NIGERIA FOUNDATION FOR THE SUPPORT OF VICTIMS OF TERRORISM v. COALITION ON ICC LTD/GTE (2020)

NIGERIA FOUNDATION FOR THE SUPPORT OF VICTIMS OF TERRORISM v. COALITION ON ICC LTD/GTE

(2020)LCN/14249(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/A/191/2017

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

THE NIGERIA FOUNDATION FOR THE SUPPORT OF VICTIMS OF TERRORISM APPELANT(S)

And

COALITION ON INTERNATIONAL CRIMINAL COURT LTD/GTE RESPONDENT(S)

RATIO

WHAT IS THE PURPOSE OF RAISING A PRELIMINARY OBJECTION AND WHAT IS THE PROCEDURE IN WHICH IT SHOULD BE FILED IN COURT

Before delving into the merit of the objection, the Court frowns at the manner the objection was raised, it has been said over and over again that a Preliminary Objection is taken to challenge the entire Appeal not to oppose a ground or issues when other grounds and issues can sustain the Appeal. A Preliminary Objection targets the main Appeal and seeks to terminate the Appeal without a hearing and in limine, see KLM ROYAL DUTCH AIRLINE V ALOMA (2017) LPELR-42588(SC) which held thus: “The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe Vs Ofomata (2010) 18 NWLR (Pt.1225) 404 @ 423 C – F; Ndigwe Vs Nwude (1999) 11 NWLR (Pt.626) 314: N.E.P.A. Vs Ango (2001) 15 NWLR (Pt.734) 627; Muhammed v. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183.” Per KEKERE-EKUN, J.S.C
This Preliminary Objection should have come by way of Motion on Notice to also be taken along the Appeal. However, it will be consider strictly in the interest of justice. PER NIMPAR, J.C.A.

WHETHER OR NOT AN OMNIBUS GROUND OF APPEAL CAN RAISE AN ISSUE OF LAW OR CHALLENGE A SPECIFIC FINDING OF A TRIAL COURT

The Apex Court described what an omnibus ground represents in the case of AJIBONA V KOLAWOLE & ANOR (1996) LPELR-299(SC) thus:
“An omnibus ground of appeal is therefore designed to allow a complaint on evaluation of evidence and it encompasses complaint of improper evaluation of evidence. It implies that the judgment of the Trial Court cannot be supported by the weight of the evidence adduced by the successful party which the trial judge either wrongly accepted or that the inference drawn or conclusion reached by the trial Judge based on the accepted evidence cannot be justified. An omnibus ground of appeal also implies that there is no evidence which if accepted would support the findings of the trial judge. See Anyaoke & Ors v. Adi & Ors. (1986) 3 NWLR (pt. 31)731; (1986) 17 NSCC (pt.II)799; Chief Abah Ogboda v. Adulugba(1971) 1 All NLR 68 (reprint) and Nta & Ors v. Anigbo & Ors. (1972) All NLR 510 at 516 (reprint).” Per OGWUEGBU ,J.S.C.
It is settled that an Omnibus Ground of Appeal cannot raise an issue of law, or challenge a specific finding of the Trial Court as held in the same case of AJIBONA (supra). It is now settled that an Appeal predicated on the omnibus or general ground is not at large. It cannot be used to raise an issue of law as has been done in the Appellant’s brief. Such issue of law must be raised as a separate Ground of Appeal and made an adjunct to the Omnibus Ground of Appeal. See DAVIES V. POWELL DUFFRYN ASSOCIATED COLLIERIES LTD. (1942) AC 601 at 616 – 617 and Onaga & Ors. v. Micho & Co. & Ors. (1961) All NLR 324; (1961) 2 ANLR 209; (1961) 2 SCNLR 107.
Again, this Court in the case of KINGSMAN MERCHANT CO. (NIG) LTD V ECO BANK (2017) LPELR-42924(CA) LOKULO-SHODIPE, JCA held as follows:
“For the purpose of resolving an issue distilled from an omnibus ground of appeal in a civil appeal, the Court is expected to restrict itself to what is in the cold record of appeal and not the slanted facts as contained in the briefs of argument of the parties.” PER NIMPAR, J.C.A.

THE IMPORTANCE OF THE JURISDICTION OF A COURT IN THE DETERMINATION OF A SUIT

Jurisdiction is a basic need for any Court in adjudication, its importance has been stated in a plethora of decision, see IKPEKPE V WARRI REFINERY & PETROCHEMICAL CO LTD & ANOR (2018) LPELR-44471(SC) which reiterated the importance of jurisdiction thus:
“The importance of the jurisdiction of a Court cannot be over emphasized. The law is trite that jurisdiction is a threshold issue and livewire that determines the authority of a Court of law or Tribunal to entertain a case before it and it is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution or law that it will have the judicial power and authority to entertain, hear and adjudicate upon any cause or matter brought before it by the parties. Where a Court proceeds to hear and determine a matter without the requisite jurisdiction, it amounts to an exercise in futility and the proceedings and judgment generated therefrom are null, void and of no effect no matter how well conducted. See Nigeria Deposit Insurance Corporation v Central Bank of Nigeria & Anor (2002) 7 NWLR (pt. 766) 273, Shelim & Anor v Gobang (2009) 12 NWLR (pt. 1156) 435, Utih v Onoyivwe (1991) 1 NWLR (pt. 166) 205, Petrojessica Enterprises Ltd & Anor v Leventis Technical Co. Ltd (1992) 5 NWLR (pt 244) 675.” Per OKORO, J.S.C.
The case of MADUKOLU V NKEMDILIM (1962) LPLER-24023(SC) stated how jurisdiction can be determined in a matter, it held:
“Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.” Per BAIRAMIAN, J.S.C. PER NIMPAR, J.C.A.

WHETHER OR NOT THE PROCESS OF INITIATING A SUIT IS AN IMPORTANT FACTOR IN DETERMINING JURISDICTION

It is settled that how a suit is initiated is one important factor in determining jurisdiction.
The Appellant in this Appeal argues that the claim was not initiated as required by law. It argues it in different phases, the beginning is that the Federal High Court has no jurisdiction over the parties. The jurisdiction of the Federal High Court is donated by Section 251(1) of the 1999 Constitution (as amended) and it was interpreted in several cases. The apex Court in CENTRAL BANK OF NIGERIA V OKOJIE (2015) LPELR-24740(SC) per RHODES-VIVOUR JSC held thus:
“Under Section 251(1) (a) to (s) of the Constitution, the Federal high Court would have exclusive jurisdiction if and only if:
a. The plaintiffs action is one of the causes of action under Section 251(1) (a) to (s) of the Constitution.
b. The parties or a party must be of the Federal government or an agency of the Federal government.
c. There must be a claim for/against the Federal government or an agency of the Federal Government.
(a), (b) and must be present before a Federal High Court can have jurisdiction under Section 251(1) of the Constitution.” PER NIMPAR, J.C.A.

