Appeal Court dismisses request for disclosure of Jonathan, Buhari, others’ assets declarations

The Court of Appeal on Friday dismissed an appeal seeking the disclosure of the details of assets declarations submitted to the Code of Conduct Bureau (CCB) by former Presidents Goodluck Jonathan and Muhammadu Buhari and their deputies while they were in office.

A three-member panel of the court led by Hamman Barka unanimously ruled that the Freedom of Information (FoI) Act 2011 cannot be invoked to compel the CCB to release the assets declaration forms submitted by the public officers.

It ruled that the CCB, the custodian of the assets declaration forms, cannot release the details of such assets declarations to any member of the public unless on the terms and conditions prescribed by the National Assembly.

“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 respondent (CCB) to disclose the information sought,” a member of the panel, Okon Abang, ruled in his lead judgement on Friday.

Paragraph 3(c) of Part I of the Third Schedule of the Nigerian constitution provides that the assets declaration forms submitted to the CCB by public officers can only be released to the public on the terms and conditions to be prescribed by the National Assembly.

But it has taken forever, since the constitution came into force in 1999, for the National Assembly to make a legislation prescribing the terms and conditions for members of the public to access the assets declaration forms submitted to the CCB by public officers.

In a bid to surmount the barrier created by the refusal of the National Assembly to issue the terms and conditions for access, two civil society organisations wrote the CCB in 2017 on the strength of the FoI Act 2011, requesting the assets declaration forms of former President Jonathan, his then Vice President, Namadi Sambo, as well as those of then President Buhari and his then Vice President, Yemi Osinbajo. Messrs Buhari and Osinbajo succeeded Messrs Jonathan and Sambo as president and vice president, respectively in 2015.

The two CSOs who sought to activate the FoI Act to have access to their assets declaration forms are the Public and Private Development Centre and the African Centre for Media and Information Literacy (AFRICMIL).

Suit, appeal

When the CCB refused to honour their request, the CSOs approached the Federal High Court in Abuja, asking it to compel the agency to invoke the FoI Act to compel the agency to release the assets declaration forms of then serving and former public officers.

But the Federal High Court judge, Abdu Kafarati (now deceased), who sat on the case, dismissed the suit in November 2017, holding that without the National Assembly prescribing the terms and conditions for access, the CCB cannot release the details of the assets declarations of the former presidents and vice presidents to the public.

One of the plaintiffs, AFRICMIL, had appealed against the Federal High Court’s decision.

But the Court of Appeal dismissed the appeal and affirmed the Federal High Court’s judgement on Friday.

‘Only in lawyer’s imagination’

Mr Abang, in the lead judgement of the Court of Appeal, ruled that that the FoI Act “cannot impose an obligation on the CCB” to circumvent the clear provision of the Constitution predicating public access to assets declaration forms on the conditions and terms to be prescribed by the National Assembly.

Without the terms and conditions prescribed by the National Assembly, Mr Abang said, it is futile to come under the FoI Act to seek to compel the CCB to release the details of assets declarations submitted to CCB by public officers.

He said: “With greatest respect to the learned counsel for the appellant, I think it is in his imagination of learned counsel that the Freedom of Information Act has made elaborate provisions to cover or serve the purpose intended by the provision of Paragraph 3(c), Part I of the Third Schedule of the Constitution.

“Learned counsel has not pointed out the terms and conditions provided in the Freedom of Information Act for an applicant to comply with when an application is made to inspect or request information for the assets declaration forms submitted by public officers serving or retired.

“It is my view that whatever provision is made in the Freedom of Information Act intended to serve or cover the purpose intended in Paragraph 3(c) of Part I of the Third Schedule of the Constitution, except the terms and provisions are prescribed by the National Assembly, the respondent (CCB) cannot release for inspection assets declaration forms submitted by public officers or disclose any information stated in those forms to any member of the public.”

Suit premature

Mr Abang ruled that the appellant ought not to have filed the suit at the Federal High Court to seek to compel the CCB to release the assets declaration forms.

“As of the time the suit was filed at the trial court, the National Assembly had not made any written instrument, prescribing the terms and conditions for disclosure of assets declaration forms submitted by public officers,” the Court of Appeal ruled.

“The appellant suit was premature, it ought not to be filed without compliance with the mandatory provision of paragraph 3(c), Part I of the Third Schedule of the constitution,” Mr Abang ruled, adding, ” The constitution is the supreme law. The provision of the constitution cannot be circumvented here. The appellant cannot jump the gun. The provisions of the Constitution must be strictly followed.”

He said the legal action the appellant ought to have taken was to sue the National Assembly to seek an order of court compelling it to issue the terms and conditions for the release of the assets declaration forms submitted by public officers as provided in the constitution.

“The appellant ought to have gone to court first to compel the National Assembly to prescribe the terms and conditions to comply with for access to assets declaration of public officers,” the judge said.

He closed the judgement saying, “In the final analysis, the appellants issue one is resolved in favour of the respondent against the appellant. The appeal lacks merit and it is accordingly dismissed.”

He imposed a N200,000 fine on the appellants in favour of the CCB.

The presiding justice, Mr Barka, who presided over the panel, and the other member Abba Mohammed, agreed with the lead judgement.

Appellant rejects judgement

Meanwhile, the Executive Director, AFRICMIL (the appellant), Chido Onuma, rejected the judgement.

He vowed that his organisation would appeal against the judgement at the Supreme Court.

Reacting to the judgement in a phone interview with PREMIUM TIMES on Friday, Mr Onuma blamed the Nigerian judiciary for the lack of openness in governance.

“Today’s judgement is a dampener on the quest for accountability and openness in governance in Nigeria,” he said.

He referenced a former Chairman of the National Human Rights Commission, Chidi Odinkalu, a law professor, who publicly declared his assets upon assumption of office.

“This judgement is in bad taste, but we are not limited by it in our quest for accountability in public service,” he said.

He doubted the willingness of the National Assembly to spell out the “terms and conditions” for the release of information on assets declaration by public office holders.