the exhibits attached thereto. The application is also supported by a Statement setting out the name and description of the Applicant, the reliefs sought and the grounds on which they are sought; and a Verifying Affidavit verifying the facts stated in the Statement of the Applicant.

 

 

2.0       ISSUE FOR DETERMINATION

2.1       My Lord, the Applicant has formulated a sole issue for determination by this          Court, to wit:

 

“Whether this Honourable Court ought to extend the time to institute this suit and to grant the leave to enable the Applicant seek judicial review and an order of mandamus, having regard to the law and factual circumstances of this case”.

 

3.0       LEGAL ARGUMENT

3.1       My Lord, the Applicant has brought this application, by way of Motion ex-parte seeking for an extension of time within which to institute this suit. The Applicant’s approach and the prayer for extension of time is brought pursuant to Section 20 of the Freedom of Information Act (FOI) 2011 which provides:

 

“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” (emphasis mine)

 

3.2       The provisions and wordings of Section 20 of the FOI Act are clear on the face of it and we urge Your Lordship to apply the literal meaning of the law in favour of the Applicant in order to give effect to the legislative purpose of Section 20 of the FOI Act. We respectfully submit that the intention of the law in section 20 of the FOI Act by the phrase “within such further time as the Court may either before or after the expiration of the 30 days fix or allow” is to allow the Court to determine, as in this instance, that the Applicant’s delay does not invalidate the proceedings to protect the constitutional right of access to information.

 

 

3.3       My Lord, the Applicant having commenced this proceeding by way of extension of time has also prayed this Honourable court for leave to enable the Applicant seek the reliefs stated on the face of the motion, which seeks primarily to compel and direct the Respondents to act. The application is premised on Order 34 Rules 3 of the Federal High Court [Civil Procedure] Rules 2019. Order 34 Rule [3] [1] of the Federal High Court [Civil Procedure] Rules 2019 provides:

 

“An application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this order”

 

3.4       Also in compliance with the provisions of Order 34 Rule 3[2][a][b][c] of the Federal High Court [Civil Procedure] Rules 2019, the Applicant has attached all other accompanying documents, to wit: a Statement setting out the name and description of the applicant, the reliefs sought and the grounds on which they are sought; and an affidavit verifying the facts contained in the statement.

 

3.5       In essence, this application is within the provisions of the rules of court as well as established case law that prescribe the practice and procedure for seeking an order of mandamus. The Supreme Court in Fawehinmi v. Akilu [1987] NWLR [Part 67] 79 page 46 – 48, paras F – B held as follows:

 

“The 1st stage is to apply for ex parte for leave to apply for the order. The Rules of Court and the Law prescribe this. Thus, it is first necessary to obtain leave to apply for the order of mandamus”.

 

3.6       In Danmusa v. Inuwa [2007] 17 NWLR [Part 1063] 391 [C.A] Pp. 411 – 412, paras H – F, the Court of Appeal in considering the factors to be taken into consideration where an application for leave to apply for judicial review is made, held that:

 

“What a trial court needs consider in application for leave… are the statement setting out the name and description of the applicant, the relief sought; and the affidavit evidence filed to verify the facts relied on by the applicant…the application is granted or refused mainly on the process filed with the application and leave to apply for judicial review is almost always granted by the court automatically once the court is satisfied with the process filed.”

 

3.7       The superior courts of law are in agreement on the purpose of seeking the leave of court before an application for an order of mandamus can be made. Thus, it is settled in law that it is not the duty of the court at the stage of an ex-parte application for leave to determine the substantive application for an order of mandamus. We respectfully refer Your Lordship to Danmusa v. Inuwa [supra] 17 NWLR [part 1063] page 391 at 412 paras G and Wemabod Estate Ltd v. Joyland Ltd [2001] 18 NWLR [Part 744] 22 C.A.

