ISSUES

Whether, having regard to the provisions of Section 308(1)(a) of the 1999 Constitution, the Court of Appeal was correct in declining to determine the appeal of the appellant pending before it until after the appellant vacated his office as Governor of Lagos State?

Whether or not the provisions of Section 308(1)(a) of the 1999 Constitution permits the Governor of a State, as appellant, to continue with the prosecution of his appeal in a suit instituted against him?

Interpretation and construction of Section 308(1)(a) of the Constitution of the Federal Republic of Nigeria 1999.

Whether the Court of Appeal was correct in adjourning the proceedings sine die after finding that the continuance was prohibited by Section 308(1)(a) of the Constitution of the Federal Republic of Nigeria 1999?

FACTS

The respondent instituted action against the appellant and certain others in order to enforce an overdraft facility granted to them. The appellant applied to set aside the service of the Writ of Summons and Statement of Claim, and to strike out the Writ of Summons and the Statement of Claim. He also asked for an order dismissing or striking out the action. However, the High Court granted an application by the respondent for the renewal of the life of the Writ of Summons for another six months.

The appellant filed a Notice of Appeal against the decision of the High Court. During the course of the litigation, the appellant assumed office as Executive Governor of Lagos State. That led to the respondent applying for adjournment sine die until such time as the appellant ceased to hold office, as the proceedings against him were prohibited by Section 308(1)(a) of the 1999 Constitution.

The Court of Appeal, which heard argument on the issue, granted the adjournment, leading to the present appeal in the Supreme Court. The Court of Appeal held that the prohibition imposed under Section 308(1)(a) against the institution or the continuance of any civil or criminal proceedings against a person to whom Section 308(3) applies during his period of office, is a restraining order which binds the parties in the class of cases therein specified and that the continuation of an interlocutory appeal in respect of such a suit is an indirect way of continuing the case before the trial court.

The appellant's argument was essentially that although Section 308(1)(a) prohibits actions being brought against him while he held office, it did not prohibit him from seeking to continue with the prosecution of his appeal in the action instituted against him.

HELD (Unanimously dismissing the appeal)

1.      On the purpose of Section 308(1)(a) of the Constitution of the Federal Republic of Nigeria 1999

The reason for the protection of the person given the immunity in Section 308 of the Constitution is to afford him quiet tenure, free from harassment on personal matters rather than matters of office. It is to afford the person complete devotion to the high office which pertains to the welfare and stability of governance. Per Belgore, JSC, at page 296.

2.      On the provisions of Section 308(1)(a) of the Constitution of the Federal Republic of Nigeria 1999

Section 308 of the Constitution restricts legal proceedings against a person holding the office of President or Vice-President, Governor or Deputy Governor during the period such person holds such office, provided that such proceedings may be initiated or continued against him during his period of office in his official capacity. Per Ayoola, JSC, at page 300.

Applying the above provisions to the facts, the Court held as follows: The appellant still held the post of Governor of Lagos State. The claim against him did not arise by virtue of any act executed by him in his official capacity as Governor of Lagos State nor was he, as the said Governor, sued in the action as a nominal party. Thus, applying the mandatory provisions of Section 308(1)(a), no civil proceedings could be instituted or, if already instituted, as in the present action, continued against him while he held office. Per Iguh, JSC, at page 269.

3.      On the approach to resolving disputes involving interpretation of the Constitution

When a matter can be disposed of without resort to a strained interpretation of the Constitution, that should be the preferred course. Per Ayoola, JSC, at page 300.

4.      On the general principle of law in the interpretation of the Constitution

Such interpretation as would serve the interest of the Constitution and best carry out its object and purpose should be preferred. Its relevant provisions must be read together and not disjointly, and where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution. Per Iguh, JSC, at page 269.

5.      On the raising of issues suo motu by a court

Judgment in any court proceedings must be confined to the issues therein raised by the parties and it is not competent for the court suo motu to make a case for either of the parties and proceed to give judgment on the case so formulated contrary to the case of the parties before it. A court of law, particularly an appellate court, may only hear and decide on issues raised on the grounds of appeal filed before it. Any issue not covered by any ground of appeal is incompetent and will be struck out. When a court raises a point suo motu, the parties must be given an opportunity to be heard on the point, particularly the party that may suffer prejudice as a result of the point raised suo motu.

In the present case, there was no question of the court below basing its decision on any issue which it raised suo motu without giving the parties an opportunity to be heard, as the issue before was well-canvassed by both parties. Per Iguh, JSC, at page 269.

6.      On the waiving of the immunity afforded by Section 308(1)(a) of the 1999 Constitution by an office-bearer

The immunity granted to the incumbent of the relevant office under Section 308(1)(a) of the Constitution prescribes an absolute prohibition on the courts from entertaining any proceedings, civil or criminal, in respect of any claim or relief against a person to whom that section of the Constitution applies during the period he holds such office. No question of waiver of the relevant immunity by the incumbent of the offices concerned or by the courts may therefore arise. The Court of Appeal was therefore right to have declined to entertain the appellant's appeal pending before it, as to do otherwise would amount to continuing the respondent's suit against the appellant, a suit which under Section 308(1)(a) shall not be continued against the appellant while he remained the Governor of Lagos State. Per Iguh, JSC, at page 269.

7.      On the proper course the Court of Appeal should have followed, having found that the continuance of the appeal was prohibited by Section 308(1)(a) of the 1999 Constitution.

The Court of Appeal ought to have struck out the appeal pending before it because, under the mandatory provisions of Section 308(1)(a), the appeal was not liable to be continued during the period in office of the appellant as the Governor of Lagos State. Per Iguh, JSC, at page 269.

8.      On the meaning of the term sine die

The Latin expression sine die means without a date being fixed, or indefinitely. A matter is said to be adjourned sine die when it is adjourned without a day being fixed for its resumption. The effect of an adjournment sine die in the analogy is not to continue but to keep the pending civil action in abeyance indefinitely. Per Karibi-Whyte, JSC, at page 281.

