By J.L Akanbi

In the practical and theoritical modern society, the provisions for restictions of legal proceedings have been made for some public officials. These people are temporarily or permanently are not subjected to the legal proceedings of any jurisdiction.The law specifically or impliedly exempts them from instituting or initiating legal proceedings against them.These set of people are said to have immunity or immune from courts proceedings.

In this regards, Chukwuma Eneh JCA opined in the celebrated case of DUKE V GLOBAL EXCEL COMMUNICATION LTD & OTHERS (2007)1WRN 63, It should be noted that ‘exemption’ carries a similar meaning as immunity. So that when one is exempted from existing legal relations he will be said to have immunity or exemption. The doctrine of immunity turns out to be the correlative of disability and negative of liability, again, in other words, immunity is clearly analogous to disability tending to no liability.

It’s Germaine, to note that immunity is not a neo-doctrine in the historical development of common law legal system and other legal systems such as Chinese, Portuguese etcetera. In the earliest organized societies in various parts of the world, the kings,Queens or other titles as leaders of society and as the case may be and judges that always heard complaints from people always exempted from institution of legal proceedings against them. The set of people therefore immune from legal action and liability. The assumption is that these people can not do wrong. The principle of immunity is base on Latin Maxim (Rex non protest peccare) meaning ” the king can do no wrong” just like any other doctrine this English doctrine of sovereign immunity has a long history and it’s rooted in antiquity.

See the case of Adams V Naylor,(1946)2 All E.R . 241 at p.244. where Lord Thankerton explicit “It is beyond doubt that no clam in tort or legal proceedings will lie against the crown in respect of wrongful act done by its servants in the performance, or supposed performance of their duty;the only remedy ,if any, must be against the person who actually committed the wrongful act, as personally liable therefor.Also the same view was held in the case of Mackenzie Kennedy V Air council, (1927) 2KB532 footly followed, the domestic case of Williams V A.G of Nigeria (1932)11NLR 49. See,Olasupo and others v. Western state & others 1962)1All NLR 84.

Many jurists brainstorm on the principle and spelt out their views: it will be Paramount to say but view out of them.
In the vein of Eugene Ehrlich “the king must not, was not allowed, was not entitled to do wrong.” Also In the rason det’ re of the Sir Francis Bacon “Law is the great organ by which the sovereign power doth move”

The doctrine of the king can do no wrong later metamorphosis to “The State can do no wrong” with emergency of modern system of government operating in the society. Therefore, in the common law legal system, the king or queen as the case may be, that actually constitute monarch and certain government officials are all exempted or immune from legal action.Professor Harry Street observed his book, GOVERNMENT LIABILITY,1953,p.1. that, ” just as no Lord could be sued in the court which he held to try cases of his tenants, so king, at the apex of the feudal pyramid and subject to the jurisdiction of no other court, was not suable. ”

The Exempted Officials From Civil or Criminal Proceedings In The Provision of 308 And others
1.(a)The president,(b) Vice President, (c) The governorship, (d) deputy Governor.
2. (a)The justices, (b)Judges, it should be crystal clear that the courts official mentioned above are only impliedly enjoy immunity during the court proceedings. While the former officials are expressly and specifically given the bulletproof, by the 1999 CFRN 2011 as (amended), not to envisage to categorically know that the law only protect them during their terms in the office and they can be summoned immediately they evacuated or leave the office. It should be known that immunity of judges are life or permanent in nature.While the executive are temporal in nature,because they can be litigated for their deeds after leaving the executive offices

In addition, recently, the Nigeria National Assembly, moved a motion to also cover some officials of both upper and lower chambers including some officials of state house of Assemblies of federation, with immunity, but it’s unassailably and severally condemned and faulted by some members and elites.

A bill seeking to amend section 308 of the 1999 Constitution to provide immunity for presiding officers of the National Assembly including the Senate president, speaker, deputy Senate president and deputy speaker that scaled through second reading at the House of Representatives.

Section 308 of the country’s constitution provides immunity to the president, vice president, governors and their deputies. The proposal is to amend the section to accommodate the presiding officers of both national and state assemblies.

Although, it was granted to the legislature generally, mainly during their proceedings in their chambers. Not exceeding there, just like the opportunity given to judges as well.

