➥ CASE SUMMARY OF:
Edo State Agency For The Control Of Aids V. Com. Austin Osakue & Ors (CA/B/469/2014, 28 Mar 2018)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Cost;
Freedom of information Act;
Legislative list.
➥ CASE FACT/HISTORY
This appeal is against the judgment of the High Court of Edo State sitting in Benin City and delivered on the 29th day of April 2014. The Respondents in this appeal were the Applicants in the trial Court wherein they instituted an action by way of Originating Summons against the Respondent (now Appellant). In the said Originating Summons filed on 14th February 2014, they raised the following issue for determination by the trial Court. Whether the information sought after by the Applicants ought to be granted under the Freedom of Information Act 2011. The reliefs sought by the Applicants against the Respondents (now Appellants) are as follows, inter alia, ‘DECLARATION that compulsory disclosure of information by agency of government is governed by the provisions of the Freedom of Information Act 2011’.
The said Originating Summons was supported by a 26 paragraph affidavit to which is attached a letter marked as Exhibit A. There is also a written address in support of the Originating Summons. The Appellant upon being served with the said Originating Summons reacted by filing a 13 paragraph counter affidavit and a written address dated 20/3/2014. Upon the adoption of the written addresses by the parties, the learned trial Judge delivered a Ruling on the 29/4/2014 wherein all the reliefs except reliefs K and L were granted in favour of the Respondents. The Appellant being aggrieved with the outcome of the said ruling filed a Notice of Appeal on the 8/7/2014. It contains two grounds of Appeal.
➥ ISSUE(S)
I. Whether the Freedom of Information Act being an Act of the National Assembly applies to the Public Records of Edo State Government in view of the Provisions of the Constitution of the Federal Republic of Nigeria 1999?
II. Whether the learned trial Judge was right to have adjudicated on the issue of Domestication that was not raised by the parties of the trial Court?
CROSS-APPEAL:
I. Whether the trial Court was right in its decision refusing to compensate cross-appellants for breach of right of expression?
II. Whether the cross-respondent has the responsibility to protect the cross-appellants from damaging acts and bear the cost, when it fails?
III. Whether the trial Court was right in refusing to pronounce sentence of conviction after a finding of guilt?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE FREEDOM OF INFORMATION ACT IS MOT MEANT TO APPLY TO STATES
‘All said and done, a perusal of the Freedom of Information Act will not, in my humble view, project the intention that it is meant to cover the field. In other words, it is nowhere indicated or prescribed in the whole gamut of the Act that it shall apply both to the central and State governments. A number of examples shall bring to the fore, this reality. For instance Section 29(1) (a-h) requires the concerned publication institutions to submit a report to the Attorney General of the Federation on or before 1st February of each year. Subsection (4) mandates the same Attorney General of the Federation to notify the chairman and some ranking members of relevant committees in the Senate and House of Representatives of the existence of such reports and make it available in soft and hard copies to them not later than April of each year. Subsection 6 also confers on the said Attorney General oversight responsibility in order to ensure that all institutions to which the Act applies comply with the provisions of the Act. Incidentally the said Act did not make any reference to the Attorneys General of States or the States Houses of Assembly in terms of oversight responsibility over State institutions or submission of annual report. The question then is, can the Attorney General of the Federation exercise oversight function over state institutions or require them to submit annual reports to the exclusion of the State Attorney General? Secondly can the Attorney General of the Federation give directives to the Appellant (Edo State Agency for the Control of Aids) when the Constitution has clearly created the office of the Attorney General of a State? The answer is a definite NO. Conversely, the Attorney General of a State cannot be expected under the Freedom of Information Act to submit annual report of the activities of State institutions concerned to the National Assembly to the exclusion of the State House of Assembly.’
‘Furthermore, Section 29(9) provides that:- “For the purposes of this section, the term government includes any executive department, military department, government corporation, government controlled corporation, or other establishment in the executive branch of the government (including the Executive office of the President), or any other arm of government agency or public institution;……..” The above set out provision made express reference to the (Executive office of the President) for the purpose of the application of the Act but no mention was made of the (executive office of the Governor). Section 31 which is the interpretation section defines minister means the minister charged with the Responsibility for information. No mention was made of the commissioner responsible for information in the state.’
