GOVERNOR OF DELTA STATE v. OLUKUNLE (2020)

GOVERNOR OF DELTA STATE v. OLUKUNLE

(2020)LCN/14591(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, September 30, 2020

CA/AS/44/2015

RATIO

PLEAADINGS: LOCUS STANDI WITH RESPECT TO FREEDOM OF INFORMATION ACT.

It is beyond dispute that Nigeria is a Federation with a Constitution, wherein powers have been allotted constitutionally to the Federal, State and Local Governments as tiers of government.
In this wise, the power to make laws for the peace, order and good government of the respective tiers have been allotted.
The Christian and Moslems Welfare Boards of Delta State of Nigeria, have been established pursuant to the legislative powers of the Delta State House of Assembly as conferred by the constitution.
Their powers, rights, duties and privileges are regulated by the law establishing them; The Rights of persons to obtain and access information or Documents and Records of the Boards shall be as provided by the Law of the State as may be established or the Evidence Act which is of general Application throughout Nigeria.
That is to say, that for the Freedom of Information Act, 2011 to apply, the Bodies must be those stated in the Act itself. Now what does the Act say? The Freedom of Information Act provides as follows:
It is obvious, therefore, that the Act applies only to Federal Government and its Agencies.
See Sections 1, 2, 3, 5, 14, 15, 16, 29, 31, 32 of the Act.
This Court had in decided on 28-3-2018 that the FOI Act was applicable only to Federal Government Agencies, Parastatals and Ministries and does not apply to the States, (Edo State) in that case. The position of the law, however, is that where a Court is faced with two conflicting decisions given by it, it shall be taken that the later decision has overtaken the earlier one or departed therefrom, even if it does not over Rule it specifically.
See Lokpobiri Vs. Ogola (SC) (2017) 7 NWLR (pt 1563) 36.
The earlier decision appears to have been given per incuriam. The later decision of this Court in Benin (supra) is instructive.
There was not in force a State legislation of Delta State in place that had left a lacuna that needed to be filled or that was in conflict with the Act; for it is in that scenario that the administrative law doctrine of “covering the filed” could be validly invoked.
What is more, the earlier decision of this Court in the matter (ie ALOR’S case) referred to, would appear to have been concerned with the question as to the types of Records that were contemplated by the Act; It was in that respect that reference was made to the “Records” as enumerated or described in the concurrent legislative list of the Constitution; that is to say that the earlier decision of this Court at the Akure Division in the ALOR’S case was only concerned with the nature or character or type of the Documents covered as public records.
That was the ratio decidendi of the said case. It is, therefore, inapplicable. The surplusage of the phrase “but binding on the States by virtue of the doctrine of covering the field, could only, in the circumstance mean, that the States could make laws in respect of such Records or specie of document also and which records are public Records of the State. The Respondent’s counsel had relied onSPDC & 5 Ors Vs. Nwawka & Anor (2001) 10 NWLR(pt 720) 64 at 82-83 for the position that Applicant/ Respondent’s right to the information sought must be proved or shown.
It should be stated that Pats Achonolu, JCA (of blessed memory had carefully and with a great sense of responsibility chosen his words … thus “I think …….Where peace, justice and orderliness are threatened, then public rights may be enforced by a private person.
In the case of private law, the learned jurist recognized that it was only in “some cases”. There is, therefore, no absolute right and entitlement in the Respondent to bring the action, more so under the Freedom of Information Act 2011.
Even then, there must exist an infraction of the right or a threat of its being violated in matters affecting the public law.
What threat or clear and imminent danger of deprivation or loss to the Respondent, herein, was not proved by his Affidavit evidence in any jot. The suit at the trial Court was, to me, an academic exercise of no utilitarian value. See Johnson Vs. Aderemi 13 WACA 297, 299, Akande Vs General Electric Ltd (1979) 3-4 SC 115.
Respondent was a total stranger to the information which he sought, as he had, not shown why he could take any advantage of the information and orders sought and how his interest was far above and beyond the public interest. Imminent, clear and present danger or quiatiment circumstances are not shown. The respondent would have been better off in lobbying the Federal Government to institute an action against the Delta State Government before the Supreme Court in the exercise of its original jurisdiction to interpret the Constitution whether the exercise of the states legislative powers includes setting up Christian and Moslem Welfare Boards and if so who may have the power to call for information and documents therefrom their Public Records and Documents. I see the grievance of the Respondent as one that can only be addressed by the Public Accounts Committee or Public Complaints Committee of the Delta State or the House of Assembly, Complaints Commission of the Delta State Government with powers to entertain grievances relating to infractions by State Agencies. A recoil into a Unitarianism from Federalism? That is not the legislative intent in the Freedom of Information Act, 2011. What is being sought by the Respondent, is it! The duty of the Court is to interpret the words of the statute such that their clear, ordinary meaning shall be ascertained and be ascribed to them, as they are.
The Act is clear. The judex will not legislate in the circumstance. It will be usurpative of legislative powers and lead to tyranny. Even, if the wordings of the Act were ambiguous as to the application thereof, it is still the duty of the Court to give it a most sensible interpretation such that the intention of the law makers should be deciphered and accomplished. Could it have been the intention of the law makers that the State Ministries, Parastatals, Agencies, and which are not specifically mentioned in the Act would be covered by it and even when that could lead to an invasion into the confidentialities and privacy of the patrons of State Agencies in manners not contemplated by the State and not in the interest of the peace, order and good governance of the State? And in matters within its legislative powers? Each component State does have powers under the Constitution pursuant to the concurrent legislative list schedule to make its laws relating to discoveries and demand of records, information, etc; and until and unless made, a State is not bound to supply or provide and an Applicant is, ipso facto not entitled, as of right to have such records or information. Where, he seeks and it is refused, there does not exist a justiciable cause of action. The FOI Act is, to me, therefore, a legislation of high persuasive value to States including Delta State and Local Governments but without any element of legal compulsion; rather it is a legislation of moral suave and colouration; as relating to State Governments.
I agree with the Appellants counsel when he relies on the case of Economic and Financial Crimes Commission Vs. Ekeocha (2009) FWLR pt 458, page 310 at 323 and Awuse Vs. Odili (2004) 8 NWLR (Pt 876) pg 418 @ pg 512 in urging that this issue be resolved in favour of the Appellants.
It must be reiterated that the fact of having the FOI Act in the concurrent legislative list of the Constitution also re-enforces the argument that it is not in the exclusive domain of the Federal Government and thus depriving the States from controlling same. That being the case, the denial or refusal by a State or any of its Agencies of any information or document, cannot be compelled and to have as a basis the authority of this Act of the National Assembly. See Babale Vs. FRN (2019) 1 NWLR Pt 165 2100. The Appellant had also argued that Section 1 (2) of the FOI Act was inconsistent with the Section 6 (6) (b) of the 1999 Constitution. It appears to be so, as the civil rights and obligations of a complainant must have been breached or threatened to be violated before a “locus standi” would be activated. Indeed, the acts sought to be protected by the information sought must be unlawful conduct which are sought to be stopped. There was no unlawful conduct shown. That the Respondent does not have to show any specific interest in the subject to ground a cause of action under the FOI is a departure from the Section 6 (6) (b), 1999 Constitution and to open up a flood gate to litigation by busy bodies with a penchant for litigation; no wonder the Appellant confirms the motive in his concluding summary of his Brief of Argument thus: “e” that the dismissal of the main Appeal and allowing the cross-appeal will further deepen our democratic culture and constitutionalism” The above stance shows the activist posture contrary to the realism of the Courts. Activism may be useful in influencing policies of Government and legislations but certainly not decisions of Courts of law. The preamble to the Freedom of Information 2011, Act No. 4 state as follows:
“AN ACT TO MAKE PUBLIC RECORDS AND INFORMATION MORE FREERY AVAILABLE, PROVIDED FOR PUBLIC ACCESS TO PUBLIC RECORDS AND INFORMATION, PROTECT PUBLIC RECORDS AND INFORMATION TO THE EXTENT CONSISTENT WITH THE PUBLIC INTEREST AND THE PROTECTION OF PERSONAL PRIVACY, PROTECT SERVING PUBLIC OFFICERS FROM ADVERSE CONSEQUENCES FOR DISCLOSING CERTAIN KINDS OF INFORMATION AND ESTABLISH PROCEDURES FOR THE ACHIEVEMENT OF THOSE PURPOSES AND FOR RELATED MATTERS.
1. Notwithstanding anything contained in any other Act, law or regulation, the right of any person to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, Agency or institution, howsoever described, is established.
2. An applicant under this Act needs not demonstrate any specific interest in the information being applied for
3. Any person entitled to the right to information under this Act, shall have the right to institute proceedings in the Court to compel any public institution to comply with the provisions of this Act.
The Section 30 thereof provides thus:
“30 (1) this Act is intended to complement and not replace the existing procedures for access to public records and information and is not intended to limit in any way access to those types of official information that have been normally available to the general public.
2) Whether the question whether any public record or information is to be made available where that question arises under this Act, the question shall be determined in accordance with the provision stated therein unless otherwise exempted by this Act.
See Code of Conduct Bureau & Ors Vs Nwankwo (2018) LPELR 44762 (CA) pg 25 where it was held that certified true copies of Records of Asset declaration of applicant’s father could be made available. Appeal against the grant of right to the Record was dismissed. It was Affirmed that they are public Records and Applicant/Respondent was entitled to them.
Section 2 provides for the type of information to be published.
Section 3(1) provides thus – An application for access to a record or information under this Act shall be made in accordance with Section 1 of this Act.
Section 2 (6) – A person entitled to the right of access conferred by this Act shall have the right to institute proceedings in the Court to compel any public institution to comply with the provision of this. It must be noted that the FOI Act does not apply to published material or material available for purchase by the public; see Section 26 thereof.
Reports of the activities, revenues, expenditure are published periodically or annually by law and submitted to the public accounts Committee of the State House of Assembly, to Auditor General of the State as the case may be.
The Section 29 of the FOI Act provides for the submission of reports on or before February 1st of each year by each public institution to the Attorney General of the Federation a report which shall cover the preceding fiscal year and which shall include …….. and what the A-G of the Federation shall do; to submit to the Committees of Government and Judiciary in the senate and House of Representatives.
It is obvious, therefore, that the FOI Act is not applicable to the State, as the State counterpart in the HAG or speaker or leader of the H.A are not mentioned at all. The FOI Act, is a pious attempt at re-enforcing transparency in Government without prejudice to existing protocols and laws guiding the service; and importantly, it is meant to protect and to encourage public institutions/servants to be more open and indemnifies them from wrongs occasioned by disclosures in good faith.
Clearly, even the definition section shows ‘government’ as relating to Federal Government.
The executive office of the President is included and so also the military institution; nothing about the executive office of the Governor is stated. There is no mention of the State Attorney General or the Chairman or minority leader of the House of Assembly indicated as the National Assembly counterparts are.
