EDO STATE AGENCY FOR THE CONTROL OF AIDS v. COM. AUSTIN OSAKUE & ORS
(2018)LCN/12396(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of March, 2018
CA/B/469/2014
RATIO
COURT AND PROCEDURE: WHETHER A COURT CAN RAISE AN ISSUE SUO MOTO
“It is settled law that though a Court is at liberty to raise an issue suo motu, it can only validly rely on it in determining the matter after hearing the parties in the case on the issue so raised. Failure by a Court to observe such requirement constitutes a breach of the rule of fair hearing and any decision reached thereof is a nullity and consequently liable to be set aside by an appellate Court. See OKOYE VS C.O.P & ORS. (2015) LPELR (24675) SC; UGO VS OBIEKWE (1989) 1 NWLR (PT 99) 566; OJE VS BABALOLA (1991)1 NWLR (PT 185) 267; SHASI VS SMITH & ORS (2009) LPELR (3039) SC OLATUNJI VS ADISA (1995) 2 NWLR (PT 376) 167.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
DAMAGES: AWARD FOR DAMAGES
“On the issue of damages, the Supreme Court in ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY VS EKWENEM (2009) 13 NWLR (PT 1158) 410 held that:-
The purpose of an award of damages is to compensate the plaintiff for damage injury or loss suffered. The guiding principle is Restitution in Intergrum, where the Court is called upon to assess that a party which has been clarified by the act which is in issue must be put in the position in which he would have been if he had not suffered the damage for which is in issue must be put in the position he is being compensated.” See also, YOUNG VS CHEVRON (NIG) LTD (2013) LPELR 22126 (CA). The case of SAIDU H. AHMED VS CENTRAL BANK OF NIGERIA (SUPRA) relied on by the Cross-Respondent is also quite apposite on the issue of damages. See also AGBANELO VS UNION BANK OF NIGERIA LTD (2000) 7 NWLR (PT 666) 534 where the Apex Court held inter alia that ‘damages are pecuniary compensation obtainable by success in an action for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum awarded at the tune, unconditionally and generally’.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
INTERPRETATION: THE GOLDEN RULE OF INTERPRETATION
“The above constitutional provisions are clear, straightforward and unambiguous. The golden rule of interpretation of statutes is that the plain words used in a statute attract, and should be given, their natural or ordinary grammatical meaning, unless such literal interpretation will lead to an absurdity. See African Newspapers Ltd. v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137; International Bank for West Africa Ltd. v. Imano (Nig.) Ltd. (1988) 3 NWLR (Pt. 85) 633 and Victor Manyo Ndoma-Egba v. Nnameke Chikwukeluo Chukwuogor & 3 Ors. (2004) 6 NWLR (Pt. 869) 382 at 409, per Uwaifo, JSC. In the case of Josiah Ayodele Adetayo & 2 Ors. v. Kunle Ademola & 2 Ors. (2010) 15 NWLR (Pt. 1215) 169 at 205, the Supreme Court, per Adekeye, JSC, stated as follows: ‘In the interpretation of a statute, where the word, of a legislation or Constitution are clear, plain and unambiguous, there is no need to give them any other meaning than their ordinary, natural and grammatical construction would permit unless that would lead to absurdity.’ PER MOORE ASEIMO ABRAHAM ADUMEIN J.C.A
JUSTICES
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
EDO STATE AGENCY FOR THE
CONTROL OF AIDS (EDOSACA) Appellant(s)
AND
1. COM. AUSTIN OSAKUE
2. DR. ESTHER AIRIA
3. BARRISTER GREG ADEJO
4. COM. OMOBUDE AGHO
5. FOUNDATION FOR GOOD GOVERNANCE AND SOCIAL CHANGE (FFGGSC)
6. GENDER RIGHTS ACTION (GRA)
7. HEALTH AND
ENVIRONMENTAL CONCERNS (HEC)
8. ANTI CORRUPTION REVOLUTION (ACR)
9. MEDIA AWARENESS GROUP (MAG)
(For and on behalf of Civil Society Groups in Edo State) Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Edo State sitting in Benin City and delivered on the 29th day of April 2014.
The Respondents in this appeal were the Applicants in the trial Court wherein they instituted an action by way of Originating Summons against the Respondent (now Appellant). In the said Originating Summons filed on 14th February 2014, they raised the following issue for determination by the trial Court.
Whether the information sought after by the Applicants ought to be granted under the Freedom of Information Act 2011.?
The reliefs sought by the Applicants against the Respondents (now Appellants) are as follows:-
RELIEFS SOUGHT BY THE APPLICANTS:-
A. DECLARATION that compulsory disclosure of information by agency of government is governed by the provisions of the Freedom of Information Act 2011.
B. DECLARATION that the Respondent must release information relating to details of the revenue and expenditure of its agency between the periods of 2011 – 2013 to the applicants.
C. DECLARATION that the respondent must release information relating to details of the subventions of the Edo State Government to its agency between the periods of 2011 – 2013 to the applicants.
D. DECLARATION that the respondent must disclose information relating to details of the grant-in-aid from corporate bodies and private donors to its agency between the periods of 2011 – 2013 to the applicants.
E. DECLARATION that the details of the contracting firms that handled the contract of printing and supplies for the agency and the amount the contract was awarded must be disclosed to the applicants.
F. DECLARATION that the details of the documents detailing the criteria used to place an individual organization in the selection list for grants and the criteria used to remove an individual organization from the selection list for grants must be disclosed to the applicants.
G. DECLARATION that the details of the current number of civil society groups on the selection list for grants and current number of civil society groups in Edo State on the list for grant must be disclosed to the applicants.
H. DECLARATION that the details of the individual organization on the list and documents showing that same have been forwarded to the donor be disclosed to the applicants.
I. DECLARATION that the details of the local and international donors from the year 2011 till date and the program and financial report sent to the donors must be disclosed to the applicants.
J. A DECLARATION that the failure of the Respondent to disclose information requested by the applicants is illegal, oppressive and vexatious.
K. AN AWARD OF N500,000.00 (FIVE HUNDRED THOUSAND NAIRA) against the Respondent as general and/or exemplary damages/compensation for the unlawful denial of information requested for by the Applicants from the date of judgment and interest therein at 10% per annum until judgment sum is fully liquidated against the Respondent.
L. The costs of instituting and prosecuting this action, as assessed by the applicant in the sum of N10,000,000.00 (Ten Million Naira) against the respondent.
The said Originating Summons was supported by a 26 paragraph affidavit to which is attached a letter marked as Exhibit A. There is also a written address in support of the Originating Summons.
The Appellant upon being served with the said Originating Summons reacted by filing a 13 paragraph counter affidavit and a written address dated 20/3/2014.
Upon the adoption of the written addresses by the parties, the learned trial Judge delivered a Ruling on the 29/4/2014 wherein all the reliefs except reliefs K and L were granted in favour of the Respondents.
The Appellant being aggrieved with the outcome of the said ruling filed a Notice of Appeal on the 8/7/2014. It contains two grounds of Appeal.
The Respondent also filed a Notice of Cross-appeal on 4/7/2017 but deemed properly filed and served on 31/1/2018.
Briefs of argument were subsequently filed and exchanged in compliance with the Rules of this Court and which briefs of argument were adopted and relied upon by the parties at the hearing of this appeal on 31/1/2018.
In the Appellant’s brief of argument filed on 16/2/2015 but deemed properly filed on 31/1/18, the following two issues were formulated for determination:
1. Whether the Freedom of Information Act being an Act of the National Assembly applies to the Public Records of Edo State Government in view of the Provisions of the Constitution of the Federal Republic of Nigeria 1999 (Ground 1).
2. Whether the learned trial Judge was right to have adjudicated on the issue of ?Domestication? that was not raised by the parties of the trial Court. (Ground 2).
In the Respondent’s brief of argument filed on 4/7/17 and deemed properly filed on 31/1/18 the two issues raised by the Appellant were also adopted for determination by this court.
I will therefore premise the consideration of this appeal on the said two issues.
ISSUE 1
Dwelling on this issue, learned counsel for the Appellant referred to Section 2 (2) and Section 4 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to submit that Nigeria is a Federation and the unique feature of a Federal system of Government is the recognition of the separateness and independence of each of the three tiers of government that make up the Federation.