THE APPELLANT IS NOT BOUND TO COMPLY WITH THE FREEDOM OF INFORMATION ACT
‘In the instant case, the point is whether the State should refrain from making its own law pursuant to Item 5 because there is already in existence the Freedom of Information Act. My strong view on it is that given the provisions of the said Act as presently enacted vis-a-vis Section 4 of the 1999 Constitution and Items 4 and 5 of Part II, 2nd Schedule thereof, the Appellant is not bound to comply with the provisions of the Freedom of Information Act 2011 by acceding to the request by the Respondents, until the Edo State government enacts a similar law pursuant to the power conferred on it by Section 4(7)(b) of the 1999 Constitution.’
‘Flowing from the above cited authorities, my humble stance is that under the concurrent legislative list, both the National Assembly and the House of Assembly of a state have concurrent powers to legislate on matters listed within their respective purview but by virtue of Section 4 (5) of the 1999 Constitution, where there is inconsistency between such similar enactments, that of the National Assembly shall prevail to the extent of the inconsistency in the enactment by the State House of Assembly. In the instant case, the Edo State House of Assembly is yet to make any law pertaining to or similar to the Freedom of Information Act 2011 in which case the issue of inconsistency does not rise and until such law is enacted in Edo State, the Appellant is not obliged to comply with the Respondents request to supply them with records and other details as listed in the Originating Summons.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[THE ISSUE WAS RAISED SUO MOTO AND PARTIES WERE NOT GIVEN LEVERAGE OF HEARING BEFORE DETERMINATION
‘I have carefully perused the written addresses filed by the parties in support and against the Originating Summons as well as the proceedings of the lower Court where the said addresses were adopted and the matter adjourned for judgment on the 25/3/2014. I observe that the issue of domestication was nowhere raised or argued by the Appellants counsel therein. It follows that the finding of the learned trial Judge on the issue as detailed in page 109 of the record is not borne out of the affidavit evidence or submission of counsel for the parties. It was therefore evidently raised suo motu but erroneously ascribed to the learned Solicitor General. It is settled law that though a Court is at liberty to raise an issue suo motu, it can only validly rely on it in determining the matter after hearing the parties in the case on the issue so raised. Failure by a Court to observe such requirement constitutes a breach of the rule of fair hearing and any decision reached thereof is a nullity and consequently liable to be set aside by an appellate Court. See Okoye v. C.O.P and Ors. (2015) LPELR (24675) SC; Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566; Oje v. Babalola (1991) 1 NWLR (Pt. 185) 267; Shasi v. Smith and Ors (2009) LPELR (3039) SC Olatunji v. Adisa (1995) 2 NWLR (Pt. 376) 167. In the circumstance, my answer to the issue 2 as raised by the Appellant is in the Negative and it is accordingly resolved in favour of the Appellant.’]
.
.
.
CROSS-APPEAL: IN CROSS-RESPONDENT’S FAVOUR.
↪️ ISSUE 1:
[NOTHING SHOWS THAT THE CROSS-APPELLANT SUFFERED ANY INJURY AS A RESULT OF THE DENIAL OF THE REQUESTED INFORMATION
‘In the instant case, there is no evidence available to show convincingly, the injury suffered by the Cross-Appellants as a result of the refusal of the Cross-Respondent to grant their request to provide them with some documents in their possession. What is more, Section 25(1)(c) of the Freedom of Information Act provides that a Court can only make an order compelling an institution to disclose the information where it finds that the interest of the public in having the record being made available is greater and more vital than the interest being served if the request is denied. Section 19(2) of the said Act also provides that an application for information shall not be denied where the public interest in disclosing it outweighs whatever injury that disclosure will cause. The point being made here is that by the provisions of the Freedom of Information Act, any injury arising from refusal to disclose information can only be ascribed to public interest and not to an individual as the Cross-Appellants are trying to contend. In fact, they have not in my view disclosed any injury suffered or likely to be suffered personally as against the public interest that will entitle them to award of damages. See also Section 14(3) of the Act.’]
.
.
↪️ ISSUE 2: IN CROSS-RESPONDENT’S FAVOUR.
[‘On the issue of cost, it is settled law that cost normally follows events unless there are circumstances warranting to the contrary. The award of costs involves judicial discretion which must be exercised based on certain principles. Also such discretion must not be affected by questions of benevolence or sympathy. See Haco Ltd v. Brown (1973) ALL NLR 354; UBN Plc v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127 and M.H. Ltd v. Okefiena (2011) 6 NWLR (Pt. 1244) 514 wherein this Court held that the essence of costs is to compensate the successful party for part of the loss incurred in the litigation. Cost cannot cure all the financial loss sustained in litigation. It is also not meant to be a bonus for the successful party. In the instant case, the Cross-Appellant had claimed for a cost of ₦10 Million naira but there is no evidence to support such claim. The High Court (Civil Procedure) Rules grants the trial Court the power to award cost as may be determined to be proper and appropriate. The learned trial Judge in this regard awarded the cost of ₦100,000.00 against the Cross-Respondent. This in my view constitutes a proper exercise of the Courts discretion in that regard and will not be interfered with by this Court.’]
