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In The Supreme Court of
On Friday, the
13th day of July 2007
Before Their Lordships
S.C. 313/2006
Between
And
Judgment of Court
Delivered by
Walter Samuel
Nkanu Onnoghen.
J.S.C.
This is an appeal against the
judgment of the Court of Appeal, holden at Calabar
in appeal No. CA/C/06/05 delivered on 2nd
May 2006, in which it allowed the appeal of the present respondent against
the ruling of the High Court of Cross River State holden at
Calabar
in suit
No. HC/261/2004
delivered on the
8th day of November, 2004.
On the 23rd day of
July, 2004 the present respondent, the Governor of Cross River State as
plaintiff, instituted an action in the trial court against the appellants,
as defendants, claiming the following reliefs:-
"1.
The sum of
2.
Exemplary or punitive damages in the sum of N10 billion (ten billion
naira)."
Upon service of the writ on
them, the appellants caused a conditional appearance to be entered on their
behalf by learned counsel who proceeded further to file a notice of
preliminary objection on the 3rd day of September, 2004
challenging the jurisdiction of the court to entertain the suit as
constituted.
The grounds on which the
preliminary objection is based are stated as follows:-
"1.
The plaintiff cannot, by virtue of the provisions of section 308 of
the Constitution of the Federal Republic of Nigeria, 1999, institute,
maintain, or continue with any proceedings, including the present suit, in
any court of law, nor can any proceedings be instituted, maintained or
continued against him in his personal capacity.
2.
The Plaintiff has failed to comply with the mandatory requirement of
section 97 of the Sheriffs and Civil Process Act
3.
The annexure to the plaintiff's statement of claim titled "Universitas
Pennsylvaniensis" should be expunged from the
court's record, the same not being a document that this Honourable (sic) can
use.
4.
This suit discloses no reasonable course (sic) of action
5.
This suit (sic) vexatious and constitute a flagrant abuse of the
process of this Honourable Court."
There is no affidavit in
support of the Notice of Preliminary objection.
Upon the conclusion of
arguments on the preliminary objection, the learned trial judge held, inter
alia, that
"....... a
serving Governor cannot sue or be
sued in his personal capacity while still in that office."
The plaintiff was not
satisfied with that ruling and therefore appealed to the lower court which,
by a majority decision, allowed the appeal resulting in the instant appeal
to this Court.
In the appellant's brief of
argument filed on 16/2/07 by Mba E.
Ukweni Esq, learned
counsel for the appellants, the following issue has been identified for the
determination of the appeal:-
"Whether, taking into consideration the decision of this court in
Tinubu vs. I.M.B. Securities PLC
(2001) 8 NWLR (pt. 740) 192 at 708 and 718 and that of the Court of
Appeal in I.C.S. (Nig) Ltd vs
Ballon B.V. (2003)
8 NWLR
(pt. 822) 223 at 235,
the learned justices of the Court
of Appeal were right in coming to the conclusion that a serving Governor of
a state can sue or initiate
proceedings for reliefs in his personal capacity while in office?"
On the other hand, learned
counsel for the respondent, Charles E. Duke Esq,
in the respondent's brief filed on 29/3/07 also formulated a single issue to
wit:-
"Whether having regard to section 308 of the Constitution of the Federal
Republic of Nigeria 1999, the Respondent, being the Governor of Cross River
State, is precluded from suing the Appellants for libel."
It can be seen clearly that
the issues as formulated by both counsel are substantially the same. That
apart, it is also clear that the substance of the appeal is grounded on the
proper interpretation of the provisions of section 308 of the 1999
Constitution.
