LEGAL IDEAS FORUM

“GOD” SHIELD THE KING AND KING WANTS TO STRIP HIMSELF: TIPTOEING WITH IMMUNITY THROUGH THE MINEFIELDS OF NIGERIAN LAW

BACKGROUND
The Vice -President of Federal Republic of Nigeria, Prof. Yemi Osinbajo, SAN was alleged to have siphoned the sum of N 90billion from the Federal Inland Revenue Service to fund the 2019 general elections. In his reaction to this allegation, the Vice president who has reached the apex in both academia and Legal practice,  claimed that it was libel against his reputation, he added  “ I have today instructed the commencement of legal action against two individuals, one Timi Frank and another Katch Ononuju, who have put their names to these odious falsehoods.” “ I will waive my constitutional immunity to enable the most robust adjudication of these claims of libel and malicious falsehood.”
What this statement portend have engaged the minds and sent a hot wave of question through the brain of constitutional law students and lawyers some cum   public analyst, “Can immune person scatter it to the wind?” Many have criticized the VP, for his being a learned silk, but, to them, went to commit an awkward constitutional law howler. Against this background, this research decided to embark on a voyage through the Nigerian Law, to see on which page the correct legal position on waiving the immunity lies. To achieve this, this research have briefly traced the evolution and cradle of the concept of immunity. Immunity, being the main diction that drive this topic was also defined. The provision of immunity under 1999 Constitution was also analysed. Can Immunity be waived? Being the main thrust of our wordings was explored in the light of two judicial authorities and we finally conclude this research voicing our opinion regarding the VP’s saga. The succeeding heading is the evolution of the doctrine of Immunity.
EVOLUTION OF IMMUNITY
The doctrine of immunity is not novel idea as it have been sowed in the grund norm of many countries in the world.  It’s incorporation in Constitution of the Federal Republic of Nigeria could be traced to the impact of Common law of England on Nigeria. The common law itself found the principle in the ancient feudal structure of England. In feudal system,   there was a royal and legal phraseology that says, “the king can do no wrong (Rex non potest peccare)”,  one writer explored that, 
The feudal rule that no lord of the manor could be sued in his own court meant that the king being the great overlord of all and the peak of the English legal system, could not be suing in his own court or in the court of any of his vassals. Added to this procedural difficulty was principle of substantive law that ‘the king can do no wrong’ which meant that no act or omission of the sovereign was open to impeachment or condemnation on the ground that it was wrongful or tortuous.
So as H. Street put it,  the king, at the apex of the feudal pyramid and subject to the jurisdiction of no other court, was not suable.* This idea found it’s way and became an established common law principle, and Nigeria, being once in the captivity of England, inherited English common Law and thence, the doctrine of immunity found it’s way to our constitutional making. 
The 1999 Constitution of federal republic of Nigeria is not the first to contain the idea of immunity. Immunity was recognized by S.161 (1) of 1963 , s.267 of 1979 and then now, s.308 of 1999 Constitution of federal republic of Nigeria.  Immunity, Immunity,  Immunity, what is Immunity?
MEANING OF IMMUNITY
The word immunity connotes protection of certain office holders from litigations while they are in office. The tenth edition of Black’s Law Dictionary at p. 867 defines immunity to mean, An exemption as from a duty, liability or service of a processes; esp., such an exemption granted to public official or governmental unit
From the foregoing definition we can understand that Immunity is a special Privilege that exempt some offices holders from certain duties of law. More precise meaning of Immunity was given by Oxford Definition of Law at p. 265 to mean Freedom or exemption from legal proceeding. a Judicial definition  of Immunity was given by Chukwuma Eneh, J.C.A in Duke v Global Excel Communications Ltd &Ors (2007)1WRN 63. where he said, 
It should be noted that ‘exemption’ carries a similar meaning as immunity, so that when one is exempted from existing legal relations, he will be said to have immunity or exemption. The doctrine of immunity turns out to be the correlative of disability and the negative of liability, again, in other word; immunity is clearly analogous to disability tending to no liability.
From the above definitions, the immunity could said to be a legal doctrine that exempt some office holders from litigation or proceedings before any  court of law. The spine of this doctrine is the principle of functional necessity. The intendment  of the constitution or the law invested them with immunity is to protect them from litigation so as to enable them to perform the duty of their offices without being distracted. The penultimate court in the authority of Alamieseigha v Yeiwa [2000] 7 NWLR (Pt.767) 581
 The intendment of the section is to bar any proceedings, civil or criminal which will have the effect of interfering with the running of the office to which any of them was elected…
Prof. Ben Nwabueze also opined that, 
..is for the office and not for the man…It is the majesty and dignity of the nation that is at stake. To drag an incumbent president to court and expose him to the process of examination and cross examination cannot but degrade the office. The affront to the nation involved in this could be easily perceived if it is a foreigner temporarily resident in the country were to take its president to court for, say, a breach of contract, and attempt to discredit him in cross-examination as a liar and disreputable person. It makes no difference that the complainant is a national. The interest of the nation in the preservation of the integrity of its highest office should outweigh the inconvenience to the individual of the temporary postponement of his suit against the president. 
Despite the importance of Immunity, it has been depicted as an elixirs of the corrupt practices in Nigeria,  since the immune persons are shield from being litigated before any court of law or tribunal in respect of civil and criminal allegations levelled against them. This have injected so many Nigerians to call for its removal from the constitution. For instance,  the late Chief Gani Fawehinmi was once said:
The entire section 308 has to go. If it does not go, corruption will not end in Nigeria. If section 308 is not removed, executive lawlessness will never stop in Nigeria. If section 308 is not thrown out of our constitutional order, abuse of power will continue to heighten in the body polity of Nigeria.
This writer chooses to subscribe to the view of his humble lecturer, an associate Prof. K.M Danladi who opined that removing the Immunity clause would indeed distract the executive from performance of its duties, through frivolous and vexatious litigations. In his view, the power of immunity should therefore be reduced by subjecting the executive to investigation and if there is a strong cause established against them, an application should be moved before a competent court for lifting such immunity and the court will consider the application judicially and judiciously. Where the court lifted it, an action would be instituted  against the erring  executive. 
The concept Immunity could be seen under two headings; Absolute or Qualified. Qualified immunity is a partial exemption from civil liability, for instance,  Legislative Immunity that protects lawmakers from civil liability arising from the performance of legislative duties or judges for what they did during proceedings. Absolute Immunity,  as it’s name connotes, is a complete exemption from liability. For example,  Executive Immunity which enshrined under s.308 of the 1999 Constitution.
IMMUNITY UNDER 1999 CONSTITUTION
S.308 of the 1999 CFRN provides that:
“ Notwithstanding anything to the contrary in this Constitution, subject to subsection (2) of this section-
(a) no civil or criminal proceeding 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.
The clarification and interpretation of this section was given per Kariby-white in the authority of BOLA TINUBU v. I.M.B. SECURITIES PLC. (2001) LPELR SC.32/2001 where the almighty apex court said: 