It should be noted that the Respondent had referred us to the decision of this Court in Alo V. Speaker Ondo State House of Assembly & Anor (2018) LPELR 45143 Akure Division where it was decided that the public Record was synonymous with public document and are matters on the concurrent list and that the FOI Act was binding on the States by virtue of the doctrine of covering the filed.
For all that we have said above, we do not think that the Alo’s case supra has changed or contradicted our position in this case. Alo V. Speaker, Ondo State House of Assembly rightly decided in our view that a public document of the State constituted public documents and were subject to the laws relating to their characters and admissibility thereof, as provided for in the Evidence Act, 2004.
It also decided that public documents are public records and are matters on the concurrent legislative list; and what this, therefore, entails is that States can also constitutionally legislate concerning them.
It also means that where, there is no State legislation appertaining and relating to them they shall be governed by the Evidence Act by virtue of the administrative law principle or doctrine of covering the field.
In any case, if there is a Federal Legislation and at the same time, a State legislation, then in the event of conflict or inconsistency, the Federal enactment of the National Assembly shall prevail.
In this case, there is no feature or incident of inconsistency or of the doctrine of covering the field, let alone, the question of the specific application of the FOI, Act. To the extent that the FOI Act was held binding on the States, I think, that it was rather a sweep or an overstatement.
In any case, that was not the ratio decidendi of the decision though! It can only be rightly adjudged as persuasive and applicable in the interest of justice, as after all the Act has not abrogated the existing laws and procedures relating to freedom and official records.
It should be noted, that the fiscal Responsibility Act 2007, LFN Act NO. 3, has made comprehensive provisions relating to public finances, revenues, expenditures and accountability.
This most plausible and commendable piece of legislation, however, by it Section 54 thereof states that the Federal Government may provide Technical and Financial assistance to States and Local Governments that adopt similar fiscal responsibility legislation along the same lines as this Act for the modernization of their respective tax, finance and asset administration of their respective tax, financial and asset administration.
Indeed, the FOI Act, just as the fiscal responsibility Act which has established the Fiscal Responsibility Commission, a body corporate with a common seal and perpetual succession with powers to compel disclosure of public Revenues and expenditures and investigations into violation by persons and the forwarding of reports to the Federal Attorney-General for possible prosecution, and sundry other powers.
Indeed, transparency and accountability in the fiscal and financial affairs and full and timely disclosure and wide publications of all transactions and decisions involving public revenues and expenditures and their implication for its finances including the publication of audited accounts within mandatory time lines is stated in Section 48 of the Law; and so also the obligation of the National Assembly in their budgetary control; Ditto, the office of the Accountant General of the Federation. I have no doubt, therefore, that the Delta State Government and ipso facto all the other Appellants are only bound by the respective Delta State Legislations governing the Delta State Christian Pilgrims Welfare Board and the Moslem Pilgrims Welfare Board as may be relevant.
The trial Court ought not to have ordered the Appellants to supply any information of its revenues, income, expenditures, sponsorships of pilgrims and/or the personal particulars of any person except as by the law of the state provided and which will be subject to the privacy laws and exceptions as may be provided by law.
The Respondent did not show that this was the situation; to have without more granted the reliefs of declaration, mandatory injunction etc was a violent violation of the principle of federalism and separation of powers. It was even worse as no locus standi had been disclosed. The twin defects in the action at the trial Court could culminate into anarchy and the oppression of the Appellants by a busy body. The learned counsel for the Appellants was imminently correct when he submitted relying on Olafisoye Vs. Federal Republic of Nigeria (2004) 4 NWLR (pt 864) p. 580 @ p. 659 EG that the FOA, should be read holistically so as to understand the purport and intention of the legislator.
He is correct in arguing that a holistic reading of the Act shows that it applied only to Federal Ministries, Agencies, parastatals and Boards etc. The view of the learned trial judge thus: “I also from a review of this case and the provisions of the constitution earlier referred to and the FOI Act, 2011 (Section 2 (1) and 31 (3) find that the Act applies to the Delta state of Nigeria being a component part of the Nigeria federation and I so hold.” Cannot be correct, as the specific tier of the Nigerian Federation had clearly been identified by the mention of its Agencies, Agents and functionaries by name/description/office in the Act.
I refuse to go outside the intent and wordings of the FOI Act 2011 and the common sensical approach to the interpretation of statutes and statutory instruments to ascribe a status and an annihilating or clogging veto on the exercise of powers and discretion by governmental bodies in manners stipulated by law in favour of a litigant that seeks to emasculate for no proven and visible right shown.
The Respondent who had averred that he was himself a Christian could not have in contradiction been complaining against the Christian pilgrims Welfare Board’s income, expenditure, sponsorship of pilgrims when he had not shown that he had applied for sponsorship and was unfairly or wrongly denied, he having satisfied all the conditions.
Indeed, there was no indication of or suggestion of fraud or misappropriation/nepotism against any of the Boards ie the 2nd and 3rd Appellants, let alone, the report of same to appropriate governmental institutions for investigations and/or prosecution. The “real” and “tangible” basis of the Respondent’s request was shrouded in mystery, in the face of the existence of the multiple options by law/politics provided for nepotic or financial infractions.
The Appellant’s learned counsel’s closing submissions thus:
a) That the Respondent has not shown that his interest in the disclosure of the information sought is over and above the interest of Deltans in general
b) That the provisions of Section 1(2) of the Freedom of Information Act, 2011 is contrary and inconsistent with the provisions of Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
c) That the reliefs being sought by the Respondent is a general
interest shared with all members of the public which is not a
litigable interest to accord standing.
d) The Freedom of Information Act 2011 is a Federal Law enforceable against the Federal Government Ministries, parastatals and agencies. It is only when each state of the Federation passes similar Freedom of Information Law then and only then can the Respondent have the locus to access or request information which is in the custody or possession of any public official, agency or institution in Delta State.
Is apt. I adopt same wholly and I agree with the learned counsel for the Appellants that the suit culminating in this appeal is brazenly incompetent.
Section 4 (7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides: “The House of Assembly of a state shall have powers to make laws for the peace, order and good government of the state or any part thereof with respect to the following matters:
a) Any matter included in the concurrent legislative list set out in the 1st column of Part II of the Second Schedule to this Constitution – to the extent prescribed in the second column opposite thereto, Part II (C) of the Second schedule of the constitution of the Federal Republic of Nigeria, 1999 provides,
“The National Assembly may make laws for the Federation or any part thereof with respect to the archives and public records of the federation.
“A House of Assembly may subject to paragraph 4 hereof make laws for the state or any part thereof with respect to archives and public records.
It is in consonance to the aforementioned provisions that the National Assembly enacted the Freedom of Information Act 2011 which is applicable to the Federal Government of Nigeria. The Act applies to Records of the Federal Government and its Agencies and parastatals; until the Edo State Government enacts its own Freedom of Information Law pursuant the right to so under Section 4 (7) (a) and part ‘C’, constitution of the Federal Republic of Nigeria, 1999 the Edo State Government or any of the Appellants is not bound by the FOI, Act 2011.I should also add that even if the Respondent as an applicant at the lower Court had the locus standi to sue and even if the Freedom of Information Act, 2011 was to be applicable to the States and hence Delta State, however, the application for judicial review as brought which was instituted out of time. The letter requesting for the information from the 2nd and 3rd respondents dated September 2013 was dispatched via IAS courier service on same 13th September, 2013. By Section 20 of the FOI Act, an action shall only be instituted within 30 days of the denial or deemed denial, in this case by 13th October 2013.
Respondent applied to the Court on the 18th day of October 2013, which is 5 days after the limited period.
He did not apply for an extension of time as the statutory limitation therein had no such provision for the exercise. There is abundant evidence, from the record of the Court and the address of the Appellant’s counsel, Charles O. Agbagwu, Esq. Chief State Counsel, (as he then was) as can be found on pages 47-48 of the Record of this Appeal that the issue of locus or time bar is not a new Issue, exfacie the records and document. An issue of jurisdiction that made the suit incompetent as relating to violation of time regulated can be raised at any time as it was not constituted by the due process of law as time had lapsed, the suit ought to have been struck out in lamine assuming the legislation and parties were applicable and competent respectively; that question of time limitation being a jurisdictional Issue that is extrinsic to the adjudication by the Court. To give support and a push to the fundamental objectives and Directive principles of state policy, citizens should be constructive, realistic and not engaging in academic phobia which is not cognizable by the Courts, unless and until legal interest and rights are being infringed.
See Isaac Jitte Vs. Dickson Okpulor (2016) 2 NWLR (pt 1487) pg 542 at 563 where it was held that the concept of locus standi denotes the legal capacity to institute proceedings in Court of law. For a person to show locus standi to sue, all he needs to do is to show that he has sufficient interest in the subject matter of the action and that his civil rights and obligations have been or are in danger of being infringed. I shall emphasize, even if repetitively that in Alo’s case (supra), a general statement was made. Even if it was specific, this Court on the following day being at the Benin Division made a more specific statement of the law; in Osude Vs Azodo (2017) 15 NWLR (pt 1588) 21, the Supreme Court, per Galinje JSC in his contributory opinion stated thus:
“The decision in Lokpobiri Vs Ogola (supra) was delivered after the decisions in PDP Vs Sylva (Supra) and Kakih Vs. PDP. This Court apart from correcting itself, since it is the apex Court and there is no other Court to which its errors can be submitted for correction, it follows, therefore that where its later decisions are at variance with its previous decisions, it means that the previous decision has been overruled to the extent of the variation. Learned counsel for the respondents in this appeal seems to have paid more attention to the previous decision of the Court which seems to be at variance with the latest decision in Lokpobiri Vs. Ogola (Supra). This I think is a wrong posture and ought to be discouraged.
The decision in Lokpobiri is very clear, and that is that the Federal High Court has concurrent jurisdiction with the FCT and states High Court in respect of mattes provided for under Section 87 (9) of the Electoral Act, 2010” Drawing from the above interpretative view of the apex Court, it is lucidly clear that there is need to find out whether a more recent or subsequent decision of this Court on the applicability of the FOI Act to the State Exist.
There is none, to my knowledge. As in Otti Vs Ogah (2017) 7 NWLR (pt 1563 page 36 per Akaahs, JSC (rtd) a more proactive posture in allowing the ventilation of the rights asserted and claimed by the Respondent as plaintiff at the trial Court would have been endorsed by this Court in aid of open governance and transparency and Accountability if the Respondent herein had evinced his locus, shown the threat or dissatisfaction to him of actions or in actions of the Respondents before the suit and how he had been affected by them. Per MOHAMMED AMBI-USI DANJUMA, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

