Background

Political officeholders in Nigeria especially those occupying Chief Executive positions as President, Vice President, Governors and Deputy Governors are often victims of defamatory statements courtesy various segments of the citizenry.

These citizens deploy diverse means to actualise the passing of such sensitive information. Some use their personal blogs, social media and other opportunities to address the public. News media, both electronic and prints are not excluded.

Such publication, whether statement of fact or expression of opinion tends to damage the reputation of the political officer in question and discredit him in his office. Individuals and media can be said to engage in such acts in ignorance, blatant nonchalance or sheer belief that their victims cannot initiate an action against them especially in guise of the immunity placed on those Chief Executive officers. However, it is trite that the belief is a sham.

Immunity and its exceptions in Nigeria

Immunity is provided for in the Nigerian Constitution under Section 308. The Section places restriction on legal proceedings against the President, Vice President, Governors and their respective deputies in their personal capacities. Section 308(1) provides thus:

“Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section-

no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;
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
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.”

Section 308(2) states two exceptions to the provision of immunity. First, the immune persons can be sued in their official capacity. Plethora of such cases abound. They can be sued directly in their name or via Attorney General of the Federation or that of the relevant state. Another exception provided in the subsection is where such immune person is joined only as a nominal party. Section 308(3) enumerates persons the section applies (as listed above) and defines the term “period of office”.

There are other exceptions to the general rule of immunity not provided in the Section. Removal or impeachment proceedings may be initiated against them- Sections 143 and 188 of the 1999 Constitution of Nigeria [1]. The Court has no jurisdiction to entertain suits having to do with impeachment proceedings. The power of the Court has been ousted over such matters- Balarabe Musa V Kaduna State House of Assembly and others (1984) 5 NCLR 241. However, when such impeachment or removal proceeding is not done in accordance with the due process of law, the Court can step in to ensure justice when approached, as seen in the case of Inakoju V Adeleke (2007) 4 NWLR (pt 1025) 423.

Election petitions may be brought against any holder of offices enjoying immunity. In AD v. Fayose (2005) 10 NWLR (Pt. 932) 151, the Court of Appeal held unanimously giving regard to the decision of the Supreme Court in Obih V Mbakwe (2003) 50 WRN 106 and Tinubu I.M.B. Securities Plc. (2001) 11 WRN 27 that “…the immunity provided by the provisions of Section 308 of the Constitution of the Federal Republic of Nigeria 1999 on a State Governor is put in abeyance when his election is being disputed before an Election Tribunal as to make him amenable to being compelled by a subpoena to tender document(s) or give evidence before the Election Tribunal”.

The Capacity of Immune Chief Executives to sue for Defamation

Another focus of the article which is to examine the capacity of an immune Chief Executive to sue can be said to be another exception to the general principle of Executive immunity. It will be broached in this piece using defamation as a case study.

Defamation, as defined by Black Law Dictionary (10th Edition), is the act of injuring a person’s character, fame or reputation by false and malicious statements. In a broader dimension, defamation refers to false statements about a person communicated as fact to one or more other persons by an individual or entity (such as a person, newspaper, magazine or political organization), which causes damage and does harm to the target’s reputation and/or standing in the community[2].

When defamed, the victim often feels the need to vindicate himself, get compensation and protect his good name and reputation which has been dented. However, where a person has no good reputation in respect of what is said, the law has nothing to protect for him, such person cannot recover damages for loss of a reputation he does not possess [3]. This write-up is focused on when indeed all requirements to prove defamation can be successfully proven.

Whether or not immune Chief Executives can sue has been addressed by the Court in numerous cases.

In the case of Onabanjo V Concord Press of Nigeria Ltd (1981) 2 NCLR 399, the plaintiff while still in office as State Governor had instituted an action in his private capacity against the defendant for an alleged libel in the defendant’s newspaper. Relying on Section 267 of the 1979 Constitution of Nigeria, which gives immunity to certain offices (State Governor included), from civil or criminal proceedings while in such office, the defence counsel raised the argument that the Governor could not maintain any action in his private capacity. Kolawole J., of the High Court of Ogun State held that since the Governor was not expressly incapacitated by any provision of the Constitution, he could sue in his private and personal capacity.