 “The literal construction of section 308(1)(a) is that no actions, civil or criminal can be brought, or continued against any of the persons stated in section 308(3). Such a person cannot be arrested or imprisoned during his tenure either in pursuance of the process of any court or otherwise – s.308(1)(b). No process of any court requiring or compelling the appearance of a person to whom the section applies, shall be applied for or issued. It would seem unarguable that apart from the matters excluded in s.308(2) there is an absolute bar to actions in civil or criminal proceedings against the persons named in section 308(3). Per Kariby-White.”

The effect of the above s. 308 and the interpretation given in TINUBU’s case is that, no any litigation, whether civil or criminal,  can be brought against the President, Vice President,  Governors or their deputies. These persons can’t be compelled to appear before the courts to stand any trial. The only exception to this is where the action is against the incumbent in his official capacity or as a nominal party.  For example, in Shugaba Darman’s case Alhaji Shehu Shagari, the then President was joined as a nominal party.
Where  any person is standing trial before any court and that person sworn into one of the above mentioned offices, the case against him should be struck out. See the cases of INDUSTRIAL AND COMMERCIAL SERVING LTD V. BALTON BV (2003) 8 NWLR; TINUBU V. I.M.B (Supra); CHIEF COLLINS v SAM MBAKWE (1984)1 SCNLR 192.
when any proceeding seen to have been instituted against an incumbent executive, the court will ask it is self, was he sued in his personal capacity? If the answer is in affirmative, the suit can’t be maintained. See SAMUEL IGBE V. PROF. AMBROSE ALLI (1981) 1 N.C.L.R. 124, 132.
Having meticulously read and understand the above provisions,  we can conclude that, the provision of s.308 constitutes an ouster against either criminal or civil proceeding in respect of any person holding any of the mentioned offices. Now let us  turn to answer our most important question in.
CAN IMMUNITY BE WAIVED?
To this writer, if immunity is to be waived, that would be in a three way traffic. Either to be waived by statutory provision, court of law or by the immune person. 
As to The first way, the above mentioned s. 308 opening clause reads “Notwithstanding anything to the contrary in this Constitution” the clause is to the effect that no any statute or any provision in the constitution can defeat immunity clause. The meaning of the word notwithstanding was given in the case of Abubakar v. A.G.F [2007] ALL.F.W.L.R (Pt 398)117.it said that: 

