In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 11th day of April, 2025

Before Their Lordships

Mohammed Lawal Garba

Adamu Jauro

Jummai Hannatu Sankey

Obande Festus Ogbuinya

Abubakar Sadiq Umar

Justices, Supreme Court

SC/614/2018

Between

COMRADE AUSTIN OSAKWE & 7 ORS                     APPELLANTS (For and on behalf of Civil Society Groupss

in Edo State)

       And

EDO STATE AGENCY FOR THE CONTROL OF AIDS    RESPONDENT

(Lead Judgement delivered by Honourable Mohammed Lawal Garba, JSC)

Facts

On 4th February, 2014, the Appellants filed an Originating Summons against the Respondent at the High Court of Edo State, seeking the determination of whether the information sought by the Appellants from the Respondent ought to be granted under the Freedom of Information Act, 2011. The Appellants sought amongst other reliefs, a declaration that compulsory disclosure of information by an agency of government is governed by the provisions of the Freedom of Information Act, 2011; and several other declaratory orders compelling the Respondent to release to the Appellants certain information on its revenue expenditure between the periods of 2011-2011; subventions of the Edo State Government to the Respondent; details of the grant-aid from corporate and private donors to the Respondent; documents containing the criteria used to  select and deselect an organisation in the selection list for grant; the number of civil society groups in Edo State on the selection list and; details of the Respondent’s local and international donors from the year 2011 till date. The Appellant also sought general and exemplary damages against the Respondent for unlawful denial of information.

After considering the affidavit evidence and addresses filed by the parties, the trial court delivered its judgement in which it granted all the reliefs sought by the Appellants save the prayer for damages and cost. Dissatisfied, the Respondent appealed to the Court of Appeal. The Court of Appeal allowed the appeal by a majority of 2:1, on the ground that the Edo State has not enacted a law similar to the Freedom of Information Act 2011 (FIA, 2011), and so the Respondent was not bound to comply with the provisions of the Act. The Court of Appeal held that the FIA, 2011 is only applicable to public records and archives of the Federation and not of the States. Displeased, the Appellants appealed to the Supreme Court. The parties filed and exchanged the briefs of argument. The Respondent raised a preliminary objection in its brief, which the Apex Court considered before proceeding to determine the issues for determination in the main appeal. 

Issue for Determination of Respondent’s Preliminary Objection

Whether the trial court had the requisite jurisdiction to entertain the Appellant’s suit in the first instance.

Arguments

According to the Respondent’s counsel, the Respondent was not established by any law of Edo State or an Act of the National Assembly or incorporated under the Companies and Allied Matters Act, and so the Appellant is not a juristic entity capable of being sued. Counsel urged the Supreme Court to hold that the trial court lacked jurisdiction to hear the suit as constituted in the first place because the Respondent is not a juristic entity. 

In response, counsel for the Appellant submitted that the Respondent was established by the Edo State Agency for the Control of AIDS (Establishment Etc) Law, 2009, as a body corporate with juristic capacity to sue or be sued in its corporate name, under Section 1(1).  

Court’s Resolution of Preliminary Objection

The Apex Court held that by the provision of Section 1(1) of the Edo State Agency for the Control of AIDS (Establishment) Law No. 3, 2009, it was explicitly stated that the Respondent was established as a body corporate with perpetual succession and common seal, and may sue and be sued  in its corporate name. The Apex Court held that the simple and concise words of the provision have put the juristic personality/legal personality of the Respondent to sue or be sued in a legal action before a court of law, in its corporate name, beyond argument. On this basis, the Court dismissed the objection raised by the Respondent’s counsel.

Issues for Determination in Main Appeal 

In determining the appeal, the Supreme Court considered the following issue formulated by the Appellant:

Whether the Court of Appeal was right in law when it held that despite the provisions of item 4 in Part 2 of the 2nd Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Freedom of Information Act enacted by the National Assembly as it relates to public records and archives is not applicable to the public records and archives of Edo State.

Arguments

Counsel for the Appellant submitted that the provisions of FIA, 2011 apply to all public records and archives of Government in all states of the Federation and not only to those of the Government of the Federation in line with item 4, Part II of the 2nd Schedule to the Constitution to which items 5 in Part II are subjected.

Conversely, counsel for the Respondent argued that the doctrine of covering the field is not applicable to the case of the Appellants and that the provisions of FIA, 2011 are not applicable to public records of Edo State Government. Counsel cited Section 29 of FIA 2011, in support of his argument that if the provisions of the Act are to be binding on the states, the offices of the Attorney General of States would be by-passed contrary to the principle of Federalism.

