Bola Tinubu V. I.M.B. Securities Plc. (2001)
LAWGLOBAL HUB Lead Judgment Report
IGUH, J.S.C.
This is an appeal against the interlocutory decision of the Court of Appeal, Lagos Division, delivered on the 29th day of January, 2001. In its judgment, the Court of Appeal had adjourned sine die the appeal of the 3rd defendant pending before it until he ceased to hold his office as the Governor of Lagos State.
I think it is desirable for a better appreciation of the issue that arises for determination in this appeal to set out briefly the history of the proceeding leading thereto.
By a writ of summons instituted on the 26th day of November, 1992 at the High Court of Lagos State, the plaintiff claimed against the 1st defendant the sum of N2.5 million being the outstanding balance owed in respect of an overdraft facility granted by the plaintiff to the said 1st defendant. The plaintiff also claimed, as against the 2nd and 3rd defendants, the same amount together with interest, upon the breach of their obligations under the contract of guarantee entered into by the parties and arising out of the overdraft facility.
The 3rd defendant, by a motion on notice dated the 27th January, 1994 applied to the trial court for an order to set aside the service of the writ of summons and the statement of claim in the suit on the ground that they were purportedly served on him on the 20th January, 1994 after the expiration of the 12 months life span of the writ of summons. The 3rd defendant, in the same application, also prayed for the striking out of the writ of summons and the statement of claim and for the dismissal, or alternatively, the striking out of the plaintiff’s action.
Following this development, the plaintiff, in a swift reaction, applied by motion on notice for the renewal of its writ of summons by a further period of six months.
Both applications of the 3rd defendant and the plaintiff were consolidated and heard together by the learned trial Judge who in his ruling of the 17th day of June, 1994 granted the plaintiff’s prayer. The life span of the plaintiffs writ of summons was accordingly extended by a further period of six months and the service of the processes in issue on the 3rd defendant on the 20th January, 1994 was deemed good and proper service. The application of the 3rd defendant for the dismissal or alternatively the striking out of the plaintiff’s action was, having been overtaken by events, struck out.
Dissatisfied with this decision of the trial court, the 3rd defendant, with the necessary leave of court, lodged an appeal against the same to the Court of Appeal, Lagos Division on the 12th June, 1995. Whilst this appeal was pending and the parties had duly filed and exchanged their respective briefs of argument in respect thereof, the 3rd defendant/appellant successfully contested election to the office of the Governor of Lagos State. He was accordingly sworn in as Governor of Lagos State of Nigeria on the 29th May, 1999.
On the 1st day of December, 1999 when the appeal was listed for hearing before the Court of Appeal, learned counsel for the plaintiff/ respondent applied for the adjournment of the appeal sine die until such time as the 3rd defendant/appellant would cease to hold office as Governor of Lagos State. It was his contention that the civil proceedings in issue, in so far as it concerned the claim against the 3rd defendant/appellant, could no longer be continued, having regard to the provisions of section 308(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999. He argued that any hearing of the interlocutory appeal was tantamount to the continuation of hearing of the main suit against the 3rd defendant/appellant. He submitted that this course of action is prohibited by the express provisions of section 308(1) (a) of the 1999 Constitution.
Learned counsel for the 3rd defendant/appellant indicated his opposition to the adjournment of the appeal sine die as applied for by the plaintiff. He contended that the appeal could be heard, notwithstanding the position of his client as the Governor of Lagos State. He submitted that in-as-much-as section 308(1) (a) of the 1999 Constitution prohibits the institution or continuation of civil or criminal proceedings against a person to whom the section applies, while he is in office, it would be wrong to suggest that such a person to whom the section applies cannot himself institute or continue civil proceedings to enforce his private and personal right. He stressed that section 308(1) (a) of the Constitution nowhere expressly stated that a State Governor can not, while in office, sue to enforce his personal right. He pointed out that the appeal in issue was filed at the instance of the 3rd defendant/appellant and that it is not covered by the immunity prescribed under section 308(1) (a) of the relevant Constitution.