 

3.8       On the purpose and rationale for the grant of an order of mandamus, it was held in the case of Fawehinmi v. IGP (2002) 7 NWLR (part 767) 606, pg 674 para. D, per Uwaifo, JSC as follows,

 

“Mandamus is a high prerogative writ which lies to secure the performance of a public duty, in the performance of which the Applicant therefore has sufficient legal interest. It gives a command that a duty or function of a public nature, which normally, though not necessarily is imposed by statute but is neglected or refused to be done after due demand be done …”

 

3.9       My Lord, as contained in the affidavit in support of this application, the Applicant’s letters to the 1^st to 11^th Respondent were duly delivered to the Respondents [Exhibit B3 to B13]. There is sufficient evidence before the Court that the Respondents were served with the Applicant’s request through its letter. The Respondents, in spite of receiving the said letter, deliberately refused to respond to the Applicant’s request. There are also facts before this court detailing the reasons why the Applicant could not file this suit within the 30-day period prescribed by the FOI Act.

 

3.10    Moreover, we submit that the Applicant is within the three months stipulated by Order 34 Rule 4 of the Federal High Court [Civil Procedure] Rules 2019 for the Applicant to bring this application and the extension of time stipulated under Section 20 of the Freedom of Information Act 2011.

 

• The Applicant’s mandate includes the promotion of socio-economic rights of Nigerians, and transparency and accountability through mobilisation and advocacy for human rights. Thus, in furtherance of the statutory obligation of the Respondents to ensure utmost transparency and accountability and abolish all forms of corruption in the management of the finances of the Federation, the Applicant is seeking to enforce its right to information under the Freedom of Information Act 2011, the African Charter on Human and Peoples’ Rights [Ratification and Enforcement] Act 2004 and the International Covenant on Civil and Political Rights. This suit is therefore of public concern as it bothers on issues of national interest, public welfare and interest, social justice, good governance, transparency and accountability.

 

• The right of the Applicant is also guaranteed under Article 9 (1) of the African Charter on Human and Peoples’ Rights [Ratification and Enforcement] Act, which provides that, “Every individual shall have the right to receive information.” Article19 (2) of the International Covenant on Civil and Political Rights also provides: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

 

• More so, Section 1(1) of the Freedom of Information Act establishes the right of any person, including members of the Applicant, to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution. By this provision, the Applicant is entitled as of right to request for or gain access to the information requested from the Respondent.

 

• My Lord, Section 1(2) of the Freedom of Information Act 2011 [FoI Act] is more instructive in this regard. It provides conspicuously as follows:

 

“An applicant under this Act need not demonstrate any specific interest in the information being applied for.”

 

• By this provision, the Applicant needs not to have any interest in the information sought. This particular provision was given judicial recognition in the case of Boniface Okezie v. Attorney General of the Federation & the EFCC, [Unreported] Suit Number FHC/L/CS/514/2012 decided on 22 February 2013. The Court, holding in favour of the Plaintiff, stated that:

 

“It is not necessary for a plaintiff to demonstrate any specific interest in the information being applied for to have standing to bring the suit. Rather, the requester of information was entitled as a citizen of Nigeria to institute the proceedings to compel the Defendants to comply with the provisions of the FOIA.”

 

• Moreover, by the combined effect of sections 2(1) & (2); 9(1) & (2) of the FoI Act, the Respondents has an obligation to proactively record, keep and disclose information in respect of their activities, earnings and spending, without waiting for the Applicant to request for such information. The Respondents therefore has strict legal duty to ensure that information sought is made available to the Applicant upon request.

 

• My Lord, the 1^st to 11^th Respondent, sued in this instance, in the capacity of their offices as Senators, are apparently public institutions as envisaged by the FOI Act. Section 31 of the FOI Act interprets “public institutions” to mean “any legislative, executive, judicial, administrative or advisory body of the government, including boards, bureau, committees or commissions of the State, and any subsidiary body of these bodies including but not limited to committees and sub-committees which are supported in whole or in part by public fund or which expends public fund and private bodies providing public services, performing public functions or utilizing public funds.”