THE GOVERNOR OF DELTA STATE OF NIGERIA 2. CHRISTIAN PILGRIMS WELFARE BOARD 3. MUSLIMS PILGRIMS WELFARE BOARD 4. ATTORNEY-GENERAL OF DELTA STATE APPELANT(S)

And

EDUN OGHENEOVO OLUKUNLE ESQ. RESPONDENT(S)

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Justice G. B. Briki-Okolosi of the Delta State High Court of Justice, Warri Judicial Division delivered on the 19th day of June 2014, wherein the trial judge granted reliefs A, B, and F but refused reliefs C, D, E and H as sought.

At the High Court of Justice of Delta State the Respondent herein, as plaintiff had commenced an action by an originating summons dated and filed on 18th day of October 2013 by which he claimed against the Appellants/ Respondents herein as follows:
(1) A Declaration that by virtue of the provision of 2, 3,4, 5, and 6 of the Freedom of Information Act, 2011, the 1st – 3rd defendants (being officers/bodies) are under a legal obligation to provide the Applicant with the information requested for relating to the income, expenditure, sponsorship of pilgrims and legal basis for the establishment of the 2nd and 3rd respondents as particularly spelt out in Applicant’s letter dated September 13th 2013.
(2) A declaration that the failure of the 1st- 3rd Respondents to provide the Applicant with the information

requested is a breach of the provisions of Section 2, 3, 4, 5, and 6 of the Freedom of Information Act, 2011.
(3) A declaration that the Christian Pilgrims Welfare Board Law, Cap C8 and the Muslims Pilgrims Welfare Board Law, Cap M8 are illegal, nullity and in conflict with the provisions of Sections 38 and 42 of the 1999 Constitution as amended.
(4) A declaration that by the establishment of the 2nd and 3rd respondents the Delta State Government as represented by the 1st and 4th. Respondents, has adopted both Christianity and Islam as State religions.
(5) An order setting aside the Christian Pilgrims Welfare Board Law Cap C8) and the Muslim Pilgrims Welfare Board Law (Cap M8) on the ground of being inconsistent with the provisions of Sections 38 and 42 of the Constitution of the Federal Republic of Nigeria, as amended.
(6) An order of mandamus compelling the Respondents to provide the Applicant with up to date information requested, as stated in Applicants letter dated September 13th 2013, particularly with
respect to the following:
(a) The provision of a comprehensive account of all the monies allotted to the 2nd and 3rd

Respondents from 2010 to date and the budgetary provisions for same.
(b) The full list of pilgrims (including government officials) sponsored on pilgrimage by the Delta State Government from 2010 to date.
(c) Amount the Delta State Government is projecting to allocate to the 2nd and 3rd Respondents in the 2014 budget.
(d)The criteria for selecting past/potential/prospective pilgrims for sponsorship by the 1st, 2nd and 3rd Respondents.
(e) The legal basis for the allocation of public funds to the 2nd and 3rd Respondents in the face of obvious constitutional provisions prohibiting same.
(7) An order compelling the Respondents to file before this Honourable Court an audited report of all its financial operations.
(8) An order of injunction restraining the 1st and 4th Respondents from releasing/further releasing, funding/further funding the Operations/activities of the 2nd and 3rd Respondents.

The Respondent is a legal practitioner and was the immediate past Chair of the NBA Warri Public Interest Litigation Committee at the time of filing this action. Respondent filed the action vide originating summons proceedings

essentially to challenge the constitutionality of the establishment of the 2nd and 3rd Appellants (2nd and 3rd Respondent at the trial Court) in the face of the secularity of the Federal Republic of Nigeria as enshrined in Section 10 of the 1999 Constitution. Prior to initiating the action at the trial Court, Respondent made a request pursuant to the enabling provisions of the Freedom of Information Act, 2011, regarding the operations, funding, list and names of sponsored pilgrims, modalities for selecting pilgrims and so forth, which request was ignored/refused, and this compelled the Respondent seeking judicial determination of the legal obligation of the Appellants. All the parties filed their respective position papers and written address.

The Learned Trial Judge, Hon. Justice G. B. Briki-Okolosi in a considered judgment delivered on the 19th day of June, 2014 granted the originating summons application in part (i.e. reliefs A, B & F) and further “directed that all further releases/funding to the 2nd and 3rd Respondent be and hereby to cease until the Order to provide information in relief F is complied with within two (2) weeks of this Order”.

Respondent filed a Cross Appeal on the 22nd day of August, 2014 challenging the refusal of the learned trial judge to grant reliefs C, D, E, G & H of the Originating Summons, which question the constitutionality of the creation of the entities and activities of the 2nd and 3rd Respondents. The argument in respect of the Cross Appeal is sub-headed in separate paragraphs in the brief.

Aggrieved by the aforesaid Judgment, the Appellants herein, by their learned counsel Charles A. Agbagu, Esq. lodged a Notice of Appeal upon 2 succint Grounds of Appeal on the 30th June 2014. It is as contained or encased at pages 173-175 of the Record of Appeal.

The Grounds of Appeal and their particulars are reproduced herein under as follows:
GROUNDS OF APPEAL
Grounds 1
The learned trial judge erred in law in holding that the Applicants originating summons is competent when:

i) The Applicant did not disclose the locus standi to institute this suit.
ii) The Freedom of Information Act upon which the action is predicated is not applicable to the public records of Delta State
iii) The claim does not disclose a cause of action

against the respondents.

GROUND 2
The learned trial judge erred in law in holding that the Freedom of Information Act, 2011 is applicable to the Delta State of Nigeria.
Particulars of Error
i) The Freedom of Information Act, 2011, is not (sic) applicable to the public records of the Federal Government.
ii) By virtue of Paragraphs 4 and 5 of Part 11 of the Second Schedule to the 1999 Constitution the power of the National Assembly to legislate on matters of archives and public records does not extend to archives and public records of the Government of Delta State.

