CORAM
Adebukunola Adeoti Ibironke Banjoko -Justice of the Court of Appeal
Abba Bello Mohammed-Justice of the Court of Appeal
Okon Efreti Abang-Justice of the Court of Appeal
PARTIES
THE INCORPORATED TRUSTEES OF PEERING ADVOCACY AND ADVANCEMENT CENTRE IN AFRICA (PAACA)
APPELLANTS
ATTORNEY GENERAL OF THE FEDERATION
RESPONDENTS
AREA(S) OF LAW
FREEDOM OF INFORMATION, JUDICIAL REVIEW, ADMINISTRATIVE LAW, CIVIL PROCEDURE, LEGAL PROFESSIONAL PRIVILEGE, STATUTORY INTERPRETATION, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE, JURISDICTION
SUMMARY OF FACTS
On September 7, 2020, the Appellant (The Incorporated Trustees of Peering Advocacy and Advancement Centre in Africa), a Non-Governmental Organization focused on Anti- Corruption, wrote to the Respondent (Attorney General of the Federation) requesting records of payments made to two Nigerian lawyers, Oladipo Okpeseyi SAN and Temitope Isaac Adebayo. These lawyers had been engaged by the Federal Government through the Ministry of Justice for the recovery of the Abacha loot. The Respondent, in a reply dated September14, 2020, denied the request.
The Appellant claimed that the Respondent had previously engaged a Swiss lawyer, Enrico Monfrini, to facilitate the repatriation of $322.5 million of Abacha loot pursuant to a Memorandum of Understanding signed between Nigeria and Switzerland. Subsequently, the Respondent engaged the two Nigerian lawyers to perform services allegedly already completed by the Swiss lawyer. These Nigerian lawyers were reportedly paid $16 million (approximately N6 billion) for this engagement.
Following the denial of their request, the Appellant initiated Judicial Review proceedings at the Federal High Court. During the trial, the Respondent filed a Preliminary Objection,
asserting that the Appellant had failed to seek the Court’s prior leave before initiating proceedings as required by Order 34 Rule 3 of the Federal High Court Civil Procedure Rules, 2019. On substantive grounds, the Respondent also argued that the requested information was protected under the privilege exemptions outlined in the Freedom of Information Act.
In its judgment, the Learned Trial Judge, Justice JK Omotosho, ruled that the Appellant was required to obtain the Court’s leave before filing the action. The Judge observed that the Court’s records showed the Appellant neither sought nor obtained such leave. Consequently, the Appellant failed to meet the necessary condition precedent for initiating a Judicial Review suit. The originating process was deemed incompetent, stripping the Court of jurisdiction to hear and decide the case. On the merits, the Judge further ruled that the communications between the Respondent and the two Nigerian lawyers fell under the exemption provided by law and dismissed the case in its entirety.
Dissatisfied with this judgment, the Appellant filed a Notice of Appeal on March 20, 2023.
HELD
1. WHETHER THE LEARNED TRIAL JUDGE OF THE LOWER COURT WAS RIGHT WHEN HE HELD THAT THIS SUIT WAS INCOMPETENT FOR LACK OF LEAVE BEFORE FILING THE SUIT IN ACCORDANCE WITH THE PROVISIONS OF ORDER 34 RULE 3 OF THE FEDERAL HIGH COURT CIVIL PROCEDURE RULES, 2019.?
2. WHETHER THE LEARNED TRIAL JUDGE AT THE LOWER COURT WAS RIGHT WHEN HE HELD THAT THE INFORMATION REQUESTED BY THE APPLICANT IS PRIVILEGED INFORMATION WHICH IS EXEMPTED UNDER THE FREEDOM OF INFORMATION ACT AND THAT THIS SUIT THEREBY LACKS MERIT.?
ISSUES
1. The majority opinion (Banjoko, JCA and Mohammed, JCA concurring) dismissed the appeal, holding that:
o The Appellant was required to obtain leave of court before filing the application for judicial review under the Freedom of Information Act in accordance with Order 34 Rule 3 of the Federal High Court Civil Procedure Rules, 2019.
o The information sought by the Appellant relating to communications between the Attorney General of the Federation and the lawyers engaged for recovery of Abacha loot constituted privileged legal practitioner-client information exempted under Section 16 of the Freedom of Information Act, 2011.