In arguing the issue, learned
Counsel for the appellants' submitted that by the provisions of section
308(1) of the Constitution of the Federal Republic of Nigeria, 1999,
(hereinafter referred to as the 1999 Constitution) which he reproduced, the
respondent, who is the Governor of Cross River State of Nigeria is incapable
of suing or initiating any proceedings in his personal capacity in any court
of law in matters affecting him while remaining the Governor of the said
state; that it is not correct, as held by the lower court that the said
section 308(1) of the 1999 Constitution prohibits persons, such as the
appellants, from suing the holders of the offices listed under section
308(3) of the 1999 Constitution but left the categories of persons so
immuned from suit or prosecution such as the respondent, free to institute
actions in their personal capacities while in office; that it is unfair to
hold that while the respondent is immuned from suits and/or prosecution by
any person, the very respondent who is so immuned is free to institute
actions against any person in his personal capacity for any wrong during the
period of immunity; that the construction given by the lower court to
section 308 of the 1999 Constitution is therefore one sided; that the
decision of the lower court as well as the earlier decision of that court in
Media Techniques (Nig) Ltd
vs Adesina (2005) 1
NWLR (pt. 908) 401 and the High Court decisions in
Aper
Aku vs Plateau
Publishing Corporation Ltd (1985) 6NCLR 338 at 342 and
Onabanjo
vs Concord Press of Nigeria Ltd (1981) 2 NCLR
298 all overlooked what learned counsel calls
"the
principles and polices (sic) (policies) of social justice, equality, equity
and fairness upon which our constitution and law are founded,"
relying on
sections 14(1);
17(1) (2) (a)
and 36
of the 1999
Constitution.
Learned Counsel further
submitted that the judicial powers vested in the courts under section 6 of
the 1999 Constitution must be exercised at all times and circumstances in
accordance with the dictates of the fundamental principles on which the
Constitution and law are based;
that to allow the respondent or any of those mentioned under section
308(3) of the 1999 Constitution to sue or institute actions against persons,
as done by the respondent in this case, who cannot serve him with any
process issued at their instance nor can they counter claim against him does
not accord with the principle of justice, equity and fairness which
constitute the basis of our constitution and law; that the immunity granted
by section 308(1) of the 1999 Constitution is absolute and cannot be waived.
Referring to and relying on the dicta of Karibi-White,
J.S.C. and Kalgo, J.S.C. in the case of
Tinubu
vs I.M.B. Securities PLC at pages 708
and 718 of the report, learned
counsel submitted that once one of the parties to a case, be it at trial or
appeal stage is identified to come within the persons mentioned in section
308(3) of the 1999 Constitution, the action
is rendered
incompetent due
to the
absolute immunity
conferred by the Constitution; that the lower court ought to have considered
itself bound by the dicta relied upon by counsel; for which counsel cited
and relied on the case of
Ifediorah
vs Ume (1988) 2 NWLR (pt. 74) 5 at 13 per
Nnaemeka-Agu, J.S.C.; that to allow the decision of the lower court to stand
would lead to absurdity and that once it is clear that manifest absurdity
will be occasioned by adherence to the ordinary and literal construction of
a statute, particularly constitutional provisions, the liberal approach
ought to be adopted to avoid the absurdity and injustice, relying on the
case of Awolowo
vs Shagari (1979)
All NLR 120; (1979) 6 -9 S.C 51;
Oviawe
vs Integrated Rubber Products Ltd (1997) 3 NWLR
(pt. 492) 126 at 147. Finally learned counsel urged the court to resolve
the issue in favour of the appellants and allow the appeal.
On his part, learned counsel
for the respondent reproduced the provisions of section 308 of the 1999
Constitution and submitted that the said provisions are very clear and
unambiguous in that it gives immunity to the respondent, while in office as
Governor of Cross River State, against civil or criminal proceedings but
does not thereby disable the respondent, while in that office, from
instituting a civil proceeding against anybody and that the lower court was
right in holding that the Constitution does not deprive the respondent of
the right to sue; that section 308 of the 1999 Constitution should be
construed by its plain or literal meaning and nothing more, relying on the
case of Abley
vs Dale (1851) 11 CB 378 at 391;
Magor
& St. Mellons Rural District Council
vs Newport Corporation (1951) A.C 189 at 191
and Media Tech. (Nig) Ltd
vs Adesina (2005) 1
NWLR (pt.908) 461 at 475 by the Court of Appeal.
Learned Counsel further
submitted that there is no provision in the 1999 Constitution prohibiting a
serving state Governor as the respondent, from instituting an action against
another person; that the issue of fairness equity, social justice and
equality do not arise in the instant case; that the case of
I.C.S. vs
Balton B.V (supra) cited and relied upon by
his learned friend never made a definitive pronouncement on the ability or
disability of a serving Governor to sue another person in his personal
capacity. On the principles of interpretation of the Constitution to guide
the court, learned counsel cited and relied on the case of
Rabiu
vs The State (1981) 2 NCLR 293 at 326 and
submitted that the power to fill in the gaps or amend the Constitution lies
with the National Assembly. Relying on the dictum of AYOOLA, J.S.C. in the
case of Tinubu
vs I.M.B Securities PLC (supra) at 721 - 722
learned counsel submitted that a serving Governor of a state has the power
to institute an action against any person or persons in his personal
capacity and urged the court to resolve the issue against the appellants and
dismiss the appeal.
