In 2011 Nigeria passed the Freedom of Information Act, which seeks to guarantee citizens’ access to public information. The law is revolutionary in the scope of information to which it grants access, and the safeguards contained therein are a welcome departure from the pervasive secrecy in Nigerian governance. The Lagos Federal High Court recently had the first opportunity to interpret and apply this law in Boniface Okezie v Central Bank of Nigeria.(1) The Central Bank is a government agency.
On August 13 2009 the Central Bank, exercising its powers under the Central Bank of Nigeria Act, fired the executive directors of five Nigerian banks for borderline fraudulent acts and mismanagement of bank resources. The affected bankers were also prosecuted by the Economic and Financial Crimes Commission which, in collaboration with the Central Bank, sought to recover some of the assets that they had allegedly stolen. However, there were questions about the manner in which the recovery of the assets was being handled, particularly the apparent lack of consideration for the rights of the affected banks’ shareholders.
In 2012 the Progressive Shareholders Association of Nigeria, represented by its president, Boniface Okezie, wrote to the Central Bank requesting information relating to the recovery of Oceanic International Bank Plc’s assets. The letter, written by Okezie’s solicitor and dated January 26 2012, requested the following information:
the cost so far to the Central Bank, the government and the Nigerian people of the banking reforms instituted by the Central Bank, and particularly the amount of legal fees and other fees paid and to be paid to professionals and professional bodies; how much of the amount mentioned above represented fees paid and to be paid to Olaniwun Ajayi LP and Kola Awodein & Co. These two law firms dominated representation of the Central Bank and its related bodies in the litigations triggered by the reforms. These same firms were engaged by the Central Bank in other capacities, including as advisers to the five banks in which the Central Bank had intervened and as consultants to the Central Bank and other related bodies, and also for the criminal prosecution of the former executives of the five affected banks; the total sum paid to Olaniwun Ajayi LP in respect of the prosecution of Cecilia Ibru, former managing director of Oceanic Bank Plc, and the proportion of this sum that was in the form of commissions on the properties recovered from her; and the total cash and value of properties recovered from Ibru, the whereabouts of the recovered assets and what proportion of these assets had been returned to Oceanic Bank and/or its shareholders.
The basis for the above requests was that taxpayers’ money was being used for the prosecution of the banks’ chiefs and the reform process. The association also believed the entire reform process to be a drain on the economy, benefiting only a few.
When the Central Bank refused to disclose the information requested by the association, a suit was instituted against it under the Freedom of Information Act. The association requested the court to compel the bank to publish its handling of approximately N191 billion’s worth of assets forfeited by Ibru.
In a landmark ruling on the application of the Freedom of Information Act, the court held that the Central Bank, as a public institution, has a duty under the act to provide details of such information, and that the bank’s refusal to disclose the information on request by the association was unlawful.
Justice Mohammed Idris ordered the bank to comply with the association’s request by releasing the information sought. Stressing that it was unlawful for the bank to withhold the information, the court observed that:
“The Act is intended to promote transparency and prevent corruption, therefore all public institutions must ensure that they comply with the FOI Act in the interest of transparency, justice and development.”
However, the court refused to compel the bank to disclose the information relating to the fees and commissions paid to the law firms representing it on the grounds that such information enjoyed client-attorney privilege and was protected under Section 16 of the act. The court mandated the bank to comply with its orders within 72 hours. However, the bank is yet to comply and has appealed the decision.
The court’s ruling on the need for the Central Bank, as a public institution, to comply with a valid request for information and the need for public institutions in general to comply with the Freedom of Information Act is commendable and in the spirit of transparency and accountability.
However, the court would have been within the remits of both the law and the act to compel the disclosure of fees paid to the legal practitioners representing the bank. A clear reading of the relevant provisions of the Nigerian Evidence Act 2011 shows that it protects only communications which are deemed confidential.(2)
In this case, where shareholders have inferred that depositors’ funds recovered by the Central Bank may have been squandered by it or even embezzled, to be explained away as consultants’ fees, the question of how much was paid to whom is crucial. The public interest in knowing about such payments far outweighs the advantages of keeping the amounts secret. The Freedom of Information Act envisages as such when it provides that the court shall order a public institution to disclose information or part thereof to the applicant if it finds the public interest in having the record made available to be greater and more vital than the interest served if the application were to be refused, in any circumstance.
However, this case nonetheless represents a bold step in the entrenchment of good governance in Nigeria.
For further information on this topic please contact Funke Agbor or Jamiu Akolade at Adepetun Caxton-Martins Agbor & Segun by telephone (+234 1 462 2094), fax (+234 01 461 3140) or email (email@example.com or firstname.lastname@example.org).
(2) Section 195 provides that:
“No one shall be compelled to disclose to the court any confidential communication which has taken place between him and a legal practitioner consulted by him, unless he offers himself as a witness in which case he may be compelled to disclose any communications which may appear to the court to be necessary to be known, in order to explain any evidence which he has given, but no others.”