Freedom of Information Law Report

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36

Disclosure of Information About a Contract Already Awarded Cannot Interfere with Rights of a Third Party

In the Federal High Court of Nigeria

In the Abuja Judicial Division

Holden at Abuja

On Friday the 1st Day of March, 2013

Before His Lordship Hon. Justice A.F.A Ademola, Judge

Suit No. FHC/ABJ/CS/582/2012

Between:

Public & Private Development Centre Ltd/GT}        – APPLICANT

(PPDC) (For itself and on behalf of the Nigeria }

Contract Monitoring Coalition}

And

  1. Power Holding Company of Nigeria       }

             Nigeria (PHCN) PLC}

  1. Hon. Attorney-General of the  )               }    – RESPONDENTS

              Federation                                                       }

 

Summary of the Facts

The  Applicant  in  the  suit  brought  by  Motion  on  Notice dated December 14, 2012 pursuant to Order 34 Rules 5 & 6 Federal High Court  (Civil Procedure) Rules 2009; Sections 1, 2(6)& 20  of the Freedom of Information Act, 2011 and the inherent powers of the Court, prayed for the following Reliefs:

  • A Declaration  that the failure of the 1st and 2nd Respondents to furnish the Applicant with the documents/information sought vide Applicant’s letter of August 30, 2012 amounts to a wrongful denial of information under the Freedom of Information Act.
  • An Order of the Court compelling the Respondents to forthwith furnish the Applicant with the information and copies of the documents set out in the Schedule hereto.

Schedule

The following documents and information were listed in the Schedule as the documents and information sought by the Applicant in its letter dated August 30, 2012, in respect of Bid No. NGP-D2, for the award of a contract for the supply and installation of 300 units of 11 KV, 500A On-Load Sectionalizers for installation at the High Voltage Distribution System (HVDS) networks at Karu (in Abuja); the Lagos University Teaching Hospital (LUTH), Ogba and Agege (all in Lagos); and Challenge (Ibadan):

a)   The procurement plan.

b)   The Needs Assessment document (if separate from the procurement plan).

c)   Documentation on design and specification requirement which are not contained in the standard bidding documents.

d)   Documentation on the scope of the procurement.

e)   Bidding documents issued to all bidders in respect of the procurement.

f)   A list of all contractors that submitted bids in respect of the procurement.

g)  Copy of the bid evaluation report of the technical sub-committee of the Tenders’ Board for the procurement.

h)  Minutes of the Tenders’ Board approving the winning bids.

i)  Copies of the letters of award of contract and final contract award documents for the award of the contract for the procurement.

j)   Documentation on the current status of the procurement project.

k)  Document showing the procurement contract sum, conditions of the procurement contract and payment terms and schedule.

l)  Name and addresses of all Distribution Companies on whose behalf the procurement was undertaken and which will subsequently be responsible for the utilization and management of the goods and works procured.

The Application was supported by an amended statement with names of Applicant,Description of Applicant, Reliefs sought, grounds upon which reliefs are sought; facts relied upon, affidavit with EXHIBITS A- E and a written address.

The Respondent filed a Counter-Affidavit of five paragraphs sworn to by Kemi Iyunade, a Litigation Clerk in the office of Messrs Joseph Ochuko Tobi& Co, Counsel to the 1stRespondent  with Exhibits A & B, a written address prior to paying default fees under Order 34, Rule 5(3) & (4) of the Federal High Court (Civil Procedure) Rules, 2009.

Upon service, the Applicant’s Counsel, G.N. Chigbu, filed a reply on points of Law to the 1st Respondent’s address dated January 28, 2013.

Power Holding Company of Nigeria, the 1stRespondent, sometime in 2011, through its Project Management Unit (PMU) conducted a Public Procurement exercise, described as Bid No. NGP-D2, involving the award of contract for the supply and installation of 300 units of 11 KV, 500A On-Load Sectionalizers for installation at the High Voltage Distribution System (HVDS) networks at Karu (Abuja); at LUTH, Ogba and Agege (all in Lagos); and Challenge (Ibadan).

The suit commenced in the Court on October 23, 2012 but was delayed by several interlocutory applications of Counsel until February 8, 2013 when G.N. Chigbu, Applicant’s Counsel; and Edna Ejikeme for 1st Respondent, proffered oral argument and adopted their written address in court.

The 2nd Respondent though served, never entered appearance nor filed papers.  Accordingly this suit was reserved for judgment by the court:

 Statement of Issues Arising from the Facts

The Applicant’s counsel in the application for an order of mandamus submitted one issue for determination in his written address dated December 14, 2012 to wit:Whether the Applicant has proved its entitlement to the relief sought in the action.

The 1stRespondent in its written address dated January 15, 2013 and filed on January 8, 2013 adopted the Applicant’s issue as the only issue arising for determination.

The Court therefore formulated the said issue for determination in the Judgment.

Determination of Issues by an Applicant of Law to Facts

The Applicant’s Counsel submitted that pursuant to leave of the Court granted on October 29, 2012, the substantive motion on notice for mandamus dated December 14, 2012 was filed on the same day.

Power Holding Company of Nigeria, the 1stRespondent, sometime in 2011, through its Project Management Unit (PMU) conducted a Public Procurement exercise, described as Bid No. NGP-D2, involving the award of contract for the supply and installation of 300 units of 11 KV, 500A On-Load Sectionalizers for installation at the High Voltage Distribution System (HVDS) networks at Karu (Abuja); at LUTH, Ogba and Agege (all in Lagos); and Challenge (Ibadan).