WHETHER OR NOT THE BURDEN OF PROOF IS ON THE PARTY WHO ASSERTS THE POSITIVE

This is on compliance with the Evidence Act that the burden is on he who asserts the positive, the Apex Court in DASUKI V FRN (2018) LPELR-43897(SC) held:
“The law is settled: he who asserts must prove. That is the essence of Section 131(1) of the Evidence Act, 2011. The burden of proof in every suit or proceeding lies on the party who will fail if no evidence at all were given on either side: Section 132 of the Evidence Act.”Per EKO, J.S.C. PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the Federal High Court sitting in Abuja; Coram HON. JUSTICE A. I. CHIKERE, delivered on the 19th December, 2016 by wherein it entered Judgment in favour of the Respondent. Dissatisfied with the decision, the Appellant filed an amended Notice of Appeal on the 2/10/2018 setting out 7 Grounds of Appeal.

Facts relevant to this Appeal are amenable to brief summary. The Respondent took out an Originating Motion on Notice wherein it sought the following reliefs:
i. A declaration that the Applicant is entitled to be furnished on request all documents in custody of the Respondent which are not exempted under the Freedom of Information Act, 2011.
ii. An Order compelling the Respondent to furnish the Applicant with detailed information on the amount collected into the Victim’s Support Fund to date, disbursements made out of the Victims Support Fund to date and plans for rehabilitation of IDPs in Adamawa, Yobe, Borno, Gombe, Kano, FCT, Nasarawa, Taraba, Plateau, Benue and Katsina States as requested for in the Applicant’s letters to the

Respondent dated 9th June, 2015.
The grounds in support of the Motion are set out thus:
a. The Applicant in its letter dated 9th June, 2015 and delivered on the 10th June, 2015 requested from the Respondent, information under Section 2 of the Freedom of Information Act, 2011 on the disbursement of the fund as well as the plans for rehabilitation of internally Displaced Persons in some Northern States.
b. The Applicant in the said letter requested that the information be sent to it within 7 days of receipt of the letter by the Respondents as stipulated under Section 4 of the Freedom of Information Act, 2011 and undertook to bear the reasonable cost of reproducing and sending same to it.
c. The information requested by the Applicant in the said letter is not of the class exempted under the Freedom of information Act, 2011 and as such the Respondent is under legal obligation to make same available to the Applicant on its request.
d. The Respondent received the Applicant’s request on 10th June, 2015 but failed to furnish it with the requested information.
e. This Honourable Court can compel the Respondent to furnish the

Applicant with the said information under Section 20 of the Act.

The motion was contested and the Appellant also filed a Preliminary Objection but after due consideration, the trial Court granted the application thus this Appeal.

The Appellant’s Brief settled by EKO EJEMBI EKO ESQ., filed on the 29/09/2017 and it distilled 4 issues for determination:
1. Whether the Learned Trial Court was vested with the requisite jurisdiction to proceed with the Trial; and whether having regard to the radical conflicts in the parties affidavit the Court could proceed with the hearing of the matter without calling for oral evidence. (GROUNDS 1, 2 AND 5)
2. Whether an action under the Freedom of Information Act is cognizable other than by way of Judicial Review. (GROUND 6)
3. Whether in this case, where the Appellant (as Applicant) filed a Preliminary Objection supported with an affidavit which was argued based on affidavit evidence; the Trial Judge could rely on a document other than on oath in resolving the matter.

Whether on facts before the Court the Applicant was entitled to the Judgment of the Trial Court.The Respondent’s Brief settled by CHINONYE OBIAGWU SAN filed on the 10/12/2018 and it four issues for determination as follows:
i. Whether the learned trial Judge was vested with requisite jurisdiction to proceed with the trial with the parties as constituted.
ii. Whether the suit was commenced by a wrong procedure and whether ab action under the Freedom of Information Act is cognizable other than by way of judicial review.
iii. Whether there was any necessity for the trial Court to have called for oral evidence and whether the failure of the Respondent to file a further affidavit amounted to admission of the facts deposed to in the appellant’s counter affidavit.
iv. Whether on the facts before the Court, the Applicant was entitled to judgment of the trial Court.

The Respondent incorporated a preliminary Objection in its Respondent’s brief challenging the appeal thus:
a. That issue 4 was distilled from Ground 7 (omnibus ground) of the amended Notice of Appeal.
b. That Ground 7 of the Appellant’s Amended Notice of Appeal is not a substantive ground of appeal.
c. No valid issue for determination can be distilled from an omnibus ground of appeal.

The Respondent submitted that an omnibus ground of Appeal cannot validly challenge specific findings of the Trial Court. An omnibus ground of Appeal is not a ground of Appeal against a specific finding of fact or the Trial Court. No issue or argument can be validly raised or made against a specific finding of fact or holding on the basis of an omnibus ground of Appeal that complains against the weight of the totality of evidence. The Supreme Court in the case of

AKINLAGUN V. OSHOBOJA (2006) ALL FWLR (PT. 325) 53 at 75-76, also GODWIN & ANOR V. OHAKIM & ANOR (2009) LPELR-4206 (CA).

In line with the authorities above, the Respondent submitted that issue 4 of the Appellants brief and the argument thereof which flow from the Omnibus Ground of the amended Notice of Appeal are incompetent and urges the Court to strike out same.

APPELLANT’S RESPONSE TO PRELIMINARY OBJECTION
The Appellant in Response to the Preliminary Objection contends that an issue complaining against Judgment of the Trial Court as premised on the totality of the evidence adduced at the Trial Court can be distilled from an Omnibus Ground of Appeal. See the case of KINGSMAN MERCHANT CO. (NIG) LTD V. ECO BANK (2017) LPELR 42924 (CA).