The following cases were referred to in this judgment:

Nigeria

A.C.B. Ltd v Attorney-General Northern Nigeria (1969) NMLR 231

Adegoke v Adibi (1992) 5 NWLR (Part 242) 410

Adelaja v Fanoiki & another (1990) 2 NWLR (Part 131) 137

Adeniji & others v Adeniji & others (1972) 1 All NLR (Part 1) 278

Aghadiuno v Onubogu (1988) 5 NWLR (Part 548) 16

Ajao v Ashiru (1973) 11 SC 23

Atanda v Lakanmi (1974) 3 SC109

Chief D.O. Ifezue v Livinus Mbadugha & another (1984) 5 SC 79

Chief Ebba v Chief Ogodo & another (1984) 4 SC 84

Colonel Olu Rotimi & others v Macgregor (1974) 11 SC 123 or (1974) 9 NSCC 542

Commissioner for Works, Benue State & another v Devcon Development Consultants Ltd & another (1988) 3 NWLR (Part 83) 407

Kuti v Balogun (1978) All NLR (Reprint) 6

Management Enterprises Ltd. & another v Jonathan Otusanya (1987) 2 NWLR (Part 55) 179

Ndigwe v Nwude (1999) 11 NWLR (Part 262) 314

Odiase v Agbo (1972) 1 All NLR (Part 1) 170

Ojo v Babalola (1991) 4 NWLR (Part 185) 267

Okafor v Anaife (1972) 3 ECSLR 261

Onabanjo v Concord Press (1981) 2 NCLR 399

Oniah v Onyia (1989) 1 NWLR (Part 99) 514

Shitta-Bey v Federal Public Service Commission (1981) 1 SC 40

Ugo v Obiekwe (1989) 1 NWLR (Part 99) 566

Foreign

Goddard v Smith 6 Mod. 261

The following statutes were referred to in this judgment:

Nigeria

Constitution of the Federal Republic of Nigeria 1963: Ss 161; 161(1); 161(1)(c)

Constitution of the Federal Republic of Nigeria 1979: S 267

Constitution of the Federal Republic of Nigeria 1999: Ss 308; 308(1); 308(1)(a); 308(3)

The following rules were referred to in this judgment:

Nigeria

Rules of the Supreme Court: Order 2 rule 11(1)

Iguh, JSC (Delivered the Leading Judgment):- This is an appeal against the interlocutory decision of the Court of Appeal, Lagos Division, delivered on 29 January, 2001. In its judgment, the Court of Appeal had adjourned sine die the appeal of the third 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 26 November, 1992 at the High Court of Lagos State, the plaintiff claimed against the first 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 first defendant. The plaintiff also claimed, as against the second and third 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 third defendant, by a Notice on Motion dated 27 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 20 January, 1994 after the expiration of the 12 months life span of the Writ of Summons. The third 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 Notice on Motion for the renewal of its Writ of Summons by a further period of six months.

Both applications of the third defendant and the plaintiff were consolidated and heard together by the learned trial Judge who in his ruling of 17 June, 1994 granted the plaintiff's prayer. The life span of the plaintiff's Writ of Summons was accordingly extended by a further period of six months and the service of the processes in issue on the third defendant on 20 January, 1994 was deemed good and proper service. The application of the third 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 third defendant, with the necessary leave of court, lodged an appeal against the same to the Court of Appeal, Lagos Division on 12 June, 1995. Whilst this appeal was pending and the parties had duly filed and exchanged their respective briefs of argument in respect thereof, the third 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 29 May, 1999.

On 1 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 third 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 third 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 third 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 third 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 inasmuch 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 cannot, while in office, sue to enforce his personal right. He pointed out that the appeal in issue was filed at the instance of the third 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 third defendant, on the other hand, preferred to frame the sole issue for resolution by the Court of Appeal thus:-

"Whether or not the appellant (meaning the third defendant) can continue the appeal in the light of Section 308(1) of the 1999 Constitution." (Words in brackets supplied for clarity.)

It is plain that the substance of the issue as framed by the parties and accepted by the court is to all intents and purposes similar and revolve on whether or not the provisions of Section 308(1) of the 1999 Constitution permit the third defendant/appellant to continue with the prosecution of his appeal in the suit instituted against him.

After hearing the arguments of the parties on the issue, the Court of Appeal in a unanimous decision delivered on 29 January, 2001 granted the plaintiff's application and adjourned the appeal of the third defendant/appellant sine die until he "vacated the office of Governor of Lagos State." In the main, it held that the prohibition imposed under Section 308(1)(a) of the 1999 Constitution against the institution or the continuance of any civil or criminal proceedings against a person to whom Section 308(3) of the same Constitution applies during his period of office is a restraining order which binds the parties in the class of cases therein specified and that the continuation of an interlocutory appeal in respect of such a suit is an indirect way of continuing the case before the trial court.

Aggrieved by this decision of the Court of Appeal, the third defendant/appellant has now appealed to this Court. I shall hereinafter refer to the third defendant and the plaintiff in this judgment as the appellant and the respondent respectively.

Five grounds of appeal were filed by the appellant against this decision of the Court of Appeal. It is unnecessary to reproduce them in this judgment. It suffices to state that the appellant pursuant to the rules of this Court filed his written brief of argument which was duly served on the respondent. No brief of argument was filed on behalf of the respondent in answer to the appellant's brief of argument.

The two issues distilled from the appellant's grounds of appeal set out on his behalf for the determination of this appeal are as follows:-

"(a) Is the decision of the Court of Appeal not a nullity, having been based on grounds not relied on by the respondent without hearing the parties on those grounds?

(b)     Were the learned Justices of the Court of Appeal correct in their decision to adjourn the appeal of the appellant indefinitely?"

It seems to me that in the light the grounds of appeal filed and the substance of the submissions made in the appellant's brief of argument, the single issue for determination in this appeal is:-

"Whether having regard to the provisions of Section 308(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999, the Court of Appeal was right in declining to entertain the appeal of the appellant pending before it until the appellant vacated his office as the Governor of Lagos State?"

At the oral hearing of the appeal before us, learned Counsel for the appellant, B. R. Fashola Esq., was in court. The respondent, although served with the hearing notice in respect of the appeal, was absent and unrepresented. As already mentioned, no respondent's brief of argument in reply to the appellant's brief was before the court or filed. Accordingly the court proceeded with the hearing of the appeal ex parte pursuant to the provisions of Order 2, rule 11(1) of the Rules of this Court.