The Court of Appeal at this stage ordered that written briefs of argument be filed by the parties on the issue in controversy between them.
One issue was formulated by the parties as arising for the determination of the Court of Appeal. This, as formulated by the plaintiff/ respondent, and endorsed by the Court of Appeal, is set out as follows:-
“Whether having regard to the entire provisions of section 308 of the 1999 Constitution, the entire proceedings in this suit should be adjourned sine die”.
The 3rd defendant, on the other hand, preferred to frame the sole issue for resolution by the Court of Appeal thus:
“Whether or not the appellant (meaning the 3rd defendant) can continue the appeal in the light of section 308(1) of the 1999 Constitution” (Words in brackets supplied for clarity)
It is plain that the substance of the issue as framed by the parties and accepted by the court is to all intents and purposes similar and revolve on whether or not the provisions of section 308(1) of the 1999 Constitution permit the 3rd defendant/appellant to continue with the prosecution of his appeal in the suit instituted against him.
After hearing the arguments of the parties on the issue, the Court of Appeal in a unanimous decision delivered on the 29th January, 2001 granted the plaintiff’s application and adjourned the appeal of the 3rd defendant/appellant sine die until he “vacated the office of Governor of Lagos State”. In the main, it held that the prohibition imposed under section 308(1) (a) of the 1999 Constitution against the institution or the continuance of any civil or criminal proceedings against a person to whom section 308(3) of the same Constitution 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.
Aggrieved by this decision of the Court of Appeal, the 3rd defendant/appellant has now appealed to this court. I shall hereinafter refer to the 3rd defendant and the plaintiff in this judgment as the appellant and the respondent respectively.
Five grounds of appeal were filed by the appellant against this decision of the Court of Appeal. It is unnecessary to reproduce them in this judgment. It suffices to state that the appellant pursuant to the rules of this court filed his written brief of argument which was duly served on the respondent. No brief of argument was filed on behalf of the respondent in answer to the appellant’s brief of argument.
The two issues distilled from the appellant’s grounds of appeal set out on his behalf for the determination of this appeal are as follows
“(a) Is the decision of the Court of Appeal not a nullity, having been based on grounds not relied on by the respondent without hearing the parties on those grounds
(b) Were the learned Justices of the Court of Appeal correct in their decision to adjourn the appeal of the appellant indefinitely without hearing the parties on those grounds
It seems to me that in the light of the grounds of appeal filed and the substance of the submissions made in the appellant’s brief of argument the single issue for determination in this appeal is:-
“Whether having regard to the provisions of section 308(1)
(a) of the Constitution of the Federal Republic of Nigeria, 1999, the Court of Appeal was right in declining to entertain the appeal of the appellant pending before it until the appellant vacated his office as the Governor of Lagos State”.
At the oral hearing of the appeal before us, learned counsel for the appellant, B. R. Fashola Esq., was in court. The respondent, although served with the hearing notice in respect of the appeal, was absent and unrepresented. As already mentioned, no respondent’s brief of argument in reply to the appellant’s brief was before the court or filed. Accordingly the court proceeded with the hearing of the appeal ex parte pursuant to the provisions of Order 2 rule 11 (1) of the rules of this court.
