NIMC: Demand For Fee To Correct Date Of Birth Is Not A Breach Of Right To Privacy — Court of Appeal Rules

*Says Charging Of Fee Is An Administrative Action, Not Fundamental Rights Issue
*Says Only Federal High Court Can Entertain Suit Challenging The Administrative Action Of Federal Govt Agency Such As NIMC
*Says Joint Application For Enforcement Of Fundamental Rights Is Permissible Under FREP Rules

The Court of Appeal sitting at Ibadan Judicial Division has held that demand of fees for the rectification of date of birth in National Identity Card is not a breach of the right to privacy.

The Judgement was delivered by Justice Abba Bello Muhammad JCA in Appeal Number:CA/IB/291/2020 between the Incorporated Trustees of Digital Rights Lawyers Initiative & 2 Ors. v. National Identity Management Commission. The other parties to the suit are Mr. Adeyemi Atayero and Mr. Olasunkanmi Bello as 2nd and 3rd Applicants respectively.

Atayero was given a National Identification Number Slip by National Identity Management Commission (NIMC) which bore a month of birth different from his actual month of birth. He applied to the NIMC for rectification/Correction of the date of birth. To have this done, the NIMC requested the Atayero to pay a fee of N15,000.00 ( Fifteen Thousand Naira Only), in accordance with it’s laid down Official policy and procedure. Atayero 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.

The reliefs he sought are as follows:

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).”

However, the trial Court upheld the preliminary Objection raised by the defendant and struck out the case for want of Jurisdiction. The Court of Appeal upheld the decision on the basis that the suit does not disclose a cause of action. According to the Court of Appeal, demand of fee for correction of date of birth is an administrative action of a federal government agency, NIMC.

Hon. Justice Muhammad JCA held thus:

“As rightly observed by trial court at pages 89-91 of the Record of Appeal, the case of the Appellant is not that the Respondent had denied the 2nd and 3rd Appellants registration or that the Respondent or any of its agents granted unauthorized access to their personal data without their consent. Indeed, in holding that the rectification of date of birth and demanding the sum of N15,000 from the 2nd Appellant for such rectification has nothing to do with the right to privacy guaranteed under Section 37 of CFRN,1999,the learned trial Judge had, in my view, categorized the Appellants’ case correctly when he held at pages 89- 90 as follows:

‘Also, from the facts presented before this court, the demand for payment of a fee was not a condition precedent for registration, but for something that came after registration, as administrative fee for correction of the error in the data supplied by the 2nd Claimant, for his registration. As I have earlier noted, the claimants have not asserted that the error in the 2nd Claimant’s date of birth arose as a result of the Defendant’s default. I am unable to fathom how this requirement constitutes an infraction to the Claimant’s right to privacy under Section 37 of the Constitution. This suit is clearly a challenge of the power of the Defendant to charge a fee for the rectification or correction of the error contained in the 2nd Claimant’s birth date and not a challenge of a denial of his right to be registered for identification as a Nigerian citizen… The decision of the Defendant, a Federal Government Agency, to charge a fee for its services is clearly an executive/administrative one, in my humble view. (underline mine for emphasis).

“I am in agreement with the above reasoning and conclusion of the trial court. Before that court, the Appellants have in their Originating Summons only tried to masquerade their challenge to the executive/administrative policy of the Respondent of charging fees for rectification of personal data in its National Identity Database, as a fundamental right suit pursuant to Section 37 of CFRN, 1999. However, even the provisions of the NDPR,2019 upon which they relied to masquerade their suit as a fundamental right suit under Section 37 of CFRN,1999, does not grant an absolute right to rectification of personal data free of charge. Rather it subjects such a right to other public policies or regulations. In other words, the NDPR, 2019, even though a regulation that generally relates to data protection, it recognizes that there may be other public policies or regulations on data management covering specific areas.”

However, the Court of Appeal agreed with the Appellants that the application was competently brought jointly. It held that the cases of Udo V Robson (2018) LPELR-45183(CA) and Solomon Kporharo V Michael Yedi (2017) LPELR-4248(CA) which held that a joint application cannot be validly brought under the provisions of Fundamental Rights Enforcement Procedure Rules, 2009 are distinguishable with the instant case. Relying on Section 14 of the Interpretation Act and other relevant decisions of the Supreme Court, the Court held that words in singular include plural. Thus, the singular word “any person” in section 46(1) of the 1999 Constitution includes “persons”.

The Court of Appeal further restated that the suit was wrongly brought under FREP Rules.

“before the trial court have been earlier resolved against the Appellants.I have already found in resolving those issues, that the trial court was right in its judgment declining jurisdiction to entertain the Appellants’ suit, not being a cause of action that can be brought under the fundamental rights civil procedure rules, but one that falls under executive/administrative actions/decisions of a Federal Government, agency, which by Section 251(1)(r) of the 1999 Constitution falls under the exclusive jurisdiction of the Federal High Court. Having so held, I could only determine that this appeal is in the final analysis lacking in merit.

Accordingly, this appeal is hereby dismissed and the decision of the High Court of Ogun State,per Honourable Justice A. A.Akinyemi delivered on the 15’h of July, 2020 striking out the Appellants’ suit is hereby affirmed. Cost of N100,000.00 is hereby awarded against the Appellants.” The Court ruled.