LEGAL IDEAS FORUM

IMMUNITY CLAUSE AS AN UNWAIVERABLE RIGHT

The Black Law Dictionary eighth edition defines the terms immunity and waiver as;
Immunity. ‘Any exemption from a duty, liability, or service of process; such an exemption granted to a public official’. and Waiver as ‘The voluntary relinquishment or abandonment — express or implied — of a legal right or advantage;

Section 308 (1) of the 1999 constitution of Federal Republic of Nigeria(as altered) restrict a person holding the office of president or vice president, Governor or Deputy Governor from  subjecting to any civil or criminal proceedings, save the exceptions provides under sub section 2 of the section. For ease of  reference let me reproduce the provisions of section 308 verbatim;

308. (1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section –
(a) no civil or criminal proceedings ‘shall’ be instituted or continued against a person to whom this section applies during his period of office;
(b) a person to whom this section applies ‘shall’ not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and
(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, ‘shall’ be applied for or issued:
Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.
(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.
(3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.(emphasis supplied on ‘shall’)

The sole issue to be addressed in this article is; WHETHER THE IMMUNITY CLAUSE PROVIDED UNDER SECTION 308 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS ALTERED) CAN BE WAIVED BY THE PERSONS MENTIONED UNDER SUBSECTION(3) OF THE SECTION 308

  The words of the section 308 (1),(2) and (3) are clear, concise and direct enough that require no further or special interpretation as the word ‘shall’ used in the section shows mandatariness and compulsory compliance.  See the case of Nwankwo v. Yar’adua (2010) 12 NWLR (Pt. 1209) 518 p. 589 where The Apex Court through His Lordship Adekeye, J.S.C. held;
“The word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation”.
 see also Onochie  v. Odogwu  (2006)  2  SCNJ  96  p. 114,  Agbiti  v.  Nigerian  Navy (2011) 1 SCM 31 p. 36.

In Colonel Olu Rotimi and others v. Macgregor (1974) 11 S.C. 133 or (1974) 9 N.S.C.C. 542. respondent (as plaintiff in the trial court) had instituted a civil action against the appellants claiming inter alia a declaration of title to land in Ikeja. During the pendency of this action, the 1st defendant appointed and assumed office as the Military Governor of the Western State of Nigeria. The argument arose before the trial Court was that by virtue of section 161(1) (c) of the Constitution of the Federation of Nigeria, 1963,( which is in pari materia with section 308 (1) of the 1999 constitution) the suit against the 1st defendant could not be continued by any court. It was also argued that no court could give any judgment against the 1st defendant during his tenure of office as the Military Governor of the Western State and that the immunity from prosecution conferred on the 1st defendant/appellant ‘could not be waived.’ The trial court upheld this argument.

the Supreme Court while upholding  the position of the trial court per Coker, J.S.C. stated:” We think that the learned trial Judge was right in concluding that section 161(1) (c) of the Nigerian Constitution confers an immunity on the 1st defendant and that the action should not have been continued against him since he became the Governor of Western State during the pendency of the present proceedings. ‘No question of waiver arises, for the section prescribes an absolute prohibition to any court during the period of office of the holder of any of the posts described in section 161(2) of the Constitution to entertain any claim for relief against such person”.(emphasis mine)
Also in BOLA TINUBU v. I.M.B. SECURITIES PLC. (2001) 16 NWLR (Pt.740)670 also reported in (2001) LPELR-SC.32/2001 and in (2001) All N.L.R 264. The respondent (as a plantiff in the High court of lagos) sued the appellant (as defendant) claimed the sum of N2.5 million being the outstanding balance owed in respect of an overdraft facility granted by the plaintiff to the said defendant through a writ of summon. Tinubu then lodged an interlecutory appeal againts the leave granted for the extention of the plaintiff’s writ of summon’s life span to the Court of Appeal, Lagos Division on the 12th June, 1995. Whilst this appeal was pending and the parties had duly filed and exchanged their respective briefs of argument in respect thereof, the appellant successfully contested election to the office of the Governor of Lagos State. He was accordingly sworn in as Governor of Lagos State of Nigeria on the 29th May, 1999.

