Tinubu V I.M.B Securities (2001)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C. 

This is an appeal against the interlocutory decision of the Court of Appeal, Lagos Division, delivered on the 29th day of January, 2001. In its judgment, the Court of Appeal had adjourned sine die the appeal of the 3rd defendant pending before it until he ceased to hold his office as the Governor of Lagos State.

I think it is desirable for a better appreciation of the issue that arises for determination in this appeal to set out briefly the history of the proceeding leading thereto.

By a writ of summons instituted on the 26th day of November, 1992 at the High Court of Lagos State, the plaintiff claimed against the 1st defendant the sum of N2.5 million being the outstanding balance owed in respect of an overdraft facility granted by the plaintiff to the said 1st defendant. The plaintiff also claimed, as against the 2nd and 3rd defendants, the same amount together with interest, upon the breach of their obligations under the contract of guarantee entered into by the parties and arising out of the overdraft facility.

The 3rd defendant, by a motion on notice dated the 27th January, 1994 applied to the trial court for an order to set aside the service of the writ of summons and the statement of claim in the suit on the ground that they were purportedly served on him on the 20th January, 1994 after the expiration of the 12 months life span of the writ of summons. The 3rd defendant, in the same application, also prayed for the striking out of the writ of summons and the statement of claim and for the dismissal, or alternatively, the striking out of the plaintiff’s action.

Following this development, the plaintiff, in a swift reaction, applied by motion on notice for the renewal of its writ of summons by a further period of six months.

Both applications of the 3rd defendant and the plaintiff were consolidated and heard together by the learned trial Judge who in his ruling of the 17th day of June, 1994 granted the plaintiff’s prayer. The life span of the plaintiffs writ of summons was accordingly extended by a further period of six months and the service of the processes in issue on the 3rd defendant on the 20th January, 1994 was deemed good and proper service. The application of the 3rd defendant for the dismissal or alternatively the striking out of the plaintiff’s action was, having been overtaken by events, struck out.

Dissatisfied with this decision of the trial court, the 3rd defendant, with the necessary leave of court, lodged an appeal against the same to the Court of Appeal, Lagos Division on the 12th June, 1995. Whilst this appeal was pending and the parties had duly filed and exchanged their respective briefs of argument in respect thereof, the 3rd defendant/appellant successfully contested election to the office of the Governor of Lagos State. He was accordingly sworn in as Governor of Lagos State of Nigeria on the 29th May, 1999.

On the 1st day of December, 1999 when the appeal was listed for hearing before the Court of Appeal, learned counsel for the plaintiff/ respondent applied for the adjournment of the appeal sine die until such time as the 3rd defendant/appellant would cease to hold office as Governor of Lagos State. It was his contention that the civil proceedings in issue, in so far as it concerned the claim against the 3rd defendant/appellant, could no longer be continued, having regard to the provisions of section 308(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999. He argued that any hearing of the interlocutory appeal was tantamount to the continuation of hearing of the main suit against the 3rd defendant/appellant. He submitted that this course of action is prohibited by the express provisions of section 308(1) (a) of the 1999 Constitution.

Learned counsel for the 3rd defendant/appellant indicated his opposition to the adjournment of the appeal sine die as applied for by the plaintiff. He contended that the appeal could be heard, notwithstanding the position of his client as the Governor of Lagos State. He submitted that in-as-much-as section 308(1) (a) of the 1999 Constitution prohibits the institution or continuation of civil or criminal proceedings against a person to whom the section applies, while he is in office, it would be wrong to suggest that such a person to whom the section applies cannot himself institute or continue civil proceedings to enforce his private and personal right. He stressed that section 308(1) (a) of the Constitution nowhere expressly stated that a State Governor can not, while in office, sue to enforce his personal right. He pointed out that the appeal in issue was filed at the instance of the 3rd defendant/appellant and that it is not covered by the immunity prescribed under section 308(1) (a) of the relevant Constitution.

The Court of Appeal at this stage ordered that written briefs of argument be filed by the parties on the issue in controversy between them.

One issue was formulated by the parties as arising for the determination of the Court of Appeal. This, as formulated by the plaintiff/ respondent, and endorsed by the Court of Appeal, is set out as follows:-

“Whether having regard to the entire provisions of section 308 of the 1999 Constitution, the entire proceedings in this suit should be adjourned sine die”.

The 3rd defendant, on the other hand, preferred to frame the sole issue for resolution by the Court of Appeal thus: