Is the Nigerian Bar Association a Public Institution within the Stipulation of the Freedom of Information Act

CASE TITLE:  PROFESSOR ERNEST OJUKWU (SAN) v. THE REGISTERED TRUSTEES OF THE NIGERIAN BAR ASSOCIATION & ORS (2022) LPELR-57895(CA)

JUDGMENT DATE:  30TH JUNE, 2022

JUSTICES:  PETER OLABISI IGE, JCA

HAMMA AKAWU BARKA, JCA

UGOCHUKWU ANTHONY OGAKWU, JCA

COURT DIVISION:  ABUJA

PRACTICE AREA:  LEGAL PRACTITIONER- NIGERIAN BAR ASSOCIATION

FACTS:

The Appellant, a senior member of the Bar, desirous of accessing certain information as it relates to the Nigerian Bar Association, wrote several letters to the Respondents, requesting the desired information. The Respondents did not reply to the said letters and thereby refused to give the Appellant access to the information requested.

The Appellant, therefore, commenced an action by way of Application for Judicial Review pursuant to the provisions of the Freedom of Information Act, based on the refusal of the Respondents to furnish him with the information and documents he sought. He sought a declaration that the failure of the Respondents to furnish him with information and documents sought vide his letters amounts to wrongful denial of information under the Freedom of Information Act and for an order compelling the Respondents to furnish him with the information and copies of documents sought within 7 days.

The Respondents responded by filing a preliminary objection seeking for an order dismissing the Appellant’s action for want of jurisdiction. The preliminary action was based, inter alia, on the grounds that the Nigerian Bar Association is not a public institution nor is it a business venture; thus, the Nigerian Bar Association is not a Public Institution and does not fall within the scope of the provision of the Act.

The trial Court took argument on the preliminary objection alongside the substantive application. In its ruling on the preliminary objection, even though the trial Court held that the Nigerian Bar Association was not a public institution within the meaning of the Freedom of Information Act, it still upheld its jurisdiction to entertain the Appellant’s suit. In its judgment on the substantive application for judicial review, the trial Court held that the Appellant is not entitled to the Reliefs sought as the Book of Account of the NBA is not for Public Consumption and the Appellant is not entitled to have access to them.

Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES:

The appeal was determined upon consideration of the issue thus:

“Whether the trial Court was not right when it declined the Appellant’s application for judicial review on the ground that the NBA is not a public institution to which the Freedom of Information Act applies.”

COUNSEL SUBMISSIONS

Learned Counsel for the Appellant submitted that the trial court erred when it held that the Nigerian Bar Association is not a public institution. That the Nigerian Bar Association performs public functions including the regulation of lawyers in Nigeria and that the Association provides several public services and performs public functions as provided by the Legal Practitioners Act and other legislation of the National Assembly.

Counsel submitted that the definition of a public institution that is required to provide information under the Freedom of Information Act, does not have an additional requirement for the body to keep public records; and that it is wrong to read into legislation, words which are not there.

On the other hand, Learned Counsel for the Respondents submitted that the trial Court rightly held that the Nigerian Bar Association is not a public institution to which the Freedom of Information Act applies and that it correctly drew a distinction between a public institution as contemplated under the Act and a professional body like the Nigerian Bar Association. That the Act relates only to access to public records and information of public institutions and not otherwise.

DECISION/HELD

In the final analysis, the appeal was dismissed.

RATIO

LEGAL PRACTITIONER- NIGERIAN BAR ASSOCIATION: Whether the Nigerian Bar Association is a Public Institution within the stipulation of The Freedom of Information Act –

“…Let me state at this outset that by Section 1 (2) of the Freedom of Information Act, the Appellant does not have to demonstrate any specific interest in the information he applied for. The crux of this appeal is whether the Nigerian Bar Association is an organization to which the stipulations of the Freedom of Information Act, which provide for public access to public records and information apply. Put differently, whether the Nigerian Bar Association is a public institution as provided for under the Freedom of Information Act.

In this wise, it is agreed on all sides that the Nigerian Bar Association is registered as not for profit organization under the relevant provisions of the Companies and Allied Matters Act. Section 1 (1) of the Freedom of Information Act establishes the right of any person to access or request information which is in the custody or possession of any public official, agency or institution howsoever described. So, the right as established will be applicable to the Nigerian Bar Association where it is a public official, public agency or public institution.