Court’s Judgement and Rationale 

The Supreme Court held that the Constitution, for the purpose of its provisions has precisely defined the phrase “Federation” used therein, in Section 318 to mean the Federal Republic of Nigeria; while Section 2(1) of the same Constitution provided that Nigeria shall be one indivisible and indissoluble sovereign state to be known by the name of the “Federal Republic of Nigeria”. The Supreme Court held that by these provisions and the definition in Section 318, the National Assembly is vested with the authority, by dint of the provisions in Section 4(1), to legislate or enact laws for “the Federation” or “the Federal Republic of Nigeria”. The Apex Court referred to its definition of “Federation” in A. G., RIVERS STATE v A.G., FEDERATION (2019) 12 NWLR (PT. 1652) 53 AT 71 AND 85. 

The Court held that going by these definitions, it follows therefore that the National Assembly is clothed with the requisite legislative power to enact laws to apply to the whole of the Federation or Federal Republic of Nigeria, in respect of all the items listed under the concurrent legislative list set out in Part II of the Second Schedule to the Constitution. The Court held that Paragraph 4 specifically provides that the National Assembly may make laws for the Federation or any part thereof with respect to the archives and public records of the Federation. The Court held that by the combined provisions in Sections 4(1),(4),(a) of the Constitution and Paragraph 4 of Part II of the Second Schedule to the Constitution, the National Assembly is conferred with the legislative power and authority to enact or make laws on public records for the whole of the Federation or Federal Republic of Nigeria.

The Apex Court held further that by the provisions in Section 2(2) of the Constitution, the Federation of Nigeria consists of the States and the Federal Capital Territory, Abuja (FCT) and so logically, the laws enacted by the National Assembly on public records of the Federation or the Federal Republic of Nigeria are for, applicable and apply to all public records in the states and the FCT, as constituents of the Federation or Federal Republic of Nigeria. The Court also pointed out that the provisions in Sections 4(1),(4),(a) of the Constitution and Part II of the Second Schedule thereto, deliberately chose to use the phrase “Federation” and not “the Federal Government” or “Government of the Federation”. The Court held that the public records provided for in the provisions therefore are not limited, restricted or confined to public records of the Government of the Federation. The Apex Court held further that since the Constitution itself has defined the particular and specific phrase “Federation” used and employed in its provisions, the law requires that in the application of the relevant provisions of the Constitution, the said definition, and no other shall be adopted. The Court placed reliance on ANYAH v IYAYI (1993) 9SCNJ, 53 (19930 7 NWLR (PT. 365) 390.

The Court held that there is no dispute that the FIA, 2011 was enacted by the National Assembly in exercise of its legislative power under Section 4(1) and (4)(a) of the Constitution to legislate on public records of the Federation or Federal Republic of Nigeria, as an item on the concurrent legislative list as set out in Part II of the Second Schedule to the Constitution. The Court held that since the discretion provided for the National Assembly and State Houses of Assembly is concurrent on the items specified on the concurrent legislative list, both Houses of Assembly enjoy the competence to enact laws on the items at the same time, concurrently or at different times, as the case may be. The Court held further that the likelihood that any concurrent laws enacted on any of these items may be divergent or inconsistent with each other or even conflicting, was envisaged by the Constitution itself, hence why Section 4(5) was enacted to resolve any inconsistency that may arise between such concurrent laws, such that in the event of any inconsistency, it has provided that the laws enacted by the National Assembly shall prevail over and supersede the conflicting law made by the State House of Assembly on the same item, and the State law shall be void to the extent of its inconsistency, based on the doctrine of covering the field.

The Apex Court held that in the instant case, insofar as the Edo State House of Assembly did not exercise its concurrent legislative authority to legislate on public records in Edo State in which event the doctrine of covering the field did not arise, the law enacted by the National Assembly on the public record for the Federation or Federal Republic of Nigeria i.e. the FIA, 2011 applies to public records of Edo State, as a constituent of the Federation or Federal Republic of Nigeria. The Supreme Court held that the Court of Appeal was thus wrong to have held that the FIA, 2011 is it applicable to Edo State because the Edo State House of Assembly has not enacted any law on the subject matter. The Court held that even if such a law was enacted by the Edo State House of Assembly, it is still subject to the concurrent legislative power of the National Assembly to enact laws on the same public records in Edo State as a constituent of the Federation or Federal Republic of Nigeria based on the provisions of items 4 and 5 of Part II of the Second Schedule to the Constitution.

The Apex Court held that the FIA 2011 remains the extant law applicable to all public records in Edo State and also to all public records of/or in, being the law enacted by the National Assembly of the Federation or Federal Republic of Nigeria of which all the states are constituents. 

Appeal Allowed. Judgement of the Court of Appeal Set Aside; Decision of the trial court Restored.

Representation

President Aigbokan for the Appellants..

N. Iyamu for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)