A’Court Brings States Under FoI

Following several contradictory judgements by high courts, Davidson Iriekpen welcomes the decision of the Court of Appeal, which held that states are duty bound to comply with the provisions of the Freedom of Information Act

The Akure Division of the Court of Appeal last week affirmed the legislative competence of the National Assembly to make laws for the peace, order, and good government of Nigeria when it ruled that the Freedom of Information Act is applicable to states.

Delivering judgment in an appeal filed by Martins Alo, a journalist, against the Speaker of the Ondo State House of Assembly and Auditor-General of Ondo State, the court held that states did not need to replicate or domesticate the FoI Act to be bound by its provisions.

It noted that the requests for information, especially around public expenditure, under the FoI Act were made in public interest and should be honoured by all states.
Alo had demanded the audited report of the Ondo State Government between 2012 and 2014 to properly asses how public funds were utilised in the state. But the request was turned down, prompting him to seek judicial redress. At the State High Court in Akure, the court in 2016 ruled that the plaintiff had no right to demand how the state was spending money, saying the FoI Act was not applicable to states and that the request was not in public interest. The judge, Justice Williams Akintoroye, imposed on the journalists a fine of N10,000 for wasting time and resources of the state.

But Alo’s lawyer, Femi Emodamori appealed the ruling, arguing that Justice Akintoroye erred in his judgment and that his client was acting in public interest.

In its ruling a three-member panel of the Court of Appeal set aside Justice Akintoroye’s ruling and agreed with the appellant that the FoI Act was applicable to states and it was in public interest for the state government to release its audited report.
The panel members are Justice Uzo Ndukwe-Anyanwu, Justice Obande Ogbuinya and Justice Ridwan Abdullahi. Justice Ndukwe-Anyanwu who wrote the lead judgment held that Alo had a right to act on behalf of the public to obtain the information from state authorities. He also quashed the N10,000 fine imposed on him by the lower court.

“In a democratic dispensation, such as Nigeria’s, the citizens have been proclaimed the owners of sovereignty and mandate that place leaders in the saddle, The citizens have a right to know details of “expenditure of public funds generated from their taxes,” Justice Ogbuinya said in his concurring opinion.
The FoI Act became effective in 2011 when it was signed by President Goodluck Jonathan. The euphoria that greeted its enactment was cut short when a school of thought insisted that the legislation must be replicated by the 36 state houses of assembly for states to be bound by the Act.

To test the efficacy of the law, an Ibadan-based human rights activist, Mr. Yomi Ogunmola, wrote a letter dated July 20, 2012 to the Clerk of the Oyo State House of Assembly, seeking, pursuant to section 2 of the Act, to know the source of the funding of the legislators’ wives trip to London, having regard to the fact that the women were neither public servants nor civil servants. The clerk in replying the letter dated July 25, 2012 stated: “You may however be informed that the FoI Act 2011, under which you are requesting for information contained in your letter is not presently applicable in Oyo State because it has not been domesticated by the state.”

Based on this reply, Ogunmola filed an application before the court asking it to determine whether the Act needed to be domesticated by Oyo State for it to apply in the state.
He asked the court to determine, among others, Whether any Act of the National Assembly made in furtherance of its powers under sections 4(2) and 4 (4)(b) of the 1999 constitution (as amended) to make laws for the peace, order, and good government of the federation or any part thereof requires states domestication to be applicable in the respective states of the federation; whether the FoI Act 2011 intended to ease access inter alia to the public records and information should be construed restrictively as applicable only to federal government institutions;
However, the house of ssembly in opposing the suit, also formulated two issues for the court to determine one of which is: Whether an Act of the National Assembly enacted on a subject matter which is not on the exclusive legislative list of the second schedule of the Constitution, automatically becomes applicable in Oyo State.

Arguing the brief, the Director of Civil Litigation and Advisory Services, Oyo State Ministry of Justice, Mrs. F.B Segun- Olakojo, said it could be deduced that the National Assembly could only enact laws on matters within the exclusive and concurrent lists to the extent prescribed by the constitution.
She argued therefore that it was not true that once the National Assembly makes laws, such laws become an automatic application throughout the component states of the federation.
In 2013, Justice Akinteye held that the application of the FoI Act was for the entire federation, and therefore states did not have to domesticate it.
The judge said the FoI Act being an Act of the National Assembly does not need to be domesticated by the 36 state Houses of Assembly before it becomes law in the state.

