Page 1 of Eg, see Transparency International, The Corruption Perceptions Index

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1 Control, Transparency & Accountability in Public Spending in Nigeria: Judicial Enforcement of the FOI Act thus far A Beacon of Hope? By Uzuazo Etemire* 1.0 INTRODUCTION & BACKGROUND Financial corruption in the public sector, broadly speaking, has to do with the negligent or deliberate misappropriation of public funds, the unlawful solicitation or receipt of funds for public goods and services, or the unauthorised and illegal diversion of public funds for private use. Over the years, it has become a plague that has eaten deep into the fabrics of governance in Nigeria, such that government at the various levels have, in general, largely failed to deliver on their social contract with the populace. Commenting on the persistent and cancerous nature of financial corruption within the public sector in Nigeria, Alhaji Shehu Musa, the Secretary to the Federal Government of Nigeria in the Second Republic, aptly noted that the scary fact in Nigeria was not just that officials were corrupt, but that corruption was official. 1 And this view is largely supported by the continuous ranking of Nigeria on Transparency International s 2 Corruption Perception Index as one of the most corrupt nations in the world. Drawing on its very nature, a notorious avenue for financial corruption in the public sector in Nigeria is the area of public spending. For example, issues such as contract inflation, unauthorised and illegal expenditure of public funds, expenditure of public funds without compliance with established due process, expenditure of public funds contrary to the purpose of its authorised release, nepotistic award of contracts or public spending and the likes, all relate to corruption in public spending the kind of which has greatly contributed in impoverishing the nation and its populace. However, beyond the issue of explicit corruption in public spending, public spending in compliance with the law in the books and established due process may yet be of such a thoughtless, immoral and publicly reprehensible manner. This is especially so when viewed in light of the relatively poor economic condition of a nation like Nigeria and its lack of, and need to invest in, basic amenities like power, pipe borne water, roads, adequate housing, and the likes, not to mention the development of its human resource. Thus, apart from the ago-long and sometime rhetorical war against corruption (in public spending), voices have recently been raised against such lawful but morally questionable and, arguably, economically unsound and destructive public spending. For instance, the former Central Bank of Nigeria (CBN) Governor, Sanusi Lamido Sanusi, once stirred the hornet s nest * LLB (Benin), BL, LLM (Nottingham), PhD (Glasgow), FHEA (UK); Lecturer I, Faculty of Law, University of Port Harcourt, River State, Nigeria; uzuazoe@yahoo.com and uzuazo.etemire@uniport.edu.ng 1 A Esan, David-West: Nigeria Needs Good Leaders, Not a New Constitution, National Mirror (Lagos,29 August 2012) < accessed 3 May, Eg, see Transparency International, The Corruption Perceptions Index (1998) < 3 May, 2016; and Transparency International, Corruption Perception Index (2012) < accessed 3 May, Page 1 of 17

2 when he revealed for the first time that the National Assembly had an overhead expenditure which constituted a monstrous 25% of the total federal government overhead in Seemingly embarrassed by the disclosure, the National Assembly, as it appeared, unsuccessfully tried to controvert the figures. 4 Similarly, partly based on the remuneration approved by the Revenue Mobilisation, Allocation and Fiscal Commission (RMAFC), it has been reported that annual salaries and allowances (some of which figures have remained unknown) for the 469 lawmakers in the National Assembly run into several hundreds of millions of naira per lawmaker 5 a lot higher than what their counterparts in much richer, developed countries earn. 6 And it is noteworthy that this fairly recent revelation has forced a level of debate, even among the federal lawmakers and other government officials, for all such extravagant emoluments to be drastically reduced. 7 To be sure, such exorbitant and arguably unjustifiable public expenditures which are by no means limited to the National Assembly but are spread across the various branches of the public sector have over the years enraged the Nigerian public, many of whom struggle to survive with the paltry government-approved 18,000 minimum wage, 8 and most of whom live in absolute poverty according to the National Bureau of Statistics. 9 Some of such expenditures are only known many times after public pressure and diligent investigative journalism. However, a lot more go on undiscovered in the dark and behind closed doors which constitute the ideal environment and breeding ground for unwholesome and arbitrary public spending to thrive. For as the Holy Bible puts it in the book of John chapter 3 verse 19, light is come into the world, and men loved darkness rather than light, because their deeds were evil. To a large extent, this, sadly, has been the case in the Nigerian public sector with regards to public spending. Hence, whether the aim is to check brazing corruption in public spending or to moralise and modulate it in line with economic realities and pressing basic needs of the nation, from the above, it is quite clear that the need for a Freedom of Information (FOI) regime that helps entrench transparency, accountability and control in the public sector is key. Stiglitz, stressing the need for transparency in democratic processes, opines: [h]ow can citizens meaningfully express their voice 3 The Federal Government s Medium Term Expenditure Framework (MTEF) and Fiscal Strategy paper shows that overhead budget for 2010 was bn, of which the National Assembly got 136,159, or 25% of the total sum. T Abba, Sanusi: Too Tough to Handle, Daily Trust(Abuja, 5 December, 2010)< accessed 3 May, J Ajani, B Agande and L Binniyat, National Assembly Overhead: When Figures Don t Lie, Vanguard(Lagos, 4 December, 2010) < accessed 3 May, J Olufemi and R Akinwumi, Without the Illegal Allowances, these are what your Senators, Reps Earn, Premium Times (Abuja,18 August, 2018) < accessed 3 May, Abba (n 3). 7 See T Usman, Nigeria to Cut Senators, Reps Jumbo Pay as Buhari Fumes, Premium Times(Abuja, 25 August, 2015)< 3 May, 2016; and M Ahmed, Reps-elect Demands 50% Pay Cut for Buhari, Lawmakers, others, Premium Times(Abuja, 4 May, 2015)< accessed 3 May, National Minimum Wage (Amendment) Act, 2011, s 2, < 3 May, Absolute poverty refers to those who can scarcely/only afford the bare essentials of life. National Bureau of Statistics, Nigeria, Nigeria Poverty Profile 2010, January 2012, 10 and 14< accessed 3 May, Page 2 of 17

