FHC Orders Central Bank To Provide Details On Beneficiaries Issued Dollars At N305

The Federal High Court in Abuja has ordered the Central Bank of Nigeria to release information concerning the volume of dollars given out at N305 as well as the sectors and schemes that had been benefiting from the N55 difference to Incorporated Trustees of HEDA Resource Center.

The court held that the failure of the apex bank to disclose the information on request by the Civic Media Lab and later by HEDA was unlawful, insisting that FOI Act was enacted to enthrone transparency and accountability.

The court stated that all institutions and government agencies are to ensure compliance with the Act in the interest of justice, transparency and development.

SaharaReporters on October 17, 2019 reported that Nigeria’s apex Bank, CBN had refused to disclose data on beneficiaries of exchange rate differential.

It reported that the Civic Media Lab had since August 28, 2019, written a Freedom of Information scheme, seeking to know how much subsidised foreign exchange the bank had disbursed through channels such as the Forex Intervention Scheme.

According to the Lab, the need to make the FOI request was sparked by comments made by the then Chairman of the Major Oil Marketers Association of Nigeria, Tunji Oyebanji, that he did not know any marketer receiving forex at N305 to a dollar.

In May 2019, FBN Quest, in an analysis, said ‘The CBN’s interbank/official rate (for priority transactions) is currently N307/US$.’

The Civic Media Lab’s FOI was designed to know what these priority transactions entail.

However, CBN refused to honour the request made by Civic Media Lab for the information without providing any reason.

Based on the report and angered by the failure of the apex bank to disclose the information, the Incorporated Trustees of HEDA Resource Center approached the Federal High Court under FOI , seeking an Order of Mandamus compelling the CBN to release the information requested in its FOI Request dated October 14, 2020.

HEDA asked the court to compel the apex bank to disclose the details of those who have benefited from the forex arbitrage by CBN.

HEDA wrote to the CBN Governor through the apex bank’s Information Management Division, Freedom of Information Office, seeking the information.

In the letter, HEDA sought “a detailed breakdown of the schemes created by the Central Bank of Nigeria to sell the dollar at a subsidized rate; the amount that has been given out so far for each scheme; a breakdown of the value per sector; and detailed information on the beneficiaries of the various schemes inclusive of the forex intervention scheme.”

“We believe that the records and details of the above-outlined information made available will aid the investigations being conducted by our organisation on the allegations conveyed in the report under reference,” it added.

Delivering its judgement in the Suit marked No: FHC/ABJ/CS/1622/2020 between Incorporated Trustees of HEDA Resource Center as Applicant and Governor, Central Bank of Nigeria as Respondent on May 3, 2023, the presiding judge, Justice M. O. Olajuwon, ordered that CBN to provide the details of the information requested through the FOI Act.

In the court judgement obtained by press on Thursday, the court held that under Sections 4, 7(4} and 20 of the FOI Act and Order 34 Rule 3(1} of the Federal High Court Civil Procedure Rule, “the Respondent/Applicant was obliged to make the information requested by the Applicant available to the Applicant or where the Respondent considered that the application should be denied, give written notice to the Applicant that access to all or part of the information will not be granted, stating valid reason(s) for the denial, within 7 days after the application was received.

“The Act has gone further to state when in particular the Respondent could be deemed to have denied the information requested, to be when the Respondent failed to give access to the information requested within the time limit set out in this Act, which is 7 days.

“The request for information was received by the Respondent in this suit on the 28th day of October, 2020. The parties had given different days as the date of receipt of the request in view of the signature of the recipient of the letter placed on the date of receipt, as shown by the stamp of receipt. However, the Respondent agreed with the 28th of October date, as the date of receipt, in other processes placed before this Court by the party.

“The 7 days within which the Respondent was to respond by either granting the application or denying same with reasons elapsed on the 4th of November, 2020. The Respondent was deemed to have refused access to the information required by the Applicant on the said 4th of November, 2020.”

The judge further ruled, “Having held that the information forming part of the Applicant’s FOI Request exists, I shall now determine whether the Applicant is entitled to the reliefs sought.

“Section 1(1) of the Freedom of Information Act, 2011, guarantees the right of any person to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution, howsoever described.

“To ensure that public records and information are freely available to any member of the interested public, an applicant under the Freedom of Information Act, 2011, is not required to demonstrate any specific interest in the information requested.

“The Act further confers the right to institute proceedings in the Court to compel any public institution to comply with its provisions to any person entitled to the right to information under the Act. See Section 1 (2) and (3) of the Freedom of Information Act, 2011. Section 2 of the Act then mandates public institutions to record and keep information about all their activities, operations and businesses for ease of access to such information by interested members of the public, while Section 3 provides for the procedure for FOI Request.

“It is to be noted that access to public records or information is a fundamental prerequisite for accountability, transparency, informed participation in government by citizens and good governance by public officials in a democracy.

The FOI Act has been put in place to promote transparency and prevent corruption. All institutions and government agencies are to ensure compliance with the Act in the interest of justice, transparency and development.

“Although the Respondent has averred in paragraph 4 (i) of its Counter Affidavit to the Motion on Notice, that on the 2nd day of December, 2020, Exhibit HEDA2 was replied with EXHIBIT CBN3, denying any involvement in Pilgrims subsidized exchange rate scheme, there is no acknowledgment stamp to show that it was served on the Applicant.

“Therefore, I am inclined to believe the evidence of the Applicant as contained in paragraph 16 of its Further Affidavit that EXHIBIT CBN3

was never received by it. But, assuming arguendo that EXHIBIT CBN3 was received by the Applicant, it will not affect my conclusion in this case, since I have already found that the Applicant was able to discharge the burden of proof placed on it, to establish the existence of the information sought in Exhibit HEDA2.

“Based on my findings above, I hold that the Applicant is entitled to the information requested in Exhibit HEDA2, which is deemed to have been denied the Applicant by the Respondent.

“The Respondent, as a public institution, has a duty under the FOI Act to provide details of the information requested by the Applicant. The failure of the Respondent to disclose the information on request by the Applicant is therefore unlawful.

“I find and hold that the Applicant is entitled to the reliefs sought as per its Motion on Notice filed on the 22nd day of September, 2021.

“Consequently, this Court makes the following Order: An Order of Mandamus compelling the Respondent to release the information requested by the Applicant in its FOI Request, dated 14/10/2020 (Exhibit HEDA2)”