IN THE HIGH COURT OF BENUE STATE OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
SUIT NO. MHC/388/2011
BETWEEN:
MAJOR GENERAL INDIA GARBA (RTD) - PLAINTIFF
AND
1. COMMISSIONER FOR LOCAL
GOVERNMENT & CHIEFTAINCY
MATTERS, BENUE STATE OF
NIGERIA
2. COMMISSIONER FOR FINANCE,
BENUE STATE OF NIGERIA DEFENDANTS
3. THE ACCOUNTANT-GENERAL OF
BENUE STATE OF NIGERIA
4. ATTORNEY GENERAL &
COMMISSIONER OF JUSTICE,
BENUE STATE OF NIGERIA
ORIGINATING SUMMONS PURSUANT TO ORDER 2 RULE 8 OF THE BENUE STATE OF NIGERIA HIGH COURT (CIVIL PROCEDURE) RULES, 2007.
Let the COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTAINCY MATTERS, BENUE STATE OF Nigeria; COMMISSIONER FOR FINANCE, BENUE STATE OF NIGERIA; THE ACCOUNTANT-GENERAL OF BENUE STATE OF NIGERIA AND ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, BENUE STATE OF NIGERIA within Eight (8) days after the service of this summons, inclusive of the day of such service cause an appearance to be entered for him to this summons which is issued upon the application of MAJOR-GENERAL INDIA GARBA (RTD) OF ASOKORO,ABUJA, Federal Capital Territory, Nigeria who claims to be entitled to the reliefs hereafter set out and for the determination of the following questions:
1. Whether by a true interpretation and construction of Section 5 (a) of the Freedom of Information Act, 2011 the Defendants are not obligated to allow the Plaintiff unfettered access to information concerning the allocation of revenue to Vandekiya Local Government Council of Benue State of Nigeria from the Federation Accounts upon the Plaintiff’s application within seven (7) days?
2. Whether the refusal or failure of the Defendants to grant the application of the Plaintiff for access to information concerning the allocation of revenue to the Vandekiya Local Government Council of Benue State of Nigeria within seven (7) days of the receipt of same does not amount to an infringement of the provisions of Sections 5 (a) and 8(1) of the Freedom of Information Act (supra)?
3. Whether by a true interpretation and construction of the provisions of Section 8 (5) of the Freedom of Information Act (supra) the Defendants are not entitled to pay a fine of N500, 000 (Five Thousand Naira) each for wrongful denial of the Plaintiff the right of access to Information sought?
The Plaintiff claims against the Defendants jointly and severally are as follows:
(1) A Declaration that the refusal, failure and or neglect by the 1st, 2nd & 3rd Defendants to release the information requested by the Plaintiff concerning the allocation of revenue to the Vandekiya Local Government Area Council of Benue State of Nigeria from the Federation Accounts and expenditure of same amounts to a violation of Section 8 (1) of the Freedom of Information Act (supra) and therefore is wrongful, illegal and unconstitutional.
(2) A Declaration that the refusal, failure and or neglect by the 1st, 2nd & 3rd Defendants to release the information requested by the Plaintiff concerning the allocation of revenue to the Vandekiya Local Government Area Council of Benue State of Nigeria from the Federation Accounts amounts to a violation of the provisions of Section 5 (a) of the Freedom of Information, Act, 2011.
(3) A Declaration that by the true interpretation and construction of Section 5 (a) of the Freedom of Information Act (supra) the Defendants as Public Institution within the meaning of Section 7 and 32 of the Freedom of Information Act (supra) are obligated to furnish on request by the Plaintiff a comprehensive, just, fair and detailed accounts of the amount of money allocated to the said Vandekiya Local Government Area Council of Benue State of Nigeria from the Federation Accounts.
(4) A Mandatory Order of Injunction directing the Defendants including their servants, agents, privies, officials and or cohorts to furnish the Plaintiff with comprehensive and detailed information concerning the allocation of revenue from the Federation Accounts to the Vandekiya Local Government Area Council of Benue State of Nigeria and expenditure from January, 2010 to September, 2011 until Judgment is delivered in this case within 14 days of the delivery of Judgment.
(5) An Order of this Honourable directing the Defendants to pay a fine of N500, 000 (Five Thousand Naira) each for wrongful denial of the Plaintiff the right of access to Information sought.
(6) The costs of this Action.
(7) Any further order (s) as the Court may deem fit and proper to make in the circumstances of this case.
DATED THIS 13TH DAY OF OCTOBER, 2011.