It has not been confuted that the Nigerian Bar Association is neither a public official nor a public agency. But is it a public institution? Section 2 (7) of the Freedom of Information Act provides as follows: “Public institutions are all authorities whether executive, legislative or judicial agencies, ministries and extra-ministerial departments of the government, together with all corporations established by law and all companies in which government has a controlling interest and private companies utilizing public funds, providing public services or performing public functions.”?

The thrust of Section 2 of the Freedom of Information Act is to make provisions for the bodies stated therein, including public institutions, to keep proper records and information about their activities, operations and businesses in a manner that will facilitate public access to such information. The meaning of public information as provided for in Section 2 (7) which I have reproduced above, would seem not to accommodate the Nigerian Bar Association as it is neither an executive, legislative or judicial agency, ministry nor the extra-ministerial department of government. It is also not a corporation established by law and it is not a company in which the government has a controlling interest; neither is it a private company.

The Nigerian Bar Association as agreed on all sides is a corporation aggregate incorporated with Registered Trustees and registered under Part C of the Companies and Allied Matters Act. The Appellant correctly sued the Nigerian Bar Association as a corporation aggregate as the 1st Respondent herein is the Registered Trustees of the Nigerian Bar Association and not Nigerian Bar Association itself, which is not a juristic person: FAWEHINMI vs. NBA (NO. 2) (1989) LPELR 1259 (SC) or (1989) 2 NWLR (PT 105) 558 at 595 and MOSES vs. NBA (2019) LPELR (46918) 1 at 6-14. It would therefore seem that since the Nigerian Bar Association does not come within the purview of a public institution as defined in Section 2 (7) of the Freedom of Information Act, there is no obligation on it, in respect of the observance and compliance with the provisions of Section 2 of the Freedom of Information Act.

The matter does not end there. At least not yet. Section 20 of the Freedom of Information Act provides that any applicant who has been denied access to information by a public institution may apply to Court for judicial review. Section 31 of the Act then goes on to define “public institution” for purposes of the Act thus: “means any legislative, executive, judicial, administrative or advisory body of the government, including boards, bureau, committees or commissions of the State: and any subsidiary of those bodies including but not limited to committees and sub-committees which are supported in whole or in part by the public fund or which expends public fund and private bodies providing public services, performing public functions or utilizing public funds” In contradistinction to Section 2 (7), a specific stipulation which mentions “private companies”, the general interpretation provision in Section 31 employs the phrase “private bodies”, which will be wide enough to accommodate the Nigerian Bar Association if the rest of the definition applies to it, id est, “providing public services, performing public functions or utilizing public funds”.

This goes to the root of whether the Nigerian Bar Association is a public institution. The pith of the Appellant’s contention on why the Nigerian Bar Association is a public institution is as advocated in paragraphs 4. 1. 5 et seq. on pages 8-10 of the Appellant’s Brief to the effect that the Nigerian Bar Association performs public functions, provides public services and utilizes public funds. Expectedly, the Respondents have contended the converse that the Nigerian Bar Association is not a public institution.

The Appellant contends that the public functions rendered by the Nigerian Bar Association include the regulation of lawyers in Nigeria and the public duty vested in the Nigerian Bar Association under the Legal Practitioners Disciplinary Committee Rules 2020 to receive originating applications, investigate and prosecute proceedings before the Legal Practitioners Disciplinary Committee. Paucis verbis, the regulation of the legal profession and lawyers in Nigeria is not vested in one body. It is a duty shared by many … See NBA vs. KEHINDE (2017) LPELR (49798) 1 at 18-19. The Nigerian Bar Association may have representation in the various bodies that regulate the legal profession and lawyers, but it is an over-generalization for it to be submitted, as the Appellant has done, that the Nigerian Bar Association performs the public function of regulation of lawyers.

No. It is a task that is performed by several bodies in which the Nigerian Bar Association only plays an infinitesimally limited role which cannot be equated to the Nigerian Bar Association solely performing the function of regulation of lawyers in Nigeria, so as to bring it within the umbrella of a public institution for the purposes of the Freedom of Information Act.

