EDO STATE GOVT & ORS v. EHOLOR
(2022)LCN/16409(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, July 07, 2022
CA/B/241/2020
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
James GamboAbundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
1. EDO STATE GOVERNMENT 2. THE GOVERNMENT OF EDO STATE 3. THE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, EDO STATE APPELANT(S)
And
CHIEF PATRICK OSAGIE EHOLOR RESPONDENT(S)
RATIO:
THE ESTABLISHED LAW ON THE POSITION OF STARE DECISIS
That foregoing position of stare decisis is now very well established in our jurisprudence as exemplified by the decisions of the Supreme Court in Okpozo v. Bendel Newspaper Corp. & Anor (1990) 5 NWLR (PT 153) 652 at 661;Osakue v. F.C.E. (Tech.) Asaba (2010) 10 NWLR (Pt. 1201) and Obiuweubi v. Central Bank of Nigeria(2011) NWLR (PT 1247) 465 at 501. In Osakue v. F.C.E. (Tech.) Asaba (2010) 10 NWLR (PT 1201) 1 at 36 Ogbuagu J.S.C. dwelt exhaustively on this issue by saying that (1) a lower Court is bound only by the ratio decidendi of a higher Court and not its obiter dictum (see p. 34 para D of NWLR) and (2) a lower Court lacks power to declare a decision of a Higher Court to have been decided per incuriam as that privilege belongs exclusively to the Higher Court that handed down such decision in the first place: see pages 34-35 of NWLR. His Lordship then finally admonished that: “Those who think they are very knowledgeable than this Court, if they have listening hears let them hear and take care.
THE DOTRINE OF COVERING THE FIELD WHERE THE NATIONAL ASSEMBLY HAS ENACTED A LAW ON A PARTICULAR SUBJECT
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.
THE COURT IS BOUND TO FOLLOW THE LATEST WHEN THE COURT IS FACED WITH TWO CONFLICTING DECISIONS OF A SUPERIOR COURT
I wish to further refer to the case of Glaxo SmithKline Plc vs. Ali ZakariJiya LPELR (2014) -22902 (CA), per Orji-Abadua, JCA., where remarking on the position of the law where a lower Court is faced with conflicting decisions of a superior Court on an issue, I said thus:
“…It is an established principle of law that when this Court is faced with two conflicting decisions of the Supreme Court on an issue, this Court is bound to follow the latest. This is so because the Supreme Court has an inherent power to overrule itself. If the latest decision is in conflict with the earlier one, it follows that the latest decision has overruled the earlier one. See Dahiru vs. Kamale (2005) 9 NWLR Part 927 page 8; and Osakwe vs. FCE, Asaba (2010) 10 NWLR Part 1201 page 1 where it was then expressed that where there are two irreconcilable decisions of the Supreme Court, the subordinate Courts are enjoined to abide by the later decision. It has been variously expressed that Court of Appeal must accept and apply loyally, the decisions of the Supreme Court and where the decisions manifestly conflict, the latter decision is binding on the Court of Appeal. THERESA NGOLIKA ORJI-ABADUA, J.C.A
The Supreme Court in Saltzgitter Stahl GMBF vs. Tunji Dosunmu Industries Ltd (2010) LPELR-2999 (SC), per Chukwuma-Eneh, J.S.C., stated that it is a settled principle that where there are two conflicting decisions of the House of Lords, the House cannot be bound by both decisions; it is only fundamental that it is free to choose between the two decisions. In that case, and on that basis the apex Court preferred the Milangos’ case reflecting current judicial opinion in matters whether judgment sum can be given in foreign currency or judgment can be given in foreign currency.” THERESA NGOLIKA ORJI-ABADUA, J.C.A
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This appeal results from the appellants’ discontent with the decision of the High Court of Edo State sitting at Benin City as contained in the judgment delivered by Hon. Justice D. I. Okungbowa on 9th June, 2020 in Suit No. B/84/0S/2019.
The following facts and events led to the institution of the suit and the resulting judgment:
By a letter, dated 6th June, 2019, the respondent, as chairman and Chief Executive Officer of a Non–Governmental Organization, One Love Foundation, instructed his solicitor to apply to the Executive Governor of Edo State under the Freedom of Information Act, 2011 to demand for the information hereunder stated:
“1. The cost of the Benin City Water Storm Project (including application for any contract, permits or agreement relating to the project.