He added that by virtue of Section 4, the Legislative power of the Federal Government is not at large or without limitations, therefore the power of the National Assembly to legislate on a given matter must be traceable to the body of the Constitution as contained in the exclusive concurrent legislative lists. Vide A.G ABIA STATE VS A.G OF THE FEDERATION (2002) 6 NWLR (PT 763) 265 at 386.
It was then submitted that the Freedom of Information Act is a legislation which pertains to public records and the legislative powers to make laws on public records in Nigeria is shared between the Federal Government and the Federation States by virtue of the provisions of paragraph C, Items 4 and 5 of the concurrent legislative list. He further argued that the Freedom of Information Act which is the pedestal upon which the case of the Appellant stands, being an Act of the National Assembly within the con of Item 4, is only applicable to the public record of the Federal Government as distinct from that of the State government.
On this basic principle of federalism, reference was made to the book ‘Federalism in Nigeria under the Presidential Constitution’ by Professor B.O. Nwabueze; wherein the learned author at page 61 analysed the provisions of Items 4 and 5 of the Concurrent Legislative List and came to the conclusion that a law made by the National Assembly on public Records is not binding on the State and vice-versa.
On this, it was posited that the power granted under paragraph C relating to archives and public records is exclusive to both the Federal and State government in their respective domains of jurisdiction which is an index of federalism as judicially approved in the case of OYAKHIRE VS UMAR (1998) 3 NWLR (PT. 542) 438.
Learned counsel also submitted that the doctrine of covering the field is not applicable to the provisions of Items 4 and 5 in the concurrent list because the power of the National Assembly in the instant case is expressly limited to the public records of the federation as distinct from those of the states. He added that the trial Court failed to consider the provisions of Section 4 (4) of the Constitution vis-a-vis the matters listed under Items 4 and 5 and thereby arrived at an erroneous conclusion.
He further referred to Section 29 of the Freedom of Information Act which makes it mandatory for all public institutions to submit annual report to the Attorney General of the Federation without any mention of the State Attorneys General or state agency.
On the impropriety of an Act of the National Assembly imposing duty on the Government of a state he cited the case of HON. MINISTER FOR JUSTICE ATTORNEY GENERAL OF FEDERATION VS ATTORNEY GENERAL OF LAGOS STATE SC/340/2010 delivered on 19th July, 2013.
On a final note, it was contended that it will be antithetical to the Constitution and fundamental principles of federalism if the Freedom of Information Act is held to be applicable to states. This Court was then urged to resolve the issue in favour of the Appellant.
ISSUE 2
Herein it was submitted that the learned trial Judge wrongly analysed the processes filed in the suit and wrongly evaluated the arguments of counsel for the parties, thereby leading to the arrival of wrong conclusion with regard to the issue of ‘Domestication’ of the Freedom of Information Act 2011.
He contended that the issue of ‘Domestication’ was not raised by the Appellant in the counter affidavit to the Originating Summons and it was not raised in the Respondent’s reply to the counter affidavit in which case it was wrong for the Learned trial Judge to address the issue of ‘domestication’ when issues were not joined on it by the parties. On this, the following cases were relied on: KASIMU VS NNPC (2008) 3 NWLR (PT 1015) 569 AT 585 and PATRICK OGBU & ORS. VS FIDELIS AND 8 ORS. (1994) 7 NWLR (PT 355) 128. It was then urged on this Court to resolve the issue in favour of the Appellant and also allow the appeal.
Replying of issue 1, learned counsel for the Respondents submitted that where the National Assembly has the power to regulate a particular subject and does same in any given form to cover exhaustively the federating states, the State legislatures lacks the power to complement the legislation of the National Assembly or to prescribe additional regulations even if it will not alter the intention of the Act. He cited the case of RECTOR, KWARA POLYTECHNIC VS ADEFILA (2007) 15 NWLR (PT 1056) 42 at 98.
He added that in the instant case the Freedom of Information Act 2011 intends to completely and exhaustively cover the field. Therefore by the provisions of paragraph 5 of part 2 of the 2nd Schedule to the 1999 Constitution, states are covered to the ground even if their concerns are consistent with that of the National Assembly because the supremacy of the parliament means that any Law enacted by the National Assembly on the concurrent list that covers the implementation of the Act both at Federal, State and Local Government levels bars the states from enacting any state law on the subject.
It was further submitted that where the field has been covered by the National Assembly, the state Assembly cannot make any other law on the same subject. Reliance was placed on the case of ELENDU VS EKWOABA (1995) 3 NWLR (PT 386) 704, A.G OGUN STATE VS INTERNATIONAL BREWRIES PLC (2001) 7 NWLR (PT 713) 647, A.G. OGUN STATE VS A.G. OF THE FEDERATION (1982) 2 NCLR 166 at 180 ? 181; A.G. OF ABIA STATE VS A.G. OF THE FEDERATION (2002) 9 NSCQR 670 at 785 and 788.
It was further contended that where the National Assembly has legislated on the Freedom of Information Act 2011 which deals with public records and archives, the State House of Assembly cannot enact its own Law on the same subject even if it is not in conflict with the existing Law.
Reference was made to Section 4 (2) and (4)(a) of the 1999 Constitution to submit that the National Assembly has unlimited powers to take legislative initiative in making laws for peace, order and good government of the Federation and her units to the extent therefore that any inconsistency in the concurrent powers as shared by the Federal and State governments would be resolved in favour of the National Assembly to the extent of the inconsistency provided the Federal legislation is meant to cover the field. Learned counsel also referred to paragraphs 4 and 5 of Part 11 of the 2nd Schedule to the 1999 Constitution to submit that the use of the words ?subject to? in paragraph 5 acquires a special meaning and implies that provisions are subordinate to paragraph 4 thereof. He relied on the following cases; A.G. ANAMBRA STATE VS A.G. OF THE FEDERATION (1993) 6 NWLR (PT 302) 692 at 726; OBAYUWANA VS GOVERNOR OF BENDEL STATE (1982) 12 SC 147 LOVELEENTOYS LTD VS KOMOLAFE (2013) 14 NWLR (PT 1375) 542 at 554.
Furthermore, it was contended that there is no Freedom of Information Law enacted by the Edo State government and this implies that the Freedom of Information Act will apply in Edo State without any need to dwell on the issue of inconsistency.
On issue 2, it was submitted that the issue of domestication does not form part of the issues upon which the trial Court determined the case and it does not form part of the ratio decidendi, in which case any pronouncement on it is academic. Vide BELGORE VS AHMED (2013) 8 NWLR (PT 1355) 60 at 97, ADAMAWA VS YAKUBU (2013) 6 NWLR (PT 1351) 481 at 497.
Alternatively, it was submitted that, even if the learned trial Judge had raised the issue suo motu, it constitutes one of the exceptions to the general rule that Courts are not allowed to raise any issue suo motu without hearing the parties on it and this is by virtue of Section 123 of the Evidence Act 2011 which provides for facts and situation that can be taken judicial notice of as held in WEMA BANK PLC VS L.I.T. NIGERIA LTD (2011) 6 NWLR (PT 1244) 479 at 506.
It was then urged on this Court to dismiss the appeal.
Now, the single issue in contention here is whether the Respondents can rely on the provisions of the Freedom of Information Act 2011 to demand for the release of some documents to them by the Appellant (Edo State Agency for the Control of Aids).
For the Appellants, it is erroneous for the Respondents to rely on the Freedom of Information Act 2011, which is a Federal Law to demand for records belonging to a State Agency when there is no such law in operation in Edo State.
For the Respondents however, the Freedom of Information Act is meant to apply throughout the Federation based on the doctrine of covering the field and once the National Assembly enacts any such Act, it is unnecessary for any State to have its own law on the same subject, even if such matter is in the concurrent legislative list.
To properly address this issue it will be expedient to embark on forage of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Section 2 (1) and (2) provides:-
2 (1) Nigeria is one indivisible and indissoluble Sovereign State to be known as the Federal Republic of Nigeria.
2 (2) Nigeria shall be a Federation consisting of States and a Federal Capital Territory.
