WHETHER THE MEANING OF THE TERM “PRIVACY OF CITIZENS” IS RESTRICTED TO SPECIFIC ASPECTS OF LIFE OF A CITIZEN

CASE TITLE:                         INCORPORATED TRUSTEES OF DIGITAL RIGHTS LAWYERS INITIATIVE & ORS v. NIMC (2021) LPELR-55623(CA)

JUDGMENT DATE:           24TH SEPTEMBER, 2021

JUSTICES:                            UGOCHUKWU ANTHONY OGAKWU, JCA

                                           FOLASADE AYODEJI OJO, JCA

                                           ABBA BELLO MOHAMMED, JCA

COURT DIVISION:            IBADAN

PRACTICE AREA:            Constitutional Law- Right to Privacy

FACTS

The 2nd Appellant, who was the 2nd Claimant at the High Court of Ogun State, had registered with the Respondent for the issuance of a National Identity Card and was given a National Identification Number Slip which bore a month of birth different from his actual month of birth. He then applied to the Respondent for the rectification of his date of birth. To have this done, the Respondent requested the 2nd Appellant to pay a fee of N15,000.00 in accordance with its laid down official policy and procedure.

The 2nd Appellant 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, the Appellants instituted an action against the Respondents, seeking for: a declaration that a demand for payment for rectification of personal data of the Appellants is likely to violate their fundamental rights to private and family life; a declaration that the rectification ought to be done without payment; an order mandating the Respondent to rectify the personal data of the Appellants free of charge and an order or perpetual injunction restraining the Respondent from further demanding payment for rectification of personal data of the Appellants and all other data subjects.

In response to the Appellants suit, the Respondent filed a Memorandum of Conditional Appearance and a Notice of Preliminary Objection challenging the High Court of Ogun State’s jurisdiction.

The trial High Court heard the parties, and in its final judgment upheld the preliminary objection of the Respondent, declined jurisdiction over the matter and struck out the Originating Summons.

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

ISSUES

The Court determined the appeal upon consideration of the following issues:

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.

COUNSEL SUBMISSIONS

Learned Counsel for the Appellants submitted that the right to privacy guaranteed under Section 37 of the Constitution means the right to be free from public attention or free from intrusion into one’s private space by others, as well as protection of personal information from others. He argued that the meaning of “privacy of citizens” is very wide and does not define the specific aspects of privacy of citizen it protects, but must be interpreted liberally to include privacy of citizen’s body, life, person, thought, et cetera.

On the right to the rectification of personal data, Learned Counsel referred the Court to the Nigeria Data Protection Regulations which emphasized the need to interpret the privacy right of a data subject for the purpose of advancing and not restricting his fundamental rights as well as the right of data subjects to obtain rectification of inaccurate personal data concerning them. He contended that by virtue of this, the right to rectification of data is a data protection right and this is subsumed in the right to privacy guaranteed under Section 37 of the Constitution of the Federal Republic of Nigeria.

Learned Counsel therefore submitted that the trial Court was wrong when it held that the demand for payment of N15,000 for correction of the date of birth of the 2nd Claimant has absolutely nothing to do with privacy. He posited that since rectification of personal data is a right, the Respondent cannot validly ask for payment before such a right can be exercised and enjoyed.

On the other hand, Learned Counsel for the Respondent submitted that the Appellant’s case before the trial Court was not a fundamental right action and that the complaint of the Appellants is rather against the administrative decision or procedure of the Respondent. He contended that it is the Federal High Court and not the State High Court that has jurisdiction to entertain the suit before the trial Court.

​Learned Counsel argued that the statutory fee for modification of the 2nd Appellant’s date of birth which is paid to the Federal Government through Remita is a matter within the ambit of Section 251(1)(a) which bothers on the revenue of the Federal Government, thus, the Appellants’ case was wrongly commenced before the High Court of Ogun State.

​He also submitted that the NDPR relied upon by the Appellants does not state that modification of the 2nd Appellant’s date of birth should not be done by the Respondent without payment of prescribed fees and as such none of those provisions was breached by the Respondent. He added that there is nothing in those provisions which suggest that the 2nd Appellant has the right to have his date of birth modified without payment of the prescribed fees.

DECISION/HELD:

On the whole, the Court of Appeal held that the appeal lacked merit and dismissed same. Consequently, the decision of the High Court of Ogun State striking out the Appellants’ suit was affirmed.

RATIO:

“In highlighting the absence of a clear scope of the right to “privacy of citizens” as guaranteed under Section 37 of CFRN, 1999, this Court, per Agim, JCA (as he then was, now JSC), had held in the cited case of NWALI v. EBSIEC (2014) LPELR-23682(CA) at pages 27 – 29, para. E, as follows: The meaning of the term “privacy of citizens” is not directly obvious on its face. It is obviously very wide as it does not define the specific aspects of the privacy of citizens it protects. A citizen is ordinarily a human being constitution of his body, his life, his person, thought, conscience, belief, decisions (including his plans and choices), desires, his health, his relationships, character, possessions, family, etc. So how should the term “privacy of citizens” be understood? Should it be understood to exclude the privacy of some parts of his life? This can be seen from its holding that the right includes “privacy in private family life and incidental matters when this aspect is not expressly provided for in that Section and that meaning is not patently obvious from the text of that Section…The privacy of home, privacy of correspondence, privacy of telephone conversations and privacy of telegraphic communication are clear and particular as to the nature of privacy protected or the area or activity in respect of which a person is entitled to enjoy privacy… It is glaring that the phrase “Privacy of Citizens” is general and is not limited to any aspect of the person or life of a citizen. It is not expressly defined by the Constitution and there is nothing in the Constitution or any other statute from which it’s exact meaning or scope can be gleaned.” Per MOHAMMED, J.C.A.

• What right to privacy entails –

“In declining jurisdiction to entertain the Appellants’ Originating Summons, the trial Court had, at pages 89 -90 of the Record of Appeal, considered the decisions of this Court in FRN v. DANIEL (2011) LPELR-4152(CA) and NWALI v. EBSIEC (2014) LPELR-23614(CA), on which the Appellant relied, and held as follows: These two decided cases clearly explain the scope and ramifications of the right guaranteed under Section 37 of the Constitution. The kernel of both the provision of Section 37 of the Constitution and these illuminating decisions is to my mind, that privacy of a citizen of Nigeria shall not be violated. From these decisions, privacy to my mind can be said to mean the right to be free from public attention or the right not to have others intrude into one’s private space uninvited or without one’s approval. It means to be able to stay away or apart from others without observation or intrusion. It also includes the protection of personal information from others. This right to privacy is not limited to his home but extends to anything that is private and personal to him including communication and personal data.” Per MOHAMMED, J.C.A.