Appeal Court Reserves Judgment in Appeal by Coscharis Motors Over the Applicability of FOI Act to Private Entities

Ms Chioma Nwaodike
MRA’s Programme Manager, Legal

The Court of Appeal in Lagos has reserved judgment in an appeal brought by Coscharis Motors Limited challenging a 2015 decision of a Federal High Court in Lagos which held that the Freedom of Information Act, 2011 was applicable to the company and directing it to disclose to Enough is Enough (EIE) Nigeria information requested by the organization on the 2013 purchase of two bullet-proof cars for then Aviation Minister, Princess Stella Oduah by the Nigerian Civil Aviation Authority (NCAA).

The court, sitting in a panel of three justices, adjourned for judgment after hearing the final submissions of the lawyers to the parties, who also adopted their written briefs of arguments. The court said the date of its decision would be communicated to parties in the matter.

In a Notice of Appeal on seven grounds brought by its lawyer, Mr. Osita Mbamalu, Coscharis Motors is asking the appellate court to set aside the order of Justice Mohammed Yunusa of the Federal High Court issued on April 28, 2015 and dismiss the suit filed by on March 14, 2014 by Mr. Ayodeji Acquah, a member of Media Rights Agenda’s Freedom of Information Network of Lawyers, on behalf of EIE.

In the judgment appealed against, Justice Yunusa granted EIE’s prayers for:

  • A declaration that the failure and/or refusal by Coscharis Motors to disclose or make available to EIE the information requested in the organization’s letter to the company dated October 28, 2013 is a violation of EIE’s right of access to information 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 Coscharis Motors to give EIE a written notice that access to all or part of the information it requested would not be granted and stating reasons for the denial and the section of the FOI Act upon which the company relied to deny EIE access to the information it requested amounts to a flagrant violation of the Act and is therefore wrongful; and
  • An order of mandamus compelling Coscharis Motors to disclose the information requested in EIE’s letter dated October 28, 2013 namely the invoice(s) and landing documents for the two BMW vehicles acquired by the Nigerian Civil Aviation Authority (NCAA) with chassis numbers WBAHP41050DW68032 and WBAHP41010DW68044; and details of the payment for the vehicles, including whether they were paid for in full or hire purchased as reported by the media.

Coscharis Motors is however complaining that Justice Yunusa erred in law when he held that the provisions of the FOI Act applied to private companies such as Coscharis Motors and that by enjoying an import duty waiver on the two BMW cars, the company became a “private body utilizing public funds” and thus subject to the application of the Act. It complained that the judge erred in law when he held that the provisions of the FOI Act applied to private companies because the legislators would have expressly excluded its application to private companies if they so desired.

Coscharis Motors also contended that the judge was wrong in failing to consider all the issues raised by the company in its address in opposition to the suit, especially relating to whether the company was not justified under Section 12 of the FOI Act in withholding the information requested by EIE.  It claimed that the judge was wrong to have assumed jurisdiction to hear the suit when the jurisdiction of the court had not been duly invoked in accordance with the provisions of the FOI Act and that he also erred in law when he failed to deliver his ruling in the case within 90 days after the conclusion of final addressed as provided by Section 294 of the 1999 Constitution, as amended, and thereby occasioned a “grave miscarriage of justice” on the company.

Besides, the company alleged, the judge erred in law when he imported extraneous considerations in the interpretation of the FOI Act in determining the applicability or otherwise of its provisions to private companies such as Coscharis Motors.

However, Enough is Enough, through its lawyer, Ms Chioma Nwaodike, opposed the appeal and submitted that the Federal High Court was right to have held that Coscharis Motors is a public institution within the meaning of the FOI Act and should have made available to EIE the information sought by the organization.

Referring to the brief of argument filed on behalf of Coscharis Motors, Ms Nwaodike argued that the company had already conceded that the FOI Act applies to private companies providing public services, performing public functions or utilizing public funds and argued the reasoning of the company’s lawyer that the FOI Act only applies to a private company that habitually provides public services, performs a public function or utilizes public funds was erroneous, misconceived and calculated to mislead Court.

According to Miss Nwaodike, the scope of the Act also covers a one-off transaction where a private company utilizes public funds and, as such, the transaction between Coscharis Motors and the NCAA, even if a one-off transaction, was enough to subject the company to the FOI Act.

She contended that the argument that a private company or entity must have been continuously utilizing public funds or rendering public services or performing public functions for it to be subject to the FOI Act would defeat the purpose of the Act and could create a leeway for absurdity as there is no yardstick for measuring continuity in its utilization of public funds.

Ms Nwaodike disagreed with the company’s claim that Justice Yunusa imported extraneous considerations into its interpretation of the FOI Act, saying rather that all the judge did in his judgement was to make comments on several sections of the Act that Coscharis Motors misconstrued.

She submitted that there was no miscarriage of justice by the Federal High Court as its analysis and findings which led to its decision were not based on the interpretation of the section complained of by Coscharis Motors, adding that even if this has been established, it was too flimsy to be characterized as a miscarriage of justice.

Ms Nwaodike contended that Coscharis Motors utilized public funds, a privilege which is available only to public institutions, by enjoying an import duty waiver to import the two luxury cars purchased at nearly N400 Million, adding that it would be inconsistent and unsafe to uphold the company’s arguments.

She stressed that the Federal High Court acted within the ambits of known legal principles in its interpretation of the provisions of the FOI Act and that the arguments canvassed on behalf of Cocharis Motors were a gross misconstruction of the provisions of the FOI Act.