From the above provision, Nigeria operates a federal system of government. Federalism is defined as the mixed or compound mode of government, combining a general government i.e. (Central or Federal government) with regional governments i.e. (States, provincial, cantonal or other sub-units of governments) in a single political system. It can thus be defined as a form of government in which there is a division of powers between two levels of government. In modern terms, it is a system based upon democratic rules and institutions in which the power to govern is shared between the Central and State provincial governments in accordance with the terms and conditions proscribed by the subsisting Constitution. (see Wikipedia).
In Nigeria as in a number of other countries, the Constitution provides for a three tiered system of government. That is to say, the Federal, the State and Local governments. Hence Section 3 (b) of the 1999 Constitution provides for Local Governments as follows:-
3 (b) There shall be seven hundred and sixty eight local government areas in Nigeria as shown in the Second Column of Part 1 of the First Schedule to this Constitution and six area councils as shown in Part 11 of that Schedule.?
The legislative powers of the Federal Government as well as the State government are as prescribed in Section 4 of the Constitution and for the purpose of this issue in contention, the said section is herein below set out:-
4.-(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make law for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Executive Legislative List set out in Part 1 of the Second Schedule to the Constitution.
(3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in the Constitution, be to the exclusion of the Houses of Assembly of States.
(4) In addition and without prejudice to the powers conferred by Subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say:-
(a) Any matter in the Concurrent Legislative List set out in the first column of Part 11 of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(b) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
(5) If any law enacted by the House of Assembly of a state is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall to the extent of the inconsistency be void.
(6) The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.
(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say:-
(a) Any matter not included in the Executive Legislative List set out in Part 1 of the Second Schedule to this Constitution;
(b) 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; and
(c) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
(8) Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of Courts of law and of judicial Tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a Court of law or of a judicial Tribunal established by law.
(9) Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect.
From the above set out provisions, it is clear that the National Assembly is conferred with the power to make laws for the peace, order and good government of the Federation or any part thereof with respect to matters included in the Exclusive Legislative List set out in part 1 of the Second Schedule to the Constitution and the exercise of power thereto shall be to the exclusion of the State Houses of Assembly.
In addition, the National Assembly is also conferred with powers to make laws with regard to any matter in the concurrent legislative list as set out in the first column of Part 1 of the Second Schedule to the Constitution and only to the extent prescribed therein.
On the other hand, the House of Assembly of a State is equally conferred with power to make laws for the peace, order and good government of the state or any part thereof with respect to matters not included in the Legislative List set out in Part 1 of the Second Schedule of the Constitution, and any matter included in the concurrent Legislative List set out in the First column of Part 11 of the Second Schedule to the Constitution to the extent as prescribed therein and to any other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.
One point that clearly emerged from the provisions of Section 4 of the Constitution is that the powers to make laws by each tier of government has been defined and listed in the schedules to the Constitution or as per any other provision. Except however for the fact that under Section 4 (5), where the law made by the House of Assembly is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail and that other law shall to the extent of the inconsistency be void. See also the case of A.G. OF THE FEDERATION VS A.G. LAGOS STATE (2013) 16 NWLR (PT 1380) 249; A.G. ABIA STATE VS A.G. OF THE FEDERATION (2002) 6 NWLR (PT. 763) 264; OSUN STATE INDEPENDENT ELECTORAL COMMISSION & ANOR. VS ACTION CONGRESS & ORS. (2010) 19 NWLR (PT. 1226) 273.
In the instant case, the issue of inconsistency does not arise given the fact that presently the Edo State government is yet to enact the Freedom of Information Law.
The Respondents’ stance is that under the circumstance, the Freedom of Information Act 2011 enacted by the National Assembly shall apply to Edo State with particular reference to the appellant and there will be no need for the Edo State House of Assembly to legislate on the same subject matter again by virtue of the doctrine of covering the field.
To my mind, this will amount to taking the doctrine to the extreme and undermining the fundamental principle of Federalism which is very vital to our nascent and budding democratic process. It will in fact undermine the provisions of the 1999 Constitution. In other words, to follow the Respondents’ line of argument and perception of the doctrine of covering the field will amount to opening the door to a unitary system of government inherent in a military or autocratic regime. Thank goodness the 1999 Constitution which is the grundnorm and reference point for a genuine road map for the operation of the principle of federalism as agreed and subscribed to by the people of this country, vide the preamble and Section 2 (1) thereof have agreed to the existence of a central government and component Units known as states and while the central government through the National Assembly shall have power to make laws for the overall well being of the country, the component units called states are also not left out but equally empowered to make laws for the peace, order and good government of the State with respect to matters listed in the concurrent legislative list set out in the first column of Part 11 of the Second Schedule to the Constitution or any other matter for which it is empowered to make laws in accordance with the Constitution.
In this regard, my own view is that the State is not a stooge to the Federal government but derives its own power and strength to exist and manage its own affairs just like the Federal government does from the Constitution. It is only where there is a clash of interest in legislation that the law made by the State Assembly shall give way to that made by the National Assembly as per Section 4 (5) of the Constitution and the authorities earlier cited.
All said and done, a perusal of the Freedom of Information Act will not, in my humble view, project the intention that it is meant to cover the field. In other words, it is nowhere indicated or prescribed in the whole gamut of the Act that it shall apply both to the central and State governments.
A number of examples shall bring to the fore, this reality. For instance Section 29 (1) (a-h) requires the concerned publication institutions to submit a report to the Attorney General of the Federation on or before 1st February of each year. Subsection (4) mandates the same Attorney General of the Federation to notify the chairman and some ranking members of relevant committees in the Senate and House of Representatives of the existence of such reports and make it available in soft and hard copies to them not later than April of each year. Subsection 6 also confers on the said Attorney General oversight responsibility in order to ensure that all institutions to which the Act applies comply with the provisions of the Act.
Incidentally the said Act did not make any reference to the Attorneys General of States or the States Houses of Assembly in terms of oversight responsibility over State institutions or submission of annual report. The question then is, can the Attorney General of the Federation exercise oversight function over state institutions or require them to submit annual reports to the exclusion of the State Attorney General? Secondly can the Attorney General of the Federation give directives to the Appellant (Edo State Agency for the Control of Aids) when the Constitution has clearly created the office of the Attorney General of a State?
The answer is a definite ?NO?. Conversely, the Attorney General of a State cannot be expected under the Freedom of Information Act to submit annual report of the activities of State institutions concerned to the National Assembly to the exclusion of the State House of Assembly.
Furthermore, Section 29 (9) provides that:-
“For the purposes of this section, the term ?government? includes any executive department, military department, government corporation, government controlled corporation, or other establishment in the executive branch of the government (including the Executive office of the President), or any other arm of government agency or public institution;…”
The above set out provision made express reference to the (Executive office of the President) for the purpose of the application of the Act but no mention was made of the (executive office of the Governor).
Section 31 which is the interpretation section defines ?minister? means the minister charged with the Responsibility for information. No mention was made of the commissioner responsible for information in the state.
This no doubt presupposes that the Freedom of Information Act, though a noble and worthwhile piece of legislation, does not have automatic application to the states as submitted by learned counsel for the Respondents. It therefore behoves any State interested in adopting the provisions of the Act in its territory to set the necessary machinery in motion for the enactment of a similar law by the House of Assembly of the State. A few examples of Acts of the National Assembly which have been left to the discretion of any state that so desires to enact similar law includes the Child Rights Act, Administration of Criminal Justice Act, Administration of Justice Commission Act.
Coming to public records and archives, Items 4 and 5 in Part 2 of the 2nd Schedule to the 1999 Constitution which is the concurrent Legislative List under which the Federal and State governments have concurrent powers to make laws provides thus:-
4.The National Assembly may make laws for the Federation or any part thereof with respect to the archives and public records of the Federation.
5. A House of Assembly may, subject to paragraph 4 hereof, make laws for that State or any part thereof with respect to archives and public records of the Government of the State.
The above set out provisions makes the issue quite clear to the effect that while the National Assembly is conferred with the power to make laws with respect to public records and archives of the federation, the House of Assembly of the States are also conferred with powers to make laws with respect to archives and public records of the government of the State, subject however to paragraph 4, which to my mind means that in the course of making any law relating to any archive or public record of any State, the House of Assembly of the state must be mindful not to go beyond its jurisdiction into that of the Federal government.
