GLOBAL EXCELLENCE COMMUNICATIONS LIMITED & 3 ORS V MR. DONALD DUKE
In the Supreme Court of Nigeria
Friday, June 30, 2006
Case Number:SC. 313/2006
JUSTICE, SUPREME COURT
GLOBAL EXCELLENCE COMMUNICATIONS LIMITED
MAYOR AKINPELU EJIRO
RENE ADIGBOOGECHI UDI
MR. DONALD DUKE
Whether having regards to the absolute immunity conferred by the said section 308(1) of the 1999 Constitution the respondent has the right or liberty to institute or continue any civil action against any person(s) during his tenure of office as Governor of Cross River State.
“The bone of contention between the parties, however, remains the issue as to whether the respondent, having regards to the absolute immunity conferred on him by the said section 308(1) of the 1999 Constitution has the right or liberty to institute or continue any civil action against any person(s) during his tenure of office as Governor of Cross River State. In other words, does the immunity against institution or continuation of civil or criminal proceedings include a corresponding disability to institute or continue any proceedings by the Governor against any person(s) in any court in Nigeria? As stated earlier in this judgment, the answer to the issue lies in the interpretation or construction of the provisions of section 308 of the 1999 Constitution being the-provision which conferred the immunity on the respondent and others so mentioned in that action. In the case of A-G of Bendel State v. A-G of the Federation & ors (1981) 9 S.C (Reprint) 1 at 78 – 79, OBASEKI, J.S.C. stated the principles guiding the court in interpreting or constructing the provisions of our constitution to include the following:-
“(1) Effect should be given to every, word.
(2) A construction nullifying a specific clause will not be given to the Constitution unless absolutely required by the context.
(3) A Constitutional power cannot be used by way of condition to attain unconstitutional result.
(4) The language of the Constitution where clear and unambiguous must be given its plain evident meaning.
(5) The Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety; a particular provision cannot be dissevered from the rest of the Constitution.
(6) While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import to the meaning.
(7) A Constitutional provision should not be construed so as to defeat its evident purpose.
(8) Under a Constitution conferring specific powers, a particular power must be granted or it cannot be exercised.
(9) Delegation by the National Assembly of its essential legislative function, is precluded by the Constitution (Section 58(4) and section 4(1))
(10) Words are the common signs that mankind make use of to declare their intention one to another and when the words of a man express his meaning plainly and distinctly and perfectly, there is no occasion to have recourse to any other means of interpretation.
(11) The principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions.
(12) Words of the Constitution are therefore not to be read with stultifying narrowness.
It is with the above principles in mind that the provisions of section 308 of the 1999 Constitution will be interpreted. However, it is settled law that the duty of the courts is simply to interpret the law or Constitution as made by the legislature or the framers of the Constitution. It is therefore not the Constitutional responsibility of the judiciary to make laws neither can it amend the laws made by the legislature. It must therefore be borne in mind always that courts cannot amend the Constitution neither can they change the words used in crafting it. I had earlier reproduced the provisions of section 308 of the 1999 Constitution in this judgment and it is my considered view that the provisions are very clear and unambiguous. It is now settled that: “In the area of construction, the primary concern of the courts is the ascertainment of the intention of the legislature or law makers. From this function, the court may not reside however ambiguous or difficult of application the words of the law or Act may be, the court is bound to place some meaning upon them. If the language is clear and explicit, the court must give effect to it, for in that case, the words of the statute speak the intention of the legislature. Its function is jus dicere not jus dare. The words of a statute must not be overruled by the judges” per OBASEKI, J.SC. in Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 317 at 402. Bearing the above words of wisdom in mind particularly 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. PAGE| 11 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. I hold the considered view that to hold otherwise or agree with the proposition of learned counsel for the appellants would amount to the court reading into section 308 of the 1999 Constitution words that are not therein contained thereby, in effect, amending the said provision, which would be outside the Constitutional province of the courts of law. That apart, I had earlier in this judgment reproduced some of the important principles of law guiding the courts in interpretation of our constitution and as can be gleaned therefrom 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. The submission of learned counsel for the appellants in that respect, though very persuasive on moral grounds, has no foundation in law and is consequently discountenanced by me. The duty of the court is not to deal with the law as it ought to be but as it is. 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. The above view finds support in the dictum of AYOOLA, J.S.C. in Tinubu v. IMB Securities Plc (supra) at 721 – 722 where the following view is expressed:- Thirdly, I am unable to construe a provision of the Constitution that granted 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 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 to provide expressly that: PAGE| 12 ‘no civil or criminal proceeding shall be instituted against any person 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 a person during his period in office’ Or in like terms. The makers of the Constitution in their wisdom did not so provide.” I entirely agree with the above dictum and adopt same as mine in this judgment. I consequently reject the contrary dicta of KARIBI-WHYTE AND KALGO, JJSC in the case of Tinubu v. IMB Securities P.L.C at 708 and 718 cited, and relied upon by learned counsel for the appellants as the same are not in accord with the clear intention of the framers of section 308 of the 1999 Constitution. I also do not agree with the submission of learned counsel for the appellants that a confirmation of the interpretation of section 308 of the 1999 Constitution by the lower court would lead to absurdity particularly as a contrary interpretation would be adding to the said provision what is not expressly stated or intended, or putting unnecessary strain on that section which strain the said section will be unable to bear. In conclusion I resolve the lone issue in this appeal against the appellants and hold the considered view that the appeal is without merit whatsoever and deserves to fail. The appeal is therefore dismissed with N10.000.00 costs in favour of the respondent. The judgment of the Court of Appeal holden at Calabar in appeal No. CA/C/06/2005 delivered on the 2nd day of May, 2006 is hereby affirmed by me. Appeal dismissed.
W.S. N. ONNOGHEN, JSC