Learned Counsel for the appellant in arguing the appeal adopted the appellant's brief of argument and proffered oral arguments in further elucidation of the submissions therein made. He contended that the decision of the Court of Appeal complained of is a nullity in that the same was based on matters neither argued nor related or connected with the grounds upon which the application for the adjournment of the appeal was contested. He complained that the grounds on which the case was adjourned sine die by the court below were issues on which the parties were not heard. He claimed that they are issues which were raised suo motu by the court below and in respect of which the parties were not heard. Citing the decisions in Kuti v Balogun (1978) All NLR (Reprint) 6 at 12 and Ndigwe v Nwude (1999) 11 NWLR (Part 262) 314 at 345, learned Counsel submitted that failure by the court below to hear the parties on the grounds upon which it based its decision after rejecting the grounds upon which the application for adjournment was made rendered its decision a nullity. He argued that this amounted to making a case for a party which such a party failed to make contrary to our adversarial system of justice. He contended that the only question before the court below was the interpretation of Section 308(1) of the Constitution of the Federal Republic of Nigeria, 1999 with a view to determining whether it prohibited the appellant from the prosecution of his appeal. He submitted that the said provisions of Section 308 of the Constitution are clear and ought to be construed literally. He further submitted that if Section 308 of the Constitution is construed literally, it would be clear that nothing therein prohibited the appellant from prosecuting his appeal. He pointed out that the court below, in fact, held that there was nothing under the provisions of Section 308(1) of the 1999 Constitution which stops a State Governor from initiating actions while in office against other persons for reliefs in his personal capacity. Learned Counsel submitted that having rejected all the grounds upon which the respondent's application for an adjournment of the appellant's appeal sine die were predicated, the only course left for the Court of Appeal was to have refused the application and proceed with the hearing of the appeal. This it failed to do. On the contrary, it proceeded to adjourn the appeal sine die as prayed for by the respondent on grounds which it raised suo motu without giving the parties, particularly the appellant who was adversely affected thereby, the opportunity to be heard thereupon. He submitted, relying on the decision of this Court in Kuti v Mrs S. Balogun (supra) that this is a grave error of law on the part of the Court of Appeal. He urged the court to allow this appeal and direct the court below to proceed expeditiously with the determination of the appellant's appeal before it.

It is clear to me that a resolution of the sole issue for determination in this appeal revolves entirely on a close examination and interpretation of the provisions of Section 308 of the Constitution of the Federal Republic of Nigeria, 1999. That section of the Constitution provides thus:-

"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;

(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 a 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 a 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."

The real question posed for determination is whether any part of the provisions of Section 308 of the 1999 Constitution may be construed as prohibiting the appellant from continuing the prosecution of his interlocutory appeal in the civil proceedings instituted against him by the plaintiff/respondent before the trial court.

In this regard, it will be necessary to recall the general principle of law governing the interpretation of our Constitution. This is that such interpretation as would serve the interest of the Constitution and best carry out its object and purpose should be preferred. Its relevant provisions must be read together and not disjointly and where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution. (See Chief D.O. Ifezue v Livinus Mbadugha & another (1984) 5 SC 79 at 101).

No dispute has arisen between the parties with regard to subsections 2 and 3 of Section 308 of the Constitution under consideration. Both subsections are clear enough. Section 308(2) exempts the application of the provisions of Section 308(1) to civil proceedings against a person to whom Section 308 applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party. Section 308(3) confines the application of the provisions of Section 308 of the Constitution to persons holding the office of President, Vice President, Governor or Deputy Government and the "period of office" therein referred to is defined as referring to the period during which the person holding such office is required to perform the functions of the office. The application of the provisions of these two subsections of Section 308 of the Constitution are not in issue in this appeal.

Before I turn to Section 308(1)(a) of the Constitution, around which dispute has arisen between the parties in this appeal, it is pertinent to dispose of the submission of learned Counsel for the appellant that the decision of the Court of Appeal now challenged is a nullity by virtue of the fact that it was based on grounds not relied upon by the respondent but that they were raised suo motu by that court without affording the parties an opportunity to be heard thereupon. In this regard, it cannot be disputed that judgment in any court proceedings must be confined to the issues therein raised by the parties and it is not competent for the court suo motu to make a case for either of the parties and proceed to give judgment on the case so formulated contrary to the case of the parties before it. (See Commissioner for Works, Benue State & another v Devcon Development Consultants Ltd & another (1988) 3 NWLR (Part 83) 407; Adeniji & others v Adeniji & others (1972) 1 All NLR (Part 1) 278 and A.C.B. Ltd v Attorney-General Northern Nigeria (1969) NMLR 231). (See too Shitta-Bey v Federal Public Service Commission (1981) 1 SC 40 and Chief Ebba v Chief Ogodo & another (1984) 4 SC 84 at 112). A court of law, particularly an appellate court, may only hear and decide on issues raised on the grounds of appeal filed before it and an issue not covered by any ground of appeal is incompetent and will be struck out. (See Management Enterprises Ltd & Another v Jonathan Otusanya (1987) 2 NWLR (Part 55) 179; Oniah v Onyia (1989) 1 NWLR (Part 99) 514 at 529; Adelaja v Fanoiki & another (1990) 2 NWLR (Part 131) 137 at 148).

When a court raises a point suo motu, the parties must be given an opportunity to be heard on the point, particularly the party that may suffer prejudice as a result of the point raised suo motu. (See Odiase v Agbo (1972) 1 All NLR (Part 1) 170; Ajao v Ashiru (1973) 11 SC 23; Atanda v Lakanmi (1974) 3 SC 109; Adegoke v Adibi (1992) 5 NWLR (Part 242) 410). Accordingly on no account should a court raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve it one way or the other without giving the parties an opportunity to be heard. (See Okafor v Anaife (1972) 3 ECSLR 261; Ugo v Obiekwe (1989) 1 NWLR (Part 99) 566 at 578). If it does so, it will be in breach of the parties' right to fair hearing. (See Ojo v Babalola (1991) 4 NWLR (Part 185) 267 at 280).