What is germane here is the reality brought to the fore to the effect that both the Federal and State legislature have concurrent powers to legislate on archives and public records within the limits prescribed by the Constitution.
I therefore agree with the submission of the learned counsel for the Appellant that the law made by the National Assembly in respect of archives and public records is only applicable to the public records and archives of the federation whilst any law made by the House of Assembly of a State will apply only to public records and archives in that State.
I am also in the comfort zone with the book ?Federalism? by Professor Ben Nwabueze SAN also referred to by the learned counsel for the Appellant. Therein the learned author and renowned constitutional law expert posited at page 61 of the book with regard to Items 4and 5 of Part II of the 2nd Schedule as follows:-
“The Federal government has exclusive power over the archives and public records of the Federation while those of a State come under the exclusive authority of the State government.”
Learned counsel for the Respondents had also strongly contended that by the words ?Subject to? as used in Item 5 it follows that the Act of the National Assembly will prevail even in the present situation. I will state clearly here that there is no dispute in that regard because it further emphasised the provision of Section 4 (5) of the Constitution which provides that in the event of any inconsistency between a law made by the National Assembly and that made by a state that of the National Assembly shall prevail.
In the instant case, the point is whether the State should refrain from making its own law pursuant to Item 5 because there is already in existence the Freedom of Information Act. My strong view on it is that given the provisions of the said Act as presently enacted vis-a-vis Section 4 of the 1999 Constitution and Items 4 and 5 of Part II, 2nd Schedule thereof, the Appellant is not bound to comply with the provisions of the Freedom of Information Act 2011 by acceding to the request by the Respondents, until the Edo State government enacts a similar law pursuant to the power conferred on it by Section 4 (7) (b) of the 1999 Constitution.
I am not unaware of the heavy reliance on the doctrine of covering the field by the learned counsel for the Respondents. However he seemed to have misconstrued the said doctrine by insisting that once the National Assembly has made a law on a particular subject, the State House of Assembly cannot make any law on the said subject but must be bound by the said law made by the National Assembly. I believe that an examination of some authorities on the issue will throw more light on this subject of discourse. In OSUN STATE INDEPENDENT ELECTORAL COMMISSION & ANOR. VS ACTION CONGRESS & ORS. (2010) LPELR 2818 (SC) OR (2010) 19 NWLR (PT 1226) 273, the Supreme Court per Tabai JSC provided a clear picture on the doctrine as follows:-
“By the Doctrine of Covering the field where the National Assembly has enacted a law on a particular subject, a State House of Assembly cannot enact a law on the same subject which is in conflict or inconsistent with the provisions of the enactment of the National Assembly. And where there is such an inconsistency between the provisions of any law enacted by the National Assembly and that enacted by the House of Assembly of a state, the law enacted by the National Assembly shall prevail and the law enacted by the House of Assembly of a State shall, to the extent of the inconsistency be null and void.
This is in tune with the provisions of Section 4 (5) of the 1999 Constitution which prescribes:
4 (5) If any law enacted by the House of Assembly of a state is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void.?
This articulates the doctrine of covering of the field referred to and relied upon by Uwais (CJN) in A.G. ABIA STATE VS A.G. FEDERATION (2002) 6 NWLR (PT 763) 264 at 391. See also A.G. FEDERATION VS A.G. LAGOS STATE (SUPRA) (also relied on by the Appellant); A.G. OGUN STATE VS A.G. FEDERATION (1982) NSCC PAGE 1; INEC VS MUSA (2003) 3 NWLR (PT 806) 72; OLALEYE-OTE VS BABALOLA (2012) 6 NWLR (PT 1297) 574; THE MILITARY GOVERNOR OF ONDO STATE VS ADEWUNMI (1988) LPELR (3188) SC.
Flowing from the above cited authorities, my humble stance is that under the concurrent legislative list, both the National Assembly and the House of Assembly of a state have concurrent powers to legislate on matters listed within their respective purview but by virtue of Section 4 (5) of the 1999 Constitution, where there is inconsistency between such similar enactments, that of the National Assembly shall prevail to the extent of the inconsistency in the enactment by the State House of Assembly.
In the instant case, the Edo State House of Assembly is yet to make any law pertaining to or similar to the Freedom of Information Act 2011 in which case the issue of inconsistency does not rise and until such law is enacted in Edo State, the Appellant is not obliged to comply with the Respondents request to supply them with records and other details as listed in the Originating Summons.
This issue is therefore resolved in favour of the Appellant.
On issue 2 which deals with whether the learned trial Judge was right to have adjudicated on the issue of ‘domestication’ when it was not raised by any of the parties. The contention of learned counsel for the Appellant is that the learned trial Judge wrongly analysed the processes filed in the suit and also wrongly evaluated the arguments of counsel for the parties and consequently arrived at a wrong conclusion by referring to the issue of ‘domestication’ not contested by the parties.
The Respondents’ position is that the issue of domestication does not form part of the principles upon which the lower Court determined the case before it and it does not form part of the ratio decidendi in the judgment.
The learned trial judge had in the judgment at page 109 of the Record of Appeal held that:-
“The issue of the Act not been (sic) ‘Domesticated’ as argued by the learned solicitor General, that is not being adopted for the application in the State House of Assembly is a strange phenomenon. It is only used in international Laws, treaties, conventions etc and not for the national laws. As I found earlier, the ultimate coverage of the Act, is a constitutional coverage which binds both Federal and State governments. The Land Use Act 1978 for example did not need any ‘domestication’ before all the states applied it and still apply it throughout the Federation…..”
I have carefully perused the written addresses filed by the parties in support and against the Originating Summons as well as the proceedings of the lower Court where the said addresses were adopted and the matter adjourned for judgment on the 25/3/2014. I observe that the issue of domestication was nowhere raised or argued by the Appellant’s counsel therein. It follows that the finding of the learned trial Judge on the issue as detailed in page 109 of the record is not borne out of the affidavit evidence or submission of counsel for the parties. It was therefore evidently raised suo motu but erroneously ascribed to the learned Solicitor General.
It is settled law that though a Court is at liberty to raise an issue suo motu, it can only validly rely on it in determining the matter after hearing the parties in the case on the issue so raised. Failure by a Court to observe such requirement constitutes a breach of the rule of fair hearing and any decision reached thereof is a nullity and consequently liable to be set aside by an appellate Court. See OKOYE VS C.O.P & ORS. (2015) LPELR (24675) SC; UGO VS OBIEKWE (1989) 1 NWLR (PT 99) 566; OJE VS BABALOLA (1991)1 NWLR (PT 185) 267; SHASI VS SMITH & ORS (2009) LPELR (3039) SC OLATUNJI VS ADISA (1995) 2 NWLR (PT 376) 167.
In the circumstance, my answer to the issue 2 as raised by the Appellant is in the Negative and it is accordingly resolved in favour of the Appellant.
On the whole, this appeal is found to be meritorious and it is accordingly allowed. The judgment of the High Court of Edo State delivered on the 29th day of April, 2014 is hereby set aside.
Parties to bear their costs.
CROSS-APPEAL
The Cross Appellant’s Notice of Cross appeal was filed on 4/7/2017 but deemed properly filed on 31/1/2018. The cross-appellants brief of argument was filed on 4/7/2017 but deemed properly filed and served on 31/1/2018 while the Appellant/cross-respondent brief of argument was filed on 30/1/18 and also deemed properly filed and served on 31/1/18.
The said briefs of argument were adopted and relied on by the parties at the hearing of the Appeal on 31/1/18.
Three issues for determination were formulated in the cross-appellant?s brief and they are herein below set out:-
1. Whether the trial Court was right in its decision refusing to compensate cross-appellants for breach of right of expression. (Ground 1).
2. Whether the cross-respondent has the responsibility to protect the cross-appellants from damaging acts and bear the cost, when it fails. (Ground 3).
3. Whether the trial Court was right in refusing to pronounce sentence of conviction after a finding of guilt. (Ground 2).
The cross-respondent on the other hand formulated a sole issue for determination as follows:-
Whether the claim for damages and cost of action was made out by the Respondent/cross-appellants at the trial Court so as to be entitled to the award of damages as claimed.”
I will adopt the three issues raised in the cross-appellant?s brief for the resolution of this cross-appeal.