The whole case hangs on the
interpretation or construction of the provisions of section 308 of the 1999
Constitution which 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 applied for or issued;
Provided that in
ascertaining whether any period of limitation has expired for the purpose 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."
It is very clear that section
308(1) (a) of the 1999 Constitution confers on the President,
Vice-President, Governor or Deputy Governor absolute immunity against the
institution of civil or criminal proceedings or the continuation of such
civil or criminal proceedings against the President or Vice-President,
Governor or Deputy Governor as long as they remain in office as such. It
follows therefore that where an action or proceeding had been instituted
prior to the person assuming the relevant office, such action or proceeding
cannot be continued against the occupant of the relevant office during his
tenure in the said office - see
Tinubu
vs I.M.B. Securities PLC (2001) 16 NWLR (pt.
740) 670 at 708. By the provision of subsection 2 of section 308, it is
dear that the immunity conferred on the persons occupying the offices
mentioned under section 308 of the 1999 Constitution does not extend to
cases or actions instituted against the said persons in which the persons
are nominal parties and in their official capacities such as the President;
Vice-President; Governor or Deputy Governor.
From the facts of this case,
it is not disputed by the parties that the respondent is the Governor of
Cross River State of Nigeria and that he instituted suit
No. HC/261/2004 at the High Court of Cross River State holden at
Calabar against the appellants while holding
that office; that the action so instituted is in the personal capacity of
the said respondent arising from an alleged libel against the person and/or
character of the
respondent. In addition to the above undisputed facts, is the
agreement of both counsel in their briefs of argument that section 308(1) of
the 1999 Constitution grants absolute immunity to the respondent against the
institution or continuation of any civil or criminal action against the
respondent in any court of law in
In the case of
A-G of Bendel
State vs A-G of the Federation & ors (1981) 9
S.C (Reprint) 1 at 78 - 79, Obaseki,
J.S.C. stated the principles guiding the court
in interpreting or constructing the provisions of our constitution to
include the following:-
"(1)
Effect should be given to every word.
(2)
A construction nullifying a specific clause will not be given to the
Constitution unless absolutely required by the context.
(3)
A Constitutional power cannot be used by way of condition to attain
unconstitutional result.
(4)
The language of the Constitution where clear and unambiguous must be
given its plain evident meaning.
(5)
The Constitution of the Federal Republic of Nigeria is an organic
scheme of government to be dealt with as an entirety; a particular provision
cannot be dissevered from the rest of the Constitution.
(6)
While the language of the Constitution does not change, the changing
circumstances of a progressive society for which it was designed yield new
and fuller import to the meaning.
(7)
A Constitutional provision should not be construed so as to defeat
its evident purpose.
(8)
Under a Constitution conferring specific powers, a particular power
must be granted or it cannot be exercised.
(9)
Delegation by the National Assembly of its essential legislative
function is precluded by the Constitution (Section 58(4) and section 4(1))
(10)
Words are
the common signs that mankind make
use of to declare their intention one to another and when the words of a man
express his meaning plainly and distinctly and perfectly, there is no
occasion to have recourse to any other means of interpretation.
(11) The
principles upon which the Constitution was established rather than the
direct operation or literal meaning of the words used, measure the purpose
and scope of its provisions.
(12) Words of
the Constitution are therefore not to be read with stultifying narrowness."
It is with the above
principles in mind that the provisions of section 308 of the 1999
Constitution will be interpreted. However, it is settled law that the duty
of the courts is simply to interpret the law or Constitution as made by the
legislature or the framers of the Constitution. It is therefore not the
Constitutional responsibility of the judiciary to make laws neither can it
amend the laws made by the legislature. It must therefore be borne in mind
always that courts cannot amend the Constitution neither can they change the
words used in crafting it.
