EDOSACA v. Osakue & Ors [2018] 16 NWLR (Pt. 1645) 199 at 224-225, paras. H-A, per Oseji, JCA:

“…The Freedom of Information Act, though a noble and worthwhile piece of legislation, does not have automatic application to the States as submitted by learned Counsel for the Respondents. It therefore behooves any State interested in adopting the provisions of the Act in its territory to set the necessary machinery in motion for the enactment of a similar law by the House of Assembly of the State.”

Notes:

The facts of the case are that the Appellant, Edo State Agency for the Control of Aids (EDOSACA), refused to disclose certain information as demanded for by the Respondents especially as it relates to the activities of the Appellant in Edo State from 2011-2013 in respect of its subventions, revenue and expenditures, grant-in aid from corporate bodies and private donors, contract details, etc. Consequently, the Respondents commenced an action against the Appellant seeking declaratory reliefs to the effect that the Appellant was bound to disclose the information demanded pursuant to the Freedom of Information Act, 2011 (FOI Act).

The trial Court found for the Respondents whereupon the Appellant appealed to the Court of Appeal. One of the issues before the Court of Appeal was whether the FOI Act being an Act of the National Assembly applies to the public records of Edo State Government in view of the provisions of the 1999 Constitution (as amended).

Majority Judgment

The Court of Appeal, in a majority of 2 to 1 held that the FOI Act does not apply to States as every State is at liberty to adopt the provisions of the Act by passing a law to that effect. Thus, the Appellant is not bound to comply with the provisions of the FOI Act by acceding to the request by the Respondents, until the Edo State Government enacts a similar law pursuant to the power conferred on it by Section 4(7) (b) of the 1999 Constitution (as amended).

Oseji, JCA in delivering the leading Judgment made the above quoted statement and cited examples of other Acts of the National Assembly which does not apply to States such as the Child Rights Act and Administration of Criminal Justice Act. His Lordship based his conclusions on the reasoning that the issue of archives and public records is an item in the Concurrent List, i.e., Items 4 and 5 in Part II of the 2nd Schedule to the 1999 Constitution (as amended), under which both the Federal Government and State Governments enjoy concurrent powers to legislate. More so, his Lordship held that there is nowhere in the FOI Act where it was stated that the Act shall apply to the States. Going further, his Lordship gave an instance with Section 29(1) (a)-(h) and (6) of the Act which gave some powers and functions to the Attorney General of the Federation and concluded that no mention was made of the States’ Attorney Generals and that certainly, the Attorney General of the Federation cannot exercise oversight functions over state institutions to the exclusion of States’ Attorney Generals. Oseji, JCA also considered the argument of learned Counsel to the Respondents pertaining to the doctrine of covering the field. Learned Counsel had contended that once the National Assembly has made a law on a particular subject, the State House of Assembly cannot make any law on the said subject but must be bound by the Act made by the National Assembly. His Lordship discountenanced the submissions and after considering relevant authorities on the subject, he held as follows:

“Flowing from the above cited authorities, my humble stance is that under the Concurrent Legislative List, both the National Assembly and the House of Assembly of a State have concurrent powers to legislate on matters listed within their respective purview but by virtue of Section 4(5) of the 1999 Constitution, where there is inconsistency between such similar enactments, that of the National Assembly shall prevail to the extent of the inconsistency in the enactment by the State House of Assembly. In the instant case, the Edo State House of Assembly is yet to make any law pertaining to or similar to the Freedom of Information Act, 2011 in which case the issue of inconsistency does not arise and until such law is enacted in Edo State, the Appellant is not obliged to comply with the Respondents’ request to supply them with records and other details as listed in the Originating Summons.”

Dissenting Judgment

Adumein, JCA dissented. His Lordship placed heavy reliance on the doctrine of covering the field in holding that the FOI Act applies to States of the Federation and that States do not need to adopt the FOI before it can become applicable. Thus, any State law pertaining to granting public access to public records would amount to a mere surplusage since the FOI Act is deemed to have covered the field. His Lordship therefore concluded that the Appellant was bound to provide the information demanded by the Respondents pursuant to the FOI Act.

