Court Grants Media Rights Agenda Leave to Sue Lagos State Ministry of Health

Abubakar Malami
Abubakar Malami, Hon. Minister of Justice & Attorney General of the Federation

Lagos, Wednesday, March 22, 2017: Justice Beatrice Oke-Lawal of the High Court of Lagos State, Ikeja Division has granted Media Rights Agenda (MRA) leave to sue the Lagos State Ministry of Health (the Ministry) for its refusal to grant access to the information requested by MRA pursuant to the Freedom of Information (FOI) Act, 2011.

The Judge, after hearing Counsels to MRA, Ms Chioma Nwaodike and Ms Morisola Alaba, both of FOI Attorneys, granted the prayers in the Motion Ex parte filed before her.

The Court gave MRA leave to sue the Ministry for the following reliefs:

  1. A declaration that the failure and/or refusal by the Ministry to disclose or make available to the MRA the information requested by it in its Applicant’s letter to the Ministry dated November 4, 2016 amounts to a violation to MRA’s right of access to Information established and guaranteed by Section 1(1), & 4 of the Freedom of Information Act, 2011.
  2. A declaration that the failure and/or refusal by the Ministry to disclose or make available to MRA the information requested by it in its letter to the Ministry dated November 4, 2016 amounts to wrongful denial of access to information under section 7(5) of the Freedom of Information Act, 2011.
  3. A declaration that the failure and or refusal by the Ministry to give written notice to MRA that access to all or part of the information requested will not be granted, stating reasons for denial and the section of the Act under which the denial is made amounts to a violation of Section 4(b) of the Freedom of Information Act, 2011.
  4. AN ORDER OF MANDAMUS compelling the Ministry to disclose or make the following available to MRA;
  • Details and copies of plans put in place to provide the Araromi Zion Estate located in Akiode Area of Ojodu LCDA with health care services;
  • Details and copies of plans put in place to provide the Araromi Zion Estate located in Akiode Area of Ojodu LCDA with health care services taking into consideration their peculiar needs and circumstances;
  • Details of any research or assessment carried out on the needs of the said Estate and copies of relevant research or assessments report or reports;
  • If there are plans to provide the said Estate with primary health care facilities, please outline the timeframe for the implementation of the plans; and
  • Details of the budgets and costs estimates for the implementation of the said plans, if any.

The Judge, in her ruling, however refused to grant the relief seeking to compel the Attorney General of the Federation to initiate criminal proceedings against the Ministry for wrongful denial of access to information. The judge also declined to grant MRA leave to seek damages against the Ministry.

Relying on the Freedom of Information (FOI) Act, MRA made a request for information to the Ministry pertaining to its plans for providing primary health care services to the Araromi Zion Estate in Akiode Area of the State.

The Ministry, however, failed to respond to the request within the seven-day timeframe provided by the law for public institutions to respond to such requests for information.

The Court has adjourned the matter to April 12, 2017 for MRA to file its papers for judicial review.

Court Orders Police to Disclose to Media Rights Agenda its Information Classification Practices

justiceMonday, August 22, 2016: A Federal High Court in Abuja has ordered the Nigerian Police and Inspector General of Police to disclose to Media Rights Agenda (MRA) information relating to practices and procedures for the classification of records and documents held by the Police.

Justice Nnamdi Dimgba made the order while delivering judgment in a suit filed by MRA against the Police over its refusal to provide MRA with the information requested by the non-governmental organization on February 23, 2016, pursuant to the Freedom of Information Act, 2011.

In the request for information, MRA asked, among other things, for details of internal policies, practice directives, and standing orders, regardless of what they are called, that guide the classification and declassification of information in the custody of the police as well as what the levels of classification are and who has the authority to classify information.  However, the Police failed to provide the requested information.

In the suit filed on behalf of MRA by its lawyer, Mr Godwin Chigbu, against the Nigerian Police, the Inspector General of Police and Attorney General of the Federation, MRA sought the following reliefs:

  • A declaration that the failure of the Police and the Inspector-General of Police to furnish MRA with the information requested through its letter of February 23, 2016 amounts to a wrongful denial of information under the Freedom of Information Act, 2011; and

  • An order compelling the Police and the Inspector-General of Police, jointly and severally, to within seven days of the judgment in the suit, furnish MRA with the information requested.

The Police has opposed the suit, claiming that it never denied MRA the information but that there was a delay in the release of the information caused by the chain of command in the Police, which must be followed from the highest rank of Inspector General of Police to the least rank of constable.

The Attorney-General of the Federation also asked the court to strike out the suit on the grounds that MRA did not disclose any cause of action and that MRA was not a juristic person capable of suing and being sued. The Attorney-General also contended that MRA’s request to the Police was not for information but that the organization was merely asking the Inspector-General of Police to lecture it on the procedure for classifying a document.

Dismissing the Attorney-General’s objection on the ground that MRA’s application was not a request for information, Justice Dimgba held that the whole essence of the FOI Act is “to provide access to information  in whatever form the information might be” to the citizenry.

He added that where the Nigerian Police wishes to deny or refuse the request for information, the reason for the refusal or denial must fall within any of the heads of exemption expressly provided for in the FOI Act.

On the Attorney-General’s contention that MRA lacked the capacity to sue, Justice Dimgba held that MRA is duly registered in accordance with the Laws of Nigeria and therefore had a right to bring the action.

He further held that MRA did not need to show or exhibit its certificate of incorporation from the Corporate Affairs Commission in order to maintain the suit, as argued by the Attorney-General.

Besides, the judge noted, the definition of a “person” who has capacity to bring an FOI action in court within the meaning of the FOI Act includes “a body of persons, whether corporate or incorporate, acting individually or as a group”.

The court also dismissed the Attorney-General’s argument that he should not have been joined as a party in the suit, noting that Section 29 of the FOI Act gives the Attorney-General a “special place” in terms of the “overall enforcement and compliance with access to public information obligations of public institutions.”

According to Justice Dimgba, “Having been given such a prime place within the legal regime, it sounds certainly counter-intuitive and perhaps, disingenuous, to say the least, that the same AGF’s office can come back to argue that it was improperly joined as a party in a suit where the principal allegation is that an agency of government is demurring from enforcing its obligation under the FOI Act.”

The judge also dismissed the claim by the Police that it did not deny MRA the information requested but merely delayed in disclosing it because of bureaucratic delays with the Police caused by the chain of command.

He stressed that the FOI Act is a “special legislation, and is one in which the liberty of action by the public institutions on which the obligations which it creates rest, is severely constrained.”

Justice Dimgba held that from the facts, it was obvious that there could be no legal justification founded on the FOI Act for an agency such as the Police to just keep silent and not respond although they got MRA’s letter on February 24, 2016.

He held that the Police and the Inspector-General breached their duty under the FOI Act by not dealing with the request that had been validly presented to them, adding that the issue of chain of command is an internal matter of the Police and “should not stand in the way of obliging an applicant with public information which the Law has already given him entitlement to.”

