CIVIL Society Organisations (CSO) and a lawyer have condemned the court ruling against the International Centre for Investigative Reporting (ICIR), challenging the denial of information requested through the Freedom of Information (FoI) from the Police Mortgage Bank.
A judge of the Federal High Court, Abuja, E. U. Akpan, had ruled that The ICIR lacked locus standi to challenge public institutions refusal to grant a request the media organisation made through the FOI Act in court.
Akpan premised his ruling on the argument that Part C (now Part F) of the Companies and Allied Matters Act (CAMA) under which The ICIR was registered, made no provision for any organisation registered under that part to challenge such a case in the court.
Backstory
In the early months of 2023, The ICIR was investigating former inspectors-general of police and other top officers accused of bribery in a shady land sale of designated police barracks.
The Police Mortgage Bank played a significant role in the deal. Documents obtained and reviewed by The ICIR, which include court affidavits, allege that top police officers assisted the contractor in forging the signature of a late deputy inspector general of police to secure the contract for the project.
The contractor used the allegedly forged document to obtain a loan of N573 million from the Nigeria Police Mortgage Bank and also used the houses on the land as collateral, thus short-changing the Police.
To provide adequate insight into the allegations, The ICIR wrote the Nigeria Police Mortgage Bank through the FoI Act to provide relevant information on the matter.
The ICIR wrote to the bank on September 7, 2023. The bank via a letter dated September 15, 2023, replied to this organisation, stating that it would not accede to the request.
It said releasing the information would breach its customers’ privacy, adding that doing so constituted an invasion of personal privacy under section 14(1 )(a) of the FoI Act.
The case
The ICIR went to court to challenge the bank’s failure to provide information on the N573 million it released to Corpan International Limited for estate development between 2015 and 2017. Information sought included the loan description, procedures followed, the collateral and the status used.
In the suit no: FHC/ABJ/CS/ f 630/2023, The ICIR, through its counsels, Saidu Muhammad Lawal, Kabiru Ahmad, Muhammad Mujahid Muhammad, Paul Adedapo Adewuyi, Progress Ailakhuaye Imoudu, from Spectrum Legal Services, sought an order of mandamus compelling the respondent to supply the information requested by the applicant in its request dated September 7, 2023.
However, the judge declared that the litigant lacked the locus standi to approach the court over the case, and consequently struck out The ICIR’s case.
The defendant’s counsel contended that the bank was not a public institution but a limited liability company with shares that could be quoted and purchased by the general public beyond just police officers and that disclosing its customers’ information to the applicant would violate the customers’ right to privacy as enshrined ni Section 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
He posited that the applicant was fighting a personal fight against the respondent for personal benefit, and not for public interest.
Upon the receipt of the originating process, the respondent on April 15 filed its counter affidavit signed by Oladimeji Ekengba, its lawyer. The bank sought to know: “whether the applicant’s case ought not to be dismissed by the court.”
Ekengba contended that the bank was not a public entity but a private organisation, adding that the court lacked jurisdiction to grant an order of mandamus against a private body or entity.
He further argued that the court lacked the jurisdiction to compel by order of mandamus the defendant who is not a public institution to perform a duty ti did not owe the applicant. He said the suit constituted an abuse of the court process.
Disagreeing with the bank’s counsel, The ICIR’s lawyer argued that the respondent is a public liability company with shares that could be quoted and purchased by the public beyond just police officers.
Therefore, he cannot shield the bank from obligations under the FOI Act; adding that despite being a public limited liability company, the bank is a “public institution” within the context of the Act by virtue of Section 2(7) and Section 31 of the FOI Act.
He submitted further that the Nigeria Police Force, an agency of the Federal Government, “is the most significant contributor to the bank”, with over N8 billion as of the time of the trial.
While urging the court the grant the applicant’s reliefs, he argued further that the NPF had a controlling interest in the bank, stressing that the bank never denied this.
Lawyer, CSOs condemn ruling
Activist and lawyer, Deji Adeyanju expressed shock over the ruling and described it as ‘pervasive’.
“I believe the judgment is perverse for a number of reasons. The only grounds upon which an FOI request may be refused are as captured in the FOI Act, not CAMA. By virtue of being a registered entity, the applicant enjoys the same privilege as a natural person. The FOI Act says any person can seek information under the Act.
“The issue of locus standi was wrongly addressed by the trial court in the instant case. Locus simply means the right to sue. FOI only talks about use of the requested information and the privacy of the holder but doesn’t determine who has the right to sue for such information.”
Adeyanju said the judgment must be appealed. He noted that locus had been determined by some Supreme Court judgments, “and it is unfortunate for any court to deny access to information that affects millions of Nigeria simply on the basis of locus. If an international centre for journalism has no right to access such information, then who has the right?”
Reacting, the deputy executive director at Media Rights Agenda (MRA), Ayode Longe, said the judge made his ruling out of mischief or ignorance, adding that it was a miscarriage of justice.
He said claiming that The ICIR lacked locus standi to challenge the FOI denial case in court because of CAMA was mischievous.
According to him, the Act establishes in very clear terms the right to information for every person and it does not discriminate against natural and legal persons.
