Global Excellence Communications Limited & Ors V. Mr. Donald Duke (2007)
LAWGLOBAL HUB Lead Judgment Report
S. N. 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 or 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 N5 billion (five billion naira) being damages for libel published of and concerning the plaintiff by The defendants in The Global Excellence Magazine of Tuesday May 11-May 17, 2004 and Tuesday May 25-May 30, 2004.
- 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 The 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.
- The plaintiffs failed to comply with the mandatory required of section 97 of the Sheriffs and Civil Process Act.
- The annexure to the plaintiff’s statement of claimed Title ‘UNIVERSITAS PENNSYLVANIENSIS’ should be expunged from the court’s record, the same not being a document that the Honorable can use.
4.This suit disclose no reasonable course of action
- This suit 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 v. I.M.B Securities Plc (2001) 16 NWLR (Pt.740) 670, (2003) 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 relief 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 or 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 immune 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 immune from suits and/or prosecution by any person, the very respondent who is so immune 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. v. Adesina (2005) 1 NWLR (Pt. 908) 461 and the High Court decisions in Aper Aku v. Plateau Publishing Corporation Uti. (1985) 6 NCLR 338 at 342 and Onabanjo v. Concord Press of Nigeria (1981) 2 NCLR 398, all overlooked what learned counsel calls “the principles and policies (policies) of social justice,equality, equity and fairness upon which our constitution and law are founded,” relying on sections 14(1); 17(1)(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 v. 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 Ifediora v. 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 literary construction of a statute, particularly constitutional provisions, the literary approach ought to be adopted to avoid the absurdity and injustice, relying on the case of Awolowo v. Shagari (1979) All NLR 120; (1979) 6-9 S.C 51; Oviawe v. 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 v. Dale (1851) 11 CB 378 at 391; Magor & St. Mellons Rural District Counsel v. Newpot Corporation (1952) A.C. 189 at 191 and Media Tech. (Nig.) Ltd. v. 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 Governor as the respondent, from instituting an action against another person; that the issue of faimess, equity, social justice and equality do not arise in the instant case; that the case of I.C.S. v. Balton B. V (supra) cited relied upon by his learned friend, never made a definite 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 v. The State (1981) 2 NCLR 293 at 326 and submitted that the power to fill in the gaps or amend the Constitution lies with National Assembly. Relying on the dictum of Ayoola, JSC in the case of Tinubu v. IMB 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;
(c) and 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. 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 v. I.M.B. Securities Plc (2001) 16 NWLR (Pt. 740) 670 at 708. By the provision of subsection 2 of section 308, it is clear 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 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 Nigeria. The bone of contention between the parties, however, remains the issue as to whether the respondent, having regards to the absolute immunity conferred on him by the said section 308(1) of the 1999 Constitution has the right or liberty to institute or continue any civil action against any person(s) during his tenure of office as Governor of Cross River State. In other words, does the immunity against institution or continuation of civil or criminal proceedings include a corresponding disability to institute or continue any proceedings by the Governor against any person(s) in any court in Nigeria As stated earlier in this judgment, the answer to the issue lies in the interpretation or construction of the provisions of section 308 of the 1999 Constitution being the provision which conferred the immunity on the respondent and others so mentioned in that section. In the case of AG. of Bendel of State v. A.-G. of the Federation & ors (1982) 3 NCLR 1, (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 con.
(3) A Constitutional power cannot be used by way of condition to attain unconditional 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 110 occasion to have recourse to any other means 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 witness.”
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 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 there from 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 v. IMB 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 no 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 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, JSC in the case of Tinubu v. IMB Securities Plc 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 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 N10,000.00 costs in favour of the respondent. The judgment of the Court of Appeal holden at Calabar in appeal No. CA/C/06/2005 delivered on the 2nd of May, 2006 is hereby affirmed by me. Appeal dismissed.
SC.313/2006