ISSUE 1
Herein learned counsel for the Cross-appellant posited inter alia that freedom of expression and opinion include two closely related features, firstly the right to read, to listen, to see and to otherwise receive communications and secondly, the right to obtain information as a basis for transmitting ideas or facts to others and they are both encapsulated in Section 39 of the 1999 Constitution which deals with the right to freedom of expression. He added that the cross-appellants copiously supplied un-contradicted facts in their affidavits to explain the damages incurred and this was further contained in their written arguments to the effect that failure to release the information on time will cripple the activities and usefulness of the Cross-appellants. It was therefore contended that the lower Court never considered those facts and arguments made by the Cross-appellants in reaching the decision that the argument on compensation was not clearly made out and which decision led to a miscarriage of justice.
It was further submitted that by not disclosing the information requested for by the Cross-appellants, the Cross-Respondent breached their fundamental rights and this entitles them to compensation in the sum of N500, 000.00 as per the provisions of Section 7 (5) of the Freedom of Information Act, 2011. He added that the primary object of the award of the sum of N500, 000.00 is to compensate the Cross-Appellants for the harm done to them and it constitutes a balanced estimate of the ignorance suffered by the Cross-Appellants as a result of the Cross-Respondents’ unlawful conduct. He cited the case of ELIOCHIN VS MBADIWE (1986) 1 NWLR (PT 14) 47.
It was further submitted that though the lower Court held that the argument on cost of action and damages was not clearly made out yet it went ahead to award the sum of N100,000.00 as cost of action. This he argues was a far cry from the amount claimed by the Cross-Appellants and such wrong exercise of discretion amounts to a miscarriage of justice given that the suit was a class action, on the exercise of discretion he referred to the following cases:- INTERNATIONAL OFFSHORE CORPORATION VS SLN LTD (2003)16 NWLR (PT 845) 157; OGENE VS OGENE (2008) 2 NWLR (PT 1070) 29 AND ASUU VS OGUNSANWO (2014) 17 NWLR (PT 1437) 475.
On issue 2, it was submitted that one of the reliefs sought by the Cross-Appellants in the lower Court is the ?cost of instituting and prosecuting the action as assessed by the Cross-Appellant in the sum of N10 million but the lower Court awarded only the sum of N100, 000.00 regardless of filing fees and out of pocket expenses as held in REMANE VS OKOTIE-EBOH (1960) NSCC VOL. 135 AT 159.
On the principle guiding the award of costs as well as the power of an appellate Court to review the cost awarded by a trial Court he referred to the following cases:- M.H. LTD VS OKEFIEMA (2011) 6 NWLR (PT 1244) 514 AT 538; NBCI LTD VS ALFIJIR (1999) 14 NWLR (PT 638) 176; NNPC VS KLIFCO (2010) 10 NWLR (PT 1255) 209; INTERNATIONAL OFFSHORE CORPORATION VS SLN LTD (Supra) UYOI VS EGWARE (1974) ALL NLR 293 AND OGOR VS KOLAWOLE 1985 6 NCLR 664 AT 666-667.
It was then submitted that where an infringement of human rights has occurred, the better way to bring such infringement to an end is to award a heavy cost which in this case will protect the Cross-Appellants from the damaging acts of the Cross-Appellants.
On issue 3, it was submitted that once there is a breach of the provisions of the Freedom of Information Act 2011, a conviction must ensue in monetary terms and one of the objectives of sentencing under the said Act is for Restitution by way of compensating the victim of the offence in the sum of N500, 000.00. He added that by the provision of Section 7 (5) of the Act, once an infraction of the right of information is established, the order of conviction to a fine of N500, 000.00 flows automatically and by Section 419 of the Administration of Criminal Justice Act 2015, a sentence of imprisonment takes effect from that day it was pronounced by the Court. Also, that by Section 424 of the Administration of Criminal Justice Act 2015, the Court has power to impose a term of 6 months imprisonment in default of payment of penalty against the Cross-Respondent for failure to obey the Court order.
Finally, it was urged on this Court to invoke Section 15 of the Court of Appeal Act 2010 and make an order for cost of action to the tune of N10 million and convict the Cross-Respondent with a fine of N500, 000.00.
Replying as per their sole issue for determination, learned counsel for the Cross-Respondent, first submitted that the Freedom of Information Act is not applicable in Edo State in which case there is no legal wrong done to the Cross-Appellants. Furthermore, that looking through the affidavit evidence of the Cross-Appellants, there are no facts disclosed which justifies the award of damages as they relate to matters of public interest. Reference was further made to paragraphs 8, 9, 16 and 17 of the Cross-Appellants affidavit to submit that none of the depositors relate to, or justifies the award of damages.
Also relying on the case of ADEKUNLE VS ROCKVIEW HOTELS LTD (2004) 1 NWLR (PT 853) 161 it was submitted that general damages are not awarded as a matter of course but on sound and solid legal principles and not on speculations or sentiments as the Court is not a father Christmas. He added that in this regard, there is no evidence of probative value disclosed in the entire affidavit in support of the Originating Summons to warrant the grant of the sum of N500, 000.00 as claimed by the Cross-Appellants. Vide SAIDU H. AHMED & ORS VS CBN (2012) LPELR 9341 (SC).
It was further submitted that even the Freedom of Information Act (even if applicable to Edo State) does not contemplate award of damages for a denial of giving information to which the Respondent/Cross-Appellants is entitled even though he sought to make the claim under the guise of breach of fundamental right of Freedom of expression which has nothing to do with Freedom of Information Act. This Court was then urged to dismiss the cross-appeal.
I will consider the three issues together as they are interlinked.
On the issue of damages, the Supreme Court in ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY VS EKWENEM (2009) 13 NWLR (PT 1158) 410 held that:-
The purpose of an award of damages is to compensate the plaintiff for damage injury or loss suffered. The guiding principle is Restitution in Intergrum, where the Court is called upon to assess that a party which has been clarified by the act which is in issue must be put in the position in which he would have been if he had not suffered the damage for which is in issue must be put in the position he is being compensated.” See also, YOUNG VS CHEVRON (NIG) LTD (2013) LPELR 22126 (CA). The case of SAIDU H. AHMED VS CENTRAL BANK OF NIGERIA (SUPRA) relied on by the Cross-Respondent is also quite apposite on the issue of damages. See also AGBANELO VS UNION BANK OF NIGERIA LTD (2000) 7 NWLR (PT 666) 534 where the Apex Court held inter alia that ‘damages are pecuniary compensation obtainable by success in an action for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum awarded at the tune, unconditionally and generally’.
Once a plaintiff has successfully shown and proved that he suffered personal injury resulting from the breach of duty of care owed him or her by the defendant, the claim for pain and suffering must be considered by the Court as no principle can be laid down upon which damages for such pain and suffering can be awarded in terms of the quantum. See IGHRERINIOVO VS SCC (NIG) LTD & ORS (2013) 10 NWLR (PT 1361) 138.
The learned trial Judge held at page 110 of the Record that:-
“The claim for N500, 000.00 as general and exemplary damages is not made out and all the arguments in that regard are misconceived. So also, that claim for costs of instituting and prosecution of the action. However I award costs of N100, 000.00 against the Respondent in favour of the Applicants.”
I have carefully gone through the Cross-Appellants affidavit in support of the Originating Summons as well as written address and I cannot but agree with the stance of the learned trial Judge that the arguments in support of the claim for damages are misconceived. The authorities are clear on the point that award of damages is an exercise of discretion by the trial Court and award must flow from a positive evidence of harm or injury to the claimant. An appellate Court in such a situation will not unduly interfere with an award of damages by a trial Court unless it is shown that such exercise of discretion is perverse, or that the trial Court acted under the wrong principle of law or a misapprehension of facts or where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages.
See ZIK’S PRESS LTD VS IKOKU (1951) 13 WACA 188, BOLA VS BANKOLE (1980) 3 NMLR (PT 27) 141.
The award of damages is at the discretion of the trial Court and it is premised on the pleadings of the parties and the evidence adduced in support and the Court being guided by the applicable principles. SeeUNITY BANK PLC VS ADAMU & ORS (2013) LPELR 22047 (CA); A.G. OYO STATE VS FAIRLAKES HOTELS LTD (NO 2) (1989) NWLR (PT 121) 255.