This summons was taken out by Chief Okoi O. Obono-Obla of Messrs Obono, Obono & Associates (Legal Practitioners & Consultants) Plot 1132 Festus Okotie Ebo Street, Utako District, Federal Capital Territory, Abuja, Nigeria and Legal Practitioners/Counsel (08033490404; 08033303287) to the above named Plaintiff.
The Defendant(s) may appear hereto by entering appearance personally or by Legal Practitioner either by handing in the appropriate forms duly completed at the Federal High Court Registry or by sending them to that office by post.
Note: If the Defendant does not enter appearance within the time and at the place above mentioned such orders will be made and proceedings may be taken as the Judge may think just and expedient
FOR SERVICE:
ON THE PLAINTIFF
C/O HIS COUNSEL
OBONO, OBONO & ASSOCIATES
PLOT 1132, FESTUS OKOTIE EBOH CRESCENT
UTAKO DISTRICT, ABUJA.
08033490404; 08035087322; 08033303287
tynaobla@yahoo.com;
okoi_advocate@yahoo.com
IN THE HIGH COURT OF BENUE STATE OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
SUIT NO.
BETWEEN:
MAJOR GENERAL INDIA GARBA (RTD) - PLAINTIFF
AND
1. COMMISSIONER FOR LOCAL
GOVERNMENT & CHIEFTAINCY
MATTERS, BENUE STATE OF
NIGERIA
2. COMMISSIONER FOR FINANCE,
BENUE STATE OF NIGERIA DEFENDANTS
3. THE ACCOUNTANT-GENERAL OF
BENUE STATE OF NIGERIA
4. ATTORNEY GENERAL &
COMMISSIONER OF JUSTICE,
BENUE STATE OF NIGERIA
AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS
I, India Garba,Male, Adult, retired Major-General of the Nigerian Army and a Nigerian residing at Asokoro, Federal Capital Territory, Abuja do hereby make Oath and State as follows thus:
1. That I am the Plaintiff in this case and as such the facts of this case are within my personal knowledge save as otherwise stated.
2. That I know as a fact that the Defendants are Public Institutions of the Government of Benue State of Nigeria.
3. That I am an indigene of Vandekiya Local Government Area of Benue State of Nigeria.
4. That on or about the 25th July, 2011 I wrote an application to the Defendants that I be allowed access to information to the allocation of revenue from the Federation Accounts every month to the Vandekiya Local Government Area of Benue State of Nigeria.
5. That the said application dated the 15th July, 2011 was duly served on the Secretary of Vandekiya Local Government Area of Benue State of Nigeria and each and every one of the Defendants in this action.
6. That a copy of the said application which I requested for information concerning the monthly allocation released to the Vandeikya Local Government Area of Benue State from the Federation Accounts from 29th May, 2007 to date is attached herewith and marked as Exhibit AA.
7. That a copy of the acknowledgement of service of EMS Speed Post delivery of a copy of the application on each of the Defendants on the 19th July, 2011. The acknowledgment of service is attached herewith and marked as Exhibit BB.
8. That the Defendants have failed refused and neglected to reply to the said application.
9. That the Defendants have failed refused and or neglected to allow me access to the information sought within seven (7) days as provided by Law.
10. That unless the Defendants are compelled by an Order of this Honourable Court they will continue to refuse me access to the information sought by me from them.
11. That this affidavit is made in good faith conscientiously believing the facts contained herein to be true and correct in accordance with the Oaths Act, 2004.
------------------------
DEPONENT
Sworn to at the High Court Registry,
Makurdi, this ......... day of October,
2011.
BEFORE ME
COMMISSIONER FOR OATHS
IN THE HIGH COURT OF BENUE STATE OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
SUIT NO.
BETWEEN:
MAJOR GENERAL INDIA GARBA (RTD) - PLAINTIFF
AND
1. COMMISSIONER FOR LOCAL
GOVERNMENT & CHIEFTAINCY
MATTERS, BENUE STATE OF
NIGERIA
2. COMMISSIONER FOR FINANCE,
BENUE STATE OF NIGERIA DEFENDANTS
3. THE ACCOUNTANT-GENERAL OF
BENUE STATE OF NIGERIA
4. ATTORNEY GENERAL &
COMMISSIONER OF JUSTICE,
BENUE STATE OF NIGERIA
WRITTEN ADDRESS IN SUPPPORT OF ORIGINTING SUMMONS PURSUANT TO ORDER 31 RULE 1 OF THE BENUE STATE OF NIGERIA HIGH COURT(CIVIL PROCEDURE) RULES, 2007
INTRODUCTION
This is the Written Address in support of the Originating Summons filed by the Plaintiff seeking the following reliefs thus:
(1) A Declaration that the refusal, failure and or neglect by the 1st, 2nd & 3rd Defendants to release the information requested by the Plaintiff concerning the allocation of revenue to the Vandekiya Local Government Area Council of Benue State of Nigeria from the Federation Accounts and expenditure of same amounts to a violation of Section 8 (1) of the Freedom of Information Act (supra) and therefore is wrongful, illegal and unconstitutional.
