A dissestion of Section 308 of the Constitution of the Federal Republic of Nigeria, 1999 as amended

SEBASTINE T. HON, SAN, FCIArb.

Introduction

Section 308 of the 1999 Constitution as amended, has in crystal clear terms restricted legal proceedings against the President and Vice-President of Nigeria and the Governors and Deputy Governors, respectively, of the various States. For clarity of purpose, the said section provides 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 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 this 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; and the reference in this section to “period of office” is reference to the period during which the person holding such office is required to perform the functions of the office.

 

The above provisions of the Constitution have received wide judicial interpretation. We shall, therefore, hereby examine the extent of applicability of section 308 and also comment on its merits, given Nigeria’s peculiar circumstances.

Meaning and limits of section 308

The provisions of section 308 of the Constitution came up for interpretation in the case of Abacha vs. Fawehinmi,[1] wherein his lordship, Uwaifo, J.S.C., held thus:

The immunity provided for does not apply to the person in question in his official capacity or to a civil or criminal proceeding in which such a person is only a nominal party. The immunity is to protect such a person from the harassment of his person while in office for his action done in his private capacity before or during his tenure in office. In fact in the present case, the suit is against the “Head of State and Commander-in-Chief of the Armed Forces (General Sani Abacha) ” and it is in respect of his alleged action in his official capacity. The immunity provided for in the Constitution does not arise and does not apply.

Also, in Rotimi vs. MacGregor,[2] the then Military Governor of Western State, 1st appellant herein, was sued personally over a parcel of land. The Supreme Court held that by virtue of a similar provision in the 1963 Constitution, the action was incompetent.

The provisions of section 308 also came up for interpretation in Fawehinmi vs. I.G.P.,[3] where the Court of Appeal held as follows:

The simple and ordinary meaning of section 308(1) is that the person(s) to which the provisions apply should not be made to face civil or criminal proceedings in court. The word “proceedings” after “civil or criminal” makes it clear and incontrovertible that what was intended was proceedings in court or tribunal and not police investigations. Section 308 does not shield or protect any of the persons named therein from police investigation. But such investigation should be done as not to infract on the provisions of section 308. The word “otherwise” in section 308(1)(b) is to cater for and cover situations not specifically provided for under the paragraph but which may result in the arrest or imprisonment of the person concerned.

In affirming this decision, the Supreme Court,[4] held further that police investigation of the immune person cannot be equated with criminal proceedings, because criminal proceedings are commenced when an accused person is arraigned before a court, or at least, when an information or a charge has been filed against him in court. It also held that police investigations could be carried out upon a criminal allegation against a Governor “so long as the police do not encounter him in the course of their investigation.” Uwaifo, J.S.C., who read the lead judgment of the Court, held on page 1386 rather rhetorically thus:

Suppose it is alleged that a Governor, in the course of driving his personal car, recklessly ran over a man, killing him; he sends the car to a workshop for the repairs of the dented or damaged part or parts. Or that he used a pistol to shoot a man dead and threw the gun into a nearby bush. Or that he stole public money and kept in a particular bank or used it to acquire property. Now, if the police became aware, could it be suggested in an open and democratic society like ours that they would be precluded in section 308 from investigating….? The police clearly have a duty under section 4 of the Police Act to do all they can to investigate and preserve whatever evidence is available…. The evidence may be useful for impeachment purposes if the House of Assembly may have need of it. It may no doubt be used for prosecution of the said incumbent Governor after he has left office. But to do nothing under the pretext that a Governor cannot be investigated is a disservice to the society.

The Court of Appeal, in Ali vs. Albishir,[5] held that a careful examination of the entire provisions of section 308(1) and (2) of the 1999 Constitution suggests that the intendment of the framers of the Constitution was to provide a shield for the person of the President, Vice President, Governor or Deputy Governor from frivolous or vexatious litigation in respect of personal or criminal proceedings that would distract him from the serious business of governance.[6] Quoting copiously from previous decisions, his lordship, Kekere-Ekun, J.C.A., as he then was, held on page 1710 thus:

In my respectful view, it is clear from the rationale for section 308 as explained by the learned jurists above, that the immunity provided for therein is to protect the incumbent from civil or criminal proceedings being instituted “against” him in his personal capacity while in office.

