Ondo State Government Appeals to Supreme Court Over Applicability of FOI Act to States

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law 6The Ondo State Government has lodged an appeal at the Supreme Court in Abuja asking it to set aside the March 27, 2018 judgment of the Court of Appeal sitting in Akure, the State capital, in which the court held that the Freedom of Information Act, 2011 is applicable to and binding on all the States of the Federation.

The suit, which led to the appeal, was originally filed by Mr. Martins Alo, a journalist and civil rights activist, at the Akure Division of the Ondo State High Court of Justice, seeking an order of mandamus to compel the Speaker of the Ondo State House of Assembly and the State’s Auditor-General to furnish him with the approved Audited Accounts of the State.

The suit arose from a request for information pursuant to the Freedom of Information Act made by Mr. Alo, through his lawyers, by a letter dated January 6, 2016 in which he asked to be given the approved Audited Accounts of the State between 2012 and 2014.

In his judgment delivered on July 18, 2016, Justice Williams Akin Akintoroye declined jurisdiction to hear the motion for an order of mandamus against the respondents, holding that “Freedom of Information” was neither in the Exclusive Legislative List nor the Concurrent Legislative List in the Second Schedule to the 1999 Constitution, as amended, thus making the FOI Act, 2011 enacted by the National Assembly inapplicable to Ondo State.

However, upon an appeal by Mr. Alo to the Court of Appeal in Akure, the appellate court held in its lead judgment delivered by Justice Ridwan Maiwada Abdullahi, and endorsed by the two other justices of the Court on the panel – Justice Uzo Ndukwe-Anywanwu and Justice Obande Festus Ogbuinya – set aside the judgment of Justice Akintoroye.  The Court of appeal held, among other things, in its unanimous decision that the FOI Act is applicable to all States.

The Speaker of the Ondo State House of Assembly and the State’s Auditor-General have now lodged a Notice of Appeal before the Supreme Court, saying they are dissatisfied with the entire judgment of the Court of Appeal, Akure Division, upon four grounds.

They are contending that the justices of the Court of Appeal erred in Law when they held that the Freedom of Information Act, 2011 is applicable to the States, including Ondo State, by virtue of the doctrine of covering the field notwithstanding the non-inclusion of the term “information” or “freedom of information” in the Exclusive Legislative List or in the Concurrent Legislative List of the Second Schedule to the 1999 Constitution, as amended.

According to them, the power of the Federal Government to make laws only extends to matters or items listed in the Exclusive Legislative list or the Concurrent Legislative list and as such information or freedom of information is a residual matter which is only within the legislative competence of the state.

They said the justices of the Court of Appeal also erred in law when they held that “public record” is synonymous with “public document”, noting that neither phrase is defined in the FOI Act.  They added that although “public document” is defined in Section 102 of the Evidence Act, there is no definition of “public record” in the Evidence Act to enable a comparison of the two terms.

They claimed that the justices of the Court of Appeal did not make reference to any definition of public record to show that it is synonymous with public document and that the FOI Act in its long title uses the word information separately from public record, showing that they are not the same”.

The Speaker and the Auditor-General contended that by holding that public documents is synonymous with public record, the Court of Appeal expanded the law and not expounded it.

They insisted that the justice of the Court of Appeal erred in law when they held, in spite of the decision of the Supreme Court in ONYEMAIZE V OJIAKO (2010) 4 NWLR (Pt. 1185) 504, as follows:  “Looking at the above quoted order 40 rule 5(5) (supra) there is nothing in it relating to judicial review vide which the suit leading to this appeal was commenced that imposes an obligation on an applicant to personally serve the originating motion for judicial review on the respondent or to personally depose to an affidavit of service”.

According to them, the Supreme Court in Onyemaize V Ojiako has provided the interpretation of a similar provision as order 40 rule 5(5) to the effect that such affidavit is to be personally deposed to and served on the respondent before the date fixed for the hearing of the application.

They accused the Court of Appeal of not following the ready made interpretation of the Supreme Court but proceeding to give a new interpretation of its own contrary to the doctrine of judicial precedent, under which the Court of Appeal should have adopted the interpretation already provided by the Supreme Court.

The Speaker and the Auditor-General argued that Justice Abdullahi of the Court of Appeal erred in law when he held in his leading judgment that “flowing from the above, I found that the Appellant is entitled to the relief sought and therefore hold that the learned Trial judge was wrong by not granting the Appellant’s claim based on the perception that the Freedom of Information Act was inapplicable to states since the Appellant was entitled to the relief in law and Equity”

In their view, the Court of Appeal in making the pronouncement put itself in the position of the trial court, although the trial court did not determine the motion on notice for mandamus.

They stressed that the appeal in the case was against the High Court judge’s decision to decline jurisdiction in the matter and not against the substantive subject of mandamus before the trial court.

No date has been fixed for the hearing of the appeal.