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The Immune Waives His Immunity: A Sheer Derogation of the Provisions of the Nigerian Constitution by Muhammad Buhari

Muhammad Buhari

It is an ongoing constitutional issue that draws legal attention for urgent consideration as to whether an
immune personality possesses the choice to waive his immunity so as to pursue legal process in a court
of law. It was established, long ago, by the apex court to the effect that an immune personality could
never be sued nor sue in whatever capacity ( subject to exceptions as provided under section 308 of the
1999 constitution ) during the currency of his position for which he is immune.

However, the recent departure by the supreme court from its earlier decision, to the contrary effect, saps the immunity clause, as entrenched in constitution, of its purposes as intended by the drafters of the constitution.
Logic sides with this writer that if an immune personality institutes an action against any individual or organization, he stands the risk of being counter- claimed and being testified against by witnesses pursuant to the right of fair hearing of such an individual or organization.

And if his case weights weaker on the scale of justice, the immune, must have the judgement passed against him. That is what the public policy seeks to protect him against to enable him carry out him responsibilities without
obstructions.

IMMUNITY DEFINED

The Black Law Dictionary, eighth edition, defines the terms immunity as; ‘‘Any exemption from a duty, liability, or service of process; such an exemption granted to a public official’. In a judicial term immunity entails as below:
”… ‘exemption’ carries a similar meaning as immunity, so that when one is exempted from existing legal
relations, he will be said to have immunity or exemption. The doctrine of immunity turns out to be the
correlative of disability and the negative of liability, again, in other word; immunity is clearly analogous
to disability tending to no liability.”
By Chukwuma Eneh, J.C.A in Duke v Global Excel Communications
Ltd &Ors (2007)1WRN 63.

Immunity is therefore, a special privilege granted to some office holders in order to bar some legal
proceedings against them during the currency of their functions.

IMMUNITY UNDER NIGERIAN CONSTITUTION

The relevant provision is section 308 of the Nigerian constitution 1999 as amended. It provides thus;
“ Notwithstanding anything to the contrary in this Constitution, subject to sub- section (2) of this
section-
(a) no civil or criminal proceeding 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.
The clarification and interpretation of this section was given per Kariby-white in the authority of BOLA
TINUBU v. I.M.B. SECURITIES PLC. (2001) LPELR SC.32/2001 where the almighty apex court said:
“The literal construction of section 308(1)(a) is that no actions, civil or criminal can be brought, or
continued against any of the persons stated in section 308(3). Such a person cannot be arrested or
imprisoned during his tenure either in pursuance of the process of any court or otherwise – S.308(1)(b).
No process of any court requiring or compelling the appearance of a person to whom the section
applies, shall be applied for or issued. It would seem unarguable that apart from the matters excluded in
s.308(2) there is an absolute bar to actions in civil or criminal proceedings against the persons named in
section 308(3). Per Kariby-White.”

THE PURPOSE OF IMMUNITY

Immunity clause does not exist in the constitution to derogate the various provisions of the constitution
that make advocacy for the principles of equality before the law. Far beyond that, the aim is to protect
the immune personalities from distractions from carrying their official responsibilites during the
subsistence of their tenure. The apex court opined in the recent case of ABACHA v. FRN (2014) LPELR-
22014(SC)

”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.” Per ONNOGHEN, J.S.C

THE POSITION OF LAW

It was a long resting position of the supreme court that, subject to exceptions as provided under
subsection (2) of section 308 of the Nigerian constitution, immune could not sue, be sued nor waive
such an immunity. On this, let’s consider the following decisions.

In the case of Alamieseigha v Yeiwa [2000]7 NWLR (Pt.767)581 Muntaka-Coomassie, J.S.C said that:
“Courts in Nigeria have no jurisdiction to try a person on criminal charge or civil matter if he is entitled
to immunity under the constitution even if for a reason that his immunity is waived. Any waiver of
such immunity is ineffective. The immunity under section 308(3) of the Constitution is over and above
the popular diplomatic immunity; therefore, waiver of any kind does not arise. The immunity is not that
of the person of the appellant but of the particular State which he represents during the tenure of his
office as an executive governor of a state.” Emphasized

Also the case of TINUBU V. I.M.B SECURITIES Plc. (2001) 16 NWLR (Pt.740) 670 the Supreme court
held, Per IGUH, J.S.C, 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.
It’s understood from the foregoing argument, relying on the authorities provided, that an immunity,
albeit some exception, is absolute.The absolution is stressed in the sense that no one, who is immune, is
susceptible to litigation whether by or against for the purpose of public policy for which the immunity
clause itself is entrenched in the constitution.

