ELUKPO v. MEDICAL DIRECTOR, FMC, LOKOJA
(2021)LCN/15023(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, February 12, 2021
CA/A/813/2018
RATIO
LEGISLATION: PURPORT OF THE FREEDOM OF INFORMATION ACT
The Freedom of Information Act has given access to any member of the public to public records of the Respondent subject to the exceptions set out in the Act itself. The Act was enacted with the desired intention of making public records and information freely available to any interested members of the public. This no doubt is to expose public institutions to openness and accountability in respect of their basic dealings and decisions on issues of interest to the public. The Act in an ambitious manner prescribes in Section 1(3) that 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 the Act. PER STEPHEN JONAH ADAH, J.C.A.
LEGISLATION: DUTY OF AN APPLICANT BEFORE APPROACHING AN AGENCY OR A PUBLIC BODY UNDER THE FREEDOM OF INFORMATION ACT
In the first place, the Freedom of Information Act anticipates that before an applicant can approach an Agency or a public body, the applicant should have or to have a reasonable belief that the information is within the grips of the Applicant. An applicant seeking for “confirmation of receipt of an information” from another Government Agency of the information sought is not certain that the Respondent is in possession of the information he is compelling to divulge. The Freedom of Information Act does not give any room for an applicant to send a respondent on a goose search for an information outside its domain before divulging it. PER STEPHEN JONAH ADAH, J.C.A.
WRIT: THE WRIT OF MANDAMUS
Mandamus has been classically defined as a writ issued from a Court of competent jurisdiction commanding an inferior Tribunal, board or corporation to perform a purely ministerial duty or mandatory duty where there is a clear legal right in the plaintiff and a corresponding duty on the dependent and a want of any other appropriate and adequate Remedy. See Ayida & Ors. v. Town Planning Authority & Anor. (2013) LPELR (2013) LPELR-40410, Amasike v. The Registrar General C.A.C (2010) LPELR – 456 (SC) and Associated Discount House Ltd v. The Hon. Minister of FCT (2013) LPELR 20088 (SC) where Ariwoola, JSC, gave the nature of Mandamus to include the facts that the Order of Mandamus will only issue to a person, body or persons or co-operation requiring him or them to do some particular thing therein special which pertains to his or their office and it is in the nature of a public duty. There must be a public duty and not merely a discretionary right in the proposed recipient of the Order. A situation where the appellant is seeking for a confirmation of an information not within the domain of the Respondent cannot be subjected to an order of Mandamus. PER STEPHEN JONAH ADAH, J.C.A.
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
J.A.N. ELUKPO APPELANT(S)
And
MEDICAL DIRECTOR, FEDERAL MEDICAL CENTRE, LOKOJA RESPONDENT(S)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, sitting in Lokoja, Kogi State, delivered on the 18th day of March, 2018, by D.U. Okorowo, J.
The appellant as the applicant before the trial Court commenced this action vide an Originating Motion on Notice for Judicial Review. The Motion is dated 12th day of December, 2017 and filed on the 21st December, 2017. The applicant was pursuant to Order 34 Rule 5(1) of the Federal High Court Civil Procedure Rules. 2009 and Sections 2(1), (2) and (3) of the Freedom of Information Act. The applicant sought for the following reliefs:
1. An Order of Mandamus compelling the Respondent to supply to the Applicant, the documents and information sought and the accompanying (Exhibit A).
2. AND for such order or orders as the Honourable Court may deem fit to make in the circumstances.
The application was supported by a 6 paragraphs affidavit and Exhibits A and B as well as a Written Address. The respondent, in reaction also filed a 6 paragraphs counter-affidavit and a Written Address.
In a considered judgment of the trial Court
1
delivered on the 18th day of March, 2018 declined and dismissed the application.
Dissatisfied with the said decision, the appellant appealed to this Court vide a two-ground Notice of Appeal filed on the 5th day of April, 2018. The record was transmitted to this Court on the 31/08/2018 but deemed properly filed and served on the 10/09/2020.
In line with the rules and practice of this Court, parties field and exchanged their respective briefs of argument. Appellant’s brief was filed on the 3rd March, 2018, but deemed properly filed and served on the 10th September, 2020, wherein counsel distilled two issues for determination of this appeal, thus:
1. Whether the Court was right by not ruling that the respondent should reply the letter of the appellant and furnishing him with the required information and documents (Ground 1 of the Appeal).
2. Whether the lower Court was right when it ruled that the respondent has nothing to do with the correspondence in which the name of the respondent was number (2) two on page 15 of the Records? (Ground 2 of the Appeal).
In response, counsel for the respondent distilled a sole issue for the
2
determination of this appeal in the respondent’s brief filed on the 14th November, 2018 but deemed properly filed and served on the 10th September, 2020. The sole issue is:
Whether the lower Court was right when it dismissed the application of the Appellant.
This appeal shall be considered on the two issues formulated by the appellant. I now start with issue one.
Issue One:
This issue is – whether the Court was right by not ruling that the respondent should reply the letter of the appellant and furnishing him with the required information and documents.
