“Knowledge is power. Information is liberating. Education is
the premise of progress, in every society, in every
family.” – Koffi Annan
About three weeks ago, precisely on the 27th day
of March 2018, the Court of Appeal sitting in Akure, Ondo state
delivered a judgement that would most likely, if adequately
utilized, liberate Nigerians from the manacle of premeditated and
unjustifiable denial of information on public records by state
governments which have unwittingly hidden behind their unsupported
(at law) position that the Freedom of Information Act 2011 (FOI
Act) is not applicable to states just because it is an enactment of
the National Assembly.
Irrespective of whatever the erstwhile judicial narrative might
have been especially at the Federal High Court and the States’ High
Courts over the applicability of the FOI Act to public records of
the states, we now have a firm and subsisting position of the Court
of Appeal on the issue via their unanimous decision in Appeal No.
CA/AK/4/2017 between Martins Alo and Speaker, Ondo State House of
Assembly & Anor.
In the case, Martins Alo, a commendable journalist and project
officer of an NGO named Upline Resources Foundation, wrote a letter
to the respondents through his solicitors requesting for the
audited account of Ondo State between 2012 and 2014 but upon
receipt of his request, the speaker, Mrs. Jumoke Akindele
(1st respondent) informed the appellant that she
was not the speaker between 2012 and 2014 and that she did not keep
the requested audited accounts.
On the part of the 2nd respondent – the auditor
general, Ondo state, he acknowledged receipt of the letter but
pleaded for time to seek the attorney general’s legal advice via
another letter dated 7thJanuary 2016. It is however on
record that, the appellant approached the High Court of Ondo State
for an order of mandamus compelling the respondents to oblige him
with the information in February 2016.
Without necessarily reviewing the Court of Appeal’s judgement
which represents breathe of fresh air as far as the observance of
the provisions of the FOI Act is concerned, the author however
finds it strange that the learned justice that wrote the leading
judgment observed that: “However, without waiting, the
appellant “rushed” to court on 11th February 2016”.
From the same judgement, it is evident that the auditor general
wrote a letter dated 7th January 2016 but the
appellant approached the court on 11th February
2016 – a period of over 30 days after the letter. In the author’s
respectful view, this ought not be termed “rush” especially in the
light of combined provisions of sections 4 and 7(4) of the FOI Act
which deem a request denied where the information is not provided
after 7 days of application.
The most striking issue common to all parties as per their
respective briefs of argument was whether the FOI Act is applicable
to states in general but Ondo state in particular? For an undiluted
appreciation of the court’s raison d’etre, I will endeavour to
report their lordship’s holdings verbatim as follows:
On the motive of the National Assembly for enacting the
FOI Act:
“Looking at the title of the Freedom of Information Act, 2011 as
quoted earlier in this judgement, it could be deducted therefrom
that the National Assembly’s intention is to regulate access to
‘public records’ @page 12
On the relationship between ‘public records’ and ‘public
documents”:
“I am of the opinion the ‘public records’ is synonymous with
‘public documents’ which the Evidence Act 2011 defines in section
102. There is nothing to show that using such definition resulted
in expanding the law, rather it is in aid to interpret the
intention of the legislative body vis a vis the promulgated Freedom
of Information Act 2011.” @page 12
On whether information can be realized from
records
“Information can conveniently be given from ‘records’ as such,
the argument of the respondents that what the appellant requested
for was information and not records cannot be used to defeat the
purpose for which the request was made. Information can always be
gotten from ‘records’ or documents as the case may be.” @page
13
On whether the Freedom of Information Act is binding on
all states of the federation
“Flowing from the above, I hold that public records in respect
of which the Freedom of Information Act 2011 was enacted is
contained in the concurrent legislative list and therefore makes
the Act not only constitutional but binding on the states by virtue
of the doctrine of covering the field.” @page 13
“I have earlier on in this judgement under issue 1(a) resolved
that the Freedom of Information Act 2011 enacted by the National
Assembly is applicable to all states within the federation.” @ page
27
On whether audited account of a state is a public
document
“Audited account of Ondo state which the appellant sought to
obtain is a public document within the meaning of section 102 of
the Evidence Act 2011.” @ page 27
On whether sufficient interest needs to be established
in FOI cases
“This goes to show that in applying for an order of mandamus
pursuant to the Freedom of Information Act 2011, the general
requirement in mandamus proceedings for an applicant to show
sufficient legal interest has been jettisoned.” @ page 28
On possession of locus standi as a bane of public
interest litigation
“For the sake of emphasis, possession of locus standi has been
the bane of the citizen’s advocates, in the public interest
litigation to query transparency and accountability in governance
in Nigeria. In a democratic dispensation such as Nigeria’s, the
citizens have been proclaimed the owners of sovereignty and
mandates that place leaders in the saddle. The requirement is a
serious fracture of the citizen’s inalienable right to ventilate
their grievances against poor governance vis a vis expenditure of
public funds generated from their taxes.” @ page 34
On the whole, this judgement represents a judicial settlement,
for as long as it subsists, of the conflicting decisions of the
various high courts on the applicability of the FOI Act to states
and their agencies. One must commend the appellant – Mr. Martins
Alo who deserves all the accolades he gets for taking up the
gauntlet in this regard.