I had earlier reproduced the
provisions of section 308 of the 1999 Constitution in this judgment and it
is my considered view that the provisions are very clear and unambiguous. It
is now settled that:
"In the area of construction, the primary concern of the courts is the
ascertainment of the intention of the legislature or law makers. From this
function, the court may not reside however ambiguous or difficult of
application the words of the law or Act may be, the court is bound to place
some meaning upon them. If the language is clear and explicit, the court
must give effect to it, for in that
case, the words of the statute
speak the intention of the legislature. Its function is jus
dicere not jus dare. The words of a statute
must not be overruled by the judges"
per OBASEKI, J.S.C. in
Ojokolobo
vs Alamu (1987)
3NWLR (pt. 61) 317 at 402.
Bearing the above words of
wisdom in mind particularly as the words used in section 308 of the 1999
Constitution are very clear and unambiguous, I hold the view that they ought
to be given their plain and simple meaning as the said words speak for
themselves particularly as they clearly demonstrate the intention of the
framers of the Constitution which is clearly not to place any disability on
the persons mentioned under subsection 3 of section 308 of the 1999
Constitution, including the respondent, from instituting or continuing any
civil action against any person or persons during their tenure of office.
The prohibition contained in section 308 of the 1999 Constitution is rather
against other parties and for the benefit of the respondent and
others mentioned therein particularly during the period they occupy the
relevant offices.
I hold the considered view
that to hold otherwise or agree with the proposition of learned counsel for
the appellants would amount to the court reading into section 308 of the
1999 Constitution words that are not therein contained thereby, in effect,
amending the said provision, which would be outside the Constitutional
province of the courts of law. That apart, I had earlier in this judgment
reproduced some of the important principles of law guiding the courts in
interpretation of our constitution and as can be gleaned
therefrom there is nothing like the principle of
equity, fairness, social justice and equality, in the conduct of judicial
affairs as canons of interpretation of the Constitution. The submission of
learned counsel for the appellants in that respect, though very persuasive
on moral grounds, has no foundation in law and is consequently
discountenanced by me. The duty of the court is not to deal with the law as
it ought to be but as it is. From the words used by the framers of section
308 of the 1999 Constitution, it is clear that their intention is explicitly
to confer absolute immunity on the respondent and the others therein
mentioned without a corresponding disability on them to the exercise of
their rights to institute actions in their personal capacities in any
relevant court of law for redress during their tenure of office, as in the
instant case.
The above view finds support
in the dictum of Ayoola,
J.S.C. in
Tinubu
vs I.M.B. Securities PLC (supra) at 721 -
722 where the following view is expressed:-
"Thirdly, 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 not provision to that effect, either
expressly or by necessary implication in the enactment. If 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 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 a
person during his period in office'
Or in like terms.
The makers of the Constitution in their wisdom did not
so
provide."
I entirely agree with the
above dictum and adopt same as mine in this judgment. I consequently reject
the contrary dicta of Karibi-Whyte and
Kalgo, JJSC in the
case of Tinubu
vs I.M.B. Securities P.L.C at 708 and 718
cited and relied upon by learned counsel for the appellants as the same are
not in accord with the clear intention of the framers of section 308 of the
1999 Constitution. I also do not agree with the submission of learned
counsel for the appellants that a confirmation of the interpretation of
section 308 of the 1999 Constitution by the lower court would lead to
absurdity particularly as a contrary interpretation would be adding to the
said provision what is not expressly stated or intended, or putting
unnecessary strain on that section which strain the said section will be
unable to bear.
In conclusion I resolve the
lone issue in this appeal against the appellants and hold the considered
view that the appeal is without merit whatsoever and deserves to fail.
The appeal is therefore
dismissed with
The
judgment of the Court of Appeal holden at Calabar
in appeal No.
CA/C/06/2005 delivered on the 2nd day of May, 2006 is hereby
affirmed by me.
Appeal dismissed.
Judgment Delivered by
Niki
Tobi. J.S.C.
The respondent is the
plaintiff. The appellants are the defendants. Following the publication in
the Global Excellence Magazine of Tuesday, May 11 - May 17, 2004 under the
caption "Gov. Donald Duke in messy certificate scandal”, the respondent sued
the appellants for the sum of
The appellants raised a
preliminary objection on the competence of the action and the jurisdiction
of the court to entertain it. Of relevance to this appeal is Ground 1 of the
objection. It reads:
"The Plaintiff cannot, by
virtue of the provisions of section 308 of the Constitution of the Federal
Republic of Nigeria, 1999, institute, maintain or continue with any
proceedings, including the present suit, in any court of law, nor can any
proceedings be instituted, maintained or continued against him in his
personal capacity."