2. The areas covered by the project, (a copy of the Master plan and all such drawings relating to the project).
3. The exact date(s) the contract(s) was/were awarded and to whom (evidenced in a formal document).
4. How much has been expended on the project (a detailed financial record).
5. The extent of the work done (site progress report).
6. The source of funding (loan, grants, etc and the terms).
7. Has there been any variation in the contract(s) sum and project.
8. When is the project expected to be concluded (date of completion and analysis leading to the date) the state of the work as at 2019; is it still ongoing, suspended or abandoned?
9. And such other information incidental to the above demanded.”
When after two weeks the respondent received no response to his request or letter, he initiated an action vide an originating summons against the appellants. The originating summons was issued on 7th July, 2019. The reliefs sought in the originating summons are declaratory and are specific to the information demanded from the Executive Governor of Edo State as contained in the letter he had caused his solicitor to write to the said Executive Governor earlier referred to.
The originating summons is supported with an affidavit of 12 paragraphs. Attached to the affidavit are Exhibits, and a written address of respondent’s counsel.
The respondents’ reaction to the respondent’s processes was expressed in a notice of preliminary objection by which they prayed the Court for an order striking out the name of the 1st respondent/applicant from the suit as the 1st respondent/applicant is not a Juristic person cognizable by law.
In addition, the respondents filed a counter affidavit of 6 paragraphs to which they attached counsel’s written address.
The originating summons was heard on 11th March 2020, at which the respondent adopted his written address in support of his originating summons. The respondents moved their notice of preliminary objection and the counter affidavit and adopted the written addresses in support of the two processes.
In his ruling, the learned trial Judge granted the respondent’s reliefs. This decision did not sound palatable to the appellants, hence this appeal, the notice of which was filed on 31st August, 2020. The notice of appeal contains three grounds of appeal, on which the appellants prayed for an order setting aside the decision of the lower Court dated 9th June, 2020, and in consequence, dismissing the respondent’s suit in its entirety.
The record of appeal duly compiled and transmitted, briefs of argument were filed and exchanged. The appellants’ brief of argument, settled by J. U. Osemwegie was filed on 14/10/2021, and deemed filed on 19/01/22. The respondent’s brief of argument settled by T. A. Akahomen, was filed on 28/2/22 and deemed filed on 2/3/22.
When the appeal came up for hearing on 20/04/22, the appellants’ counsel though served was absent in Court. Their brief of argument was therefore deemed argued, pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules, 2021. Thereafter, Mr. T. A. Akohomen who represented the respondent adopted the respondent’s brief of argument.
In the appellants’ brief of argument, two issues were formulated for determination; to wit: –
“1. Whether by the doctrine of stare decisis, the Learned Trial Court was right to choose to follow the judgment of the Court of Appeal, Akure Division in the unreported case of MARTINS ALO VS SPEAKER, ONDO STATE HOUSE OF ASSEMBLY IN APPEAL NO. CA/AK/4/2017 in preference to the judgment of the Benin Division of the Court of Appeal in EDO STATE AGENCY FOR THE CONTROL OF AIDS (EDOSACA) VS OSAKUE & ORS (2018) 16 NWLR (PT. 1645) 199 when both cases were decided by the Court of Appeal with the former delivered on the 27th March, 2018 and the latter on the 28th March, 2018 (distilled from Ground 1).
2. Whether the trial Court was right when it held that respondent is entitled to the information applied for from the appellant under the Freedom of Information Act (distilled from Grounds 2 and 3).
The respondent framed a lone issue for determination, even though in brief, he referred to the appellants’ 2nd issue which in effect translated in my opinion to formulating two issues.
However, their sole issue is: –
“Whether the information applied for by the respondent from the 1st and 2nd appellants in his originating summons before the trial Court is public records or documents within the provision of the Freedom of Information Act, 2011”.
SUBMISSIONS OF COUNSEL:
On issue one, it was submitted for the appellants that under the Nigerian Legal System, once a higher Court in the hierarchy of Courts decides a matter, the doctrine of stare decisis stipulates that any Court which is below that Court in the hierarchy must follow that previous decision if the facts of the new case before it are similar to the facts of the earlier case. Cited in support of this submission, is the case of Odugbo v. Abu (2001) 14 NWLR (Pt. 732) 45.