The Appellant submitted that issue 4 which distilled from Ground 4 of the Notice of Appeal which complains principally and purely about improper evaluation of the totality of evidence adduced by the parties at the Trial Court and the said issue contends that the Judgment of the Trial Court cannot be supported/sustained by the weight of the evidence adduced by the Respondent at the Trial Court. That the Issue

neither raises issues nor any dispute, it does not challenge any specific document or fact; rather it challenges the Judgment of the Trial Court to the effect that same cannot be sustained because it is against the weight of the evidence adduced by the Respondent at the Trial Court and referred toSHA & ANOR V. KWAN & ORS (2000) LPELR-3031 (SC).

The Appellant submitted that the Respondent’s position that issue 4 of the Appellant’s brief of argument be struck out for being incompetent is misconceived and not premised on any apropos legal position and urge the Court to decline same and dismiss the preliminary objection.

RESOLUTION OF THE PRELIMINARY OBJECTION
Before delving into the merit of the objection, the Court frowns at the manner the objection was raised, it has been said over and over again that a Preliminary Objection is taken to challenge the entire Appeal not to oppose a ground or issues when other grounds and issues can sustain the Appeal. A Preliminary Objection targets the main Appeal and seeks to terminate the Appeal without a hearing and in limine, see KLM ROYAL DUTCH AIRLINE V ALOMA (2017) LPELR-42588(SC) which

held thus:
“The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe Vs Ofomata (2010) 18 NWLR (Pt.1225) 404 @ 423 C – F; Ndigwe Vs Nwude (1999) 11 NWLR (Pt.626) 314: N.E.P.A. Vs Ango (2001) 15 NWLR (Pt.734) 627; Muhammed v. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183.” Per KEKERE-EKUN, J.S.C
This Preliminary Objection should have come by way of Motion on Notice to also be taken along the Appeal. However, it will be consider strictly in the interest of justice. Learned Counsel should take note and follow proper procedure to take objections to an Appeal.

The objection here is against

Ground 7 which is an Omnibus Ground of Appeal, the Respondent contends that an issue cannot be distilled from such an issue as was done by the Appellant in this Appeal with issue 4 donated from the said Ground 7. The Apex Court described what an omnibus ground represents in the case of AJIBONA V KOLAWOLE & ANOR (1996) LPELR-299(SC) thus:
“An omnibus ground of appeal is therefore designed to allow a complaint on evaluation of evidence and it encompasses complaint of improper evaluation of evidence. It implies that the judgment of the Trial Court cannot be supported by the weight of the evidence adduced by the successful party which the trial judge either wrongly accepted or that the inference drawn or conclusion reached by the trial Judge based on the accepted evidence cannot be justified. An omnibus ground of appeal also implies that there is no evidence which if accepted would support the findings of the trial judge. See Anyaoke & Ors v. Adi & Ors. (1986) 3 NWLR (pt. 31)731; (1986) 17 NSCC (pt.II)799; Chief Abah Ogboda v. Adulugba(1971) 1 All NLR 68 (reprint) and Nta & Ors v. Anigbo & Ors. (1972) All NLR 510 at 516 (reprint).” Per

OGWUEGBU ,J.S.C.
It is settled that an Omnibus Ground of Appeal cannot raise an issue of law, or challenge a specific finding of the Trial Court as held in the same case of AJIBONA (supra). It is now settled that an Appeal predicated on the omnibus or general ground is not at large. It cannot be used to raise an issue of law as has been done in the Appellant’s brief. Such issue of law must be raised as a separate Ground of Appeal and made an adjunct to the Omnibus Ground of Appeal. See DAVIES V. POWELL DUFFRYN ASSOCIATED COLLIERIES LTD. (1942) AC 601 at 616 – 617 and Onaga & Ors. v. Micho & Co. & Ors. (1961) All NLR 324; (1961) 2 ANLR 209; (1961) 2 SCNLR 107.
Again, this Court in the case of KINGSMAN MERCHANT CO. (NIG) LTD V ECO BANK (2017) LPELR-42924(CA) LOKULO-SHODIPE, JCA held as follows:
“For the purpose of resolving an issue distilled from an omnibus ground of appeal in a civil appeal, the Court is expected to restrict itself to what is in the cold record of appeal and not the slanted facts as contained in the briefs of argument of the parties.”
It is obvious an issue can arise from an Omnibus Ground of

Appeal in Civil Appeal but limited in its scope of application to that an Appeal predicated on the omnibus or general ground is not at large. Improper evaluation of evidence. It implies that the Judgment of the Trial Court cannot be supported by the weight of the evidence adduced by the successful party which the trial Judge either wrongly accepted or that the inference drawn or conclusion reached by the trial Judge based on the accepted evidence cannot be justified. It cannot be used to raise an issue of law but can question the Omnibus Ground of Appeal also implies that there is no evidence which if accepted would support the findings of the trial Judge. The Respondent failed to identify the specific finding questioned by issue 4. The said issue challenged the said:
“Whether on the facts before the Court the Applicant was entitled to judgment of the trial Court.”
It is clearly not an issue challenging specific finding or a question of law. It challenges the evaluation of evidence of the trial Court and simply asked if the final outcome can stand based on facts established before the Court. It is not an issue of law but an issue

questioning weight of evidence. I find that the objection is unnecessary and unmeritorious and is hereby dismissed.

MAIN APPEAL
After a careful consideration of the Amended Notice of Appeal, the Record of Appeal and the Briefs of Learned Counsel for the parties, the Court is inclined to adopting the issues donated by the Appellant for determination in this Appeal being the initiator of the Appeal, that way all questions in this Appeal shall be resolved. They shall be resolved seamlessly for expediency and because the issues are interrelated.

ISSUE 1
The Appellant states that they filed a Preliminary Objection which was supported by an Affidavit challenging the jurisdiction of the trial Court on the grounds that both parties to the matter are not agencies of Federal Government. He further stated that they are both registered under Part C of the Companies and Allied Matters Act 1990 as non-governmental agencies (NGO) and hence the parties are out of jurisdiction of the Federal High Court by the combined provisions of Section 251 (1) (p) (q) (r) of the 1999 Constitution (as amended) and Section 7 of the Federal High Court Act.

See OKASIA V. OGUEBEGO & ORS (2015) LPELR 24520 (CA) and also CENTRAL BANK OF NIGERIA V. OKOJIE (2015) LPELR-24740 (SC). The Appellant submitted that from the above authorities, the Federal High Court lacked the requisite jurisdiction to have entertained the matter.