In Umana vs. Attah,[7] it was argued that the Code of Conduct Tribunal having previously indicted the 1st Respondent, he was disqualified from contesting the present Governorship election. The alleged indictment, however, took place when the 1st respondent was serving his first term as Governor of that State. It was held that the purported indictment was unconstitutional, it being in breach of section 308 of the Constitution.

Also, in Tinubu vs. I.M.B. Securities Plc,[8] the respondent had, in a suit filed before the appellant became the Executive Governor of Lagos State claimed against the appellant the sum of N2.5 million for breach of contract. While an interlocutory appeal in the suit was pending before the Court of Appeal, the appellant became the Executive Governor of Lagos State. The respondent, relying on section 308 of the 1999 Constitution, applied that the matter be adjourned sine die, an application the appellant vehemently opposed. Appellant had contended in opposition that he had decided to waive his immunity under that section. But in granting the application, the Court of Appeal held that the Governor cannot waive the immunity granted him under section 308 of the 1999 Constitution. It construed the phrase “or continued” in section 308(1)(a) and held that by the appellant insisting on continuing with the appeal, he was trying to ‘continue’ with the original suit. The Court of Appeal, however, relying on two authorities,[9] held that nothing in section 308 stops a Governor from suing in his personal capacity, distinguishing this right from the right of appeal the appellant had wanted to exercise in this case. The reasoning of the Court was that this right of appeal arose out of a suit ‘continued’ against the Governor in his personal capacity as opposed to the Governor suing in his personal capacity. Even though the Supreme Court affirmed the judgment of the Court of Appeal,[10] it differed with it with respect to the consequential order of adjourning the interlocutory appeal sine die; because the apex Court struck it out, with liberty to relist the same after the appellant had vacated office as the Governor of Lagos State.

Commenting on the import of section 308, his lordship, Aboki, J.C.A., held in Attorney General of the Federation vs. Abubakar,[11] while delivering the lead judgment of the Court of Appeal, as follows:

 I am of the opinion that restriction on legal proceedings whether civil or criminal against any person to whom section 308 of the 1999 Constitution applies, is absolute during his period of office. Such a person shall not be arrested or imprisoned either in pursuance of the process of any court or otherwise and no process of any court requiring or compelling his appearance shall be applied for or issued. The only exception to the prohibition against prosecution is where a civil proceeding is instituted against the person to whom the section applies and in his official capacity or where the proceedings are against him as a nominal party.

His lordship further reasoned on page 1299 that section 308 prohibits prosecution in both a regular court of law and before the Code of Conduct Tribunal. On the submission of appellant’s counsel that the respondent was also estopped under section 308 from himself instituting the action, his lordship held quite forcefully, and correctly, too, on page 1299 thus:

 The operative word under section 308(1)(a)… is the word “against.” The word “against” provides a shield or immunity from the institution of any civil or criminal proceedings against the holders of the offices of President, Vice President, Governors or Deputy Governors while their tenure subsists. The provisions of section 308(1)(a) of the Constitution does not deprive the holders of the offices mentioned under section 308(3) of their right to personal liberty and fair hearing under the Constitution.

Thus, in G.E.C. Limited vs. Duke,[12] the Supreme Court held that while the persons named in subsection (3) cannot be proceeded against, they can sue in their personal capacities even during their tenure of office, to enforce their rights, notwithstanding the provisions of section 308.[13]

Exceptions to section 308

The provisions of section 308 are restricted to the persons named therein and do not cover members of their families. Thus, it has been held that the immunity granted under this provision is restricted to the persons named therein and cannot be extended to cover their children; and further that even though it covers such named persons, the cover is not extended to when they leave office but is limited to when they are in office.[14]