Justice Dimgba therefore entered judgment in favour of MRA and ordered the Police and the Inspect-General of Police to disclose the information requested by the organization.

Court Orders Oshimili North LG Council in Delta State to Disclose Budgets, Approved Projects

Hon. Justice Olatoregun-Ishola
Hon. Justice Mojisola Olatoregun-Isola

A Federal High Court in Asaba has ordered of the Oshimili North Local Government Council in Delta State to disclose to a Lagos-based non-governmental organization, Human Development Initiatives (HDI), the council’s budgets from 2012 to 2014 and the projects duly approved for implementation in 2013.

The court’s decision comes in the heels of a similar order issued by the same court on February 18, 2015 against two other councils in the State –  Oshimili South and Ika South Local Government Areas – following a suit filed against them by HDI over their refusal to grant its request for the information made under the Freedom of Information Act on February 24, 2014.

Following three separate suits filed on May 15, 2014 by a Lagos lawyer, Mr. Andy Isioma Ogbolu, on behalf of HDI against Oshimili South, Ika South and Oshimili North Local Government Councils, Justice Mojisola Olatoregun-Isola granted HDI leave on May 21, 2014 to apply for:

  • A declaration that the failure and/or refusal by the Councils to disclose and make available to HDI the information sought in its letters of request dated February 24, 2014 amounts to a violation of HDI’s right of access to information as guaranteed by sections 1(1) and 4(a) of the Freedom of information Act, 2011.
  • A declaration that the failure and/or refusal by the Councils to give HDI a written notice that access to all or part of the information requested would not be granted and stating reasons for the denial and the section of the FOI Act upon which the Councils relied to deny HDI access to the information requested in its letters amounts to a flagrant violation of sections 4(b), 7(1), (2) and (3) of Act and is therefore wrongful.
  • An order of mandamus compelling the Councils to disclose and make available to HDI as requested in its letters of February 24, 2014 the Councils’ budgets for the years 2012, 2013 and 2014; documents detailing all projects duly approved for implementation in 2013; the locations of the projects; and the actual cost of each of the projects approved and/or implemented by the Councils in 2013.

Ruling on the suits on February 18, 2015, Justice Mojisola Olatoregun-Isola granted all the prayers sought against Oshimili South and Ika South Local Government Councils.

She however adjourned the suit against Oshimili North Local Government to February 26 as the Council’s lawyer, Mr. B.O. Okoji, had raised a preliminary objection on the grounds the Council was not given a pre-action notice as required by Section 7 of the Delta State Local Government Law 2004, as amended, and that the Council and its former chairman, Hon. Innocent Esenwaeze, also named as a respondent, were not served with the originating court processes.

At the conclusion of arguments by both parties on the preliminary objection, Justice Olatoregun-Isola delivered a ruling on April 2 in which she dismissed the objection relating to non-issuance of pre-action notice to the Council.  The judge held that “an application of this nature which is meant to be dealt with summarily does not require a pre-action notice,” adding that “such pre-action notice will merely hinder the summary nature of the action.”

She stressed that “the idea behind Section 20 of the Freedom of Information Act is to deal with judicial review of matters pertaining to denial of access to information speedily and summarily,” adding that an action under the FOI Act is akin to “an enforcement of fundamental rights proceedings, which is meant to be heard and determined expeditiously.”

Justice Olatoregun-Isola also upheld the argument of Mr. Ogbolu that service of the court processes on the Council through its Clerk “is good service”.

But she held that there was no evidence before the court that the former Chairman of the council or the most senior officer of the Council was served with the processes.  She said as a result, the jurisdiction of the court could not be invoked against the former chairman and directed that he should be personally served with the originating processes within seven days.

Following the ruling, Mr. Ogbolu applied to the court to strike out the name of the former chairman of the council from the suit since he was no longer in office, which the court granted.

Mr. Ogbolu therefore moved the motion to compel the council to disclose the information requested by HDI.

In a brief ruling on May 12, Justice Olatoregun-Isola granted the prayers sought by HDI and ordered the Council to make available to HDI as requested in its letters of February 24, 2014 the Councils’ budgets for the years 2012, 2013 and 2014; documents detailing all projects duly approved for implementation in 2013; the locations of the projects; and the actual cost of each of the projects approved and/or implemented by the Councils in 2013.

FOI Suits: Court Orders 2 LG Councils in Delta State to Disclose Budgets, Approved Projects

Prof Bolaji Owasanoye
Prof. Bolaji Owasanoye, Executive Director, Human Development Initiative (HDI)

Wednesday, February 18, 2015:  A Federal High Court in Asaba today issued an order of mandamus compelling two local government councils in Delta State –  the Oshimili South and the Ika South Local Government Areas – to disclose to a Lagos-based non-governmental organization, Human Development Initiatives (HDI), the councils’ budgets from 2012 to 2014 and the projects duly approved for implementation in 2013.

The court’s decision was the culmination of a nine-month long litigation by HDI following the refusal of the Local Government Councils to grant its request made under the Freedom of Information Act on February 24, 2014.

Following three separate suits filed on May 15, 2014 by a Lagos lawyer, Mr. Andy Isioma Ogbolu, on behalf of HDI against Oshimili South, Ika South and Oshimili North Local Government Councils, Justice Mojisola Olatoregun-Isola granted HDI leave on May 21, 2014 to apply for:

  • A declaration that the failure and/or refusal by the Councils to disclose and make available to HDI the information sought in its letters of request dated February 24, 2014 amounts to a violation of HDI’s right of access to information as guaranteed by section 1(1) and section 4(a) of the Freedom of information Act, 2011.
  • A declaration that the failure and/or refusal by the Councils to give HDI a written notice that access to all or part of the information requested would not be granted and stating reasons for the denial and the section of the Freedom of information Act upon which the Councils relied to deny HDI access to the information requested in its letters dated February 24, 2014 amounts to a flagrant violation of section 4(b), 7(1), (2) and (3) of Act and is therefore wrongful.
  • An order of mandamus compelling the Councils to disclose and make available to HDI as requested in its letters of February 24, 2014 the Councils’ budgets for the years 2012, 2013 and 2014; documents detailing all projects duly approved for implementation in 2013; the locations of the projects; and the actual cost of each of the projects approved and/or implemented by the Councils in 2013.

At today’s proceedings, the lawyers to the three Councils were absent.  Mr. Ogbolu urged the Court to allow him move the motions before the court and to adopt his written address since the Councils had been duly served with the court processes and were aware that the case was fixed for today.

He argued that it was the duty of the courts and every person in the country to hold governments accountable, arguing that ordinary citizens would be discouraged from using the FOI Act to hold governments accountable if judicial processes were unduly prolonged.

Justice Olatoregun-Isola granted Mr. Ogbolu’s request to be allowed to argue his case.  He therefore moved the motion before the court and adopted his written address.