RECENT DEVELOPMENT

Unfortunately, some recent developments in the judicial aspect reveal rather a reckless departure from
the above meticulously examined position of the law. A trend which this writer call a derogation and

diversion from the sacredness of the constitution which is the grund norm and supreme law as
envisaged by section 1 of the said constitution. The following decisions are examined to observe some
revelations.
In IBORI & ANOR V. FEDERAL REPUBLIC OF NIGERIA (2009) 3 NWLR (Pt. 1127) 94 at 106-107 Oguntade
J.C.A said that:
“Reading the provision of section 308 of the 1999 Constitution above, and giving the provision its
ordinary interpretation, there is nothing stopping a Governor from initiating actions against other
persons for reliefs in his personal capacity. It may appear rather odious and may be unfair that the
same Constitution that protects a governor from being sued does not correspondingly protect other
persons from the suit of the governor. But it is not for me to read into the constitution a provision not
therein stated.” Emphasis added.
Also in the case of THE ECONOMIC AND FINANCIAL CRIMES COMMISSION v. MR. AYODELE FAYOSE &
ANOR (2018) LPELR-44131(CA)
“I only want to go further to answer the question raised by Chief Ozekhome to the effect that the
immunity against prosecution enjoyed by 1st respondent under Section 308 of the 1999 Constitution
was so absolute that even this appeal of appellant against the case 1st respondent himself instituted
and obtained judgment against appellant at the lower Court cannot be proceeded with and or continued
as it is incompetent. That argument, with due respect to the learned silk, is another non sequitur. 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.
The court went further to say that,
“May I add also, that the argument of learned senior counsel to the effect that the 1st respondent’s
immunity bars not only every civil or criminal proceeding against him, by reason of Section 308 of the
Constitution, but even proceedings on appeal, against a suit instituted, if he chooses to institute one, as
in this case, untenable with all due respect. I say so because, 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 doesn’t 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. I
am fortified by the decision of the Supreme Court in TINUBU V I.B.M SECURITIES PLC (2001) 16 NWLR
part 740.”

The fact of the above case was that Fayose as a Governor filed an action and succeeded against the EFCC
in the trial court. However, when the EFCC apealed, he invoked to be shielded by the immunity clause
against the appeal. Unfortunately for him, the court held that by initiating an action against the EFCC in
the first place he became succumbed and his immunity being waived. Consequently, the recent position
of the law suggests the possibility of waiving immunity by an immune. However, where such happens he
must take the risk of being counter_claimed or being appealed against.

THE FOLLY OF THE IMMUNITY WAIVER

To waive one’s immunity is to srip the shield that one is given by the constitution. It’s clear, as
considered above in this work, that an immunity is vested in an office that the immune holds but not in
his personality. That is, of course, why the immunity ceases when the immune ceases to hold the office
for which he is immuned. During the currency of his function, the immune, on the ground of public
policy in order to protect him from distraction, save as provided by the constitution is absolutely
immuned. Any attempt to strip oneself from immunity is like inviting unnecessary ambush from the
public which tends to be distractive to the free discharge of public functions. To this end, I deem apt to
invoke the comments of Professor Ben Nwabueze where he opined that:
” is for the office and not for the man…It is the majesty and dignity of the nation that is at stake. To drag
an incumbent president to court and expose him to the process of examination and cross examination
cannot but degrade the office. The affront to the nation involved in this could be easily perceived if it is a
foreigner temporarily resident in the country were to take its president to court for, say, a breach of
contract, and attempt to discredit him in cross-examination as a liar and disreputable person. It makes
no difference that the complainant is a national. The interest of the nation in the preservation of the
integrity of its highest office should outweigh the inconvenience to the individual of the temporary
postponement of his suit against the president”.
It’s nowhere stated in the recent cases considerd above that an immune personality can be sued.
However, when he opts to sue, the person sued can appeal against him in pursuit of his right to fair
hearing.

CONCLUTION

It’s proved in this work, through punctilious and keen analysis of the recent decisions of the apex court,
that there is a subtleness as to whether an immunity is waiverable or not. The Vice President, Federal
Republic of Nigeria, who intends to waive his immunity by sueing some Nigerians , is not unmindful of
the risk of being counter-claimed or even being appealed against, as we have seen in the case of of
EFCC V FAYOSE (2018) LPELR-44131(CA) considered above.
This writer dares not to hold any contrary opinion with the Vice President who has attained his pinnacle
in the legal industry both as an academia as well as an advocate. However, the idea is absurd and rapes
the immunity clause, as enshrined in the constitution, of its purpose which as we have considered is to
protect the immune personalities from any distraction during the currency of their offices on the ground
of public policy.

Written by Muhammad Buhari, Faculty of law ABU Zaria
muhammadbuhari570@gmail.com
08037189490

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