The issue before the court of appeal was similar to Colonel Rotimi’s case as to “Whether or not the appellant  can continue the appeal in the light of section 308(1) of the 1999 Constitution. The plaintiff/respondent then sought that the matter should be adjourn sine die since by virtue of section 308 (1)(a) the matter cannot continue. after joining issues and hearing arguments from the both sides the court of appeal granted the relief sought by the respondent. the appellant hence appealed to the supreme court. The Supreme Court through IGUH, J.S.C In his leading judgement held that; “In my view, the immunity granted to the incumbent of the relevant office under section 308(1) (a) of the Constitution prescribes ‘an absolute prohibition’ on the courts from entertaining any proceedings, civil or criminal, in respect of any claim or relief against a person to whom that section of the Constitution applies during the period he holds such office. ‘No question of waiver of the relevant immunity by the incumbent of the offices concerned or, indeed, by the courts may therefore arise’. In my view the Court of Appeal was absolutely right to have declined to entertain the appellant’s appeal pending before it as to do otherwise would amount to continuing the plaintiff/respondent’s suit against the defendant/appellant, a suit which under section 308(1)(a) of the 1999 Constitution shall not be continued against the appellant while he remained the Governor of Lagos State.”(emphasis mine)
His Lordship further stated in the ruling;
(iii) That this constitutional immunity conferred on the appellant under section 308(1)(a) of the 1999 Constitution during his period of office as the Governor of Lagos State,’ being an absolute prohibition, admits of no waiver by the appellant or by any incumbent of the relevant offices’ stipulated under section 308(3) of  the 1999 Constitution.(emphasis mine)

Having reached this position,  it is crystal clear that no one can waive his immunity right so long he is holding an office mentioned under subsection(3) of section 308. If one wants to go under the rigours of trial, he should rather waive his office. although the immunty is not forever.

At this time it is very pertinent to put it down that Section 308 doesn’t preclude the office holders mentioned under subsection 3 of the section  from being investigated.  he  can  be  investigated  while  in  office  and the  evidence  gathered/assembled  preparatory  for  use  in  impeachment proceedings  against  him  or  for  prosecution  when  he  vacates  office.

The Supreme Court per Uwaifo,  J.S.C.,  stated the position of the law in Fawehinmi v. I.G.P. (2002) 7 NWLR (PT. 767) 606 at 681 – 682, in the following words; “That  a  person  protected  under  Section  308  of  the  1999  Constitution,  going  by  its  provisions,  can  be  investigated  by  the police  for  an  alleged  crime  or  offence  is  in  my  view  beyond  dispute.  To  hold  otherwise  is  to  create  a  monstrous  situation whose manifestation may not be fully appreciated until illustrated”.
 Careful perusal and scrutiny of section 308 will reveal that the section have only protected those offices holders from being arrested, sued on any civil or criminal proceedings, or issuance of any court processes but doesn’t prevent them from sueing others for redress or personal wrong doing. permit me to adopt the dictum of His Lordship Ayoola canvassed in his concurrent judgement in Bola Tinubu’s case(supra).

His Lordship opined:  “I am unable to construe a provision of the constitution that granted an immunity such as section 308(1), as also constituting a disability on the person granted immunity when there is no provision to that effect, either expressly or by necessary implication in the enactment. If the makers of the Constitution had wanted to prohibit a person holding the offices stated in section 308 from instituting or continuing action instituted against any other person during his period of office, nothing would have been easier than to provide expressly that: ” No civil or criminal proceeding shall be instituted or continued against any person by a person to whom this section applies during his period of office; and no civil or criminal proceedings shall be instituted or continued against such person during his period of office “. or, in like terms. The makers of the Constitution in their wisdom did not so provide.”