(2) A Declaration that the refusal, failure and or neglect by the 1st, 2nd & 3rd Defendants to release the information requested by the Plaintiff concerning the allocation of revenue to the Vandekiya Local Government Area Council of Benue State of Nigeria from the Federation Accounts amounts to a violation of the provisions of Section 5 (a) of the Freedom of Information, Act, 2011.
(3) A Declaration that by the true interpretation and construction of Section 5 (a) of the Freedom of Information Act (supra) the Defendants as Public Institution within the meaning of Section 7 and 32 of the Freedom of Information Act (supra) are obligated to furnish on request by the Plaintiff a comprehensive, just, fair and detailed accounts of the amount of money allocated to the said Vandekiya Local Government Area Council of Benue State of Nigeria from the Federation Accounts.
(4) A Mandatory Order of Injunction directing the Defendants including their servants, agents, privies, officials and or cohorts to furnish the Plaintiff with comprehensive and detailed information concerning the allocation of revenue from the Federation Accounts to the Vandekiya Local Government Area Council of Benue State of Nigeria and expenditure from January, 2010 to September, 2011 until Judgment is delivered in this case within 14 days of the delivery of Judgment.
(5) An Order of this Honourable directing the Defendants to pay a fine of N500, 000 (Five Thousand Naira) each for wrongful denial of the Plaintiff the right of access to Information sought.
(6) The costs of this Action.
(7) Any further order (s) as the Court may deem fit and proper to make in the circumstances of this case.
AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS
The Plaintiff has filed a 10 paragraphed affidavit in support of the Originating Summons. Attached to the Affidavit are documents marked as Exhibit AA and BB respectively. Exhibit AA is the Plaintiff’s Application to the Defendants of request for access to Information dated the 15th July, 2011. Exhibit BB is the acknowledgement of service of the Plaintiff’s application dated the 15th July, 2011 by the Defendants by EMS Speed Post. The Plaintiff shall rely on all the paragraphs of the Affidavit.
STATEMENT OF FACTS
The Plaintiff shall adopt the affidavit in support of the Originating Summons as his Statement of Facts.
ISSUES FOR DETERMINATION
The Plaintiff has posed several Questions for the determination by this Honourable Court. The Plaintiff shall respectfully adopt these Questions as the Issues for determination by this Honourable Court. The Questions shall be reproduced as follows thus:
1. Whether by a true interpretation and construction of Section 5(a) of the Freedom of Information Act, 2011 the Defendants are not obligated to allow the Plaintiff unfettered access to information concerning the allocation of revenue to Vandekiya Local Government Council of Benue State of Nigeria from the Federation Accounts upon the Plaintiff’s application within seven (7) days?
2. Whether the refusal or failure of the Defendants to grant the application of the Plaintiff for access to information concerning the allocation of revenue to the Vandekiya Local Government Council of Benue State of Nigeria within seven (7) days of the receipt of same does not amount to an infringement of Section 5 (a) of the Freedom of Information Act (supra)?
3. Whether by a true interpretation and construction of the provisions of Section 8 (5) of the Freedom of Information Act (supra) the Defendants are not entitled to pay a fine of N500, 000 (Five Thousand Naira) each for wrongful denial of the Plaintiff the right of access to Information sought? .
ISSUES NO. 1 & 2 (ISSUES NOS 1 & 2 SHALL BE ARGUED TOGETHER)
ARGUMENT
1.1 It is submitted that by the provisions of Section 5 (a) of the Freedom of Information Act, 2011, the Defendants are under an absolute duty to release to the Plaintiff a request for access of information upon an application made to them by the Plaintiff seven days after the receipt of such application by them.
1.2 For the avoidance of any doubt, it is pertinent to reproduce the provisions of Section 5 (a) of the Freedom of Information Act (supra) thus:
“Where information is applied for under this Act, the public institution to which the application is made shall subject to Section 6, 7 and 8 of this Act after the application is received :
a. Make the information available to the applicant.
b. Where the public institution considers that the application should be denied, the institution shall give written notice to the applicant that access to all part of the information will not be granted, stating the reasons for the denial, and the section of this Act under which the denial is made”.
1.3 There is compelling affidavit evidence that the Plaintiff by an application dated the 15th July, 2011 sought from the Defendants access to information of the monthly allocation of revenue from the Federation accounts to the Vandeikya Local Government Area of Benue State from the 29th May, 2007 until date. See Exhibit AA.