Upholding the preliminary
objection, the learned trial Judge said at pages 40 and 41 of the Record:
"The Court of Appeal, to my
mind, for the first time at one instance in the
ICS Ltd case, pronounced on the
ability of a serving Governor to sue and be sued in his private/personal
capacity. I say so because in the Tinubu case
the Supreme Court pronouncement was in respect of any claim or relief
against a person to whom that section of the Constitution applies during the
period he holds office, in this case a serving Governor is the sole
plaintiff. I think we have come to end of this journey as I am bound by the
Court of Appeal decision in the ICS
Ltd case to wit: that the plaintiff cannot be sued nor can he sue
another person in our courts while he occupies the position of Governor of
Cross River State. He can of course do so when he vacates as time does not
run against him while in that office."
In an appeal to the Court of
Appeal, that court, in a split decision, allowed the appeal. The court, in a
majority decision, said at page 91 of the Record:
"The irony of it all is that
this court never decided that a Governor cannot sue another person in our
courts while he occupies the position of Governor. In the
ICS v. Balton
BV (supra) it was never an issue before the court and it made no such
decision. It is for the foregoing reasons that I conclude that the trial
Judge misdirected himself when he held that the case of
ICS vs. Balton
BV (supra) overruled all other cases and that he had reached the end of
the road. Perhaps the end of the road will be in sight when the Supreme
Court finally decides this issue."
Dissatisfied, the appellants
have come to this court. As usual, briefs were filed and duly exchanged. The
appellants formulated the following issue for determination:
"Whether, taking into
consideration the decision of this court in
Tinubu
vs. I.M.B. Securities Plc (2001) 8 NWLR (Pt. 740) 192(sic) at 708 and 718
and that of the Court of Appeal in
I.C.S. (Nig) Ltd, v. Balton BV (2003) 8 NWLR
(Pt. 822) at 235, the learned Justices of the Court of Appeal were right
in coming to the conclusion that a serving Governor of a State can sue or
initiate proceedings for reliefs in his personal capacity while in office."
The respondent formulated the
following issue for determination:
"Whether having regard to
Section 308 of the Constitution of the Federal Republic of Nigeria 1999, the
Respondent being the Governor of Cross River State, is precluded from suing
the Appellants for libel."
The crux of this appeal is the
interpretation of section 308 of the Constitution. The section provides:
"(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 purpose 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."
In the interpretation of the
Constitution, the court is bound by the provisions of the Constitution.
Where the provisions of the Constitution are clear and unambiguous, the
court must give a literal interpretation to them without fishing for a
likely or possible meaning. This is because by the clear and unambiguous
provisions, the makers of the Constitution do not intend any other likely or
possible meaning. However, where the provisions are not clear, a court of
law can fish for a likely or possible meaning to bring out or arrive at the
intention of the makers of the Constitution. Even here, the court has no
jurisdiction to go out on an unguarded voyage of discovery completely
outside the intention of the makers of the Constitution. The court is
expected to apply a compass in a ship to navigate the waters to arrive at
the intention of the makers of the Constitution.
What does section 308 say?
What is the real meaning of the section? Section 308 only bars or prohibits
a person from instituting civil or criminal proceedings against the
respondent. The section does not say that the respondent, who comes under
subsection (3), cannot sue for any wrong done him. In other words, while the
section bars any person to sue the respondent, it is silent in respect of
the right of the respondent to sue for a wrong done him. It will be wrong to
say that the silence of the section anticipates that the respondent cannot
sue. In my view, if the Constitution does not specifically provide for a
situation or silent on a situation, it will not be right for the courts to
read into the Constitution a particular meaning, as submitted by counsel for
the appellants, barring the respondent from suing. Access to court is a
constitutional right which can only be taken away by a clear provision in
the Constitution. It cannot be taken away by implication or speculation by
the courts.
In
Chief Onabanio
v. Concord Press of Nigeria Ltd. (1981) 2 NCLR 399, the plaintiff - the
Governor of Ogun State in Nigeria - in his
personal capacity sued the defendant which is the publisher of Concord
Newspapers for libel claiming
The court held that:
“1.