RELIEFS SOUGHT BY THE APPELLANTS FROM THIS COURT
An order allowing the appeal, setting aside the decision of the lower Court dated 19th June, 2014 and in its place dismissing the claim.
PARTIES DIRECTLY AFFECTED BY THE APPEAL
The Governor of Delta State of Nigeria Ministry of Justice
Christian Pilgrims Welfare Board Asaba
Muslims Pilgrims Welfare Board Delta State
Attorney General of Delta State
EDUN Ogheneovo Olukunle Esq. of Tri-Lex partners – 35 NNPC Housing Complex Road, Ekpan-Warri.
Dated this 30th day of June, 2014

The record of Appeal transmitted on 6-3-2015 was deemed duly compiled and transmitted on 10-1-2018 pursuant to the grant of Appellant’s motion dated 3-3-2017, and filed on 6-3-2017 which was granted on the said 10-1-2018.

The appeal suffered some delay until 2-2-2020 when leave was granted for extension of time to file the Appellant’s Brief of Argument and the Appellant’s Brief of Argument filed on 13-2-2018 was deemed as properly filed within time and served on that date.

The Respondent’s Brief of Argument dated 30th May 2018 was filed on 25th June 2018. There is an objection to ground one of the Notice of Appeal raised at page 2, paragraph 1.05 thereof.

Indeed the Respondent has curiously and against the Rules of Court incorporated arguments in respect of his Cross-Appeal, which is an independent Appeal which must have its separate Cross-Appellants Briefs filed and responded to and to be so argued distinctly; save the Court grants leave to do otherwise. There was no such leave sought nor granted by this Court to so file. The Cross-Appeal could be deemed abandoned and un-argued in law.

The Appellant also filed a Reply Brief

of Argument, which was abandoned as it related particularly to the Cross-Appeal of the Respondent which was withdrawn at the hearing on 2-7-2020 and struck out.

At the hearing of this appeal, on 2-7-2020, the parties adopted their respective Briefs of Argument as filed and exchanged.

The Appellants, by their Brief of Argument dated 5th February and filed on 13-2-2018, but deemed duly filed and served on 2-7-2020 raised 2 Issues for the determination of this Court, thus;
1. Whether the learned trial judge was right when he held that the respondent has locus standi to bring this suit predicated on the freedom of Information Act, 2011.
2. Whether the learned trial judge was right when he held that the freedom of information Act, 2011 is applicable to the Delta State Government of Nigeria.

On its part, the Respondent postulated 4 issues by his Respondent’s Brief of Argument settled by Respondent, personally.
The issues are as follows:
ISSUE ONE
WHETHER THE ORIGINATING SUMMONS DID NOT DISCLOSE THE LOCUS STANDI OF THE RESPONDENT AND OR A CAUSE OF ACTION AGAINST THE APPELLANTS?

Distilled from Ground 1 of the Notice of Appeal.
ISSUE TWO (2)
WHETHER THE FREEDOM OF INFORMATION ACT, 2011 IS NOT OF GENERAL APPLICATION THROUGHOUT THE FEDERAL REPUBLIC OF NIGERIA? Distilled from Ground 2 of the Notice of Appeal.
ISSUE THREE
WHETHER THE TRIAL COURT WAS NOT WRONG IN REFUSING TO GRANT RELIEFS C, D, E, G & H OF THE ORIGINATING SUMMONS? Distilled from ground 1 of Notice of Cross Appeal
ISSUE FOUR
WHETHER THE TRIAL COURT WAS NOT WRONG WHEN IT FAILED TO HOLD THAT THE ESTABLISHMENT OF THE 2ND AND 3RD RESPONDENTS IS AGAINST THE SPIRIT AND INTENT OF THE PROVISIONS OF SECTION 10 AND 42 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999, AS AMENDED? Distilled from ground 2 of Notice of Cross Appeal

It should be noted that the Respondent had also filed a Notice of Cross-Appeal and Cross-Appellant’s Brief of Argument to which the Appellant herein had filed the Cross-Respondent’s Brief of Argument.
The Cross-Appeal was withdrawn at the hearing of this appeal and accordingly the processes in that regard were both struck out.

I shall, therefore, treat this appeal on the Appellant’s appeal only.

Appellant’s 2 Issues are the same with the Respondent’s Issues 1 and 2

ARGUMENT ON THE APPELLANT’S ISSUES
ISSUE ONE
WHETHER THE ORIGINATING SUMMONS DID NOT DISCLOSE THE LOCUS STANDI OF THE RESPONDENT AND/OR A CAUSE OF ACTION AGAINST THE APPELLANTS? (Distilled from Ground 1 of the Notice of Appeal).
It was submitted that the learned trial judge was wrong in holding that the respondent had locus standi to bring the action predicated on the Freedom of Information Act, 2011. On this, it was argued that ‘locus standi denotes the legal capacity to institute an action in a Court of law’. It clothes the plaintiff with the status to be heard on any question affecting his right in the absence of any impediment, hindrance or obstruction.

Reference was made to the case of ‘K’ Line Inc V K.R International (Nig) &Anor (1993) 5 NWLR pt 292) pg 159 at 126. (I wonder why the specific page will come before the page of the commencement of the report as cited. It must have been cited in error.
It was also argued that before a person could be said to have locus standi

in a matter, he must show that he has sufficient interest in the matter and which is enforceable in law and not one that he shares in common with other members of the public. Referring also to the case of Alhaja Afusat Ijelu Olayomi and others Vs. Lagos State Development and Property Corporation (1992) 9 NWLR (pt 266) 414 at page 422 and 423, where the Supreme Court per S. U. Mohammed, JSC of blessed memory stated the position thus;“there is a long line of authorities on the subject ……………..”

It was on the above authority submitted that the interest allegedly being claimed are not peculiar or special to the Respondents alone; that they were interest shared by the general public which cannot be litigated upon.

Quoting Salami, JCA, (later PCA) in Shindemu V. Governor of Lagos State (2006) ALL FWLR (pt 311) page 1858 at 1874 relying on Adesanya Vs. President Federal Republic of Nigeria (1981) 2 SCNCLR at 361 thus “A general interests shared with all members of the public is not litigable interest to accord standing”.

It was, therefore, contended that the Respondent as Plaintiff had to show

that the injury or hardship that may be occasioned to the aforesaid respondent is not peculiar or personal to him to the exclusion of other citizens.

It was observed that the originating summons (which counsel said and I so confirm was undated) shows clearly that they are in the nature of public rights and are issues or matters which will affect the larger interest of Deltans.

Counsel, therefore, posits that the respondent had no locus standi to sue and to seek declaratory and injunctive reliefs with respect to a matter of public import, unless his private rights have been impinged or where he has sustained special damage peculiar to him from the infringement of the public right. Shibkau Vs. Attorney General, Zamfara State (2010) 10 NWLR (pt 1202) pg 312 at 339-340 paragraph HD on the locus standi of an individual in matters affecting the members of society generally and under public law, per Oredola, JCA thus ………… was relied upon.

The learned counsel relying further on Thomas Vs. Olufosoye (1986) 1 NWLR (pt 18) pg 669 submitted that the apex Court has left no one in doubt that to invoke the judicial powers of the

Courts, a person must show that:
1. His personal interest will be affected by the action of the defendant
2. He has suffered injury and his interest is over and above that of the general public.
Reference was made to the case of Keyamo Vs. Lagos State House of Assembly & Ors (2000) 12 NWLR (pt 680) pg 196. Wherein the Plaintiff/Appellant sued on the basis that he was a legal practitioner and citizen of Nigeria and his action was struck out as he had no locus standi to sue.

That as the reliefs stood, no locus standi had been disclosed to invoke the powers of the Court and that there is no right or obligation of the Respondent that had been infringed upon or violated by any of the Appellants. That there was no dispute to be settled by the honourable Court between the parties.

The learned counsel submitted that even where the Section. 1 (2) of the Freedom of Information Act provides that “An application under this Act need not demonstrate any specific interest in the information being applied for”. The said provision was contrary to and inconsistent with the succinct provisions of Section 6(6) (b) of the Constitution of the Federal Republic of Nigeria, 1999 as Amended

which states that “The Judicial powers vested in accordance with the foregoing provisions of this section:
b) Shall extend to all matters between persons or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto for the determination of any question as to the civil rights and obligations of that persons”.

On the aforesaid, it was argued that the Courts can only take cognizance of justiciable disputes in which the parties have sufficient interest. Fawehinmi Vs IGP (2002) 7 NWLR (pt 767) 606 at 608 relied upon to show that Section 6 (6) (b) of the Constitution, Federal Republic of Nigeria, 1999 does not alone or per se confer locus standi to every person but only to those that prove facts bringing them under its canopy.

The learned counsel dwelling on Sections 1(1) and 1(3) of the Constitution, 1999, submitted that any other law inconsistent with the Constitution, was to the extent of the inconsistency void and the Constitution prevailing.
Ansa Vs. Registered Trustees of the Presbyterian Church of Nigeria (2008) FWLR (pt 405)

1681 at 1704 relied upon.