The above are fundamental but well settled principles of law. With great respect to learned Counsel for the appellant, however, I find it difficult to appreciate how those principles of law are relevant to the issues in controversy between the parties in the present appeal. This is because the only issue before the Court of Appeal was whether, having regard to the entire provisions of Section 308(1)(a) of the 1999 Constitution, the proceedings in respect of the civil action instituted by the respondent against the appellant, the Governor of Lagos State, in the latter's personal and private capacity for some reliefs could properly be continued during the period of office of the appellant as the Governor of Lagos State. It is clear from the record of proceedings that this issue was fully argued before that court which in its ruling, concluded thus:-

"The suit at the lower court was filed by the plaintiff/respondent against the appellant and two others. Under Section 308(1)(a) of the 1999 Constitution, that suit ought not to be further continued. It seems to me however that continuation of a suit can be undertaken by all parties to the suit. When it is said that a suit may not be continued, all the parties to the suit must be held to the restraining order. Just as a plaintiff may not continue the suit, so must a defendant not do so once it is determined that a suit is of the character which must not be further continued under Section 308(1)(a) of the 1999 Constitution. To allow the appellant, who is now the executive Governor of Lagos State to further press on with his appeal is another way of continuing the suit before the lower court. This is more so when it is borne in mind that the appeal being pursued by the appellant is upon an interlocutory matter with the result that if the appeal succeeds, the appellant may still have to go back to the High Court. Setting aside the service of a writ does not mean that the writ has ceased to exist. Allowing this appeal to move forward therefore is an indirect way of continuing the suit at the High Court.

It seems to me that while I recognise that a Governor may sue for redress of personal wrongs to him, the right to sue for personal wrongs cannot be equated with a right to appeal in the course of a suit which being contrary to Section 308(1) (a) of the 1999 Constitution cannot be continued.

I accordingly determine that this appeal ought to be adjourned sine die to be relisted only when the appellant vacates the office of Governor of Lagos State. I make no order as to costs."

There can be no question, therefore, that the court below based its decision on any issue which it raised suo motu without giving the parties an opportunity to be heard.

The issue that arose for determination concerned the interpretation and/or construction of Section 308(1)(a) of the 1999 Constitution. It is a clear question of law in respect of which the court below was entitled to pronounce its own view upon so long as such a view is related to the legal issue placed before it for resolution. But as I have already indicated, the issue of whether or not the present suit ought to be continued while the appellant, the party sued, remained in office as the Governor of Lagos State, was fully argued by both parties to the action and no question of the court not inviting the parties for further addresses did arise in the case.

Turning now to Section 308(1)(a) of the 1999 Constitution, it is beyond dispute that the present suit instituted by the plaintiff/respondent was one to enforce the repayment of an overdraft facility granted to the first defendant. It is also clear that the action was instituted against the appellant in his personal capacity and did not arise by virtue of his position as the Governor of Lagos State. It is admitted by both sides that the appellant, as at the time the decision of the Court of Appeal in issue was handed down, was and still remains the Governor of Lagos State. Section 308(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 provides in the clearest possible language that notwithstanding anything to the contrary in that Constitution, no civil or criminal proceedings shall be instituted or, if already instituted, continued against any person to whom that section of the Constitution applies during his period of office. As already indicated, Section 308(3) provides that the said Section 308 of the 1999 Constitution applies to a person holding the office of President or Vice-President, Governor or Deputy Governor. Section 308(2) however lays down that the provisions of the said subsection (1) of Section 308 shall not apply to civil proceedings instituted against any of the relevant public officers in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party. Although the present action was instituted against the appellant as a private citizen, he had cause, as already mentioned, to file an appeal to the court below against an interlocutory decision of the trial court in the suit. It was during the pendency of this appeal that the appellant was sworn in as the Governor of Lagos State and it was thereafter that the question whether or not the suit could lawfully be continued against him as the Governor of Lagos State arose before the Court of Appeal. It is the ruling of the said Court of Appeal that is now the subject of this appeal.

The appellant remains the Governor of Lagos State till this day. The claim against him did not arise by virtue of any act executed by him in his official capacity as Governor of Lagos State nor was he, as the said Governor, sued in the action as a nominal party. It is thus clear that applying the mandatory provisions of Section 308(1)(a) of the 1999 Constitution, no civil proceedings may be instituted or, if already instituted, as in the present action, shall be continued against him while he holds the office of Governor of Lagos State. (See Colonel Olu Rotimi & others v Macgregor (1974) 11 SC 123 or (1974) 9 NSCC 542.

Learned Counsel for the appellant did argue that it was open to the appellant to waive the immunity granted to him as a State Governor under Section 308(1)(a) of the 1999 Constitution. He submitted that this is because no provision of that section of the Constitution prohibited a State Governor or the holder of any of the offices mentioned under Section 308(3) from instituting an action in his private capacity against any person during his tenure of office.

Whether or not the appellant, while he remains the Governor of Lagos State is entitled to institute an action against any person for an alleged private wrong done to him, has not arisen for decision in this appeal. Accordingly, I will decline from making any pronouncement on the issue. It suffices to say that this is a suit in which the appellant is sued as a defendant. The suit therefore falls directly within the ambit of the provisions of Section 308(1) (a) of the 1999 Constitution. Nor do I accept that the appellant may waive the immunity granted to him under Section 308(1)(a) of the 1999 Constitution. In my view, the immunity granted to the incumbent of the relevant office under Section 308(1)(a) of the Constitution prescribes an absolute prohibition on the courts from entertaining any proceedings, civil or criminal, in respect of any claim or relief against a person to whom that section of the Constitution applies during the period he holds such office. No question of waiver of the relevant immunity by the incumbent of the offices concerned or, indeed, by the courts may therefore arise. In my view, the Court of Appeal was absolutely right to have declined to entertain the appellant's appeal pending before it as to do otherwise would amount to continuing the plaintiff/respondent's suit against the defendant/appellant, a suit which under Section 308(1)(a) of the 1999 Constitution shall not be continued against the appellant while he remained the Governor of Lagos State.