 

• Section 4(a) of the Freedom of Information Act mandates a public institution to provide information applied for within seven days of receipt of the application. The Respondents has notwithstanding refused to grant the Applicant access to the information requested upon expiration of the 7-day ultimatum. The consequence of the 1^st to 11^th Respondent’s refusal to respond to the Applicant’s request is clearly evinced in Section 7(4) of the FOI Act which provides:

 

“where the government or public institution to whom an application for information is made fails to give access to information or record applied for under this Act or part thereof within the time limit set out in this Act, the institution shall be deemed to have refused to give access”

 

• The 1^st to 11^th Respondents have neither granted the Applicant access to the information requested nor given notice to the Applicant of refusal and grounds for refusal, as mandated by the FOI Act, where access is refused, under Section 7(1) of the FoI Act. The Applicant further relies on Section 14(2)(b) & 3 of the Freedom of Information Act, 2011 in this regard.

 

• My Lord, the FOI Act has already envisaged this kind of circumstances, where a public institution will refuse to grant access to information in its custody, as in this instance. Thus, Section 1(3) of the FOI Act readily provides a remedy to the Applicant as follows:

 

“any person entitled to the right to information under this Act, shall have  the right to institute proceedings in the Court to compel any public institution to comply with the provisions of this Act.”

 

• Furthermore, Section 20 of FoI Act, 2011 creates a cause of action for an aggrieved party, like the Applicant in this instance, to approach the court for redress by providing that:

 

“any applicant who has been denied access to information, or a part therof, 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.”

 

• My Lord, there is compelling evidence before the Court that the Applicant’s letters dated 17^th June, 2023 were duly received by the 1^st to 11^th Respondents. The Applicant, in accordance with the FOI Act, gave the Respondents seven days to comply with its request, to which request the Respondents failed to respond. By a simple computation of time, the Applicant is out of the stipulated 30-day period stipulated by Section 20 of the FoI Act and has prayed for an extension of time as provided for by Section 20 of the FoI Act after the expiration of the seven statutory days given to the Respondents to accede to its request, to commence this legal action to compel the Respondents.

 

• In keeping with the law and practice of mandamus, the Applicant has demanded the performance of a public duty from the Respondents – which duty has been neglected by the Respondents. My Lord, on the basis of facts adduced by affidavit evidence, statute and case law, we respectfully urge the Court to grant the Applicant leave to seek judicial review and an order of mandamus. We refer My Lord to the case of Chief Gani Fawehinmi v. Inspector General of Police & ors (2001) 1 WRN page 90 at 92 – 93, where the Supreme Court per Nwaifo, J.S.C. states as follows:

 

“An Applicant for the grant of the order must show that he has sufficient legal interest to protect and that he has demanded the performance of the public duty from those obliged to do so and was refused.”

 

 

• My Lord, it is important to note that section 2 & 4(a) of the FoI Act, 2011 is mandatory and absolute. It imposes a binding legal obligation on the Respondent to keep and disclose public information in its custody. The courts have consistently held that the use of mandatory words such as “must” and “shall” in a statute is naturally prima facie imperative and admits of no discretion. The case of Anibi v. Shotimehin (1993) 3 NWLR (Part 282) page 461 at 472 – 473 is instructive in this regard.

 

• It is submitted that the use of the word “shall” in Section 2 & 4 of the FOI Act, 2011 connotes that the Respondents must provide the information sought by the Applicant. My Lord, it is settled law that where the words of a statute are clear and unambiguous, the Court must interpret and apply the words in their plain and ordinary meaning. We refer Your Lordship to the case of Kotoye v. Saraki (1994) 7 NWLR (Part 357) page 414 in this regard.

 

• Consequently, the combined effects of the provisions of Sections 1, 2, 4, 7, 9, 20, and 31 of the FoI Act, 2011 are clear and unambiguous. The Applicant, therefore, submits that the right to access information as guaranteed by Section 1 of the FoI Act should be given its clear, ordinary and unambiguous meaning, in order to give effect to the intention of the Act.

