Osinbajo and His Right to Sue

Can Vice President Yemi Osinbajo waive his constitutional immunity under Section 308 of the Constitution and sue anybody, organisation or institution that allegedly defamed him? Davidson Iriekpen ponders this possibility within the legal context
Vice-President Yemi Osinbajo, last Wednesday, declared that he was ready to waive aside the constitutional immunity conferred on his office to clear any case of alleged corruption levelled against him.

The vice-president’s remarks came on the heels of allegations by a political activist and former Deputy National Publicity Secretary of the All Progressives Congress (APC), Timi Frank, that the number two citizen mismanaged about N90 billion released by the Federal Inland Revenue Service (FIRS) to prosecute the 2019 general election.

Frank, through a statement on Monday in Abuja, had alleged that he had reliable information from his sources in the presidency to this effect.
But the vice-president, in a statement authored by his Senior Special Assistant on Media and Publicity, Laolu Akande, via his Twitter handle, disclosed that he had already instructed that legal actions should commence against ‘Timi Frank and one Katchi Ononuju, who put their names to these odious falsehoods.’
In the statement, the vice-president also expressed his readiness to waive his constitutionally guaranteed immunity to ensure that the truth about the allegation was unearthed.

The statement read: “In the past few days, a spate of reckless and malicious falsehoods have been peddled in the media against me by a group of malicious individuals. The defamatory and misleading assertions invented by this clique had mostly been making the social media rounds anonymously.
“I have today instructed the commencement of legal action against two individuals, one, Timi Frank and another Katch Ononuju, who have put their names to these odious falsehoods. I will waive my constitutional immunity to enable the most robust adjudication of these claims of libel and malicious falsehood.”
Almost simultaneously, his solicitors, Femi Atoyebi & Co. wrote a letter to Google demanding that it immediately “remove and/or suspend the publication/broadcast of the defamatory publication” warning that if it “fails, refuses or neglects to remove the publication immediately, they would be compelled to consider legal options open to the vice president.

As usual, the issue has raised the questions some of which include: Can the vice president waive his constitutional immunity to enable take up “the most robust adjudication” of several baseless allegations, insinuations and falsehoods against his person and office? Can he sue anybody, organisation or institution?
Many analysts have said the vice president does have the right under Section 308 to say that he could not sue anybody, organisation or institution that defamed him.

They relied on the judgment of an Abuja High Court delivered on June 18, 2009 where the court sitting as an appellate court over the ruling of an Abuja Chief Magistrate Court on alleged criminal defamation charge filed against the publisher of Leadership newspaper, Sam Nda-Isaiah and three others, held that then President Umaru Musa Yar’Adua lacked the power to maintain the legal action against the suspects, because of Section 308 of the 1999 Constitution, which gives him immunity.

The alleged defamatory matter was a story published by the Leadership newspaper on the alleged ill-health of the president.
In arriving at the above decision, the two-man panel of judges led by Justice Abubakar Talba purported to adopt a liberal interpretation of Section 308 of the 1999 Constitution, and erroneously cited some cases including that of Tinubu V. I.M.B Securities (2001) 16 NWLR (Pt.740) 670, and G.E.C V. Donald Duke (2007) 16 NWLR (Pt. 1059) 22.

This, they reckoned, supported the view that since the constitution conferred immunity from civil and criminal prosecution on a sitting president, vice president, governor, and deputy governor, that would invariably mean that these officials are estopped from instituting legal proceedings in their personal capacity against any person during their tenure of office.

The exact provisions of Section 308 are reproduced hereunder as follows: “308(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 any 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 any 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.”
Analysts believe that a cursory look at the provisions would show that the constitution never expressly stated that a person occupying the position of president, vice president, governor and deputy governor could not institute legal action against any person.

They argued that the section provides immunity from legal action to the officials mentioned therein without debarring them from instituting legal action in their personal capacity against other persons.
The issue was settled by the Supreme Court in the case of Bola Tinubu V. IMB Securities Plc (supra), and re-affirmed in the more recent case of Global Excellence Communications Ltd. & Ors. V. Mr. Donald Duke (supra).

In the case, the respondent, who was then the sitting Governor of Cross River State, had instituted an action in his personal capacity against the appellants, claiming various sums of money as damages for alleged libellous publication in the appellant’s news magazine.
A preliminary objection was raised as to the jurisdiction of the court to entertain the suit on the ground that Section 308protects the governor from being sued as well as debarring him from suing in his personal capacity during his period of office.

The trial court sustained the preliminary objection and held that by virtue of Section 308, the governor could neither sue nor be sued. But the decision reversed by the Court of Appeal and a further appeal to the Supreme Court through a unanimous dismissal dealt a great blow to it.
In delivering the lead judgment at the Supreme Court, Justice Walter Onnoghen cited with approval and adopted the dictum of Ayoola JSC in the earlier case of Tinubu V. I.M.B Securities Plc (supra) .

He said, “I am unable to construe a provision of the constitution that granted an immunity such as Section 308(1) as also constituting a disability on the person granted immunity, when there is no provision to that effect, either expressly or by necessary implication in the enactment.

“If the makers of the Constitution had wanted to prohibit a person holding the offices stated in section 308 from instituting or continuing action instituted against any other person during his period of office, nothing would have been easier than to provide expressly that: ‘no civil or criminal proceedings shall be instituted or continued by a person to whom this section applies during his period of office and no civil or criminal proceedings shall be instituted or continued against such person during his period of office’ or in like terms. The makers of the constitution in their wisdom did not so provide.”

In her own judgment, Justice Mukhtar simply stated: “It will be definitely wrong to read between the lines and in the process smuggle matters, which were not intended by the legislature into the provisions of S. 308 of the Constitution. Extraneous matters should not be imported into legislation, but they should be given their simple and grammatical meaning.”
Based on the decisions of the Supreme Court, it has become apparent that the question of whether a president, governor or their deputies can sue while in office had been laid to rest.