Hon. Justice Charles Ikpe of Court 3, High Court of Akwa Ibom State sitting in Uyo ruled on Friday 17th August, 2018 that the Freedom of Information Act (FOI Act), 2011 is not binding on public officials as the Act does not give a person whose request for information and public records is refused by a public officer the right to commence legal action to compel disclosure.
Justice Ikpe gave the decision in Suit No. HU/MISC/316/2018 between Inibehe Effiong and the Commissioner for Education, Akwa Ibom State while ruling on a motion ex parte brought by Lagos-based lawyer and human rights activist, Inibehe Effiong, seeking the leave of the Court to apply for judicial review by way of Mandamus to compel the Commissioner for Education to furnish him with information and records on capital expenditure, contracts and projects awarded for public primary and secondary schools in Akwa Ibom State; the number of teachers recruited and the number of pupils in Akwa Ibom State from May 29, 2007 to June 1, 2018.
Ruling on the motion ex parte for leave, the judge referred to Paragraph 5, 6 and 7 of the Applicant’s affidavit where the activist lawyer stated that he was moved by the mind boggling investigative reports by Premium Times, an online newspaper, on the complete decay in public primary and secondary education in Akwa Ibom State and by his concern for accountability, public education and good governance to apply to the Commissioner for Education for the information and records by a written request dated June 14, 2018.
According to the judge, while Section 1 (1) of the FOI Act gives every person the right to demand for information that is in the custody a public official or public institution, the FOI Act is only binding on public institutions and not public officials because Section 1 (3) and 20 of the Act only gives an applicant whose request for information and records is refused the right to sue a public institution.
The Judge before the ruling asked the Applicant’s counsel, Mr. Augustine Asuquo, to address him on the applicability of the Freedom of Information Act, 2011 to Akwa Ibom State and the locus standi of the applicant, Inibehe Effiong, to bring the suit.
In addressing the Court, Asuquo Esq. drew the Court’s attention to a recent judgement delivered by the Court of Appeal, Akure Division, on the 27th of March, 2018 in the case of Martins Alo versus Speaker, Ondo State House of Assembly & Auditor General of Ondo State where the Court of Appeal held unanimously that the FOI Act is binding on all the States of the federation and that locus standi has been abolished in actions brought under the Act in line with Section 1 (2) of the FOI Act which provides that an applicant need not disclose any specific interest when demanding for information and records.
The Applicant’s counsel further argued that the Commissioner for Education, Akwa Ibom State was not sued in his personal capacity but that it is the office which is a public institution created by Section 192 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that the Applicant sued after his request for information was not acceded to.
Section 192 (1) of the Constitution provides that “There shall be such offices of Commissioners of the Government of a State as may be established by the Governor of the State.”
In dismissing the motion, Justice Ikpe ruled that the Commissioner for Education is a public official and not a public institution and that the request made to him by the Applicant for information and records on capital expenditure, contracts and projects awarded for public primary and secondary schools in Akwa Ibom State; the number of teachers recruited and the number of pupils in Akwa Ibom State from May 29, 2007 to June 1, 2018 and the motion filed against the Commissioner are incompetent because the Commissioner for Education is not a public institution.
According to the judge, the FOI Act is still a new law which needs to be tested more in court for interpretation. Justice Ikpe however commended the Applicant, Barr. Inibehe Effiong, for his courage in bringing such a suit in the State; an act he said was rare.
According to the judge, the purpose of the Act will be achieved if more people like the Applicant test the Act in court as was done in the case of Martins Alo versus the Speaker of the Ondo State House of Assembly. He also thanked the Applicant and his counsel for assisting the Court with the Certified True Copy of the decision of the Court of Appeal.
In his reaction, the Applicant, Inibehe Effiong, said the ruling was a set back for the FOI Act and that he will explore other options in the matter.
“I believe that the Act is binding on both public officials and institutions. It is also my humble view that the office of a Commissioner created by the Constitution is a public institution. Even in the recent Court of Appeal decision which we brought to the attention of the court, the two Respondents, that is the Speaker of the Ondo State House of Assembly and the Auditor General of Ondo State, are offices created by the Constitution just like the office of a Commissioner in a State. I did not sue the occupant of the office but the office itself which is not just a juristic person but a creation of Section 192 of the Constitution”
“As a lawyer, I respect the decision of the judge but I see this ruling as a setback for the historic door of transparency in Nigeria opened by the National Assembly in 2011 when the FOI Act was enacted.
“I am not bothered by the cost of having to come all the way from Lagos State to file this suit in Akwa Ibom because it is for the betterment of the society. I am considering testing the ruling at the Court of Appeal.” Effiong said.