Counsel therefore contended that the learned trial Judge erred in law when he chose to follow the judgment of this Court, Akure Division in the unreported case of Martins Alo v. Speaker, Ondo State House of Assembly – NO. CA/AK/4/2017 in preference to the judgment of Benin Division of this Court in the case of Edo State Agency for the Control of Aids (EDOSACA) v. Osakue & Ors (2018) 16 NWLR (Pt. 1645) 199. It was further submitted that where there are conflicting decisions of a Superior Court, this Court has shown the way to follow in the case of GTB v. FADCO IND. LTD (2007) 7 NWLR (Pt. 1033) 307, where it was held that the Court can choose which of them to follow. However, it was submitted that the case of Osakue v. Federal College of Education (Technical) Aba (2010) 10 NWLR (Pt. 1201) 1 decided by the apex Court is that the latter or latest of the decisions is to be followed.
In this case, counsel submitted that the case of Edo State Agency for the Control of Aids (EDOSACA) v. Osakue & Ors (supra) which decided that the Freedom of Information Act, 2011 does not apply to the States of the Federation ought to have been followed. Counsel therefore faulted the rationale of the trial Judge for preferring the case of Martins Alo v. Speaker, Ondo State House of Assembly (supra) on the basis of the fact that the EDOSACA decision was a split decision. It was submitted that whether split decision or not, the decision remains the decision of the Court with its full binding force, and must be followed. The Court is invited to note the admonition of the apex Court as handed down by Eso, JSC in the case of Okoniji v. Mudiaga Odge (1985) 10 SC 267 in cases of flagrant disregard of obedience to stare decisis.
The Court is therefore urged to resolve this issue in favour of the appellants.
In regard to issue two, it was contended for the appellant that the respondent is not entitled to the information applied for as the respondents are not federal institutions and are not bound by the provisions of the Freedom of Information Act. It was submitted that the Act is an Act of the National Assembly and as such applies only to public records in the custody of Federal Institutions and not to public records in the custody of State Institutions or the State Government. Referring to Sections 2(2) and 4(2) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), it was submitted that the legislative power of the Federal Government is circumscribed to matters on the Exclusive legislative list as well as those on the Concurrent list to the extent provided. That the validity and applicability of any enactment of the National Assembly is therefore to be measured against the backdrop of the above provisions and must find expression within the ambit or limits provided by the Constitution and no more.
Reliance is placed on the case of A. G. Abia State v. A. G. of the Federation (2002) 6 NWLR (Pt. 763) 265 at 386.
Pointing out that the Freedom of Information Act is an Act that deals with public records, it was submitted that the legislative power to make laws on public records is shared between the Federal Government and the Federating States by virtue of Paragraph C, items 4 and 5 of the Concurrent Legislative List contained in Part II of the second schedule of the Constitution. Based on the above, it was submitted that an Act 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 a law made by a State House of Assembly is applicable only to public records of that State. That neither tier can make law outside of the scope provided for in the Constitution. Counsel referred to the book “Federalism in Nigeria under the Presidential Constitution” written by Prof. B.O Nwabueze in which the learned author analyzed the provisions of items 4 and 5 of the Concurrent list and concluded that a law made by the National assembly on public records is not binding on the State and vice versa. Page 61 of the book was specifically referred to. Counsel therefore submitted 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. The case of Oyakhire v. Umar (1998) 3 NWLR (Pt. 542) 438 at 451 paras B–C was cited. In further argument, counsel pointed out that the doctrine of “Covering the field” is not applicable to the provisions of Part C items 4 and 5 of the Concurrent Legislative List. It was further contended by counsel that the provisions of the Freedom of Information Act, 2011 was meant to apply to the records of the Federation and not the States. The Court is referred to Section 150 of the Constitution of the Federal Republic of Nigeria which created the office of Attorney-General of the Federation and Section 195 of the Constitution which created the office of Attorney-General of the State. The case of A. G. of Ondo State v. A. G. of the Federation (2002) 9 NWLR (Pt. 772) 222 at 419 para A was relied on. Also referred to is the case of Hon. Minister for Justice & Attorney-General of Federation v. Attorney-General of Lagos State SC/340/2010 delivered on July 19th, 2013.
