An Immunity Clause As An Unwaiverable Right By Alkasim Abubakar (A.A.M.G)

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. To ease
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 up held 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 plaintiff in the High court of
Lagos) sued the appellant 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 interlocutory appeal against the
leave granted for the extension of the plaintiff’s writ of summon’s
life span to the Court of Appeal, Lagos Division on the 12th June,
1995. Whilst the 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 parties 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 judgment 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 reaching to 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 want to go
under the rigors of trial should rather waive his office, since the
immunity is not forever.
At this time it is very pertinent to put it down that Section 308
doesn’t capped the offices holders mentioned under subsection 3 of
the section from investigations. 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 suing others for
redress or personal wrong doing. Permit me to adopt the dictum of
His Lordship Ayoola canvassed in his concurrent judgment 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 needs 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 section 233 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
judgment 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 doesnt 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 judgment 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 the 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 LEAD TO ANOTHER CONCLUSION THAT IF ONE INSISTS TO
WAIVE HIS UNWAIVERABLE IMMUNITY SHOULD RATHER INSTITUTE AN ACTION
FIRST TO LEAD THE TRACK.

However, it’s also seems to me that the purpose of granting
immunity is not duly archived. 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 defense of the claims labeled against him and to
counter – claim, by and large he can interlocutory appeal or appeal
against the whole decision he is dissatisfied, or cross appeal when
need arises. 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 mandatory
and un-waiver-able 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
provides 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
agency. 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 appealed even during his
immunity’s life notwithstanding.

Finally the provision of Immunity like many other provisions,
have its own defects but i humbly opine 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 this humble writer ought to have restricted
the persons mentioned under section 308(3) from instituting action
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.

ALKASIM ABUBAKAR (A.A.M.G), A student of Law, ABU Zaria. writes
from zaria. and can be reached via. [email protected]^[1], 08033131653

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PHOTO: EFCC Raids Haven of Ibterbet Fraudsters in
Abuja

Operatives of the Advanced Fee Fraud Section of the Abuja Zonal
office of the Economic and Financial Crimes Commission, EFCC on
Monday September 30, 2019 raided the residences of suspected
internet fraudsters at Flats 1 and 3, Life Camp Extension Estate,
Abuja.

The operations which was carried out following information
regarding the alleged criminal activities of the suspects, led to
the arrest of the following: Raphel Chibuzor, Oyewumi Adewale,
Onyeogheni Isioma Progress, Ayo Abiodun Richard, Oloyede Faith
Damilare and Ibrahim Yusuf Waziri.

Some of the items recovered from the suspects include mobile
phones, laptop computers, a Toyota Highlander SUV and Toyota
Corolla car.
They will be charged to court as soon as investigations are
concluded.

Wilson Uwujaren
Head, Media & Publicity