Federal High Court Rules FOI Act Does Not Apply to Rivers State

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Kingdom Chukwuezie, Member of FOI Legal Response Network
Kingdom Chukwuezie, Member of FOI Legal Response Network

A Federal High Court sitting in Port Harcourt, Rivers State has ruled that the Freedom of Information (FOI) Act does not apply to Rivers State, having not been domesticated or enacted by the Rivers State House of Assembly.

Justice A. U, Kingsley-Chukugave the judgment relying on the decision of the court of Appeal in the case of Edo State Agency for Control of Aids vs. Osakwe (2018) NWLR (Pt. 1645) 199 @ 224 – 225 Para H – A.

Mr. Mark Lenu, a journalist, with Wish 99.5 FM, Port Harcourt, had filed an originating Summons on April 30, 2019, seeking the following reliefs:

  • A Declaration that Mr. Mark Lenu is entitled to receive information applied from Rivers State University and the Vice-Chancellor, River States University has made a written application to them and which they received on April 10, 2019.
  • A Declaration that the failure and/or refusal of Rivers State University and the Vice-Chancellor, River States University to make available to Mark the information he applied for is wrongful, unlawful, amounts to a gross violation of his right of access to information established and guaranteed by Section 1(1) and (4) of the Freedom of Information (FOI) Act, 2011.
  • A Declaration that the failure and/or refusal by the Rivers State University, the Vice-Chancellor, River States University to make available to him the information he applied for or give written notice to him amounts to wrongful denial of access to information under Section 7(5) of the Freedom of Information Act, 2011 and a gross violation of Section 4(b) of the Freedom of Information Act, 2011.
  • An Order for the Rivers State University and the Vice-Chancellor, River States University to make available to him a hard copy of the information requested and a soft copy through his email marklenu15@gmail.com within 7 days of the Judgment of the HonourableCourt.
  • An Order directing the Attorney General of Rivers State to initiate criminal proceedings against the Rivers State University and its Vice-Chancellor for wrongful denial of access to information under Section 7(5) of the Freedom of Information Act, 2011.
  • And for such orders or further orders as the Court may deem fit to make in the circumstance.

Mark had written a letter to the Rivers State University and its Vice-Chancellor requesting the following information:

  1. The total sum received from regular students, postgraduate students and pre-degree students, as tuition fees for the 2016/2017 and 2017/2018 academic sessions.
  2. The unspent amount remitted to the Rivers State Government from the allocations received by the institution for the 2016/2017 and 2017/2018 sessions.
  3. The allocations received by the institution from the River State Government for salaries and allowances for teaching and non-teaching staff of the institution in 2017 and 2018.
  4. The actual amounts paid in salaries and allowances to teaching and non-teaching staff of the institution in 2017 and 2018; and
  5. A list of the names of all the teaching and non-teaching staff in the nominal roll of the institution.

The institution failed to respond or avail him the information he requested for hence his resort to the court to seek a remedy.

In his argument, Mark’s counsel, K. I. C. Chukwueze, a member of Media Rights Agenda’s (MRA) FOI Legal Response Network, relied upon the judgment of the Court of Appeal sitting in Akure, the Ondo State capital in the case of MarinsAloVsOndo State House of Assembly which held that public records in respect of which the FOI Act was enacted is contained in the Concurrent Legislative List and therefore makes the Act not only Constitutional but binding on states by virtue of the Doctrine of covering the field.

The Rivers State University and its Vice-Chancellor argued that the journalist was not entitled to gain access to information of the institution because the said information falls under the exemption provided under the Freedom of Information Act, 2011 in that the Rivers State University and the Vice-Chancellor of the institution are creations of a law enacted by the River State House of the Assembly and not the National Assembly and that the requested information contains personal information for which Mark has not shown how the interest of the public outweighs the privacy of individuals to whom the information relates.

On the other hand, the Attorney General of Rivers State held that the journalist has not established any claim against Rivers State University and its Vice-Chancellor and that the information sought by him is not within the contemplation of the Freedom of Information Act, 2011 which was enacted, according to him, with respect to the archives and the public records of the Federal Government of Nigeria.

The Attorney General of Rivers State also submitted that no similar legislation has been enacted by the Rivers State House of Assembly with respect to Archives and public documents/records of Rivers State and that the Rivers State University is under no obligation to furnish Mark with the information he requested. He cited the judgment of the Benin Appeal Court in the case of Edo State Agency for Control of Aids vs. Osakwein which the Court 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.

Justice A. U, Kingsley-Chuku towed the line of the jurist in the case of Edo State Agency for Control of Aids vs. Osakwe being that the decision of the Benin Appeal Court was delivered at a later time and held that “having not domesticated or enacted the Freedom of Information Act by the Rivers State House of Assembly, the Act does not have an automatic application in Rivers State and thus cannot apply to any agency in Rivers State which is a creation of the Rivers State Government.”

The suit was litigated under a sponsored project by Open Society Initiative for West Africa (OSIWA).