29th November, 2017
A Lagos High Court, sitting in the Ikeja Judicial Division, has ruled that the Freedom of Information (FOI) Act, 2011 is applicable to the Government of Lagos State and does not require “domestication” by the State to have effect.
Dismissing a preliminary objection raised by the Lagos State Ministry of Health in a suit instituted against the Ministry and the Lagos State Government by Media Rights Agenda (MRA) over its failure to disclose records and information requested by the organization under the FOI Act, Justice Beatrice Oke-Lawal held that the Act was validly enacted by the National Assembly and applicable to the Government of the Federation as well as State Governments.
The suit arose from a Freedom of Information request made by MRA in November 2016 to the Ministry, asking for:
• Details and copies of plans put in place by the institution to provide the Araromi Zion Estate located in Akiode Area of Ojodu Local Council Development Area (LCDA) with health care services;
• Details and copies of plans put in place to provide the Araromi Zion Estate with health care services taking into consideration the peculiar needs and circumstances of the community;
• Details of any research or assessment carried out on the needs of the community and its residents as well as copies of relevant research or assessments report or reports;
• An outline of the timeframe for the implementation of the plans, if there are plans to provide the Estate with primary health care facilities, and
• Details of the budgets and costs estimates for the implementation of the plans, if any.
Following the failure of the Ministry to respond to MRA’s request despite a reminder issued to it, the organization, through its lawyer, Mrs. Mosunmola Olanrewaju, filed a suit against the Ministry and the Attorney-General of the Federation asking the Court to declare that the Ministry’s refusal to provide it with the requested information is wrongful and to compel the disclosure of the records and information to the organization in accordance with the FOI Act.
However, the Ministry filed a notice of preliminary objection to the suit in which it contended that the court had no jurisdiction to determine the suit and asked that the suit be struck out on the grounds that:
• The substance of MRA’s case is not contained in the Exclusive Legislative List under the Second Schedule to the 1999 Constitution to confer exclusive power on the Federal Government to make the FOI Act for the Federation;
• MRA’s grievance is against the Lagos State Government which is not an agency of the Federal Government;
• Even if the FOI Act is applicable to Lagos State, MRA’s application for judicial review was filed outside the 30-day time limit stipulated by section 20 of the Act; and
• The Lagos State Ministry of Health is not a juristic person that can sue or be sued.
Ruling on the Ministry’s preliminary objection on November 28, 2017, Justice Oke-Lawal noted that three issues arose for determination in the matter namely, whether the FOI Act is applicable to Lagos State, whether MRA was out of time in filing the suit and whether the Lagos state Ministry of Health is a juristic person.
On whether the FOI Act is applicable to Lagos State, after an analysis of Section 4(5) and (6) of the 1999 Constitution (as amended), the judge ruled that the National Assembly has the power to make laws for the peace, order and good government of the Federation on any matter included in the Concurrent Legislative List, adding that if any Law enacted by a State House of Assembly is inconsistent with any law made by the National Assembly, the law made by the National Assembly would prevail.
She said based on the provisions of these sections of the Constitution, she was of the opinion that the wordings of the Constitution are clear as to the powers of the National Assembly to make laws for the Federation as long as the issue is within the Concurrent and Exclusive Legislative lists.
The judge upheld Mrs. Olanrewaju’s argument that the FOI Act was validly enacted by the National Assembly and as such applicable to the Federation and that it is not dependent on States adopting it for it to become applicable in such States.
She cited, in support of her position, the decisions of the Supreme Court dismissing similar challenges made to the validity and applicability of the Economic and Financial Crimes Commission (EFCC) Act and the Independent Corrupt Practices and other Related Offences Commission (ICPC) Act to the States.
Justice Oke-Lawal therefore held that the FOI Act applies to the Government of the Federation as well as to State Governments.
On whether MRA was out of time when the organization filed its suit against the Ministry and the State Government, the judge said having critically examined the processes filed by the parties to the suit, going by the date MRA’s freedom of information request was made and the date the originating processes were filed by MRA, it was clear that when it filed the suit, the organization was within the time stipulated by the FOI Act for filing an application for a review of the decision of any public institution not to disclose requested information.
On the argument of the Lagos State Ministry of Health that it is not a juristic person that can sue or be sued, Justice Oke-Lawal said there was no evidence to support the claim that the Ministry is not a juristic person and upheld the submission of Mrs. Olanrewaju that the creation of Lagos State by the State (Creation and Transitional Provisions) Decree No. 14 of 1967, on May 27, 1967 automatically conferred legal status on the Ministry as one of the institutions that took off with the State.
She ruled that the preliminary objection raised by the Ministry lacked merit and accordingly dismissed it.
The judged fixed hearing in the substantive suit for December 20, 2017.