“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.”
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.
“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.”
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.
” 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. “
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.
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.”