The final point which needs be considered is the order which the Court of Appeal, having held that the suit against the appellant could not be continued, ought to have made. That court, having so held, proceeded to adjourn the appeal before it sine die with liberty to relist the same when the appellant vacated the office of Governor of Lagos State.

In the case of Colonel Olu Rotimi & others v Macgregor (supra), the plaintiff/respondent had instituted a civil action against the defendants/appellants claiming inter alia a declaration of title to land in Ikeja. During the pendency of this action, the first defendant assumed office as the Military Governor of the Western State of Nigeria. In the course of his final address before the trial Lagos High Court, learned Counsel for the defendants, for the first time and without pleading the same, raised the question of the constitutional position of the first defendant who during the pendency of the suit had been appointed the Military Governor of Western State, a position he held up to the time the appeal against the judgment of the trial court was determined by this Court. This constitutional issue is exactly the same question that has arisen for decision in the present appeal. Learned Counsel submitted in that case that by virtue of Section 161(1)(c) of the Constitution of the Federation of Nigeria, 1963, the suit against the first defendant could not be continued by any court. He also argued that no court could give any judgment against the first defendant during his tenure of office as the Military Governor of the Western State and that the immunity from prosecution conferred on the first defendant/appellant could not be waived.

The above submissions were carefully considered by the learned trial Judge who came to the conclusion that the provisions of Section 161(1)(c) of the 1963 Constitution being the supreme law of the land could neither be waived by the first defendant nor by the court. Accordingly, he declined to make any orders against the first defendant. On appeal, it was held by this Court that as the appellant assumed the post of the Military Governor of Western State during the pendency of the suit at the trial court, the provisions of Section 161(1)(c) of the 1963 Constitution applied and that the action against him should have been struck out. This Court further held that by virtue of the provisions of Section 161(1)(c) of the 1963 Constitution, the suit against the first defendant/appellant should not have been continued from the moment he assumed the post of the Military Governor of Western State, that the immunity prescribed by Section 161(1)(c) could not be waived and that the court was bound to give effect to it.

It is pertinent to point out that the said provisions of Section 308(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 in issue in the present case are clearly in pari materia with those of Section 161(1)(c) of the 1963 Constitution. Accordingly, I entertain no doubt:-

(i) That the appellant, being a party against whom the present action was instituted, the constitutional mandatory provisions of Section 308(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 applied to and are unquestionably binding on him from the moment he was sworn in as Governor of Lagos State, during the pendency of the suit at the trial court.

(ii) That by virtue of the express provisions of Section 308(1)(a) of the 1999 Constitution, the suit was rendered incapable of being continued against the appellant during his period of office as the Governor of Lagos State.

(iii) That this constitutional immunity conferred on the appellant under Section 308(1)(a) of the 1999 Constitution during his period of office as the Governor of Lagos State, being an absolute prohibition, admits of no waiver by the appellant or by any incumbent of the relevant offices stipulated under Section 308(3) of the 1989 Constitution.

(iv) That the Court of Appeal, indeed all courts, are bound in appropriate cases to give effect to the said immunity prescribed under Section 308(1)(a) of the 1999 Constitution during the period of office of the holder of any of the posts prescribed under Section 308(3) of the 1999 Constitution and it would not matter whether or not such immunity is pleaded or relied on by the parties to any proceedings.

(v) That the Court of Appeal was right by declining to entertain the interlocutory appeal filed by the appellant before it against the ruling of the trial court in respect of the civil suit instituted against the said appellant as to do otherwise would amount to continuing the suit before the trial court during the period in office of the appellant as the Governor of Lagos State.

The court below having upheld the respondent's contention that the hearing of proceedings in respect of the suit instituted against the appellant could not be continued adjourned the appeal before it sine die "to be relisted only when the appellant vacates the office of Governor of Lagos State." The final question is whether this consequential order of the Court of Appeal is right.

As I have already observed, an issue entirely similar to the one in question in the present appeal arose for the consideration of this Court in the case of Colonel Olu Rotimi & others v Macgregor (supra). In that case, this Court was of the view that as the first defendant/appellant became the Military Governor of the Western State during the pendency of the appeal, the provisions of Section 161(1)(c) of the Constitution of the Federation of Nigeria, 1963 applied and that the case of the plaintiff as against the appellant should have been struck out by the trial court. In that case, this Court per Coker, JSC stated:-

"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 first defendant and that the action should not have been continued against him since he became the Governor of Western State during the pendency of the present proceedings. No question of waiver, arises, for the section prescribes an absolute prohibition to 'any court' during the period of office of the holder of any of the posts described in Section 161(2) of the Constitution to entertain any claim for relief against such person.

In the circumstance, the learned trial Judge should have struck out the case of the plaintiff as against the first defendant which, in effect, is what he did, although he made no formal order in that respect."

In the light of the above statement of the law, it seems to me that the court below was entirely right when it held that to allow the appellant who at all material times was the Governor of Lagos State to press on with his interlocutory appeal in the suit instituted against him by the respondent would amount to nothing short of continuing the said suit. This course of action is what Section 308(1)(a) of the 1999 Constitution expressly prohibits. I think that pursuant to the reasoning of this Court in the Colonel Olu Rotimi case, the court below ought to have struck out the appeal pending before it as the same under the mandatory provisions of Section 308(1)(a) of the relevant Constitution was not liable to be continued during the period in office of the appellant as the Governor of Lagos State.

In the final result and for all the reasons that I have given above, the issue for determination in this appeal must be resolved against the appellant. This appeal accordingly fails and it is hereby dismissed but the consequential order of the Court of Appeal adjourning the appeal pending before it sine die is hereby set aside. In substitution thereof is an order striking out the interlocutory appeal before the Court of Appeal with liberty to relist the same after the appellant has vacated his office as the Governor of Lagos State. There will be no order as to costs.

Uwais, CJN:- I have had the opportunity of reading in draft the judgment read by my learned brother Iguh, JSC. I entirely agree with the judgment.

The provisions of Section 308 subsections (1)(a) and (3) of the Constitution of the Federal Republic of Nigeria are very clear and are not therefore ambiguous.

The proceedings against the appellant cannot continue for as long as he remains in office as Governor of Lagos State. (See Rotimi & others v Magregor (1974) 11 SC 123).