Similarly in Aper Aku v. Plateau Publishing Co Ltd. (1985) 6 NCLR 338, where a claim for damages for libel was brought against the defendant by the then Governor of Benue state, the court held that if the Constitution wants to prevent a Governor from suing in his private capacity, it would have so provided. Nothing disables the Governor (or any immune person) from bringing legal proceedings against persons while in office.

The instant interpretation of the constitutional provision on immunity has been embraced by the Supreme Court in Global Excellence Communication Ltd. v. Duke [2007] 16 NWLR (pt. 1059) 22. The case commenced at the High Court of Cross River State. The respondent, who at the time was the Governor of Cross River State, sued the appellants for an alleged defamation in their magazine. The appellants filed a notice of preliminary objection leaning on the provision of Section 308 of the Nigerian Constitution 1999 challenging the jurisdiction of the court to entertain the suit.

The main objection in the instant case was that in line with the immunity enjoyed by the plaintiff under Section 308 of the Constitution, he could not institute, maintain or continue any legal proceedings in any court of law. Based on this submission, the trial court held inter alia that a serving Governor could not sue or be sued in his personal capacity while still in office. On appeal, the Court of Appeal, by a majority decision allowed the respondent’s appeal by holding that although a serving Governor cannot be sued, he can sue in his personal capacity while still in office. On a further appeal to the Supreme Court, the decision of the court of Appeal was upheld.

In the case, Aderemi JSC explained the law thus: “what is intended to be prohibited by the aforesaid section (Section 308 of the Constitution) is the institution or continuation of any suit, be it civil or criminal, against the occupier of the position of a Governor or Deputy Governor of a state during the duration of his office. 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”.

It is therefore no doubt that beneficiaries of immunity provided in Section 308 of the Nigerian Constitution can sue not only for defamation but for any cause of action.

Conclusion

It is apparent that allowing the immune Chief Executives to sue in their private capacity while they cannot be sued in such capacity is like allowing those who live in glass house to throw stones. The constitutional silence on whether such officer can sue in their private capacity is no doubt unjust and negates the legal principle of equality.

Also, the purpose of immunity as held by the Court in numerous cases is to bar any form of inhibition of the office holders in the performance of their duties during their tenure in office[4]. It can be submitted that even allowing them to sue will, no doubt reasonably make them slacken in the discharge of their public duty as they will not fold their arms when they institute action in court.

There should be reconsideration by the National Assembly on Section 308 of the Constitution in a bid to bring on board a reciprocal inclusion barring the Executive officers from suing in their private capacity.

Persons and the media should not however be surprisingly cautious of what they publish (whether verbal or written) to the extent of surrendering their right to freedom of expression as enshrined in Section 39 of the Nigeria’s Constitution of 1999.

Rather, they should, for their own good, endeavour to publish information that are true in substance and justified. There should as well be a dispassionate expression of opinion or conclusion, on the fact correctly stated. If found culpable of defaming any immune Chief Executive, provision of Section 308 of the 1999 Constitution of the Federal Republic of Nigeria will not be a shield.

References

[1]Ese Malemi- Administrative Law (4th Edition)

[2]https://www.templars-law.com/wp-content/uploads/2019/04/Templars-Thought-Leadership_Online-Defamation-Just-Before-You-Post-It.pdf

[3]Ese Malemi- Law of Tort (2nd Edition)

[4] Musdapher, JCA in Alamieyeseigha v. Yeiwa & Ors. [2002] 7 NWLR (Pt. 767) 381, 601

Olumide Toyinbo studies Law at the University of Ibadan. He can be reached via [email protected] or 08103240364.