That the Court can only exercise its powers under Section 272 of the 1999 Constitution where there was a competent plaintiff i.e. one that has locus standi pursuant Section 6(6) (b) of the Constitution
Onuekwusi Vs. Registered Trustees of the Christ Methodist Zion Church (2011) 6 NWLR (pt 1243) thus:
“A Court will lose jurisdiction if a party has no locus standi”.

Per Tanko Muhammad, JSC, as he then was (now CJN) was further relied upon. Learned counsel also relied on Adetono V. Zenith International Bank Plc (2011) 18 NWLR (pt1279) p. 627 at 643 par F-G. thus:
“Once the locus standi of a plaintiff cannot be established from the pleadings that plaintiff’s action is liable to be dismissed.’

In response, the Respondent’s learned counsel abandoned arguments relating to the cross Appeal already withdrawn and which was, accordingly struck out. He however argued the preliminary objection to Ground one of the Notice of Appeal on lack of locus standi and contended by his paragraph 1.05, page 2 of his Brief that the Issue number 1 on locus standi was incompetent as it was not

raised at the trial Court and should be struck out, therefore.

I need not delay this objection other than discountenance it summarily as the issue of “locus standi” is a question that borders on and raises the fact of jurisdiction and is extrinsic to adjudication and may be raised at any stage of the proceedings; whether at the trial or at the appellate Court and even for the very first time on appeal.
It was therefore, competently raised; the objection, therefore falls and is dismissed.

Responding on the locus standi raised; and by his own Issue one, the Respondent submitted that the issue of locus standi was surely an issue of jurisdiction; but that the authorities relied upon by the Appellant are outdated, inapplicable and do not represent the extant state of the law on the issue of locus standi; in his words “…. They are inapplicable, incorrectly postulated and have no bearing on the facts and Issues
‘gleaned’ in this appeal by the parties”.

The learned counsel submitted that the Appellants by their counter Affidavit to the originating summons did not deny receiving the FOI request for

information from the Respondents and also admitted their refusal to furnish the Respondent the said information or Notice of Refusal within 7 days permitted by the FOI Act.

Upon the aforesaid, counsel submitted that a cause of action had been disclosed against the Appellants. Learned counsel relies also on Section 1 sub Section 1 and 2 of the Act which provides that the Respondent “shall have the right to institute proceedings in the Court to compel any public institution to comply with the provision of this Act” and in doing so the Respondent “need not demonstrate any specific interest in the information being applied for”.

The learned counsel argued that the Courts are now more liberal when determining the issue of locus standi with respect to matters which involve the determination of the constitutionality of actions of Public Authorities or which challenges the constitutionality of laws passed by the National Assembly and States Houses of Assembly.

Counsel said there is a distinction between litigations in constitutional matter/public rights/duties/interest litigation and private rights; and that Keyamo’s case

is no longer the law.
Relies on Fawehinmi Vs. President, FRN (2007) 14 NWLR (pt 1054) which followed Fawehinmi Vs. Akilu (1987) 4 NWLR (pt 67) 797; Williams V. Dawodu (1988) 4 NWLR (pt 87) 189. S. P. D.C. V Nwawka (2001) 10 NWLR (pt 720) 64. Learned Counsel x-rayed the Abraham Adesanya’s case to contend that the Right of access to the Courts was even upheld in that case by the CJN, Williams as he then was. That the case only failed on account of estopel. Abraham Adesanya, having participated in the proceedings of the senate he was challenging. That doctrinal obstacles be not allowed to impede the rights of citizens/residents to challenge public wrongs.

The learned counsel submitted further that the Kayamo case was decided per in curiam the Supreme Court decision in Fawehinmi Vs. Akilu earlier decided on 18th December (1987) and does not represent the position of the law on locus standi.

It was argued that the contention that there was no locus standi to Applicants in this type of actions is to endorse corruption and unaccountability; that the F.O.I Act was neither unconstitutional nor inconsistent with Section 6 (6) (b). That the FOI is

consistent with Section 15 (5) of the Constitution that “The state shall abolish all corrupt practices and abuse of power.”

The learned counsel submits that the law and practice now is that the Courts should grant access to “spirited persons” on issues that are of constitutional relevance, great public interest and/or protection of the rights of citizens of Nigeria. Refers to SPDC & 5 Ors Vs. Nwawka & Anor (2001) 10 NWLR (pt 720) page 64 at 82-83, per pats Acholonu, JCA thus:
“It needs the courage, wisdom and proper understanding of our social-economic environment for an activist Judge to widen the scope of the law on locus standi. Some judge and advocates have shown some trepidation in handling this matter. I believe we have to take the bull by the horn and do justice to a matter before the Court without bending overly backwards because a matter is on a border-line in respect of whether the initiator of an action has the standing order to so do. I think that where the cause is laudable and will bring peace, justice and orderliness that will reflect the spirit of the Constitution then we should not shirk our

responsibility in this area to help advance the cause of social, economic and cultural matters as they affect this Society……………. I believe that it is the right of any citizen to see that law is enforced where there is an infraction of that right or a threat of its being violated in matters affecting the public law and in some cases of private law such as where widows, orphans are deprived and a section of the society will be adversely affected by doing nothing”

The learned counsel surmised that the thoughts aforesaid had probably heralded the reform leading to the Fundamental Rights (Enforcement Procedure) Rules 2009, which according to the learned counsel had completely annihilated the issue of locus standi without any legal bar any longer thus bringing life and vibrancy to the statement of Obaseki, JSC (Rtd) in the case of Fawehinmi Vs Akilu (Supra) that we should all be our “brother’s keeper”.

That we should hold in favour of the Respondent in this Issue.
The Appellant, by his Appellant’s Reply Brief of Argument emphasised at page 4 thereof on locus standi that the present

position of the law on locus standi, as postulated by the Supreme Court is as decided in Isaac Jitte Vs Dickson Okpulor (2016) 2 NWLR (pt 1487) thus “The concept of locus standi denotes the legal capacity to institute proceedings in a Court of law. For a person to have locus standi to sue all he need to do is to show that he has sufficient interest in the subject matter of the action and that his civil rights and obligations have been or are in danger of being infringed”.

INEC V OGBADIBO LOCAL GOVERNMENT (2016) 3 NWLR (PT 1498) Pg 167 at page 187 paragraph E-G thus:
“Once a plaintiff has the right or vested interest to protect and enforce legally and this has been disclosed in the writ of summons and statement of claim, as in the instant case, in the deposition in the affidavit in support of summons, the plaintiff will be adjudged to have shown sufficient interest which entitles him to sue on the subject matter.’

ISSUE TWO
Whether the learned trial Judge was right when he held that the freedom of Information Act, 2011 is applicable to the Delta State Government of Nigeria.
On this issue, it was submitted that

the trial Judge was wrong to have held that the Freedom of Information Act, 2011 was applicable to Delta State of Nigeria. That it was a Federal Enactment enforceable against the Federal Government, its Agencies and parastatals only; that it is only when the Delta State Government passes a similar Freedom of Information law, that the Respondent could have the locus standi to access or request information in custody of or possession of any public official Agency or institution in Delta State.

The learned counsel submits that there is no law conferring any locus on the Respondent to seek the information he seeks, and that his action must fail for its “brazing incompetence.”
The learned counsel, dwelling and finding anchor on Section 4 (7) of the constitution of the Federal Republic of Nigeria 1999 as amended which provides:
“The House of Assembly of a state shall have powers to make laws for the peace, order and good government of the state or any part thereof with respect to the following matters:
a) Any matter included in the concurrent legislative list set out in the first column of Part II of the Second Schedule to this

constitution to the extent prescribed in the second column opposite thereto:
Part II C of the Second Schedule to the constitution of the Federal Republic of Nigeria 1999 provides.
“The National Assembly may make laws for the Federation or any part thereof with respect to the archives and public Records of the Federation.
“A House of Assembly may subject to paragraph 4 hereof make laws for the state or any part thereof with respect to archives and public Record of the Government of the State.”

That pursuant to the constitutional provisions above, the National Assembly enacted the F.O.I Act which is applicable to the records of Federal Government of Nigeria, its Agencies etc.

That a holistic reading of the FOI rather than the narrow interpretation placed by the trial Court on Section 2 (1) and 31 (3) of the Act will show that it was applicable only to the Federal Government and its Agencies, to the exclusion of the States.
He cited Kupolati Vs. Oke (2009) FWLR (pt 486) page 1858 at 1902 – 1903 paragraph E-F in aid. From the above, counsel submitted that where the words of a statute are clear and unambiguous, the Courts must not go outside them

in a voyage of discovery in search of interpretation which is convenient to the Courts or the parties or one of the parties; that even where the provisions of a statute are hard so as to do some inconvenience to the parties, the Court is bound to interpret the provisions once they are clear and unambiguous.

That the Court in its interpretative jurisdiction must stop where the statute stops.
ECONOMIC AND FINANCIAL CRIMES COMMISSION VS EKEOCHA (2009) ALL FWLR (pt 458) pg 310 @ p. 323 and AWUSE V. ODILI (2004) (PT 876) P. 418 at 512 were relied upon and urged that this issue be resolved in favour of the Appellant.