1.4 There is compelling evidence that this application was received by each of the Defendants on the 19th July, 2011. See Exhibit BB.
1.5 It is clear that the Defendants were in receipt of the application of the Plaintiff by the 19th July, 2011. It therefore goes without saying that the Defendants were under a mandatory duty imposed by Law to release such application sought by the Plaintiff after seven days of the receipt of the Application of the Plaintiff.
1.6 It is submitted that the when the words used in a statute are clear, lucid and unambiguous they must be given their ordinary and natural meaning ascribed to them by the legislature.
1.7 It is clear as the crystal that a true interpretation and construction of the provisions of Section 5 (a) of the Freedom of Information Act the Defendants are under a duty to promptly release information sought by the Plaintiff by the 26th July, 2011 when the seven days given to them by the provisions of Section 5 *a) of the Freedom of Information Act to release such information to an applicant expired.
1.8 It is clear that the Defendants have undoubtedly abdicated the duty placed on them by the provisions of the Section 5 (a) of the Freedom of Information Act.
1.9 In the light of the above, we respectfully urge the Court to resolve these issues against the Defendants and answer Questions Nos. 1 & 2 posed by the Plaintiff in the Originating Summons in the affirmative.
ARGUMENT OF ISSUE NO. 2
2.0 It is submitted that where it is established (like in the case under reference) that the a public institution from which access to information is sought by an applicant under the provisions of Section 5 (a) of the Freedom of Information Act fails to release such information to the applicant seven days after the receipt of such application such defaulting officer or public institution shall be reliable under conviction to payment of a fine of N500, 000. See Section 8 (4) & (5) of the Freedom of Information Act.
2.1 Undoubtedly the Defendants have bluntly and adamantly refused and failed to release the information sought by the Plaintiff which is the monthly allocation of revenue from the Federation Accounts to the Vandeikya Local Government Area of Cross River State of Nigeria.
2.2 It is pertinent that the Defendants are deemed to be public institution on which an application for access to information can be sought from under the provisions of Section 5 (a) of the Freedom of Information Act.
2.3 It is submitted that a public institution within the purport of the Freedom of Information Act include any legislative, executive, judicial, administrative or advisory body of the Government, including boards, bureau, committees or commissions of the State and any subsidiary body of those bodies including but not limited to committees and sub-committees which are supported in whole or in any part by public fund or which expends public fund and private bodies providing public services, performing public functions or utilizing public funds. See Section 29 of the Freedom of Information Act (supra).
2.4 In the light of the above, we respectfully invite this Honourable Court to resolve this Issue against the Defendants and answer Question No. 2 posed in the Originating Summons in the affirmative.
CONCLUSION
This Honourable Court is respectfully invited to accede to the reliefs sought by the Plaintiff for the following reasons thus:
1. The Plaintiff right of unfettered access to information cognisable by Section 2 (1) of the Freedom of Information has been breached by the Defendants refusal and failure to release upon the application of the Plaintiff the access of information concerning the monthly allocation of revenue from the Federation Accounts from the 29th May, 2011 till date;
2. The Defendants are under a mandatory duty to release to the Plaintiff access of information seven days after the receipt of his application. Undoubtedly, the Defendants have egregiously breached the mandatory duty placed on them by the provisions of Section 5 (a) of the Freedom of Information Act.
3. The Defendants are entitled to payment of a fine of N500, 000.00 for breaching the Plaintiff’s right of access to information.
DATED THIS 18TH DAY OF OCTOBER, 2011.
CHIEF OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
(PLAINTIFF’S SOLICITORS)
TRINITY HOUSE, MABUSHI
FEDERAL CAPITAL TERRITORY, ABUJA, NIGERIA
08033303287; 08033490404
okoiobla@hotmail.com
okoi_advocate@yahoo.com;
okoiadvocate@gmail.com
ADDRESS FOR SERVICE:
1. THE 1ST DEFENDANT
C/O COMMISSIONER FOR LOCAL GOVERNMENT
& CHIEFTAINCY MATTERS,
MAKURDI, BENUE STATE OF NIGERIA
2. THE 2ND DEFENDANT
C/O COMMISSIONER FOR FINANCE,
MAKURDI, BENUE STATE OF NIGERIA.
3. THE 3RD DEFENDANT
C/O THE ACCOUNTANT-GENERAL OF BENUE STATE OF NIGERIA
MAKURDI, BENUE STATE, NIGERIA.
4. THE 4TH DEFENDANT
ATTORNEY GENERAL &
COMMISSIONER FOR JUSTICE,
MAKURDI, BENUE STATE OF NIGERIA.