It was further contended that of Section 29 of the Freedom of Information Act, 2011 was made applicable to States, the implication will be that states are extension of the Federal Government. The case of EDOSACA v. Osakue & Ors. (supra) was again referred to, and the trial Court’s decision was further faulted.
It was further submitted that the respondent’s claims are declaratory which can only succeed on sufficient, cogent and credible evidence which must satisfy the Court. That the respondents woefully failed to discharge this burden. Cases cited include Emenike v. PDP (2012) 12 NWLR (Pt.1315) 516,Dumez (Nig.) Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361, Nruamah v. Ebuzoeme (2013) All FWLR (Pt. 681) 1442 para E.
The Court was therefore urged to resolve issue two in favour of the appellant and to allow the appeal.
For the respondent, arguing what he termed a lone issue, the respondent’s counsel submitted that Sections 1(2), 1(3), 2(4), 2(5), 2(6) and 2(7) of the Freedom of Information Act, and the entire provisions of the Act are clear and unambiguous, and therefore to hold otherwise will amount to defeating the natural intentions of the Legislature. It was submitted that the Freedom of Information Act, 2011 no doubt was enacted for everyone to access public information or record with no exception of any public institution. Counsel relies on the case of CBN & Anor v. PPDC Ltd/GTE (2018)LPELR–45856 (CA) page 9 paras C–D. It was further submitted that the information sought herein, which is the subject of contention are the documents referred to in Section 102 (1) (i) – (iii) of the Evidence Act. Counsel argued that the Act was intended to apply to both the Federal Government and State Government and wherever public information or records are kept. He points out that public record is listed in the Concurrent Legislative List, and therefore, he submitted, the Freedom of Information Act is binding on all the States of the Federation, including the Local Government Councils. It was further contended that there can be no mention of covering the field because the Edo State House of Assembly has not legislated on the Freedom of Information matters, and that it is where there is inconsistency between a law made by the National Assembly and the State Assembly on a matter on the concurrent list that the law made by the State Assembly will only be valid to the extent of its inconsistency with the law made by the National Assembly. That in this case where the Edo State House of Assembly did not make its law, the Freedom ofInformation Act is applicable in all the States of the Federation, Edo State inclusive. The Court is referred to Section 4(1)(A) of the 1999 Constitution (as amended). Counsel therefore submitted that since both the National and State Assembly can legislate on the subject matter, the doctrine of covering the field applies to the provisions of Part II, Paragraph C, items 4 and 5 of the 2nd schedule to the Constitution. He commended the dissenting judgment of this Court in the case of EDOSACA v. Osakue&Ors. (2018) LPELR–44157 (CA) pages 52–70 paras D–P to this Court.
Counsel proceeded to dwell on the first issue formulated by the appellant. On this issue, he conceded that the trial Court ought to have followed the decisions in cases like Mujakperuo&Ors. v. Ajobena&Ors. (2014) LPELR–23264 (CA) p. 31 paras A–C and Adejugbe&Ors. v. Adulojo&Ors. (2015) LPELR – 24916 (CA) pp. 14–18 paras D–B. He however submitted that the two cases – Martins Alo v. Speaker, Ondo State House of Assembly (supra) and EDOSACA v. Osakue&Ors. (supra) are decisions of this Court, and are thereforenot binding on this Court, but are only persuasive, and relied on the case of Olutola v. Unilorin (2004) LPELR–2632 (SC) pp. 26–27 paras F–A. Counsel also relied on the case of Ekpuk v. Okon (2005) LPELR–1097 (SC) pp. 17–18 paras B–D, to submit that this Court is empowered to look at the facts of this case in line with the various authorities in deciding this case one way or the other.
Counsel concluded by answering in the affirmative, the question whether the trial Court was right when it held that the respondent is entitled to the information applied for from the appellant under the Freedom of Information Act. He therefore urged the Court to dismiss the appeal.
The issues formulated by the appellants more accurately capture the appellants’ dissatisfaction with the judgment of the trial Court as expressed in their grounds of appeal. I will therefore adopt them as the issues for determination of the appeal.