In the instant case, there is no evidence available to show convincingly, the injury suffered by the Cross-Appellants as a result of the refusal of the Cross-Respondent to grant their request to provide them with some documents in their possession.
What is more, Section 25 (1) (c) of the Freedom of Information Act provides that a Court can only make an order compelling an institution to disclose the information where it finds that the interest of the public in having the record being made available is greater and more vital than the interest being served if the request is denied.
Section 19 (2) of the said Act also provides that an application for information shall not be denied where the public interest in disclosing it outweighs whatever injury that disclosure will cause. The point being made here is that by the provisions of the Freedom of Information Act, any injury arising from refusal to disclose information can only be ascribed to public interest and not to an individual as the Cross-Appellants are trying to contend. Infact, they have not in my view disclosed any injury suffered or likely to be suffered personally as against the public interest that will entitle them to award of damages. See also Section 14 (3) of the Act.
On the issue of the claim for N500, 000.00 damages as presented by the Cross-Appellants, I find this head of claim and the argument in support as puerile, naive and absurd. This is given the clear provisions of Section 7 (5) to the effect that:-
7 (5)Where a case of wrongful denial of access is established, the defaulting officer or institution commits an offence and is liable on conviction to a fine of N500, 000.00.”
It is apposite that in our criminal jurisprudence, for a person to be found guilty of an offence, he must go through the process and procedure of a trial and which guilt must be proved by the prosecution beyond reasonable doubt. See Section 135 (1) of the Evidence Act 2011. See also BUHARI VS OBASANJO (2005) 13 NWLR (PT. 941) 1 AT 209 and DIKKO YUSUF VS OBASANJO (2005) 18 NWLR (PT 956) 96; IKPEAZU VS OTTI & ORS (2016) LPELR 40055 (SC).
The Cross-Respondent did not go through any such criminal trial and conviction to warrant the said fine of N500, 000.00 which interestingly, the Cross-Appellants also insisted should be paid to them as damages or compensation. Little wonder the learned trial Judge held that the claim was misconceived and I entirely agree with that finding.
On the issue of cost, it is settled law that cost normally follows events unless there are circumstances warranting to the contrary. The award of costs involves judicial discretion which must be exercised based on certain principles. Also such discretion must not be affected by questions of benevolence or sympathy. See HACO LTD VS BROWN (1973) ALL NLR 354 UBN PLC VS NWAOKOLO (1995) 6 NWLR (PT 400) 127 AND M.H. LTD VS OKEFIENA (2011) 6 NWLR (PT 1244) 514 wherein this Court held that the essence of costs is to compensate the successful party for part of the loss incurred in the litigation. Cost cannot cure all the financial loss sustained in litigation. It is also not meant to be a bonus for the successful party.
In the instant case, the Cross-Appellant had claimed for a cost of N10 Million naira but there is no evidence to support such claim. The High Court (Civil Procedure) Rules grants the trial Court the power to award cost as may be determined to be proper and appropriate. The learned trial Judge in this regard awarded the cost of N100, 000.00 against the Cross-Respondent. This in my view constitutes a proper exercise of the Court?s discretion in that regard and will not be interfered with by this Court.
Consequently the three issues are resolved against the Cross-Appellants. Accordingly, this Cross-Appeal is found to be grossly lacking in merit and amounts to unbridled quest for undeserved monetary shower. It is therefore dismissed.
I award a cost of N100, 000.00 against the Cross-Appellants in favour of the Cross-Respondents.
PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading before now the draft judgment just delivered by learned brother S.C. Oseji, JCA. I agree entirely with the reasoning and conclusions reached therein in resolving the issues formulated in the appeal.
I too find that there is indeed no evidence too support the claim of N10,000,000 (Ten Million Naira) put forward by the Cross Appellant. I am in total agreement with the cost of N100,000 awarded by the trial Judge against the Cross Appellant as it is his discretion to do so.
In sum, the Cross-Appeal is found to be unmeritorious and it is therefore dismissed.
I abide by the award of cost of N100,000.00 against the Cross-Appellants as stated in the lead judgment.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.(DISSENTING): I had the advantage of reading the draft of the judgment just delivered by my learned brother, Samuel Chukwudumebi Oseji, JCA. Although my learned brother has painstakingly and thoroughly attended to the issues in this appeal, upon a careful consideration of the reasoning in the leading judgment, however, I find myself at cross-current with the opinion or view that the ?doctrine of covering the field? does not apply to this case.
In this case, save for their claim for monetary damages and costs, the respondents are seeking certain pieces of information from the appellant under the Freedom of Information Act, 2011 and Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Learned Counsel for the appellant opined that:
(i) the Freedom of Information Act, 2011 ?is a legislation made by the National Assembly on the records of the Federation?.
(ii) the National Assembly cannot make legislation on the public records of a State Government by virtue of items 4 and 5 of the Concurrent Legislative List of the Constitution of the Federal Republic of Nigeria 1999?, and
(iii) the Freedom of Information Act is inapplicable to Edo State.?
(See pages 5-6 of the appellant?s brief).
The learned counsel referred to the opinion of Prof. B.O. Nwabueze (SAN) in his book: ‘Federation in Nigeria and the Presidential Constitution’, page 61 where the renowned learned author stated, inter alia, as follows:
‘Perhaps the most remarkable feature of the concurrent legislative list is that there is no co-existence of powers at all in respect of four of the five remaining matters included therein” allocation of revenue (Item A), antiquities and monuments (Item B), archives (Item C) and collection of taxes (Item D). The delimitation of the schedule restricts the Federal and State governments to specific aspects of the matters, thus making those aspects exclusive to the one or the other. The result is that while these matters are dealt with under the concurrent legislative list their inclusion in no way implies that the power of the Federal and State governments to act over any aspect of them co-exist together….”
‘The Federal government has exclusive power over the archives and public records of the federation while those of a state come under the exclusive authority of the state government.’
Learned counsel for the appellant then contended that: “The implication of the forgoing is that the power granted under paragraph C relating to archives and public records is exclusive to both the Federal and State government in their respective domains of jurisdiction. This is underscored by the use of the expressionpublic records of the Government of the State? in items 4 and 5 respectively.”
It was submitted that Section 29 of the Freedom of Information Act, 2011 ?reveals the intention of its makers to wit: that it was meant to apply to the record of the Federation and not of the States?, since the Attorney-General of the Federation has been held in Attorney-General, Ondo State v. Attorney-General of the Federation (2002) 9 NWLR (Pt.772) 419 to be ‘an agency of the Federal Government’.
On the other side, learned counsel for the respondents submitted, inter alia, as follows:
“Your Lordships, State Houses of Assembly have consistently waited for the National Assembly to legislate on a subject and thereafter prop up to say that the law is not applicable to them. Where the State House of Assembly refuses to pass a law on access to public record, and there exists a federal legislation on same which promotes good governance and public interest, the Court must without choice implement the law. See Attorney General of Ondo State v. Attorney General of the Federation (2002) 9 NWLR (Pt. 772) 222 @ 407 Paragraph A-C. Generally, states are not precluded from making any laws with respect to public records but any such laws will be superseded by the Act if there is inconsistency capable of diminishing the rights in the Act. See Section 4 (5) of the Constitution of 1999. Submit further that to do otherwise will truncate constitutional legislative responsibilities.
Where the National Assembly has the power to regulate a particular subject and does same in a given form to cover exhaustively the federating states, state legislatures lack the power to compliment the legislation of the National Assembly or to prescribe additional regulations even if it will not alter the intention of the Act. Per Agube JCA in RECTOR, KWARA POLYTECHIC v. ADEFILA (2007) 15 NWLR (Pt. 1056) CA 42 P. 98 paras D-C observed thus:
Where both the Federal and state legislatures are empowered in a federal set up to legislate on the same subject and it appears that the federal law covers the field and this provide what the law on the subject would be for the entire federation, the state law on the subject (if any) is invalid. In this case, education is on the concurrent legislative list thus once the federal government has formulated a National Policy on technical education, the state policy must give way by way of covering the field.
In this case, the Freedom of Information Act 2011 intends to completely and exhaustively cover the field and not merely supplementary to a state law or cumulate upon state law. The State Assembly now as a public policy and principle of constitutionalism, lacks locus standi to pass FOI Law under the guise of ?domestication?. We urge your Lordships to so hold.