In a brief ruling, Justice Olatoregun-Isola granted all the prayers sought against Oshimili South and Ika South Local Government Councils.  She however noted that in the suit against Oshimili North Local Government Area, the lawyer representing the Council had raised a preliminary objection, saying she would prefer to hear from him before proceeding further on that case.

The judge therefore adjourned the third case to February 26, 2015 for hearing and ordered that the lawyer to the Council should be issued with a hearing notice advising him of the new date.

Sample Freedom of Information Request Letter

Sample Freedom of Information Request Letter

Your Name
Your Address
Your Telephone Number
Your E-mail Address

Date

The Freedom of Information Officer

(You may also choose to address the letter to the head of the institution, namely: the Permanent Secretary, in the case of a Ministry; the Director-General, in the case of an Agency; or the Managing Director, in the case of a public corporation)

Name of Public Institution
Address of Public Institution

Dear Freedom of Information Officer,

Application for Information/Records/Documents Under the Freedom of Information Act

 In accordance with the Freedom of Information Act, 2011, I hereby apply for copies of the following documents:

  1. A copy of the minutes of the meetings of the Procurement Planning Committee of the Ministry of Internal Affairs, held on May 28, 2011, at which a the decision was taken to purchase 250 laptop computers for senior officers of the Ministry.
  2. Copies of all correspondence, including emails, between officials of the Ministry of Information and the company known as Blue Skies International, from January 1, 2011 and June 30, 2011, leading to the signing of the Memorandum of Understanding dated July 1, 2011.
  3. A list of all the applications for building plan approvals and permits granted by the Ministry of Urban Planning between May 29, 2007 and May 28, 2011. The list should indicate the name of the applicant, the date of the application, the date the application was granted, the type of building approved and the amount paid in fees and charges by each applicant

I would be grateful if you could supply me with photocopies of these documents.

Should you require any clarification regarding this application, please do not hesitate to contact me either by phone (your phone number) or by email (your email address).

I look forward to receiving these documents promptly and, in any event, within 7 days of the receipt of this application, as required by the Freedom of Information Act, 2011.

Yours sincerely,

Signature
Your Name

Download the Microsoft Word version of this temple Sample_FOI_Request_Letter

Failure of Respondent to Furnish Applicant with Information Sought Amounts to a Wrongful Denial of Information – FOI Law Report

In the High Court of Justice

Federal Capital Territory of Nigeria

Holden at Abuja

Before His Lordship: Honourable Justice Olukayode A. Adeniji, Judge
Sitting at Court No. 26 Apo-Abuja

On Tuesday, 9th July, 2013

 

Motion No. M/3059/13

Between:

Public & Private Development Centre                                                            –  PLAINTIFF

LTD/GT (PPDC)

And

Integrated Parking Services Ltd                                                                     –  RESPONDENT

Facts of the Case

 

Upon being granted leave of court on April 17, 2013, the Applicant filed a Motion on Notice, dated April 23, 2013, praying the court for:

  •  A Declaration that the failure of the Respondent to furnish Applicant with the documents/information sought vide Applicant’s letter of December 13, 2012 amounts to a wrongful denial of information under the Freedom of Information Act, 2011.
  • Order of the Honourable Court compelling the Respondent to forthwith furnish Applicant with the information and copies of the documents set out in the Schedule to the Application.
  • And for such other order or orders as the Honourable Court may deem fit to make in the circumstances.

In the Schedule to the Application, the following documents/information were listed:

  1.  How much has the Respondent realized from inception of engagement of her services by the FCTA till date?
  2. How much has the Respondent remitted to the FCTA till date and by what means was the money remitted
  3. What are the terms of the Respondent’s engagement by the Federal Capital Territory Administration and how much accrues to the Respondent from this engagement?
  4. Certified copy accounts of the Respondent showing all moneys realized in the course of her services to the Federal Capital Territory Administration.
  5. Certified copy of the Respondent’s contract of engagement with the Federal Capital Territory Administration.

Applicant also filed a Statement pursuant to Order 42 Rule 3(2) of the Federal High Court Rules, an Affidavit in support of the motion for mandamus in which it exhibited Applicant’s letter to the Respondent, dated December 13, 2012; and also filed a written address in support of the motion for mandamus.

Ruling

His Lordship said he had carefully considered the application and also carefully examined the totality of the processes filed to support the application, including learned counsel’s written submissions of arguments in support thereof.

He noted that pursuant to the ex-parte application of the Applicant, the court granted leave on April 17, 2013 to bring the application.

His Lordship said it is also to be noted as it is borne by the records of the Court that the Respondent has not responded one way or the other to the application, the implication being that she is not contesting the application and the affidavit deposed to in support of the same.

According to him, it is not in dispute that pursuant to the provisions of Section 1 of the Freedom of Information Act, the Applicant is not only competent to bring the application; but is also entitled to have access to the information sought by the application.

His Lordship said he was satisfied, by virtue of the provision of Section 2 (7) and Section 31 of the Freedom of Information Act, that the Respondent is under lawful obligation to disclose to the Applicant the information sought by the application.

He said further that upon proper examination of the affidavit filed to support the application and especially the documents attached thereto, being letter of December 13, 2012 by which the Applicant formally requested from the Respondent, the information as set out in the schedule to the application; which letter the Respondent failed to respond as requested, he is therefore satisfied that it is appropriate in the circumstances to grant the application as prayed.

His Lordship accordingly declared that the failure of the Respondent to furnish the Applicant with the information sought, vide her letter of December 13, 2012, amounted to a wrongful denial of information and in violation of the provisions of Section 1 of the Freedom of Information Act, 2011.

He consequently issued an order of mandamus compelling the Respondent to furnish on the Applicant forthwith, information required as set out in the Schedule to the application; namely:

  1. How much has the Respondent realized from inception of engagement of her services by the Federal Capital Territory Administration up to date?
  2. How much has the Respondent remitted to the Federal Capital Territory Administration till date and by what means was the sum remitted?
  3. What are the terms of the Respondent’s engagement by the Federal Capital Territory Administration and how much accrues to the Respondent from this engagement?
  4. Certified copy accounts of the Respondent showing all moneys realized in the course of her services to the Federal Capital Territory Administration.
  5. Certified copy of the Respondent’s contract of engagement with the Federal Capital Territory Administration.

His Lordship directed that the order be served on the Respondent forthwith.

G.N. Chigbu, Esq. – for the plaintiff/Applicant

Court Grants EiE Leave to Compel FAAN, First Bank, Coscharis to Disclose Purchase Documents of Bullet Proof cars

A Federal High Court in Lagos on February 27, 2014 granted Enough is Enough (EiE) Nigeria, a non-governmental organization, leave to apply to the court in three separate suits to compel the Nigerian Civil Aviation Authority (NCAA), First Bank of Nigeria (FBN) and Coscharis Motors Limited to disclose the information requested by the organization on the purchase of two bullet-proof cars for the former Aviation Minister, Princess Stella Oduah.

Justice Mohammed N. Yunusa
Justice Mohammed N. Yunusa

The presiding judge, Justice Mohammed N. Yunusa, granted EiE leave to pursue three separate suits filed on behalf of the organization by Media Rights Agenda’s legal officer,  Omolola Adeoya.