RESOLUTION OF THE ISSUES:
ISSUE ONE
Whether by the doctrine of stare decisis, the learned trial Court was right to choose to follow the judgment of the Court of Appeal, Akure Divisionin the unreported case of MARTINS ALO VS SPEAKER, ONDO STATE HOUSE OF ASSEMBLY IN APPEAL NO. CA/AK/4/2017 in preference to the judgment of the Benin Division of the Court of Appeal in EDO STATE AGENCY FOR THE CONTROL OF AIDS (EDOSACA) VS OSAKUE & ORS (2018) 16 NWLR (PT. 1645) 199 when both cases were decided by the Court of Appeal with the former delivered on the 27th March, 2018 and the later on the 28th March, 2018.
The grouse of the appellants on this issue is the decision of the lower Court which, faced with two conflicting decisions of this Court chose to follow the decision that was earlier in time. Hear the learned trial Judge:
“We are thus faced with two conflicting judgments of the Court of Appeal, one decided by the Court of Appeal, Benin Division on 28th March, 2018 and the other by the Akure Division of the Court of Appeal on 27th March, 2018.
Where a lower Court is faced with two conflicting judgments of a Superior Court, while the inferior Court cannot sit on appeal over the decision of the superior Court, that Court is at liberty to make a choice between the two as to which to follow. See the following cases:
1.ONWUMELU v. DURU (1997) 10 N.W.L.R. (PT. 525) at 405-406;
2. FIRST BANK OF NIGERIA PLC v. LADGROUP LIMITED (2004) 14 N.W.L.R (PT. 893) 443;
3. ADEKANYE v. COMPTROLLER OF PRISON (2000) 12 N.W.L.R (PT. 682) 563;
4. EVANG v. OBETEN (1997) 11 N.W.L.R (PT. 528) 255;
5. EMECHETA v. OGUERI (1998) 12 N.W.L.R. (PT. 579) 502.
The judgment from the Akure Division of the Court of Appeal was delivered just one day before the judgment of the Benin Division and technically is earlier in time. While the judgment from the Akure Division was an unanimous decision, that of the Benin Division was a split decision of two to one. In the circumstances, I chose to follow the unanimous judgment of the Court of Appeal, Akure Division, in preference to the split judgment of the Benin Division of the Court of Appeal.
Having chosen to follow the unanimous judgment of the Akure Division of the Court of Appeal in the case of ALO v. SPEAKER, ONDO STATE, HOUSE OF ASSEMBLY (SUPRA), I hold THAT THE Freedom of Information Act applies to Edo State and that the claimant is entitled to the information applied for under the Freedom of Information Act 2011.”
I refer to pages 51–52 of the record of appeal.
In his submission on this issue, learned counsel for the respondent stated that by several decisions of Superior Courts, the Appeal Court and Supreme Court, he conceded that technically the Court ought to have followed the decisions in cases like Mujakperuo & Ors. v. Ajobena & Ors (2014) LPELR–23264 (CA) pp 3 paras A-C, and Adejugbe & Ors. v. Aduloju & Ors. (2015) LPELR–24916 pp. 14–18 paras D – B.
I shall try to see what was decided in those cases in order to see whether there can be any justification for calling on this Court to disregard the hallowed principle of stare decisis and to take a parallel view.
In the case of Mujakperuo&Ors. v. Ajobena&Ors (supra) p. 31 paras A–C, this Court held that where there are conflicts in the ratio of the decisions of the apex Court on two sets of decisions being considered, it is settled that the proper procedure is to follow the most recent decision on the subject matter.