We submit sir that it is a barren act of political arrogance for the state legislature to restrict the scope of the Freedom of Information Act 2011 in a vacuum. A judicial review of non-existing state legislation over existing federal legislation is a stick in the cleft in parliamentary sovereignty. Nothing derogates the power of the National Assembly to legislate on public records or archives of state in the interest of good governance and development. By the provision of paragraph 5 of the part 2 of the 2nd Schedule to the 1999 Constitution, states are covered to the ground, even if their concerns are consistent with that of the National Assembly. The supremacy of parliament primarily means that any law enacted by the National Assembly over a subject matter on concurrent list that covers exhaustively the implementation of the Act in Federal, States and Local government bars the passing of a state law and overrides any existing law made by the state. We urge my Lordships to so hold.?
Items 4 and 5 of the Part II of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provided thus:
4. The National Assembly may make laws for the Federation or any part thereof with respect to the archives and public records of the Federation.
5. A House of Assembly may, subject to paragraph 4 hereof, make laws for that State or any part thereof with respect to archives and public records of the Government of the State.
The above constitutional provisions are clear, straightforward and unambiguous. The golden rule of interpretation of statutes is that the plain words used in a statute attract, and should be given, their natural or ordinary grammatical meaning, unless such literal interpretation will lead to an absurdity. See African Newspapers Ltd. v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137; International Bank for West Africa Ltd. v. Imano (Nig.) Ltd. (1988) 3 NWLR (Pt. 85) 633 and Victor Manyo Ndoma-Egba v. Nnameke Chikwukeluo Chukwuogor & 3 Ors. (2004) 6 NWLR (Pt. 869) 382 at 409, per Uwaifo, JSC. In the case of Josiah Ayodele Adetayo & 2 Ors. v. Kunle Ademola & 2 Ors. (2010) 15 NWLR (Pt. 1215) 169 at 205, the Supreme Court, per Adekeye, JSC, stated as follows:
“In the interpretation of a statute, where the word, of a legislation or Constitution are clear, plain and unambiguous, there is no need to give them any other meaning than their ordinary, natural and grammatical construction would permit unless that would lead to absurdity.”
In this case, by giving the words in item 4 of Part II of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) their plain meaning, the National Assembly can make laws for ‘the Federation or any part thereof’ in respect of the archives and public records of ‘the Federation’. The only word that needs an explanation or interpretation is: ‘Federation’, as used in the said provision. Under Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) ‘Federation’ means ‘the Federal Republic of Nigeria’, which by virtue of Section 2(2) of the same Constitution consists of the States and the Federal Capital Territory. Since the said item 4 states that the National Assembly can legislate on the archives and public records of the Federation, and not archives and public records of ‘the Federal Government’ simpliciter, the archives and public records referred to in the provision cover or include those of a State in Nigeria. This is in clear contrast to the provisions of item 5 which restricts the archives and public records which a House of Assembly can legislate on to those ‘of the Government of the State’.
The law is that Courts should abide by the meaning ascribed to phrases or words by the same Act, enactment law of statute which has employed or used such phrases or words. Put differently, where a statute has defined phrases, terms or words used therein, the Court should adhere to the definition or meaning given in the statute in its onerous task of constructing or interpreting the provisions of that statute. See Wilson v. Attorney General of Bendel State (1985) 1 NWLR (Pt. 4) 572 and ACME Builders Ltd. v. Kaduna State Water Board (1999) 2 SCNJ 25 at 53; (1999) 2 NWLR (Pt.590) 288 at 313, per Onu, JSC, where the eminent jurist stated that:
“Be it noted, however, that it is settled law that where words or expressions have been legally or judicially defined, their ordinary meaning will surely give way to their legally or judicially defined meaning.”
To my mind, both the National Assembly and a State House of Assembly have concurrent powers to legislate on archives and public records, although a State House of Assembly can only legislate in respect of the archives and public records of the affected State. Since the National Assembly has already enacted the National Archives Act, Cap. N6, Laws of the Federation of Nigeria, 2004 with far-reaching provisions, including a comprehensive definition of the word ‘records’ as used in the said Act, I will confine my views to ‘public records’ of the Federation?. The phrase ‘public records’ has not been defined in the Constitution but it is defined in Section 31 of the Freedom of Information Act as follows:
‘Public record or document’ means a record in any form having been prepared, or having been or being used, received, possessed or under the control of any public or private bodies relating to matters of public interest and includes any
(a) writing on any material;
(b) information recorded or stored or other devices; and any material subsequently derived from information so recorded or stored;
(c) libel, marking, or other writing that identifies or describes anything of which it forms part, or to which it is attached by any means;
(d) book, card, form, map, plan, graph, or drawing;
(e) photograph, film, negative, microfilm, tape, or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced.
Therefore, public records under the Freedom of Information Act, 2011 include those under the possession and control of any public bodies relating to matters of public interest. The public records in the possession of the appellant, relating to matters of public interest, are covered by the Freedom of the Information Act, 2011.
Contrary to the submission of the learned counsel for the appellant, since both the National Assembly and a State House of Assembly can legislate on archives and public records, I am of the view that the ‘doctrine of covering the field’ is applicable to the provisions of items 4 and 5 Part II of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The Supreme Court in Independent National Electoral Commission & Anor. v. Alhaji Abdulkadir Balarade Musa & 4 Ors. (2003) 3 NWLR (Pt. 806) 72 at 204, per Niki Tobi, JSC, stated that the ‘doctrine of covering the field’ would apply where both the National Assembly and the State House of Assembly can legislate on matters under the Concurrent Legislative List. The learned jurist further stated that:
“The doctrine of covering the field can arise in two distinct situations. First, where in the purported exercise of legislative powers of the National Assembly or a State House of Assembly a law is enacted which the Constitution has already made provisions covering the subject matter of the Federal Act or the State Law. Second, where a State House of Assembly by the purported exercise of its legislative powers enacted a law which an Act of the National Assembly has already made provisions covering the subject matter of the State Law.”
The learned counsel for the appellant relied on the opinion of Professor B.O. Nwabueze (SAN) at page 61 of his book: “Federalism in Nigeria under the Presidential Constitution” where the eminent learned Senior Advocate of Nigeria concluded that by virtue of the provisions of paragraphs 4 and 5 of the Concurrent Legislative List an Act of the National Assembly on public records is not binding on a State in Nigeria.
My quick answer to this argument is to refer to the view of the Supreme Court in the case of The Attorney-General of the Federation v. The Attorney-General of Lagos State (2013) 16 NWLR (Pt. 1380) 249 at 327-328, per I. T. Muhammad, JSC, where the apex Court stated on the doctrine of covering the field as follows:
“It is a doctrine relevant in a federalism and postulates that where a Federal Constitution or a Federal enactment has already covered a particular legislative field, no State or even local government law can be enacted to cover the same field already covered by the Constitution or the Federal enactment. The doctrine, thus, postulates the mutual non-interference such that in a country operated by rule of law hinged on a Federal Constitution, such as ours, there should be that unsigned agreement among the Federating States on one hand and the Federal (Central) government on the other hand, for non-interference, especially by legislative action, in the affairs of the other with a view to achieving a very strong and effective working of the Federal superstructure.”
Still on the doctrine of covering the field, the highly respected legal researcher and author, S. T. Hon (SAN) in his treatise: ‘S. T. HON’S CONSTITUTIONAL AND MIGRATION LAW IN NIGERIA’ at pages 152 – 153 referred to some of the earliest decisions on the doctrine and how it has been applied in several jurisdictions by stating authoritatively and incisively as follows:
One of the earliest decisions where the doctrine of covering the field was propounded was the U.S. case of Houston vs. Moore, 5 Wheat 1 (1820), in this case, the U.S. Supreme Court held that where Congress had legislated on a matter in the concurrent legislative list in a manner that clearly showed an intention to cover the whole field, a State legislature could not again lawfully enact a Law to cover the same field, though such Law be not directly in conflict with the federal enactment. This decision was adopted in the later case of Priggs vs. Pennsylvania, 16 Pet. (1842) at 617-618, per Story, J; where it was observed as follows:
If congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given and in a certain form, it cannot be that the State Legislature have a right to interfere, and as it were, by way of complement to the legislation by Congress to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of the Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any further legislation to act upon the subject matter.
