|
The President And The Governors May Sue, Though They Cannot Be Sued By Kelechi Adiele Esq.
I read with keen interest the story on page 7 of the Punch newspaper of Friday, 19th June 2009, wherein excerpts of the judgment of an Abuja High Court delivered on Thursday, 18th June, 2009 were published. According to the report, the High 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 president 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 said to be 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, as supporting 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 above decision has added yet another dimension to the needless and incessant discussion on the scope and ambit of Section 308 of the 1999 Constitution. For the avoidance of doubt, 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.”
A careful perusal of the above provisions would show that the constitution never expressly stated that a person occupying the position of President, Vice President, Governor and Deputy Governor cannot institute legal action against any person. In other words 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. It is my humble opinion that any construction by whatever canon of interpretation which suggests that Section 308 of the 1999 Constitution debars the President and others mentioned therein from instituting legal action to protect their personal interests stands logic on its head. Such an interpretation would necessarily infringe on the fundamental rights of the officers which, like that of other citizens, are firmly established in Chapter IV of the 1999 Constitution.
Luckily, the issue was settled by the Supreme Court in the case of Tinubu V. IMB Securities Plc (supra), which decision was re-affirmed in the more recent case of Global Excellence Communications Ltd. & Ors.
V. Mr. Donald Duke (supra). In the latter 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 308 protects 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. The decision of the trial court was reversed by the Court of Appeal and a further appeal to the Supreme Court was unanimously dismissed. In delivering the leading judgment of the Supreme Court, Onnoghen JSC cited with approval and adopted the dictum of Ayoola JSC in the earlier case of Tinubu V. I.M.B Securities Plc (supra) thus:
“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 the light of the decisions of the Supreme Court mentioned above, it is apparent that the question of whether a President or Governor cannot sue while in office had been laid to rest.
One then wonders at the rationale behind the strange decision of the Abuja High Court in the yar’Adua case. Surprisingly, the High Court purported to rely on the Supreme Court decisions in Tinubu V. I.M.B Securities Plc (Supra), and Global Excellence Communications Ltd. & Ors. V. Mr. Donald Duke (Supra) in arriving at the controversial decision, whereas there was nothing in the judgment of the Supreme Court in both cases that supports the conclusions reached by the High Court. This, indeed, is a worrisome development which portends danger for administration of justice in the country.
The courts are enjoined to interpret statutes to give effect to their ordinary meaning, and it is only where such literal interpretation would lead to manifest absurdity that the court can resort to other canons of interpretation like the Golden Rule, Mischief Rule amongst others. According to Mukhtar JSC in Global Excellence Communications Ltd. & Ors. V. Mr. Donald Duke (Supra); “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”
One could not agree more with the position of the Honourable Justices of the Supreme Court on the issue. To encourage or condone misinterpretation and misapplication of express statutory provisions would lead to erosion of the notion of sanctity of laws, and destruction of the very foundation of our legal system.
Kelechi Adiele, a legal practitioner writes from suite BC20A, Maryland Business Plaza, Maryland, Lagos.
|