My learned brother Ugo, JCA was more far reaching on the issue. I find his statement on the issue moreinstructive and forceful apart from the fact that he referred to some decisions of the Supreme Court on the issue. Though lengthy, I find the reproduction of his pronouncement worthy of the pain. In the case of HRM Oba R. A. Adejugbe&Ors. v. Chief Bamidele Aduloju&Ors. (2015) LPELR–24916 (CA), the learned jurist held:
“With due respect to learned senior counsel, I am unable to agree with him. I find it difficult to fault the course taken by the lower Court. I do not understand how that Court which is lower in hierarchy than this Court and so presumably less learned and bound to follow our decisions can decide which of two of our conflicting decisions is correct and which is wrong and then elect to follow the one he adjudges to have been correctly decided. If any Judge of the High Court is so knowledgeable to the extent that he can, without the better view of the Apex Court on the issue, to decide and/or Judge which of two or more conflicting decisions of this Court is correct and therefore binds him as suggested by counsel then his Court is no longer a Court ‘below’ this Court but above us. Besides, to properly do that such Judge willneed more than mere knowledge, he will also need a constitutional amendment that will give him that special status to Judge this Court and perhaps the Apex Court too from down below. While he awaits that impossible event, he might also need to pray fervently that he does not end up being the victim of his ‘knowledge’ and get branded a judicial rascal and/or ‘a misfit in the judiciary’ as was said by the Apex Court with reference to a trial Judge who dared to exhibit similar traits in Dalhatu v. Turaki(2003) LPELR-917. In any event, the true legal position is that a lower Court like the one in the instant case that finds itself faced with two clearly conflicting decisions of a Superior Court has no discretion in the matter, it has to follow the latter or more recent of the two. It is not something it can make a random choice. Even if it were to guess, the only way it can do that is to give reasons and pronounce one of the decisions to have been given per incuriam. Unfortunately, that he cannot also do as that is the prerogative of the Court that rendered the conflicting decisions. And therein lies the wisdom in the rule of stare decisis that enjoins a lowerCourt to take the easy and straightforward way out by following the more recent of two conflicting decisions of a higher Court, which positions also helps in ensuring predictability in the law for counsel in advising their clients on their legal rights. That foregoing position of stare decisis is now very well established in our jurisprudence as exemplified by the decisions of the Supreme Court in Okpozo v. Bendel Newspaper Corp. & Anor (1990) 5 NWLR (PT 153) 652 @ 661;Osakue v. F.C.E. (Tech.) Asaba (2010) 10 NWLR (Pt. 1201) and Obiuweubi v. Central Bank of Nigeria(2011) NWLR (PT 1247) 465 @ 501. In Osakue v. F.C.E. (Tech.) Asaba (2010) 10 NWLR (PT 1201) 1 @ 36 Ogbuagu J.S.C. dwelt exhaustively on this issue by saying that (1) a lower Court is bound only by the ratio decidendi of a higher Court and not its obiter dictum (see p. 34 para D of NWLR) and (2) a lower Court lacks power to declare a decision of a Higher Court to have been decided per incuriam as that privilege belongs exclusively to the Higher Court that handed down such decision in the first place: see pages 34-35 of NWLR. His Lordship then finally admonished that: “Those who think theyare very knowledgeable than this Court, if they have listening hears let them hear and take care. I have gone this far, because the learned Justices of the Court of Appeal in University of Ilorin v. Adeniran (supra), who claim to assert to be torn between the two judgments of this Court” should please take note and come to terms with the principles or doctrine of stare decisis, precedent and hierarchy of Courts, which are clear and unambiguous. They are an indispensable foundation. For the umpteenth time, where there appear to be conflicting judgments of this Court, the latter or latest will or should apply and must be followed if the circumstances are the same.” Emphasis mine. Adding his voice on the same point, Rhodes-Vivour J.S.C. also said in Obiuweubi v. C.B.N. (2011) 7 NWLR (PT 1247)465 at 508 that: “The position of stare decisis is not for counsel to follow the decision he likes but to follow the decision that is more recent.” See also the earlier case of Okpozo v. Bendel Newspaper Corp. & Anor (1990) 5 NWLR (PT 153) 652 at pages 661 & 663.”
Per UGO, JCA (Pp. 14-18, paras. D-B)
The position in this case was echoed in the followingcases:-
C.B.N. v. Zakari (2018) LPELR–44751 (CA) pp. 33–34 para E, Oji & Anor. v. Ndukwe&Ors. (2019) LPELR–48226 (CA) pp. 46–50 paras C–D.
The decision in these cases are so categorical and precise that there can be no legal justification for the refusal of the trial Judge to follow them. It would appear that the learned trial Judge found cover in following his own mind under the pretext that the difference in time between the earlier decision and the later decision which he chose to jettison was just one day, and that the later decision was a split decision. As a Judge, the learned trial Judge cannot feign ignorance of the fact that the decision of an appellate Court whether unanimous or split is the decision of the Court and binds the Court and all persons in similar cases that might come up for determination.
In my view, the refusal of the learned trial Judge to follow this time honoured judicial precedent is nothing short of judicial impertinence which I roundly deprecate. Issue one is therefore resolved in favour of the appellant and against the respondent.