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
SUIT NO. MHC/388/2011
BETWEEN:
MAJOR GENERAL INDIA GARBA (RTD) - PLAINTIFF
AND
1. COMMISSIONER FOR LOCAL
GOVERNMENT & CHIEFTAINCY
MATTERS, BENUE STATE OF
NIGERIA
2. COMMISSIONER FOR FINANCE,
BENUE STATE OF NIGERIA DEFENDANTS
3. THE ACCOUNTANT-GENERAL OF
BENUE STATE OF NIGERIA
4. ATTORNEY GENERAL &
COMMISSIONER OF JUSTICE,
BENUE STATE OF NIGERIA
ORIGINATING SUMMONS PURSUANT TO ORDER 2 RULE 8 OF THE BENUE STATE OF NIGERIA HIGH COURT (CIVIL PROCEDURE) RULES, 2007.
Let the COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTAINCY MATTERS, BENUE STATE OF Nigeria; COMMISSIONER FOR FINANCE, BENUE STATE OF NIGERIA; THE ACCOUNTANT-GENERAL OF BENUE STATE OF NIGERIA AND ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, BENUE STATE OF NIGERIA within Eight (8) days after the service of this summons, inclusive of the day of such service cause an appearance to be entered for him to this summons which is issued upon the application of MAJOR-GENERAL INDIA GARBA (RTD) OF ASOKORO,ABUJA, Federal Capital Territory, Nigeria who claims to be entitled to the reliefs hereafter set out and for the determination of the following questions:
1. Whether by a true interpretation and construction of Section 5 (a) of the Freedom of Information Act, 2011 the Defendants are not obligated to allow the Plaintiff unfettered access to information concerning the allocation of revenue to Vandekiya Local Government Council of Benue State of Nigeria from the Federation Accounts upon the Plaintiff’s application within seven (7) days?
2. Whether the refusal or failure of the Defendants to grant the application of the Plaintiff for access to information concerning the allocation of revenue to the Vandekiya Local Government Council of Benue State of Nigeria within seven (7) days of the receipt of same does not amount to an infringement of the provisions of Sections 5 (a) and 8(1) of the Freedom of Information Act (supra)?
3. Whether by a true interpretation and construction of the provisions of Section 8 (5) of the Freedom of Information Act (supra) the Defendants are not entitled to pay a fine of N500, 000 (Five Thousand Naira) each for wrongful denial of the Plaintiff the right of access to Information sought?
The Plaintiff claims against the Defendants jointly and severally are as follows:
(1) A Declaration that the refusal, failure and or neglect by the 1st, 2nd & 3rd Defendants to release the information requested by the Plaintiff concerning the allocation of revenue to the Vandekiya Local Government Area Council of Benue State of Nigeria from the Federation Accounts and expenditure of same amounts to a violation of Section 8 (1) of the Freedom of Information Act (supra) and therefore is wrongful, illegal and unconstitutional.
(2) A Declaration that the refusal, failure and or neglect by the 1st, 2nd & 3rd Defendants to release the information requested by the Plaintiff concerning the allocation of revenue to the Vandekiya Local Government Area Council of Benue State of Nigeria from the Federation Accounts amounts to a violation of the provisions of Section 5 (a) of the Freedom of Information, Act, 2011.
(3) A Declaration that by the true interpretation and construction of Section 5 (a) of the Freedom of Information Act (supra) the Defendants as Public Institution within the meaning of Section 7 and 32 of the Freedom of Information Act (supra) are obligated to furnish on request by the Plaintiff a comprehensive, just, fair and detailed accounts of the amount of money allocated to the said Vandekiya Local Government Area Council of Benue State of Nigeria from the Federation Accounts.
(4) A Mandatory Order of Injunction directing the Defendants including their servants, agents, privies, officials and or cohorts to furnish the Plaintiff with comprehensive and detailed information concerning the allocation of revenue from the Federation Accounts to the Vandekiya Local Government Area Council of Benue State of Nigeria and expenditure from January, 2010 to September, 2011 until Judgment is delivered in this case within 14 days of the delivery of Judgment.
(5) An Order of this Honourable directing the Defendants to pay a fine of N500, 000 (Five Thousand Naira) each for wrongful denial of the Plaintiff the right of access to Information sought.
(6) The costs of this Action.
(7) Any further order (s) as the Court may deem fit and proper to make in the circumstances of this case.
DATED THIS 13TH DAY OF OCTOBER, 2011.
This summons was taken out by Chief Okoi O. Obono-Obla of Messrs Obono, Obono & Associates (Legal Practitioners & Consultants) Plot 1132 Festus Okotie Ebo Street, Utako District, Federal Capital Territory, Abuja, Nigeria and Legal Practitioners/Counsel (08033490404; 08033303287) to the above named Plaintiff.
