⦿ CASE SUMMARY OF:
Tinubu v. I. M. B. Securities Plc (2001) – SC
I. M. B. Securities Plc
(SC 32/2001)  10 (05 October 2001);
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– B. R. Fashola Esq.
* FOR THE RESPONDENT
By a Writ of Summons instituted on 26 November, 1992 at the High Court of Lagos State, the plaintiff claimed against the first 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 first defendant. The plaintiff also claimed, as against the second and third defendants (Tinubu), 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 third defendant, by a Notice on Motion dated 27 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 20 January, 1994 after the expiration of the 12 months life span of the Writ of Summons. The third 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 Notice on Motion for the renewal of its Writ of Summons by a further period of six months. Both applications of the third defendant and the plaintiff were consolidated and heard together by the learned trial Judge who in his ruling of 17 June, 1994 granted the plaintiff’s prayer. The life span of the plaintiff’s Writ of Summons was accordingly extended by a further period of six months and the service of the processes in issue on the third defendant on 20 January, 1994 was deemed good and proper service. The application of the third 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 third defendant, with the necessary leave of court, lodged an appeal against the same to the Court of Appeal, Lagos Division on 12 June, 1995. Whilst this appeal was pending and the parties had duly filed and exchanged their respective briefs of argument in respect thereof, the third 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 29 May, 1999.
On 1 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 third 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 third 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 third 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 third 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 inasmuch 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 cannot, while in office, sue to enforce his personal right.
He pointed out that the appeal in issue was filed at the instance of the third 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. The issue is, “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.”
After hearing the arguments of the parties on the issue, the Court of Appeal in a unanimous decision delivered on 29 January, 2001 granted the plaintiff’s application and adjourned the appeal of the third 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 third defendant/appellant has now appealed to this Court.
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?
⦿ HOLDING & RATIO DECIDENDI
The Supreme Court upheld the issue for the respondent, and held that the immunity clause applies.
(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 1989 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.
S. 308 of CFRN 1999;
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
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 & OTHERS V. MACGREGOR (supra). In that case, this Court was of the view that as the first 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, JSC 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 first 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 first defendant which, in effect, is what he did, although he made no formal order in that respect.”
⦿ NOTABLE DICTA
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. – Iguh, JSC. Tinubu v. I. M. B. (2001)
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 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. – Iguh, JSC. Tinubu v. I. M. B. (2001)
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. – Iguh, JSC. Tinubu v. I. M. B. (2001)
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. – Iguh, JSC. Tinubu v. I. M. B. (2001)
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. – Iguh, JSC. Tinubu v. I. M. B. (2001)