Case Summary and Outcome

The Supreme Court of Nigeria unanimously overturned a Court of Appeal decision, holding that the Freedom of Information Act 2011 (FOIA) applies to all states within the Nigerian Federation and their respective agencies. The case arose when the Edo State Agency for the Control of AIDS refused a request from civil society actors to supply information on its finances, donors, and grant processes under the FOIA. The Court found that the Nigerian Constitution empowers the National Assembly to legislate on matters of public records for the entire Federation, a term which encompasses all state governments. It reasoned that a federal law on a concurrent legislative matter applies directly to states, and the absence of state-level legislation on the same subject does not negate this applicability. The doctrine of “covering the field” was discussed but found unnecessary to invoke in this instance, as the federal law was deemed operative regardless. The Supreme Court reinstated the trial court’s judgment ordering disclosure and awarded costs to the appellants.

Facts

The appellants were a coalition comprising four individuals (Comrade Austin Osakwe, Dr Esther Airia, Barrister Greg Agho, and Comrade Omohude Agho) and five civil society organisations in Edo State, Nigeria: the Foundation for Good Governance and Social Rights Action (FGGSC), Gender Rights Action (GRA), Health and Environmental Concerns (HEC), Anti-Corruption Revolution (ACR), and the Media Awareness Group (MAG). They initiated legal action against the respondent, the Edo State Agency for the Control of AIDS (EDOSACA).

The dispute began when the appellants requested detailed information from EDOSACA concerning its financial activities and grant management processes between 2011 and 2013. The specific information sought included details of revenue and expenditure, subventions from the state government, grants from corporate and private donors, identities of contracting firms, and the criteria for selecting organisations to receive grants. After EDOSACA failed to provide this information, the appellants filed an Originating Summons at the High Court of Edo State on 4 February 2014.

Their action was founded on several legal instruments: Section 20 of the Freedom of Information Act 2011 (FOIA), which provides for the right of access to information; Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (pertaining to fundamental rights); Article 9 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act; and the court’s inherent jurisdiction under Section 6(6)(b) of the Constitution.

The trial court (Edo State High Court) delivered its judgment on 29 April 2014, ruling in favour of the appellants. It granted all declaratory reliefs sought, compelling EDOSACA to disclose the requested information, including information on its revenue and expenditure, grants and aid from corporate and private donors, the contracting firms handling printing and supplies, the criteria for placing organisations on or removing them from its selection list for grants, the current number of civil society groups on that list, details of local and international donors, and financial reports submitted to such donors. Furthermore, it declared the agency’s refusal to supply the information as illegal, oppressive, and vexatious.

Dissatisfied, EDOSACA appealed to the Court of Appeal, Benin Division. In a majority decision of 2:1 delivered on 28 March 2018, the appellate court allowed the appeal. The majority reasoned that FOIA was a law enacted by the National Assembly for the “Federation” and, in the absence of a similar law enacted by the Edo State House of Assembly, it did not apply to state agencies like EDOSACA. The court held that the Act applied only to the public records and archives of the Federal Government. The appellants then appealed to the Supreme Court on 18 May 2018.

Decision Overview

Justice Mohammed Lawal Garba delivered this judgment for a five-judge panel of the Supreme Court. The main issue before the court for determination was whether the Freedom of Information Act 2011 (FOIA), enacted by the National Assembly pursuant to its powers under the Nigerian Constitution, is binding on and applicable to state governments and their agencies.

The appellants argued that the Court of Appeal majority erred in law. They contended that the FOIA applies to all public records and archives of government across all states of the Federation, not just those of the Federal Government. Their primary argument rested on a constitutional interpretation: the National Assembly’s power to make laws for the “Federation” inherently includes its constituent states. They also invoked the “covering the field” doctrine, asserting that a federal law on a concurrent subject prevails, rendering any inconsistent state law void.

The respondent (EDOSACA), on the other hand, argued that the “covering the field” doctrine was inapplicable because Edo State had not enacted any law on public records with which the federal FOIA could be inconsistent. It further contended that applying the federal FOIA to states would circumvent the offices of State Attorneys-General, a move contrary to the principles of federalism.

The applicable legal basis centred on the interpretation of the Nigerian Constitution, specifically Section 4(1), which vests legislative powers in the National Assembly to make laws for the “Federation”; Section 318, which defines “Federation” as the “Federal Republic of Nigeria”; Section 2(2), which stipulates that the Federation consists of the States and the Federal Capital Territory; the Concurrent Legislative List (Second Schedule, Part II, Item C, Paragraph 4), which empowers the National Assembly to “make laws for the Federation or any part thereof with respect to the archives and public records of the Federation”; and Section 4(5), which provides that if a state law is inconsistent with a valid federal law, the federal law shall prevail, and the state law shall be void to the extent of the inconsistency. [p. 28]

First, the Court addressed a preliminary objection from the respondent challenging its own legal capacity to be sued. The respondent claimed it was not a juristic person. The Court dismissed this objection, citing Section 1(1) of the Edo State Agency for the Control of AIDS (Establishment Etc) Law, 2009, which expressly establishes the agency as a body corporate with perpetual succession that “may sue or be sued in its corporate name.” [p. 18]

On the main issue, the Court conducted a detailed textual analysis of the Constitution. It held that the key term “Federation” is definitively construed as the “Federal Republic of Nigeria,” which is a composite entity including all states. The Court emphasised that the Constitution deliberately uses the word “Federation” in the legislative powers grant and not “Federal Government.” It stated: “the public records provided for in the provisions therefore are not limited, restricted or confined to public records of the Government or Government of the Federation, as wrongly stated or held by the court [of appeal].” [p. 29] This interpretation meant that a law on archives and public records made for the “Federation” applies to all public records within the nation.

The Court then analysed the Concurrent List. It confirmed that both the National and State Assemblies have the power to legislate on public records. However, it highlighted that the state’s power under Item 5 is explicitly made “subject to” the National Assembly’s power under Item 4. The Court explained the legal effect of this phrase: “the expression ‘subject to’ is used to subordinate the provision of the section in question… The expression is employed by the legislature to restrict or limit; as a condition precedent.” [p. 45] This meant that the federal law always holds a superior position.

The Court held that while the Court of Appeal was correct in finding the “covering the field” doctrine inapplicable, as Edo State had passed no law on public records, it erred in its consequent finding that the FOIA did not apply to the state. The Court clarified that the applicability of the federal FOIA is not contingent upon a state first enacting its own legislation. FOIA applies of its own force to all states as part of the Federation. The Court further noted that even if Edo State had enacted its own FOIA, it would be void to the extent of any inconsistency with the national FOIA. [p. 41] Consequently, the “covering the field” doctrine was deemed a secondary consideration, as the primary basis for the FOIA’s applicability was the direct operation of the Constitution itself.

The Court also reinforced the principle of judicial precedent, noting that a different division of the Court of Appeal had previously reached the correct conclusion in a similar case (Martins Alu v. Speaker, Ondo State House of Assembly), and the Benin Division was bound to follow that earlier decision. [pp. 47-48]

In conclusion, the Supreme Court allowed the appeal. It sat aside the majority decision of the Court of Appeal and restored the judgment of the Edo State High Court, which had compelled EDOSACA to disclose the requested information. The Court awarded costs of two million naira (approx. USD 1303) to the appellants.