The Defendant(s) may appear hereto by entering appearance personally or by Legal Practitioner either by handing in the appropriate forms duly completed at the Federal High Court Registry or by sending them to that office by post.
Note: If the Defendant does not enter appearance within the time and at the place above mentioned such orders will be made and proceedings may be taken as the Judge may think just and expedient
FOR SERVICE:
ON THE PLAINTIFF
C/O HIS COUNSEL
OBONO, OBONO & ASSOCIATES
PLOT 1132, FESTUS OKOTIE EBOH CRESCENT
UTAKO DISTRICT, ABUJA.
08033490404; 08035087322; 08033303287
tynaobla@yahoo.com;
okoi_advocate@yahoo.com
IN THE HIGH COURT OF BENUE STATE OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
SUIT NO.
BETWEEN:
MAJOR GENERAL INDIA GARBA (RTD) - PLAINTIFF
AND
1. COMMISSIONER FOR LOCAL
GOVERNMENT & CHIEFTAINCY
MATTERS, BENUE STATE OF
NIGERIA
2. COMMISSIONER FOR FINANCE,
BENUE STATE OF NIGERIA DEFENDANTS
3. THE ACCOUNTANT-GENERAL OF
BENUE STATE OF NIGERIA
4. ATTORNEY GENERAL &
COMMISSIONER OF JUSTICE,
BENUE STATE OF NIGERIA
AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS
I, India Garba,Male, Adult, retired Major-General of the Nigerian Army and a Nigerian residing at Asokoro, Federal Capital Territory, Abuja do hereby make Oath and State as follows thus:
1. That I am the Plaintiff in this case and as such the facts of this case are within my personal knowledge save as otherwise stated.
2. That I know as a fact that the Defendants are Public Institutions of the Government of Benue State of Nigeria.
3. That I am an indigene of Vandekiya Local Government Area of Benue State of Nigeria.
4. That on or about the 25th July, 2011 I wrote an application to the Defendants that I be allowed access to information to the allocation of revenue from the Federation Accounts every month to the Vandekiya Local Government Area of Benue State of Nigeria.
5. That the said application dated the 15th July, 2011 was duly served on the Secretary of Vandekiya Local Government Area of Benue State of Nigeria and each and every one of the Defendants in this action.
6. That a copy of the said application which I requested for information concerning the monthly allocation released to the Vandeikya Local Government Area of Benue State from the Federation Accounts from 29th May, 2007 to date is attached herewith and marked as Exhibit AA.
7. That a copy of the acknowledgement of service of EMS Speed Post delivery of a copy of the application on each of the Defendants on the 19th July, 2011. The acknowledgment of service is attached herewith and marked as Exhibit BB.
8. That the Defendants have failed refused and neglected to reply to the said application.
9. That the Defendants have failed refused and or neglected to allow me access to the information sought within seven (7) days as provided by Law.
10. That unless the Defendants are compelled by an Order of this Honourable Court they will continue to refuse me access to the information sought by me from them.
11. That this affidavit is made in good faith conscientiously believing the facts contained herein to be true and correct in accordance with the Oaths Act, 2004.
------------------------
DEPONENT
Sworn to at the High Court Registry,
Makurdi, this ......... day of October,
2011.
BEFORE ME
COMMISSIONER FOR OATHS
IN THE HIGH COURT OF BENUE STATE OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
SUIT NO.
BETWEEN:
MAJOR GENERAL INDIA GARBA (RTD) - PLAINTIFF
AND
1. COMMISSIONER FOR LOCAL
GOVERNMENT & CHIEFTAINCY
MATTERS, BENUE STATE OF
NIGERIA
2. COMMISSIONER FOR FINANCE,
BENUE STATE OF NIGERIA DEFENDANTS
3. THE ACCOUNTANT-GENERAL OF
BENUE STATE OF NIGERIA
4. ATTORNEY GENERAL &
COMMISSIONER OF JUSTICE,
BENUE STATE OF NIGERIA
WRITTEN ADDRESS IN SUPPPORT OF ORIGINTING SUMMONS PURSUANT TO ORDER 31 RULE 1 OF THE BENUE STATE OF NIGERIA HIGH COURT(CIVIL PROCEDURE) RULES, 2007
INTRODUCTION
This is the Written Address in support of the Originating Summons filed by the Plaintiff seeking the following reliefs thus:
(1) A Declaration that the refusal, failure and or neglect by the 1st, 2nd & 3rd Defendants to release the information requested by the Plaintiff concerning the allocation of revenue to the Vandekiya Local Government Area Council of Benue State of Nigeria from the Federation Accounts and expenditure of same amounts to a violation of Section 8 (1) of the Freedom of Information Act (supra) and therefore is wrongful, illegal and unconstitutional.