Many criticism were come forwards from various legal luminaries, elites,politicians among which;

Kolawole Olaniyan wrote an Article which he titled,”Granting immunity to lawmakers will leave Buhari’s anti-corruption agenda in tatters”. Where he tried to say if immunity is granting to lawmakers it will affect the president good ambition. Joseph Onyekwere also an article which he titled “Why legislative immunity is unnecessary for principal officers” he criticised given out immunity to the heads of lawmakers.

Senator Iyabo Obasanjo (chairperson senate Committee on Health) is being tried over the activities of Health sector between 1999 to 2008 and mismanagement of N125 or N300, so also is Hon. Elumelu and other Senators (accomplice) are in the net of EFCC on their alleged involvement in the N5 6 Billion power plant probe. see The Nation of Monday Evidence abound that immunity does avail a senator defence against crime for instance Posted: 2008-05-30 42.

This is consistent with the principle of separation of power that allows other branches of government the right to check the laws passed by parliament. Indeed, in the Nigerian case the legislative assembly parliament is not supreme insofar as laws are subject to the possibility of presidential veto (although the veto can be circumvented if the parliament returns the bill unchanged) and judicial review by the constitutional court. See Uwais CJN statement in The Guardian Newspaper of 15 see Senator Iyabo Obasanjo (chairperson senate Committee on Health) is being tried over the activities of Health sector between 1999 to 2008 and mismanagement of N125 or N300, so also is Hon. Elumelu and other Senators (accomplice) are in the net of EFCC on their alleged involvement in the N5 6 Billion power plant probe. see The Nation of Monday Evidence abound that immunity does avail a senator defence against crime for instance
Posted: 2008-05-30
42 This is consistent with the principle of separation of power that allows other branches of government the right to check the laws passed by parliament. Indeed, in the Nigerian case the legislative assembly parliament is not supreme insofar as laws are subject to the possibility of presidential veto (although the veto can be circumvented if the parliament returns the bill unchanged) and judicial review by the constitutional court. See Uwais CJN statement in The Guardian Newspaper of 15 see Imam, Ibrahim and Abdul Raheem-Mustapha, M. A., An Overview of the Concept of Legislative Assembly’s Immunity in Nigeria (2008). Akungba Law Journal, Vol. 1, No. 3, pp. 114-128, 2008, Available at SSRN:

Application Of Doctrine Immunity in Nigeria Legal System:
In progressing with development of modern society’s constitutions, Nigeria also same as one of fundamental principle for both executive and judiciary in a certain period. Although members of legislature also enjoy their in the cause transact their business in their chambers I•e National Assembly and State House of Assembly.

The 1999 CFRN as (amended) enshrined the doctrine in the provison of section 308 of the constitution, it provides:
(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 in 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 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) the reference in this section to a “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 should be noted that, the phrase “civil and criminal proceedings” was interpreted and construed in the notorious case of Gani Fawehinmi V IGP (2000) 1 WRN 90, at 93 to mean arrest or imprison pursuance to the process of any court or otherwise during that period, and no process of any court requiring or compelling the appearance of persons which the section 308 (1) yo (3)apply to.It’s however, reiterated that the section does not apply to investigation of National Assembly but only limited and in confined of such proceedings before a court or tribunal.

although the constitution stipulates that certain elected political office holders enjoy immunity clause but they are not immuned from being investigated from criminal offences and their asset can be seized if it was proven to be acquired with illegitimate fund like it was decided in the case of Governor Ayo Fayose where the court has put to rest the controversy on whether the assets of executive office holder under immunity can be seized if such properties were acquired with illegitimate funds. It is concluded that the wordings of the relevant laws be amended so that the provisions of the law will be crystal clear to all stakeholders. In fact, it did noted in a provisions of sections 143,(5)(6) 188 (5)(6) in the proces of removal from of of president or vice president and governor or deputy governor respectively.