Furthermore, by Section 10 (1) (b) of the Legal Practitioners Act, the Body of Benchers is vested with the function of exercise of disciplinary jurisdiction over members of the legal profession and in this regard, the Body of Benchers Legal Practitioners Disciplinary Committee is established by Section 10 (1) of the Legal Practitioners Act. SeeLPDC vs. FAWEHINMI (1985) LPELR (1776) 1 at 29-30. The fact that the adjectival law, the Rules of the Disciplinary Committee gives the Nigerian Bar Association a role in the exercise of the disciplinary jurisdiction of the Body of Benchers, cannot be equated to the performance of public services or functions by a private body for the purposes of being a public institution under the Freedom of Information Act. Now, to the linchpin of the Appellant’s argument, which is that the Nigerian Bar Association utilises public funds in the form of practising fees paid by lawyers and fees paid for stamps and seals.

It cannot be confuted that the Nigerian Bar Association is a professional association to which legal practitioners mandatorily belong: CHINWO vs. OWHONDA (2008) 3 NWLR (PT 1074) 341 and NBA vs. KEHINDE (supra) at 25-27. The Legal Practitioners Act provides in Section 8 that for a legal practitioner to be accorded the right of audience in any Court in Nigeria in any year, the legal practitioner has to pay a practising fee. The practising fee is paid to the Chief Registrar of the Supreme Court who then pays nine-tenths (90%) of the amount collected to the Nigerian Bar Association.

It appears to me that for the purposes of the Legal Practitioners Act, the Chief Registrar of the Supreme Court is the avenue by which the practising fees paid by legal practitioners is channelled to the Nigerian Bar Association. It has to be remembered that the practising fees is only paid by a legal practitioner whose name is on the roll of legal practitioners. A person who is not a legal practitioner does not pay practising fees. So, strictu sensu, practising fees is only paid by virtue of the professional association, just as in the same way as the stamp and seal. It is therefore arguable if the said practising fees are public funds, just on account of the mere fact that the Chief Registrar of the Supreme Court is the conduit through which the practising fees are collected for the Nigerian Bar Association.

It is therefore my informed stance that it does not make the Nigerian Bar Association a public institution within the meaning of the Freedom of Information Act. ? Arguendo, if the practising fee is public funds and the utilisation of the same by the Nigerian Bar Association makes it a public institution for the purposes of the Freedom of Information Act, it seems to me that the information which the Appellant can seek access to under the Freedom of Information Act, will be informed as to how the practising fees and funds from stamp and seal had been utilised by the Nigerian Bar Association. However, this is not the information which the Appellant requested and which formed the subject matter of his application for judicial review.

The information which the Appellant requested as set out in the Schedule to his application is as follows…It is effulgent that the above transcends requesting for information on utilisation of the proceeds of the practising fees and payments for stamp and seal. Besides, it has to be remembered that as I already stated, the Nigerian Bar Association is not captured in the specific provision of public institutions in Section 2 (7) of the Freedom of Information Act, which is to keep records and information about their activities, operations and business as required by Section 2 of the Freedom of Information Act. The legal maxim is generalia specialibus non-derogant and specialibus generalibus derogant.

The specific provision of Section 2 (7) is exempted and taken out of the general provision of Section 31 and its ambit, such that the general provision on the meaning of public institution would not apply to Section 2, given the specific meaning of public institution in Section 2 (7). SeeMARTIN SCHRODER & COMPANY vs. MAJOR & COMPANY NIGERIA LTD (1989) LPELR (1843) 1 at 31, KRAUS THOMPSON ORGANISATION vs. NIPSS (2004) LPELR (1714) 1 at 18, ARDO vs. NYAKO (2014) LPELR (22878) 1 at 47 and MATARI vs. DANGALADIMA (1993) LPELR (25714) 1 at 21. ?I have already alluded to the incontrovertible fact that the Nigerian Bar Association is a corporation aggregate with Registered Trustees, the 1st Respondent in this matter.

The incidents of incorporation as a corporation aggregate attached to the Nigerian Bar Association. Section 30 (1) of the Freedom of Information Act provides as follows: “This Act is intended to complement and not replace the existing procedures for access to public records and information and is not intended to limit in any way access to those types of official information that have been normally available to the general public.” By the above provision, the Freedom of Information Act does not replace the existing procedures for access to public records… Accordingly, the issue for determination is resolved against the Appellant. The appeal is devoid of merit, the same fails and it is hereby dismissed. The decision of the lower Court delivered on 18th September 2020 is affirmed.” Per OGAKWU, J.C.A.