A Federal High Court in Lagos has fixed October 11, 2023 for the hearing of a Freedom of Information (FOI) suit filed by Media Rights Agenda (MRA) against the National Broadcasting Commission (NBC) for its refusal to act on the organization’s information request seeking details of payments of license fees by broadcasting stations and platforms operating in Nigeria and the amount of indebtedness of each station owing license fees.
The lawyers to the parties in the suit are expected to present their final addresses to the court, presided over by Justice Ambrose Lewis-Allagoa, on that day, after which the judge would fix a date to deliver his judgment.
In the suit filed on its behalf by Lagos-based lawyer, Mr. Alimi Adamu, against the NBC and the Attorney-General of the Federation, MRA is asking the Court to declare the NBC’s failure to provide it with the information it requested by a letter dated August 22, 2022, a breach of its right of access to information as well as a flagrant violation of the FOI Act and to order the Commission to pay it N1 million as exemplary and aggravated damages for unlawfully denying it the information.
MRA is seeking the following reliefs:
· A declaration that the NBC’s denial of access to MRA of the information it requested by a letter dated August 22, 2022 constitutes a violation of the organization’s rights of access to information established and guaranteed by Section 1(1) and 4 of the FOI Act;
· A declaration that the NBC’s failure and/or refusal to give MRA a written notice that access to all or part of the information it requested would not be granted with reasons for the denial and the section of the FOI Act upon which the Commission relied to deny the organization access to the information requested amounts to a flagrant violation of Section 4 (b) and 7 (1) of the FOI Act;
· A declaration that by its failure to give MRA access to all or part of the information applied for in its letter dated August 22, 2022, within the time limit set out in the Act, the NBC is deemed to have refused to give MRA access to the information requested, as provided under Section 7(4) of the FOI Act;
· An order directing the NBC to disclose or make available to MRA a list of all broadcasting stations and platforms operating in Nigeria licensed by the Commission; the amount that each of them is required to pay as license fees; the status of payment of each of the station from the date of its license to August 22, 2022; for those licensed broadcasting stations that are owing, the amount of indebtedness and the period covered by the amount; and for broadcasting corporations owned by various State Governments included in the list of the broadcasting stations whose broadcast licenses were revoked by the Commission as announced by its Director-General in his press briefing on August 19, 2022, a breakdown of the amount of indebtedness by each of the radio stations and each of the television stations owned by the respective State-owned broadcasting corporations.
· An order directing the NBC to deposit the information requested by MRA with the court pending the determination of the suit;
· An order directing the NBC to pay to MRA the sum of
N1 million as exemplary and aggravated damages for the flagrant and unlawful violation of the organization’s right of access to information; and
· An order directing the Attorney-General of the Federation to initiate criminal proceedings against the NBC for the offence of wrongful denial of access to information under Section 7 (5) of the FOI Act.
However, the NBC, represented by Mr. Babatunde Ogala (SAN), is opposing the suit on the grounds that the information requested by MRA is exempted from disclosure, that MRA filed the suit after the prescribed period had lapsed and that it is therefore statute-barred and that the suit is incompetent as the court lacks “territorial jurisdiction” to entertain or adjudicate over it.
According to him, having made the request for information to the NBC on August 22, the seven days within which the Commission should respond would have lapsed on September 1, 2022, meaning that by virtue of Order 34 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2019, MRA’s application for judicial review should have been brought within three months from September 1, 2022.
Mr. Ogala contended that although the time allowed MRA to file the suit expired on November 30, 2022, the organization did not file its motion on notice until December 6, 2022, adding that the effect of filing the suit outside of stipulated period allowed by the Rules of Court is that the court is divested of jurisdiction to entertain the suit.
But in a response filed on behalf of MRA, Mr. Adamu argued that there was nothing in the FOI Act exempting the information requested by MRA from disclosure and that the NBC failed to disclose the section of the Act that it was relying on, as required by the Act when a public institution pleads exemption as its reason for refusing to disclosed information requested.
Besides, he said, the Law requires that if the NBC intends to withhold the information requested, it should give the requester a written notification that it would not disclose the information and state the reason for the refusal and the section of the Act on which it relied for the refusal. Having failed to do so, he argued that for the NBC to assert the claim of exemption “for the first time in litigation reeks of bad faith and is in reckless disregard of the costs and expense” of the lawsuit to MRA and a cog on the time of the court.
On Mr. Ogala’s argument that MRA filed the suit outside the time prescribed, Mr. Alimi noted that the organization made its request for the information on August 22, 2022 and that since the NBC had seven days to respond to the request, the Commission is deemed to have denied MRA’s request by August 29, 2022 after it failed to respond.
Observing that MRA was required to apply to the court for judicial review within 30 days after its request was deemed to have been denied, Mr. Alimi said the organization had up to September 28, 2022 to commence its lawful over the denial of access but that it filed its motion ex parte before the court on September 9, 2022 seeking leave to apply for judicial review, as required by the Rules of Court.
He contended that “By all probably metrics, the application was timely” as the operative date for the purpose of calculating the commencement of the application for judicial review was on the date on which the process was sealed and issued by the Registrar of the Court, which was September 9, 2022.
On Mr. Ogala’s claim that the court lacked territorial jurisdiction to adjudicate on the matter, Mr. Alimi argued that the power of the court was not limited by territories as there is only one Federal High Court in Nigeria with different judicial divisions for the purpose of administrative convenience. He contended as a result, the court “has unlimited jurisdiction to adjudicate on any matter within the Nigerian boundary”.