In Australia, one of the earliest decisions on the subject matter is the reported case of Ex parte McLean, (1930) 43 CLR 472 at 483, where Dixon, J., after analysing what the doctrine of covering the field is all about, observed that the inconsistency does not lie in the mere co-existence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter.
In Nigeria, one of the earliest cases on the applicability of this doctrine is that of Lakanmi vs. Attorney General, Western State (1970) 6 NSSC 143 where, after citing with approval Ex parte McLean, supra and O ‘Sullivan vs. Noarlunga Meat Ltd. (1957) AC 1 at 24, the Supreme Court voided Edict No. 5 of 1967, promulgated by the then Western State Military Government, because it covered the same field as Decree No. 51, which was promulgated by the Federal Military Government. Both laws purported to cover investigation of assets of public officers.’
Writing specifically on the Freedom of Information Act, 2011 the learned author (S.T. Hon (SAN), stated at page 576 of his book that it was only passed into law by ‘the Nigerian National Assembly’ after ‘dilly-dallying for a long time’. Mr. Hon (SAN) then stated at pages 578 and 579 as follows:
‘There are… notable provisions of this Act, which have clearly established the intention of the Legislature to legislative on transparent exposure or disclosure of public information, where there exist no exemptions or denials’.
‘…It will be seen clearly from the provisions of the FOI Act that it is a piece of legislation which is not only necessary in a democratic society, it also seeks to establish good governance and to compliment the provisions of Section 39(1) of the Constitution, especially the phrase ?freedom to?receive and impart ideas and information without interference.’
I am very persuaded by the views and reasoning of the learned Senior Advocate of Nigeria reproduced above. It is obvious from the provisions of the Freedom of Information Act, 2011 that the legislation, amongst other things, is intended to make information from public records, subject to the exceptions itemized in Section 39(3) of the Constitution and in the Act itself, easily accessible to the members of the public. By allowing easy access to information in public records of agencies, departments, ministries and organs of Government, the Freedom of Information Act is also patently aimed at achieving one of the fundamental objectives and directive principles of State policy, as enshrined in Section 15(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), namely to expose and ‘abolish all corrupt practices and abuse of power’.
Section 13 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) imposes a duty on all arms or organs of government and all authorities and persons ‘to conform to, observe and apply’ the provisions of Chapter II of the Constitution, of which Section 15 (5) is an integral part. Thus in the case of Attorney-General of Ondo State v. Attorney-General of the Federation & Ors. (2002) 9 NWLR (Pt. 772) 222 at 408 – 409, per Uwaifo, JSC, the Supreme Court explained the justification for including and placing promotion and enforcement of the fundamental objectives and directive principles of State policy enshrined in the Constitution under the Exclusive Legislative List and that “by and large that they can in letter be turned into enactments within the competence of the National Assembly as far as practicable when the need should arise”.
Whilst considering the provisions of Section 13 of the Constitution, with particular reference to Section 15 (5) of the Constitution, in Attorney-General of Ondo State v. Attorney-General of the Federation (supra) at 307 per Uwais, CJN, the Supreme Court stated as follows:
‘It has been argued also that the word ?State? in Section 15 Sub-section (5) means the Federal Government alone, because if the whole of the provisions of Chapter II of the Constitution of Fundamental Objectives and Directive Principles of State Policy are read together, it will be seen that only the Federal Government is in a position to carry out the principles and objectives. With respect, I do not accept this argument, because the provisions of Section 13 thereof apply to ‘all organs of government, and all authorities and persons exercising legislative, executive or judicial powers’. The provisions do not distinguish between Federal, State or Local Governments.”
On menace of corruption in Nigeria and the real need to tackle it, the learned Chief Justice of Nigeria stated at page 306 of the said case that:
“Corruption is not a disease which afflicts public officers alone but society as a whole. If it is therefore to be eradicated effectively, the solution to it must be pervasive to cover every segment of the society.”
Commenting on the importance and solemnity of the duty imposed by Section 13 of the Constitution of the Federal Republic of Nigeria (as amended) with particular reference to the Judiciary, this Court, per Saulawa, JCA in Dr. Paul O. Ukpo & 3 Ors. v. Mr. Liyel Imoke & Ors. (2009) 1 NWLR (Pt. 1121) 90 at 176 ? 177 stated that by decisively playing our roles, in order to salvage the nation, we ‘earn for ourselves the gratitude of the people and as Priests in the temple of justice, the eternal blessing of the Almighty God’.
I only wish to add that just like in the case of Attorney-General of Ondo State v. Attorney-General of the Federation (supra), where some sections of the Corrupt Practices and Other Related Offences Act, 2000 were invalidated, for being unconstitutional, by the Supreme Court, the appellant’s remedy, if any, is to seek through the Attorney-General of Edo State the nullification of any alleged unconstitutional provisions or sections of the Freedom of Information Act, 2011 and not argue that members of the public cannot seek information in respect of the public records of the Government of Edo State employing the instrumentality of the Freedom of Information Act.
This is because the Freedom of Information Act, 2011 is a statute of paramount application and utility throughout Nigeria, the said Act having been enacted by the National Assembly pursuant to its powers under items 60 (a) and 67 of the Exclusive Legislative List and item (4) of the Concurrent Legislative List set in the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
By the doctrine of covering the field, where a particular legislative field, falling within the concurrent legislative list, has already been covered by either the Constitution or an Act of the National Assembly, a State Law on the same legislative field is nothing but a mere ‘surplusage’; it is to be kept in abeyance and ‘will not be operative’. See Attorney General of Abia State v. Attorney General of the Federation (2002) 3 SCNJ 158 at 391, per Uwais, CJN and Independent National Electoral Commission & Anor. v. Alhaji Abdulkadir Balarabe Musa & 4 Ors. (supra) per Niki Tobi, JSC.
Thus, where any Law made or passed by a State House of Assembly is inconsistent with the Constitution or an Act of the National Assembly, to the extent of its inconsistency, such State Law is to be declared null and void, pursuant to the provisions of Section 4(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See Attorney General of Abia State v. Attorney General of the Federation (supra) at 208, per Uwais, CJN and Attorney-General, Lagos State v. Eko Hotels Limited & Anor. (Appeal No. SC.321/2007 delivered on 08/12/2017) per Kekere-Ekun, JSC.
Section 1(1) of the Freedom of Information Act, grants right to any person ‘to access or request information’..in the custody or possession of any public official, agency or institution howsoever described. The appellant falls within the meaning of ‘agency’ under this provision and cannot hide, and should not be permitted to hide, under the defence that since the Edo State House of Assembly has not passed a Freedom of Information Law in respect of public records of the Government of the State it has no obligation to make available the information sought by the respondents.
To me, therefore, any insistence on a State Law before a person can be given an access to information contained in the public records of the government of a State, for lack of appropriate word or phrase, is an anathema, in view of the clear provisions of Sections 15 (5) and 39 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 1 (1) of the Freedom of Information Act, 2011.
In this case, the respondents’ claims relate to access to information in the public records of an agency of Edo State. The claims do not relate to the submission of any reports by the agency to any authority or person. The Freedom of Information Act, 2011 has already covered the field in respect of access by ‘any member of the public’ to the public records of the appellant, subject, however, to the exceptions set out in the said Act.
The reasoning of the trial Court in its judgment was very well-researched and grounded and there is no basis to disturb it or set it aside. The learned trial Judge rightly invoked and relied on doctrine of covering the field in granting the respondents? claim.
It is for these reasons that I do not find any merit in this appeal, which is hereby dismissed.
I affirm the decision of the trial Court delivered on 29/04/2014 in Suit No. B/17M/2014 by E. F. Ikponmwen, J. (as he then was). Consequently, for the reasons given by my learned brother, the cross appeal is also dismissed by me.
I make no order for costs, as the parties are to bear their respective costs.
Appearances:
OLUWOLE IYAMU (Solicitor General) Edo State Ministry of Justice with him, MRS. R.O. OAIHIMIRE; E.A. AYENI (MISS) and M.O. ERUAGA-IDAHOSA (MRS)For Appellant(s)
PRESIDENT AIGBOKHAN with him, LOVETH OSAGIEDE (MISS)For Respondent(s)