In the first suit against the NCAA, EiE is seeking:

(1)         A declaration that  the  failure  and/or refusal of NCAA to grant access to or make available to EiE the information it requested by its letter dated October 30, 2013 is a violation of EiE Nigeria’s right of access to information established and guaranteed by Section 1(1) and Section 4(a) of the  Freedom  of Information Act, 2011.

(2)         A declaration that the failure and/or refusal by NCAA to give EiE a written notice that access to all or part of the information requested would not be granted and stating reasons for the denial and the section of the  FOI Act upon which NCAA relied to deny EiE access to the information requested by it amounts to a flagrant violation of Section 4(b), 7(1), (2) and (3) of the FOI Act and is therefore wrongful.

(3)         An order of mandamus compelling NCAA to disclose or make available to EiE the Statements of Income and Expenditure of the NCAA from January 2010 to October 2013, being the information requested from NCAA in EiE’s letter dated 30 October, 2013.

EiE Nigeria

(4)         An order of mandamus directing the Attorney General of the Federation to initiate criminal proceedings against the NCAA for the offence of wrongful denial of access to information under Section 7(5) of  the FOI Act.

In the second suit, filed against First Bank of Nigeria (FBN), EiE is seeking similar reliefs as in the NCAA cases as well as:

a)      The credit application file the bank provided for the lease facility of N836,970,156  for the purchase of two bullet proof BMW 760 LlHSS vehicles for the NCAA from Coscharis Motors with the following details:

i.)      original documents including pro-forma invoice(s) from the supplier, request letter from NCAA and insurance certificate for the assets (the BMW vehicles);

ii.)rationale for approval including the credit application (or an acceptable alternative) originating the request and details of the approving authority; and

iii.)  offer letter to NCAA stating  the  terms  and conditions of the loan facility.

b)      The loan account statement reflecting the two payments already made as stated during the testimony of Mr. Joyce D. Nkemakolam, the Director of the Aerodrome and Airspace Standards and former Acting Director General of NCAA.

In the third suit, filed against Coscharis Motors, EiE is seeking in addition to similar reliefs in its case against NCAA, the release of:

a)      Invoice(s) and landing documents for the two BMW vehicles acquired by NCAA with chassis numbers WBAHP41050DW68032 and WBAHP41010DW68044.

b)      Details of the payment for the vehicles if they were paid in full or hire purchased as reported by the media.

All parties have been served and the case comes up on April 15, 2014.

Court Orders Minister of Finance to Publish Details of Statutory Transfers

Finance Minister, Dr Ngozi Okonjo-Iweala, by a Federal High Court in Abuja has been ordered to grant the Centre for Social Justice (CSJ) access to the details of the statutory transfers in the 2013 federal budget. This is by the judgement of Justice Abdu Kafarati of the Federal High Court, Abuja on February 25, 2014 in the Matter of Centre for Social Justice V Minister of Finance (Suit No. FHC/ABJ/CS/301/2013) .

In a letter sent to Honourable Minister of Finance on April 5 2013, CSJ sought the details of the statutory transfers in the 2013 budget. However, this request was denied by the Minister.CSJ argued in the letter that there is no law authorizing lump sum statement of allocations. Stating statutory transfers as lump sums is not acceptable in a constitutional democracy founded on the rule of law and the sovereignty of the people. Indeed, no agency of government, under any guise, is allowed to spend public resources in a way and manner and for purposes not known to citizens explained CSJ.

CSJ approached the Court under the Freedom of Information Act and the Fiscal Responsibility Act to compel the Office of the Minister of Finance to grant its application.

The Court held:

“The Applicant herein has satisfied the Court that they applied for the information from the Respondent which information was refused. It is not in dispute that the information is in the custody or possession of the Respondent in his capacity as a public official. It is therefore my opinion that the applicant has satisfied the requirement for the grant of this application. Accordingly the Applicant’s Originating Motion dated 5th June, 2013 is granted as prayed as regards prayers A – D”.

The Court specifically granted the following reliefs:

A. That a declaration is hereby granted that denying the Applicant access to the details of the statutory transfer in the 2013 Appropriation Act by the Respondent without explanation constitutes an infringement of the Applicant’s right guaranteed and protected by section 1(1) of the Freedom of Information Act, 2011.

B. That a declaration is hereby granted that the continued refusal of the Respondent to grant to the Applicant access to the details of statutory transfer in the 2013 Appropriation Act despite Applicant’s demand violates Section 4 of the Freedom of Information Act, 2011.

C. That a declaration is hereby granted that the continued refusal of the Respondent to grant access to the Applicant of the details of the statutory transfer in the 2013 Appropriation Act without explanation constitutes an infringement of the Applicant’s right guaranteed and protected by section 48 of the Fiscal Responsibility Act, 2007.

D. That an Order of Mandamus is granted compelling the Respondent to grant to the Applicant access to the details of the statutory transfer in the 2013 Appropriation Act specifically the details of the transfer to the National Judicial Council, Niger-Delta Development Commission, Universal BasicEducation, National Assembly, Independent National Electoral Commission and National Human Rights Commission.

According to CSJ, “This judgement is a reaffirmation of the right of Nigerians to be governed in an open and transparent manner and through the rule of law – encompassing fiscal responsibility and best practices in fiscal governance.”

Judge Rules that FOI Act is of General Application to all tiers of Government, their Officials, Agencies and Institutions

In the High Court of Justice

Oyo State of Nigeria

In the Ibadan Judicial Division

Holden at Ibadan

Before the Honourable Justice S. A. Akinteye, Judge

Thursday, the 31st Day of October, 2013

Court No. 54

Suit No. M/332/12

Between:

 Yomi Ogunlola & 1 Or                                                           –  CLAIMANTS

 And

 Speaker, Oyo State House of Assembly & 3 Ors                   –  DEFENDANTS

His Lordship, Akinteye, J., noted that by a ruling  delivered on the preliminary objection raised to the originating summons on March 28, 2013, the questions for determination in the suit were as follows:

  1. Whether any Act of the National Assembly, made in furtherance of its powers under section 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?
  2. Whether the Freedom of Information (FOI) Act, 2011, intended to ease access inter alia to public records and Information should be construed restrictively as applicable only to Federal Government institutions?
  3. Whether in constructing Section 2(1) of the Freedom of Information Act, 2011 the 3rd Respondent is right to hold that the Freedom of Information Act 2011 is inapplicable to Oyo State same not having been domesticated.

If the answers to the above issues are in the negative, then the Applicants seek the following reliefs:

1.   Declaration that the powers granted to the National Assembly under section 4(2) of the 1999 Constitution (as amended) to make laws for the peace, order and good government of the Federation or any part thereof is made absolute by the provisions of Section 4(5) of the 1999 Constitution (as amended) albeit without prejudice to the provisions of Section 4(7) thereof.