Learned counsel for the appellant in arguing the appeal adopted the appellant’s brief of argument and proffered oral arguments in further elucidation of the submissions therein made. He contended that the decision of the Court of Appeal complained of is a nullity in that the same was based on matters neither argued nor related or connected with the grounds upon which the application for the adjournment of the appeal was contested. He complained that the grounds on which the case was adjourned sine die by the court below were issues on which the parties were not heard. He claimed that they are issues which were raised suo motu by the court below and in respect of which the parties were not heard. Citing the decisions in Kutiv. Balogun (1978) All N.L.R. (Reprint) 6 at 12 and Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314 at 345, learned counsel submitted that failure by the court below to hear the parties on the grounds upon which it based its decision after rejecting the grounds upon which the application for adjournment was made rendered its decision a nullity. He argued that this amounted to making a case for a party which such a party failed to make contrary to our adversarial system of justice. He contended that the only question before the court below was the interpretation of section 308(1) of the Constitution of the Federal Republic of Nigeria, 1999 with a view to determining whether it prohibited the appellant from the prosecution of his appeal He submitted that the said provisions of section 308 of the Constitution are clear and ought to be construed literally. He further submitted that if section 308 of the Constitution is construed literally, it would be clear that nothing therein prohibited the appellant from prosecuting his appeal. He pointed out that the court below, in fact, held that there was nothing under the provisions of section 308(1) of the 1999 Constitution which stops a State Governor from initiating actions while in office against other persons for reliefs in his personal capacity. Learned counsel submitted that having rejected all the grounds upon which the respondent’s application for an adjournment of the appellant’s appeal sine die were predicated, the only course left for the Court of Appeal was to have refused the application and proceed with the hearing of the appeal. This it failed to do. On the contrary, it proceeded to adjourn the appeal sine die as prayed for by the respondent on grounds whish it raised suo motu without giving the parties, particularly the appellant who was adversely affected thereby, the opportunity to be heard thereupon. He submitted, relying on the decision of this court in Kuti v. Mrs. S. Balogun (supra) that this is a grave error of law on the part of the Court of Appeal. He urged the court to allow this appeal and direct the court below to proceed expeditiously with the determination of the appellant’s appeal before it.
It is clear to me that a resolution of the sole issue for determination in this appeal revolves entirely on a close examination and interpretation of the provisions of section 308 of the Constitution of the Federal Republic of Nigeria, 1999. That section of the Constitution provides thus:-
“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 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 real question posed for determination is whether any part of the provisions of section 308 of the 1999 Constitution may be construed as prohibiting the appellant from continuing the prosecution of his interlocutory appeal in the civil proceedings instituted against him by the plaintiff/respondent before the trial court.
In this regard, it will be necessary to recall the general principle of law governing the interpretation of our Constitution. This is that 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 dis-jointly 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. See Chief D. O. Ifezue v Livinus Mbadughn & Anor (1984) 1 SCNLR 427; (1984) 5 S.C. 79 at 101.
No dispute has arisen between the parties with regard to subsections 2 and 3 of section 308 of the Constitution under consideration. Both subsections are clear enough. section 308(2) exempts the application of the provision, of section 308(1) to civil proceedings against a person to whom section 308 applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party. Section 308(3) confines the application of the provisions of section 308 of the Constitution to persons holding the office of President, Vice President, Governor or Deputy Governor and the “period of office” therein referred to is defined as referring to the period during which the person holding such office is required to perform the functions of the office. The application of the provisions of these two subsections of section 308 of the Constitution are not in issue in this appeal.
Before I turn to section 308(1) (a) of the Constitution around which dispute has arisen between the parties in this appeal it is pertinent to dispose of the submission of learned counsel for the appellant that the decision of the Court of Appeal now challenged is a nullity by virtue of the fact that it was based on grounds not relied upon by the respondent but that they were raised suo motu by that court without affording the parties an opportunity to be heard thereupon. In this regard, it cannot be disputed that 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. See Commissioner for Works, Benue State and Another v. Devcon Development Consultants Ltd. and Another (1988) 3 NWLR (Pt. 83) 407, Adeniji and others v. Adeniji and others (1972) 1 All N.L.R. (Pt. 1) 298 and A.C.B. Ltd v. Attorney- General Northern Nigeria (1967) NMLR 231. See too Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40 and Chief Ebba v. Chief Ogodo and Another (1984) 1 SCNLR.372; (1984) 4 S.C. 84 at 112. A court of law, particularly an appellate court, may only hear and decide on issues raised on the grounds of appeal filed before it and an issue not covered by any ground of appeal is incompetent and will be struck out. See Management Enterprises Ltd. & Another v. Jonahan Otusanya (1987) 2 NWLR (Pt. 55) 179, Oniah V. Onyia (pt.989) 1 NWLR (Pt. 99) 514 at 529, Adelaja v. Fanoiki and Another (1990) 2 NWLR (Pt. 131) 137 at 148.
