FOI Act not binding on 36 states, court rules

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A Federal High Court in Lagos on Friday, ruled that the 36 states of the federation cannot be made to provide any information based on the Freedom of Information Act (FOI).

Justice Okon Abang stated this in a judgment he delivered pursuant to a suit filed by The Legal Defence and Assistance Project (LEDAP), against some states of the federation.

The judge ruled the FOI Act, being an enactment of the National Assembly, is only binding on the Federal Government and its agencies.

He also held that the Act was neither a residual law, nor was it on the concurrent list of the 1999 Constitution (as amended).

Abang further ruled that if it was the intention that the FOI Act should be binding on states, the Houses of Assembly of each of the 36 states of the federation should have been carried along in the process of its enactment.

He said that the Houses of Assembly of the states of the federation were empowered by the Constitution to make laws for their respective states, and not the other way round.

The Attorney General and Commissioners of Finance of the states were sued by the applicant over their refusal to provide an information requested under the FOI Act.

The states are Lagos, Imo, Rivers, Abia, Akwa Ibom and Delta.

The applicant had written a letter to the states requesting for information on the bond raised by the states in the Capital Market.

The request letter was dated 12 December 2011.

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Specifically, the applicant had requested for details of the amount raised and received by the respective states from the Nigerian Capital Market through public offers or private placement between 2007 and 2011.

The applicant also requested for details of stockholders including individual or company or public entity that bought or acquired interest in the states’ bond or stock at the Capital Market of the respective states.

Besides, the applicant further requested details of how the amounts received in the said Capital Market bond or stock were disbursed and utilised, including the date of disbursement and their beneficiaries.

But all the states had refused to provide the information, a development which compelled the applicant to approach the court.

The applicant had specifically sought leave of court to bring an application for an Order of Mandamus to compel the defendants to provide the information pursuant to Section 2 of the FOI Act, 2011.

Of all the states, Lagos and Akwa Ibom filed counter affidavits to the suit and canvassed arguments on the point that the FOI Act could not be made binding on them, as it was a federal enactment.

They also canvassed arguments on a Supreme Court authority of Fawehinmi Vs IGP reported in 2002, 7NWLR, Pt 768, Section 606, where it was held that a person seeking Order of Mandamus must show how the refusal of same would affect him more than other members of the society.

Abang, after reviewing the case, said he was inclined to agree with the issues raised in the counter affidavits of the defendants.

“In the light of the above, this court lacks jurisdiction to entertain the matter in issue; the suit lacks merit, it is an abuse of court process, it is null, void and unconstitutional and it is accordingly struck out.

“Cost of N10, 000 is awarded in favour of each of the defendants, payable by the applicant. I so hold,” the judge ruled.

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