It is for this and the fuller reasons contained in the judgment of my learned brother Iguh, JSC that I too will dismiss this appeal. I adopt the consequential order made by him.

Karibi-Whyte, JSC:- I have had the privilege of reading the judgment of my learned brother Iguh, JSC in this appeal. I agree entirely with his reasoning and conclusion striking out the appeal. I have chosen to make my own contribution to the lead judgment because of the constitutional importance of the issue involved, and the fact that in some respect the issue is primae impressionis.

The facts of the case are quite simple and short. The issue can be better appreciated and understood if the whole scenario is taken sequentially together.

The action was initiated by the plaintiff against the three defendants including appellant. There was the subsequent application by the defendants seeking to set aside the service of the Writ of Summons and Statement of Claim, and to strike out the Writ of Summons and Statement of Claim. They also asked for an order dismissing the action/striking out same. On the application of the plaintiff in the High Court, the life of the Writ of Summons was renewed for another six months. The third defendant filed a Notice of Appeal against the decision of the High Court renewing the life of the Writ of Summons etc.

On 25 October, 1999, Suit No LD/3729/92 of the Lagos State High Court from which this appeal arose was adjourned sine die on the application of the plaintiffs who are respondents to this appeal. The ground relied upon was Section 308(1)(a) of the Constitution 1999 and that appellant who is third defendant in Suit No LD/3729/92 had been sworn in as Executive Governor of Lagos State.

When the appeal by the third defendant against the ruling of the High Court came before the Court of Appeal, Lagos Division, learned Counsel to the respondent applied to the court seeking the adjournment of the appeal sine die until the appellant, Mr Bola Tinubu, vacated office as the Governor of Lagos State. The appellant opposed the application. After argument of Counsel, the Court of Appeal granted the application. Appellant has brought this appeal against the ruling of the Court of Appeal. The question now turns on the proper construction of the provisions of Section 308(1)(a) of the Constitution 1999 relied upon for the application.

Summarily stated, the trend of the events leading to the application are as follows:-

1.      Defendants applied to set aside the Writ of Summons and Statement of Claim against them.

2.      Plaintiff applied to renew the Writ of Summons for another six months, and was granted.

3.      Third defendant appealed against the renewal of the Writ of Summons.

4.      Third defendant was sworn in as Governor of Lagos State

5.      Plaintiff/respondent applied for the appeal to be adjourned sine die.

In construing the correct interpretation of the provisions of Section 308(1)(c) of the Constitution 1999 as applied to the facts of this case, the court after reproducing the provision, held that the action against the "appellant is in his personal capacity and not one arising by virtue of his office as Governor. He is still the Executive Governor of Lagos State and under Section 308(1)(a) above no civil proceeding can be initiated or continued against him while he holds the office of Governor. Even if the suit had been initiated before he became Governor, the suit cannot be continued. (See Colonel Olu Rotimi & others v Macgregor (1974) 11 SC 123)."

In deciding what action to take in this appeal, the court below stated correctly that under Section 308(1)(a) of the 1999 Constitution, the suit ought not to be further continued. The court went further to give the following reasons:-

"When it is said that a suit may not be continued, all the parties to the suit must be held to the restraining order. Just as a plaintiff may not continue a suit, so must a defendant do so once it is determined that a suit is of the character which must not be further continued under Section 308(1)(a) of the 1999 Constitution. To allow the appellant, who is now the Executive Governor of Lagos State to further press on with his appeal is another way of continuing the suit before the lower court. This is more so when it is borne in mind that the appeal being pursued by the appellant is upon an interlocutory matter with the result that if the appeal succeeds, the appellant may still have to go back to the High Court. Setting aside the service of a writ does not mean that the writ has ceased to exist. Allowing this appeal to move forward is an indirect way of continuing the suit at the High Court."

On the above reasons, the court went on to hold as follows:-

"I accordingly determine that this appeal ought to be adjourned sine die to be relisted only when the appellant vacates the office of Governor of Lagos State."

Appellant has appealed against this decision in those aspects where it was held that,

(a)     The appeal is to be adjourned sine die pending appellant vacating the office of Governor.

(b)     Allowing the appeal to continue in the Court of Appeal is an indirect way of continuing the suit before the lower court.

(c)     The determination that the right to sue cannot be equated with a right to appeal.

Appellant has filed five grounds of appeal on which he relies. Two issues for determination have been formulated as arising from the grounds of appeal. Respondent has not filed his brief of argument and is not represented in this Court. I herein below set out verbatim, the grounds of appeal, and the issues for determination formulated by appellant.

"Grounds of Appeal

1.      The decision of the Court of Appeal is a nullity.

Particulars

a)      The decision of the court was reached on grounds not canvassed by either of the parties to wit:- that the continuation of the appeal is an indirect way of continuing the suit in the trial court and that the right to sue is not the same as the right to appeal.

b)      The parties were not heard on these grounds raised by the court suo motu before the court made its decision.

c)      The grounds upon which the objection of the respondent was predicated and contested had been resolved against the respondent.

2.      The learned Justices of the Court of Appeal erred in law when they adjourned the pending appeal of the appellant sine die.

Particulars

a)      The provisions of Section 308(1)(a) of the 1999 Constitution do not stop the appellant from prosecuting his appeal.

b)      The prosecution of the appeal before the Court of Appeal albeit a rehearing are distinct proceedings from the proceedings in the trial court.

c)      The view of the Court of Appeal as to what might happen in the trial court after hearing the appeal were based on speculation.

3.      The learned Justices of the Court of Appeal misdirected themselves in law when they held inter alia, per Oguntade, JCA that:-

"Having made the above point; I must however, still adjourn this appeal sine die for another reason."

Particulars

a)      The particulars under Ground 1 are repeated.

b)      The particulars under Ground 2 are repeated.

c)      The Court of Appeal had correctly held that there is nothing in Section 308(1)(a) of the 1999 Constitution stopping a Governor from suing.

d)      There was no lawful reason under Section 308 or any other law to justify the adjournment sine die,

e)      The adjournment sine die proceeded on a wrong principle of law in that it infringes the right of the appellant to a hearing within a reasonable time as provided under Section 36(1) of the 1999 Constitution.