.
.
↪️ ISSUE 3: IN CROSS-RESPONDENT’S FAVOUR.
[‘It is apposite that in our criminal jurisprudence, for a person to be found guilty of an offence, he must go through the process and procedure of a trial and which guilt must be proved by the prosecution beyond reasonable doubt. See Section 135(1) of the Evidence Act 2011. See also Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 209 and Dikko Yusuf v. Obasanjo (2005) 18 NWLR (Pt. 956) 96; Ikpeazu c. Otti and Ors (2016) LPELR 40055 (SC). The Cross-Respondent did not go through any such criminal trial and conviction to warrant the said fine of ₦500,000.00 which interestingly, the Cross-Appellants also insisted should be paid to them as damages or compensation. Little wonder the learned trial Judge held that the claim was misconceived and I entirely agree with that finding. ’]
.
.
.
✓ DECISION:
‘In the circumstance, my answer to the issue 2 as raised by the Appellant is in the Negative and it is accordingly resolved in favour of the Appellant. On the whole, this appeal is found to be meritorious and it is accordingly allowed. The judgment of the High Court of Edo State delivered on the 29th day of April, 2014 is hereby set aside. Parties to bear their costs.’
‘Consequently the three issues are resolved against the Cross-Appellants. Accordingly, this Cross-Appeal is found to be grossly lacking in merit and amounts to unbridled quest for undeserved monetary shower. It is therefore dismissed. I award a cost of ₦100,000.00 against the Cross-Appellants in favour of the Cross-Respondents.’
➥ FURTHER DICTA:
⦿ STATE LAW WILL BE NULL AND VOID WHERE IT CONFLICTS WITH FEDERAL LAW
One point that clearly emerged from the provisions of Section 4 of the Constitution is that the powers to make laws by each tier of government has been defined and listed in the schedules to the Constitution or as per any other provision. Except however for the fact that under Section 4(5), where the law made by the House of Assembly is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail and that other law shall to the extent of the inconsistency be void. See also the case of A.G. of the Federation v. A.G. Lagos State (2013) 16 NWLR (Pt. 1380) 249; A.G. Abia State v. A.G. of the Federation (2002) 6 NWLR (Pt. 763) 264; Osun State Independent Electoral Commission and Anor. v. Action Congress and ors. (2010) 19 NWLR (Pt. 1226) 273. — S. C. Oseji JCA.
⦿ THE STATE GOVERNMENT IS NOT A STOOGE TO THE FEDERAL GOVERNMENT
The Respondents stance is that under the circumstance, the Freedom of Information Act 2011 enacted by the National Assembly shall apply to Edo State with particular reference to the appellant and there will be no need for the Edo State House of Assembly to legislate on the same subject matter again by virtue of the doctrine of covering the field. To my mind, this will amount to taking the doctrine to the extreme and undermining the fundamental principle of Federalism which is very vital to our nascent and budding democratic process. It will in fact undermine the provisions of the 1999 Constitution. In other words, to follow the Respondents line of argument and perception of the doctrine of covering the field will amount to opening the door to a unitary system of government inherent in a military or autocratic regime. Thank goodness the 1999 Constitution which is the grundnorm and reference point for a genuine road map for the operation of the principle of federalism as agreed and subscribed to by the people of this country, vide the preamble and Section 2(1) thereof have agreed to the existence of a central government and component Units known as states and while the central government through the National Assembly shall have power to make laws for the overall well being of the country, the component units called states are also not left out but equally empowered to make laws for the peace, order and good government of the State with respect to matters listed in the concurrent legislative list set out in the first column of Part II of the Second Schedule to the Constitution or any other matter for which it is empowered to make laws in accordance with the Constitution. In this regard, my own view is that the State is not a stooge to the Federal government but derives its own power and strength to exist and manage its own affairs just like the Federal government does from the Constitution. It is only where there is a clash of interest in legislation that the law made by the State Assembly shall give way to that made by the National Assembly as per Section 4(5) of the Constitution and the authorities earlier cited. — S. C. Oseji JCA.