3 about what the government is doing if they do not know what the government is doing? And how can they check government abuse?... As the old expression has it, Sunshine is the greatest antiseptic. 10 In this connection, according to Obe, FOI law provides the necessary disinfectant of sunshine that will not only deter much would-be corrupt activities, but detect any such with ease and enable the public hold public officials to account on similar objectionable practices in government. 11 Thus, considering that Nigeria enacted its FOI Act 12 on 24 May 2011 about 5 years ago the time, indeed, is ripe to begin inquiries about the extent to which this law, as it should by nature, is contributing to ensuring accountability and transparency in the public sector, particularly in the area of public spending. This assessment is what this paper is primarily about, especially from the perspectives of: how the provisions of the Act are being enforced by civil society through the courts in order to achieve the goals ofaccountability and transparency in public spending; the general response of the court so far; and, from general observations of its enforcement thus far, what more can be done to further exploit its potency in this regard. To set the stage for this analysis, the next section will briefly clarify the background and content of the FOI Act. 2.0 The FOI Act, 2011: Background, Origin and Content Before the formation of Nigeria in 1914 by the British colonialists, mechanisms for control, transparency and accountability in the administration of public resources constituted an integral part of governance in many of the nation-states and societies both in the Northern or Southern regions that make up Nigeria. 13 For example, lending credence to this point, the Yoruba system of government then has been defined as a monarchical democracy which involved many checks and balances eloquent of a long, studied evolution, 14 while its Igbo counterpart has been noted to have adopted a system of governance where democracy was direct and real ; 15 of which transparency and accountability are fundamental components of a democracy. However, upon the arrival of the British colonialists and their formation of Nigeria, they eroded this relative openness in governance and a culture of official secrecy was foisted on the entire nation especially via the promulgation of the Official Secrets Act the legislative expression of the British tradition of secrecy dating back to Apparently, this was done with a view to keeping the public in the dark and denying them the capacity to hold the colonial government to account as it economically exploited the nation and appropriated its resources for the benefit of their homeland. 17 Thus, it is quite clear that secrecy and offensive and corrupt appropriation of public resources are birds of a feather that have always fluked together. 10 A Florini, (ed), The Right to Know: Transparency for an Open World (New York: Colombia University Press, 2007) Foreword, vii. 11 A Obe, The Challenging Case of Nigeria, in A Florini, (ed) (n 10) 143, Federal Republic of Nigeria Official Gazette No 36 Vol 98 (2011). 13 See EE Osaghae, Crippled Giant: Nigeria since Independence (London: Hurst & Co Publishers Ltd, 1998) 2. See generally, T Falola and MM Heaton, A History of Nigeria (New York: Cambridge University Press, 2008). 14 W Ademoyega, The Federation of Nigeria from Earliest Times to Independence (London: George G. Harrap & Co, 1962) and Ibid, Obe (n 11) See PN Nwokolo, The Nigerian Press and the Law of Sedition: A Progressive Interpretation (2012) 23 (1) Review of Education 201, 217. Page 3 of 17

4 At the turn of Independence in 1960, official secrecy as majorly introduced by the colonialists, was further entrenched by successive military administrations and maintained by several civilian governments through, among other, theofficial Secrets Act of 1962, 18 thus, helping to cultivate financial corruption and inappropriate public spending in Nigeria in greater measures. And in practical terms, the draconian effect of this Act was such that: Virtually all government information in Nigeria is classified as top secret...the level of secrecy is so ridiculous that some classified government files contain ordinary information like newspaper cuttings which are already in the public domain... So impenetrable is the veil of secrecy that government departments withhold information from each other... There are also instances where civil servants refuse to give the National Assembly documentation after being asked to do so. 19 This, however, was the case until the FOI Act was enacted in 2011 with the potential to serve as a framework for the empowerment of Nigerians by institutionalizing transparency and accountability as pillars of governance in Nigeria. 