LEGAL PRINCIPLE: CONSTITUTIONAL LAW – Immunity of Governors – Whether Confers Disability on Holder to Institute Proceedings
PRINCIPLE STATEMENT
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.
RATIO DECIDENDI (SOURCE)
Per Ayoola, JSC, in Tinubu v. I.M.B. Securities Plc (2001) NLC-322001(SC) at p. 48; Paras B–D.
"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."
EXPLANATION / SCOPE
Section 308 immunity protects Governors from being sued—it does not disable them from suing others. Immunity and disability are distinct concepts. The Constitution provides no express or implied prohibition on Governors instituting proceedings. If the drafters intended to disable Governors from suing, they would have said so. The provision is one-way protection, not a bar on access to justice. A Governor can sue to enforce rights or defend interests. The immunity is personal and defensive only. The court cannot read a disability into the provision where none exists. The Governor retains the right to sue as any other citizen.
