Online Publishers [OPAN]) sues Attorney General

This matter came up on 17th October 2018, before the Hon. Justice Aikawa.

The Court granted a Motion Ex Parte seeking leave to serve the Originating Summons on the Hon. Attorney General of the Federation in the FCT, Abuja.

The AGF has been served.

The suit was thereafter adjourned to 23rd November, 2018 for mention in the Federal High Court of Nigeria.

See details below

IN THE LAGOS JUDICIAL DIVISION

 HOLDEN AT LAGOS

     SUIT NO. FHC/L/CS/_______________/2018

IN THE MATTER OF SECTION 24 (1)(B) OF THE CYBERCRIMES (PROHIBITION, PREVENTION, ETC.) ACT 2015

BETWEEN

1.         AUSTYN OGANNAH

2.         DANIEL ELOMBAH                                                                           PLAINTIFFS

[Suing For themselves and on Behalf of the                                                 

Online Publishers Association of Nigeria [OPAN])                                                                                                                                                                                

AND       

ATTORNEY-GENERAL OF THE FEDERATION                               –          DEFENDANT

 ORIGINATING SUMMONS

__________________________________________________________________

LET the ATTORNEY-GENERAL OF THE FEDERATION within 30 days of the service of this Summons inclusive of the day of such service cause an appearance to be entered for him to this Summons which is issued upon the application of the Plaintiffs for the determination of the following questions:

1.         Whether Section 24(1)(b) of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 is reasonably justifiable in a Democratic Society under Sections 39(3) and 45(1) of the Constitution of the Federal Republic of Nigeria 1999?

2.         Whether Section 24(1)(b) of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 is constitutional and valid by virtue of Sections 1(3) and 39(1) of the Constitution of the Federal Republic of Nigeria 1999?

AND THE PLAINTIFFS SEEK THE FOLLOWING RELIEFS:

1.         A DECLARATION that Section 24(1)(b) of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 is not reasonably justifiable in a democratic under Sections 39(3) and 45(1) of the Constitution of the Federal Republic of Nigeria 1999.

2.         A DECLARATION that Section 24(1)(b) of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 is unconstitutional and void by virtue of Sections 1(3) and 39(1) of the Constitution of the Federal Republic of Nigeria 1999.

3.         AN ORDER striking down Section 24(1)(b) of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015.

4.         SUCH FURTHER OR OTHER ORDERS as the Honourable Court may deem fit.

GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT:

1.         Section 39(1) CFRN 1999 guarantees the fundamental Right to Freedom of Expression and the Press, including the freedom to hold opinions and to receive and impart ideas and information without interference. 

2.         Section 24(1)(b) of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 is not reasonably justifiable in a Democratic Society within the meaning of Sections 39(3) and 45(1) CFRN 1999.

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3.         Section 24(1)(b) of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 is vague, vagrant, ambiguous, oppressive and aimed at criminalizing and gagging impartation of ideas and information via the New Media.

4.         Section 24(1)(b) of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 trenches on the Right to Freedom of Expression and the Press necessary in a Liberal polity for an Open and Democratic Society for the protection, nurture and growth of the Democracy Culture; and is inconsistent with Section 39(1) CFRN 1999 and void by virtue of Section 1(3) CFRN 1999.

ISSUED THIS _______________ DAY OF________________________2018

   _________________________

                                                                                          REGISTRAR

This Summons was taken out by:

­­­­_________________________

ü  CHIJIOKE O. P. EMEKA

OLUWAKEMI ONI

EMMANUEL-KANT EKEOCHA

LAWRETTA MADUEGBUNAM

OYEYEMI OYELEYE

CHIOMA EZEOBIKA

MARTINS NYIA

Plaintiffs’ Counsel

CHIJIOKE EMEKA & COLLEAGUES

[Auxano Law]

7A, Emma Abimbola Cole Street

Off Freedom Way, Lekki Phase 1

Lekki, Lagos State

Phone: +2348092222084, 08092222085

Email: info@auxanolaw.com

Website: www.auxanolaw.com

The Defendant may appear hereto by entering appearance personally or by a legal practitioner either by handing in the appropriate forms duly completed, at the Federal High Court Registry or by sending them to that office by post.

Note:

If the Defendant does not enter appearance within the time and at the place above mentioned, such orders will be made and proceedings may be taken as the Judge may think just and expedient.

FOR SERVICE ON:

THE DEFENDANT

ATTORNEY-GENERAL OF THE FEDERATION

Chambers of the Honourable, the AGF

Federal Ministry of Justice

Maitama, Abuja

FCT

ENDORSEMENT:

“THIS SUMMONS IS FOR SERVICE OUT OF LAGOS STATE AND IN THE FEDERAL” CAPITAL TERRITORY, ABUJA

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

 HOLDEN AT LAGOS

     SUIT NO. FHC/L/CS/_______________/2018

IN THE MATTER OF SECTION 24 (1)(B) OF THE CYBERCRIMES (PROHIBITION, PREVENTION, ETC.) ACT 2015

BETWEEN

1.         AUSTYN OGANNAH

2.         DANIEL ELOMBAH                                                                                 PLAINTIFFS

(For Suing themselves and on Behalf of the                                                 

Online Publishers Association of Nigeria [OPAN])                                                                                                                                                                                

AND       

ATTORNEY-GENERAL OF THE FEDERATION                 –                            DEFENDANT

 AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS

__________________________________________________________________

I, AUSTYN OGANNAH, Male, Christian, Journalist and Nigerian of Plot 590b Lekan Asuni Close, Omole Phase II, Isheri, Lagos State, do solemnly make oath and state as follows:

1.         I am the 1st Plaintiff in this suit and the President of the Online Publishers Association of Nigeria (“OPAN”), by virtue of which position I am conversant with the facts deposed to herein.