⦿ BOTH FEDERAL GOVERNMENT AND STATE GOVERNMENT CAN MAKE LEGISLATION IN REFERENCE TO PUBLIC ARCHIVE
Coming to public records and archives, Items 4 and 5 in Part 2 of the 2nd Schedule to the 1999 Constitution which is the concurrent Legislative List under which the Federal and State governments have concurrent powers to make laws provides thus:- 4. The National Assembly may make laws for the Federation or any part thereof with respect to the archives and public records of the Federation. 5. A House of Assembly may, subject to paragraph 4 hereof, make laws for that State or any part thereof with respect to archives and public records of the Government of the State. The above set out provisions makes the issue quite clear to the effect that while the National Assembly is conferred with the power to make laws with respect to public records and archives of the federation, the House of Assembly of the States are also conferred with powers to make laws with respect to archives and public records of the government of the State, subject however to paragraph 4, which to my mind means that in the course of making any law relating to any archive or public record of any State, the House of Assembly of the state must be mindful not to go beyond its jurisdiction into that of the Federal government. What is germane here is the reality brought to the fore to the effect that both the Federal and State legislature have concurrent powers to legislate on archives and public records within the limits prescribed by the Constitution. — S. C. Oseji JCA.
⦿ AWARD OF GENERAL DAMAGES IS OF MIXED LAW AND FACTS
I have carefully gone through the Cross-Appellants affidavit in support of the Originating Summons as well as written address and I cannot but agree with the stance of the learned trial Judge that the arguments in support of the claim for damages are misconceived. The authorities are clear on the point that award of damages is an exercise of discretion by the trial Court and award must flow from a positive evidence of harm or injury to the claimant. An appellate Court in such a situation will not unduly interfere with an award of damages by a trial Court unless it is shown that such exercise of discretion is perverse, or that the trial Court acted under the wrong principle of law or a misapprehension of facts or where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages. — S. C. Oseji JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Samuel Chukwudumebi Oseji, JCA
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
*** DISSENTING
** MOORE ASEIMO ABRAHAM ADUMEIN, JCA:
THE CONSTITUTION GAVE THE NATIONAL ASSEMBLY THE POWER TO MAKE LAW FOR THE FEDERATION IN RESPECT TO ARCHIVE AND PUBLIC RECORDS
‘In this case, by giving the words in item 4 of Part II of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) their plain meaning, the National Assembly can make laws for the Federation or any part thereof in respect of the archives and public records of the Federation. The only word that needs an explanation or interpretation is: Federation, as used in the said provision. Under Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) Federation means the Federal Republic of Nigeria, which by virtue of Section 2(2) of the same Constitution consists of the States and the Federal Capital Territory. Since the said item 4 states that the National Assembly can legislate on the archives and public records of the Federation, and not archives and public records of the Federal Government simpliciter, the archives and public records referred to in the provision cover or include those of a State in Nigeria. This is in clear contrast to the provisions of item 5 which restricts the archives and public records which a House of Assembly can legislate on to those of the Government of the State. The law is that Courts should abide by the meaning ascribed to phrases or words by the same Act, enactment law of statute which has employed or used such phrases or words. Put differently, where a statute has defined phrases, terms or words used therein, the Court should adhere to the definition or meaning given in the statute in its onerous task of constructing or interpreting the provisions of that statute. See Wilson v. Attorney General of Bendel State (1985) 1 NWLR (Pt. 4) 572 and ACME Builders Ltd. v. Kaduna State Water Board (1999) 2 SCNJ 25 at 53; (1999) 2 NWLR (Pt. 590) 288 at 313, per Onu, JSC, where the eminent jurist stated that: “Be it noted, however, that it is settled law that where words or expressions have been legally or judicially defined, their ordinary meaning will surely give way to their legally or judicially defined meaning.”’
‘Section 1(1) of the Freedom of Information Act, grants right to any person to access or request information in the custody or possession of any public official, agency or institution howsoever described. The appellant falls within the meaning of agency under this provision and cannot hide, and should not be permitted to hide, under the defence that since the Edo State House of Assembly has not passed a Freedom of Information Law in respect of public records of the Government of the State it has no obligation to make available the information sought by the respondents. To me, therefore, any insistence on a State Law before a person can be given an access to information contained in the public records of the government of a State, for lack of appropriate word or phrase, is an anathema, in view of the clear provisions of Sections 15(5) and 39(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 1(1) of the Freedom of Information Act, 2011. In this case, the respondents claims relate to access to information in the public records of an agency of Edo State. The claims do not relate to the submission of any reports by the agency to any authority or person. The Freedom of Information Act, 2011 has already covered the field in respect of access by any member of the public to the public records of the appellant, subject, however, to the exceptions set out in the said Act.’
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