Justice Ademola said this principle of Law also applies to Paragraph 7 of the affidavit in support of the substantive motion wherein the Applicant deposed to requesting inter alia for the documents in issue on August 30, 2012 – several months after conclusion of negotiations between the 1stRespondent and the Contractor, that is the third party.

The Applicant, pursuant to the right conferred on it to obtain public records and information from public institutions pursuant to the Freedom of Information Act, 2011, applied to the 1stRespondent through its PMU for the copies of the documents and information set out in the schedule to the application.  The 1st Respondent refused to furnish it with the said documents and information.

Therefore Applicant sought the leave of the Court to bring an application to enforce the Applicant’s right under the Freedom of information Act, 2011 and same was granted on October 29, 2012.

The 1stRespondent in response to the application for procurement information on the installation of 300 No. 11KV 5OOA on load sectionalizers at the said locations wrote a letter  dated November 9, 2012 annexing the documents/information required to the Applicant except the document in paragraph ‘g’ of  the  Schedule attached to the motion on notice  dated December 14, 2012, that is a  copy  of  the  Bid  Evaluation  Report of  the Technical Sub-Committee of the Tenders Board for the procurement.

The Applicant’s Counsel submitted that it has complied with Sections 1(2), 2(6) & (7), 4 and 7(a) of the Freedom of Information Act, 2011 and satisfied the conditions precedent for the issuance of an order of mandamus from the court.

He cited the following cases: Gani Fawehinmi V. IGP (2007) 7 NWLR (pt.767)606; Atungwu V. Ochekwu (2000)1NWLR (pt.641) 507; and Inyang V. Ebong (2002) 2 NWLR (pt.751) 284.

Finally Applicant’s Counsel urged the Court to grant the application in the interest of justice and observance of the Rule of Law.

The 1stRespondent’s Counsel opposed the grant of the application based on Section 15(1)(b) of the Freedom of Information Act, submitting that the information and documents sought for by the Applicant is a copy of the Bid Evaluation Report of the Technical sub-committee of the Tender’s Board for the procurement and that it involved a third party, the winner of the bid, namely Crown Resources Development Co. Ltd, hereinafter referred to as the Contractor.

He argued further that the intention of the section has its origins in the privity of contract doctrine in the Law of Contract, submitting the release of information to a third party, that is the Applicant, would affect the contractual relationship between parties to the contract.

The 1st Respondent’s Counsel argued that in the present case, the contractor has contractual relationship with 1stRespondent and not the Applicant whilst 1stRespondent cannot be required to disclose or release information or documents between her and the contractor to the Applicant who is not privy to the contract since it would be contrary to Law.

He cited Section 15(1)(b) of the Freedom of Information Act which provides thus – “A public institution shall deny an application for information that contains: … information the disclosure of which could reasonably – be expected to interfere with the contractual or other negotiations of a third party.”

He urged the Court to dismiss the relief of the Applicant as it affects paragraphs of the Schedule of the said application as its grant would cause injustice to the Contractor who is not a party to this suit resulting in a breach of the privity of contract doctrine.

Justice Ademola said a scrutiny of Section 15(1)(b) of Freedom of Information Act 2011 states the circumstances under which a public institution shall deny an application for information to a person, which are that:

a)     The transaction must still be at the negotiation stage

b)     A third party must be involved; and

c)  The disclosure of the information could reasonably be expected to interfere with the contractual or other negotiations of a third party.

Justice Ademola said he agreed with the Applicant Counsel’s submissions in his reply on points of Law that for a public institution to be justified in denying information under the said section of the Law, the above mentioned conditions must exist concurrently.

The judge said the uncontroverted evidence before the Court states unequivocally that the negotiations were concluded and the contract awarded since November 30, 2011 with the contract effective from March 26, 2012.  He referred to the 1stRespondent’s Exhibit B, Paragraph one, Annexture VII in the proceedings.

The judge said he could not agree more with Applicant Counsel’s arguments in his reply on points of Law that negotiations have been concluded and the contract awarded, and therefore “the disclosure of the information sought by the Applicant cannot by any stretch of the imagination reasonably be expected to interfere with any contractual or other negotiations of the Contractor, that is the third party.”

The judge said the Applicant’s averments in the affidavit in support of the substantive motion were not contradicted by the 1st & 2nd Respondents and held that they are deemed as true having being admitted by the opposing party, that is the 1st& 2ndRespondents. He cited Ogoejeofor V. Ogoejeofor (2006)1  S.C (pt.1) 157.

Justice Ademola said this principle of Law also applies to Paragraph 7 of the affidavit in support of the substantive motion wherein the Applicant deposed to requesting inter alia for the documents in issue on August 30, 2012 – several months after conclusion of negotiations between the 1stRespondent and the Contractor, that is the third party.

The judge said he could not agree more with Applicant Counsel’s arguments in his reply on points of Law that negotiations have been concluded and the contract awarded, and therefore “the disclosure of the information sought by the Applicant cannot by any stretch of the imagination reasonably be expected to interfere with any contractual or other negotiations of the Contractor, that is the third party.”

Justice Ademola noted that “As rightly  argued by Counsel in his  well researched address and brilliant reply on point of Law, the 1st Respondent has failed to satisfy conditions (a) and(c) of Section 15(1) (b)  of the Freedom of Information  Act 2011 and not entitled to the exemption stated  herein.”

He held that the 1stRespondent’s processes and written arguments lacked substance,were frivolous, time-wasting and an abuse of the Court process as they have no justification in denying the Applicant the documents sought.

He accordingly granted prayers 1 & 2 of the Applicant’s Motion on Notice dated December 14, 2012, particularly in respect of item “g” in the schedule therein.

The judge also awarded costs of N20,000  jointly and/or severally against the 1st& 2ndRespondents in favour of  the  Applicant.