Whether An Action Can Be Instituted Against The President Of The Federal Republic Of Nigeria Without The Inclusion Of The Attorney General Of The Federation As A Proper Party

NBA-Public Interest Litigation A Case Study?

By Jide Justin AKINROTIMI, ESQ.

The President of the Nigeria Bar Association, Mr. Olumide Akpata, Esq., drew my attention recently via a presumably electronic copy of the Originating Summons dated and filed the 11^th day of February, 2021.

With respect, may I commend the leadership of the Public Interest Litigation of the Nigeria Bar Association under the Chairmanship of Dr. Charles Mekwunye. I am however constrained to draw the attention of the Committee and members of the Bar to the fundamental area of law omitted in the course of filling the Originating Process, in respect to the elongation of the tenure of the IGP, particularly the institution of legal proceeding against the 1^st Respondent the President, Federal Republic of Nigeria without the inclusion of the Attorney General of the Federation who is the Chief Law Officer of Nigeria.

The provenance of this article, is to re-instate the settled principle of law that a Civil or Criminal action cannot be maintained against the President of the Federal Republic of Nigeria or a Governor of any State of the Federation during the Course of duty except same is instituted through the office of the Attorney General of the Federation or States respectively.

Section 308 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) States: that no civil or criminal proceedings shall be instituted or continued against a person to whom this section applied to during his period of office.

Section 308 (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.

Going further, it is appropriate to consider the powers conferred on the office of the Attorney General of the Federation briefly:

Section 150(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) States: There shall be an Attorney-General of the Federation who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation. (Emphasis is mine)

Section 174 (1) The Attorney General of the Federation shall have power

• To Institute and undertake criminal proceedings against any person before any Court of law in Nigeria, other than a Court –martial, in respect of any offence created by or under any Act of the National Assembly;
• To take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
• To discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person
• The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department.

• In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.

Against the above background, it is clear beyond doubt that the office of the President, Vice-President, Governor or Deputy Governor enjoys the benefit of the immunity clause as enshrined under the provision of Section 308 of the 1999 Constitution of the Federal Republic of Nigeria during the occupation of office. It is therefore a settled principle of law that no action can lie against the aforementioned officers during the tenure of office and any such action to same appears baseless, unmeritorious and a flagrant breach of the required provisions of law.

It is therefore imperative at the juncture to expatiate on the rationale for constitutional immunity under Section 308 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

In F.R.N. V. DARIYE (2011) 13 NWLR (Pt. 1265) p. 521 The Court held that the raison d’etre for the immunity clause entrenched in Section 308 of the Constitution of the Federal Republic of Nigeria, 1999 is to enable the person to whom the section applies while in office, to conduct the affairs of governance free from hindrance, embarrassment and the difficulty which may arise if he is being constantly pursued and the harassed with Court process of a civil or criminal nature while in office.

In EFCC v. FAYOSE & ANOR (2018) LPELR-44131 (CA) Per UGO J.C.A had this to say that …the Provision of Section 308 speaks of a civil action or criminal proceedings instituted or continued against a person to whom the section applies during his period of office. The provision goes on to preclude arrest or imprisonment, and issuance of process requiring or compelling appearance of such person and therefore the provision of Section 308 is a policy legislation designed to confer immunity from civil suit or criminal process on the public officers named in section 308(3) and to insulate them from harassment.

The Apex Court also made this known that as a result of the immunity enjoyed by elected public officers under section 308 of the Constitution, an incumbent Governor cannot be arraigned before a Court of law or the Code of Conduct Tribunal See APC v. PDP & ORS (2015) LPELR-24587 (SC). Also See Tinubu v. I.G.P. (2002) 7 NWLR (Pt. 740) 670. Still on the need to sue the Attorney General of the Federation in cases involving the Federal Government, the Court of Appeal Per BADA, J.C.A. held as follows in the case of FAAN V. BI-COURTNEY LIMITED & ANOR (2011) LPELR-19742(CA)

“In view of the foregoing it is my view that the Attorney General is a proper party to be proceeded against in an action against the Federal Government and all or any of its agencies. By implication, the Federal Government and its agencies have their interests adequately represented by the Attorney General of the Federation being the Chief Law Officer of the Federation and Minister of Government of the Federation whose office was created by Section 150 of the Constitution of the Federal Republic of Nigeria 1999”.

Having established that the Attorney General of the Federation is a proper party in an action against the Federal Government, it only then remains to examine the legal effect of failure to join the Attorney General of the Federation as a party. In this regards, it is submitted that the non-joinder of a proper party may be fatal to a suit. In the case of BAKARE & ORS v. AJOSE-ADEOGUN & ORS SC.80/2005, SC.125/2006 the Supreme Court Per ARIWOOLA, J.S.C. held as follows “… And it is trite law that it is only when proper parties are before the court that the court will be competent to adjudicate on the suit, otherwise the court shall be incompetent. In other words, when proper parties are not brought before the court, there is lack of jurisdiction and locus standi as the action is incompetent.”

It should however be pointed out that the non-joinder of the AGF may be still be remedied.

On the premise of the above statutory and judicial authorities, it is imperative to portray that the action instituted against the 1^st Respondent in the Originating Process in the matter between The Registered Trustees, Nigeria Bar Association and The President, Federal Republic of Nigeria & 2 Ors in Suit No FHC/L/CS/24/2021without the inclusion of the Office of the Attorney General of the Federation as a party appears a potential of ruining the case.

Conclusively, I therefore call on the attention of the members of the NBA-public Interest Litigation Committee to correct the obvious anomaly and ensure same complies with due process of law as a matter of urgency.

Thank you.

Jide J. AKINROTIMI, ESQ. ,07069473616, The LegalHub Partnership, Lagos.

18^th February, 2021.