In fact, civil proceedings can not be instituted or continued for acts done in a personal capacity. The use of the word “continued” means if there was any application or lawsuit against any holder of office during the time they took office. It must be severally and automatically discontinued. The question cries for answer is whether an action against the incumbent governor for misappropriation or embezzlement of public would be succeeded, and prevent him from seeking a second term in the office, it’s affirmatively no because it was a decision in the case of Bola Tinubu v IMB Security PLC (2000) 16 NWLR (pt.740)670; (2001)11 WRN’27, that; though the action against the appellant is in his personal capacity and not one arising by virtue of his office as governor, no civil proceedings can be initiated or continued against him while he holds the office of governor even if the suit had be initiated before he became governor, the suit can not be continued, there is nothing therein stopping a governor from imitating action against other persons for relief’s in his personal capacitycapacity. Also the similar positions was put out in Aper Aku v plateau publishing corporation Ltd (1981) N.CL.R 338 at 342 Chief Victor Olabisi Onabanjo v Concord of press Nigeria Ltd.(1981)

Exception to the principle of immunity contains in the provision of section 308

Notwithstanding, that the provision of section 308 restrict holders of of some public offices from initiating or continued any civil or criminal proceedings against them.However, it was held in plethora of cases that the operative of the word in section 308 (1)(a) of the 1999 CFRN as (amended) is against which provides a shield of immunity for any incumbent governor among others persons therein specified as it was equally held in the case of Media Techniques Nigeria Ltd v Alhaji Lam Adesina, does not apply and can not be applicable in relation to election petitions challenging the election or re-election of president or governor, neither can immunity be waived by the person entitled to it.see Obih vMbakwe (1984)1 SCLR 192 SCN: Unongo v Aku (1985) 6 NCLR 262 at 270; Alliance Democraticy v Fayose & others (2004) 26 WRN 34 at 46-47
The petitioner issued a subpoena duces tecum on governor Fayose the he should appeared to produced documents, the respondent filed notice of objection on the ground of the incompetency of court,lack of jurisdiction,unconstitutional, ultra vires and an nullity because of provision of section 308 of the CFRN, that tribunal held in favour of petitioner and held unanimuously; … Having regard to the decision of the supreme court in the case of Obih v.. Mbakwe (2003) 50 WRN 106; (1984)15NSCC126; (1984) 1SCNR 192 and Tinubu..I.M.B Securities PLC (2001) 11 WRN 27 ( 2001) 16 NWLR pt.740) 670 the provisions of section 308 of the 1999 CFRN are not applicable to confer immunity on a state Governor in an election petition involving his election to preclude the issuance of subpoena on him? Or put in abeyance when his election is being disputed before an Election Tribunal as to make him amenable to be compelled by a subpoena to tender document (s) or give evidence before the Election Tribunal.

Worthiness to know that,the president or governor and their deputies are not actually immune from civil actions as result of acts done by them or their behalf in their official capacities or criminal proceedings in which they actually nominal party see Shugaba Abdulraman v the minister of Internal Affairs,(1982),3NCLR 915 see also president of federal Republic of Nigeria & Anor v Adesanya (1982),3 NLCR 306; Abbacha Fawehinmi the then president of Federal Republic of Nigeria, Alhji Shehu Shagari was joined as a nominal party in which the deportation of the Shugaba as a prohibited immigrant was challenged.

The salient question, is whether the persons which immunity applies to can sue,both provision of section 308 and immunity of judges and lawmakers.the answer is affirmatively positive, It’s crystal clear from the position of court court DUKE V GLOBAL EXCEL COMMUNICATION LTD & OTHERS (supra) also in Oguntade JCA in Tinubu v IMB securities Ltd (supra) held thus; “Reading the provision of section, 308 of 1999 constitution and give its literal interpretation, there is nothing therein stopping a governor from initating against the other person for reliefs in his personal capacity. It may appear rather odious and may be unfair that the same constitution that prevent a governor from being sued does not correspondingly protect others persons from suit of a governor. But it is not for me to read into the constitution, a provision not therein stated… It seems to me that to hold that a governor… Karibi whyte JSC also held similar… There is no suggestion that such persons can not institute actions against other persons who apply can not apply for legal process against them.

It would manifestly appear to say that the persons in which the section apply to can not sue any other person will be unfair to the interpretation of constitution

It should be necessarily to know, that the persons to that section apply to can not waive it in any mean. See Col.Oluwole Rotimi & Ors v Magregor, Also Alamieye seigha v teiwa (2001) 33 WRN 144 at 161,162.

In view of this, I humbly submit, that this article envolves the doctrine of immunity and how it operate to public officials ( arms of government), however, there are various restrictions as to the application of the principle in the realm of government, I humbly submit.