Counsel for the appellant while arguing this issue stated that the Freedom of Information Act 2011, empowers the appellant to demand for public information and records. He relied on the Section 2(1) of the Act. That the respondent was bound to reply the request of the appellant. He posited that if the respondent was not in possession of the facts required by the appellant, that Section 6 of the Act mandates the respondent to transfer the request of the appellant to the appropriate body. He submitted that the lower Court failed or refused to direct the respondent accordingly.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
3
In response, counsel for the respondent while arguing its own sole issue, submitted that the lower Court was right when it dismissed the application of the appellant before it. He reproduced the reliefs of the appellant before the trial Court and the trial Court carefully addressed the issues as formulated. That the facts deposed to in the paragraph 3(d) of counter affidavit was not controverted by the applicant. He cited Yakubu v. ANPP (2014) All FWLR (Pt. 715) P. 395 at 410, Para. H and Wheels & Brakes Ltd v. Odo (2014) All FWLR (Pt. 717) P. 773 at P. 786, Paras. C – D. He argued that the argument canvassed by the appellant in his brief of argument in support of the issues are of no moment. That the law does not impose a responsibility on the Court to grant reliefs not prayed for. He cited NIDOCCO Ltd. v. Gbajabiamila (2014) All FWLR (Pt. 724) P. 1 at P. 38 Paras. E – F.
Contrary to the argument and submission of the appellant that the lower Court refused to direct the respondent according to Section 6 of the Freedom of Information Act, 2011, counsel submitted that such argument is inappropriate. That the appellant cannot by this
4
appeal be making a different case that the Court ought to have directed the respondent in line with Section 6 of the Freedom of Information Act, 2011. That such citation is erroneous. He relied on Stanbic IBTC Bank Plc v. L.G.C Ltd (2015) All FWLR (Pt. 790) P. 1286 at P. 1299, Paras B – C, Chitra Knitting and Weaving Manufacturing Company Ltd v. G.O. Akingbade (2016) All FWLR (Pt. 857) P. 503 at P. 528, Para. E. He urged the Court to hold that this appeal is making a claim different from the reliefs set out before the trial Court and to dismiss the appeal.
On issue of the appellant’s brief, counsel canvassed that the appellant is beclouded with sentiment. He stated the trite position of the law that Originating Motions or Motions generally are heard on affidavit evidence. That the appellant attached the letter to is affidavit with the intention that the Court rely or interpret same. That the complaint of the appellant in his brief was made on the perusal of the exhibit he urged the Court to look at, which is the basis for his entire suit. That the Court cannot take notice of the content without adequately determining parties to whom the letter
5
was addressed. He cited Odum v. Chibueze (2016) All FWLR (Pt. 848) P. 714 at P. 749 Paras. A – C. He urged the Court to hold that the appellant having placed the document complained against before the Court, that the trial Court was right to make the inference without any judicial summersault. He urged the Court to dismiss the appeal.
On point of law, counsel for the appellant pointed out that the Freedom of Information has stipulated the steps and procedure to be taken by the respondent and not until the matter is litigated before responding to the appellant. That the respondent did nothing when it was published that the sum of money was given to his hospital. That the respondent did not show any evidence that the money was not paid to him. He stated that the Freedom of Information empowers the respondent to direct the demand of the appellant to whoever was in possession of the required documents.
The heart of this appeal is the refusal of the trial Court to accede to the request of the appellant for information under the Freedom of Information Act. The Freedom of Information Act has given access to any member of the public to public records
6
of the Respondent subject to the exceptions set out in the Act itself. The Act was enacted with the desired intention of making public records and information freely available to any interested members of the public. This no doubt is to expose public institutions to openness and accountability in respect of their basic dealings and decisions on issues of interest to the public. The Act in an ambitious manner prescribes in Section 1(3) that 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 the Act. The appellant under Act brought an application to the lower Court for an order of Mandamus compelling the Respondent to supply to the Appellant the documents and the information sought in the accompanying Exhibit A. Exhibit A is at page 14 of the Record of Appeal. The information demanded for in Exhibit A is expressed as follows:
1. Confirmation that you received or otherwise, the sum of N28,000,000.00 (Twenty-Eight Million Naira) only from the Federal Ministry of Health for payment of (sic) contracts executed in Seven
7
Federal Medical Centres, of which yours was one of them. A copy of the letter dated 28/3/2017 is hereby enclosed for ease of reference.
2. The project executed with the money.
3. The contractors and their particulars including bills of quantities.
4. Contract procedure employed for the award/awards.
The appellant from Exhibit A is seeking for confirmation of whether the Respondent required a sum of money (N28,000,000) sequel to a letter dated 28/3/2017 from the Federal Ministry of Health. The said letter is at page 15 of the Record. The letter was from the Federal Ministry of Health and was addressed to the Executive Secretary, National Health Insurance Scheme, Abuja.
The Respondent in a counter-affidavit paragraph 3(a), (d) and (e) averred as follows:
(a) That the Applicant demanded for certain documents from the Federal Medical Centre, Lokoja which are not in possession of the centre.
