⦿ CASE SUMMARY OF:
Global Excellence Communications Limited & Ors v. Mr. Donald Duke (2007) – SC
Power of persons under Executive Immunity to sue;
1. Global Excellence Communications Limited
2. Mayor Akinpelu
3. Ejiro Rene Adigbo
4. Ogechi Udi
1. Mr. Donald Duke
(2007) 16 NWLR (Pt.1059) 22;
(2007) 7 S.C. (Pt II) 162;
⦿ LEAD JUDGEMENT DELIVERED BY:
W. S. N. Onnoghen, J.S.C
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Mba E. Ukweni, Esq.
* FOR THE RESPONDENT
– Charles E. Duke, Esq.
The respondent, Governor of Cross River State, as Plaintiff in the trial Court instituted an action against the Appellant for libel.
The Appellant filed a preliminary objection challenging the suit; asserting that the Plaintiff cannot sue or be sued because he is a Governor and hence is precluded by the provisions of section 308 of the CFRN 1999.
The trial Court upheld the preliminary objection and gave judgement in favour of the Defendant (Appellant herein).
The Plaintiff then appealed to the Court of Appeal, which allowed the appeal.
The Appellant has herein filed an appeal to this Court.
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?
⦿ HOLDING & RATIO DECIDENDI
The Supreme Court gave judgement in favour of the respondent.
i. 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.
Section 308 of the Constitution 1999;
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
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.”
⦿ NOTABLE DICTA
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. – Onnoghen, J.S.C. GEC v. DUKE (2007)
The duty of the court is not to deal with the law as it ought to be but as it is. – Onnoghen, J.S.C. GEC v. DUKE (2007)
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. – Onnoghen, J.S.C. GEC v. DUKE (2007)
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. – Niki Tobi, J.S.C. GEC v. DUKE (2007)
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. – ADEREMI, J.S.C. GEC v. DUKE (2007)