Our View

With the greatest respect, the Majority Judgment has just set up a stumbling block to the campaign to abolish corruption in Nigeria. Adumein, JCA aptly captured the purpose of the FOI Act when he said:

“It is obvious from the provisions of the Freedom of Information Act, 2011 that the legislation, amongst other things, is intended to make information from public records, subject to the exceptions itemized in Section 39(3) of the Constitution and in the Act itself, easily accessible to the members of the public. By allowing easy access to information in public records of agencies, departments, ministries and organs of Government, the Freedom of Information Act is also patently aimed at achieving one of the fundamental objectives and directive principles of State policy, as enshrined in Section 15(5) of the Constitution of the Federal republic of Nigeria, 1999 (as amended), namely to expose and “abolish all corrupt practices and abuse of power”.

The Majority Judgment indeed agrees that the FOI Act is “a noble and worthwhile piece of legislation” but only appears to recognize its nobility within incredible bounds of unacceptable limitations.

The FOI Act is not the only possible piece of legislation that is capable of touching on archives and public records

It is our submission that the FOI Act was not passed as the only possible piece of legislation that is capable of touching on archives and public records. By giving the National Assembly and State Houses of Assembly powers to legislate on archives and public records, the Constitution clearly recognises that while the National Assembly may make laws touching on archives and public records of the entire Federation, the States too can legislate on archives and public records of State Governments. Such laws may not necessarily be all about free access to information. To this extent, we concede that even on the face of the FOI Act, the States are at liberty to make laws with respect to other issues relating to the archives and public records of State Governments. Freedom of Information Law is absolutely unnecessary.

The doctrine of covering the field is not limited to only where inconsistency exists

Having said that, the next point is that, contrary to the Majority Judgment, the doctrine of covering the field is not limited to only where inconsistency exists between an Act passed by the National Assembly and a similar one passed by the State House of Assembly. Even where no inconsistency exists but the State law touches exactly on the same subject, the State law is deemed a surplusage and consequently unnecessary or even invalid and must be kept in abeyance where it will remain inoperative. See A.G. Abia v. A.G. Federation [2002] 6 NWLR (Pt. 763) 264. Therefore, States of the Federation need not pass any other Freedom of Information Law in view of the FOI Act. Furthermore, the position of Adumein, JCA is compelling. His Lordship rightly reasoned:

“Since the said Item 4 states that the National Assembly can legislate on the archives and public records of the Federation, and not archives and public records of ‘the Federal Government’ simpliciter, the archives and public records referred to in the provision cover or include those of a State in Nigeria.”

Indeed, Section 318(1) of the 1999 Constitution as amended defines Federation to mean Federal Republic of Nigeria which, by virtue of Section 2(2) thereof means the States and the Federal Capital Territory. The difference between the Federation/Federal Republic of Nigeria and the Federal Government of Nigeria has been judicially established (https://stephenlegal.ng/is-there-a-difference-between-the-federal-republic-of-nigeria-and-the-federal-government/).

Interestingly, Section 1(1) of the FOI Act settled any controversy regarding the limits of its operation when it provides thus:

“Notwithstanding anything contained in any other Act, law or regulation, the right of any person to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution howsoever described, is established.” (Underlining supplied for emphasis).

Any alleged offending part of FOI Act can be struck down only

Now, regarding the issue raised in the Majority Judgment as it pertains to the provisions of Section 29(6) of the FOI Act that the Attorney General of the Federation cannot exercise oversight functions over state institutions to the exclusion of States’ Attorney Generals, it is our simple submission that if there is anything in the FOI Act that appears to affect the exclusive constitutional powers of States, any such offending section can be struck down without necessarily attacking the entire FOI Act or seeking to totally limit its operations to the Federal Government. Adumein, JCA succinctly captured this when his Lordship reasoned:

“I only wish to add that just like in the case of A.G. of Ondo State v. A.G. of the Federation (supra), where some sections of the Corrupt Practices and Other Related Offences Act, 2000 were invalidated for being unconstitutional by the Supreme Court, the Appellant’s remedy, if any, is to seek through the Attorney General of Edo State the nullification f any alleged unconstitutional provisions or sections of the Freedom of Information Act, 2011 and not argue that members of the public cannot seek information in respect of the public records of the Government of Edo State employing the instrumentality of the Freedom of Information Act.”

The Supreme Court should rise up to the occasion

It is our expectation that if the Supreme Court is called upon to look into the current decision, the apex Court, being the policy making Court, should safeguard the fundamental objective of the FOI Act by confirming its universal application across all States and guarantee unhindered access to information to members of the public. Parliament does not make law every day as bakeries bake bread. We humbly urge the Supreme Court to rise up to the occasion.