Although under Section 267 of the Constitution it is expressly stated
that the plaintiff being a Governor cannot be sued in his personal and
private capacity, nevertheless the Constitution is silent on whether or not
a Governor can sue in his personal or private capacity.
2.
It is not the duty of a court of law to fill in any gaps in the
Constitution.
3.
Since he is not expressly incapacitated by any provision of the
Constitution, the Governor can sue in his private and personal status."
I entirely agree with the
judgment. It cannot, or better, should not be otherwise. See also
I.C.S. (Nig.) Ltd v.
Balton BV (2003) 8 NWLR (Pt. 822) 223.
In the light of the above and
the more comprehensive reasons given by my learned brother,
Onnoghen, J.S.C., in his judgment, I also
dismiss the appeal. I abide by his orders as to costs.
Judgment Delivered by
Dahiru
Musdapher. J.S.C.
I have read before now the
judgment of my Lord Onnoghen, J.S.C just
delivered with which I entirely agree. In the aforesaid judgment his
Lordship has admirably and exhaustively dealt with all the pertinent issues
submitted for the determination of the appeal. I agree with the
reasonings and which I respectfully adopt the
same as mine. I therefore
dismiss the appeal and award
Judgment Delivered by
Aloma
Mariam Muhktar.
J.S.C.
The publication complained of
in this libel action instituted by the respondent who was then the plaintiff
is contained in paragraphs (7) and (8) of the plaintiffs statement-of claim.
The words of libel were published in the 1st appellant magazine,
whose publisher is the 2nd appellant, and the 3rd and
4th appellants are the Editor and author of libel complained of
respectively. A notice of preliminary objection was filed by learned counsel
for the defendants/appellants in the
"1.
The plaintiff cannot, by virtue of the provisions of Section 308 of
the Constitution of the Federal Republic of Nigeria, 1999, institute,
maintain, or continue with any proceedings, including the present suit, in
any court of law, her nor can any proceedings be instituted, maintained or
continued against him in his personal capacity.
2.
The plaintiff has failed to comply with the mandatory requirement of
Section 97 of the Sheriffs and Civil Process Act.
3.
The annexure to the Plaintiffs statement of claim titled "Vniversitas
Pennsylvaniensis" should be expunged from the
court's record, the same not being a document that this Honourable (sic) can
use.
4.
This suit discloses no reasonable cause of action.
5.
This suit (sic) vexations and constitute a flagrant abuse of the
process of this Honourable court".
The learned trial judge
considered the submissions of both counsel and upheld the objection of the
defendants/appellants stating the following:-
"I think we have come to the
end of this journey as I am bound by the Court of Appeal decision in the
I.C.S.
Ltd case to wit: that the plaintiff cannot be sued nor can he sue
another person in our courts while he occupies the position of Governor of
Cross River State. He can
of course do so when he vacates as time does not run against him while in
that office."
Dissatisfied with the ruling
the plaintiff appealed to the Court of Appeal. The Court of Appeal by a
majority decision allowed the appeal, and set aside the ruling of the court
of first instance. The defendants have appealed to this court against the
majority decision on three grounds of appeal, from which a single issue was
distilled in the appellants' brief of argument. The issue is:-
"whether, taking into
consideration the decision of this court in
Tinubu
vs. I.M.B. Securities PLC (2001) 8 NWLR (pt 740) 192 at 708 and 718 and
that of the Court of Appeal in I. C.
S. (Nig) Ltd vs. Balton B. V. (2003) 8 NWLR (pt.
822) 223 at 235, the learned Justices of Court of Appeal were right in
coming to the conclusion that a serving Governor of a state can sue or
initiate proceedings for reliefs in his personal capacity while in office?"
The issue formulated in the
respondent's brief of argument is:-
"whether
having regard to Section 308 of the Constitution of the Federal Republic of
Nigeria 1999, the Respondent, is precluded from suing the Appellants for
libel".
This later issue is to my mind
more succinct. The gravamen of this appeal revolves around the
interpretation of Section 308 (1) of the Constitution of the Federal
Republic of Nigeria supra and I will reproduce the provision hereunder. It
reads :-
"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
should 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
.............................................
