WHETHER MATTERS OF PERSONAL DATA PROTECTION FALL UNDER THE RIGHT TO PRIVACY GUARANTEED BY SECTION 37 OF THE 1999 CONSTITUTION

CASE TITLE:  INCORPORATED TRUSTEES OF DIGITAL RIGHTS LAWYERS INITIATIVE & ORS v. NIMC (2021) LPELR-55623(CA)
JUDGMENT DATE: 24TH SEPTEMBER, 2021
PRACTICE AREA: 
LEAD JUDGMENT: ABBA BELLO MOHAMMED, J.C.A.
SUMMARY OF JUDGMENT:
INTRODUCTION
This appeal borders on Enforcement of Fundamental Right
FACTS
This appeal is against the judgment of the High Court of Ogun State delivered on the 15th of July, 2020 by Honourable Justice A. A. Akinyemi, wherein the learned trial judge struck out the Applicant’s suit for want of jurisdiction.

The 2nd Appellant (2nd Claimant) who had registered with the Respondent (Defendant) for the issuance of the National Identity Card was given a National Identification Number Slip which bore a month of birth different from his actual month of birth. The 2nd Appellant then applied to the Respondent for the rectification/correction of his date of birth. To have this done, the Respondent requested the 2nd Appellant to pay a fee of N15,000.00 (Fifteen Thousand Naira only), in accordance with its laid down official policy and procedure. The 2nd Claimant then objected to this request for payment, claiming that it violated his fundamental right to private and family life as guaranteed by Section 37 of the Constitution of the Federal Republic of Nigeria, 1999.
Thus, by an Originating Summons which was supported by a statement, an affidavit and a written address all dated 12th February, 2020 (contained in pages 1–15 of the Record of Appeal), the Appellants, as Applicants sought from the trial Court the determination of the following questions:

1. Whether or not by the construction of Section 37 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Respondent’s act of demanding for payment for rectification/correction of personal data is likely to interfere with the Applicant’s right to private and family life?
2. Whether or not by the provisions of Article 3:1(1)(7)(h) of the Nigeria Data Protection Regulation, 2019 (NDPR), the Applicants can request for rectification/correction of personal data from the Respondent free of charge.

​Based on the determination of the above questions, the Appellants (Applicants) then sought for the following reliefs:

1. A declaration that demand for payment for rectification/correction of personal data of the Applicants is likely to violate the Applicant’s fundamental rights to private and family life guaranteed under Section 37 of Constitution of the Federal Republic of Nigeria 1999 (as amended) and Article 3.1(1)(7)(h) of the Nigeria Data Protection Regulations, 2019 (NDPR).
2. A declaration that rectification/correction of personal data of the Applicants by the Respondent ought to be done without payment by virtue of Section 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Article 3.1(1)(7)(h) of the National Data Protection Regulations, 2019 (NDPR).
3. An order mandating the Respondent to rectify/correct personal data of the Applicants pursuant to Section 37 of Constitution of the Federal Republic of Nigeria 1999 (as amended) and Article 3.1(1)(7)(h) of the National Data Protection Regulations, 2019 (NDPR) free of charge.
4. An order or perpetual injunction restraining the Respondent from further demanding payment for rectification/correction of personal data of the Applicants and/or all other data subjects pursuant to Section 37 of Constitution of the Federal Republic of Nigeria 1999 (as amended) and Article 3.1(1)(7)(h) of the National Data Protection Regulations, 2019 (NDPR).

In response to the Appellants (Claimants) suit, the Respondent filed a Memorandum of Conditional Appearance, a Notice of Preliminary Objection challenging the trial Court’s jurisdiction, as well as a Counter Affidavit to the Originating Summons. The Appellants then countered with a written address in opposition to the Respondent’s preliminary objection and a reply on points of law. Having joined issued on the preliminary objection and the originating summons, the Court heard the parties and in its final judgment, the Court upheld the preliminary objection of the Respondent, declined jurisdiction and struck out the Originating Summons.

Dissatisfied with the judgment of the trial Court, the Appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The appeal was determined on the following issues viz:

1. Whether or not the trial Court was right when it held that rectification of date of birth has nothing to do with right to private and family life guaranteed under Section 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. Whether or not the trial Court was right when it held that the Appellants’ suit which bordered on data protection did not disclose a cause of action under Section 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and thereby occasioned a miscarriage of justice to the Appellants.
3. Whether or not the trial Court was right when it relied on this Court’s decisions in Udo v Robson (2018) LPELR-45183(CA) and Solomon Kporharo V Michael Yedi (2017) LPELR-42418(CA) to hold that a joint application cannot be validly brought under the provisions of Fundamental Rights Enforcement Procedure Rules, 2009.

DECISION/HELD
On the whole, the Court of Appeal held that the appeal lacked merit and same was dismissed. Consequent upon this, the decision of the High Court of Ogun State, per Honourable Justice A. A. Akinyemi delivered on the 15th of July, 2020 striking out the Appellants’ suit was affirmed.

RATIOS:
CONSTITUTIONAL LAW – RIGHT TO PRIVACY: What right to privacy entails
CONSTITUTIONAL LAW – RIGHT TO PRIVACY: Whether matters of personal data protection fall under the right to privacy guaranteed by Section 37 of the 1999 Constitution
CONSTITUTIONAL LAW – ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether a joint application can be filed by more than one person to enforce a right under the Fundamental Rights (Enforcement Procedure) Rules
GOVERNMENT AGENCY – NATIONAL IDENTITY MANAGEMENT COMMISSION: Functions of National Identity Management Commission