When the word ‘notwithstanding’ is used in a section of a statute, it is meant to exclude an impinging or impending effect of any other provision of the statute or other subordinate legislation so that the said section may fulfil itself. It follows that, as used in section 251(1) of the 1999 Constitution, no provision of that Constitution shall be capable of undermining the said section.

Thus, after a combine reading of the above authorities with s. 308 we can conclude that, Section 308 is absolute and can not be undermined by any statute. Moreover, no part of the constitution can whittle down this clause. The only option, if immunity wanted to be waived by statute, is to alter the provision or scatter it to the four wind. 
The courts of law also can’t, albeit a bastion of justice, waive immunity. In the case of  Alamieseigha v Yeiwa [2000]7 NWLR (Pt.767)581  Muntaka-Coomassie, J.S.C said that:

“Courts in Nigeria have no jurisdiction to try a person on criminal charge or civil matter if he is entitled to immunity under the constitution even if for a reason that his immunity is waived. Any waiver of such immunity is ineffective. The immunity under section 308(3) of the Constitution is over and above the popular diplomatic immunity; therefore, waiver of any kind does not arise. The immunity is not that of the person of the appellant but of the particular State which he represents during the tenure of his office as an executive governor of a state.”

Now come to the third option,   whether Immunity can not be waived by the immune person?  This could be answered  in the light of two judicial authorities. The first authority is that of TINUBU V. I.M.B (SUPRA).
TINUBU V. I.M.B  SECURITIES Plc. (2001) 16 NWLR (Pt.740) 670
By a writ of summons instituted on the 26th day of November, 1992 at the High Court of Lagos State, the plaintiff claimed against the 1st defendant the sum of N2.5 million being the outstanding balance owed in respect of an overdraft facility granted by the plaintiff to the said 1st defendant. The plaintiff also claimed, as against the 2nd and 3rd defendants, the same amount together with interest, upon the breach of their obligations under the contract of guarantee entered into by the parties and arising out of the overdraft facility. The application of the 3rd defendant (Tinubu) for the dismissal or alternatively striking out of the plaintiff’s action was, having been overtaken by events, struck out. Dissatisfied with the decision,  he appealed to the Court of Appeal, and while the appeal was pending, he was sworn in as Governor of Lagos State. The respondent sought the court to adjourned the matter Sine Die since the appellant (who is a governor) is Immune from proceedings in his personal capacity.  The appellant said that he is ready to proceed and therefore he waived his immunity. The court of Appeal held that he can’t waived his immunity.  Dissatisfied,  he appealed to the Supreme Court and the court 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.” Per IGUH, J.S.C (P. 25, paras. A-E)
From the diligent reading of the above decision it has surfaced that an Immunity can’t be personally waived and no court can entertain any litigation in respect of the immune person. Based on this decision, the appropriate thing when the court has a case involving  an immune person is to struck it out.

