Private firm that takes public fund is bound by FOI law – Appeal Court

The Court of Appeal in Lagos has ruled that a private company that receives public funds from a government agency even in one transaction is deemed to be a public institution under the Freedom of Information (FoI) Act, 2011.

The court made the declaration in a judgement on an appeal filed by Coscharis Motors Limited to challenge an April 28, 2015, judgement of the Federal High Court in Lagos, a statement by Media Rights Agenda (MRA), said on its website.

Coscharis Motors’ had appealed against the judgement delivered by Mohammed Yunusa of the Federal High Court in Lagos declaring that the FoI Act applied to the company regarding two bulletproof cars purchased from it by by the Nigerian Civil Aviation Authority (NCAA).

NCAA had bought the two armour-plated BMW vehicles for the then Aviation Minister, Stella Oduah, at an inflated cost of N225 million.

The scandal led Ms Oduah to resign as a minister in the then President Goodluck Jonathan administration in 2013. She is, however, currently the senator representing Anambra North.

A civil society organisation, Enough is Enough (EIE) Nigeria, had, in the wake of the scandal in 2013, requested the details of the BMW cars transaction under the FoI Act from Coscharis Motors, the seller of the vehicles.

When the company failed to provide the information, the organisation filed a suit at the Lagos Division of the Federal High Court to compel the release of the requested details.

In his judgement delivered on April 28, 2015, the judge, Mr Yunusa, ruled in favour of EiE, dismissing the argument of the company that the FoI Act was not applicable to it not being a public institution.

Displeased with the decision, Coscharis Motors filed an appeal at the Lagos Division of the Court of Appeal.

Coscharis Motor’s appeal succeeded partially, with the Court of Appeal setting aside the Federal High Court’s decision compelling the company to release the information on the transaction. The appeal court, however, sustained the declaration that it is a public institution as far as the transaction is concerned.

“A private company that is not at all funded by public funds and that does not provide any form of public services nor perform any form of public function may, for purposes of the FoI Act be deemed to be a public institution or body within the meaning of the Act, if that private company walks that path even for a single transaction,” the lead judgement of the Court of Appeal panel delivered by Onyekachi Aja-Otisi read, in part.

The judge added, “Contrary to the postulation of the appellant (Coscharis Motors), it is irrelevant if it is a one-off and never-to-be-repeated occurrence or incident.

“For that one-off and never-to-be-repeated occurrence or incident, the private body or company would be as accountable as a public institution or body under the Act if it has provided any form of public services or performed any form of a public function or utilised public funds.”

Mr Aja-Otisi noted that the BMW vehicles were purchased by the NCAA, a federal government organisation, with public funds.

“Thus, public funds were employed or used as payment for the two BMW bulletproof vehicles purchased from the Appellant (Coscharis Motors) by NCAA.

“Stretching this further, it means that the Appellant made use of or had recourse to public funds, which were given by NCAA as payment for the vehicles in the issue.

“To the extent that this path was walked, the Appellant was a public institution within the meaning of the FOI Act, 2011 and thereby subject to an enquiry or request pursuant to the Act. It was not of any relevance that the path was walked only once,” the judge added.

He also stressed that “these facts brought the Appellant within the meaning of public institutions under Sections 2(7) and 31 of the FOI Act. On that basis, the Appellant ought to have provided the information sought.”

But, according to MRA, the court held that Coscharis Motors was justified in withholding the information requested by EIE as there was an ongoing criminal investigation by the Economic and Financial Crimes Commission (EFCC) surrounding the purchase of the vehicles.

The Court of Appeal noted that the lower court failed to address Coscharis Motors’ contention that it was justified in withholding the information requested by EIE under Section 12 of the FoI Act.

Mr Aja-Otisi noted that the trial judge, Mr Yunusa, failed in his responsibility to address and resolve Coscharis Motors’ claim that withholding the information requested by EIE was justified.

The court ruled that a decision taken without a fair hearing is null and void, and that the Federal High Court’s ruling should be overturned on this basis, especially since Coscharis was entitled to seek cover under the exceptions provided in Section 12 of the FoI Act.