(b) …
(c) …
(d) That the Respondent did not receive any sum of money for contract covered in the letter from the Federal Ministry of Health to the National Health Insurance Scheme and so has nothing to give anybody.
8
(e) That at no point in time has the Federal Medical Centre, Lokoja ever failed, ignored or refused to supply the Applicant with documents or information which he is entitled to.
The learned trial judge in his judgment made the following findings and conclusion at page 58 of the Record of Appeal as follows:
The Respondent denied the existence of the documents as they stated in paragraph 3(a) of the Respondent Counter Affidavit, that letter demanded for documents that were not in possession of the institution and does not exist at the centre. The letter was not addressed to the Federal Medical Centre Lokoja. It is a correspondence between the Federal Ministry of Health and the National Health Insurance Scheme which the Respondent did not initiate nor shown to have been copied the correspondence. The Respondent has nothing to do with the correspondence even though they were mentioned as beneficiary of the contract for which funds were earmarked. The Applicant has not shown that Respondent is in position to satisfy the demands contained in the letter to warrant the order of mandamus to issue.
The reliefs sought in the Application is declined. The suit is dismissed.
9
From the record before this Court, the learned trial judge cannot be faulted here. In the first place, the Freedom of Information Act anticipates that before an applicant can approach an Agency or a public body, the applicant should have or to have a reasonable belief that the information is within the grips of the Applicant. An applicant seeking for “confirmation of receipt of an information” from another Government Agency of the information sought is not certain that the Respondent is in possession of the information he is compelling to divulge. The Freedom of Information Act does not give any room for an applicant to send a respondent on a goose search for an information outside its domain before divulging it. In the instant case, the Respondent in the counter affidavit emphatically said they do not have the information. There was no further affidavit from the applicant to provide further information that would belie the position of the respondent in this case. Furthermore, when an applicant approaches a Court to compel a Court, Tribunal of authorities, he is like in the instant case calling for Order of
10
Mandamus. Mandamus has been classically defined as a writ issued from a Court of competent jurisdiction commanding an inferior Tribunal, board or corporation to perform a purely ministerial duty or mandatory duty where there is a clear legal right in the plaintiff and a corresponding duty on the dependent and a want of any other appropriate and adequate Remedy. See Ayida & Ors. v. Town Planning Authority & Anor. (2013) LPELR (2013) LPELR-40410, Amasike v. The Registrar General C.A.C (2010) LPELR – 456 (SC) and Associated Discount House Ltd v. The Hon. Minister of FCT (2013) LPELR 20088 (SC) where Ariwoola, JSC, gave the nature of Mandamus to include the facts that the Order of Mandamus will only issue to a person, body or persons or co-operation requiring him or them to do some particular thing therein special which pertains to his or their office and it is in the nature of a public duty. There must be a public duty and not merely a discretionary right in the proposed recipient of the Order. A situation where the appellant is seeking for a confirmation of an information not within the domain of the Respondent cannot be subjected to an order of Mandamus.
11
The learned trial judge in all the circumstances of this case cannot be faulted for the decision he gave refusing the order of Mandamus. This issue is therefore resolved in favour of the Respondent.
Issue Two:
This issue is – whether the lower Court was right when it ruled that the respondent has nothing to do with the correspondence in which the name of the respondent was number (2) two on page 15 of the Records?
Counsel for the appellant on this issue posited that the lower Court digressed or was biased when it stated that the respondent has nothing to do with the correspondence even though they were mentioned as beneficiary of the contract for which funds were earmarked and released. That said statement was made suo motu by the trial judge without allowing the respondent to supply the information sought by the appellant.
Counsel urged the Court to reverse the judgment of the lower Court and resolve in favour of the appellant to enable the respondent comply by supplying the information sought to the appellant.
The learned trial judge in this case took his time to evaluate the evidence adduced before him by assessing
12
the affidavits deposed in this case.
The communication involved was not addressed to the Respondent. It was a communication between the Federal Ministry of Health, Office of the Permanent Secretary and the Executive Secretary, National Health Insurance Scheme at Plot 297, Yar’adua Way, Utako, Abuja. It is reproduced at page 16 of the Record of Appeal. This communication was not indicated to be copied by the Respondent. There is therefore, no how one would hold it that the Respondent have anything to do with the correspondent.
From the circumstances of the case, it is excellently clear that the respondent had not been in the domain of the information sought by the appellant. The learned trial judge was therefore, right to come to that same conclusion that the respondent had nothing to do with the correspondence.
From the foregoing therefore, I come to the conclusion that this appeal is lacking in merit. The appeal is accordingly dismissed. Parties are to bear their respective costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, STEPHEN JONAH ADAH, JCA and I am
13
in agreement with his reasoning and conclusion arrived at therein.
MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; STEPHEN JONAH ADAH, JCA. I agree with the reasoning, conclusion and orders therein.
14
Appearances:
A.S. ELUKPO, ESQ. For Appellant(s)
C.P. OCHEJA, ESQ. with him, E.A. MEJABI, ESQ. For Respondent(s)