The second exception or limitation is that the immunity lasts only during the tenure of the protected official and cannot be extended even by a second thereafter. In Alamieyeseigha vs. Teiwa,[15] the 2nd and 3rd respondents had, through a motion ex parte sought and were granted leave of court to compel the 4th respondent (the Chief of Air Staff) to dismiss the appellant (who had now become the Executive Governor of Bayelsa State) from service for the offence of cheating in an examination at the Command and Staff College, Jaji, in 1991. Leave was also granted them to have the matter reported to the Inspector-General of Police and the Attorney-General of the Federation for prosecution of the appellant. Thereafter, an originating motion was served together with the enrolled order granting leave, on the Chief of Air Staff who refused to show up in court. Consequently, the substantive motion was also granted as prayed. Meanwhile, the appellant who was directly affected by all the orders made by the learned trial Judge was not made a party to the action and was also not served with any process relating thereto. Immediately he got wind of the developments, he applied by way of motion to have the orders set aside. The learned trial Judge refused the application. Appellant thereafter sought for and was granted leave to appeal to the Court of Appeal as a person interested. After a thorough consideration of section 308 of the Constitution, the Court of Appeal allowed his appeal. It held that as long the appellant held the office of Executive Governor of Bayelsa State, he was completely insulated against prosecution, civil or criminal, and that a breach of section 308 in any form renders any such process or proceedings null, void and of no moment. Also, that failure to put the appellant on notice in a matter that was injurious to him not only breached section 36 of the 1999 Constitution, but also section 308 thereof. Further that the immunity granted under section 308 cannot be waived. This is because the immunity granted by the section does not belong to the person concerned, but to the State he represents. However, that the moment the person concerned leaves office, he ceases to enjoy the immunity.

The Supreme Court, in tandem with existing decisions on the issue, also rolled out at least two exceptions or limitations to this rule in the case of Hassan vs. Aliyu,[16] as follows:

Section 308 is a complete bar to civil and or criminal suits against the named officials during their tenure of office. The provision clearly suspends the right of action or the right to judicial relief. In other words, the right of action is put in the limbo until the expiration of the tenure of office of the affected official, which right of action is revived as soon as that tenure expires.

The immunity donated by section 308 does not apply to actions instituted against the protected officials in their official capacities or where they are only nominal parties. The protection is also not available when they are sued in election petitions challenging their election into office.

Also, in Manuwa vs. NJC,[17] the Court of Appeal held, relying on the decision of the Supreme Court in Tinubu vs. I.M.B. Securities Plc, supra, at page 690, that where a person is sued in his official capacity, the immunity granted under section 308(1) will not avail him.

The limitation in section 308 does not also apply to an election petition or a suit challenging the protected official’s election into office. Thus, in Obih vs. Mbakwe,[18] the Supreme Court held that a similar section under the 1979 Constitution did not shield a Governor from being sued by his opponent over an election petition. In following this decision, the Court of Appeal, in Alliance for Democracy vs. Fayose,[19] held that the immunity enjoyed by a Governor under that section applied to ordinary civil and criminal proceedings and not to election petitions wherein the election of the Governor is being challenged.

The rule that section 308 of the Constitution does not apply when the election into office of any of the named officials is being challenged was rightly and correctly extended by the Court of Appeal in Enyadike vs. Omehia,[20] to cover when such named official is sworn in, since the challenge is against his election into office.

However, a distinction has to be drawn between a suit challenging the official’s election while he is sworn in and a suit challenging his nomination filed after he has been inaugurated or sworn in. Thus, in Hassan vs. Aliyu,[21] the appellant had contested primary elections under the platform of the Peoples Democratic Party, PDP. He won and was cleared to contest under the ticket of PDP in the general election into the office of Governor of Niger State. Before the general elections, however, the PDP had applied to the Independent National Electoral Commission, INEC, and had secured the substitution of the appellant with the 1st respondent, who never even contested the said primary election. Although appellant felt aggrieved, he did not take legal action until well after the 1st respondent had contested the general elections, had won and had even been sworn in as the Governor of Niger State. Appellant’s suit was dismissed by the High Court, the Court of Appeal and the Supreme Court, inter alia, on the ground that it offended section 308 of the Constitution on immunity against civil and criminal proceedings. The apex Court reiterated its longstanding principle that the immunity created by section 308 temporarily puts a stop to an action pending when the occupant of that office vacates it, and that it is upon vacating such office that the cause of action regains its life. The Court then went ahead to restate the following principles with respect to the interpretation of section 308 of the Constitution, namely:

 

  • The essence of section 308 is not to deny the citizen his right of access to court; rather, it is a provision put in place to enable the protected officer, while still in office, to conduct the affairs of governance free from hindrance, embarrassment and difficulty that may arise if he is being constantly pursued and harassed with court actions.