When a court raises a point suo motu, the parties must be given an opportunity to be heard on the point, particularly the patty that may suffer prejudice as a result of the point raised suo motu. See Odiase v. Agho (1972) 1All N.L.R. (Pt. 1) 170;Ajao v. Ashiru (1973) 11 S.C.23, Atanda v. Lakanmi (1974) 3 S.C.109; Adegoke v. Adibi (1992) 5 N.W.L.R. (Pt. 242) 410. Accordingly on no account should a court raise a point Suo motu., no matter how clear it may appear to be, and proceed to resolve it one way or the other without giving the parties an opportunity to be heard. See Okafor v. Nnaife (1973) 3 E.C.S.L.R. 261, Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 578. If it does so, it will be in breach of the parties’ right to fair hearing. See Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267 at 280.
The above are fundamental but well settled principles of law. With great respect to learned counsel for the appellant, however, I find it difficult to appreciate how those principles of law are relevant to the issues in controversy between the parties in the present appeal. This is because the only issue before the Court of Appeal was whether, having regard to the entire provisions of section 308(1) (a) of the 1999 Constitution, the proceedings in respect of the civil action instituted by the respondent against the appellant, the Governor of Lagos State, in the latter’s personal and private capacity for some reliefs could properly be continued during the period of office of the appellant as the Governor of Lagos State. It is clear from the record of proceedings that this issue was fully argued before that court which in its ruling, concluded thus:-
“The suit at the lower court was filed by the plaintiff/respondent against the appellant and two others. Under section 308(1) (a) of the 1999 Constitution, that suit ought not to be further continued. It seems to me however that continuation of a suit can be undertaken by all parties to the suit. When it is said that a suit may not be continued, all the parties to the suit must he held to the restraining order. Just as ” plaintiff may not continue the suit, so must a defendant not do so once it is determined that a suit is of the character which must not be further continued under section 308(1) (a) of the 1999 Constitution. To allow the appellant, who is now the Executive Governor of Lagos State to further press on with his appeal is another way of continuing the suit before the lower court. This is more so when it is borne in mind that the appeal being pursued by the appellant is upon an interlocutory matter with the result that if the appeal succeeds, the appellant may still have to go back to the High Court. Setting aside the service of a writ does not mean that the writ has ceased to exist. Allowing this appeal to move forward therefore is an indirect way of continuing the suit at the High Court. It seems to me that while I recognise that a Governor may sue for redress of personal wrongs to him, the right to sue for personal wrongs cannot be equated with a right to appeal in the course of a suit which being contrary to section 308(1) (a) of the 1999 Constitution cannot be continued.
I accordingly determine that this appeal ought to be adjourned sine die to be relisted only when the appellant vacates the office of Governor of Lagos State. I make no order as to costs. There can be no question, therefore, that the court below based its decision on any issue which it raised suo motu without giving the parties an opportunity to be heard.
The issue that arose for determination concerned the interpretation and/or construction of section 308(1) (a) of the 1999 Constitution. It is a clear question of law in respect of which the court below was entitled to pronounce its own view upon so long as such a view is related to the legal issue placed before it for resolution. But as I have already indicated, the issue of whether or not the present suit ought to be continued while the appellant, the party sued, remained in office as the Governor of Lagos State was fully argued by both parties to the action and no question of the court not inviting the parties for further addresses did arise in the case.