2.   Declaration that Section 12 of the 1999 Constitution (as amended) which is in furtherance of Item 31 on the Exclusive Legislative list intended for implementing international treaties has no domestic equivalent under the Constitution or any other law empowering states to domesticate Acts of the National Assembly for applicability in the respective states.

3.   Declaration that Section 2(1) and 3(7) of the FOI Act, 2011 are not restrictive but of general application to all tiers of government i.e. Federal, State and Local Government, their officials, agencies or institutions howsoever described.

The originating summons is supported by an 18-paragraph affidavit deposed to by one Ola Bada, a legal practitioner and 2nd Claimant to the suit.

In his written address, dated August 29, 2012 to the originating summons, the learned counsel for the claimants who is the 1st claimant, referred to the questions for determination in the originating summons and submitted as follows:

Ms. Jumoke Sunmonu, Speaker Oyo State House of Assembly
Ms. Jumoke Sunmonu, Speaker Oyo State House of Assembly

On the 1st question, counsel referred to Sections 4(2) and 4(3) of the 1999 Constitution  of Nigeria (as amended) and submitted that the National Assembly’s competence to legislate thereon to the exclusion of any other law making body in the Federation is not in doubt. He said the constitution did not confer upon the states, powers which the Houses of Assembly do not otherwise possess. He said in the absence of provisions in the concurrent legislative list empowering a House of Assembly to domesticate Acts for their applicability in the component states cannot arrogate to themselves such power.

Counsel further submitted that Acts of the National Assembly, where validly made, are laws for the Federal Republic of Nigeria, not the Federal Government and that their applicability extends automatically to the component parts.

Counsel also referred to Sections 4(4) and 4(5) of the 1999 Constitution of Nigeria and submitted that the National Assembly and the House of Assembly of states have concurrent powers to make laws on matters within the concurrent Legislative list but the laws made by the National Assembly on the concurrent list have supremacy over state legislation on the same matters and where so made, they become applicable without more.

The National Assembly has 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 legislation is designed to correct a malaise plaguing the country.”

He further submitted that by virtue of Section 4(5) of the constitution (supra) which voids state law on the ground of inconsistency, a state law can also be void by applying the doctrine of covering the field. He said where identical legislation on the same subject matter were validly made by the state and the Federation, and where the Federal Act is intended to cover the entire field and provide what the law on a subject should be for the entire Federation, that other law will be void. He cited A-G Ogun State Vs Aberuagba (2002) 2WRN at 57.

He further submitted that where such laws are made by the National Assembly, they become of immediate application as though they were on the Exclusive Legislative List, irrespective of the provisions of any state law to the contrary.

He also stated that it is not out of place for states to re-enact Federal Laws, there is no compulsion by law to do so and the rule of inconsistency is always acting as a check on the choice. He cited A-G for Ontario Vs A-G for the Dominion (1896) Ac 348;  A.G Ogun State Vs. A-G. Federation (1982) 1-2 SC at 41, 95-96; and Lakanmi Vs A-G. Western Region (1974) EGSLR 713 at 722.

Counsel submitted further that where matters have real and substantial relation to the National interest, and they are outside both the Exclusive and the Concurrent Legislative lists as contained in the 1999 Constitution of Nigeria (as amended), they can be dealt with at the National Assembly under Section (4)(b), even if doing so will amount to interference with activities within a State or States, provided it is to the attainment of a legitimate end.

He said when it is so addressed by legislation, such law becomes applicable without the need for further enactment into law by the respective component States of the Federation and referred to: A-G Ogun State Vs. A-G Federation (Supra) and A.G. Ondo State Vs. A-G Federation (2002) Vol. 22 WRN1.

He also referred to Section 12(1) of the 1999 Constitution (as amended) and stated that the provision has no comparable provision under domestic law requiring that an Act of the National Assembly be first domesticated for its applicability in the component units of the Federation.

He said Section 15 of the Interpretation Law Cap. 65, Laws of Oyo State 2000 is not the same as Section 12(1) of the Constitution

He said the provision is for mere administrative convenience and is incapable of suspending or delaying the applicability or abrogating an Act validly made by the National Assembly in the absence of non-compliance with the said Section 15 of the Interpretation Law. He urged the court to resolve the 1st issue in the negative.

Counsel argued the 2nd and 3rd questions together. He submitted that following the Supreme Court’s decision in A-G Ondo State Vs A.G. Federation (Supra)that Section 4(2), 15(5) and Items 60(a), 67 and 68 of the Exclusive Legislative list of the 1999 Constitution not only impose a duty on the Federal Government to abolish all corrupt practices and abuse of power but also impose the duty of making law through the National Assembly for that purpose.

He further submitted that Information is neither in the Exclusive nor Concurrent Legislative Lists, but where matters have real and substantial relation to the national interest and they are outside both the Exclusive and the concurrent Legislative lists as contained in the 1999 Constitution (as amended), they can be dealt with at national level by legislation in accordance with the supplementary powers of the National Assembly under Section 4(4) (b), even if doing so will amount to interference with activities within a state or states, provided it is to the attainment of a legitimate end.  He cited A-G Ogun State Vs. A-G Federation (Supra).

Counsel submitted further that while it is not out of place for states to re-enact Federal laws as has been the usual practice in Lagos State for instance, there is no compulsion by law to do so and the rule of inconsistency is always acting as a check on the choice. He said it is utter flummery to hold that in the absence of such re-enactment by States, Federal Law is inapplicable to states and referred to Section 21(1) of the FOI Act 2011.

His lordship said it is therefore quite clear that the FOI Act was enacted by the National Assembly pursuant to section 4(4)(b) of the 1999 Constitution (as amended) in order to bring into effect the provision of Section 39(1) of the same constitution which guarantees the fundamental right “to receive and impart ideas and informational without interference”.

He also referred to Section 32 of the Freedom of information Act for the definition of “Public Institution”.  He further stated that the definition of “Public Institution” is not restricted to any level of government and should therefore not be construed restrictively.

Counsel contended that the words “Act” “Law” and “Regulation” as used in Section 2(1) of the FOI Act, 2011 express the intendment of the drafters of the law to cover the entire field without more and that it is trite that when the words in an Act are clear and unambiguous, they should be given their ordinary meaning. He cited ­Akintola Vs. Adegbenro (1963) Act 614;  Awolowo Vs. Shagari & Ors. (1979)6-9 SC 31; and PDP & Ors Vs. INEC 7 SC (Pt.2) at 30.

He referred to Section 12(1) of the 1999 Constitution (as amended) and stated that the provision has no comparable provision under our domestic jurisprudence requiring that an Act of the National Assembly be first domesticated in the component units of the Federation. He said that Section 15 of the Interpretation Law, Cap. 65 Laws of Oyo State is not the same as section 12(1) of the Constitution referred to and cannot be a ground for postponing or delaying the applicability of or indeed abrogate a Federal Act in the absence of such modifications.

In view of this, counsel contended that the defendants cannot be right in holding that the FOI Act, 2011 is inapplicable to Oyo State, same having not been domesticated.