“Knowledge is power. Information is liberating. Education is
the premise of progress, in every society, in every
family.” – Koffi Annan
About three weeks ago, precisely on the 27th day
of March 2018, the Court of Appeal sitting in Akure, Ondo state
delivered a judgement that would most likely, if adequately
utilized, liberate Nigerians from the manacle of premeditated and
unjustifiable denial of information on public records by state
governments which have unwittingly hidden behind their unsupported
(at law) position that the Freedom of Information Act 2011 (FOI
Act) is not applicable to states just because it is an enactment of
the National Assembly.
Irrespective of whatever the erstwhile judicial narrative might
have been especially at the Federal High Court and the States’ High
Courts over the applicability of the FOI Act to public records of
the states, we now have a firm and subsisting position of the Court
of Appeal on the issue via their unanimous decision in Appeal No.
CA/AK/4/2017 between Martins Alo and Speaker, Ondo State House of
Assembly & Anor.
In the case, Martins Alo, a commendable journalist and project
officer of an NGO named Upline Resources Foundation, wrote a letter
to the respondents through his solicitors requesting for the
audited account of Ondo State between 2012 and 2014 but upon
receipt of his request, the speaker, Mrs. Jumoke Akindele
(1st respondent) informed the appellant that she
was not the speaker between 2012 and 2014 and that she did not keep
the requested audited accounts.
On the part of the 2nd respondent – the auditor
general, Ondo state, he acknowledged receipt of the letter but
pleaded for time to seek the attorney general’s legal advice via
another letter dated 7thJanuary 2016. It is however on
record that, the appellant approached the High Court of Ondo State
for an order of mandamus compelling the respondents to oblige him
with the information in February 2016.
Without necessarily reviewing the Court of Appeal’s judgement
which represents breathe of fresh air as far as the observance of
the provisions of the FOI Act is concerned, the author however
finds it strange that the learned justice that wrote the leading
judgment observed that: “However, without waiting, the
appellant “rushed” to court on 11th February 2016”.
From the same judgement, it is evident that the auditor general
wrote a letter dated 7th January 2016 but the
appellant approached the court on 11th February
2016 – a period of over 30 days after the letter. In the author’s
respectful view, this ought not be termed “rush” especially in the
light of combined provisions of sections 4 and 7(4) of the FOI Act
which deem a request denied where the information is not provided
after 7 days of application.
The most striking issue common to all parties as per their
respective briefs of argument was whether the FOI Act is applicable
to states in general but Ondo state in particular? For an undiluted
appreciation of the court’s raison d’etre, I will endeavour to
report their lordship’s holdings verbatim as follows:
On the motive of the National Assembly for enacting the
FOI Act:
“Looking at the title of the Freedom of Information Act, 2011 as
quoted earlier in this judgement, it could be deducted therefrom
that the National Assembly’s intention is to regulate access to
‘public records’ @page 12
On the relationship between ‘public records’ and ‘public
documents”:
“I am of the opinion the ‘public records’ is synonymous with
‘public documents’ which the Evidence Act 2011 defines in section
102. There is nothing to show that using such definition resulted
in expanding the law, rather it is in aid to interpret the
intention of the legislative body vis a vis the promulgated Freedom
of Information Act 2011.” @page 12
On whether information can be realized from
records
“Information can conveniently be given from ‘records’ as such,
the argument of the respondents that what the appellant requested
for was information and not records cannot be used to defeat the
purpose for which the request was made. Information can always be
gotten from ‘records’ or documents as the case may be.” @page
13
On whether the Freedom of Information Act is binding on
all states of the federation
“Flowing from the above, I hold that public records in respect
of which the Freedom of Information Act 2011 was enacted is
contained in the concurrent legislative list and therefore makes
the Act not only constitutional but binding on the states by virtue
of the doctrine of covering the field.” @page 13
“I have earlier on in this judgement under issue 1(a) resolved
that the Freedom of Information Act 2011 enacted by the National
Assembly is applicable to all states within the federation.” @ page
27
On whether audited account of a state is a public
document
“Audited account of Ondo state which the appellant sought to
obtain is a public document within the meaning of section 102 of
the Evidence Act 2011.” @ page 27
On whether sufficient interest needs to be established
in FOI cases
“This goes to show that in applying for an order of mandamus
pursuant to the Freedom of Information Act 2011, the general
requirement in mandamus proceedings for an applicant to show
sufficient legal interest has been jettisoned.” @ page 28
On possession of locus standi as a bane of public
interest litigation
“For the sake of emphasis, possession of locus standi has been
the bane of the citizen’s advocates, in the public interest
litigation to query transparency and accountability in governance
in Nigeria. In a democratic dispensation such as Nigeria’s, the
citizens have been proclaimed the owners of sovereignty and
mandates that place leaders in the saddle. The requirement is a
serious fracture of the citizen’s inalienable right to ventilate
their grievances against poor governance vis a vis expenditure of
public funds generated from their taxes.” @ page 34
On the whole, this judgement represents a judicial settlement,
for as long as it subsists, of the conflicting decisions of the
various high courts on the applicability of the FOI Act to states
and their agencies. One must commend the appellant – Mr. Martins
Alo who deserves all the accolades he gets for taking up the
gauntlet in this regard.