Further, the Appellant state that the reliefs sort by the Applicant at the Trial Court was a declaration of the Court. The Appellant submitted that by the position of Order 3, Rule 2 of the Federal High Court Rules, the right mode of commencement could hence only be by Writ of Summons and no way else. The case was commenced via an Originating Motion and the position of the Applicant at the Trial Court as contained in Paragraph 7 of its Affidavit in support of its Originating Motion was countered and vehemently denied by the Respondent in his counter-Affidavit to the said Originating Motion, particularly as contained in paragraph 4, 5, 7 and 8 of the Counter-Affidavit which allude to facts radically different from the position of the applicant. See Pages 5-6 and Pages 56-58 of the Record of Appeal.

The Appellant submitted that it is trite and quite elementary law that in a case where there is

dispute as to facts, the mode of commencement of such an action has to be by Writ of Summons. See MACAULAY & ORS V. ATA & ORS – (2013) LPELR – 20883 (CA). The Appellant submitted further that the trial Court did not have requisite jurisdiction to entertain the matter on two grounds; firstly, none of the parties before it was an agency of the Federal Government and secondly, the matter before it was initiated via a wrong procedure and was hence incompetent and by such incompetency robbed the Court jurisdiction to entertain same. See MADUKOLU V. NKEMDILIM (1962) 2 SC NLR 34.

The Appellant submitted that it is well trodden law that were there are radical conflicts on crucial facts as contained in affidavits of parties before a Court, the Court shall in the interest of justice call for oral evidence to resolve such conflicting affidavit depositions. See RABIU V. SUNMONU (2000) LPELR–9922 (CA) and also Section 116 of the Evidence Act 2011.

Finally, the Appellant submitted that the failure of the learned Trial Judge to call for oral evidence in the face of radial and hostile conflict of crucial material facts in the Affidavit

depositions of the parties before it occasioned a miscarriage of justice to the Appellant and urges the Court to hold so.

ISSUE TWO
The Appellant referred to Section 20 of the Freedom of Information Act particularly the explanatory/marginal/side note to the section which states succinctly ‘Judicial Review’ imputes clearly that the redress as stated in the particular section was in the mode of an action for Judicial Review and no process. The Appellant further submitted that it is logical that when a statute says that in a process seeking redress one should approach the Court for review and the phrase ‘Judicial Review’ is used copiously in the side note to the said provision of the law; then any approach to Court for any redress as provided for by that provision should be one for Judicial Review and no other.

The Appellant contends that the action of the Respondent at the Trial Court via Originating Motion seeking declaratory reliefs was in contravention of the provisions of Section 20 of the Freedom of Information Act and hence incompetent.

ISSUE THREE
The Appellant states that it is settled law that Affidavit

deposition can only be countered by another affidavit of statement under oath failing which such depositions will be deemed as admitted. The Appellant in the Lower Court filed a Preliminary Objection which was supported by a 10 paragraph affidavit dated the 13th June 2016. The Respondent then failed to counter this Affidavit. The Appellant also filed a Counter Affidavit in opposition to the main Affidavit of the Originating Motion of the Respondent wherein they raised new issues especially in paragraphs 5, 7 and 8. The Respondent also failed to file a further or reply Affidavit to the Counter Affidavit of the Appellant.

The Appellant states that the trial Judge on a document dated 15th June, 2016 and titled “REPLY TO RESPONDENTS COUNTER AFFIDAVIT AND NOTICE OF PRELIMINARY OBJECTION” in resolving issues contained in both the Affidavit in support of the Preliminary Objection and Counter Affidavit of the Respondent in favour of the Applicant. The said document was not sworn nor on oath. See EZEAGU & ORS V. NWONU (2016) LPELR 40164 (CA).

The Appellant contended that the document titled “REPLY TO RESPONDENTS COUNTER AFFIDAVIT AND

NOTICE OF PRELIMINARY OBJECTION” is of the nature and category of an address by a counsel, and counsel cannot give evidence in an address and the Court cannot conversely admit or rely on such facts contained in the address of parties as evidence.
The Trial Judge held to wit:
“I hold that the Respondent by virtue of Section 31 of the Freedom of Information Act is a public institution.”

The Appellant states that the decision of the Trial Court was based on facts contained in the document titled “REPLY TO RESPONDENTS COUNTER AFFIDAVIT AND NOTICE OF PRELIMINARY OBJECTION”. They submitted that the trial Judge cannot rely on facts contained in the above mentioned document as evidence in the resolution of the case before it. It is finally their submission that even if the Court wanted to place reliance on information supplied in the above mentioned document; such assertion must be supported by cogent evidence as it is trite that he who asserts must prove.

ISSUE FOUR
The Appellant states that the Respondent in the Trial Court approached the Court via Originating Motion seeking declaratory reliefs aimed at redress

for a refusal to comply with certain provisions of the Freedom of Information Act 2011. In support of this case, the applicant filed nine (9) paragraphs affidavit and attached 2 Exhibits as evidence before the Federal High Court, EXHIBIT A being its letter requesting information from the Appellant, and EXHIBIT B being a copy of Certificate of Incorporation of the applicant with the Corporate Affairs Commission.

The Appellant states that nowhere was it stated within the 9 paragraphs of its Affidavit in support of its application before the Federal High Court did the Applicant state that the Respondent was a public institution, or that the Respondent provided public services while utilizing funds and finally, nowhere was it stated that the Respondent (a private non-governmental organization) was amenable to the provisions of Section 31 of the Freedom of Information Act.
The Appellant submitted vehemently that the decision of the Trial Court to wit:
“I hold that the Respondent by virtue of Section 31 of the Freedom of Information Act 2011 is a Public Institution.”

Appellant argued that the decision was not based on evidence,

Affidavit or documentary and hence amounted to an error of law by the Trial Judge and which occasioned an injustice to the Appellant. The Appellant contends that there was nothing in form of fact or evidence before the trial Court to have premised the decision of the Trial Court in favour of the Respondent.

