By Basil Momodu

* A Critical Review of the Decision of Court of Appeal in EDOSACA v. Osakue & 8 Others Delivered On 28th Day Of March, 2018

I had the privilege of reading the judgment of the Court of Appeal in Edo State Agency for the Control of Aids (EDOSACA) v. Osakue & 8 Ors (Appeal No. Ca/B/469/2014) delivered by his lordship, Samuel Chukwudumebi Oseji, JCA on 28th day of March 2018.

I must commend the exceptional brilliance exhibited by his lordship in conceptual clarification of issues around the crucial constitutional question in controversy even when it appears the efforts led his lordship to a labyrinth of legal complexities.

The crucial issue for determination in the case was whether the Freedom of Information Act 2011, being an Act of the National Assembly applies to the public records of a State. In other words, whether the Respondents in the case can rely on the provisions of the said Act to demand for the release of some documents from the Appellant (EDOSACA).

In the resolution of this crucial issue the court, purportedly drawing strength from section 4(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), held that Freedom of Information Act, 2011 does not apply to the public records of Edo State Government as it is a Federal Act not meant to cover the field. The court said:

…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 clash of interest in legislation that the law made by the State Assembly shall give way to that made by the National assembly …

Illustrating the point, his lordship gave an analogy using the Administration of Criminal Justice Act in relation to its State counterparts when he said:

…the Freedom of information Act, though a noble and worthwhile piece of legislation, does not have automatic application to the states…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…Administration of Criminal Justice Act.

But what would have happened if, for instance, a state assembly in a state like Lagos had failed to enact the Administration of Criminal Justice Law and there is no such law on crime? Is his lordship suggesting that the Administration of Criminal Justice Act, 2015 would have been in abeyance, made inoperative and watch Lagos descend into anarchy and lawlessness until the State Assembly wakes up from its legislative slumber? That will be against the spirit of the Constitution. Section 14 of the Constitution says: “The security and welfare of the people shall be the primary purpose of government.”

In my humble view, his lordship erroneously interpreted section 4(5) of the Constitution. Courts are enjoined to adhere to the principles upon which the Constitution was established, rather than the direct operation or literal meaning of the words used because the principles upon which the Constitution is established measure the purpose and scope of its provisions. Words of the Constitution are therefore not to be read with stultifying narrowness. See A. G, Federation v. Atiku Abubakar (2007)10 NWLR (pt.1041) p.1; (2007 – 2010) 4 LLRN p. 1832, at page 1888. A Constitutional provision should not be construed in such a way as to defeat its evident purpose.

It also important to note that section 4(5) used the words: “If any law enacted by the House of Assembly is inconsistent…” this clearly shows that a law made by the State House of Assembly on a subject matter already enacted upon by the National Assembly is a mere surplusage that needs not be enacted at all in the first place. However, Niki Tobi JSC showing why such surplusage may be necessary in INEC v. Balarabe Musa 2003)3 NWLR (pt.806) 72; (2002 – 2003) vol. 2 LLRN p. 822, at page 886, said:

A State law which is not necessarily inconsistent with either the Constitution or an Act of the National Assembly but merely covers the legislative field of the National Assembly is not that harmful as it is merely a surplusage. In line with the decision of Eso, JSC, in Attorney-General of Ogun State v. Federation (1982) 3 NCLR 166, such a law of a State House of Assembly is in abeyance and inoperative and could be revived and becomes operative if for any reason the Federal legislation is repealed.

The foregoing proposition of Justice Niki Tobi represents a very important aspect of the doctrine of covering the field which his lordship did not consider in the case under review. In my opinion his lordship, in the case under review, interpreted section 4(5) of the Constitution to achieve an unconstitutional result in that the Freedom of Information Act, 2011 applying to States is in tune with the spirit of the Constitution. Section 15(5) of the Constitution provides that the State shall abolish all corrupt practices. Any law that seeks to enthrone transparency and accountability in public business is in tune with the spirit of the Constitution and such laws are better made by the National Assembly.

In  A. G., Ondo v. A. G., Federation Att. Gen. Ondo State v. Att. Federation (2002) 9 NWLR (pt. 772) 222 at 408-409; (2002)99 LRCN 1329; (2002 – 2003) 2 LLRN p. 609 at p. 720, para 20-25, the Supreme Court said:

Where a subject-matter in its manifestation spreads across the States and even over the borders of Nigeria and is such that is best suited for legislation by the National Assembly upon a liberal construction of all relevant provisions of the Constitution, a legislation thus made cannot be said to be an interference with the affairs of the States just because it is made applicable all over the Federation.