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2.         The facts deposed to herein are within my personal knowledge in the course of my service and duties in the position aforesaid and I have the authority of the Association to depose to this Affidavit.

3.         The 2nd Plaintiff is the General Secretary of OPAN, and a direct victim of Section 24(1)(b) of the Cybercrimes (Prohibition, Prevention etc.) Act 2015, the subject-matter of this suit.

4.         The Defendant is the Chief Law Officer of the Federal Republic of Nigeria and the “Conscience of the Nation”.

5.         The Online Publishers Association of Nigeria (“OPAN”) is an association incorporated under the laws of the Federal Republic of Nigeria to promote the use of the New or Digital Media in Nigeria, by advancing the policies of high-quality online publishing with the advertising community, corporate organizations, the Press, government and the public.

6.         On 15th May 2015, the Cybercrimes (Prohibition, Prevention etc.) Act took effect. The law ostensibly aimed at regulating the increasingly digitalized media to curb resultant cybercrimes. By Section 24(1)(b) of the Act, it was declared a crime for any person to disseminate information through a computer, which he knows to be false for the purpose of causing annoyance, insult, danger, etc to another.

7.         The provision which on the face appears harmless and well-intentioned, has been employed by governments, security agencies and high-profile individuals to intimidate and oppress Journalists, Bloggers and Public Speakers who constructively criticize the activities of government. The execution of the law has seen government bodies and high-profile individuals arrest and detain persons when ever in their opinion any criticism, analysis or publication offends them.

8.         On 25th August, 2015, Seun Oloketuyi was arraigned before the Federal High Court, Lagos for contravention of Section 24(1)(b) of the Act. He was arraigned for cyber-stalking and defamation for a publication on his blog “Naijahottestgist” wherein he shared a story of an alleged illicit affair involving a top official of Fidelity Bank Plc.

9.         Similarly, on 1st September, 2015, Chris Kehinde Nwandu, publisher of ‘Cknnigeria’ and President of the Guild of Professional Bloggers of Nigeria, was arrested for allegedly sharing the said ‘Naijahottesgist’ story on Facebook. He was arraigned two days later for ‘cyber-stalking’.

10.       On 8th August, 2016, a Journalist, Abubakar Sadiq was arrested and detained for 36 hours by operatives of the Economic and Financial Crimes Commission (EFCC), for allegedly posting “offensive publications” against the Commission and its Staff. The EFCC in their press release stated that he was arrested for ‘cyber-stalking’ for a publication he posted on his blog, “Abusidiqu” which was thought critical of the EFCC Chairman.

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11.       On 20th August, 2016, a Journalist, Musa Babale Azare who uses Facebook and Twitter platforms to criticize the activities of Bauchi State Government was arrested in the FCT, Abuja and moved Bauchi State and detained by operatives of the Nigeria Police Force. He was accused of criticizing the State Governor, Muhammad Abdullahi Abubakar.

12.       Musa Babalare Azare was shown a petition written by a law firm on behalf of six persons, including the Chief of Staff to the Bauchi State Government accusing him of ‘cyber-stalking’ the State Governor.

13.       On 1st January, 2018, operatives of the Special Anti-Robbery Squad, SARS, arrested the 2nd Plaintiff and his sibling, Tim Elombah at Nnewi, Anambra State on allegations that they published an article critical of the Inspector General of Police, Mr. Ibrahim Idris. They were detained by SARS and finally arraigned before a Federal High Court, Abuja on 1st March, 2018.

14.       I verily believe that Section 24(1)(b) of the Act is vague and ambiguous and is an easy tool by the State and high-profile persons to intimidate and oppress online journalists and to stifle open constructive criticism of governance, commercial activities and public conduct by Nigerians using the New or Digital Media.

15.       I know as fact that fair criticism is integral to the growth of democracy culture and good governance and the New Media, Digital Media or ‘Social’ Media has become an important platform or medium for expression, dissemination and impartation of  information and ideas the world over, hence OPAN instructed us to take out this Originating Summons to protect the constitutionally-guaranteed press freedom for this new platform for news and information dissemination.

16.       I verily believe that Section 24(1)(b) of the Act is in excess of the legislative intent of curbing cybercrimes. I also verily believe that the provision is not reasonably justifiable in our democratic society being vague and capable of multiple interpretations and has only been a weapon against the right to freedom of expression and the press.

17.       I verily believe that the right to freedom of expression and the press can only be curtailed by a law reasonably justifiable in a democratic society. I also know that any person aggrieved over a libelous publication has a remedy in a civil action for defamation. 

18.       I verily believe that it is in the interest of justice to strike down Section 24(1)(b) of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015.

19.       I verily believe that it is in the interest of justice to grant the reliefs sought in the Originating Summons.

20.       I depose to this Affidavit conscientiously in good faith and in accordance with the provisions of the Oaths Act.

 _______________________

                                                                                                     DEPONENT

Sworn to at the

Federal High Court Registry, Lagos

DATED THIS ____________ DAY OF__________________________2018

BEFORE ME

COMMISSIONER FOR OATHS

FOR MEDIA CONTACT:

Daniel Elombah

 +447460770987

+44-2088087999