RESPONDENT’S SUBMISSIONS
ISSUE ONE
The Respondent states that in the Appellants’ brief of argument, they submitted that since neither of the parties before the Trial Court was an agency of the Federal Government, the Trial Court lacks Jurisdiction to determine the suit. The Respondent submitted that the position is wrong in law. The jurisdiction of the Federal High Court as provided for under Section 251 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) includes but not limited to the matters listed there under, it reproduced Section 251(1). The provision above gives the National Assembly the jurisdiction to confer additional jurisdiction on the Federal High Court. Pursuant to this, the Freedom of Information Act conferred jurisdiction on the Federal High Court in matters of Freedom of Information, referred

to Section 31 of the Freedom of Information Act, which says:
“Court means a High Court or the Federal High Court.”

The Respondent submitted that by virtue of the combined effects of the Section 252(1) of the Constitution and Section 31 of the Freedom of Information Act, the trial Court had jurisdiction to hear and determine the case as constituted.

ISSUE TWO
The Respondent submitted that contrary to the Appellants argument, the suit was commenced the right mode of commencing an action for Judicial Review before the Federal High Court. They further submitted that Judicial Review is not a mode of commencement of action. Instead, it is relief sought from the Court, by any mode recognized by roles of Court. The Respondent suit is brought pursuant to Section 20 of the Freedom of Information Act is an invocation of the power of the Court to review the refusal of the Appellant to furnish the Respondent with the information sought.

The Respondent further state that the Appellants argument that the right mode of commencement could only be by Writ of Summons and no way else is misinformed and misleading.

Order 3 Rule 2 of the Federal High Court (Civil Procedure Rules) 2009 provides for mode of commencement of actions. The provision that only a writ is the general form of commencing an action for is therefore subject to Order 34 of the Federal High Court Rules which provides for the proper mode of commencing an action for Judicial Review.

The Respondent states that the suit was commenced by an Originating Motion, which is the right mode of commencing an action for Judicial Review before the Federal High Court. The Respondent submitted that the submission of the Appellant that the suit was commenced by the wrong mode is wrong and baseless.

ISSUE THREE
The Respondent submitted that a Further-Affidavit is not filed as a matter of course, but as a matter of necessity. See OGEDENGBE V. UNIVERSITY OF ILORIN & ORS (2014) I5 NWLR. The Appellant in its Counter-Affidavit neither denied nor refuted any of the depositions in the Respondents’ Affidavit. The Respondent states that the appellant in paragraph 6 of the said Affidavit admitted to their claim.

The Respondent states that the rule that a Court must call for oral evidence where there are conflicting affidavits can

only apply where there are material conflicting facts in the affidavits of parties. See EZECHUKWU V. ONWUKA (2016) 5 NWLR (pt. 1506) 529 at 548. From the position of the above case, the Respondent submits that the need to call for oral evidence wanes even farther where there is no conflict in the Affidavit of the parties. The Respondent further states that there were no conflicting facts in their Affidavit, the Appellant did not depose to any fact that refuted or contradicted the deposition of the Respondent, such that would amount to conflict in affidavit. See pages 5-6 of the Record of Appeal for the Respondents’ Affidavit and pages 84-85 for the Appellants’ Affidavit.

The Respondent submitted that the Appellant attached Certificate of Incorporation at the Corporate Affairs Commission (MARKED EXHIBIT VSFI) to support its claim of being a private organization. The Respondent argues that the claim of an organization not being or being a public institution is not determined by the type the company is registered at the Corporate Affairs Commission, but by the scope of its operation. Regarding company limited by guarantee, referred to

Section 26 (1) of the Companies and Allied Matters Act 2004. The Respondent states that from the above provision, it shows that VSFI (Appellant) the company is not for profit making purposes, and not that the company is not a Public Institution.

Furthermore, the Respondent states that the Appellant was established by the Presidential Committee on the Victims Support Fund, and that the Appellant sources funds from the public and renders support to victims of terrorism nationwide. These facts qualify the appellant as a Public Institution according to Section 31 Freedom of Information Act, citing PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD. V. ABAYOMI BABATUNDE (2007) LPELR-4826 (CA).

The Respondent submitted that there was neither any need for the Respondent to file a Further-Affidavit to the Appellants’ Counter-Affidavit nor for the Court to call for oral evidence.

ISSUE FOUR
The Respondent states that the Appellant has made heavy weather of facts which the Respondent failed to depose to in the Affidavit in support of its application. The Freedom of Information Act places the burden of denying liability on the public institution being sued,

referred to Section 20 of the Freedom of Information Act. Respondent argued that the Appellant has failed to discharge this burden, instead in paragraph 6 of its Counter-Affidavit the Appellant admitted to receiving the Respondents request for information, without giving any reason for denying the application.

The Respondent finally submitted that without any subsisting and valid defence to the Respondents’ suit, the learned Trial Judge was right in his Judgment and they were entitled to the Judgment of the lower Court. The Respondent submitted that on the strength of their argument, the Appeal lacks merit and urges the Court to dismiss it and uphold the decision of the lower Court.

APPELLANT’S REPLY
The Appellant reacted that the argument of the Respondent were misconceived and flawed. The Appellant states that Section 31 of the Freedom of Information Act by no means adds or imports additional Jurisdiction to the Federal High Court as the Respondent suggested, rather the section only defines the meaning of the word Court as used within the statute, and the said section can by no stretch of the imagination be said to have added or

increased the jurisdiction of the Federal High Court in the manner being suggested by the Respondent.

The Appellant states that their contention in issue one to whom the above paragraph of the Respondents brief seeks to resist was also that the matter before Federal High Court was also incompetent and also having commenced via wrong originating process and contrary to the provisions of Order 3, Rule 2 of the Federal High Court Rules which dictates the mode of commencement of actions. Referred to the case ofDAVID SABO KENTE V. DARIUS DICKSON ISHAKU & ORS (2017) LPELR-42077 (SC); where the Appellate Court pronounced on the effect of failure to commence a suit with a valid originating process.

The Appellant submitted that it is elementary and of quite pedestrian legal knowledge that an action seeking Judicial reliefs and an application solely for Judicial Review are different and distinct from each other; and the mode of commencement of each of the processes are also clearly different, citing ANYATONWU & ORS V. EZEDU & ORS (2018) LPELR-43809 (CA).

