Immunity according to the 8th editon of the black’s law dictionary, it defines immunity as any exemption from a duty, liability or service of process especially such exemption granted to a public official. It can also be defined as protection from any form of court proceedings. It is to be noted that a person who enjoys immunity can not give evidence under section 175 of the evidence Act or that such person is legally disabled as seen in section 30 of the criminal code and section 50 of the penal code. But rather, the drafters of the constitution felt that it is inappropriate to bring the occupant of such position before a court of law during the period while he is holding such position. Section 308 of the CFRN 1999 as amended 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 of 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 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 (I) 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) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to “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. The purpose of this section is to allow the office holders enjoying the privilege of the immunity clause to be able to carry out their duties with a complete freehand and free mind without no distraction or intimidation. This can also be seen in the case of Abacha v.FRN (2014) LPELR-22014 (SC) Supreme Court held that as follows: “The purpose of the immunity is to allow the incumbent President or Head of State, or Vice President, Governor or Deputy Governor, a completely free hand and mind to perform his or her duties and responsibilities while in office; to protect the incumbent from harassment.” However, the exception to this clause is that if the person is being sued in his official capacity in any civil proceedings or where he is a nominal party in any civil or criminal proceedings, the immunity clause does not apply. See subsection (2) of the section 308 of the CFRN1999 As amended. For example, if His Excellency,Akinwunmi Ambode enters into your land to erect a personal building, you can not sue him because no process of court can compel him to appear before the court throughout his tenure. See Duru v. Governor of Imo State&Ors.(2017) But if he enters as the governor of Lagos state to build a government school on your land then you can sue because at this time you are suing the governor of Lagos state not Akinwunmi Ambode which signifies that you are suing him in his official capacity. In a situation whereby you are afraid that by the time his tenure runs out, the cause of action would have died, you do not need to worry because the proviso to subsection 1 provides a cover. It reads: 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. according to James Agaba, he is of the view that what this means is that no matter how long the wrong complained of took place, the law deems it, for the purposes of determining the limitation period, that the wrong took place the next after the occupant’s last day in the office in question. In other words, time does not run while the occupant is in office. It is to be noted that those enjoying immunity even though they can’t be prosecuted but they can’t be investigated even in office. See Fawehinmi v IGP & ors. (2002) Moreover, immunity does not extend to election petition. See the case of Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 54. The rationale for suspending the operation of the immunity clause during the hearing of election petition was explained by the late Justice Kayode Eso in Obih vs. Mbakwe (1984) All NLR 134 at 148 when he said: “With respect, to extend the immunity to cover the governors from being legally challenged when seeking a second term will spell injustice.” Those enjoying immunity can be impeached from office: By the virtue of section 143 & 188 of the constitution, a president and a governor can be removed from office by members of the national assembly and State Houses of Assembly. See Inakoju V. Adeleke (2007) 4 NWLR (Pt 1025) 423, Marwa V. Nyako (2012) 6 NWLR (Pt. 1296) 199, Ladoja V. INEC (2007) 12 NWLR (Pt 1047) Conclusively, this type of immunity also extends to diplomats and their families. See section 1(1) of diplomatic immunities & privileges act and also judges for acts done in the discharge of their judicial or quasi-judicial function. See section 188 of the evidence act. By Toheeb Mustapha Babalola, Faculty of Law, Bayero University Kano,08106244073]]>
Themes on the New Employees’ Compensation Act ---Order now!!