He urged the court to resolve the 2nd and 3rd issues in the negative and grant all reliefs sought in the originating summons.

In her written address in opposition to the Originating Summons, Learned Counsel to the defendants, Mrs. F.B. Segun-Olakojo, Director, Civil litigation and Advisory Services, identified 2 issues for determination as follows:

1.Whether an Act of the National Assembly enacted on a subject matter which is not in the Exclusive Legislative list of the Second Schedule of the Constitution of the Federal Republic of Nigeria 1999 automatically becomes applicable in Oyo State of Nigeria.

2. Whether the FOI Act, 2011, an Act of the National Assembly enacted pursuant to Item 4 of the Concurrent List in the Second Schedule of the 1999 Constitution of the Federal Republic of Nigeria automatically applies in Oyo State considering the provisions of Item 5 on the same list.

On the 1st issue, counsel submitted that Nigeria operates a Federal system of government and that powers are vested in the National Assembly and the House of Assembly of the 36 States by the Constitution of Nigeria.

She said Section 4 of the 1999 Constitution of Nigeria empowers the National Assembly to enact laws for the Federation subject to the provisions of Section 4(2) and (3) of the Constitution. She also referred to Section 4(4) (a) & (b) of the Constitution which confers on the National Assembly the power to legislate on any matter in the concurrent legislative list set out in the first column of part II of the second schedule.

She submitted that the golden rule of interpretation of the constitution must prima facie be given their ordinary meaning, and cited Ekpenkhio Vs. Egbadon (1993) 7NWLR(pt.308) 717 at 739 (par. F. – H) and  NNPC & Anor Vs. Famfa Oil Ltd. (2012) 5 SC (Pt. 11) 38 at pg. 49

She said it can be deduced that the National Assembly can only enact laws on matters within the Exclusive and Concurrent lists to the extent prescribed by the Constitution.

Counsel also referred to Sections 4(6) and 4(7) of the Constitution (Supra) and stated that the Houses of Assembly of States are also vested with powers to make laws for the states in accordance with the provisions of the Constitution. She said this power has not been eroded, diminished or abolished in any form.

She said it is not true that once the National Assembly enacts laws, such laws become of automatic application throughout the component States of the Federation and urged the court to so hold and discountenance claimant’s argument.

On the 2nd issue, counsel submitted that the FOI Act is not based on any item in the Exclusive Legislative lists which would have ousted the jurisdiction of any other body in making its own laws concerning the subject matter. She said the explanatory memorandum of the Act explains that the Acts is to make public records and information freely available and that Archives and public records are items contained in the Concurrent Legislative list in part II of the second schedule of the 1999 Constitution.

She said the National Assembly and the State House of Assembly can legitimately legislate on these items as admitted by the claimants.

Counsel referred to items 4&5 of the Concurrent list and stated that the intention of the Constitution is to have the National Assembly enact laws on this subject matter in relation to Archives and public records of the Federation while the State House of Assembly enacts its own laws in respect of Archives and public records of Oyo State.

His lordship also noted that “the FOI Act is not the first law enacted by the National Assembly that covers the whole Federation of Nigeria. There is also the Economic and Financial Crimes Commission (EFCC) Act as well as Independent Corrupt Practices Commission Act (ICPC) which covers the whole country. Officials of States, Local Governments and Federal Government are being arraigned in court or investigated for various offences under these laws passed by the National Assembly and without the State governments having adopted the EFCC and ICPC Acts in their various states. I wish to state that there is no section in the 1999 Constitution (as amended) which prescribes that a law enacted by the National Assembly has to be adopted by the State House of Assembly to make that law applicable to the state.”

However, she said the vital point on this is that whatever law is passed by Oyo State House of Assembly on this subject matter must not be inconsistent with the Act of the National Assembly already enacted.  She said each state of the Federation has its own peculiarity and that is the spirit behind the Constitution in putting these items in the Concurrent list and not in the Exclusive Legislative list.

Counsel further submitted that Section 4(5) of the Constitution is not applicable because Oyo State has not passed any law that is inconsistent with the FOI Act.

On the issue of covering the field as canvassed by the claimants, she submitted that the case of A-G Ogun State Vs. Aberugba (Supra) is not on all fours with the present one.  She said what the House of Assembly of Oyo State is saying is that it has to enact its own law to adopt the provisions of the Act for it to become applicable in Oyo State.

She said this is not the first time this will be done and gave some examples such as ‘Public Officers’ Protection Law, “State Universal Basic Education Law”, Child Rights Law”, Oyo State “Independent Electoral Law” and “Criminal Law”.

She said these laws were legitimately enacted by the State Legislature despite the fact that there are Federal Government Acts enacted on the same subject matter. However, she said such laws must not be inconsistent with the provisions of the Federal Acts.

Counsel further submitted that in order to adopt the FOI Act in Oyo State, it is necessary to enact a law which is not inconsistent with the Act and will reflect all formal alterations as provided in Section 15 of the Interpretation Law Cap. 65 Laws of Oyo State 2000.

She further stated that the intention of the Federal Legislature in enacting the Act was not to make its provisions of automatic application throughout the component states of the Federation of which Oyo state is one and referred to Section 31 of the Act where Minister is defined and there is no reference to “Commissioner” as provided for the states of the Federation”.

Also, she stated that the definition of government in Section 29 of the Act shows that the FOI Act is only applicable to Federal Government institutions as opposed to that of the government of Oyo State.  Furthermore, she said Section 29(1) of the Act refers to the Attorney-General of the Federation who is a Federal Government officer and not that of the state.

Counsel finally submitted that the provisions of the FOI Act is not intended to have immediate and automatic application in Oyo State until it is adopted and enacted by the Oyo State House of Assembly which is constitutionally empowered to do so.

She urged the court to dismiss Claimants’ claim.

His lordship, Akinteye, J., said having read and considered the Originating Summons as well as the written addresses of both counsel, he wished to take the questions for determination in the suit one after the other as listed by the Claimants.

On the 1st question of:  “Whether any Act of the National Assembly, made in furtherance of its powers under Section 4(2) and 4(4) 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,” his lordship is it would be pertinent to set out some sections of the 1999 Constitution of Nigeria (as amended).

His lordship identified them as sections 4(2), (3), 4(4), (a) & (b) & (5) and quoted their provisions, saying  there is no doubt that Nigeria is a federation with component number of states and the Federal Capital Territory.

He stated that the 1999 Constitution (as amended) has spelt out matters within the legislative competence of the National Assembly and those of the component state Houses of Assembly, adding that it has also given power to both the National Assembly to legislate on matters spelt out in the Concurrent list of part 2 of the Second Schedule, with a provision that a state law must not be inconsistent with a law validly made by the National Assembly.

His lordship noted that the Claimant’s counsel had strenuously argued that the National Assembly can legislate not only on matters specified in the Exclusive Legislative and Concurrent lists, but can also legislate on matter not covered in both lists for the peace, order and good government of Nigeria or any part thereof.