The Appellant states further that commencement of action seeking any form of judicial

reliefs come under Order 3 of the Rules of Court; while application for Judicial Review comes under Order 34 and the respective procedures are different as clearly spelt out therein. Furthermore, before an application for Judicial Review can be made at the Federal High Court, same must be brought within 3 months of the date of occurrence of the action complained about. The letter for request of information of the Respondent was dated the 9th June, 2015, same was received on the 10th June, 2015 and the said letter gave 7 days ultimatum for the recipient to comply with the request. The action of the Respondent was commenced in December 2015 outside the period of limitation stated by the Order 34 Rule 4 of the Federal High Court Rules for an application of judicial review. Appellant commended to the Court the case of ISMAILA & ORS V. CBN & ORS (2017) LPELR-43380 (CA) per OGAKWU, J.C.A which pronounced on how to commence an action for Judicial Review at the Federal High Court.

The Appellant further submitted that the Respondent did not meet the first requirement of the first stage in an application for Judicial Review and hence could not proceed to the

second stage of the application hence the argument of the Respondent that it intended its action before the Trial Court to have been regulated by Order 34 of the Federal High Court Rules and not under Order 3 of the said rules is strange and mischievous as the Originating Process stated clearly the order under which the matter was brought. The Appellant also contends that this line of argument was never raised by the respondent at the Trial Court and cannot be raised at this Court without leave of the Court being first sought, referred to EKWEBELAM V. EKWEBELAM & ANOR (2012) LPELR-20874.

The Appellant in response to the argument that there were multifarious, hostile, radical and material contradictions in the counter affidavit filed by the Appellant, it contends that documentary evidence such as EXHIBIT VSF1, being a document speaks for itself and counsel cannot give evidence explaining the contents of same as it is being sought to be done by the Respondent.

The Appellant further contends that the fact of the information of the Appellant, the type of entity it is, had clearly been stated by the Appellant in both its counter affidavit to the main

application of the respondent and in its Affidavit in support of its preliminary objection before the trial Court which were never denied by the Respondent. The Appellant states that the allegation by the Respondent regarding the Appellant’s source of funds which were facts never contained in its affidavit before the trial Court, they contend with emphasis that the duty of proving an assertion lies with the party who asserts and such cannot be shifted by the Respondent to the Appellant. The Appellant filed a 10 paragraphed Affidavit in support of its Preliminary Objection at the trial Court, to which the Respondent at the trial never denied, and it is trite law that such facts are deemed admitted.

Finally, the Appellant in response to the Respondent’s brief, clearly and unambiguously denied facts contained in the Respondents affidavit in support of its originating process before the trial notably, that it was not a public institution and further that it was not amenable to any of the provisions of the Freedom of Information Act.

The Appellant urges the Court to allow this Appeal and set aside the judgment of the trial Court in its entirety.

RESOLUTION
In view of the jurisdictional question put forward in this Appeal, it becomes the natural place to commence resolution. Jurisdiction is a basic need for any Court in adjudication, its importance has been stated in a plethora of decision, see IKPEKPE V WARRI REFINERY & PETROCHEMICAL CO LTD & ANOR (2018) LPELR-44471(SC) which reiterated the importance of jurisdiction thus:
“The importance of the jurisdiction of a Court cannot be over emphasized. The law is trite that jurisdiction is a threshold issue and livewire that determines the authority of a Court of law or Tribunal to entertain a case before it and it is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution or law that it will have the judicial power and authority to entertain, hear and adjudicate upon any cause or matter brought before it by the parties. Where a Court proceeds to hear and determine a matter without the requisite jurisdiction, it amounts to an exercise in futility and the proceedings and judgment generated therefrom are null, void and of no effect no matter how well conducted.

See Nigeria Deposit Insurance Corporation v Central Bank of Nigeria & Anor (2002) 7 NWLR (pt. 766) 273, Shelim & Anor v Gobang (2009) 12 NWLR (pt. 1156) 435, Utih v Onoyivwe (1991) 1 NWLR (pt. 166) 205, Petrojessica Enterprises Ltd & Anor v Leventis Technical Co. Ltd (1992) 5 NWLR (pt 244) 675.” Per OKORO, J.S.C.
The case of MADUKOLU V NKEMDILIM (1962) LPLER-24023(SC) stated how jurisdiction can be determined in a matter, it held:
“Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the

defect is extrinsic to the adjudication.” Per BAIRAMIAN, J.S.C.
It is settled that how a suit is initiated is one important factor in determining jurisdiction.
The Appellant in this Appeal argues that the claim was not initiated as required by law. It argues it in different phases, the beginning is that the Federal High Court has no jurisdiction over the parties. The jurisdiction of the Federal High Court is donated by Section 251(1) of the 1999 Constitution (as amended) and it was interpreted in several cases. The apex Court in CENTRAL BANK OF NIGERIA V OKOJIE (2015) LPELR-24740(SC) per RHODES-VIVOUR JSC held thus:
“Under Section 251(1) (a) to (s) of the Constitution, the Federal high Court would have exclusive jurisdiction if and only if:
a. The plaintiffs action is one of the causes of action under Section 251(1) (a) to (s) of the Constitution.
b. The parties or a party must be of the Federal government or an agency of the Federal government.
c. There must be a claim for/against the Federal government or an agency of the Federal Government.
(a), (b) and must be present before a Federal High Court can have jurisdiction

under Section 251(1) of the Constitution.”
The same Section 251(1) of the Constitution provides that notwithstanding anything to the contrary contained in the Constitution and in addition to such other jurisdiction as may be conferred upon it by an act of the National Assembly, the Federal High Court shall have jurisdiction as stated in the section. It is settled that legislation can increase the jurisdiction of the Federal High Court because jurisdiction is general given by the Constitution or by statute. Therefore, a statute can increase the said jurisdiction of the Federal High Court. However, even when such has increased, other elements listed in the case of CBN V OKOJIE (supra) must be present particularly where the Federal High Court is not given exclusive jurisdiction over the subject matter as in the case of the Freedom of Information Act. Section 31 of the FOI Act bestows jurisdiction to both the High Court and the Federal High Court. Therefore, to go the Federal High Court, a party has to possess additional qualification to satisfy the circumscribed factors of parties and claim against an agency of the Federal Government. Those who do not