(2) A Declaration that the refusal, failure and or neglect by the 1st, 2nd & 3rd Defendants to release the information requested by the Plaintiff concerning the allocation of revenue to the Vandekiya Local Government Area Council of Benue State of Nigeria from the Federation Accounts amounts to a violation of the provisions of Section 5 (a) of the Freedom of Information, Act, 2011.
(3) A Declaration that by the true interpretation and construction of Section 5 (a) of the Freedom of Information Act (supra) the Defendants as Public Institution within the meaning of Section 7 and 32 of the Freedom of Information Act (supra) are obligated to furnish on request by the Plaintiff a comprehensive, just, fair and detailed accounts of the amount of money allocated to the said Vandekiya Local Government Area Council of Benue State of Nigeria from the Federation Accounts.
(4) A Mandatory Order of Injunction directing the Defendants including their servants, agents, privies, officials and or cohorts to furnish the Plaintiff with comprehensive and detailed information concerning the allocation of revenue from the Federation Accounts to the Vandekiya Local Government Area Council of Benue State of Nigeria and expenditure from January, 2010 to September, 2011 until Judgment is delivered in this case within 14 days of the delivery of Judgment.
(5) An Order of this Honourable directing the Defendants to pay a fine of N500, 000 (Five Thousand Naira) each for wrongful denial of the Plaintiff the right of access to Information sought.
(6) The costs of this Action.
(7) Any further order (s) as the Court may deem fit and proper to make in the circumstances of this case.
AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS
The Plaintiff has filed a 10 paragraphed affidavit in support of the Originating Summons. Attached to the Affidavit are documents marked as Exhibit AA and BB respectively. Exhibit AA is the Plaintiff’s Application to the Defendants of request for access to Information dated the 15th July, 2011. Exhibit BB is the acknowledgement of service of the Plaintiff’s application dated the 15th July, 2011 by the Defendants by EMS Speed Post. The Plaintiff shall rely on all the paragraphs of the Affidavit.
STATEMENT OF FACTS
The Plaintiff shall adopt the affidavit in support of the Originating Summons as his Statement of Facts.
ISSUES FOR DETERMINATION
The Plaintiff has posed several Questions for the determination by this Honourable Court. The Plaintiff shall respectfully adopt these Questions as the Issues for determination by this Honourable Court. The Questions shall be reproduced as follows thus:
1. Whether by a true interpretation and construction of Section 5(a) of the Freedom of Information Act, 2011 the Defendants are not obligated to allow the Plaintiff unfettered access to information concerning the allocation of revenue to Vandekiya Local Government Council of Benue State of Nigeria from the Federation Accounts upon the Plaintiff’s application within seven (7) days?
2. Whether the refusal or failure of the Defendants to grant the application of the Plaintiff for access to information concerning the allocation of revenue to the Vandekiya Local Government Council of Benue State of Nigeria within seven (7) days of the receipt of same does not amount to an infringement of Section 5 (a) of the Freedom of Information Act (supra)?
3. Whether by a true interpretation and construction of the provisions of Section 8 (5) of the Freedom of Information Act (supra) the Defendants are not entitled to pay a fine of N500, 000 (Five Thousand Naira) each for wrongful denial of the Plaintiff the right of access to Information sought? .
ISSUES NO. 1 & 2 (ISSUES NOS 1 & 2 SHALL BE ARGUED TOGETHER)
ARGUMENT
1.1 It is submitted that by the provisions of Section 5 (a) of the Freedom of Information Act, 2011, the Defendants are under an absolute duty to release to the Plaintiff a request for access of information upon an application made to them by the Plaintiff seven days after the receipt of such application by them.
1.2 For the avoidance of any doubt, it is pertinent to reproduce the provisions of Section 5 (a) of the Freedom of Information Act (supra) thus:
“Where information is applied for under this Act, the public institution to which the application is made shall subject to Section 6, 7 and 8 of this Act after the application is received :
a. Make the information available to the applicant.
b. Where the public institution considers that the application should be denied, the institution shall give written notice to the applicant that access to all part of the information will not be granted, stating the reasons for the denial, and the section of this Act under which the denial is made”.
1.3 There is compelling affidavit evidence that the Plaintiff by an application dated the 15th July, 2011 sought from the Defendants access to information of the monthly allocation of revenue from the Federation accounts to the Vandeikya Local Government Area of Benue State from the 29th May, 2007 until date. See Exhibit AA.