(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 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 above provisions are as
clear and crystal on the immunity available to the Governor of a state in
civil and criminal suit that may be instituted against him. They did not
state that the Governor (the respondent in this case) cannot
sue, the provision of subsection (a) supra merely
states that he cannot be sued. It will be definitely wrong to read between
the lines and in the process smuggle matters which were not intended by the
legislator into the provisions of section 308 of the Constitution supra.
Extraneous matters should not be imported into legislation, but they should
be given their simple and grammatical meaning. In the instant case, to say
that just because Section 308 says a person holding the office of a Governor
cannot be sued does not mean that the converse obtain. It is trite that
provisions of law (like Section 308 of the Constitution (supra)) which are
unambiguous should be given ordinary grammatical interpretation without
qualification. If the legislator had meant to preclude a Governor of a state
from instituting an action against any body in court, because he cannot be
sued, it would have said so. See
Amadi
v. N.N.P.C. (2000) 10 NWLR part 674 page 76, Owena
Bank Nigeria PLC v. N.S.E. Ltd (1997) 8 NWLR part 515 page 1,
Ifezue v. Mgadugha
(1984) 1 SCLR 427, and Lawal v. G. B.
Olivant (1972) 3 S.C. 124.
In the light of the above and
the fuller reasoning in the lead judgment of my learned brother
Onnoghen, J.S.C., I am of the view that the
appeal lacks merit and should be dismissed. I also dismiss it, and abide by
the consequential orders in the lead judgment.
Judgment Delivered by
Pius Olayiwola
Aderemi. J.S.C.
The appeal is against the
decision of the Court of Appeal [Calabar
Division] in Appeal No. CA/C/06/05 delivered on the 2nd May 2006
in which the appeal of the present respondent against the ruling of the
Before I proceed to the main
appeal, I shall preface its consideration with the facts leading to it. By
paragraph 17 of the statement of claim dated 23rd July 2004, the
present respondent who was the plaintiff at the trial court claimed against
the present appellants jointly and severally, who were the defendants
.before that court the following reliefs: -
"the sum of
Upon the receipt of the writ
of summons from the plaintiff (hereinafter referred to as the respondent)
the defendants (hereinafter referred to as the appellants) caused a
conditional appearance to be entered on their behalf and further went ahead
to file a Notice of Preliminary Objection dated 30th August 2004
contending that the trial court lacked jurisdiction to entertain the suit.
The grounds upon which the Notice of Preliminary Objection was predicated
are as follows: -
"(1) The
plaintiff/respondent cannot, by virtue of the provisions of Section 308 of
the Constitution of the Federal Republic of Nigeria, 1999 institute,
maintain or continue with nay proceedings, including the present suit, in
any court of law, nor can any proceedings be instituted, maintained or
continued against him in his personal capacity.
(2)
Failure on the part of the plaintiff/respondent to comply with the
mandatory requirements of Section 97 of the Sheriffs and Civil Process Act.
(3)
The annexure to the plaintiffs statement of claim titled "Universitas
Pennsylvaniensis" should be expunged from the
court's record, the same not being a document that this Honourable (sic) can
use.
(4)
This suit discloses no reasonable cause (sic) of action.
(5)
This suit (sic) vexations and constitute a flagrant abuse of the
process of this Honourable Court."
Sequel to the taking of
arguments of counsel on the preliminary objection on the 27th of
October 2004, the learned trial judge, in a reserved ruling delivered on the
1st of November 2004, held inter alia: -
"I think we have come to the
end of the journey as I am bound by the Court of Appeal decision in the ICS
LTD case to wit: that the plaintiff cannot be sued nor can he sue another
person in our courts while he occupies the position of Governor of Cross
River State. He can of course do so when he vacates as time does not run
against him while in that office."
Dissatisfied with the above
ruling, the plaintiff who is the present respondent appealed
therefrom to the court below. By a majority
decision of that court (Court of Appeal - the court below), the appeal was
allowed. The respondents before the court below who are presently the
appellants, being dissatisfied with the majority decision of the court
below, therefore appealed to this court by a Notice dated 3rd
July 2006 which carried three grounds of appeal. When this appeal came
before us for argument on the 26th of April 2007, Mr.
Ukweni, learned counsel for the appellants
relied on and adopted his clients' brief of argument filed on 16th
February 2007 and urged us to allow the appeal. Mr. Duke, learned
counsel for the respondent, for his part relied on and adopted his client's
brief of argument filed on 29th March 2007 and urged us to
dismiss the appeal.