This Court has been urged to allow the appeal and to set aside the judgment of the trial Court on the grounds that:
1. The Respondent had not shown that his interest in the disclosure of the information sought is over and above the interest of Deltans in general
2. That the provisions of Section 1 (2) of the Freedom of Information Act, 2011 is contrary and inconsistent to Section 6 (6) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)

The Respondent on his

part contended that the F.O.I. Act is of general application throughout Nigeria, reference was made to A.G of Ondo State Vs. AG Federation (2002) FWLR pt III upholding the constitutionality and applicability of the Corrupt Practices and Other Related Offences Act, No. 5 of 2000. Reference was made to Appeal No. CA/AK/4/2017:Martins Alo Vs. Speaker, Ondo State House of Assembly & Anor of 27th March, 2018, and urged that the FOI is a statute of general application in Nigeria and did not need any domestic action for its enforcement as it was not an international treaty.

The learned counsel argued that to hold otherwise would mean that such Acts as the EFCC Act and ICPC Act will not be of general application in Nigeria, (which is not the case, now).
We have been urged to dismiss the appeal and to affirm the decision of the trial Court.

RESOLUTION OF THE ISSUES IN THE APPEAL
This appeal opens yet again the bugging and interesting discourse on constitutionalism, “locus standi,” the rule of law and public accountability. These notions afore-mentioned are not new in our legal lexicon, as they are the recurring ‘power points’

in our journey into a stable, virile, peaceful and economically viable state as a Nation made up of Federating units in a Republic.

The Freedom of Information Act 2011, and its application to the component units of the Republican Government of Nigeria in its Federating constituents and tiers is the focus and essence of this appeal and judgment.

I shall commence the determination by the consideration of the second issue first as its determination will make the post clear as to who the parties that may bring an action thereunder could be in law.

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The Rights of persons to obtain and access information or Documents and Records of the Boards shall be as provided by the Law of the State as may be established or the Evidence Act which is of general Application throughout Nigeria.
That is to say, that for the Freedom of Information Act, 2011 to apply, the Bodies must be those stated in the Act itself. Now what does the Act say? The Freedom of Information Act provides as follows:
It is obvious, therefore, that the Act applies only to Federal Government and its Agencies.
See Sections 1, 2, 3, 5, 14, 15, 16, 29, 31, 32 of the Act.
This Court had in decided on 28-3-2018 that the FOI Act was applicable only to Federal Government Agencies, Parastatals and Ministries and does not apply to the States, (Edo State) in that case.
Hear the Court-
The Respondent’s counsel, in the instant appeal, had sought to show that this Court in ALO VS SPEAKER, ONDO STATE HOUSE OF ASSEMBLY & ANOR (2018) LPELR – 45143 had previously held in the Akure Division of this Court that the FOI Act, 2011 was a law of general application and applied to the States and under the doctrine of covering

the field; that the earlier decision should be followed and applied.
Although no copy of our said earlier decision was made available, but I take judicial notice of same, having had a preview of it in the Electronic Report as cited.
The position of the law, however, is that where a Court is faced with two conflicting decisions given by it, it shall be taken that the later decision has overtaken the earlier one or departed therefrom, even if it does not over Rule it specifically.
See Lokpobiri Vs. Ogola (SC) (2017) 7 NWLR (pt 1563) 36.
The earlier decision appears to have been given per incuriam. The later decision of this Court in Benin (supra) is instructive.
There was not in force a State legislation of Delta State in place that had left a lacuna that needed to be filled or that was in conflict with the Act; for it is in that scenario that the administrative law doctrine of “covering the filed” could be validly invoked.
What is more, the earlier decision of this Court in the matter (ie ALOR’S case) referred to, would appear to have been concerned with the question as to the types of Records that were contemplated

by the Act; It was in that respect that reference was made to the “Records” as enumerated or described in the concurrent legislative list of the Constitution; that is to say that the earlier decision of this Court at the Akure Division in the ALOR’S case was only concerned with the nature or character or type of the Documents covered as public records.
That was the ratio decidendi of the said case. It is, therefore, inapplicable. The surplusage of the phrase “but binding on the States by virtue of the doctrine of covering the field, could only, in the circumstance mean, that the States could make laws in respect of such Records or specie of document also and which records are public Records of the State.

The Respondent’s counsel had relied onSPDC & 5 Ors Vs. Nwawka & Anor (2001) 10 NWLR(pt 720) 64 at 82-83 for the position that Applicant/ Respondent’s right to the information sought must be proved or shown.
It should be stated that Pats Achonolu, JCA (of blessed memory had carefully and with a great sense of responsibility chosen his words … thus “I think …….Where peace,

justice and orderliness are threatened, then public rights may be enforced by a private person.
In the case of private law, the learned jurist recognized that it was only in “some cases”. There is, therefore, no absolute right and entitlement in the Respondent to bring the action, more so under the Freedom of Information Act 2011.
Even then, there must exist an infraction of the right or a threat of its being violated in matters affecting the public law.
What threat or clear and imminent danger of deprivation or loss to the Respondent, herein, was not proved by his Affidavit evidence in any jot. The suit at the trial Court was, to me, an academic exercise of no utilitarian value. See Johnson Vs. Aderemi 13 WACA 297, 299, Akande Vs General Electric Ltd (1979) 3-4 SC 115.
Respondent was a total stranger to the information which he sought, as he had, not shown why he could take any advantage of the information and orders sought and how his interest was far above and beyond the public interest. Imminent, clear and present danger or quiatiment circumstances are not shown.

The respondent would have been better off in lobbying the

Federal Government to institute an action against the Delta State Government before the Supreme Court in the exercise of its original jurisdiction to interpret the Constitution whether the exercise of the states legislative powers includes setting up Christian and Moslem Welfare Boards and if so who may have the power to call for information and documents therefrom their Public Records and Documents.

I see the grievance of the Respondent as one that can only be addressed by the Public Accounts Committee or Public Complaints Committee of the Delta State or the House of Assembly, Complaints Commission of the Delta State Government with powers to entertain grievances relating to infractions by State Agencies.

A recoil into a Unitarianism from Federalism? That is not the legislative intent in the Freedom of Information Act, 2011. What is being sought by the Respondent, is it! The duty of the Court is to interpret the words of the statute such that their clear, ordinary meaning shall be ascertained and be ascribed to them, as they are.
The Act is clear. The judex will not legislate in the circumstance. It will be usurpative of legislative powers and

lead to tyranny. Even, if the wordings of the Act were ambiguous as to the application thereof, it is still the duty of the Court to give it a most sensible interpretation such that the intention of the law makers should be deciphered and accomplished.

Could it have been the intention of the law makers that the State Ministries, Parastatals, Agencies, and which are not specifically mentioned in the Act would be covered by it and even when that could lead to an invasion into the confidentialities and privacy of the patrons of State Agencies in manners not contemplated by the State and not in the interest of the peace, order and good governance of the State? And in matters within its legislative powers? Each component State does have powers under the Constitution pursuant to the concurrent legislative list schedule to make its laws relating to discoveries and demand of records, information, etc; and until and unless made, a State is not bound to supply or provide and an Applicant is, ipso facto not entitled, as of right to have such records or information. Where, he seeks and it is refused, there does not exist a justiciable cause of action. The FOI Act is,

to me, therefore, a legislation of high persuasive value to States including Delta State and Local Governments but without any element of legal compulsion; rather it is a legislation of moral suave and colouration; as relating to State Governments.
I agree with the Appellants counsel when he relies on the case of Economic and Financial Crimes Commission Vs. Ekeocha (2009) FWLR pt 458, page 310 at 323 and Awuse Vs. Odili (2004) 8 NWLR (Pt 876) pg 418 @ pg 512 in urging that this issue be resolved in favour of the Appellants.
It must be reiterated that the fact of having the FOI Act in the concurrent legislative list of the Constitution also re-enforces the argument that it is not in the exclusive domain of the Federal Government and thus depriving the States from controlling same. That being the case, the denial or refusal by a State or any of its Agencies of any information or document, cannot be compelled and to have as a basis the authority of this Act of the National Assembly. See Babale Vs. FRN (2019) 1 NWLR Pt 165 2100.

The Appellant had also argued that Section 1 (2) of the FOI Act was inconsistent with the Section 6 (6) (b) of the 1999

Constitution. It appears to be so, as the civil rights and obligations of a complainant must have been breached or threatened to be violated before a “locus standi” would be activated. Indeed, the acts sought to be protected by the information sought must be unlawful conduct which are sought to be stopped. There was no unlawful conduct shown.

That the Respondent does not have to show any specific interest in the subject to ground a cause of action under the FOI is a departure from the Section 6 (6) (b), 1999 Constitution and to open up a flood gate to litigation by busy bodies with a penchant for litigation; no wonder the Appellant confirms the motive in his concluding summary of his Brief of Argument thus: “e” that the dismissal of the main Appeal and allowing the cross-appeal will further deepen our democratic culture and constitutionalism”

The above stance shows the activist posture contrary to the realism of the Courts. Activism may be useful in influencing policies of Government and legislations but certainly not decisions of Courts of law.