Turning now to section 308(1) (a) of the 1999 Constitution, it is beyond dispute that the present suit instituted by the plaintiff/respondent was one to enforce the repayment of an overdraft facility granted to the 1st defendant. It is also clear that the action was instituted against the appellant in his personal capacity and did not arise by virtue of his position as the Governor of Lagos State. It is admitted by both sides that the appellant, as at the time the decision of the Court of Appeal in issue was handed down, was and still remains the Governor of Lagos State. Section 308(1) (a) of the Constitution of the Federal Republic of Nigeria 1999 provides in the clearest possible language that notwithstanding anything to the contrary in that Constitution, no civil or criminal proceedings shall be instituted or, if already instituted, continued against any person to whom that section of the Constitution applies during his period of office. As already indicated, section 308(3) provides that the said section 308 of the 1999 Constitution applies to a person holding the office of President or Vice-President, Governor or Deputy Governor. Section 308(2) however lays down that the provisions of the said subsection (1) of Section 308 shall not apply to civil proceedings instituted against any of the relevant public officers in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party. Although the present action was instituted against the appellant as a private citizen, he had cause, as already mentioned, to file an appeal to the court below against an interlocutory decision of the trial court in the suit. It was during the pendency of this appeal that the appellant was sworn in as the Governor of Lagos State and it was thereafter that the question whether or not the suit could lawfully be continued against him as the. Governor of Lagos State arose before the Court of Appeal. It is the ruling of the said Court of appeal that is now the subject of this appeal.
The appellant remains the Governor of Lagos State till this day. 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. It is thus clear that applying the mandatory provisions of section 308(1) (a) of the 1999 Constitution, no civil proceedings may be instituted or, if already instituted, as in the present action, shall be continued against him while he holds the office of Governor of Lagos State. See Colonel Olu Rotimi and others v. Macgregor (1974) 11 S.C. 133 or (1974) 9 N.S.C.C. 542.
Learned counsel for the appellant did argue that it was open to the appellant to waive the immunity granted to him as a State Governor under section 308(1) (a) of the 1999 Constitution. He submitted that this is because no provision of that section of the Constitution prohibited a State Governor or the holder of any of the offices mentioned under section 308 (3) from instituting an action in his private capacity against any person during his tenure of office.
Whether or not the appellant, while he remains the Governor of Lagos State is entitled to institute an action against any person for all alleged private wrong done to him has not arisen for decision in this appeal. Accordingly, I will decline from making any pronouncement on the issue. It suffices to say that this is a suit in which the appellant is sued as a defendant. The suit therefore falls directly within the ambit of the provisions of section 308(1) (a) of the 1999 Constitution. Nor do I accept that the appellant may waive the immunity granted to him under section 308(1) (a) of the 1999 Constitution. 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.
The final point which needs be considered is the order which the Court of Appeal, having held that the suit against the appellant could not be continued, ought to have made. That court, having so held, proceeded to adjourn the appeal before it sine die with liberty to relist the same when the appellant vacated the office of Governor of Lagos State.
In the case of Colonel Olu Rotimi and others v. Macgregor, (supra) the plaintiff/ respondent had instituted a civil action against the defendants/appellants claiming inter alia a declaration of title to land in Ikeja. During the pendency of this action, the 1st defendant assumed office as the Military Governor of the Western State of Nigeria. In the course of his final address before the trial Lagos High Court, learned counsel for the defendants, for the first time and without pleading the same, raised the question of the constitutional position of the 1st defendant who during the pendency of the suit had been appointed the Military Governor of Western State, a position he held up to the time the appeal against the judgment of the trial court was determined by this court. This constitutional issue is exactly the same question that has arisen for decision in the present appeal. Learned counsel submitted in that case that by virtue of section 161(1) (c) of the Constitution of the Federation of Nigeria, 1963, the suit against the 1st defendant could not be continued by any court. He also argued that no court could give any judgment against the 1st defendant during his tenure of office as the Military Governor of the Western State and that the immunity from prosecution conferred on the 1st defendant/appellant could not be waived.
The above submissions were carefully considered by the learned trial Judge who came to the conclusion that the provisions of section 161(1)(c) of the 1963 Constitution being the supreme law of the land could neither be waived by the 1st defendant nor by the court. Accordingly, he declined to make any orders against the 1st defendant. On appeal, it was held by this court that as the appellant assumed the post of the Military Governor of Western State during the pendency of the suit at the trial court, the provisions of section 161(1)(c) of the 1963 Constitution applied and that the action against him should have been struck out. This court further held that by virtue of the provisions of section 161(1)(c) of the 1963 Constitution, the suit against the 1st defendant/appellant should not have been continued from the moment he assumed the post of the Military Governor of Western State, that the immunity prescribed by section 161(1)(c) could not be waived and that the court was bound to give effect to it.