ISSUE TWO
Whether thetrial Court was right when it held that the respondent is entitled to the information applied for from the appellant under the Freedom of Information Act.
In the case of EDOSACA v. Osakue&Ors. (2018) LPELR–44157 (CA) this Court held:
“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 public 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’s oversight responsibilityin 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 Attorney 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 behooves 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.”
Per OSEJI, JCA (Pp. 21-24, paras. D-C)
On pages 24–29 paras C–E, the learned jurist further held:
“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 respectto 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 toItems 4 and 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 theprovisions 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 ADEWUMI (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.”
Reading through the pronouncement of the learned Jurist, it can be seen and clearly understood that he went to great length and industry in analyzing the pertinent provisions of the Freedom of Information Act, 2011.
Learned counsel for the respondent has strenuously tried to impugn the reasoning of his Lordship in the above case. He submitted inter alia that the Freedom of Information Act was enacted to enable everyone to have access to public information or record with no public institution exempted. He relied on the case of CBN & Anor v. PPDC Ltd/GTE (2018) LPELR–45856 (CA) Page 9paras C–D. It was also the submission of counsel that because the Edo State House of Assembly has not made a law in this regard, the law made by the National Assembly by virtue of Section 4 (1) (A) of the 1999 Constitution of Federal Republic of Nigeria (as amended) is applicable in all the States of the Federation. These arguments are clearly not tenable.
The case of CBN & Anor v. PPDC Ltd/GTE (2018) LPELR–45856 (CA) cited by respondent’s counsel is not applicable in the instant appeal. The agency whose records were applied for is the Central Bank of Nigeria, an agency of the Federal Government to which the Freedom of Information Act applies. There is of course no disputation on the applicability of the Freedom of Information Act, 2011 to all public institutions of the Federal Government, which is what I understand the obiter dictum of the learned law Lord to have referred to. The need for counsel to relate the facts in cases they cite to the facts in the case in which the case is sought to be applied has been overemphasized. In the case of Izeze v. INEC &Ors. (2018) LPELR–44284 (SC) p. 16 paras A–B, it was held by the apex Court that a case is an authority for what it decides, and that relying on a case without relating it to the facts that induced it will amount to citing the case out of the proper context. See also Agrovet Sincho Pham. Ltd & Anor v. Dawaki & Ors.(2013) LPELR–20364 (CA) pp. 43–44 para E; Dairo v. Union Bank & Anor (2007) LPELR–913 (SC) pp. 40–41 paras F–C. If counsel had taken time to read the whole of this report, it would have been clear to him that this case is totally irrelevant to the issue in contention in this appeal.
Let me now confront the argument of counsel that because the Edo State House of Assembly has not made a law on the subject, the Freedom of Information Act 2011 is applicable in all the States of the Federation. How wrong! Once a matter is placed on the concurrent list, both the National and State House of Assembly can legislate on it. However, the power of the State House of Assembly is subject to that of the National Assembly, that is to say, the law made by the State House of Assembly will be valid to the extent of its inconsistency with the law made by the National Assembly. Relevant to the instant discourse is part II, paragraph C, items 4 and 5 in the 2nd schedule to the 1999 Constitution, 1999 (as amended). The said items 4 and 5 provides:
“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 thereof, make laws for the State or any part thereof with respect to archives and public records of the Government of the State.”
In the case of EDOSACA v. Osakue & Ors. (supra), the learned law Lord, Oseji, JCA (as he then was) (now of blessed memory) considered the above provisions, and particularly, Section 29 of the Freedom of Information Act, 2011 before he came to the conclusion that the Freedom of Information Act, 2011 though a commendable piece of legislation, does not have automatic application to the States, and that any state interested in adopting the provisions of the Act in its territory can set the machinery in motion for the enactment of a similar law by the House of Assembly of the State. I am in complete agreement.
It is against the background of the foregoing that I resolve issue two in favour of the appellants.
The two issues having been resolved in favour of the appellants, this appeal is meritorious, and is hereby allowed.
In consequence, the judgment of the lower Court delivered on 9th June, 2020 is hereby set aside, and the claims of the respondent are accordingly dismissed.
I make no order as to costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I have perused before now, the leading judgment of this Court just delivered by my learned brother, Abundaga, JCA., in this appeal and I wholly agree with his resolutions of the issues and conclusions reached therein.
