CCB can’t release assets declaration information upon FOI demand – A’Court

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By Kenneth Atavti

Court of Appeal in Abuja has held that the Code of Conduct Bureau (CCB) cannot be compelled by a request made under the Freedom of Information Act (FOI) to release details in the assets declaration forms completed and submitted to it by public officials.

In a judgment at the weekend, a three-member of the court said until the National Assembly makes law, prescribing the terms and conditions under which the CCB could make such disclosure, in line with the provision of Paragraph 3(c), Part One of the Third Schedule to the Constitution, the CCB cannot be compelled, via FOI request, to disclose information relating to the declaration of assets by public officers, whether serving or retired.

The appellate court made the pronouncements in two judgments on appeals, marked: CA/A/247/2018 and CA/A/248/2018 brought by two groups – African Centre for Media and Information Literacy and the Public and Private Development Centre.

The appeals were against the judgments delivered in 2017 by the now late Chief Judge of the Federal High Court, Justice Abdu Kafarati.

The African Centre for Media and Information Literacy had sued the CCB and its chairman, seeking among others to compel them to release the assets declaration forms submitted by former Presidents Goodluck Jonathan, Muhammadu Buhari and Vice Presidents Namadi Sambo and Yemi Osinbajo.

On its part, the Public and Private Development Centre demanded similar information in relation to the principal officers of the National Assembly.

Justice Kafarati, in his judgments, refused the groups’ prayers on the grounds that until the National Assembly prescribes the terms and conditions stated in Paragraph 3(c), Part One of the Third Schedule to the 1999 Constitution, the CCB and its chairman could not be compelled to disclose information relating to the declaration of assets by public officers.

On Friday, Justice Okon Abang, who authored and read the lead judgments of the Court of Appeal on the two appeals, said he agreed with the decision of the trial court.

Justice Abang said: “I think the trial court was right when it held, at page six of the record, that until the terms and conditions, stated in Paragraph 3 (c), Part One of the Third Schedule to the Constitution are prescribed by the National Assembly, the respondents are not bound or compellable to disclose the information requested by the appellant.

“This is a duty imposed on the National Assembly by the Constitution which is yet to be carried out by it. Until that is done, the appellant cannot urge the trial court to compel the respondents to disclose the information sought.

“Contrary to the submission of the appellant, unless the terms and conditions stated in the provision of Paragraph 3 (c), Part 1 of the Third Schedule to the Constitution have been proscribed by the National Assembly, the appellant has no cause of action against the respondents.”

Justice Abang added: “Learned counsel for the appellant, with the greatest respect to him, believed in the existence of an imaginary power on the respondent that does not exist.”

“The Freedom of Information Act cannot impose an obligation on the respondents in defiance to the clear and unambiguous provision of Paragraph 3 (c), Part One of the Third Schedule to the Constitution, which is the supreme law of the land.

“This is so, because the Freedom of Information Act has not covered or served the purpose intended by the provision of Paragraph 3 (c), Part One of the Third Schedule to the Constitution and Section 3(c) of the Code of Conduct Bureau Act.

“The Freedom of Information Act, being an Act of the National Assembly is subject to the provisions of the 1999 Constitution (as amended), and as such, the provision of the Act cannot override the extant provision of the Constitution”, he said.

Justice Abang held that before the CCB could provide such information as sought by the appellants, the National Assembly must first, in line with the provision of the Constitution, stipulate the terms and conditions to be met before such information could be made available.

He held that the appellants ought to first sue to compel the National Assembly to make law prescribing the terms and conditions as required by the Constitution rather than suing the CCB.

Justice Abang added: “I am unable to see how the request for copies of the assets declaration forms or declaration of information in assets declaration forms will not circumvent the constitutional requirement imposed by the provision of Paragraph 3 (c), Part One of the Third Schedule to the 1999 Constitution.

“It is my humble view that where a person applies to the respondent to inspect assets declaration forms, submitted by public officers, the person is seeking for information as contained in those assets declaration forms..

He said it is immaterial whether a person applies to the CCB for inspection of the submitted assets declaration forms or that the application if for the CCB to disclose the information in the forms.

Justice Abang said: “Therefore, whether it is by application for inspection of assets declaration forms or application for the disclosure of information relating to the declaration of assets by public officers, serving or retired, the terms and conditions must be prescribed by the National Assembly in line with the provision of Paragraph 3 (c) of the Third Schedule to the Constitution.

“This is the condition precedent and must be complied with before the inspection is carried out or the information contained therein can be disclosed,” he said.

Justice Abang proceeded to dismiss both appeals.