The preamble to the Freedom of Information 2011, Act No. 4 state as

follows:
“AN ACT TO MAKE PUBLIC RECORDS AND INFORMATION MORE FREERY AVAILABLE, PROVIDED FOR PUBLIC ACCESS TO PUBLIC RECORDS AND INFORMATION, PROTECT PUBLIC RECORDS AND INFORMATION TO THE EXTENT CONSISTENT WITH THE PUBLIC INTEREST AND THE PROTECTION OF PERSONAL PRIVACY, PROTECT SERVING PUBLIC OFFICERS FROM ADVERSE CONSEQUENCES FOR DISCLOSING CERTAIN KINDS OF INFORMATION AND ESTABLISH PROCEDURES FOR THE ACHIEVEMENT OF THOSE PURPOSES AND FOR RELATED MATTERS.
1. Notwithstanding anything contained in any other Act, law or regulation, the right of any person to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, Agency or institution, howsoever described, is established.
2. An applicant under this Act needs not demonstrate any specific interest in the information being applied for
3. Any person entitled to the right to information under this Act, shall have the right to institute proceedings in the Court to compel any public institution to comply with the provisions of this Act.
The Section 30 thereof provides thus:
“30 (1) this Act is

intended to complement and not replace the existing procedures for access to public records and information and is not intended to limit in any way access to those types of official information that have been normally available to the general public.
2) Whether the question whether any public record or information is to be made available where that question arises under this Act, the question shall be determined in accordance with the provision stated therein unless otherwise exempted by this Act.
See Code of Conduct Bureau & Ors Vs Nwankwo (2018) LPELR 44762 (CA) pg 25 where it was held that certified true copies of Records of Asset declaration of applicant’s father could be made available. Appeal against the grant of right to the Record was dismissed. It was Affirmed that they are public Records and Applicant/Respondent was entitled to them.
Section 2 provides for the type of information to be published.
Section 3(1) provides thus – An application for access to a record or information under this Act shall be made in accordance with Section 1 of this Act.
Section 2 (6) – A person entitled to the right of access

conferred by this Act shall have the right to institute proceedings in the Court to compel any public institution to comply with the provision of this. It must be noted that the FOI Act does not apply to published material or material available for purchase by the public; see Section 26 thereof.
Reports of the activities, revenues, expenditure are published periodically or annually by law and submitted to the public accounts Committee of the State House of Assembly, to Auditor General of the State as the case may be.
The Section 29 of the FOI Act provides for the submission of reports on or before February 1st of each year by each public institution to the Attorney General of the Federation a report which shall cover the preceding fiscal year and which shall include …….. and what the A-G of the Federation shall do; to submit to the Committees of Government and Judiciary in the senate and House of Representatives.
It is obvious, therefore, that the FOI Act is not applicable to the State, as the State counterpart in the HAG or speaker or leader of the H.A are not mentioned at all. The FOI Act, is a pious attempt at re-enforcing

transparency in Government without prejudice to existing protocols and laws guiding the service; and importantly, it is meant to protect and to encourage public institutions/servants to be more open and indemnifies them from wrongs occasioned by disclosures in good faith.
Clearly, even the definition section shows ‘government’ as relating to Federal Government.
The executive office of the President is included and so also the military institution; nothing about the executive office of the Governor is stated. There is no mention of the State Attorney General or the Chairman or minority leader of the House of Assembly indicated as the National Assembly counterparts are.
It should be noted that the Respondent had referred us to the decision of this Court in Alo V. Speaker Ondo State House of Assembly & Anor (2018) LPELR 45143 Akure Division where it was decided that the public Record was synonymous with public document and are matters on the concurrent list and that the FOI Act was binding on the States by virtue of the doctrine of covering the filed.
For all that we have said above, we do not think that the Alo’s case

supra has changed or contradicted our position in this case. Alo V. Speaker, Ondo State House of Assembly rightly decided in our view that a public document of the State constituted public documents and were subject to the laws relating to their characters and admissibility thereof, as provided for in the Evidence Act, 2004.
It also decided that public documents are public records and are matters on the concurrent legislative list; and what this, therefore, entails is that States can also constitutionally legislate concerning them.
It also means that where, there is no State legislation appertaining and relating to them they shall be governed by the Evidence Act by virtue of the administrative law principle or doctrine of covering the field.
In any case, if there is a Federal Legislation and at the same time, a State legislation, then in the event of conflict or inconsistency, the Federal enactment of the National Assembly shall prevail.
In this case, there is no feature or incident of inconsistency or of the doctrine of covering the field, let alone, the question of the specific application of the FOI, Act. To the extent that the FOI Act

was held binding on the States, I think, that it was rather a sweep or an overstatement.
In any case, that was not the ratio decidendi of the decision though! It can only be rightly adjudged as persuasive and applicable in the interest of justice, as after all the Act has not abrogated the existing laws and procedures relating to freedom and official records.
It should be noted, that the fiscal Responsibility Act 2007, LFN Act NO. 3, has made comprehensive provisions relating to public finances, revenues, expenditures and accountability.
This most plausible and commendable piece of legislation, however, by it Section 54 thereof states that the Federal Government may provide Technical and Financial assistance to States and Local Governments that adopt similar fiscal responsibility legislation along the same lines as this Act for the modernization of their respective tax, finance and asset administration of their respective tax, financial and asset administration.
Indeed, the FOI Act, just as the fiscal responsibility Act which has established the Fiscal Responsibility Commission, a body corporate with a common seal and perpetual succession

with powers to compel disclosure of public Revenues and expenditures and investigations into violation by persons and the forwarding of reports to the Federal Attorney-General for possible prosecution, and sundry other powers.
Indeed, transparency and accountability in the fiscal and financial affairs and full and timely disclosure and wide publications of all transactions and decisions involving public revenues and expenditures and their implication for its finances including the publication of audited accounts within mandatory time lines is stated in Section 48 of the Law; and so also the obligation of the National Assembly in their budgetary control; Ditto, the office of the Accountant General of the Federation. I have no doubt, therefore, that the Delta State Government and ipso facto all the other Appellants are only bound by the respective Delta State Legislations governing the Delta State Christian Pilgrims Welfare Board and the Moslem Pilgrims Welfare Board as may be relevant.
The trial Court ought not to have ordered the Appellants to supply any information of its revenues, income, expenditures, sponsorships of pilgrims and/or the personal

particulars of any person except as by the law of the state provided and which will be subject to the privacy laws and exceptions as may be provided by law.
The Respondent did not show that this was the situation; to have without more granted the reliefs of declaration, mandatory injunction etc was a violent violation of the principle of federalism and separation of powers. It was even worse as no locus standi had been disclosed. The twin defects in the action at the trial Court could culminate into anarchy and the oppression of the Appellants by a busy body. The learned counsel for the Appellants was imminently correct when he submitted relying on Olafisoye Vs. Federal Republic of Nigeria (2004) 4 NWLR (pt 864) p. 580 @ p. 659 EG that the FOA, should be read holistically so as to understand the purport and intention of the legislator.
He is correct in arguing that a holistic reading of the Act shows that it applied only to Federal Ministries, Agencies, parastatals and Boards etc. The view of the learned trial judge thus: “I also from a review of this case and the provisions of the constitution earlier referred to and the

FOI Act, 2011 (Section 2 (1) and 31 (3) find that the Act applies to the Delta state of Nigeria being a component part of the Nigeria federation and I so hold.” Cannot be correct, as the specific tier of the Nigerian Federation had clearly been identified by the mention of its Agencies, Agents and functionaries by name/description/office in the Act.
I refuse to go outside the intent and wordings of the FOI Act 2011 and the common sensical approach to the interpretation of statutes and statutory instruments to ascribe a status and an annihilating or clogging veto on the exercise of powers and discretion by governmental bodies in manners stipulated by law in favour of a litigant that seeks to emasculate for no proven and visible right shown.
The Respondent who had averred that he was himself a Christian could not have in contradiction been complaining against the Christian pilgrims Welfare Board’s income, expenditure, sponsorship of pilgrims when he had not shown that he had applied for sponsorship and was unfairly or wrongly denied, he having satisfied all the conditions.
Indeed, there was no indication of or suggestion of fraud or misappropriation/nepotism

against any of the Boards ie the 2nd and 3rd Appellants, let alone, the report of same to appropriate governmental institutions for investigations and/or prosecution. The “real” and “tangible” basis of the Respondent’s request was shrouded in mystery, in the face of the existence of the multiple options by law/politics provided for nepotic or financial infractions.
The Appellant’s learned counsel’s closing submissions thus:
a) That the Respondent has not shown that his interest in the disclosure of the information sought is over and above the interest of Deltans in general
b) That the provisions of Section 1(2) of the Freedom of Information Act, 2011 is contrary and inconsistent with the provisions of Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
c) That the reliefs being sought by the Respondent is a general
interest shared with all members of the public which is not a
litigable interest to accord standing.
d) The Freedom of Information Act 2011 is a Federal Law enforceable against the Federal Government Ministries, parastatals and

agencies. It is only when each state of the Federation passes similar Freedom of Information Law then and only then can the Respondent have the locus to access or request information which is in the custody or possession of any public official, agency or institution in Delta State.
Is apt. I adopt same wholly and I agree with the learned counsel for the Appellants that the suit culminating in this appeal is brazenly incompetent.
Section 4 (7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides: “The House of Assembly of a state shall have powers to make laws for the peace, order and good government of the state or any part thereof with respect to the following matters:
a) Any matter included in the concurrent legislative list set out in the 1st column of Part II of the Second Schedule to this Constitution – to the extent prescribed in the second column opposite thereto, Part II (C) of the Second schedule of the constitution of the Federal Republic of Nigeria, 1999 provides,
“The National Assembly may make laws for the Federation or any part thereof with respect to the archives and public

records of the federation.
“A House of Assembly may subject to paragraph 4 hereof make laws for the state or any part thereof with respect to archives and public records.
It is in consonance to the aforementioned provisions that the National Assembly enacted the Freedom of Information Act 2011 which is applicable to the Federal Government of Nigeria. The Act applies to Records of the Federal Government and its Agencies and parastatals; until the Edo State Government enacts its own Freedom of Information Law pursuant the right to so under Section 4 (7) (a) and part ‘C’, constitution of the Federal Republic of Nigeria, 1999 the Edo State Government or any of the Appellants is not bound by the FOI, Act 2011.

