Can a State Government be Compelled to Disclose Any Information or Document Pursuant to the Freedom of Information Act

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CASE TITLE: THE GOVERNOR OF DELTA STATE OF NIGERIA v. EDUN OGHENEOVO OLUKUNLE ESQ.(2020) LPELR-51263(CA)

JUDGMENT DATE:  30TH SEPTEMBER, 2020

JUSTICES:

  • AYOBODE OLUJIMI LOKULO-SODIPE, JCA
  • MOHAMMED AMBI-USI DANJUMA, JCA
  • ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA

COURT DIVISION: ASABA

PRACTICE AREA: Legislation – Freedom of Information Act, 2011

The Respondent is a legal practitioner and was the immediate past Chair of the Nigerian Bar Association, Warri Public Interest Litigation Committee. He filed an action to challenge the constitutionality of the establishment of a Christian Pilgrims Welfare Board and Muslims Pilgrims Welfare Board (2nd and 3rd Respondent at the trial Court) in the face of the secularity of the Federal Republic of Nigeria as enshrined in Section 10 of the 1999 Constitution.

Prior to initiating the action at the Delta State High Court, the Respondent made a request pursuant to the enabling provisions of the Freedom of Information Act, 2011, regarding the operations, funding, list and names of sponsored pilgrims, modalities for selecting pilgrims and so forth, which request was ignored/refused, and this compelled the Respondent seeking judicial determination of the legal obligation of the Appellants.

The Delta State High Court granted the reliefs of the Respondents in part and further directed that all further releases/funding to the Christian Pilgrims Welfare Board and Muslims Pilgrims Welfare Board be ceased, until the Order to provide information requested for by the respondent is complied with within two (2) weeks of the Order.

Aggrieved, the Appellants appealed to the Court of Appeal.

ISSUES

  1. Whether the learned trial judge was right when he held that the respondent has locus standi to bring this suit predicated on the freedom of Information Act, 2011.
  2. Whether the learned trial judge was right when he held that the freedom of information Act, 2011 is applicable to the Delta State Government of Nigeria.

COUNSEL SUBMISSION

Learned counsel to the Appellant submitted that the Learned trial judge was wrong in holding that the respondent had locus standi to bring the action predicated on the Freedom of Information Act, 2011. On this, he argued that before a person could be said to have locus standi in a matter, he must show that he has sufficient interest in the matter and which is enforceable in law and not one that he shares in common with other members of the public.

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He contended further that the Respondent as Plaintiff had to show that the injury or hardship that may be occasioned to the aforesaid respondent is not peculiar or personal to him to the exclusion of other citizens. Also, that as the reliefs of the Respondent stood, no locus standi had been disclosed to invoke the powers of the Court and that there is no right or obligation of the Respondent that had been infringed upon or violated by any of the Appellants, which means that there is no dispute to be settled by the Court between the parties.

On the second issue, the Appellant postulated that the trial Judge was wrong to have held that the Freedom of Information Act, 2011 was applicable to Delta State of Nigeria. That it was a Federal Enactment enforceable against the Federal Government, its Agencies and parastatals only; also, that it is only when the Delta State Government passes a similar Freedom of Information law, that the Respondent could have the locus standi to access or request information in custody of or possession of any public official Agency or institution in Delta State.

The Respondent’s counsel on the other hand submitted that the issue of locus standi was surely an issue of jurisdiction; but that the authorities relied upon by the Appellant are outdated, inapplicable and do not represent the extant state of the law on the issue of locus standi. He further submitted that a cause of action was disclosed against the Appellants when the Appellants refused to furnish the Respondent with the information requested or a Notice of Refusal within 7 days permitted by the FOI Act upon receipt of a Freedom of Information request.  ​It was also argued that the contention that there was no locus standi in this type of action is to endorse corruption and unaccountability; that the F.O.I Act was neither unconstitutional nor inconsistent with Section 6 (6) (b).

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The Respondent finally argued that the F.O.I. Act is of general application throughout Nigeria. That to hold otherwise would mean that such Acts as the EFCC Act and ICPC Act will not be of general application in Nigeria.

DECISION/HELD:

In the final analysis, the Court of Appeal set aside the judgment of the High Court and allowed the appeal.

RATIOS

  1. LEGISLATION – FREEDOM OF INFORMATION ACT, 2011: Whether a State Government can be compelled to disclose any information or document where it refuses to disclose same

“Could it have been the intention of the law makers that the State Ministries, Parastatals, Agencies, and which are not specifically mentioned in the Act would be covered by it and even when that could lead to an invasion into the confidentialities and privacy of the patrons of State Agencies in manners not contemplated by the State and not in the interest of the peace, order and good governance of the State? And in matters within its legislative powers? Each component State does have powers under the Constitution pursuant to the concurrent legislative list schedule to make its laws relating to discoveries and demand of records, information, etc; and until and unless made, a State is not bound to supply or provide and an Applicant is, ipso facto not entitled, as of right to have such records or information. Where, he seeks and it is refused, there does not exist a justiciable cause of action. The FOI Act is, to me, therefore, a legislation of high persuasive value to States including Delta State and Local Governments but without any element of legal compulsion; rather it is a legislation of moral suave and colouration; as relating to State Governments. I agree with the Appellants counsel when he relies on the case of Economic and Financial Crimes Commission Vs. Ekeocha (2009) FWLR pt 458, page 310 at 323 and Awuse Vs. Odilli (2004) 8 NWLR (Pt 876) pg 418 @ pg 512 in urging that this issue be resolved in favour of the Appellants. It must be reiterated that the fact of having the FOI Act in the concurrent legislative list of the Constitution also re-enforces the argument that it is not in the exclusive domain of the Federal Government and thus depriving the States from controlling same. That being the case, the denial or refusal by a State or any of its Agencies of any information or document, cannot be compelled and to have as a basis the authority of this Act of the National Assembly. See Babale Vs. FRN (2019) 1 NWLR Pt 165 2100.”Per DANJUMA, J.C.A.

  1. LEGISLATION – FREEDOM OF INFORMATION ACT, 2011: Whether the Freedom of Information Act, 2011 is applicable to both the Federal and State Government

“It is beyond dispute that Nigeria is a Federation with a Constitution, wherein powers have been allotted constitutionally to the Federal, State and Local Governments as tiers of government. In this wise, the power to make laws for the peace, order and good government of the respective tiers have been allotted. The Christian and Moslems Welfare Boards of Delta State of Nigeria, have been established pursuant to the legislative powers of the Delta State House of Assembly as conferred by the constitution. Their powers, rights, duties and privileges are regulated by the law establishing them; The Rights of persons to obtain and access information or Documents and Records of the Boards shall be as provided by the Law of the State as may be established or the Evidence Act which is of general Application throughout Nigeria. That is to say, that for the Freedom of Information Act, 2011 to apply, the Bodies must be those stated in the Act itself… It is obvious, therefore, that the Act applies only to Federal Government and its Agencies. See Sections 1, 2, 3, 5, 14, 15, 16, 29, 31, 32 of the Act…” Per DANJUMA, J.C.A. 

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