“It states in Section 1(1) that: ‘Notwithstanding anything contained in any other Act, law or regulation, the right of any person to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution howsoever described, is established.’ By implication, The ICIR is entitled to ask for any information that falls within the purview of the FOI Act.
“Again, Section 1(3) of the FOI Act states 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 this Act.’ This provision is complemented by that of Section 2 (6). So, going by these provisions, I do not understand how the judge came about the reasoning that it is the provisions of CAMA that can determine who has the right to sue for denial of access to information and records when the FOI Act itself has clearly states that anybody who is denied access to information can sue.
He wondered why CAMA was used to determine if The ICIR could sue when the request for information was made, and the case was filed under the provisions of the FOI Act.
“Moreover, the denial of access to information has to be based on one or more of the exemptions listed in the FOI Act and not any other law. Therefore, relying on the provisions of CAMA is a miscarriage of justice.”
In its reaction, Budgit expressed sadness over the ruling. It argued that the FOI Act was clear in that people seeking information do not have to have an interest in the information being sought. It added that on the principles of justice, people requesting information should not need to have “locus standi” to seek the information.
The organisation, through its head, Open Government Institutional Partnership (OGIP), Vahyala kwaga, suggested that the judge could have ruled against The ICIR based on a technicality.
“How the learned Justice construed that the ICIR (a known investigative organisation with a mandate to supply critical public information) is improperly constituted, seems to derogate from the principles of democracy, open government and accountability.
“It is unfortunate that in this modern era when governments have the opportunity to be more open and transparent, we have technicalities thrown in the face of progress,” it stated.
The Nigeria Police Mortgage Bank PIc
Formerly known as Fokas Saving and Loans Ltd, the bank was incorporated in November 1992 and licensed to operate as a mortgage bank in January 1993.
The Nigeria Police Force via its important organ, the Nigeria Police Cooperative Multi-Purpose Society Limited, acquired majority shares in Fokas Savings and Loans Limited in April 2012.
A new board of directors of Fokas Savings and Loans Limited (Mortgage Bankers) was inaugurated by the then inspector-general of Police, M.D. Abubakar on May 16, 2012, with the charge to transmute Fokas Savings and Loans Limited to Nigeria Police Mortgage Bank PIc, compliant with all Nigerian legislation and regulatory obligations.
The completion board meeting of the bank was held on July 26, 2012, for the sale of shares by private placement.
The sensitisation programme started on August 4, 2012, while the police management team further approved the sale of shares to police officers and men to invest in the shares of the bank to avail each officer the benefits derivable from the bank’s funds.
The Central Bank of Nigeria approved the change of the bank’s name and confirmed the appointment of new directors on December 4, 2013. Consequently, the Corporate Affairs Commission approved the conversion of Fokas Savings and Loans Ltd to Fikas Savings and Loans PIc and finally to Nigeria Police Mortgage Bank PIc.
The Nigeria Police Force, established under section 214 of the Nigerian Constitution (1999 as amended), is the most significant contributor to the bank’s funds. The NPF has contributed at least N8 billion to the bank.
How locus standi came into play
The bank raised the issue of locus standi, challenging The ICIR’s competence to bring the case before the court. In the certified true copy of the judgment obtained by The ICIR, the judge described locus standi as “the legal right of a party to an action to be heard in litigation before a court of law or tribunal. The term entails the legal capacity of instituting or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from a person or body whatsoever.”
Describing The ICIR as an artificial rather than a natural person before the court, the judge said, “The locus standi of an artificial (corporate) person and a natural person applies under the Freedom of Information Act. The characteristics requirements of the locus standi of a corporate person and natural person are (not) the same and are far apart.”
He noted that the applicant referred to itself as “an association registered as a corporate body pursuant to part C of the Companies and Allied Matters Act Decree No. I, 1990 (now Part of the Companies and Allied Matters Act, 2020)’ This makes it compelling for the applicant to strictly adhere to the objects of an association statutorily provided under Section 825(1)(b) of Companies and Allied Matters Act C(AM which states:'(Application under section 823 shall be in the form prescribed by Commission and shall state aims and objects of the association which shall be for the advancement of any religious, educational, literary, scientific, social, development, cultural, sporting or charitable purpose and shall be lawful)….
The judged went on, “I find in the first place that none of the objects stated in S. 823(1) of the Companies and Allied Matters Act (CAMA) gives the applicant the authority to engage in or request for the information which it seeks herein to the extent that it has the authority to initiate this type of suit to compel the supply of the information to it. There is no provision under Part C (now Part F) of the Companies and Allied Matters Act (CAMA) that makes provision for the registration of anybody or groups of persons or associations whose true intent and objective is to deviate from what that law provides as the objectives of associations under that law.Ä
Akpan added that “Under the Freedom of Information Act, the person must be entitled to the right to information under the Act.
“On the whole, I find that the applicant, an artificial personality, has no local standi to initiate and maintain this suit contrary to the very specific objects fo registration said objects being statutorily prescribed, and I so hold.”
He consequently struck out the case.
Marcus bears the light, and he beams it everywhere. He's a good governance and decent society advocate. He's The ICIR Reporter of the Year 2022 and has been the organisation's News Editor since September 2023. Contact him via email @ mfatunmole@icirnigeria.org