His lordship should have taken a clue from what the Supreme Court did in the A.G., Ondo’s case (supra). In that case the Corrupt Practices and other Related Offences Act 2000 was facing similar challenges being an Act of the National Assembly made to apply to States. Uwais , CJN said in that case thus:

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 provision 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 provision of section 13 thereof applies 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.

The duty imposed by section 13 of the Constitution which was considered by the Supreme Court in the foregoing case to hold that the Corrupt Practices and other Related Offences Act 2000 applies to States extends to Freedom of Information Act, 2011 which is also by nature an anti-corruption legislation and more so in the case under review in view of the nature of documents requested by the Respondents. It is also important to state that the argument that the Act specifically mentioned the office of the federal Attorney General and other federal agencies is lame in that the States have the equivalents of these agencies.

As said earlier, his lordship laid a faulty premise that led the court to a wrong conclusion when, in laying foundation to address the crucial question in the case, delved into complex, conceptual and constitutionally demystified issues of federalism and State legislative autonomy. In F.R.N. v. Chief Adebiyi Olafisoye (2004 – 2007) 3 LLRN p. 1011. (At page 1053, para 15-20], the court said:

The concept of state autonomy is not after all as sacrosanct as has been impressed on the court. The concept will, in appropriate situations, bow to the overall sovereignty of the federal government, a sovereignty which presents its head clearly in section 4(1)(2)(3)(4) and (5) of the Constitution in the major area of legislation.

What his lordship failed to realise is that there is no ideal federalism. Ideal federalism is utopian. Nations adopt systems that work for them and Constitutions are interpreted liberally to achieve desired results. In the same vein, the Constitution of the Federal Republic of Nigeria deserves to be so interpreted to promote the best democratic ideals. The Constitution is an organic scheme of government to be dealt with as an entirety; a particular provision like section 4(5) cannot be dissevered from the rest of the Constitution and interpreted out of context.

It is also important to note that though the language of the Constitution does not change but the changing circumstances of a progressive society for which it was designed yield new and fuller import to its meaning. See A. G, Federation v. Atiku Abubakar (2007)10 NWLR (pt.1041) p.1. Governments now tend to practice a system that guarantees and advances good leadership and best democratic ideals. In F.R.N. v. Chief Adebiyi Olafisoye (supra) the court said:

  Ideal federalism or true federalism is different from specific or individual federal constitutions of nations, which may not be able to achieve the utopia of that ideal federalism or true federalism but which in their own sphere are called federal constitution. I think Nigeria falls into the latter category or group. It will therefore be wrong to propagate theories based on ideal or true federalism in a Nation’s Constitution which does not admit such utopia.

I think it is also important to state the relevant provisions of the Constitution and the Freedom of Information Act, 2011 for the benefit of the reading public, for convenience and clarity. Section 4 of the Constitution provides:

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.

4(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 Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution.

4(3) The power of the National Assembly to make laws for 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 this Constitution, be to the exclusion of the Houses of Assembly of States.

4(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-

  • any matter in the Concurrent Legislative List set out in the first column of Part II of the Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
  • any other matter with respect to which it is empowered to make laws in accordance with the provision of this Constitution.

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.

Section 1(1) of the Freedom of Information Act, 2011grants right to any person to access or request information…in the custody or possession of any public official, agency or institution howsoever described.

The “public records” in respect of which the National Assembly enacted the Freedom of Information Act, 2011 is contained in the Concurrent Legislative List and by virtue of section 4(4) of the Constitution, is a subject over which the National Assembly has legislative competence as well as the State Houses of assembly.

The dissenting judgement of Adumein JCA in the case under review is refreshingly consolatory. I was particularly proud when he said:

…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 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 will be kept in abeyance and “will not be operative.”

The Freedom of Information Act, 2011is an important piece of legislation. This was also acknowledged by the court in the case under review. Also in Martin Alo v. Speaker Ondo State House of Assembly (Appeal No: CA/AK/4/2017) where the Act was held applicable to all States within the Federation, the Court of Appeal, Akure Division said:

Looking at the long title of the Freedom of Information Act, 2011…it could be deduced therefrom that the National Assembly’s intention is to regulate access to ‘Public Records’. The Act was enacted by the National Assembly in exercise of its legislative powers pursuant to S. 4(1), (2) and (3) of the 1999 Constitution. It is therefore constitutional.

In conclusion, irrespective of what the Supreme Court would hold if the matter goes on further appeal, it is my humble view that the judgement is a major setback in the global campaign for probity, accountability and transparency in the running of affairs of government and it does not portray the Nigerian judiciary to the entire world as a veritable arbiter of democratic ideals.

 Basil Momodu Esq., lindabasil@yahoo.com

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