20 This position tallies with that of the Information Commissioner of Canada which is instructive here: The annual cost of administration [of the Canadian Access to Information Law] is some $20 million by a generous estimate. That is a bargain for such an essential tool of public accountability. The law pays for itself in more professional, ethical and careful behaviour on the part of public officials who must now conduct public business in the open. 21 Largely, the FOI Act marked the end of a century of legalised official secrecy in Nigeria. It makes public records and information more freely available, provide for public access to public records and information, protect public records and information to the extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences for disclosing certain kinds of official information without authorization and establish procedures for the achievement of those purposes 22 within defined limits. Importantly, the Act immediately applies to all tiers and arms of government. 23 It also generally supersedes the Official Secrets Act, as it guarantees the public right of access to information [n]otwithstanding anything contained in any Act, law or regulation. 24 Specifically, the FOI Act contains 32 sections. Among others, it provides for the right of the public to access information held by public institutions upon request, within a stipulated timeframe, without demonstrating any interest in the information sought; 25 it obliges public institutions to maintain updated records of their activities and businesses, including information about their expenditure of public or other funds of the institution and salaries of its employees, and cause 18 Cap 335, Laws of the Federation of Nigeria, S Olukoya, 'Rights-Nigeria: Freedom of Information Bill Proves Elusive', Inter Press Service (Rome, 21 June 2004< 3 May, PK Inokoba, Freedom of Information Act and Democratic Consolidation in Nigeria: Prospects and Challenges (2014) 3 (12) International Journal of Development and Sustainability Information Commissioner of Canada, Annual Report , 9. (Emphasis added). 22 FOI Act, Long Title. 23 See Yomi Ogunlola & 1 Or v Speaker, Oyo State House of Assembly, Unreported, Suit No. M/332/12, 31 October, 2013; Major Gen. India Garba (rtd) v Accountant General of Benue State of Nigeria, Unreported, Motion Nos. MHC/2564mm/12 and MHC/811m/14, 26 May, 2014; and CA Odinkalu, Myths About the FOI Act, Right To Know, 25 August 2011< accessed 3 May, See FOI Act, ss 1(1), 28 and 30(2). (Emphasis added.) 25 See ibid, s 1. Page 4 of 17

5 such to be published in the public domain through online or other sources, such that they are readily available to the public without them having to make a request. 26 Furthermore, it places these obligation to ensure public access on public institutions which it uniquely defined to include traditional government institutions and private bodies providing public services, performing public functions or utilizing public funds ; 27 in order to protect privacy, national security, legitimate commercial interests among others, it provides for exemptions to the public access rights; 28 and an Applicant who has been denied access to information may apply to Court for a review of the matter and to enforce compliance with the Act in a summary way, 29 among other provisions. Yet, despite the relatively impressive provisions of the FOI Act and its potentials, to Neuman, [i]f there is a widespread belief that the access to information law will not be [adequately] enforced, this right to information becomes meaningless. 30 In view of this, specifically, to what extent has the FOI Act been enforced through the courts in order to open up government and improve accountability in the area of public spending? And what has been the response of the court and the relevant public institutions? It is to this we now turn. 3.0 Judicial Enforcement of the FOI Act in the area of Public Spending If the subheading of this section were simply Judicial Enforcement of the FOI Act without any reference to in the area of Public Spending, it would make no difference to the substantive discussion to be undertaken hereunder. This is because, coincidentally, the majority of litigation aimed at enforcing the FOI Act, seemingly concern issues of accountability and transparency in public spending. The reason for this is not farfetched, and is in fact support by the informed but brief observation of the African Freedom of Information Centre to the effect that: A sampling of the FOI requests reveals that a major focus of the demands has been on the fiscal behaviour of government, public officers and public institutions generally. There have been varied reactions by public institutions to requests for information that range from outright refusals with no reason given to delays in granting requests. These unsubstantiated refusals have led to the institution of legal proceedings to compel such public institutions to grant requests for access to information. 31 In this connection, effort will now be made to appraise some relevant cases on the subjectmatter in order to generally evaluate how the FOI Act has been utilised through the courts in the mission to ensure accountability and transparency in public spending. And the first set of cases analysed hereunder are those recording victories, where the court ordered disclosure to requested information, and the next set of cases would be those in which the court denied access to required information. 3.1 Judicial Orders Compelling Disclosure In the case of Public & Private Development Centre Ltd/Gt v Power Holding Company of Nigeria (PHCN) Plc & Hon. Attorney General of the Federation, 32 the facts are such that PHCN in See ibid, s See ibid, s See ibid, ss See ibid, ss 1(3), 20 and L Neuman, Enforcement Models: Content and Context (Washington DC: World Bank, 2009) African Freedom of Information Centre, State of Right to Information in Africa Report 2014 (September, 2014) Unreported, Suit No. FHC/ABJ/CS.582/2012, 1 March, Page 5 of 17

