N305 exchange rate: Court orders CBN to grant HEDA’s FOI request on details of beneficiaries

AN Abuja Federal High Court has ordered the Central Bank of Nigeria (CBN) to provide information on the amount of United States (US) dollars distributed at N305 and details of those that benefited from the N55 differential.

The CBN was ordered to provide the information to a civil society organisation (CSO), Incorporated Trustees of Human and Environmental Development Agenda (HEDA) Resource Centre, which sought the details through a Freedom of Information Act (FOIA) request.

The apex bank had declined the FOI request.

The court ruled that the apex bank’s refusal to provide the information upon request from the Civic Media Lab, a CSO, and then from HEDA was illegal, maintaining that the FOI Act was established to promote accountability and openness.

The Civic Media Lab, in August 2019, filed a FOIA request with the CBN, seeking the total sum of subsidised foreign exchange the apex bank distributed through programmes like the Forex Intervention Scheme.

The Lab explained that the request was prompted by claims by the then-chairman of the Major Oil Marketers Association of Nigeria, Tunji Oyebanji, that he was not aware of any marketer obtaining foreign currency at the rate of N305 to the US dollar.

An analysis by FBN Quest published in May 2019 put the CBN’s interbank/official rate (for priority transactions) at N307/US$.

Following CBN’s refusal to release the information to the Civic Media Lab, the Incorporated Trustees of HEDA Resource Centre on October 14, 2020, filed an FOI request with the Federal High Court, asking for an Order of Mandamus requiring the CBN to provide the details.

In the suit marked No: FHC/ABJ/CS/1622/2020, HEDA asked the court to order the CBN to provide the names of those who benefitted from CBN’s FX arbitrage.

The CSO wrote to the CBN governor requesting the following information – “A detailed breakdown of the schemes created by the Central Bank of Nigeria to sell the dollar at a subsidised 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,” HEDA added.

In its judgment, delivered on May 3 and obtained by The ICIR on May 11, the court presided by Justice M. O. Olajuwon 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 Rules, the respondent was obliged to make the information requested by the applicant available.

“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 the valid reason(s) for the denial, within seven 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 seven 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, given 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 added, “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 Requests.

“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 implemented 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 subsidised exchange rate scheme, there is no acknowledgement 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).”

Responding to the Court judgment in a chat with The ICIR, Executive Director of HEDA Olanrewaju Suraju said the verdict was a remarkable development.

He added that though the case took so long, the outcome is a measure of achievement.

“It took so long, almost like four years, because of the delay we have in the Nigerian judicial system and court. 

“For the court to have gone this way finally in also supporting the citizens and the civil societies to ensure that public officials understand that the occupation of the office is for the purpose of good governance, we are very happy that at long last we eventually get the required result,” Suraju said.

He added that HEDA will ensure that the judgment is enforced.

Speaking on CBN’s response to the judgment, Suraju said, “CBN does not have any response for now except going for an appeal because they were represented in court and the judgment went against them.”

Also commenting on the judgment, Legal Officer, HEDA Resource Centre David Ogungbesan stated that the court verdict shows that the FoI Act will always be a viable tool in promoting transparency and public accountability.

He Express hopes that the development will help to reduce corruption and promote transparency, public accountability and good governance.

“It is an acknowledgment that all our efforts in the campaign for good governance, public transparency and the fight against corruption is gaining grounds. it is also a positive outcome for the hard work HEDA has put in this campaign over the years,” he stated.

 The Centre conducts research, policy advocacy, training, citizen awareness, and mobilisation campaigns.