Vice President Osibanjo’s threat recently to sue for defamation and his offer to waive his section 308 immunity for that purpose have elicited considerable comments. Broadly, two claims are discernible from these comments. First, that section 308 immunity cannot be waived by a person (President, Governor, Vice President, and Deputy Governor) protected by it and second, that, that person is disabled from suing anyone in his or her private capacity while the immunity lasts. The first claim is obviously well-founded. The immunity cannot be waived, and any purported waiver is of no effect: Tinubu v. I.M.B. Securities Plc., [2001] All FWLR (Pt. 77) 1003 at 1044, (2001) 8 NWLR (Pt. 740) 670. However, the second claim is bogus, completely without any legal basis and contrary to the case law. Vice President Osibanjo can sue for defamation notwithstanding section 308, and it is unnecessary to waive his immunity to do so.
2. The error of the claim that a person enjoying section 308 immunity cannot sue is conflating immunity and disablement (disability). Early in the last century, the American jurist Wesley Newcomb Hohfeld provided a ground-breaking framework to improve legal analysis. (Every lawyer should remember his name from the jurisprudence and legal theory course in the LL.B. curriculum.) Hohfeld organized the eight distinctive conceptions of right and duty into four “jural correlatives”:
RIGHT – DUTY
PRIVILEGE – NO RIGHT
POWER – LIABILTY
IMMUNITY – DISABILITY
Thus, if someone has a right, it follows that someone else must have a duty flowing from that right. Or, in the matter under discussion, if someone has immunity (such as by section 308), it follows that someone else had a legal disability with respect to the person with immunity.
Hohfeld also identified four “jural opposites”:
RIGHT/NO RIGHT
PRIVILEGE/DUTY
POWER/DISABILTY
IMMUNITY/LIABILITY
These are opposites because it is impossible for the same person to have both at the same time with respect to the same facts. A person, for example, cannot have both immunity and yet be liable.
3. The case law is settled that section 308 does not disable a person protected by it from suing in his personal capacity. In Chief Onabanjo v. Concord Press of Nigeria, (1981) 2 NCLR 399, the Court of Appeal dismissed the contention that section 308 was a bar to a sitting Governor suing for libel. The Supreme Court (Tobi, Musdapher, Mukhtar, Onnoghen, and Aderemi, JJSC) unanimously affirmed this position as correct in Global Excellence Communication Limited v. Donald Duke, [2007] All FWLR (Pt. 387) 782 (a sitting Governor sued for defamation).
Onnoghen, JJSC, with whom the other Justices agreed, stated the rationale as follows:
“…as the words used in section 308 of the 1999 Constitution are very clear and unambiguous, I hold the view that they ought to be given their plain and simple meaning as the said words speak for themselves particularly as they clearly demonstrate the intention of the framers of the Constitution which is clearly not to place any disability on the persons mentioned under subsection 3 of section 308 of the 1999 Constitution, including the respondent, from instituting or continuing any civil action against any person or persons during their tenure of office. The prohibition contained in section 308 of the 1999 Constitution is rather against other parties and for the benefit of the respondent and others mentioned therein particularly during the period they occupy the relevant offices. …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.”
This Supreme Court approved the dictum of Ayoola, JSC in Tinubu v. I.M.B. Securities, (2001) 8 NWLR (Pt. 740) 670721-722.
4. Some may be tempted, naturally, to object that it is unfair for a person having immunity from the legal process to be allowed to sue while enjoying that immunity. The Supreme Court (Onnoghen JJSC) responded curtly to that objection, “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.”
However, the Constitution remedies partly the adverse effect of the disability created by section 308 for a potential litigator with the proviso to section 308(1):
“Provided that in ascertaining whether any period of limitation has expired for the purpose of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.”
So, a person burdened with disability by section 308 will have his day in court now as a defendant and in the future, perhaps, as plaintiff.
5. This comment is limited to the threshold issue of section 308. But the cases cited above show that sitting Governors have successfully sued for defamation.
Read the case here:
Solomon Ukhuegbe 