1.4 There is compelling evidence that this application was received by each of the Defendants on the 19th July, 2011. See Exhibit BB.
1.5 It is clear that the Defendants were in receipt of the application of the Plaintiff by the 19th July, 2011. It therefore goes without saying that the Defendants were under a mandatory duty imposed by Law to release such application sought by the Plaintiff after seven days of the receipt of the Application of the Plaintiff.
1.6 It is submitted that the when the words used in a statute are clear, lucid and unambiguous they must be given their ordinary and natural meaning ascribed to them by the legislature.
1.7 It is clear as the crystal that a true interpretation and construction of the provisions of Section 5 (a) of the Freedom of Information Act the Defendants are under a duty to promptly release information sought by the Plaintiff by the 26th July, 2011 when the seven days given to them by the provisions of Section 5 *a) of the Freedom of Information Act to release such information to an applicant expired.
1.8 It is clear that the Defendants have undoubtedly abdicated the duty placed on them by the provisions of the Section 5 (a) of the Freedom of Information Act.
1.9 In the light of the above, we respectfully urge the Court to resolve these issues against the Defendants and answer Questions Nos. 1 & 2 posed by the Plaintiff in the Originating Summons in the affirmative.
ARGUMENT OF ISSUE NO. 2
2.0 It is submitted that where it is established (like in the case under reference) that the a public institution from which access to information is sought by an applicant under the provisions of Section 5 (a) of the Freedom of Information Act fails to release such information to the applicant seven days after the receipt of such application such defaulting officer or public institution shall be reliable under conviction to payment of a fine of N500, 000. See Section 8 (4) & (5) of the Freedom of Information Act.
2.1 Undoubtedly the Defendants have bluntly and adamantly refused and failed to release the information sought by the Plaintiff which is the monthly allocation of revenue from the Federation Accounts to the Vandeikya Local Government Area of Cross River State of Nigeria.
2.2 It is pertinent that the Defendants are deemed to be public institution on which an application for access to information can be sought from under the provisions of Section 5 (a) of the Freedom of Information Act.
2.3 It is submitted that a public institution within the purport of the Freedom of Information Act include any legislative, executive, judicial, administrative or advisory body of the Government, including boards, bureau, committees or commissions of the State and any subsidiary body of those bodies including but not limited to committees and sub-committees which are supported in whole or in any part by public fund or which expends public fund and private bodies providing public services, performing public functions or utilizing public funds. See Section 29 of the Freedom of Information Act (supra).
2.4 In the light of the above, we respectfully invite this Honourable Court to resolve this Issue against the Defendants and answer Question No. 2 posed in the Originating Summons in the affirmative.
CONCLUSION
This Honourable Court is respectfully invited to accede to the reliefs sought by the Plaintiff for the following reasons thus:
1. The Plaintiff right of unfettered access to information cognisable by Section 2 (1) of the Freedom of Information has been breached by the Defendants refusal and failure to release upon the application of the Plaintiff the access of information concerning the monthly allocation of revenue from the Federation Accounts from the 29th May, 2011 till date;
2. The Defendants are under a mandatory duty to release to the Plaintiff access of information seven days after the receipt of his application. Undoubtedly, the Defendants have egregiously breached the mandatory duty placed on them by the provisions of Section 5 (a) of the Freedom of Information Act.
3. The Defendants are entitled to payment of a fine of N500, 000.00 for breaching the Plaintiff’s right of access to information.
DATED THIS 18TH DAY OF OCTOBER, 2011.
CHIEF OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
(PLAINTIFF’S SOLICITORS)
TRINITY HOUSE, MABUSHI
FEDERAL CAPITAL TERRITORY, ABUJA, NIGERIA
08033303287; 08033490404
okoiobla@hotmail.com
okoi_advocate@yahoo.com;
okoiadvocate@gmail.com
ADDRESS FOR SERVICE:
1. THE 1ST DEFENDANT
C/O COMMISSIONER FOR LOCAL GOVERNMENT
& CHIEFTAINCY MATTERS,
MAKURDI, BENUE STATE OF NIGERIA
2. THE 2ND DEFENDANT
C/O COMMISSIONER FOR FINANCE,
MAKURDI, BENUE STATE OF NIGERIA.
3. THE 3RD DEFENDANT
C/O THE ACCOUNTANT-GENERAL OF BENUE STATE OF NIGERIA
MAKURDI, BENUE STATE, NIGERIA.
4. THE 4TH DEFENDANT
ATTORNEY GENERAL &
COMMISSIONER FOR JUSTICE,
MAKURDI, BENUE STATE OF NIGERIA.
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