4.      The learned justices of the Court of Appeal erred in law when they held that right to sue cannot be equated with the right to appeal.

Particulars

a)      An appeal is a complaint initiated by a Notice of Appeal which is a different and distinct process from the Writ of Summons against the decision of the lower Court.

b)      Section 308(1)(a) of the 1999 Constitution protects the holder of the office who enjoys the privilege from being a respondent or from answering any complaint in judicial proceedings, it does not stop them from making complaints in judicial proceedings.

c)      An appellant in the Court of Appeal is a complainant who is similar to the plaintiff in a trial court.

d)      The distinction between a 'suit' and an 'appeal' is not necessary to give effect to the substance of Section 308(1)(a) of the 1999 Constitution.

5.      The learned justices of the Court of Appeal erred in law when they held that:-

"It seems to me however that the continuation of a suit can be undertaken by all parties to the suit. When it is said that a suit may not be continued, all the parties to the suit must be held to the restraining order. Just as a plaintiff may not continue a suit, so must a defendant not do so, once it is determined that a suit is of the character which must not be further continued under Section 308(1)(a) of the 1999 Constitution."

Particulars

a)      The order to stay proceedings which can be made where a privileged person is defendant/respondent under

Section 308(1)(a) of the 1999 Constitution is different from an order for stay given in the exercise of the discretionary powers of the court.

b)      The proviso to Section 309(1) of the 1999 Constitution protects the right of action of the person against whom the privilege is invoked from the defence of limitation, but makes no such protection for the holder of the privilege who fails to sue for personal wrongs done to him whilst in office.

c)      The privilege does not create a disability."

Issues for Determination

"Having regard to the notice and grounds of appeal, the appellant respectfully submits that the following are the issues arising for determination in this appeal:-

a)      Is the decision of the Court of Appeal not a nullity, having been based on grounds not relied on by the respondent without hearing the parties on those grounds?

b)      Were the learned Justices of the Court of Appeal correct in their decision to adjourn the appeal of the appellant indefinitely?"

Issue 1 is on the contention that the decision of the Court of Appeal was a nullity. Appellant's Counsel arguing the issue submitted that the reasons for seeking adjournment in the court below were that:-

(i) Appellant, as Governor, could not continue the appeal because the subject matter related to his private affairs as distinguished from his functions as Governor of a State.

(ii) Allowing the appeal to continue was likely to result in a situation the court would make an order or issue process against the Governor in violation of his immunity under Section 308 of the Constitution.

(iii) There is no express constitutional provision permitting the appellant as Governor to sue in his private or personal capacity.

(iv) Appellant enjoys immunity from suit in his personal capacity. It will be inequitable to allow him to maintain an action in his personal capacity.

Appellant has submitted that in view of the liberal construction which should be given to the provisions of Section 308 of the Constitution 1999, none of the reasons relied upon by respondent was valid. It was contended that Section 308(1)(c) does not create an absolute bar against the issuance of court process against the Governor. Only processes that require or compel his appearance are barred. Accordingly, in the instant appeal, hearing notices seeking to notify the addressee of hearing dates and which do not compel appearance are not prohibited. Again, orders either dismissing or allowing the appeal, or order as to costs which do not require appearance of the Governor or purport to arrest or imprison him are not prohibited. It was submitted relying on Onabanjo v Concord Press (1981) 2 NCLR 399 that there was nothing inequitable in allowing the Governor to maintain a private action merely because he enjoys immunity from such actions. It was argued it is necessary for a Governor to have such right of private action, because a valid order of court, commanding his arrest in violation of Section 308 would require an application to set it aside; and cannot be ignored. Finally, to refuse appellant to continue his appeal is tantamount to rewriting the provisions of Section 308(1)(a) by importing into the section words which are not contained therein.

Learned Counsel to the appellant submitted that the court below in its judgment rejected all the grounds relied upon by the applicant seeking adjournment sine die. The only course left for the Court of Appeal was to have refused the application, and for the court to make the necessary orders for the hearing of the appeal.

Learned Counsel has submitted that reasons given by the Court of Appeal that all parties must be held to the restraining order not to continue a suit, and that continuation of the appeal is an indirect way of continuing the suit before the lower court where appellant is a defendant, and the right to sue for personal wrongs cannot be equated with a right of appeal; are not reasons related to or connected with the grounds upon which the application was contested.

It seems to me clear from the record of proceedings and from the resume of the facts that learned Counsel to the appellant has misapprehended the facts of the case before the court, and the basis on which the ruling of the court below was made.

It is pertinent to refer to the formulation of the issues for determination in the brief of argument of appellant, who was respondent in the Court of Appeal.

Respondent formulated the only issue in the Court of Appeal 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 only issue formulated in appellant's brief of argument was credited to the Court of Appeal and reads:-

"Having regard to the matters set out in paragraphs 3.1.2-3.1.6 above, the Court of Appeal formulated the following issue for determination namely:-

'Whether or not the appellant can continue the appeal in the light of Section 308(1) of the 1999 Constitution?'"

Arising from the contentions of Counsel for the respondent relying on Section 308 of the 1999 Constitution praying the Court to adjourn the appeal sine die, and Counsel for the appellant urging the court to hear the appeal since an order for parties to file written briefs in support of their differing provisions, the Court of Appeal thereupon formulated the issue arising 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?"

This is identical with the formulation of the issue by the respondent. This was the issue relied upon by the Court of Appeal in the determination of the application before it. The application was contested on the issue whether the appeal should be adjourned sine die or hearing be continued.

It is difficult therefore to appreciate the contention of learned Counsel to the appellant that the reasons given in the decision of the Court of Appeal were not related to or connected with the grounds upon which the application was contested.

It is not correct to contend as was done by learned Counsel to the appellant that the grounds which formed the basis of the decision were raised suo motu by the Court of Appeal. The issue was formulated by the parties, and the decision was based on the issue as formulated. It is difficult to understand the argument of learned Counsel to the appellant that the Court of Appeal failed to hear the parties particularly appellant who was affected on the issue. The record of proceedings and the ruling of the Court of Appeal are clearly to the contrary. In the circumstances therefore the ruling of the Court of Appeal was not a nullity. The issue is accordingly resolved against the appellant.