 

  • By virtue of section 308(1)(c) of the Constitution, in ascertaining whether any period of limitation applies to oust a cause of action against any of the named officials, no account shall be taken of his period of office.

 

The apex Court concluded that since the present suit sought to remove the 1st respondent from office but not via an election petition, the trial Court was right to decline jurisdiction on account of section 308 of the Constitution.

 

Conclusion: Section 308 is good legislation in Nigeria

In conclusion, it is hereby submitted that section 308 is a good piece of legislation, given the circumstances of Nigerian politics. One should not lose sight of the tribal, ethnic, religious, egoistic and sentimental manner politics is practiced in Nigeria, hence section 308 is an insightful shield against such anti-public tendencies that have crept into Nigeria’s political landscape.

Also, as found by superior courts of record above, without section 308, the protected officials will be unduly harassed, persecuted and consequently distracted from performing their official duties. Arguments that this constitutional shield should be lifted so that bad elected officials could be dealt with fly in the face of other constitutional safeguards, including but not limited to the right of the electorate not to vote for them or the right of the legislature to have them impeached from office.

Finally, as also shown above, the immunity granted by the section does not extend to the period they have left office. We have many former State Governors standing trial today for crimes they had allegedly committed whilst still in office. It is on record that Governor Lucky Igbinedion, former Governor of Edo State, was convicted for crimes he had committed while he was in office. Even in respect to civil wrongs they would have committed while in office, superior courts of record in Nigeria, as shown above, have held that right of action against their persons is only suspended till they leave office. This then means that time will not start running in order for statutes of limitation to apply until after such officials leave office.

 

SEBASTINE T. HON, FCIArb.

sebashon@yahoo.com

(Author and Legal Practitioner)

 

 

 

 

[1] (2000) 4 SCNJ 400 at 460.

[2] (1974) 11 SC 133.

[3] (2000) FWLR (Pt. 12) 2015.

[4] Fawehinmi vs. IGP (2002) FWLR (Pt. 108) 1355 S.C.

[5] (2008) All FWLR (Pt. 415) 1681 C.A.

 

[6] Reliance on Tinubu vs. IMB Securities Plc (2001) FWLR (Pt.77) 1003; Media Tech. (Nig.) Ltd. vs. Adesina (2005) 1 NWLR (Pt. 908) 461; I.C.S. (Nig.) Ltd. vs. Balton B.V. (2003) 8 NWLR (Pt. 822) 223; Umanah v. Attah (2004) 7 NWLR (Pt. 871) 63 and Alamiesigha v. FRN (2006) 16 NWLR (Pt. 1004) 1

[7] (2005) All FWLR (Pt. 246) 1285 C.A.

[8] (2001) 8 NWLR (Pt. 714) 192 C.A.

[9] Aku vs. Plateaus Publishing Corp. Ltd. (1985) NCLR 338 and Onabanjo vs. Concord Press of Nig. Ltd. (1981) 2 NCLR 298.

[10] Tinubu vs. IMB Securities Plc (2001) 16 NWLR (Pt. 740) 670 at 698 S.C.

[11] (2007) All FWLR (Pt. 389) 1264, at 1298-1299 C.A.

[12] (2007) All FWLR (Pt. 387) 782 S.C.

[13] Reliance on Tinubu vs. IMB Securities Plc (2001) 16 NWLR (Pt. 740) 670 at 721-722 S.C.

[14] Abacha vs. F.R.N. (2014) 6 NWLR (Pt. 1402) 43 S.C.

[15] (2002) FWLR (Pt. 96) 552 C.A.

[16] (2010) All FWLR (Pt. 539) 1007 S.C., (2010) 17 NWLR (Pt. 1223) 547 S.C.

[17] (2013) 2 NWLR (Pt. 1337) 1 C.A.

[18] (1984) 1 SCNLR 192. See, also, Turaki vs. Dalhatu (2003) FWLR (Pt. 170) 1378 C.A.

[19] (2004) All FWLR (Pt. 218) 951 C.A.

[20] (2010) 11 NWLR (Pt. 1204) 92 C.A.

[21] (2010) All FWLR (Pt. 539) 1007 S.C., (2010) 17 NWLR (Pt. 1223) 547 S.C.

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