I should also add that even if the Respondent as an applicant at the lower Court had the locus standi to sue and even if the Freedom of Information Act, 2011 was to be applicable to the States and hence Delta State, however, the application for judicial review as brought which was instituted out of time. The letter requesting for the information from the 2nd and 3rd respondents dated September 2013 was dispatched via IAS

courier service on same 13th September, 2013. By Section 20 of the FOI Act, an action shall only be instituted within 30 days of the denial or deemed denial, in this case by 13th October 2013.
Respondent applied to the Court on the 18th day of October 2013, which is 5 days after the limited period.
He did not apply for an extension of time as the statutory limitation therein had no such provision for the exercise. There is abundant evidence, from the record of the Court and the address of the Appellant’s counsel, Charles O. Agbagwu, Esq. Chief State Counsel, (as he then was) as can be found on pages 47-48 of the Record of this Appeal that the issue of locus or time bar is not a new Issue, exfacie the records and document. An issue of jurisdiction that made the suit incompetent as relating to violation of time regulated can be raised at any time as it was not constituted by the due process of law as time had lapsed, the suit ought to have been struck out in lamine assuming the legislation and parties were applicable and competent respectively; that question of time limitation being a jurisdictional Issue that is extrinsic to the adjudication by

the Court.

In conclusion I ask and reiterate thus: could it be contemplated that an applicant could wake up and in purported exercise of rights under the FOI Act 2011, apply for information on the names, identifies of prisoners, their offences, feeding allowance or maintenance of each prisoner from each of the zones or towns of the State, the penalties imposed, etc or is it conceivable that the records of persons standing trial have their records of offences, complaints, reasons for taking cognizance of their matters, trials, waivers, experts and convictions secured in state Courts, fines paid or fees remission or paid or considerations for the decisions and rulings disclosed to any person individually or in the aegis or auspices of an Association without more and as of right? How will it be, to expect for instance that information on diplomatic relations issues, aviation, visas, passports and security and character and identity matters and financial implications and mutual or protocol matters of international character, Aviation and sovereign Rights which also impact pilgrimage and tourism, be adjudged a subject of unanalyzed right of access to

information/individual or group simpliciter. How will it be if a complaint is lodged that a higher number of persons from a particular zone of Delta State utilize more government facilities and resources voted for health services or that information be provided to show the details of records of patients, their ailments cost of treatment, government expenditure on each so as to show that Mr ‘X’ who was not sick or did not report to the Health facility was not fairly given the benefit of treatment or a share in the resources for health care? Must the health expenditure on each be equal none the less? The point I have been straining to make is that political questions which are not justiciable, should be clearly understood and pursued as such. They are not justiciable; we must also not lose sight of the fundamental objectives and directive principles of state policy enshrined in Chapter 2 of the Constitution of the Federal Republic of Nigeria, 1999.
To give support and a push to the fundamental objectives and Directive principles of state policy, citizens should be constructive, realistic and not engaging in academic phobia which is not

cognizable by the Courts, unless and until legal interest and rights are being infringed.
See Isaac Jitte Vs. Dickson Okpulor (2016) 2 NWLR (pt 1487) pg 542 at 563 where it was held that the concept of locus standi denotes the legal capacity to institute proceedings in Court of law.

For a person to show locus standi to sue, all he needs to do is to show that he has sufficient interest in the subject matter of the action and that his civil rights and obligations have been or are in danger of being infringed.

I shall emphasize, even if repetitively that in Alo’s case (supra), a general statement was made. Even if it was specific, this Court on the following day being at the Benin Division made a more specific statement of the law; in Osude Vs Azodo (2017) 15 NWLR (pt 1588) 21, the Supreme Court, per Galinje JSC in his contributory opinion stated thus:
“The decision in Lokpobiri Vs Ogola (supra) was delivered after the decisions in PDP Vs Sylva (Supra) and Kakih Vs. PDP. This Court apart from correcting itself, since it is the apex Court and there is no other Court to which its errors can be submitted for correction, it

follows, therefore that where its later decisions are at variance with its previous decisions, it means that the previous decision has been overruled to the extent of the variation. Learned counsel for the respondents in this appeal seems to have paid more attention to the previous decision of the Court which seems to be at variance with the latest decision in Lokpobiri Vs. Ogola (Supra). This I think is a wrong posture and ought to be discouraged.
The decision in Lokpobiri is very clear, and that is that the Federal High Court has concurrent jurisdiction with the FCT and states High Court in respect of mattes provided for under Section 87 (9) of the Electoral Act, 2010”

Drawing from the above interpretative view of the apex Court, it is lucidly clear that there is need to find out whether a more recent or subsequent decision of this Court on the applicability of the FOI Act to the State Exist.
There is none, to my knowledge.

As in Otti Vs Ogah (2017) 7 NWLR (pt 1563 page 36 per Akaahs, JSC (rtd) a more proactive posture in allowing the ventilation of the rights asserted and claimed by the Respondent as plaintiff at the trial Court

would have been endorsed by this Court in aid of open governance and transparency and Accountability if the Respondent herein had evinced his locus, shown the threat or dissatisfaction to him of actions or in actions of the Respondents before the suit and how he had been affected by them.

The Respondent had not shown by ascertainable facts the circumstances of any entitlement to have approached the trial Court for the reliefs claimed.

There being no locus standi and no vires vides any law binding on the Appellants, the trial Court was in law devoid of jurisdiction so to say, as the plaintiff had no locus and so also there was no cognizable cause of action disclosed against the Appellants.
The incompetently instituted action ought to have been dismissed at the trial Court.

In limine, the suit was also such that could have been struck out for want of jurisdiction as it was filed out of time and not in pursuance of due process and also disclosed no cause of action.

I cannot, but wonder why an injunction can be “slamped” against the exercise or performance of a statutory power and duty as was done in this case by the

imposition of an embargo on the further funding/releases of funds to the 2nd and 3rd Respondents until the order to provide information demanded was complied with and within 2 weeks!

It was a bizarre order! Incapable of enforcement and prone to the self-ridicule of the judiciary; and a violation of the rights to carryout statutory, duties, powers and was a clog to peace, order and good government.

The Cross-Appeal, even if it has tarried had no foundation and must fail, even as an over flogging of a dead horse!
On the merit, the two Issues formulated by the Appellants are, therefore, resolved in their favour.

Accordingly, the Judgment of the Delta State High Court, in Suit No W/437/2013 Between the parties herein delivered on 19th June, 2014 and in particular the declarations and orders therein to the extent that the Court held and directed as follows:
“1. In conclusion, this suit succeeds in part, in the light of my findings above, I hereby grant the declarations sought in reliefs A, B and F”
3. It is hereby directed that all further releases and funding to the 2nd and 3rd respondents be and are hereby to cease until

the order to provide information in relief F is complied with within two (2) weeks of this order.” are both set aside and quashed, same being a nullity abinitio.

The Appeal is allowed wholly and the Cross-Appeal is dismissed.

AYOBODE OLUJIMI LOKULO-SODIPE J.C.A.: I had the privilege of reading in draft the leading judgment prepared in the instant appeal by my learned brother. MOHAMMED A. DANJUMA, JCA: and I cannot but agree with his reasoning and conclusion therein.

Accordingly, I too allow the main appeal and dismiss the cross-appeal and abide by the consequential orders contained in the leading judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO. J.C.A.: I have been afforded the privilege of reading a draft copy of the lead judgment just delivered by my learned brother MOHAMMED AMBI-USI DANJUMA, JCA.

The issues raised for determination have been exhaustively addressed and I agree with the reasoning and conclusion contained therein. The appeal is meritorious and it succeeds.

The Cross-Appeal is devoid of merits and is accordingly dismissed.

I abide by the consequential orders in the lead judgment.

Appearances:

F. Enenmo, Esq. For Appellant(s)

Edun Ogheneovo Olukunle, Esq. For Respondent(s)