High Court Orders PHCN to Disclose Contract Details to Coalition

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A Federal High Court sitting in Abuja on March 28, 2013 ordered the Power Holding Company of Nigeria (PHCN) to disclose to the Nigerian Contract Monitoring Coalition documents containing details of a World Bank-supported contract for the supply and installation of High Voltage Distribution systems in Abuja, Lagos and Ibadan.

Presiding Judge A.F.A Ademola gave the ruling in his judgement in a suit instituted by the Coalition following the refusal of PHCN to disclose to it details of the contract award.  Justice Ademola also ordered PHCN and the Attorney-General of the Federation to “jointly and severally” pay costs of N20,000.00 Naira to the coalition.

Power Holding Company of Nigeria

The Public and Private Development Centre (PPDC), instituted the suit on behalf of the Coalition on September 21, 2012 through its lawyer, Mr. Godwin N. Chigbu.  It sought an order of mandamus to compel the PHCN, its General Manager in the Project Management Unit, and the Attorney-General of the Federation to furnish the coalition with copies of procurement documents and information relating to Bid No. NGP-D2.  The bid was for the supply of 300 units of 11 KV, 500A On-Load Sectionalizers for installation at the High Voltage Distribution System (HVDS) networks at Karu in Abuja; at the Lagos University Teaching Hospital (LUTH), in Ogba and in Agege, all in Lagos as well as Challenge in Ibadan.

Although PHCN provided some of the contract records requested by the Coalition after Justice Ademola granted the Coalition leave to institute the suit, PHCN continued to withhold some of the information sought by the Coalition, including the bid evaluation report for the contract process and the final contract award document.

Explaining its decision, PHCN told the Coalition that: “a copy of the bid evaluation could not be included as this will conflict with Section 15(a) and (b) of the Freedom of Information Act 2011 as regards third parties” and “a final contract award document could not be attached as a third party is involved”.

PHCN argued in court that since the Coalition was not a party to the contract between it and the contractor,  it was not obliged to release the documents to the Coalition as this would be contrary to law and could interfere with the contract process.

Disagreeing with PHCN, Justice Ademola upheld the arguments of the coalition’s lawyer, Mr. Chigbu, saying: “since negotiations have been concluded and the contract awarded, the disclosure of the information sought cannot by any stretch of the imagination reasonably be expected to interfere with any contractual or other negotiations of the contractor.”

Justice Ademola noted that PHCN failed to satisfy the conditions stated in Section 15(1) (b) of the Freedom of Information Act and ruled that PHCN was not entitled to the exemption contained in the section.

The judge held that PHCN’s processes and written arguments lacked substance, describing them as “frivolous, time-wasting and an abuse of this Court’s process as they have no justification in denying the Applicant the documents sought.”

He therefore granted the Coalition’s application for a mandatory order compelling PHCN to immediately release to the Coalition of all contract documents sought.

The Coalition is monitoring the award and implementation of the contract for a Federal Government project funded with a credit facility obtained from the World Bank.  PPDC is the National Convenor of the Nigerian Contract Monitoring Coalition.

Besides the PPDC, other members of the coalition include the Nigerian Society of Engineers (NSE), Media Rights Agenda (MRA), the Centre for Organizational and Professional Ethics (COPE-AFRICA) and the Initiative for Environmental and Health Society (IEHS).

The Nigerian Contract Monitoring Coalition is a division of the West African Contract Monitoring Coalition which is being regionally coordinated by the Ghana Anti-Corruption Commission (GACC). With support from the World Bank Institutional Development Fund, the Nigerian coalition is implementing a project titled Multi-stakeholder Engagement for Effective Public Procurement Process in Nigeria.