He premised his decision on a similar issue on whether the National Assembly could make laws for the peace, order, and good government of Nigeria which came up for consideration at the Supreme Court in the case of Attorney General of Ondo State Vs Attorney General of the Federation and others (2002)NWLR (Part 772) Pg 222.

The judge referred to the judgment of Justice Odemwingie Uwaifo of the apex court where he said: “It would seem right to conclude that where a subject- matter in its manifestation spreads across states and even over the borders of Nigeria and is such that is best suited for legislation by the National Assembly upon a liberal construction of all relevant provisions of the constitution, a legislation thus made cannot be said to be an interference with the affairs of states just because it is made applicable to all over the federation. The purpose and mission of the Act is clear. The Act is meant to make justiciable by legislation a declared state policy to abolish corrupt practices and abuse of power.”

The judge said the Supreme Court judgment cited had made it clear that the National Assembly had the legislative competence to make laws for the peace, order, and good government of Nigeria that is applicable to all states of Nigeria without infringing on the autonomy of the states, if such a legislation is designed to correct a malaise plaguing the country.

He held thus: “It is not true as canvassed by learned counsel to the defendant that such a legislation had to be adopted by the states of the federation to be applicable in their states… Information is not within the exclusive or concurrent lists of the 1999 Constitution. Nevertheless, the Act is of general application to both the federal and state governments as defined by ‘public institution’ which refers to any legislative, executive, judicial, administrative or advisory body of the government including boards, bureau, committees, or commissions of the state and any subsidiary bodies.
“It is my further view that the National Assembly has enacted the FoI Act to be operational throughout the country in the interest of the common good and national interest.”

However, the contradictory judgments which the Nigerian courts are known for set in when Justice Okon Abang of the Federal High Court then in Lagos ruled otherwise. Delivering judgment in a suit filed by Legal Defence and Assistance Project Limited/GTE against some states of the federation over their refusal to provide some information requested under the FoI Act, Abang ruled that the Act was not binding on the states. He held that the FoI Act, being an enactment of the National Assembly, was only binding on the federal government and its agencies.

In the suit, Attorney General and Commissioners of Finance of the states were sued by the applicant over their refusal to provide information requested under the FoI Act. The states were Lagos, Imo, Rivers, Abia, Akwa Ibom and Delta. The applicant had through letters dated December 12, 2011 requested from the states information on the bond raised by the states in the capital market.

Specifically, the applicant had requested for details of the amount raised and received by the respective states from the Nigerian capital market through public offer or private placement between 2007 and 2011. The applicant also requested for details of stockholders including individual or company or public entity that bought or acquired interest in the states’ bond or stock at the capital market of the respective states. Besides, it further requested details of how the amounts received in the said capital market bond or stock were disbursed and utilised including date of disbursement and their beneficiaries.
But all the states refused to provide the requested information, a development which compelled the applicant to approach the court.

Lagos and Akwa Ibom filed counter affidavits to the suit, and canvassed arguments on the point that the FoI Act could not be made binding on them, as it was a federal enactment.
They cited on a Supreme Court authority of Fawehinmi Vs IG reported in 2002, 7NWLR, Pt 768, Section 606, where it was held that a person seeking order of mandamus must show how the refusal of such would affect him more than other members of the society.

Justice Abang, after reviewing the case, said he was inclined to agree with the states.
He added: “In the light of the above, this court lacks jurisdiction to entertain the matter in issue. The same lacks merit; it is an abuse of court process; it is null and void and unconstitutional and it is accordingly struck out. Cost of N10,000 is awarded in favour of each of the defendants payable by the applicant. I so hold.”

The party that won at the Court of Appeal should not celebrate yet because the Supreme Court has the final say.
The party that won at the Court of Appeal should not celebrate yet because the Supreme Court has the final say

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