6 conducted a public procurement exercise involving the award of contract for the supply and installation of 300 No.1/KV 500A on load sectionalizers at various locations in Nigeria. The Applicant pursuant to its right of access under the FOI Act applied to the 1 st Respondent for copies of the documents and information relating to the procurement exercise, including the bid evaluation report, letters of award of contract, procurement contract sum, and payment terms and schedule. The request was refused and the Applicant pursuant to ss 1, 33 and 2(6) and 20 of the FOI Act, 34 among others, prayed the court to declare the refusal as wrongful under the FOI Act and order the Respondents to furnish the Applicant with the requested information. Although the 1 st Respondent opposed the granting of the Applicants request based on the exemption in s 15(1)(b) of the FOI Act, 35 Justice A.F.A Ademola, the trial judge, held that same did not avail the 1 st Respondent, especially as negotiations and award of the contract had been concluded before the request. Thus, the prayers of the Applicant were granted. The same applicant in a different case Public & Private Development Centre LTD/GT v The Hon. Minister of the FCT & others 36 prayed the court for a similar declaration and order. In this case, the Respondent had engaged the services of private companies to ensure a controlled parking scheme and collect parking tolls from motorists within some parts of the Federal Capital Territory (FCT) on its behalf. A request by the Applicant for information pertaining to the number and identity of companies engaged for this purpose, the terms of the engagement, the statement of account showing remittances made by the companies from inception of their engagement to date, among others, received no response from the 1 st Respondents while the 2 nd Respondent promised to furnish the Applicant with the required information but never did. This, indeed, is contrary to s 7(4) of the FOI Act which provides that: [w]here the government or public institution fails to give access to information or record applied for under this Act or part thereof within the time limit set out in this Act [i.e. within 7 days of receipt of the application for information as provided in section 4], the institution shall, for the purposes of this Act, be deemed to have refused to give access. Thus, the Respondents haven tried unsuccessfully to rely on an exemption under the FOI Act to deny access to the Applicant, the court held in the Applicant s favour. It ordering the Respondents, jointly and/or severally, within 21 days from the date of the judgement, to grant the Applicant all the information and/or documents requested. Related to the latter case, in Public & Private Development Centre LTD/GT v Integrated Parking Services Ltd, 37 the Respondent company failed to respond to the Applicant s request for information, namely, on how much the Respondent had so far realized and remitted since the engagement of its services by the FCT administration, the terms of the Respondent s engagement by the FCT administration and how much accrues to the Respondent from this engagement, among others. Having satisfied himself that the Respondent owed an obligation to disclose to the Applicant the information requested by virtue of ss 2(7) and 31 under which public institution is defined to include private bodies providing public services or performing public functions, among 33 On the public right of access to records. 34 Both on the right of information applicants to judicial review and to institute proceedings in the court to compel any public institution to comply with the provisions of this section. 35 This section provides that: Public institution shall deny an application for information that contains - (b) information the disclosure of which could reasonably be expected to interfere with the contractual or other negotiations of a third party. 36 Unreported, Suit No. FCT/HC/CV/M/3057/13, 30 January, Unreported, Motion No. M/3059/13, 9 July, Page 6 of 17

7 others, Justice O.A. Adeniyi declared the denial of information as a violation of s 1 of the FOI Act and ordered it to furnish the Applicant with the requested information. Furthermore, in Garba v Vandeika Local Government Area Council, 38 the Defendant neglected to supply the information requested by the Plaintiff which includes information of its expenditure of its revenue. Thus the Plaintiff filed an action praying the court to: declare the Defendant s refusal to grant his request a violation of s 4(a) and (b) of the FOI Act that provides for 7 days as the time limit for granting or refusing applications for information; order the release of the said information to the Plaintiff; and order the Defendant to pay a fine of 500, in line with s 7(5) of the FOI Act for wrongful denial of the Plaintiff the right of access to the information sought. The case of the Plaintiff succeeded with Justice D.M. Igyuse ordering the Defendant to furnish him with the requested information within 14 days from the date of judgement as well as pay the aforementioned fine being found guilty of wrongful refusal of access to information. Another notable victory for information access right was recorded in Uzoegwu v Central Bank of Nigeria (CBN) & others. 39 In this case, the Applicant requested for information detailing the amount payable to the Governor, Deputy Governor and Directors of the CBN. And when the 1 st Respondent neither replied his request nor furnished him with the required information within the timeline provided for by s 4 of the FOI Act, he filed the present suit.the Respondents submitted that the reason for refusing to grant the Applicant s request, among others, was that the required information is personal information and therefore exempted from disclosure. However, the plaintiff urged the court to discountenance their argument on the ground that s 2(3)(d)(vi) and (4) of the FOI Act provides that public institutions shall publish and widely disseminate information or documents containing the names, salaries and titles, among others, of all employees of the institution. Upholding the argument of the Applicant, Justice B.B. Aliyu, the trial judge, held that the denial of information was contrary to the FOI