Immunity is define by L. B. CURZON dictionary
of law (sixth edition) as freedom or exemption from some
obligation, penalty, or power of another. Immunity clause in
Nigeria is inherited from our colonial master, in their law the
Crown has immunity see CROWN PROCEEDINDS ACT 1947; PEARCE
V. SECRETARY OF STATE FOR DEFENCE (1988) 2 WLR 1027.
The provision of Section of 308 of the Constitution of the
Federal Republic of Nigeria, as amended provide thus:
308(1) Notwithstanding anything to the contrary in this
institution, but subject to subsection (2) of this section-
- No civil or criminal proceedings shall be instituted or
continued against a person during to whom this section applied
during his period of office; - a person to whom this section applies shall not be arrested or
imprisoned during that period either on pursuance of the process of
any court or otherwise; and - 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 provisions of Section 308 of the Constitution is very clear
to the effect that no criminal or civil action can be instituted or
continued against the persons holding the office of the President
or Vice-President, Governor or Deputy Governor.
The constitutional immunity so conferred does not extend to
election matters but is limited to purely civil and criminal
matters neither does the immunity create a correlative duty on the
occupant of that office not to institute action (s) against any
person party while in that office see AMAECHI V. I. N. E. C
(2008) 5 NWLR (PT. 1080) 227.
Section 308 are mandatory, no civil or criminal proceedings can
be instituted or if already instituted shall be continued against
the person holding the office mentioned in that section. The court
in the case of GLOBAL EXCELLENCE COMM. LTD. V. DUKE (2007)
16 NWLR (PT. 1059) 22 held thus:
Section 308 (1) (a) of the 1999 Constitution confers on
the President or Vice-president, Governor or Deputy-Governor,
absolute immunity against institution of civil or criminal
proceedings against the President or Vice-president, Governor or
Deputy-Governor as long as they remain in office as
much.
It is the position of the law that where an action or proceeding
has been instituted prior to the person assuming the relevant
office, such action or proceeding cannot be continued against the
occupant of that relevant office during his/her tenure in office,
this is not the making of the office holder rather the provision of
our constitution.
Also the section does not bar the person (s) mentioned in that
section from instituting actions in their personal capacities. The
apex court in the case of GLOBAL EXCELLENCE COMM. LTD. V.
DUKE (supra) stated thus:
Section 308 of the 1999 Constitution confers absolute
immunity on those therein mentioned, without a corresponding
disability on them to exercise of their rights to institute actions
in their personal capacities in any relevant court of law for
redress during their tenure of office.
The said section in prohibiting a person from instituting civil
or criminal proceedings against the person (s) stipulated therein
went ahead to make use of the word “SHALL” to send
a signal of mandatory term and no room for discretionary power.
The word “shall” is define by L. B. CURZON
dictionary of law (sixth edition) when used in drafting, the word
suggest an imperative, a command, as compared with “may”, which
involves permission. The word shall as defined does not give room
to permission rather it is a command that must be obey, and only
the way prescribe by the use of the word. The court in the case of
AGUSIOBO V. ONYEKWELU (2003) 14 NWLR (PT. 839) 34
stated thus:
The use of the word shall in the provision of a statute connotes
that the provision is mandatory.
A person protected by the provisions of Section 308 of the
Constitution with due respect to the Vice-President of Nigeria Prof
Yemi Osinbajo SAN, can be investigated without having to wave any
right which is not even in existence.
It is my submission through this article that the person who
occupy any office stated in the named section of the constitution
can be investigated and does not need to waive any right regarding
investigation.
Also the holder of the office cannot waive the right enshrined
in the constitution while in office, the honourable thing that can
be done is to resign from that office or be impeach in other to be
brought before the court, the said person does not have the power
to waive such a right.
It is my humble submission regarding the media proclamation of
the Vice President willingness to waive his right to be
investigated as been misconceived in law, the person of the vice
president can be investigated in but no actions whether civil or
criminal can be brought against him during his tenure of office and
such right cannot be waive while he still occupy the office, if he
so willing to submit his right to resign from is unfetter which
should be the appropriate statement.
PRINCE ADEDAYO SAMUEL ADESHEILA is a counsel in
the law firm of Ferd Orbih SAN & Co.