In the Court of Appeal
In the Benin Judicial Division
Holden at Benin
ON THURSDAY, 16TH MARCH, 2023
Suit No: CA/B/524/2018
Before Their Lordships:
THERESA NGOLIKA ORJI-ABADUA Justice, Court of Appeal
TUNDE OYEBANJI AWOTOYE Justice, Court of Appeal
SYBIL ONYEJI NWAKA GBAGI Justice, Court of Appeal
Between
REGISTERED TRUSTEE OF UNEMPLOYED YOUTHS INITIATIVE Appellant(s)
And
1. CODE OF CONDUCT BUREAU Respondent(s)
2. SABA M. SABA –
LEADING JUDGMENT DELIVERED BY TUNDE OYEBANJI AWOTOYE, J.C.A.
Facts
This appeal was in respect of the cross-appeal filed by the Plaintiff against the ruling of the Federal High Court, Benin Judicial Division, Holding at Benin City delivered on 4/11/2016.
The Appellant by way of Originating Summons sought the determination of the following questions:
1. Whether by Sections 6(6)(a) and (b), 251(1) (p)(q) and (r) paragraph 3 (a)(b)(c) and (d) of the Code of Conduct Bureau and Tribunal Act 2004 and Section 7 (1)(p)(q)(r) of the Federal High Court Act of 2009, the Federal High Court has jurisdiction over the administration, control and management of records of public officers in the custody of the defendants.
2. Whether having regard to the provisions of Section 9(2) of Freedom of Information Act 2011 and Section 3 (a)(b)(c) and (d) of the Code of Conduct Bureau and Tribunal Act 2004, Defendants is under any legal obligation to make public the assets declared by a public officer.
3. Whether the Plaintiff has locus standi in this suit.
The Appellant thereafter sought the following reliefs:
1. DECLARATION that by the provisions of Section 251 (1) (p)(q) and (r) of the 1999 Constitution and Section 7(1) (p)(q) and (r) of the Federal High Court Act of 2009, the Federal High Court has the power to adjudicate on issues connected with the administration, control and management of records of public officers in the custody of the defendants.
2. DECLARATION that then 1st Defendant’s register of officials’ declarations must be made public on request by any person or group of persons immediately after a public official take oath of office.
3. DECLARATION that third party can access private information of public officers in public custody.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants from barring access to assets declaration of public officers in Nigeria forthwith.
In spite of having been served all necessary processes, the Defendants at the trial Court filed no process in response.
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In his ruling, the learned trial Judge struck out the case for lack of jurisdiction on the ground of lack of locus standi of the Plaintiff to institute the action. Dissatisfied, the Plaintiff appealed to the Court of Appeal.
Issues for determination
The Court determined the appeal on the following issues, viz:
1. Whether in the circumstance of this case the locus standi of the appellant has been established.
2. Whether by combined interpretation of Section 2(4) of Freedom of Information Act 2011 and Section 3 (a) & (c) of Code of Conduct Bureau and Tribunal Act 2004 assets declaration of public officers should be publicly available.
3. Whether the appropriate thing to do in the circumstance of this case is to hear the case as whole or order a rehearing.
Applelant’s Submission
On issue one, Counsel to the Appellant submitted that there is a presumption of locus standi where the parties seek to enhance respect for the law and promote the good public administration practices. He cited KENYA BANKERS ASSOCIATION V. MINISTER FOR FINANCE & ANOR (2002) 1 KLR 61. Counsel submitted that the quest for open government is a matter of public interest and locus standi on open government and public participation is available to any person whether corporate or incorporate acting individually or as a group. He cited SHELL PETROLEUM DEVELOPMENT COMPANY LIMITED & 5 ORS V. E.N. NWANKWA & ANOR (2001) 10 NWLR (PT. 720) 64 @ 82. Concluding the issue, Counsel argued that by virtue of Section 14 of the 1999 Constitution, the Appellant being an organisation of unemployed youths has legal right to sue and be sued.
On issue two, Counsel to the Appellant submitted that 1st Respondent is under a duty to enforce the provisions of the Freedom of Information Act particularly as it relates to storage and disclosure of information in soft, hard and retrievable copies, and the Respondents are under an obligation to facilitate access to declaration in its custody. He relied on Section 9(2) of Freedom of Information Act 2011.
On issue three, Counsel submitted that this Court hearing this case as whole as Court of first instance is encouraged by the mode of commencing the action. He cited Section 15 of Court of Appeal Act 2004, EKASA V. ALSCON PLC (2014) 16 NWLR (PT. 1434) CA 542 a 562-563 PARAS G- D. Counsel submitted that it will lead to injustice and unnecessary hardships to remit the case back to the lower Court for consideration.
Respondent’s Submission
In response, Counsel to the Respondents contended that while considering the issue of jurisdiction, right of parties does not exists at this stage. He submitted that the lower Court was accurate in holding that the plaintiff has no locus standi to institute the action. He cited the case of ARARUME VS. B IBEZIM (2021) ALL FWLR (PT. 1101) in support.
Counsel further argued that it is immaterial if assets declaration qualifies as a public document, the Respondents’ refusal to give out assets declaration to Plaintiff/Appellant stems from the provision Section 37 of the 1999 Constitution which guarantee individual Fundamental Right to Privacy as well as Section 5 (1) of the 1999 Constitution.
Resolutions of issues
In resolving the appeal, the Court adopted the issues raised by the Appellant. On issue one, the Court stated that the burden of proving locus standi rest on the Appellant. As to how that burden is to be discharged in an action commenced by originating summons where the averments in the affidavit were uncontroverted, the Court cited the case of A.P.C. & ANOR VS. ENGINEER SULEIMAN ALIYU LERE & ORS (2021) 16 EPR 389 to hold that where an opposing party fails to file counter-affidavit to contest the deposition in the plaintiff’s affidavit, the content of the plaintiff’s affidavit would be deemed unchallenged and therefore true. The Court then held that in view of the plaintiff’s unchallenged affidavit, the plaintiff had sufficiently established locus standi to institute the action.
On issue two, the Court interpreted the provisions of Sections 2 and 3 of the Freedom of Information Act, 2011 and the provisions of paragraph 11 of the Fifth Schedule to the 1999 Constitution to determine whether the declaration of assets of public officers should be made public? The Court held that by the provision of Sections 2 and 3 of the Freedom of Information Act, 2011, the Code of Conduct Bureau is the only body with the functions and powers to verify the declaration of assets of a public officer. The public has no such powers except as approved or authorized by the Code of Conduct Bureau for such purpose as required by the provision of Paragraph 11 of The Fifth Schedule to the 1999 Constitution. As such, the Appellant cannot have access to the Assets Declaration Forms of public officers for the purpose of verification. The Court cited the case of CODE OF CONDUCT BUREAU & ORS VS. NWANKWO (2018) LPELR 44762 (CA) in support.
On issue three, the Court stated that in the absence of any authorization by the Code of Conduct Bureau, the general public cannot verify declaration of assets by public officers. Therefore, the claim of the Appellant at the trial Court cannot stand. The Court therefore dismissed the case of the Appellant at the trial Court for lacking in merit.
Held
The Court allowed the appeal in part. The Court set aside the judgment of the trial Court wherein the suit was dismissed for lack of locus standi. In its place, the Court held that the claim of the Appellant was lacking in merit and thus dismissed same.
Appearances:
President Aigbokhan
– For Appellant(s)
Eke Felicia Ngozi, holding brief of Ehinon Okoh – For Respondent(s)