It is worthy to note that, although the Tinubu’s showed that a person can’t waive his Immunity and go into frivolous  litigation,  this position have been changed in the light of recent decision in EFFC V. FAYOSE
THE ECONOMIC AND FINANCIAL CRIMES COMMISSION v. MR. AYODELE FAYOSE & ANOR (2018) LPELR-44131
Before delving into discussing this case, it is worthy to note that, nothing stops the immune persons from initiating a suit to obtain remedy for wrongs done to them in their personal capacity.  In Chief Victor Onabanjo v Concord Press of Nigeria (1981) 2 N.C.L.R. 399. Kolawole J. Stated: 

” The question,  which arises here is, in this: Has the plaintiff any fundamental right to institute a civil action for many wrong before he became the Governor of Ogun State? The answer must be in the affirmative.  Can such vested right be abrogated without an express provision on the law in Republican Constitution? I do not think so…..There is no provision in the Republican Constitution  which prohibits the institution of an action by a state Governor in his private capacity. I am not prepared to travel outside the Constitution on a voyage of discovery. “

In  IBORI & ANOR V. FEDERAL REPUBLIC OF NIGRIA (2009) 3 NWLR (Pt. 1127) 94 at 106 – 107 Oguntade J.C.A said that:

Reading the provision of section 308 of the 1999 Constitution above, and giving the provision its ordinary interpretation, there is nothing stopping a Governor from initiating actions against other persons for reliefs in his personal capacity. It may appear rather odious and may be unfair that the same Constitution that protects a governor from being sued does not correspondingly protect other persons from the suit of the governor. But it is not for me to read into the constitution a provision not therein stated.

See also the case of DUKE V. GLOBAL EXCELL COMMUNICATION  (2007) 1 WRN 63. 85-88
Two thing have surfaced to this writer after a diligent reading of the above decisions. It’s only by virtue of express Constitutional provision that the Immunity could be waived. Although an action can not be brought against an immune person, no any provision of law that prevent him from suing any person that wrongs him.  This position of law is indeed is ad variance with common sense and justice, lack a reflection to the true position of the rule of law, which emphasis for equality before the law. Moreover,  it is contradiction with  the intendment of the drafters of the constitution that exempt executive from being sued. 
It also raised another question, Counter claim is a separate action,  where the immune person decided to institute an action and the dependant decided to institute a counter claim against him,  could the office holder be accorded immunity in such case? This question was answered in the case under consideration.   
Governor Fayose filed an action against the EFFC before Federal High Court Ekiti division challenging freezing of his  bank account. The court ordered the unblockage of his account. Dissatisfied,  the dependant/ Appellant appealed to the penultimate  court.   The respondent being immune, challenged the appeal. And the court held that, 

I only want to go further to answer the question raised by Chief Ozekhome to the effect that the immunity against prosecution enjoyed by 1st respondent under Section 308 of the 1999 Constitution was so absolute that even this appeal of appellant against the case 1st respondent himself instituted and obtained judgment against appellant at the lower Court cannot be proceeded with and or continued as it is incompetent. That argument, with due respect to the learned silk, is another non sequitur. 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
The court went further to say that, 
May I add also, that the argument of learned senior counsel to the effect that the 1st respondent’s immunity bars not only every civil or criminal proceeding against him, by reason of Section 308 of the Constitution, but even proceedings on appeal, against a suit instituted, if he chooses to institute one, as in this case, untenable with all due respect. I say so because, 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. I am fortified by the decision of the Supreme Court in TINUBU V I.B.M SECURITIES PLC (2001) 16 NWLR part 740.” 

it is obvious from the above decision that where the immune person decided to institute an action against another, he should be ready to accept the consequences and whirlwind he have drawn upon himself.  Such consequence is nothing but stripping himself from the protection and therefore,  become naked in respect of that proceedings. In other word, immunity is constitutional provision and no any part of the constitution or a any court of law can declare it waive, but where the immune person institute an action against another person, he has waived his immunity in that matter, and therefore the dependant(s) in that could counter claim or even lodge an appeal against him. 
CONCLUSION
When the Vice President mentioned waiving his immunity, to me (based on the news I read online, published by the Punch) , he means waiving it through instituting an action for libel against the persons (both natural and artificial) he mentioned, for it is settled now that, where the immune person decided to open the mythical Pandora’s Box and opened himself to the litigation, he has stripped himself from the immunity and the other party is entitle to depend its self and even counter claim. 
A person can’t declare his immunity waived, but where he instituted an action against a lesser mortal, although god has saved him from been litigated, but the king by instituting an action have stripped himself, and therefore, all the needles in that matter can penetrate his skin. 
About the author 
Ahmad Abubakar Dubagari, is an author, writer, poet, studying Law at the Law faculty,  Ahmadu Bello University,  Zaria. He could be reached through [email protected]  or his phone (+234) 0814 651 5644
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