The Court of Appeal in Lagos has resolved a 14-year-old controversy over the applicability of the Freedom of Information (FOI) Act, 2011, to public records created before its enactment on May 28, 2011. In a unanimous decision, three justices of the Court ruled that the Act applies to records held by a public institution at the time a request is made to it, even if the requested records were created before the Act was signed into Law.
Ordering the Lagos State House of Assembly to provide a non-governmental organization, the Citizens Assistance Centre, with the information it requested from the legislative body 15 years ago, the Court held that exempting information created before 2011 from the scope of the FOI Act, as decided by Justice Yetunde Omolara Idowu of the Ikeja High Court on March 14, 2012, “would undermine the very objective of the Freedom of Information Act, which is to promote transparency and accountability in the conduct of public affairs.”
Delivering the leading judgment on April 30, 2026, in the 14-year-old appeal filed by the Citizens Assistance Centre against the March 14, 2012, decision of Justice Idowu, Justice Uwabunkeonye Onwosi said: “The Learned Trial Judge held that the request could not succeed because part of the information sought related to a period prior to the commencement of the Act. Again, this Court does not accept that reasoning. The fact that a record was created before the enactment of the statute does not render it immune from disclosure.” His verdict was supported by two other justices of the Court, Justice Folashade Ayodeji Ojo and Justice Paul Ahmed Bassi.
The appeal arose from a suit filed by Lagos-based lawyer, Mr. Nurudeen Ogbara, on behalf of the Citizens Assistance Centre on November 22, 2011, seeking an order of mandamus to compel the Lagos State House of Assembly and its then Speaker, Hon. Sabit Adeyemi Ikuforiji, to release or make available to the organisation, the information it requested by its letter dated July 14, 2011.
In the letter, the organisation requested detailed information on overhead cost releases made available by the Lagos State Commissioner of Finance or the Accountant General to the 6th Lagos State House of Assembly from May 2009 to May 2011. However, when the House of Assembly failed to respond to the request, the organization issued a reminder dated August 9, 2011, but again received no response.
The organization then filed the suit at the Ikeja High Court on November 22, 2011, after Justice Idowu granted its Motion Ex parte that same day, extending the time within which it could file its suit and granting it leave to apply for an order of mandamus to compel the House of Assembly to disclose the requested information.
But the House of Assembly filed a Notice of Preliminary Objection to the suit on November 30, 2011, following which Justice Idowu rendered her decision on March 14, 2012, on both the objection and the substantive suit. She ruled that the overhead expenses sought by the organization fall under information precluded from disclosure by section 14(1)(b) of the FOI Act as it contains personal information; and that the request for information was made by a letter dated July 14, 2011 while the suit was not commenced until well after the required 30 days and therefore that the time for bringing the application had lapsed in the light of Section 20 of the Act. She also noted that the information sought by the organisation covered a period from before the commencement date of the FOI Act, which is May 28, 2011, and that since the Act is not retrospective, the application cannot be granted.
The judge therefore upheld the House of Assembly’s objection and dismissed the suit.
Delivering the leading judgment on behalf of the Court of Appeal, Justice Onwosi said: “Indeed, under Section 20 of the Freedom of Information Act, 2011, where an Applicant is denied access to the information, the Trial Court is empowered to extend the time within which he can bring an application to review such denial of access to the information by the public institution. However, by the wording and in the last limb of the above provision, it is entirely at the discretion of the Court. Of cause, it is trite that exercise of discretion by the trial Court should be judicially and judiciously.”
Noting that the “record reveals that the Appellant approached the Lower Court by a Motion Ex parte seeking an extension of time within which to apply for leave to institute mandamus proceedings and for leave to apply for the said order,” he said, “The Learned Trial Judge granted the application. Therefore, the grant of the Application for extension of time made the proceedings properly constituted. It was therefore not open to the same Court, when considering the substantive application, to hold that the action was incompetent for being brought outside the statutory period. A Court which has granted an extension of time for the doing of an act cannot subsequently treat the act done pursuant to that order as though it were done without authority. To do so amounts, with respect, to contradicting its earlier order.”
Justice Onwosi therefore ruled that Justice Idowu erred when she held that the application was statute-barred notwithstanding the order extending time.
He insisted that “Section 20 clearly establishes two things. Firstly, that an applicant whose request for information has been refused may approach the Court within 30 days to challenge that refusal. Secondly, and more importantly, that the Court it is expressly empowered to extend that period and permit the application to be brought within such further time as it may allow, either before or after the expiration of the initial 30 days. The implication is that the 30-day period is subject to the discretion of the Court. Once the Court exercises that discretion and grants an extension of time, the application cannot thereafter be regarded as incompetent on the ground that it was filed outside the statutory period. The trial Court, which granted the Appellant’s application for extension of time cannot do a volte force and hold that the application was statute-barred.”
On the nature of the information sought by the organization, Justice Onwosi explained that “overhead cost refer to the routine administrative and operational expenses incurred in the day-to-day running of a public institution. Such expenses typically include utilities, maintenance of office facilities and equipment, stationery, logistics, and other operational costs necessary for the functioning of the institution. These are generally categorised as indirect or recurrent costs required to sustain the operations of an organization. The term ‘release,’ in this context, refers to the disbursement or allocation of funds by the appropriate treasury authority to a public institution to meet approved budgetary expenditures.”
Consequently, he added, “’ overhead cost releases’ denote the funds periodically disbursed by the relevant treasury authority to a public institution to enable it meet its approved operational, day to day or recurrent and administrative expenses. Therefore, such information relates to institutional financial allocations and expenditure of public funds, and not to personal records or private information of employees or officials of the institution.”
Justice Onwosi said from the wordings of Section 14(i)(b) of the Act, the Court of Appeal was unable to agree with Justice Idowu that the information requested by the organization is exempted from disclosure under that provision of the Act.
According to him, “The information requested relates to overhead cost releases made to a public institution; such information concerns the utilisation of public funds by a governmental body. It does not constitute personnel files or personal information relating to employees or elected officials within the contemplation of Section 14(l)(b) of the Act. The exemption under that provision is intended to protect the privacy of individuals, not to shield public institutions from legitimate scrutiny regarding expenditure of public funds. To hold otherwise would undermine the very objective of the Freedom of Information Act, which is to promote transparency and accountability in the conduct of public affairs.”
On Justice Idowu’s reasoning that access to records created prior to the commencement of the FOI Act cannot be granted, Justice Onwosi said, “The right of access conferred by the Act does not retrospectively alter past conduct; rather, it regulates present access to information and records under the control of a public institution at the time the request is made. To hold otherwise would wrongly give the statute retrospective effect, which the Legislature did not intend, and would undermine the very purpose of the Act in promoting transparency and accountability in public affairs.”
He insisted: “The fact that a record was created before the enactment of the statute does not render it immune from disclosure. As stated in section 14(1) of the Act, the information immuned from disclosure are explicitly spelt out thereunder. Granting access to the records requested by the Appellant does not amount to giving the statute retrospective effect.”
Justice Onwosi ruled that “The right conferred by the Act applies prospectively, regulating access to information presently held by the institution, regardless of when the records were created”, adding that the reliance by Justice Idowu “on the pre-2011 creation of the records as a bar to disclosure is therefore misconceived.”
He said on the whole, he found merit in the appeal and upheld it. He consequently set aside the judgment of Justice Idowu, delivered on March 14, 2012. He issued an order granting the reliefs sought by the organisation in its suit before Justice Idowu with effect from May 28, 2011, when the FOI Act came into being, and directed that Lagos State House of Assembly and the Speaker to release or make available to the organization the information it requested in its letter dated July 14, 2011.