2. The minority opinion (Abang, JCA dissenting) would have allowed the appeal in part, holding that:
o The Appellant was not required to obtain prior leave of court before applying for judicial review under Section 20 of the Freedom of Information Act, 2011, as Section 21 of the Act provides that such applications are to be heard summarily.
o However, the dissenting judge agreed with the majority that the information sought was privileged and exempt from disclosure under Section 16 of the Freedom of Information Act, 2011.
RATIONES DECIDENDI
JUDICIAL REVIEW UNDER FREEDOM OF INFORMATION ACT – REQUIREMENT OF LEAVE OF COURT:
“To begin with, a closer examination of the wordings in Section 20 of the Act is suggestive of the fact that the Act implicitly provides for the requirement of leave. If this were not the case, what role would the Court have before the expiration of the 30-day Period for filing an application for Judicial Review? The initial part of Section 20 indicates that an Applicant may approach the Court for review within a specified timeframe (30 days). However, it also grants the Court the discretion to permit the application either before or after the expiration of the 30-day period. In essence, even if the 30 days have lapsed, the Court retains the discretion to allow the application. Similarly, before the expiration of the 30 days, the Court also has the discretion to grant permission. This clearly points to the necessity of seeking Leave, which forms the foundation for the requirement in Order 34 Rule 3(1) of the Federal High Court Rules, 2019, that Leave of Court is a mandatory prerequisite for seeking Judicial Review.” – Per ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.
RELATIONSHIP BETWEEN SUBSTANTIVE AND PROCEDURAL LAW – INTERPRETATION OF FREEDOM OF INFORMATION ACT:
“Secondly, the Federal High Rules as well as Rules of Court generally are classified as Procedural Subsidiary Legislation, while the Freedom of Information Act is a Substantive Act, and not a Procedural Legislation. I see no conflict between the provision of the Freedom of Information Act and the Federal High Court Rules. The Act merely provides for the Right to seek a “Review” but is silent on the procedural requirements for doing so. In other words, the Act does not address how a review should be applied for, which is a gap filled by the Federal High Court rules.”– Per ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.
INTERPRETATION OF MARGINAL NOTES – SIGNIFICANCE IN STATUTORY INTERPRETATION:
“In the Freedom of information Act 2011, the Marginal Note reads thus: Judicial Review… [M]arginal notes are said to be a good guide to knowing the intention of the law makers, the purpose of the section and mischief the provisions are aimed at. If marginal notes are a good guide to knowing the intention of the legislature, if means we can look at the marginal notes to Section 20 of the FOI Act. The marginal notes say Judicial Review and therefore it is only logical to assume that the action any party denied information who seeks to compel compliance should approach the Court by way of a Judicial Review.” – Per ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.
PURPOSE OF LEAVE REQUIREMENT IN JUDICIAL REVIEW – SAFEGUARDING COURT PROCESS:
“It is essential to highlight that the purpose of the requirement for leave is to confirm that the Applicant has a genuine and sufficient interest in the case, rather than acting as a mere busybody. Furthermore, the Courts have the right to extend the limitation set under the Act and the fact of it being a summary trial is to ensure that when all procedural requirements are complied with, speedy dispensation is mandated.”– Per ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.
RELATIONSHIP BETWEEN PROCEDURAL AND SUBSTANTIVE LAW – PRIMACY OF PROCEDURE IN ENFORCEMENT:
“It is a well-established principle of law that Procedural or Adjectival Law pertains to the Practice and Procedure which are the rules governing how Substantive Law is implemented and administered. Procedural Law prescribes the methods for enforcing rights and duties, obtaining remedies for violations of rights, and enforcing obligations or duties. On the contrary, Substantive Law deals with the creation, definition, and limitation of rights and obligations. Accordingly, in matters of procedure, Procedural Legislation takes precedence over Substantive Legislation.”– Per ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.
ATTORNEY-CLIENT PRIVILEGE – SCOPE AND RATIONALE UNDER FREEDOM OF INFORMATION ACT:
“The Attorney-Client relationship is multifaceted, grounded in Principles of Contract, Agency, and Fiduciary Duty, yet it cannot be strictly classified under any one of these categories. It is fundamentally a contractual relationship, governed by agency principles, but it is distinguished by its deeply fiduciary nature and limited scope. An Attorney engaged by a client acts as an agent with fiduciary responsibilities under the Law and Ethical Obligations associated with the Legal Profession. As a fiduciary, the Attorney owes the client the highest degree of loyalty, good faith, and integrity. This relationship prohibits the Attorney from exploiting the Client’s trust for personal gain.”– Per ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.
