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]
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