 

• The Respondents therefore, have no legally justifiable reason for refusing to provide the Applicant with the information requested, and thus, this Honourable Court ought to grant the Applicant leave to apply for judicial review and to seek an order of mandamus to compel the Respondent to comply with the provisions of the FoI Act. The Applicant further submits that the information being requested does not come within the purview of the types of information exempted from disclosure under the FOI The Applicant’s request bothers on an issue of national interest, public welfare, public interest, social justice, good governance, transparency and accountability.

 

 

 

 

 

• In the case of Governor of Ebonyi State & Ors v. Hon. Justice Isuama (2003) FWLR (Part 169) page 1210 at 1227-1228, the Court of Appeal held that:

 

“Obedience to the rule of law by all citizens but more particularly those who publicly took oath of office to protect and preserve the constitution is a desideratum to good governance and respect for the rule of law. In a democratic society, this is meant to be a norm; it is an apostasy for government to ignore the provisions of the law and the necessary rules to regulate matters”

 

• My Lord, the Applicant believes that the right to truth allows Nigerians to gain access to information essential to the fight against corruption. This is in line with the Government’s anti-corruption strategy of citizen involvement in the fight against corruption. Access to information will ultimately foster the development of democratic institutions in Nigeria.

 

• Democracy cannot flourish if governments operate in secrecy, no matter how much open discussion and debate is allowed. Indeed the very nature and quality of public discussion would be significantly impoverished without the nourishment of information from public authorities. To guarantee freedom of expression without including freedom of information would be a formal exercise, denying both effective expression in practice and a key goal which free expression seeks to serve.

 

• We respectfully state further that the Applicant is clothed with requisite locus standi to bring this application before the court. As contained in the affidavit in support of this application, the Applicant is a duly incorporated body registered under the Companies and Allied Matters Act in 2004 with a mandate to address issues related to rule of law, human rights and justice in Nigeria and have been active in defending the rule of law, democracy and good governance.

 

 

 

 

• My Lord, public officers and public institutions are mere custodians of public records. There is a general public interest in promoting transparency, accountability, public understanding and involvement in the democratic process. The citizenry is entitled to know how the commonwealth is being utilized, managed and administered in a democratic setting, as this positively influences the feeling of belonging in the society. This right to know will no doubt help in promoting a transparent democracy, good governance and public accountability.

 

• The Applicant firmly believes that its request falls within the Nigerian citizens’ right to know as guaranteed under Section 39(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The Applicant further submits that the principle of disclosure of information in the overriding public interest has been reaffirmed in the Joint Declaration adopted by the three special mandates on freedom of expression, (that is, the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression). The Declaration states that:

 

“The right of access should be subject to a narrow, carefully tailored system of exceptions… Exceptions should apply only where there is a risk of substantial harm to the protected interest and where that harm is greater than the overriding public interest in having access to the information.”

 

In urging the court to grant the Applicant’s reliefs, we rely on Section 25(1)(a)(b) & (c) of the FoI Act, 2011 which provides:
“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 authorized to deny the application for information;

(b) where the institution is so authorized, 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 than the interest being served if the application is denied in whatever circumstance.

 

• We most humbly urge Your Lordship to hold that the Respondents are not authorised and have no reasonable ground to deny access to the information sought by the Applicant, having not indicated any; and as the information requested does not fall under any of the exceptions provided for in sections 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the FoI Act, 2011. The Applicant urges this Honourable Court to hold that the interest of the public in providing the requested information is far greater than any other interest the Respondent may be trying to preserve.

 

4.0    CONCLUSION

• The Applicant relies on the arguments set out in the preceding paragraphs of this written submission and respectfully urge this Honourable Court to grant the Applicant’s leave being sought. Further, we have demonstrated, based on established principles of law, binding judicial precedents and the rules of this Honourable Court that the Applicant has satisfied the conditions precedent for the grant of the leave sought.

 

• We therefore urge Your Lordship to grant our application as prayed.

 

 

Dated this _______ day of ______________ 2023.