Supreme Court of Nigeria on Friday January 18th, 2008 ruled that the immunity clause on a sitting governor and his deputy is illegal and in question when the person occupying the office has electoral matter to answer.
The Supreme Court judgement seems to be inline with the yesterday Federal High Court judgement presided over by Justice Inyang Ekwo that sacked Ebonyi State Governor, David Umahi and his Deputy, Eric Kelechi Igwe following their defection from PDP to APC.
The Supreme Court judgement was held and former Governor of Rivers State, Celestine Omehia was sacked and Rotimi Ameachi, the current Minister of Transportation who never participated in the election was asked to replace him.
The Supreme Court judgement under the lordship of Justices; Aloysius Iyorgyer Katsina-Alu, Dahiru Musdapher, George Adesola Oguntade, Mahmud Mohammed, Walter Samuel Nkanu Onnoghen, Ibrahim Tanko Muhammad, and Pius Olayiwola Aderemi in a case brought before it by Rotimi Ameachi against INEC and Rivers State Governor, Celestine Omehia ruled that election results or the ballots casted belong to the political party.
“To hold that section 308 can be invoked in a matter relating to the eligibility for a political office where the tenure of such office has been set out in the Constitution will translate into denying to a plaintiff his right of access to the court.
“It is only in a case where a deferment of plaintiff’s right of action is not likely to destroy this Resin the suit that section 308 can be invoked.
“In this case, to ask Amaechi to wait till the end of Omehia’s tenure of office as Governor before pursuing his suit is to destroy forever his right of action”, Supreme Court rules.
The Supreme Court also ruled that section 308 of the Nigeria constitution that grants immunity to sitting governor, deputy governor, president and vice president can only be invoke in a case of ordinary civil proceedings and criminal proceedings but never on election related matters.
The Supreme Court judgement reads thus:
Let me at this stage respond to the issues raised by Omehia and PDP in their cross-appeals.
It was contended that by virtue of section 308 of the 1999 Constitution, Amaechi’s Suit against Omehia should abate and be discontinued following the swearing-in of Omehia as Governor of Rivers State.
In reacting to the application brought before it concerning Omehia on the question of immunity based on section 308, the court below said:
“The cases cited by the learned senior counsel for the 2nd Respondent are easily distinguishable from the case in hand.
For the case of Attorney-General of the Federation v. Alhaji Atiku Abubakar & 1 Or.affects a criminal proceeding, Global Communications v. Donald Dukeaffects a civil proceeding in which the governor sued another person and the court held that immunity granted by Section 308 does not include his ability to sue other people.
Umannah v. Attah which affects an election matter is not on all fours with this case in hand.
I hold that the provision of section 308 is only applicable to ordinary civil proceedings and criminal proceedings and not in election related matters.
In this case the subject-matter queries the foundation of his appointment as governor.
If the governor is said to be immune under Section 308 of the 1999 Constitution, the resultant effect is that once a person is declared and sworn in as governor-elect that ends the matter and no one can complain or take any legal action even if the person conducted gross election malpractices.
In the case of A.D. v. Fayose 2004 8 NWLR pt 876 pg 639 at pg 653 D-G it was observed that such decision will encourage gross wrongful and illegal activities among the parties contesting for the position and negative the spirit and necessary intendment of the Constitution and hence destroy democracy.
On that score I hold that in an election related matter where the status of the 2nd Respondent as governor is being challenged, the immunity conferred on him by the Constitution is equally in question.
The 2nd Respondent/Cross-Appellant does not enjoy any immunity from being sued in this Suit. Obi v. Mbakwe 1984 1 SCNLR 192, Unongo v. Aku 1985 6 NCLR pg. 262.”
I think that the court below correctly decided the point. Section 308 of the 1999 Constitution provides:
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.”
Section 308 above is not meant to deny a citizen of this country his right of access to the court.
It is a provision put in place to enable a Governor, while in office, to conduct the affairs of governance free from hindrance, embarrassment and the difficulty which may arise if he is being constantly pursued and harassed with court processes of a civil or criminal nature while in office.
It is a provision designed to protect the dignity of the office.
However, the proviso under section 308 ensures that the period when a governor enjoys immunity shall not be taken into account in computing the time limit for initiating an action under the Statute limitation.
Section 308 cannot be relied upon where the nature of the suit is such that the Resin dispute will be destroyed permanently with the effluxion of time.
To hold that section 308 can be invoked in a matter relating to the eligibility for a political office where the tenure of such office has been set out in the Constitution will translate into denying to a plaintiff his right of access to the court.
It is only in a case where a deferment of plaintiff’s right of action is not likely to destroy this Resin the suit that section 308 can be invoked.
In this case, to ask Amaechi to wait till the end of Omehia’s tenure of office as Governor before pursuing his suit is to destroy forever his right of action.