LEGAL PRINCIPLE: CONSTITUTIONAL LAW – Immunity of Governors – Effect of Immunity on Pending Proceedings – Proper Order to Make
PRINCIPLE STATEMENT
We think that the learned trial Judge was right in concluding that section 161(1)(c) of the Nigerian Constitution confers an immunity on the 1st defendant and that the action should not have been continued against him since he became the Governor of the Western State during the pendency of the present proceedings. In the circumstance, the learned trial Judge should have struck out the case of the plaintiff as against the 1st defendant.
RATIO DECIDENDI (SOURCE)
Per Coker, JSC, in Rotimi & Ors v. Macgregor (1974) 11 S.C. 133, applied in Tinubu v. I.M.B. Securities Plc (2001) NLC-322001(SC) at p. 19; Paras A–B.
"We think that the learned trial Judge was right in concluding that section 161(1)(c) of the Nigerian Constitution confers an immunity on the 1st defendant and that the action should not have been continued against him since he became the Governor of the Western State during the pendency of the present proceedings. In the circumstance, the learned trial Judge should have struck out the case of the plaintiff as against the 1st defendant."
EXPLANATION / SCOPE
When a defendant becomes Governor during pending proceedings, the action against that defendant must be struck out—not merely stayed. Striking out removes the defendant from the suit entirely. Stay would leave the action pending, which is prohibited. Striking out is the proper order because the court lacks jurisdiction to entertain any proceedings against the Governor. The immunity is absolute during tenure. The plaintiff may sue the Governor after leaving office, but cannot maintain the action during tenure. Striking out is without prejudice to re-filing after tenure. The order applies only to the Governor; the suit may continue against other defendants. The court has no discretion to order otherwise.