It is pertinent to point out that the said provisions of section 308(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 in issue in the present case are clearly in pari materia with those of section 161(1)(c) of the 1963 Constitution. Accordingly, I entertain no doubt:-
(i) That the appellant, being a party against whom the present action was instituted, the constitutional mandatory provisions of section 308(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 applied to and are unquestionably binding on him from the moment he was sworn in as Governor of Lagos State, during the pendency of the suit at the trial court.
(ii) That by virtue of the express provisions of section 308(1) (a) of the 1999 Constitution, the suit was rendered incapable of being continued against the appellant during his period of office as the Governor of Lagos State.
(iii) That this constitutional immunity conferred on the appellant under section 308(1)(a) of the 1999 Constitution during his period of office as the Governor of Lagos State, being an absolute prohibition, admits of no waiver by the appellant or by any incumbent of the relevant offices stipulated under section 308(3) of the 1999 Constitution.
(iv) That the Court of Appeal, indeed all courts, are bound in appropriate cases to give effect to the said immunity prescribed under section 308(1)(a) of the 1999 Constitution during the period of office of the holder of any of the posts prescribed under section 308(3) of the 1999 Constitution and it would not matter whether or not such immunity is pleaded or relied on by the parties to any proceedings.
(v) That the Court of Appeal was right by declining to entertain the interlocutory appeal filed by the appellant before it against the ruling of the trial court in respect of the civil suit instituted against the said appellant as to do otherwise would amount to continuing the suit before the trial court during the period in office of the appellant as the Governor of Lagos State.
The court below having upheld the respondent’s contention that the hearing of proceedings in respect of the suit instituted against the appellant could not be continued adjourned the appeal before it sine die “to be relisted only when the appellant vacates the office of Governor of Lagos State”. The final question is whether this consequential order of the Court of Appeal is right.
As I have already observed, an issue entirely similar to the one in question in the present appeal arose for the consideration of this court in the case of Colonel Olu Rotimi and others v. Macgregor (supra). In that case, this court was of the view that as the 1st defendant/appellant became the Military Governor of the Western State during the pendency of the appeal, the provisions of section 161(1)(c) of the Constitution of the Federation of Nigeria, 1963 applied and that the case of the plaintiff as against the appellant should have been struck out by the trial court. In that case, this court per Coker, J.S.C. stated:
“We think that the learned trial Judge was right in concluding that section 161(1) (c) of the Nigerian Constitution confers an immunity on the 1st defendant and that the action should not have been continued against him since he became the Governor of Western State during the pendency of the present proceedings. No question of waiver arises, for the section prescribes an absolute prohibition to “any court” during the period of office of the holder of any of the posts described in section 161(2) of the Constitution to entertain any claim for relief against such person.
In the circumstance, the learned trial Judge should have struck out the case of the plaintiff as against the 1st defendant which, in effect, is what he did, although he made no formal order in that respect”.
In the light of the above statement of the law, it seems to me that the court below was entirely right when it held that to allow the appellant who at all material times was the Governor of Lagos State to press on with his interlocutory appeal in the suit instituted against him by the respondent would amount to nothing short of continuing the said suit. This course of action is what section 308(1)(a) of the 1999 Constitution expressly prohibits. I think that pursuant to the reasoning of this court in the Colonel Olu Rotimi case, the court below ought to have struck out the appeal pending before it as the same under the mandatory provisions of section 308(1) (a) of the relevant Constitution was not liable to be continued during the period in office of the appellant as the Governor of Lagos State.
In the final result and for all the reasons that I have given above, the issue for determination in this appeal must be resolved against the appellant. This appeal accordingly fails and it is hereby dismissed but the consequential order of the Court of Appeal adjourning the appeal pending before it sine die is hereby set aside. In substitution thereof is an order striking out the interlocutory appeal before the Court of Appeal with liberty to relist the same after the appellant has vacated his office as the Governor of Lagos State. There will be no order as to costs.
SC.32/2001
