Osinbajo and His Right to Sue

Can Vice President Yemi Osinbajo waive his constitutional
immunity under Section 308 of the Constitution and sue anybody,
organisation or institution that allegedly defamed him? Davidson
Iriekpen ponders this possibility within the legal context.

Vice-President Yemi Osinbajo, last Wednesday, declared that he
was ready to waive aside the constitutional immunity conferred on
his office to clear any case of alleged corruption levelled against
him.

The vice-president’s remarks came on the heels of allegations by
a political activist and former Deputy National Publicity Secretary
of the All Progressives Congress (APC), Timi Frank, that the number
two citizen mismanaged about N90 billion released by the Federal
Inland Revenue Service (FIRS) to prosecute the 2019 general
election.

Frank, through a statement on Monday in Abuja, had alleged that
he had reliable information from his sources in the presidency to
this effect.

But the vice-president, in a statement authored by his Senior
Special Assistant on Media and Publicity, Laolu Akande, via his
Twitter handle, disclosed that he had already instructed that legal
actions should commence against ‘Timi Frank and one Katchi Ononuju,
who put their names to these odious falsehoods.’

In the statement, the vice-president also expressed his
readiness to waive his constitutionally guaranteed immunity to
ensure that the truth about the allegation was unearthed.

The statement read: “In the past few days, a spate of reckless
and malicious falsehoods have been peddled in the media against me
by a group of malicious individuals. The defamatory and misleading
assertions invented by this clique had mostly been making the
social media rounds anonymously.

“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.”

Almost simultaneously, his solicitors, Femi Atoyebi & Co.
wrote a letter to Google demanding that it immediately “remove
and/or suspend the publication/broadcast of the defamatory
publication” warning that if it “fails, refuses or neglects to
remove the publication immediately, they would be compelled to
consider legal options open to the vice president.

As usual, the issue has raised the questions some of which
include: Can the vice president waive his constitutional immunity
to enable take up “the most robust adjudication” of several
baseless allegations, insinuations and falsehoods against his
person and office? Can he sue anybody, organisation or
institution?
Many analysts have said the vice president does have the right
under Section 308 to say that he could not sue anybody,
organisation or institution that defamed him.

They relied on the judgment of an Abuja High Court delivered on
June 18, 2009 where the court sitting as an appellate court over
the ruling of an Abuja Chief Magistrate Court on alleged criminal
defamation charge filed against the publisher of Leadership
newspaper, Sam Nda-Isaiah and three others, held that then
President Umaru Musa Yar’Adua lacked the power to maintain the
legal action against the suspects, because of Section 308 of the
1999 Constitution, which gives him immunity.

The alleged defamatory matter was a story published by the
Leadership newspaper on the alleged ill-health of the
president.
In arriving at the above decision, the two-man panel of judges led
by Justice Abubakar Talba purported to adopt a liberal
interpretation of Section 308 of the 1999 Constitution, and
erroneously cited some cases including that of Tinubu V. I.M.B
Securities (2001) 16 NWLR (Pt.740) 670, and G.E.C V. Donald Duke
(2007) 16 NWLR (Pt. 1059) 22.

This, they reckoned, supported the view that since the
constitution conferred immunity from civil and criminal prosecution
on a sitting president, vice president, governor, and deputy
governor, that would invariably mean that these officials are
estopped from instituting legal proceedings in their personal
capacity against any person during their tenure of office.

The exact provisions of Section 308 are reproduced hereunder as
follows: “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 any 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 any 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.”
Analysts believe that a cursory look at the provisions would show
that the constitution never expressly stated that a person
occupying the position of president, vice president, governor and
deputy governor could not institute legal action against any
person.

They argued that the section provides immunity from legal action
to the officials mentioned therein without debarring them from
instituting legal action in their personal capacity against other
persons.
The issue was settled by the Supreme Court in the case of Bola
Tinubu V. IMB Securities Plc (supra), and re-affirmed in the more
recent case of Global Excellence Communications Ltd. & Ors. V.
Mr. Donald Duke (supra).

In the case, the respondent, who was then the sitting Governor
of Cross River State, had instituted an action in his personal
capacity against the appellants, claiming various sums of money as
damages for alleged libellous publication in the appellant’s news
magazine.
A preliminary objection was raised as to the jurisdiction of the
court to entertain the suit on the ground that Section 308protects
the governor from being sued as well as debarring him from suing in
his personal capacity during his period of office.

The trial court sustained the preliminary objection and held
that by virtue of Section 308, the governor could neither sue nor
be sued. But the decision reversed by the Court of Appeal and a
further appeal to the Supreme Court through a unanimous dismissal
dealt a great blow to it.
In delivering the lead judgment at the Supreme Court, Justice
Walter Onnoghen cited with approval and adopted the dictum of
Ayoola JSC in the earlier case of Tinubu V. I.M.B Securities Plc
(supra) .

He said, “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 proceedings shall be
instituted or continued 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 her own judgment, Justice Mukhtar simply stated: “It will be
definitely wrong to read between the lines and in the process
smuggle matters, which were not intended by the legislature into
the provisions of S. 308 of the Constitution. Extraneous matters
should not be imported into legislation, but they should be given
their simple and grammatical meaning.”

Based on the decisions of the Supreme Court, it has become
apparent that the question of whether a president, governor or
their deputies can sue while in office had been laid to rest.

Culled from Thisday

Subscribe ToNairalaw News!