Act, and thus ordered the 1 st Respondent to furnish the Applicant with the required information within 14 days of the judgment being delivered. Similarly, in Legal Defence & Assistant Project (Gte) Ltd v Clerk of the National Assembly of Nigeria, 40 the Applicant requested for details of the salary, emolument and allowances paid to all members of the House of Assembly and the Senate both of the 6 th and 7 th Assembly. This request made to the Respondent was denied, upon which the Applicant brought an action for wrongful denial against the former. The Respondent brought a preliminary objection claiming that the suit is incompetent considering that its mode of commencement is alien to the Federal High Court (Civil Procedure) Rules The court disagreed with this argument on the ground that a combined reading of s 20 and 21 of the FOI Act shows that such an application can be summarily heard and determined without strictly applying the rules of procedure of the court with respect to judicial review. Holding in favour of the Applicant, Justice C.B.B. Aliyu, the trial judge, ordered the Respondent to disclose to the Applicant within 14 days of the judgement details of the information sought Unreported, Suit No. VHC/20/2012, 31 October, Unreported, Suit No. FHC.ABJ/CS/1016/2011, 5 July, Unreported, Suit No. FHC/ABJ/CS/805/11, 25 June, However, the judgement was appealed by the Respondent to the Court of Appeal, and as at the time of writing this paper, the status of the appeal is unknown. Page 7 of 17

8 What s more, the case of Public & Private Development Centre Ltd/Gt v National Agency for Food and Drug Administration and Control (NAFDAC) & others, 42 offers further insight on the potency of the FOI Act for ensuring access to information. In that case, the Applicant s request made to the Respondents for copies of Financial Evaluation Report by the tender s Board approving the winning bidders for certain specified projects, the contract sum and conditions, the level of progress made on the projects and schedule of payments for the projects, among others, was denied. Thus, the Applicant prayed the court to declare the denial as wrongful under the FOI Act, and order the Respondents to furnish it with the required information. In response, the Respondents asked the court to strike out the suit especially on the ground that the Applicant failed to fulfil a condition precedent before commencing the action, i.e. non-service of a month s pre-action notice on the Respondents as required by s 27 of the NAFDAC Act, Upon hearing arguments from both parties on the issue and thereupon granting the Applicants reliefs the court rightly resolved as follows: [O]n the provisions of section 20 of the FOI Act 43 against section 27 NAFDAC Act the court agrees with the Applicants Counsel... and further agrees that a pre-action notice in this case would operate to deny the Applicants of the right of access to court as the time of 30 days duration would have elapsed and the time allowed an Applicant under the FOI ACT to seek redress would have elapsed the same day causing the Applicant to loose his right of action under the FOI Act. The court further opines that the principle of generalitus derogant (special things derogate from general things) should apply in this circumstance. This is to say the specific legislation of the [FOI] Act overrides any other general law including the NAFDAC Act. See: (1) Madu Mere vs Okwara 2013 LPELR (2) A.G. Ogun v A.G. Federation 2003 FWLR (pt 143) 246 (3) Edet Akpan v State NWLR (pt 27) 25. Furthermore, on interpretation of statute in the 11 th Edition of Maxwell at page 164 it is stated that where a general interpretation is expressed (as in 30 day preaction [sic] notice stipulated in the NAFDAC Act) and also a particular intention which is incompatible with the general intention of the law (as in the [FOI] Act requiring an action to be commenced in 30 days) the particular intention is considered an exception to the general rule. See: Aqua Ltd vs Ondo State Sports Council NWLR (pt 91) 622. From the forgoing paragraphs, [the present issue] is resolved in favour of the Applicant, as the arguments of the Defendant are untenable in law. 44 The above reasoning of the court is arguably correct. To further support the argument, it is necessary to reproduce s 1(1) of the FOI Act: Notwithstanding anything contained in any other Act, law or regulation, the right of any person to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution howsoever described, is established. 42 Unreported, Suit No. FHC/ABJ/CS/760/13, 15 December, It provides that [a]ny applicant who has been denied access to information, or a part thereof, may apply to the Court for a review of the matter within 30 days after the public institution denies or is deemed to have denied the application, or within such further time as the Court may either before or after the expiration of the 30 days fix or allow. 44 N 42 above, Page 8 of 17

9 The above provision places the right of a person to access information above anything contained in any other Act, such as s 27(1) of the NAFDAC Act that requires a month s pre-action notice. This is because compliance with this s 27(1) would rob the Applicant of his/her right to approach the court to give effect to his/her right of access to information, considering that s 20 of the FOI Act only gives the information applicant a right to approach the court for judicial review within 30 days of denial of the Applicants information request. This point is particular so, considering that this right of access to court is inherent in, based on, and generally supportive of the right of any person to access information which s 1(1) of the FOI Act establishes above the content of other laws. (And it does not matter that under s 20 the FOI Act the court may still allow the application after 30 days of information denial, because this possible allowance is at the discretion of the court and not a right of the Applicant which is what is