 In line with the above argument Mr A as an incumbent governor of a state can sue Mr B an ordinary citizen for redress or personal wrong doing. But the Issue that need to be addressed on this point Is

 WHETHER Mr B BEING DISSATISFIED WITH THE JUDGEMENT OF THE TRIAL COURT INSTITUTED BY MR A CAN APPEAL NOTWITHSTANDING THE PROVISION OF SECTION 308(1)(3) AND THE FACT THAT MR A IS STILL AN INCUMBENT GOVERNOR. (Note: Governor used as an example of the offices mentioned under (3) of S.308)
 First of all an appeal is not a new action but a continuation of the of a case file in the trial court to court of appeal or from court of appeal to supreme court see section233 and 241 of the constitution (supra) and BOLA TINUBU v. I.M.B. SECURITIES PLC.(supra)
In EFCC v. FAYOSE & ANOR (2018) LPELR-44131(CA) MR. AYODELE FAYOSE Governor of Ekiti State Instituted and action against the appellant in the  Ekiti  Division  of  the  Federal  High  Court, the judgement was in favour of the governor but being dissatisfied the EFCC appeal to the Court of Appeal. The court of appeal agreed with the EFCC’s argument that the appeal can stand since the case was first instituted by the governor. His Lordship IKYEGH,  J.C.A. concurred that;
“I  agree  with  Mr.  Rotimi  for  the  appellant  that  an  appeal  is  simply  the  continuation  of  the  case  put  forward  in  the  Court  of first  instance….”

His Lordship further stated; “The  present  appeal  is  therefore  the  continuation  of  the  case  filed  by  the  1st  respondent  at  the  Court  below.  It  is  not  a  new case  instituted  by  the  appellant  against  the  1st  respondent.  It  merely  demonstrates  that  the  appellant  is  exercising  its constitutional  right  of  appeal  from  the  decision  of  the  Court  below  in  an  action  brought  by  the  1st  respondent  against  the appellant  at  the  Court  below  vide  Section  241  (1)  (a)  of  the  1999  Constitution.  The  appeal  is  therefore  the  offshoot  of and/or stems from the action filed by the 1st respondent at the Court below. Consequently,  the  appeal  is  not  an  infringement  of  Section  308  (1)  (a)  and  (3)  of  the  1999  Constitution.”
Per  MUSTAPHA,  J.C.A. also state the position of the law in this way; “if  a  person  who  enjoys  absolute  immunity  chooses  to  throw  it  all,  and  files  a  suit  against  another  lesser  mortal, common  sense,  logic  and  especially  law  dictate  that  he  cannot  turn  around  and  be  heard  to  say  that  that  other  person  has no  option  than  ‘to  turn  the  other  cheek’.  It  doesn’t  work  like  that.  By  filing  a  suit  he  has  opened  himself  up,  anyone  he decides  to  sue  is  entitled  to  react  by  defending  himself,  or  appealing  against  that  suit  if  the  need  arises.
UGO J.C.A who read the leading judgement stated that; “First  respondent  having  opened  the  mythical  Pandora’s  Box,  or  better  still  sowed  the  wind,  by exercising  his  right  as  confirmed  in  Global  Excellence  Communications  Ltd  v.  Donald  Duke  (2007)  16  NWLR  (PT  1059)  22  to file  summons  against  appellant  in  Court,  must  be  ready  for  the  consequences  and  the  whirlwind  in  the  form  of  this  appeal. His  immunity  is  not  that  absolute  nor  go  that  far”.
Based on the above summations of their Lordships of the Court of Appeal There is nothing wrong to hold that no immunity conferred to an appeal against the suit initially filed by a person mentioned under subsection (3) of section 308 of the constitution. And THIS CAN BRING TO ANOTHER CONCLUSION THAT IF ONE INSISTS TO WAIVE HIS UNWAIVERABLE  IMMUNITY SHOULD RATHER INSTITUTE AN ACTION FIRST TO LEAD THE TRACK.

