The Concept Of Immunity Vis – A- Vis Its Exceptions By; Toheeb Mustapha Babalola

Several times, counsels run to court to file proceedings against
some defendants and at the end of the day their case is struck out
due to the fact that the defendant is immuned.

Immunity according to the 8^th editon of the black’s
law dictionary, it defines immunity as any exemption from a duty,
liability or service of process especially such exemption granted
to a public official.

It can also be defined as protection from any form of court
proceedings. It is to be noted that a person who enjoys immunity
can not give evidence under section 175 of the evidence Act or that
such person is legally disabled as seen in section 30 of the
criminal code and section 50 of the penal code.

But rather, the drafters of the constitution felt that it is
inappropriate to bring the occupant of such position before a court
of law during the period while he is holding such position. Section
308 of the CFRN 1999 as amended provides:

(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 (I) 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 purpose of this section is to allow the office holders
enjoying the privilege of the immunity clause to be able to carry
out their duties with a complete freehand and free mind without no
distraction or intimidation. This can also be seen in the case of
Abacha v.FRN (2014) LPELR-22014 (SC) Supreme Court held that as
follows:

“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.”

However, the exception to this clause is that if the person is
being sued in his official capacity in any civil proceedings or
where he is a nominal party in any civil or criminal proceedings,
the immunity clause does not apply. See subsection (2) of the
section 308 of the CFRN1999 As amended.

For example, if His Excellency,Akinwunmi Ambode enters into your
land to erect a personal building, you can not sue him because no
process of court can compel him to appear before the court
throughout his tenure. See Duru v. Governor of Imo
State&Ors.(2017)

But if he enters as the governor of Lagos state to build a
government school on your land then you can sue because at this
time you are suing the governor of Lagos state not Akinwunmi Ambode
which signifies that you are suing him in his official
capacity.

In a situation whereby you are afraid that by the time his
tenure runs out, the cause of action would have died, you do not
need to worry because the proviso to subsection 1 provides a cover.
It reads:

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.

according to James Agaba, he is of the view that what this means
is that no matter how long the wrong complained of took place, the
law deems it, for the purposes of determining the limitation
period, that the wrong took place the next after the occupant’s
last day in the office in question.

In other words, time does not run while the occupant is in
office. It is to be noted that those enjoying immunity even though
they can’t be prosecuted but they can’t be investigated even in
office. See Fawehinmi v IGP & ors. (2002)

Moreover, immunity does not extend to election petition. See the
case of Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 54. The rationale
for suspending the operation of the immunity clause during the
hearing of election petition was explained by the late Justice
Kayode Eso in Obih vs. Mbakwe (1984) All NLR 134 at 148 when he
said:

“With respect, to extend the immunity to cover the governors
from being legally challenged when seeking a second term will spell
injustice.”

Those enjoying immunity can be impeached from
office:

By the virtue of section 143 & 188 of the constitution, a
president and a governor can be removed from office by members of
the national assembly and State Houses of Assembly. See Inakoju V.
Adeleke (2007) 4 NWLR (Pt 1025) 423, Marwa V. Nyako (2012) 6 NWLR
(Pt. 1296) 199, Ladoja V. INEC (2007) 12 NWLR (Pt 1047)

Conclusively, this type of immunity also extends to diplomats
and their families. See section 1(1) of diplomatic immunities &
privileges act and also judges for acts done in the discharge of
their judicial or quasi-judicial function. See section 188 of the
evidence act.

By Toheeb Mustapha Babalola, Faculty
of  Law, Bayero University Kano,08106244073