The Oyo State Government and the State House of Assembly have appealed to the Court of Appeal against the ruling of an Ibadan High Court which held that the Freedom of Information Act applies to all levels of government and requires no “domestication” by States.
They are challenging the decision of Justice S.A Akinteye, who ruled on October 31, 2013 that “the National Assembly has the legislative competence to make laws for the peace, order and good government of Nigeria that is applicable to all states of Nigeria without infringing on the autonomy of the states if such legislation is designed to correct a malaise plaguing the country.”
The judge had also held that “it is unnecessary for state governments to adopt the FOI Act in their respective states before being applicable there,” adding that “domestication of law belongs to the realm of international law.”
The ruling arose in a suit filed by an Ibadan-based lawyer, Mr. Yomi Ogunlola, against the Oyo State House of Assembly, following the refusal by the Clerk of the House to grant his request for information under the FOI Act on the foreign trip undertaken by the wives of members of the House in June 2012, which was reportedly sponsored by the House.
Mr. Ogunlola had requested information relating to the financing of the trip, including “the total cost to the House of Assembly and under what head of expenditure the holiday abroad of the wives of members of the Oyo State House of Assembly, who are not civil servants, was financed.”
He also asked for information relating to the power of the House of Assembly to authorize and finance the holiday abroad of the wives of members of the Oyo State House of Assembly, who are not civil servants; and information relating to legislators who participated in the debate on the holiday, voted in favour of the approval to finance trip and benefitted from the resolution.”
The Clerk of the House however declined to provide the information requested, claiming that the FOI Act is yet to be domesticated by the House and that until such domestication has taken place, the House cannot supply such information.
Following the refusal of the House to provide him with the information, Mr. Ogunlola filed a suit before the Ibadan High Court, through an Originating Summons, asking it to review the decision of the House.
In his affidavit in support of his Originating Summons, Mr. Ogunlola contended that Section 111 of the 1999 Constitution, as amended, makes provision for the salary and allowances payable to the members of the House of Assembly as determined by the Revenue Mobilization Allocation and Fiscal Commission (RMAFC) and that “the expenditure approved by the House of Assembly for the foreign trip of their wives who are not public officers is a contravention of the Constitution and amounts to determining allowances for themselves outside the determination by the RMAFC”,
Mr. Ogunlola also contended that contract for the trip was reported to have been awarded to Success Link UK Limited, a company under the control of Mr. Nureni Sunmonu, a relation of the Speaker of the House, Mrs. Monsurat Sunmonu, in utter disregard of the Due Process Act.
The House and the Oyo State Attorney General and Commissioner of Justice, Mr Adebayo Ojo, filed a preliminary objection to the suit, arguing that Nigeria operates a Federal system of government and that the National Assembly can only enact laws on matters within the Exclusive and Concurrent lists in the Constitution to the extent prescribed by the Constitution.
They argued that the FOI Act is not based on any item in the Exclusive Legislative list which would have ousted the jurisdiction of any other body to make its own laws concerning the same subject matter.
The Oyo State Government also contended that the provisions of the FOI Act are not intended to have immediate and automatic application in Oyo State until the Act is adopted and enacted by the Oyo State House of Assembly, which is constitutionally empowered to do so.
Dismissing the preliminary objection, Justice Akinteye noted that “the FOI Act is not the first law enacted by the National Assembly that covers the whole Federation of Nigeria. There is also the Economic and Financial Crimes Commission (EFCC) Act as well as Independent Corrupt Practices Commission Act (ICPC) which covers the whole country. Officials of States, Local Governments and Federal Government are being arraigned in court or investigated for various offences under these laws passed by the National Assembly and without the State governments having adopted the EFCC and ICPC Acts in their various states. I wish to state that there is no section in the 1999 Constitution (as amended) which prescribes that a law enacted by the National Assembly has to be adopted by the State House of Assembly to make that law applicable to the state.”
The judge therefore ruled that the FOI Act is “of general application to all tiers of government i.e. Federal, State and Local Government, their officials, agencies or institutions however described.”
The House and the Oyo State Government have however lodged a notice of appeal at the Court of Appeal in Ibadan, challenging Justice Akinteye’s ruling on two grounds, namely:
- That the judge erred in law when he held that the National Assembly enacted the FOI Act to be operational throughout Nigeria. They contended that the judge did not take into consideration the federal nature of Nigeria as enshrined in the 1999 Constitution, adding that for the FOI Act to be operational in any state, such a state has to adopt the Act as state law. They therefore asked the Appeal Court to hold that the judgment is an infringement upon the constitutional liberty of Oyo State in a federal system.
- That the 1999 Constitution is not based on a unitary system of government. They contended that the legislative powers of both the National Assembly and states Houses of Assembly are made very clear in the Constitution. They are therefore asking the Appeal Court to hold that Justice Akinteye’s decision in making the FOI Act applicable in Oyo State without adoption of the Act by the State has eroded the legislative powers of the Oyo State House of Assembly.
No date has been fixed for the hearing of the appeal