protected in s 1(1).) Thus, the court, with all due respect, arguably misdirected itself when it refused to give effect to a similar argument made by the Counsel for the Applicant, stating that section 1 of the FOI Act as rightly argued by the Defendant, contemplates access of [sic] records held by agencies and not access to the law court [which the issue of pre-action notice concerns] Judicial Orders Denying Disclosure In a number of cases, the court has denied the Applicants access to the information they unsuccessfully sought to acquire from public institutions. In the case of Congress for Progressive Change (CPC) v Independent National Electoral Commission (INEC), 46 the Plaintiff s request for access made to the Defendant for information on the detailed, comprehensive and fair statement of accounts of expenditure incurred by INEC for the conduct of the general elections of April 2011, a list of contractors awarded contracts concerning printing of ballot papers, voters card and other documents concerning the 2011 general elections, among others, was denied. Thus, the plaintiff approached the court for a declaration that the refusal amounted to a violation of several provisions of the FOI Act, and an order directing the defendant to grant it access to the information required, among others. However, the Defendant s Counsel urged the court to strike out the suit for want of jurisdiction majorly on the ground that the information (of April 2011) sought by the plaintiff, void of contention, predated the enactment of the FOI Act, (May) 2011, which law cannot be made to operate retrospectively since the Act contains no clear and express provision indicating its retrospective application. Disagreeing with this position, the Plaintiff s Counsel submitted that it is trite that the law or statute in force when the cause of action arose is the applicable law which in this case is the FOI Act and any change(s) to the law will not affect the accrued rights and obligations unless same is made retrospective. He further argued that the plaintiff s cause of action accrued on 22 November 2012, thus the FOI Act, 2011, is applicable, especially as public information or records in existence before the enactment of the FOI Act is contemplated by virtue of s 31 of the Act. The trial judge, Justice A.F.A. Ademola, unfortunately, agreed with the submission of the Defendant s Counsel and held that that Plaintiff s claim is not cognisable under the FOI Act and that it lacks the locus standi to institute the suit. It is here submitted that the court s application of the non-retrospective effect principle is, with due respect, flawed. Indeed, it allowed itself to be misguided by the argument of the Defendant s Counsel. Arguably, nothing in the cases cited by the Defendant s Counsel and relied upon why the court supports the manner in which the principle of non-retrospective effect was 45 Ibid, Unreported, Suit No. FHC/ABJ/CS/766/2012, 19 June, Page 9 of 17

10 applied in the present case. One of such cases is that of Goldmark (Nig.) Ltd v Ibafon Co. Ltd 47 where the Supreme Court of Nigeria reiterated that: Unless it affects purely procedural matters, a statute cannot apply retrospectively except when it is made to do so by clear and express terms The law in force or existing at the time a cause of action arose governs the determination of the suit while the law in force at the time of trial based on the cause of action determines the court vested with jurisdiction. 48 From the above ratio, it is quite clear that the case rather supports the argument of the Plaintiff s Counsel. The court did not avert its mind to the fact that the principle of nonretrospective effect is concerned with the time a cause of action 49 arose and not the date of creation of the object of relief in this case, information. If the cause of action arose before the enactment of the FOI Act, the plaintiff would have been unable to rely on the Act for any relief since it cannot apply retrospectively. But in the present case, the law in force at the time the cause of action arose and at the time of trial is the FOI Act, thus, from the above ration, same should be the applicable law in the case and vest the court with jurisdiction. In any event, several provisions of the FOI Act clearly mandate public institutions to grant public access to information which were in existence before the enactment of the Act, as the plaintiff s counsel rightly argued. 50 And in support of this position, other courts have granted Applicants access to such information that predates the enactment of FOI Act without qualms; for instance in the Vandeika Local Government Area Council case discussed earlier, the Applicant was granted access to document showing the Respondent s revenue allocation from the federal account from May, 2007 to June, 2012, considering that the course of action arose after the enactment of the FOI Act. Moving on, in the case of Public & Private Development Centre Ltd/Gte v Nigerian National Petroleum Corporation (NNPC) & others, 51 the Applicant s request for information concerning procurement plans and information, as well as bidding and contract documents for a certain project awarded by the Respondent (as available) was turned down. Thus, the applicant sought the court to declare the refusal illegal under the FOI Act, and order the Respondents to furnish it with the requested information. Justice A.R. Mohammed, the trial judge, struck out the suit on the ground that the Applicant did not fulfilled the condition precedent to the institution of the action, namely, the issuance and service on the 1 st Respondent of a month s pre-action notice as prescribed in s 12(2) of the NNPC Act. It is here submitted that this reasoning and decision of the court is, with due respect, incorrect as to the relationship between a month s pre-action notice and the right of information Applicants to institute a suit under the FOI Act. The correct position on this issue is arguably that expressed by the court in the NAFDAC case referred to earlier and the succeeding discussion on the point. 47 (2012) 10 NWLR (pt 1308) Ibid, (Emphasis added.) 49 To be clear, a cause of action is a factual situation that entitles a person to obtain remedy from the court against another person(s); basically it is the facts constituting the essential ingredient of an enforceable claim. See per Lord Diplock in Latang v Cooper (1965) 1 QB 222, 242; and per Lord Wright in Tower and Sons Ltd v Ripstein (1944) AC 254, Eg, see s 3 and 31 of the FOI Act. 51 Unreported, Suit No. FHC/ABJ/CS/278/2013, 23 December, Page 10 of 17