In their brief of argument,
the appellants identified only one issue for determination and as set out in
the said brief, it is in the following terms:-
"Whether, taking into consideration the decision of this court in
Tinubu
v. I.M.B. Securities Plc (2001) 8 NWLR (pt.740) 192 at 708 and 718 and
that of the Court of Appeal in I.C.S.
(Nig.) Ltd v. Balton B.V. (2003) 8 NWLR (pt.
822) 223 at 235, the learned Justices of the Court of Appeal were right
in coming to the conclusion that a serving Governor of a State can sue or
initiate proceedings for reliefs in his personal capacity while in office?"
For his part, the respondent
identified only one issue for determination and as couched in his brief of
argument, it is as follows: -
"Whether having regard to Section 308 of the Constitution of the Federal
Republic of Nigeria, 1999, the respondent, being the Governor of Cross River
State, is precluded from suing the appellants for libel."
The issue identified by the
appellants for determination and that raised by the respondent both set out
supra, are materially the same. And of course, both turn on the
interpretation of the provision of Section 308 of the Constitution of the
Federal Republic of Nigeria which reads: -
Section 308:
"(1)
Notwithstanding anything to the contrary in this
Constitution, but subject to sub-section 2 of this section-
(a)
no civil or criminal proceedings shall be
instituted or continued against a person to whom this section applies during
the 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 purpose 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 sub-section (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."
I have read the briefs of both
the appellants and the respondent; by these briefs, both parties are ad idem
that the interpretation of the provisions of Section 308 of the Constitution
of the Federal Republic of Nigeria 1999 is the crucial issue that calls for
determination in this appeal. I have carefully read the provisions of
Section 308 of the said Constitution and the irresistible conclusion that I
have reached is that the words in which that section is couched are very
clear and unambiguous; they are plain. Where the language of the provisions
of a statute or Constitution is clear and unambiguous, the court has a
standing duty to do no more than to give it its plain evident meaning. See
A-G of Bendel
State v. A-G of the Federation & Ors (1981) 9 S.C. (Reprint) 1. It is
very clear from the language of the provision of Section 308 particularly
Section 308 (1) (a), which is the relevant provision that the legislators
are mincing no words that what they intend to prohibit and which is
prohibited by the aforementioned sub-section is the institution of any
action, be it civil or criminal or the continuation of same against the
person of a Governor or Deputy Governor during the period of his office. It
must always be remembered that judges have no business expanding the law or
even making same; that is the exclusive function of the lawmakers. It is
often said that a judge, in interpreting the provisions of any law, must get
at the intention of the legislators. Yes, that is a true statement; but in
demonstrating his judicial interpretative skill, a judge can get to know the
intention of the legislators only through the wordings of the provisions of
the statute or section of the Constitution being interpreted. Let it be
remembered that when in the words used in couching the provision, there is
no ambiguity, then no exposition contrary to the expressed words used, is to
be made. It admits of no argument that what is intended to prohibit by the
aforesaid section is the institution or continuation of any suit, be it
civil or criminal, against the occupier of the position of a Governor or
Deputy Governor of a State during the duration of his office. There is
nothing and I repeat nothing preventing a Governor or Deputy Governor from
taking out a writ of summons or originating summons or better put, suing
anybody whilst still in office. The above is the clear and, in my humble
view, a true interpretation of that section; that is a true declaration of
the law. To do otherwise, is to declare what the-law ought to be which
is not the function of the
judex. If it is
thought that the law ought to be amended, let that be the exclusive function
of the legislators - members of our National Assembly. Section 308
afore-said does no more than to confer absolute immunity on the holder of
the position of the Governor or Deputy Governor in the State without drawing
away from them their rights to seek a redress for any wrong done to them by
instituting actions in their personal capacities against anybody they may
think has transgressed their rights even while they are still in office.
It is for this little
contribution but most especially for the copious reasons contained in the
leading judgment of my learned brother, Onnoghen,
J.S.C. that I resolve the only issue raised by the appellants against them;
while I answer the identical issue contained in the brief of the respondent
in the negative. The appeal, by my judgment, is consequently unmeritorious
and it has to be dismissed. And I so dismiss it. I abide by all other orders
contained in the leading judgment including the order as to costs made
therein.
Counsel
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