LAW: Osinbajo Cannot Sue Vanguard, Cannot Waive His Immunity – Lawyer References 2001 Tinubu Case

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Prof. Yemi Osinbajo cannot sue Vanguard or anyone while in office as Vice President based on the judgment of the Supreme Court in IMB Securities Vs Bola Tinubu.

Wasiu Adedoyin Banjo, Esq.

I. M. B. SECURITIES PLC V. TINUBU (SC 32/2001) [2001] 10 (05 OCTOBER 2001);
Home/I. M. B. SECURITIES PLC v. TINUBU (SC 32/2001) [2001] 10 (05 October 2001);
Search summary:
IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 5TH DAY OF OCTOBER 2001

SC 32/2001

BETWEEN

I. M. B. SECURITIES PLC …………………………………………… PLAINTIFF/RESPONDENT

AND

TINUBU …………………………………………….. DEFENDANT/APPELLANT

BEFORE: Muhammadu Lawal Uwais, CJN; Adolphus Godwin Karibi-Whyte; Salihu Modibbo Alfa Belgore; Idris Legbo Kutigi; Anthony Ikechuwku Iguh; Umaru Atu Kalgo; Emmanuel Olayinka Ayoola, JJSC

ISSUES

Whether, having regard to the provisions of Section 308(1)(a) of the 1999 Constitution, the Court of Appeal was correct in declining to determine the appeal of the appellant pending before it until after the appellant vacated his office as Governor of Lagos State?

Whether or not the provisions of Section 308(1)(a) of the 1999 Constitution permits the Governor of a State, as appellant, to continue with the prosecution of his appeal in a suit instituted against him?

Interpretation and construction of Section 308(1)(a) of the Constitution of the Federal Republic of Nigeria 1999.

Whether the Court of Appeal was correct in adjourning the proceedings sine die after finding that the continuance was prohibited by Section 308(1)(a) of the Constitution of the Federal Republic of Nigeria 1999?

FACTS

The respondent instituted action against the appellant and certain others in order to enforce an overdraft facility granted to them. The appellant applied to set aside the service of the Writ of Summons and Statement of Claim, and to strike out the Writ of Summons and the Statement of Claim. He also asked for an order dismissing or striking out the action. However, the High Court granted an application by the respondent for the renewal of the life of the Writ of Summons for another six months.

The appellant filed a Notice of Appeal against the decision of the High Court. During the course of the litigation, the appellant assumed office as Executive Governor of Lagos State. That led to the respondent applying for adjournment sine die until such time as the appellant ceased to hold office, as the proceedings against him were prohibited by Section 308(1)(a) of the 1999 Constitution.

The Court of Appeal, which heard argument on the issue, granted the adjournment, leading to the present appeal in the Supreme Court. The Court of Appeal held that the prohibition imposed under Section 308(1)(a) against the institution or the continuance of any civil or criminal proceedings against a person to whom Section 308(3) applies during his period of office, is a restraining order which binds the parties in the class of cases therein specified and that the continuation of an interlocutory appeal in respect of such a suit is an indirect way of continuing the case before the trial court.

The appellant’s argument was essentially that although Section 308(1)(a) prohibits actions being brought against him while he held office, it did not prohibit him from seeking to continue with the prosecution of his appeal in the action instituted against him.

HELD (Unanimously dismissing the appeal)

  1. On the purpose of Section 308(1)(a) of the Constitution of the Federal Republic of Nigeria 1999

The reason for the protection of the person given the immunity in Section 308 of the Constitution is to afford him quiet tenure, free from harassment on personal matters rather than matters of office. It is to afford the person complete devotion to the high office which pertains to the welfare and stability of governance. Per Belgore, JSC, at page 296.

  1. On the provisions of Section 308(1)(a) of the Constitution of the Federal Republic of Nigeria 1999

Section 308 of the Constitution restricts legal proceedings against a person holding the office of President or Vice-President, Governor or Deputy Governor during the period such person holds such office, provided that such proceedings may be initiated or continued against him during his period of office in his official capacity. Per Ayoola, JSC, at page 300.

Applying the above provisions to the facts, the Court held as follows: The appellant still held the post of Governor of Lagos State. The claim against him did not arise by virtue of any act executed by him in his official capacity as Governor of Lagos State nor was he, as the said Governor, sued in the action as a nominal party. Thus, applying the mandatory provisions of Section 308(1)(a), no civil proceedings could be instituted or, if already instituted, as in the present action, continued against him while he held office. Per Iguh, JSC, at page 269.

  1. On the approach to resolving disputes involving interpretation of the Constitution

When a matter can be disposed of without resort to a strained interpretation of the Constitution, that should be the preferred course. Per Ayoola, JSC, at page 300.

  1. On the general principle of law in the interpretation of the Constitution

Such interpretation as would serve the interest of the Constitution and best carry out its object and purpose should be preferred. Its relevant provisions must be read together and not disjointly, and where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution. Per Iguh, JSC, at page 269.

  1. On the raising of issues suo motu by a court

Judgment in any court proceedings must be confined to the issues therein raised by the parties and it is not competent for the court suo motu to make a case for either of the parties and proceed to give judgment on the case so formulated contrary to the case of the parties before it. A court of law, particularly an appellate court, may only hear and decide on issues raised on the grounds of appeal filed before it. Any issue not covered by any ground of appeal is incompetent and will be struck out. When a court raises a point suo motu, the parties must be given an opportunity to be heard on the point, particularly the party that may suffer prejudice as a result of the point raised suo motu.

In the present case, there was no question of the court below basing its decision on any issue which it raised suo motu without giving the parties an opportunity to be heard, as the issue before was well-canvassed by both parties. Per Iguh, JSC, at page 269.

  1. On the waiving of the immunity afforded by Section 308(1)(a) of the 1999 Constitution by an office-bearer

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 by the courts may therefore arise. The Court of Appeal was therefore right to have declined to entertain the appellant’s appeal pending before it, as to do otherwise would amount to continuing the respondent’s suit against the appellant, a suit which under Section 308(1)(a) shall not be continued against the appellant while he remained the Governor of Lagos State. Per Iguh, JSC, at page 269.

See: http://sebastinehon.com/a-dissestion-of-section-308-of-the-constitution-of-the-federal-republic-of-nigeria-1999-as-amended/

 Sebastine Hon, 2016
  1. On the proper course the Court of Appeal should have followed, having found that the continuance of the appeal was prohibited by Section 308(1)(a) of the 1999 Constitution.

The Court of Appeal ought to have struck out the appeal pending before it because, under the mandatory provisions of Section 308(1)(a), the appeal was not liable to be continued during the period in office of the appellant as the Governor of Lagos State. Per Iguh, JSC, at page 269.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of NewsRescue
  1. On the meaning of the term sine die

The Latin expression sine die means without a date being fixed, or indefinitely. A matter is said to be adjourned sine die when it is adjourned without a day being fixed for its resumption. The effect of an adjournment sine die in the analogy is not to continue but to keep the pending civil action in abeyance indefinitely. Per Karibi-Whyte, JSC, at page 281

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