11 Furthermore, in the case of Paradigm Initiative Nigeria (PIN) vabati, 52 Justice G. Kolawole, the trial judge, refused to grant leave to PIN to apply for an order of mandamus to compel the Special Adviser to President Goodluck Jonathan on Media and Publicity, the Respondent, to disclose to it, in accordance with the FOI Act, specified information on the multi-million dollar contract awarded by the Presidency in 2013 to an Israeli company, Elbit Systems, for the supply of the Wise Intelligence Technology (WiT ) System for Intelligence Analysis and Cyber Defense for Nigeria. Justice G. Kolawole held that the Applicant was not entitled to the information sought on the ground, inter alia, that it did not disclose any special interest it had on the information requested. This flawed decision, which has attracted much criticism, 53 was given against the backdrop of the s 1(2) of the FOI Act (which provides that information applicants are not required to demonstrate any interest in the information requested), which the trial judge suggested was defective as he erroneously declared that there is no country in the world where Applicants are not required to demonstrate special interest in the information they request from a public institution. He therefore went on to call on the National Assembly to review the FOI Act to ensure that access to information be granted to only those who show genuine interest in the information. Obviously, this position of trial judge is contrary to the s 1(2) of the FOI Act which, in any event, represents best practice as it is incorporated into the FOI laws of many countries around the world, such as Sweden, South Africa, Uganda and India. 54 Lastly, in the case of Okezie v Central Bank of Nigeria (CBN), 55 the Applicant sought the order of the Court to compel the CBN to account for, among others, the forfeited assets of Mrs. Cecilia Ibru, the former Managing Director of Oceanic Bank, his request to access same haven been denied by the Respondent. The trial judge, Justice M.B. Idris held that the CBN, being a public institution, was duty bound under the FOI Act to provide details of such information and that the refusal to make the information public upon request by Mr. Okezie was unlawful. He therefore ordered the Respondent to furnish the Applicant with the required information within 72 hours of the judgement. However, the other aspect of the Applicant s request relating to the details of the legal fees paid to the lawyers involved in the recovery of properties from Mrs. Ibru was refused. The judge held that this information fell within the purview of s 16(a) of the FOI Act which authorises public institutions to deny an application for information that is subject to legal practitioner client privilege. 4.0 Observations from the Cases: Appraising the Enforcement of the FOI Act in the area of Public Spending From the above discussion, it is quite clear that, in general, the provisions of the FOI Act are laudable and robust enough to ensure, in good measure, reasonable public access to information and records held by public institutions in Nigeria. 56 Indeed, to a large extent, it bears a healthy 52 Unreported, Suit No. FHC/ABJ/CS/02/2013, 3 July, See S Erugo, Environmental Justice: FOI Act in Nigeria Case Study, being a paper presented at the 3 rd UNITAR-Yale Conference on Environmental Governance and Democracy, 5-7 September 2014, New Haven, USA. 54 E Ojo, FOI Act: Where His Lordship got it Wrong, Vanguard, (Lagos, 6 August, 2013)< accessed 3 May, Unreported, Suit No. FHC/L/CS/494/2012, 2 October, However, like any other law, the FOI Act could be improved in certain specific areas. See general, U Etemire, Public Access to Environmental Information: A Comparative Analysis of Nigerian Legislation with International Best Practice (2014) 3 (1) Transnational Environmental Law But this is neither the major concern of this paper (even though a few suggestions on Page 11 of 17

12 level of potency to reasonably engender control, accountability and transparency in public spending, in a manner that serves to improve national resource governance and better the lot of the populace. Yet, of what value is the buoyancy of FOI Act for ensuring accountability and transparency in resource administration if its enforcement, especially in court, is blunt? For a fact, this does not very well depict the relationship between the FOI Act and the Nigerian courts thus far, considering that the latter has demonstrated a fairly good level of eagerness to enforce the rights contained in the Act. Nevertheless, the cases analysed above clear show that the court s attitude to the enforcement of the FOI Act is not all rosy. With all these in mind, in the rest of this section, effort is made to highlight and briefly appraise some salient but important points that can be gleaned from the cases analysed above which will help to better the implementation and enforcement of the FOI Act, especially in the area of public spending. 