have any of the qualifications cannot just approach the Federal High Court. In this appeal the subject matter is not exclusive to the Federal High Court, none of the parties belong to the Federal Government or any of its agencies and the claim is not against the Federal Government or any of its agencies. Respondent’s reliance on Section 31 of the FOI Act did not say only the Federal High Court has jurisdiction. The jurisdiction is shared with other High Courts.
Furthermore, the Respondent commenced the suit by way of Originating Motion supported by Affidavit and by the nature of the claim and relief wherein the Respondent sought for declaratory relief, the rules of the Federal High Court by Order 3 Rules 2 requires that a party seeking a declaratory relief; he should commence the suit by a Writ of Summons. The Respondent commenced the claim by Originating Motion and stated on it that the application was brought pursuant to Order 3 Rule 1 of the Federal High Court Rules and some sections of the FOI Act. Clearly, the Originating Motion breached the Order under which it was filed. The Respondent in his arguments submitted that the Originating summons

was meant to have been brought under Order 34. It is obvious that a Writ of Summons is different from Originating Motion and the mode of commencement for each is also different, seeACB PLC V NWAIGWE & ORS (2011) LPELR-208(SC). An application for Judicial Review must come under Order 34 of the Federal High Court. The suit was not brought under Order 34 and to also qualify for the procedure, a party would require to first seek leave before filing the application for Judicial Review, the application must be supported by a statement of description, a Verifying Affidavit and a Written Address in support. All these are missing. So the suit was not brought for Judicial Review as the Respondent contends and because it was a claim that should have commenced by way of Writ of Summons, it is incompetent and cannot activate the jurisdiction of the Court as held in DAVID SABO KENTE V DARIUS DICKSON ISHAKU & ORS (supra) thus:
“Consequently, failure to commence a suit or appeal with a valid originating process is a fundamental error. It goes to the root of the action or appeal since the condition precedent for the exercise of the Court’s

jurisdiction would not have been met to place the suit or appeal before the Court for the exercise of its jurisdiction to hear and determine the issues in the action or appeal. See KIDA V OGUNMOLA (2006) 13 NWLR (Pt. 997); BRAITHWAITE V SKYE BANK PLC (2012) LPELR-15532(SC). it cannot be overemphasized that unless the action or appeal was initiated in accordance with the due process of law, which includes its commencement by or with a valid initiating or originating process, it or with a valid initiating or originating process, it is incompetent. See MADUKOLU V NKEMDILIM (supra). The proceedings in such action or appeal remain a nullity ab initio, no matter how well the proceedings were conducted. See TIMITIMI V AMABEBE 14 WACA 379. Courts do not exercise their given jurisdiction in futility.” The Appellant identified additional defects which totally destroys the argument of the Respondent in justifying the mode it initiated the claim, Appellant referred the Court to the failure to make the application within 3 months of the cause of action as required by Order 34. It highlighted relevant dates leading to the initiation of the suit which floors all

the Respondent contentions. The Respondent obviously proceeded oblivious of Order 34 and cannot therefore want to change the character of how the claim was initiated at this late stage.
From above, the proceedings leading to the Judgment appealed against, it is a nullity for want of jurisdiction and therefore, this Court too lacks jurisdiction.

The Appeal should have ended at this stage by an order striking out the suit at the trial Court. However, in obeisance to the admonition of the apex Court that this being an intermediate Court, it should always consider all the issue presented for resolution in case the Appeal gets to the apex Court to give them a full view of the decision of this Court, I shall therefore proceed to determine the other issues, see IKPEAZU V OTTI & ORS (2016) LPELR-40055(SC) where it held:
“It is imperative for the Court below to make a definite finding on the issue presented before it and to resolve same in one way or the other; bearing in mind the necessity of doing so this Court has admonished the Court of Appeal, particularly as an intermediate Court to pronounce on all issues arising or raised in an appeal before it,

even if the appeal had been disposed of by only some of the core issue(s) for determination: See KATTO v CBN (1991) 9 NWLR (PT. 240) 126 at 149: OKONJI v NJOKANMA (1991) 7 NWLR (PT. 202) 131 at 150: CHUKWU v SOLEH BONEH (2000) 2 SCNJ 18 at 38.” Per GALADIMA , J.S.C.

I shall proceed to determine the other issues formulated by the Appellant and adopted by the Court.
Under issue two Appellant asked whether an action under the FOI Act can come by other forms other outside Judicial Review. He referred to Section 20 of FOI Act is instructive, it says:
“Any applicant, who has been denied access to information; or a part thereof, may apply to the Court for a review of the matter within 30days 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.”
It is also evident that by the marginal notes to above quoted section says ‘Judicial Review’ and the import of marginal notes was reiterated in the case of SKYE BANK V IWU (supra) per KEKERE-EKUN JSC said:
“While it is trite that the

marginal note to a selection does not form part of an enactment, it is helpful in determining its purpose or the mischief it is aimed at. See: IDEHEN V IDEHEN (1991) 6 NWLR (Pt. 198) 382; O.S.I.E.C V A. C. (2010) 12 SC (Pt. IV) 108.”
In the same judgment, on marginal 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, it 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. Judicial review was explained by the Court in HADEJIA V LADAN & ORS (2018) LPELR-45638(CA) thus:
“Judicial review is the supervisory jurisdiction of the High Court exercised in the review of the proceedings, decisions and acts of inferior Courts and Tribunals and acts of governmental bodies – Nwaogwugwu Vs President, Federal Republic of Nigeria (2007) 6 NWLR (Pt. 1030) 237,

African Continental Bank Plc Vs Nwaigwe (2011) LPELR 208(SC). Judicial review, or judicial control, is founded on a fundamental principle inherent throughout the legal system that powers can be validly exercised only within their true limits. It is a mechanism for keeping public authorities within due bounds and for upholding the rule of law. Instead of substituting its own decision for that of some other body, as happens when on appeal, the Court on review is concerned only with the question whether the act or order under challenge should be allowed to stand or not. The Court is concerned with the legality and not the merits of the decision or acts of the public authority – Amadi Vs Acho (2005) 12 NWLR (Pt. 939) 386 and Bamaiyi Vs Bamaiyi (2005) 15 NWLR (Pt 948) 334.” Per ABIRU, J.C.A.”
The essence of Judicial Review, or judicial control, is founded on a fundamental principle inherent throughout the legal system that powers can be validly exercised only within their true limits. It is a mechanism for keeping public authorities within due bounds and for upholding the rule of law and this fits into the fundamentals of FOI which is directed at public,

agencies, officers and bodies exercising public duties. The provision of Order 34 fits into Section 20 of FOI and the description of judicial review. It can be safely concluded that Judicial Review is the format to adopt in applying for the enforcement of the FOI Act. I agree with the Appellant that Judicial Review is the appropriate procedure because even Order 34(5) named the manner the application under Judicial Review should take. The refusal to give requested information is an act and a decision that can be reviewed by the Court. The argument of the Respondent that the suit was commenced by Originating Motion, a mode allowed under Order 34 is not as simply presented there are steps to be taken before the filing of the originating motion. Originating Motion is allowed upon certain preconditions such as leave of Court and to be so made within 30 days of the refusal. It cannot be outright filing of Originating Motion when conditions precedent remain unfulfilled. I resolve issue in favour of the appellant.