However, it also seem to me that the purpose of granting immunity is not duly achived. the Apex Court through His Lordship ONNOGHEN, J.S.C stated the purpose of immunity in the case of  MOHAMMED ABACHA  v FRN (2014) LPELR-22014 (SC) in the following words; 
”The purpose of the immunity is to allow the incumbent President or Head of State, or Vice President, Governor or Deputy Governor, a completely free hand and mind to perform his or her duties and responsibilities while in office; to protect the incumbent from harassment. The immunity, however, does not extend or cover the period immediately after leaving office neither does it extend to include his family members during and after the period of his incumbency.”

UGU J.C.A also held in the EFCC’s case (supra)
 ” The  provision  of Section  308  is  a  policy  legislation  designed  to  confer  immunity  from  civil  suit  or  criminal  process  on  the  public  officers named in Section 308(3) and to insulate them from harassment in their personal matters incurred before their election. “The  text  of  Section  308  are  explicit  and  conclusive”.

  If notwithstanding the ends of the provisions of section 308 an incumbent personal mentioned specifically under subsection 3 of the section can after all sue, appeal or respond to an appeal against his action. to me the provisions section 308 an their purpose are incomplete because a person sued has a constitutional right to prepare for his defence of the claims labelled against him and to counter – claim, by and large he can interlocutory appeal or against the whole decision he is dissatisfied, or cross appeal. This lacuna ought to be fulfilled else the good intentions that brought about section 308 provisions will be left half-archived.

Let me align with the dictum of UGO J.C.A in the EFCC’s case supra. His Lordship remarked;

“It  has  never  been  allowable  and  the  sacred  obligation  of  the  Courts  is  not  to  construe  any  of  the  provisions  of  the Constitution  to  defeat  the  obvious  ends  the  Constitution  was  designed  to  serve.  To  construe  the  provisions  of  Section  308 in  the  manner  suggested  and  thereby  enable  the  persons  named  in  Section  308  (3)  to  exercise  the  right  to  sue  in  addition to  the  absolute  immunity  conferred  on  them  whilst  in  office  by  Section  308  (1)  (a)  will  defeat  the  immunity  designed  by  the Constitution, and lead to manifest injustice.”
To this end it is Submitted, An immunity Clause is a mandotary and unwaiverable provision under section 308 of the 1999 constitution  of the Federal Republic of Nigeria (as altered), designed not just to protect the holders of the offices the immunity applies but to protect the nation from chaotic and jumble events by putting Court’s pressures on the class of people whom the nation have much expectations upon and owed the dominion of the national affairs. But this Immunity is subject to the exceptions provided under subsection 2 of the section 308. It was also submitted that section 308 didn’t prevent the people mentioned under subsection (3) from investigation by the law enforcement egency. Although they can’t be prosecuted during the lifetime of their office but the investigation findings can be used for impeachment or prosecution after they vacate the office. It was as well submitted that a person protected by immunity can sue other person, save that his action can be appealled even during his immunity’s life notwithstanding.

finally Immunity like many other provisions, section 308 have its own defects but i humbly opined that the benefits of the section 308 provisions outweigh their defects regarding the fact that immunity as held in the case of Muhammad Abacha(supra) is not for a lifetime the section only suspends  the right of action or the right to judicial relief of an aggrieved party during the tenure of office of the officials mentioned therein. The immunity does not extend beyond the tenure in office, after which the official shall be liable to face trial. Yet the section was also submitted as an incomplete, which to the humbly writer ought to have restricted the person mentioned under section 308(3) from instituting actions against other person during the life of their immunity so that the goodly aim of the immunity provision will be wholly archived by taking such persons completely out of court’s pressure except in the two circumstances specified under subsection (2) of the section which I believe are justifiable to the Democratic existence.

About the author 

ALKASIM ABUBAKAR (A.A.M.G) is A student of Law, ABU Zaria. He writes from zaria. and can be reached via. [email protected]
08033131653

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