4.1 Some Questions on Judicial Competence There is no doubt that the court play a central role in ensuring the application of the provisions of the FOI Act to engender transparency and accountability in public spending, and that it has been making reasonable effort in this direction. However, some of the cases reviewed earlier raise concerns, which must be taken seriously, about the general competence of some judges in the area of FOI-related cases. Clearly illustrative of this point are the erroneous judgements in the Abati case, the INEC case and the NNPCcase referred to above, among others, which stood in the way of legitimate access to information on public spending and transparency and accountability in this regard. Apart from such direct effect of flawed FOI judgements, they could serve to discourage information Applicants from approach the court for an enforcement of their right to access information which will only embolden public institutions to maintain their culture of secrecy despite the existence of the FOI regime. Thus, there is need to improve the competence of judicial officers in the handling of FOIrelated matters through targeted continuous professional development programmes. While public institutions generally have continued to undergoing FOI training, relatively recent reports have highlighted inadequate capacity building and training in the Nigerian judicial sector. 57 Hence, the National Judicial Institute (NJI) 58 must face this challenge with all seriousness as, under s 3(2) of the NJI Act, 59 it is saddled with the responsibility to: (a) conduct courses for all categories of judicial officers and their supporting staff with a view to expanding and improving their overall knowledge and performance in their different sections of service; (b) provide continuing education for all categories of judicial officers by under-taking, organising, conducting and facilitating study courses, lectures, seminars, workshops, conferences and other programmes related to judicial education The Non-enforcement of Active Access Provisions improving the Act will still be made), nor does it detract from the point that altogether the FOI Act is quite a potent instrument for ensuring reasonable access to information. 57 See M Kadiri, Implementing Nigeria s Freedom of Information Act, 2011: The Journey So Far, presented at the National Conference on the Freedom of Information Act (2011), held in Abuja, Nigeria, on July See the NJI website: < accessed 3 May, Cap N55, LFN, Page 12 of 17

13 The FOI Act, like many other FOI regimes, obliges public institutions to provide access to information by way of ensuring active access/disclosure, as well as passive access/disclosure. While passive access to or disclosure of information has to do with the release of information only upon request as provided in s 4 of the FOI Act, active access to informationtouches on the positive duty on public institutions to proactively and publicly disclose information without waiting for any request from the public as stipulated in s 2 of the FOI Act. Particularly, s 2 enumerates a broad range of information, including those relating to the receipt or expenditure of public or other funds ofthe institution, which public institutions under s 2(4) are required to ensure are widely disseminated and made readily available to members of the publicthrough various means, including print, electronic and online sources, and at the office of such public institutions. Such proactive disclosure has the potential of significantly reducing the number of requests for information which public institutions have to deal with, as well as saving the public valuable time and other resources spent in applying and waiting for their requests for information to be granted. Despite such benefits of active access/disclosure, current reports suggest that public institutions in general are yet to fully appreciate the utmost importance of proactive disclosure as a key component of their FOI Act obligation. 60 So they have generally done nothing significant to improve their practice in this regard, especially as it relates to the ICT aspect. For example, many of them have no functional website with which to share information, and many of those with websites have left them outdated. 61 In fact, most, if not all, of the withheld information that led to the various cases analysed above, are meant to have been placed in the public domain for ready access by the public and not for the applicants to have had to make a request for them. Thus, it is quite surprising to find that litigants in the cases discussed did not, among their other prayers, seek the court to order that such information be placed in the public domain in compliance with s 2(4) of the FOI Act. Similarly, it will be useful for civil society organisations to bring distinct actions enforcing s 2(4) where a public institution is in default. When successful, this would help to ensure that, subsequently, other individuals interested in the same information would have ready and immediate access to it without having to go through the request procedure The Silence on Sanctions for Default Although the courts have severally ordered public institutions wrongfully withholding information to furnish the denied applicant with same in accordance with the FOI Act, it has rarely, if at all, been properly offered the opportunity to issue the sanction for such violations, as provided for in s 7(5) of the FOI Act, on relevant public institutions. That provision stipulates that: [w]here 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. It is submitted that the imposition of this fine on defaulting institutions will contribute enormously to ensuring accountability and transparency in public spending, considering that public institutions in general will be forced to comply better with their obligations under the FOI Act and not wait to be dragged to court only to be merely told to do what it knows it should have done. This will ultimately relieve information applicants of the burden of heading to court upon every unnecessary denial of access, as well as reduce the caseload of the courts with respect to FOI matters. 60 Kadiri (n 57). 61 See Right to Know, A Report on the Level of Awareness, Compliance and Implementation of the Freedom of Information Act, 2011, 18 Months after its Enactment (2012)< accessed 3 May, Page 13 of 17