The Appellant further question whether the trial Court could have relied on a document not proper in law to decide the application when, the

Preliminary Objection supported by an affidavit was not contested and when the substantive application was decided on affidavits. It is trite that where facts in an Affidavit are not challenged, they are deemed admitted, see AKITI V OYEKUNLE (2018) LPELR-43721(SC) which held thus:
“I must state that depositions in affidavit on material facts resolve applications in Court. Where depositions on material facts in an affidavit in support of an application are not denied by the adverse party filing a counter-affidavit, such facts not denied in the affidavit in support remain the correct position and the Court acts on them except they are moonshine. Material facts in a counter-affidavit not denied by a reply affidavit are the true position. It is only when the affidavits cannot resolve facts that parties are invited to lead evidence in proof of the facts they deposed to See AKINSETE V. AKINDUTIRE (1966) 4 NSCC P. 157; EBOH V. OKI (1974) 9 NSCC P. 29; NATIONAL BANK (NIG) LTD V. THE ARE BROTHERS NIG LTD (1977) 11 NSCC P. 382; ALAGBE V. ABIMBOLA 1978 2SC P. 39.” PER RHODES-VIVOUR , J.S.C.

The Appellant filed a Counter Affidavit to the Originating Motion

which was not countered by the Respondent and therein new facts were deposed to, particularly paragraphs 5, 7 and 8. They are deemed admitted too. However, instead of deciding the suit on the Affidavits validly before the Court, the Court relied on facts in a document titled Respondent’s Counter Affidavit and Notice of Preliminary Objection which was a Written Address and not a Counter Affidavit (page 106 of the Record of Appeal). Agreed that a party is under no duty to file a further and better Affidavit, however, new facts which the party considers relevant cannot come in by way of a Written Address. The Appellant had denied being a public institution therefore, the burden shifts to the Respondent who asserts the positive to so prove that the Appellant is a public institution that the FOI Act should apply. This is on compliance with the Evidence Act that the burden is on he who asserts the positive, the Apex Court in DASUKI V FRN (2018) LPELR-43897(SC) held:
“The law is settled: he who asserts must prove. That is the essence of Section 131(1) of the Evidence Act, 2011. The burden of proof in every suit or proceeding lies on the party who will fail

if no evidence at all were given on either side: Section 132 of the Evidence Act.”Per EKO, J.S.C.
The trial Judge erroneously relied on new facts stated in the written address to decide the claim. It is settled beyond citing of authorities that counsel address no matter how brilliant cannot take the place of evidence, see OFORISHE V NIGERIAN GAS CO. LTD (2017) LPELR-42766(SC) wherein the Apex Court held thus:
“I must remind counsel that the main purpose for address is simply to assist the Court. Cases are decided not on address or alluring closing speeches but on credible evidence. So no amount of brilliant address can make up for lack of evidence to resolve any issue before the Court. See Niger Construction Ltd v. Okugbeni (1987) 4 NWLR (Pt. 67) p. 787; N.E.W. Ltd v. Denap Ltd (1997) 10 NWLR (Pt. 525) p. 481 Okuleye v Adesanya (2014) 6-7 SC (Pt. 1) p. 1.” Per RHODES-VIVOUR, J.S.C.
A breach occurred when it relied on the submission of learned counsel to find that the Appellant though a private body enjoys public funds and also provides services to victims of terrorism and therefore a public body. Prior to the address the Respondent never

stated in any affidavit that the Appellant enjoys public funds. If it was no evidence before the Court, will the Court rely on address of counsel to fill in the missing link? Absolutely not. The action is perverse and the decision founded on such facts which is not part of the evidence is also perverse and must be set aside.

The Respondent addressed the angle that the Affidavits were not conflicting, so there was no need for oral evidence to be called. It trite that oral evidence is only called when the conflict in affidavits are material and fundamental, when it affect substantial issues in the matter.

The final question to resolve is whether there was evidence so as to justify the Judgment of the Trial Court. It is obvious that the trial Court’s evaluation of evidence was not properly done or was tainted with perverse material as resolved above. Furthermore, the jurisdictional issue further compounded the decision arrived at. Looking at the evidence, the fundamental question is upon the Appellant’s denial of being a public institution, was there evidence to counter it? A public institution going by the definition in

Section 31 of the FOI Act says:
“Public institution means any legislative, executive, judicial administrative or advisory body of the government including board, bureau committees or commission of the state and any subsidiary body of those bodies including not limited to committees which are supported in the whole or in part by public funds or which expends public services, performing public functions or utilizing public funds.”
The underlining issue is public funds and this can be seen in the request sent out by the Respondent. They seek to know how public funds are expended. Before you can ask for account, you need to show public funds were indeed received by the public institution. In any case, the Appellant averred that they were merely a registered company under Part C and denied being funded by public funds. To make progress, the Respondent must establish that they received public funds and there is no such evidence before the Court below. Therefore, the weight of evidence is against the Respondent. I also find for the Appellant under issue four.

Now, having resolved all the four issues against the Respondent, the Appeal is meritorious and is

hereby allowed. The Judgment of the Trial Court in NO: FHC/ABJ/CS/980/2015 delivered on the 19th December, 2016 is hereby set aside.
No order as to cost.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother Yargata Byenchit Nimpar, JCA.
My brother has sufficiently dealt with all the issues raised in this appeal.
I am in agreement with his reasoning which I adopt as mine and his conclusion that there is merit in the appeal. I too do dismiss this appeal for lacking in merit.
I abide by all the consequential orders made in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: My learned brother YARGATA NIMPAR, JCA afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.

Appearances:

EKO EJEMBI EKO Esq., with him, E. A. SIMON Esq., I.W. ZION Esq., E. K. EJELLE Esq. and O.N. BAMISAYEMI Esq. For Appellant(s)

AGADA ELACHI Esq., with him, TINUADE B. OYINLOYE Esq. For Respondent(s)