On the other hand, he said, the Defendants’ counsel argued that Nigeria being a Federation, the National Assembly cannot legislate on matters not specified in both the Exclusive and Concurrent lists because of the peculiarities in each state, adding that she also posited that for such a law made by the National Assembly to be applicable, it has to be adopted by the state of House of Assembly.

His lordship held that “it is unnecessary for state governments to adopt the FOI Act in their respective states before being applicable there”

His lordship said: “It is my respectful view that the National Assembly by virtue of Section 4(2), 4(4) and 4(5) of the Constitution of Nigeria (supra) earlier referred to has the competence to make laws for the peace, order and good government of the federation or any part thereof not only on matters specified in both the Exclusive and Concurrent lists of the Constitution but on all other matters to which it is empowered to make laws.”

He said the issue of whether the National Assembly can make law for the peace, order and good government of Nigeria came up for consideration by the Supreme Court in the case of A-G Ondo State Vs. A-G Federation & ors (2002) 9 NWLR (Pt. 772) pg 222, which is thecase is on the legality of the corrupt practices and other related offences Act, 2000 as it is applicable to Ondo State.

According to his lordship, in the judgment, his lordship, Hon. Justice Uwaifo J.S.C. at pg. 417 paras D-H stated as follow:-  “It would seem right to conclude that where a subject-matter in its manifestation spreads across the 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 the states just because it is made applicable to all over the federation. The purpose and mission of the Act are clear. The Act is meant to make justifiable by legislation a declared state policy to abolish corrupt practices and abuse of power”.

His lordship said from the authority above, it could be seen that “the National Assembly has 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 legislation is designed to correct a malaise plaguing the country.”

His lordship added that it is not true as canvassed by learned counsel to the defendants that such a legislation has to be adopted by the states of the Federation to be applicable in their states.

He therefore resolved the 1st issues in the negative

His lordship considered questions 2 and 3 together, namely:  “Whether the Freedom of Information (FOI) Act 2011 intended to ease access inter alia to Public Records and information should be construed restrictively as applicable only to Federal Government institutions?” and “Whether in construing Section 2(1) of the Freedom of Information Act 2011, the 3rd Respondent is right to hold that the Freedom of Information Act 2011 is inapplicable to Oyo State, same not having been domesticated”.

His lordship observed that the FOI Act is “An Act to make public records and information, more freely available, provide for public access to public records and information, protect public records and information to the extent consistent with the public interest and protection of personal privacy…”

He referred to Section 2(1) and 31(3) of the FOI Act (supra) for the definition of Public Institutions.

Section 2(1) states as follows: “A public institution shall ensure the proper organization and maintenance of all information in its custody in a manner that facilitates access to such information”.

Section 31(3) states that “Public Institution means any legislative, executive, judicial, administrative or advisory body of the government, including boards, bureau, committees or commissions of the state and any subsidiary body of those bodies including but not limited to committees and subcommittees which are supported in whole or in part by public fund or which expends public fund and private bodies providing public services……., performing public functions or utilizing public funds.”

His lordship also cited Section 39(1) of the 1999 Constitution (as amended), which provides as follows:  “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”

On the issue of domestication of law enacted by the National Assembly before being applicable in Oyo State, his lordship stated that “domestication of law belongs to the realm of international law.”

He stated that it is a cardinal principle of interpretation of statues that where the words used are plain and unambiguous, they should be given their ordinary and plain meaning, and referred to Egbe Vs. Yusuf (1992) NWLR (Pt.245) 1;  Nwakire Cs. C.O.P. (1992) NWLR (Pt. 241) 289; and Okotie-Eboh Vs. Manager (2004) 18 NWLR (Pt. 905) 242.

In addition, his lordship noted, it has been said that where the definition section has defined a particular word or expression, the meaning so given to the word, unless the context otherwise requires, shall be used throughout the statute, and referred to Kalu Vs. Odili (1992) 6(SCNJ 76.

His lordship held that a careful reading of the constitutional provision and the FOI Act will reveal that the Act is aimed at fulfilling the Fundamental Right provision to “receive information without interference”.

He held further that information is not within the Exclusive or Concurrent lists of the 1999 Constitution (as amended) but that the FOI Act was nevertheless of general application to both the federal and state governments as defined in “Public Institution” which refers to any legislative, executive, judicial, administrative or advising body of the government including boards, bureau committees or commissions of the state and any subsidiary bodies of those bodies…”

His lordship noted the defendant’s argument that the FOI Act was enacted by the National Assembly pursuant to Item 4 of the Concurrent list in the Second Schedule of the 1999 Constitution (as amended) and that it is Item 5 of the Concurrent list that grants power to Oyo state House of Assembly to enact its own law.

His lordship noted further that Item 4 of the Concurrent list provides as follows:  “The National Assembly may make laws for the Federation or any part thereof with respect to the archives and public records of the Federation” while Item 5 provides as follows:  “A House of Assembly may, subject to paragraph 4 hereof, make laws for that state or any part thereof with respect to archives and public records of the Government of the state.”

He said a careful perusal of the provisions above will reveal that the item in the Concurrent list relates to “archives and public records of the federation and the Government of the state. In other words, he said, both the National Assembly and State House of Assembly can legislate on “archives and public records” of the Federation and Governments of the states respectively.

His lordship however stated that legislating on “archives and records” of the Federation and Government of the state is quite different from the legislating on Freedom of Information Act, adding that “The FOI Act deals with public records and information on public institutions as defined in the Act.”

He further stated that if a state Government legislates on archives and records which is inconsistent with that of the National Assembly, the legislation by the state shall be void to the extent of the inconsistency and cited Section 4(4) of the 1999 Constitution (as amended).

His lordship said it is therefore quite clear that the FOI Act was enacted by the National Assembly pursuant to section 4(4)(b) of the 1999 Constitution (as amended) in order to bring into effect the provision of Section 39(1) of the same constitution which guarantees the fundamental right “to receive and impart ideas and informational without interference”.

He said it was also his 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, and referred to the case of A-G. Ondo State Vs. A-G. Federation (supra).

Nothing that it has been argued by the Defendants that in order to adopt the FOI Act in Oyo State, it is necessary to enact a law that is not inconsistent with the Act and will reflect all formal alteration as provided for in Section 15 of the interpretation law, Cap. 65 Laws of Oyo State, 2000, his lordship disagreed.

He said: “With respect to learned counsel, for the Act to be applicable, it is not necessary for it to be adopted in Oyo State. The FOI Act as stated earlier is of general application to both the Federal and State Governments in Nigeria. Section 15 of the Interpretation Law of Oyo State has provision in it where the Act shall be read with such formal alterations as to names, localities, offices persons, e.t.c. as to make it applicable to our circumstances.”