EXEMPTION UNDER FREEDOM OF INFORMATION ACT – INTERPRETATION OF SECTION 16:
“Since Section 16 of the Freedom of Information Act exempts the Attorney-Client relationship from disclosure requirements, the relationship between the Respondent and the two Nigerian Lawyers engaged is fully protected under the Act. Moreso the Appellant is a third party who is not a party to the relationship between the Respondent and the two Nigerian Lawyers in context.”– Per ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.
SUMMARY HEARING UNDER FREEDOM OF INFORMATION ACT – DISPENSING WITH LEAVE REQUIREMENT (DISSENTING):
“By Section 21 of the Act, an application made under Section 20 of the Act shall be heard and determined summarily. By summary hearing, it means in my view that there is no condition precedent for the Appellant to fulfil before applying to Court for judicial review of the public institution’s decision refusing to act on the application to release information or document. That is there should be no impediment on the way of the Appellant to apply to Court for judicial review. It means also that all usual bottlenecks and technicalities that should limit free access to Court is removed in any application made pursuant to Freedom of Information Act.”– Per OKON EFRETI ABANG, J.C.A. (Dissenting)
LEGISLATIVE INTENT – SUMMARY PROCEEDINGS UNDER FREEDOM OF INFORMATION ACT (DISSENTING):
“The phrase shall be heard summarily in my view means that there is no condition precedent for the applicant to fulfill before he can apply to Court for judicial review. There should not be limitation or bottleneck of any sort when it concerns application for judicial review under Freedom of Information Act. Once the request is refused by a public institution, the applicant should have free and automatic access to Court for redress within the time frame provided under Section 20 of the Act.” – Per OKON EFRETI ABANG, J.C.A. (Dissenting)
RELATIONSHIP BETWEEN COURT RULES AND STATUTORY PROVISIONS – HIERARCHY OF LAWS (DISSENTING):
“It seems from the argument of parties, the provisions of Order 34 Rule 3(1) of the Federal High Court (Civil Procedure) Rules 2019 is in conflict with Sections 20 and 21 of the Freedom of Information Act. It is my view that statutory provisions that is the law made by the National Assembly is superior to the Rules of Court. Put differently, Rules of Court cannot override statutory provisions.”– Per OKON EFRETI ABANG, J.C.A. (Dissenting)
EXEMPTION OF LEGAL PROFESSIONAL PRIVILEGE – INTERPRETATION OF SECTION 16:
“As for the argument of the Appellant that the legal practitioner – client privilege stated in the section should not cover record of transactions involving public funds, the Section has made no such exception. It is trite that in interpreting a statute, there is a duty upon the Court to confine itself to the words used in its provisions. The Court should not gloss on the provision by adding to the provision what was not stated therein by the legislature.”– Per ABBA BELLO MOHAMMED, J.C.A.
BURDEN OF PROOF IN FREEDOM OF INFORMATION CASES – STATUTORY SHIFT TO PUBLIC INSTITUTION (DISSENTING):
“In fact, unlike in an action for judicial review to seek any of the prerogative writs, where the burden of proof is on the applicant to establish his claim, the burden in an action for review of denial of information under the Freedom of Information Act is on the on the public institution concerned to establish justification for its denial of the information requested.
Section 24 of the Freedom of Information Act specifically states that: In any proceeding before the Court arising from an application under Section 20, the burden of establishing that the public institution is authorized to deny an application for information or part thereof shall be on the public institution concerned.” – Per ABBA BELLO MOHAMMED, J.C.A.
COURT’S RULE-MAKING POWER – ENHANCING ENFORCEMENT OF SUBSTANTIVE RIGHTS:
“A Court of Law has the power to create its own Rules and Regulations and this does not conflict but rather enhances the enforcement of the rights created and bestowed by the law.” – Per ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.
CASES CITED
STATUTES REFERRED TO
Freedom of Information Act, 2011
Federal High Court (Civil Procedure) Rules, 2019
Evidence Act, 2011
Rules of Professional Conduct for Legal Practitioners, 2023
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