Issue one deals with the doctrine of stare decisis in the face of two conflicting judgments of an appellate Court. To support the opinion already expressed by my learned brother, I wish to further refer to the case of Glaxo SmithKline Plc vs. Ali ZakariJiya LPELR (2014) -22902 (CA), per Orji-Abadua, JCA., where remarking on the position of the law where a lower Court is faced with conflicting decisions of a superior Court on an issue, I said thus:
“…It is an established principle of law that when this Court is faced with two conflicting decisions of the Supreme Court on an issue, this Court is bound to follow the latest. This is so because the Supreme Court has an inherent power to overrule itself. If the latest decision is in conflict with the earlier one, it follows that the latest decision has overruled the earlier one. See Dahiru vs. Kamale (2005) 9 NWLR Part 927 page 8; and Osakwe vs. FCE, Asaba (2010) 10 NWLR Part 1201 page 1 where it was then expressed that where there are two irreconcilable decisions of the Supreme Court, the subordinate Courts are enjoined to abide by the later decision. It has been variously expressed that Court of Appeal must accept and apply loyally, the decisions of the Supreme Court and where the decisions manifestly conflict, the latter decision is binding on the Court of Appeal. The Supreme Court in Saltzgitter Stahl GMBF vs. Tunji Dosunmu Industries Ltd (2010) LPELR-2999 (SC), per Chukwuma-Eneh, J.S.C., stated that it is a settled principle that where there are two conflicting decisions of the House of Lords, the House cannot be bound by both decisions; it is only fundamental that it is free to choose between the two decisions. In that case, and on that basis the apex Court preferred the Milangos’ case reflecting current judicial opinion in matters whether judgment sum can be given in foreign currency or judgment can be given in foreign currency.”
It follows therefore, that the High Court of Edo State was terribly wrong in applying the earlier decision of this Court to the matter before it rather than abiding by the latest decision handed down by the Benin Division of this Court. It had no right to choose between the two decisions. It is bound by the latest decision of the appellate Court. Even in the English decision referred to above, the House of Lords still preferred and followed its then current decision.
As for the second issue, it is clear in Part II of the Second Schedule to the 1999 Constitution of the Federal Republic of Nigeria as amended which deals with the Concurrent Legislative List defining the extent of the Federal and State Legislative Powers thereunder, Paragraph 4 of the same bequeathed powers to the National Assembly to make laws for the Federation or any part thereof with respect to the archives and public records of the Federation. Thenunder Paragraph 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 Freedom of Information Act, 2011, Laws of the Federation of Nigeria was enacted by the National Assembly of the Federal Republic of Nigeria for the Federation. It is contained in the laws of the Federation, 2011. What this postulates is that it is within the domain of the State House of Assembly to enact State Law relating to Freedom of Information Law of that State that will be applicable to the State. This has been exemplified by the Ekiti State Government that has already enacted its own Freedom of Information Law. It is discernible from paragraph 4 that the National Assembly is bequeathed with the power to make laws as it concerns the Government of the Federation pertaining to matters contained in the Concurrent List. The Constitution empowered both the National Assembly and the House of Assembly of a State to make laws in accordance with the provisions of the Constitution on the same matter but where there is conflict in the two laws, that of the Federal National Assembly shall be supreme. In the instant appeal, since there is a subsisting decision of this Court in Edosaca vs. Osakue (supra) confining the application of the Freedom of Information Act to the Public Institutions of the Federation, it is baseless overstretching the matter. Besides, Section 29(1) of the Act provides that on or before February 1 of each year, each public institution shall submit to the Attorney General of the Federation a report which shall cover the preceding year including those in (a)-(h). It is only the public institutions in the Federation that can make such submissions and none in the States can do that to the Attorney General of the Federation. I therefore, abide by the leading judgment of this Court.
ADEMOLA SAMUEL BOLA, J.C.A.: I am privileged to have read in draft, the judgment of my learned brother, JAMES GAMBO ABUNDAGA, JCA. I am in complete agreement with his decision. It is incisive of the issues fashioned out for determination and soluble resolution of same. I have nothing to add.
I abide by his conclusion and the consequential order made.
Appearances:
Appellants’ counsel duly served but not in Court For Appellant(s)
T. A. Akahomen For Respondent(s)