His lordship also noted that “the FOI Act is not the first law enacted by the National Assembly that covers the whole Federation of Nigeria. There is also the Economic and Financial Crimes Commission (EFCC) Act as well as Independent Corrupt Practices Commission Act (ICPC) which covers the whole country. Officials of States, Local Governments and Federal Government are being arraigned in court or investigated for various offences under these laws passed by the National Assembly and without the State governments having adopted the EFCC and ICPC Acts in their various states. I wish to state that there is no section in the 1999 Constitution (as amended) which prescribes that a law enacted by the National Assembly has to be adopted by the State House of Assembly to make that law applicable to the state.”

His lordship held that “it is unnecessary for state governments to adopt the FOI Act in their respective states before being applicable there” and therefore also resolve the second  question in the negative.

On the issue of domestication of law enacted by the National Assembly before being applicable in Oyo State, his lordship stated that “domestication of law belongs to the realm of international law.”

His lordship said:  “Item 31 of the Exclusive Legislative list in the Second Schedule, Part 1 of the 1999 Constitution of Nigeria (as amended), confers jurisdiction as regards treaties on the National Assembly. It is the National Assembly under Section 12 of the 1999 Constitution (supra) that can pass such treaties into law before they are applicable in Nigeria. This function of the National Assembly is referred to as the domestication of law.”

Besides, he said, assuming without so deciding that, as argued by the defendants, the FOI Act falls within the Concurrent list, meaning that both the National Assembly and Oyo State House of Assembly have the legislative competence to legislate on it and there is no legislation yet on this by Oyo State House of Assembly, then the FOI Act passed by the National Assembly will be operational in Oyo State.

This, his lordship said, is because even if there is such a law passed by the House of Assembly of Oyo State, it can be inconsistent with the FOI Act, meaning that the FOI Act still prevails over any law passed by Oyo State House of Assembly over the same subject matter.  He referred to A-G. Ogun State Vs. A-G. Federation.

His lordship therefore ruled that the 3rd Respondent is wrong to hold that the FOI Act is not applicable to Oyo State.

Accordingly, he said, questions 2 and 3 have to be resolved in the negative.

His lordship therefore declared as follows:

1. That the powers granted to the National Assembly under Section 4(2) of the 1999 Constitution (as amended) to make laws for the peace, order and good government of the federation or any part thereof is made absolute by the provisions of Section 4(5) of the 1999 Constitution (as amended) without prejudice to the provisions of Section 4(7) thereof.

2. That section 12 of the 1999 Constitution (as amended) which is in furtherance of Item 31 on the Exclusive Legislative list does not empower states to domesticate Acts of the National Assembly for applicability in the respective states.

3. That Sections 2(1) and 31(3) of the Freedom of Information (FOI) Act, 2011 are not restrictive but of general        application to all tiers of government i.e. Federal, State and Local Government, their officials, agencies or institutions however described.

Mrs. F.B. Segun-Olakojo, Director, Legal Drafting & Parliamentary Counselling, with Mr. O.S. Thomas, Director, Legal Service, House of Assembly; Mrs. N.I. Shittu, State Counsel and Mr. A.T. Ogundare, State Counsel, –  for the defendants.

No legal representation for the Claimants.

NCAA Refuses to Disclose Procurement Records for Purchase of Bullet-Proof Cars to MRA, PPDC

The Nigerian Civil Aviation Authority (NCAA) said in November that it would not release the procurement records for the purchase of two controversial bullet proof cars in response to a Freedom of Information request for them because releasing them would undermine ongoing administrative and criminal investigations into the matter.

The NCAA took the position in response to joint request for the documents made by Media Rights Agenda (MRA) and the Public and Private Development Centre (PPDC) under the Freedom of Information (FOI) Act, 2011.

Mr. Fola Akinkuotu, Director General Nigerian Civil Aviation Authority
Mr. Fola Akinkuotu, Director General Nigerian Civil Aviation Authority

MRA and PPDC wrote to the NCAA Director General, Folayele Akinkuotu, on October 21, asking for detailed information on the procurement records for the purchase by the NCAA of two BMW 760 LiHSS vehicles with chassis numbers WBAHP41050DW68032 and WBAHP41010DW68044.

The groups asked for copies of the procurement and contract records for the purchase of the cars, including: evidence of budgetary allocation for the procurement process; the procurement plan for the purchase; evidence of advertisements of the planned purchase in various newspapers, the NCAA website, the Procurement Journal, international publications, etc., inviting prospective bidders to submit bids for the procurement; and a list of all bids tendered for the procurement from when it was advertised till the close of the bid; among other documents.

But in a four-page reply dated November 11, 2013 and signed on behalf of the Director-General by NCAA’s Legal Adviser, Mr. E.D. Chukwuma, the Authority confirmed that “some of the information you have requested exist” but added that it was withholding the information on the grounds that the exemptions in Sections 12 and 26 of the FOI Act are applicable to the request.

The NCAA argued that “there was, as at the date of your request, and ongoing, various legislative and administrative enforcement proceedings and criminal investigations into the same matter of purchase of BMW 760 LiHSS vehicles by the Nigerian Civil Aviation Authority (NCAA) being conducted by the Aviation Committee of the House of Representatives of the National Assembly, the Committee of the Whole House of the Senate of the National Assembly, the Presidential Panel to Examine Alleged Purchase of Two (2) BMW Armored Vehicles for the Use of the Honourable Minister of Aviation as well as the Economic and Financial Crimes Commission (EFCC).”

It claimed that “Not only have the information you seek been handed over to these various bodies for the conduct of the legislative and administrative enforcement proceedings and criminal investigation referred to above, but giving same to you may compromise and/or obstruct the proceedings and investigation.”

On the request for evidence of budgetary allocation made for the purchase of the cars, the NCAA also refused to provide the information, arguing that its budget is already published as part of the 2013 budget of the Federal Government and as such, the FOI Act does not apply to it.

Ms Jennifer Onyejekwe, Deputy Executive Director Media Rights Agenda

Commenting on the NCAA’s response, MRA’s Deputy Executive Director, Jennifer Onyejekwe, said it was clear that the agency was being dishonest and merely looking for excuses not to release the records given that a few days before MRA and PPDC made their request to it, NCAA’s Director General, Folayele Akinkuotu, had called a press conference on the controversial procurement during which he claimed that the agency followed due process in the procurement of the bullet-proof vehicles and announced that the records were available for anyone who was interested to inspect.

Onyejekwe said: “It is apparent to us that they never intended to disclose the records and are just trying to take the Nigerian people for a ride. If they followed due process in the procurement of the cars, then what are they afraid of? Why are they hiding the information? How can the release of information which would clearly show that they followed due process and did nothing wrong be detrimental to their interest?”

Besides, she noted, the NCAA deliberately misrepresented and misquoted the provisions of the FOI Act in its response, by omitting words and whole phrases in citing the provisions of the Act in order to try and give the impression that its position was supported by the Law.

Ms Onyejekwe pledged that MRA and its partner organization, the PPDC, would not give up on the issue, adding that their lawyers were in the process of filing an action in court to challenge the NCAA’s refusal to disclose the procurement records and to compel it to do so.