Issue No 2 involves the proper construction of the provisions of Section 308(1) and consideration of Grounds 2, 3, 4 and 5.

Section 308(1)(2)(3) of the Constitution 1999 provides:-

"(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 a person to whom this section applied, 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 a 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."

I agree entirely with the Court of Appeal that the above constitutional provision is simple and straightforward. The words used are not ambiguous, and should be given their ordinary plain meaning. It is however important to advert to the meaning and effect of the expression in Section 308(1)(a):-

"No civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office."

Section 308 is only subject to the provisions of its sub-section (2) which excludes actions in civil proceedings in an official capacity, or civil or criminal proceedings in which such person is only a nominal party. The immunity enures during the period of office of the incumbent.

The literal construction of Section 308(1)(a) is that no actions, civil or criminal can be brought, or continued against any of the persons stated in Section 308(3). Such a person cannot be arrested or imprisoned during tenure either in pursuance of the process of any court or otherwise. (See Section 308(1)(b)). No process of any court requiring or compelling the appearance of a person to whom the section applies, shall be applied for or issued.

It would seem unarguable that apart from the matters excluded in Section 308(2) there is an absolute bar to actions in civil or criminal proceedings against the persons named in Section 308(3).

Concisely stated, civil or criminal proceedings in a private capacity against the persons named in Section 308(3) cannot be initiated during their tenure and if pending before they assumed office, shall not be continued.

The facts of this case are quite simple and short. The action which has given rise to this application was by the respondents as plaintiff against the appellant as one of the three defendants. Appellant appealed against the decision of the High Court which made an order extending the life of the Writ of Summons and relisting the case. Before the appeal was heard, appellant was elected Governor of Lagos State, was sworn, and became entitled to the protection of Section 308(1)(a) of the Constitution.

The question now is what order should the court make? The words of Section 308(1)(a) are clear and unambiguous. The action before the court was instituted against the appellant. The mandatory provision of Section 308(1)(a) is that "no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office".

It cannot be disputed that hearing an appeal arising out of an action is the continuation of the case. This is so whether the appeal is by the person against whom the action was originally instituted or by the originator of the action. Accordingly, the civil action against the appellant cannot in view of the mandatory provisions of Section 308(1)(a) be continued against him as from 29 May, 1999 when he was sworn in as the Executive Governor of Lagos State.

Learned Counsel has submitted that since the Court of Appeal has held that there was nothing in the Constitution which prevented the Governor from suing while in office to enforce personal rights, the decision to adjourn the appeal indefinitely for the reasons adduced contrary to the clear words of Section 308 amounts to a presumption that the 1999 Constitution withholds the right of suit or appeal by the appellant in respect of personal wrongs, when it is in fact silent on the point. It was submitted that such a construction in the absence of clear words prohibiting his right to prosecute an appeal, is a construction that infringes on his right to a hearing within a reasonable time under Section 36(1) of the 1999 Constitution.

With due respect to learned Counsel to the appellant this contention is based on a misconception of the correct legal position. The right of the appellant to prosecute the appeal against the action by the plaintiff is dependent on the continuation of the action by the plaintiff/respondent. Since respondent is precluded by a mandatory provision of the Constitution to continue with the action against the appellant, there is no legal basis for appellant to exercise a right of appeal in respect of an action which is in abeyance.

The interpretation of the provisions of the Constitution should be guided by the facts of the case. Appellant in the instant case was the defendant. The provisions of Section 308 speaks of a civil action or criminal proceedings instituted or continued against a person to whom the section applies during his period of office. The provision goes on to preclude arrest or imprisonment, and issuance of process requiring or compelling appearance of such person. There is no suggestion that such persons can institute actions against other persons, who cannot apply for processes against them. The provision of Section 308 is a policy legislation designed to confer immunity from civil suit or criminal process on the public officers named in Section 308(3) and to insulate them from harassment in their personal matters incurred before their election. It follows from such immunity that such persons will not be involved in ordinary transactions that will necessitate resorting to the institution of civil suits or criminal actions.

The text of Section 308 is explicit and conclusive. The liberal approach to the interpretation of our Constitution counselled in Nafiu Rabiu v The State (1988) 12 NSCC 281, does not encourage reading the provisions to neutralise the public policy principle protected by the provision.

It has never been allowable and the sacred obligation of the courts is not to construe any of the provisions of the Constitution to defeat the obvious ends the Constitution was designed to serve. To construe the provisions of Section 308 in the manner suggested and thereby enable the persons named in Section 308(3) to exercise the right to sue in addition to the absolute immunity conferred on them whilst in office by Section 308(1)(a) will defeat the immunity designed by the Constitution, and lead to manifest injustice.

On the second issue, learned Counsel to the appellant is challenging the correctness of the order of the Court of Appeal adjourning the appeal before it sine die. It was submitted that the reasons given by the Court of Appeal for the adjournment are not supported by law. The only issue for determination before the court as disclosed on the brief of argument of the parties was the construction of the entire provisions of Section 308 of the Constitution 1999 to see whether any part of the Constitution prohibited the appellant from presenting or continuing the prosecution of an appeal.

It is necessary to correct a misapprehension by learned Counsel for the appellant of the nature of the case before us. The appeal before us is against the ruling of the Court of Appeal on the application of the respondents to adjourn the appeal sine die. It is not a decision on the appeal to the Court of Appeal for the construction of Section 308 of the 1999 Constitution. That appeal to the Court of Appeal against the ruling of Humponu-Wusu J of 17 June, 1994 for striking out third defendant's application dated 27 January, 1994 to strike out the plaintiff's Writ of Summons and Statement of Claim is still pending.

It was when the appeal of the third defendant came up for hearing that learned Counsel for plaintiff/respondent raised the issue relying on Section 308 of the Constitution 1999 seeking to adjourn the appeal sine die. Counsel were ordered to file and filed written briefs of argument on the issue:-

"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?"

It is therefore obvious from the issue formulated that the parties were contending whether or not the proceedings in the suit should be adjourned sine die. The application was brought by respondent/applicant because third defendant who was sworn in as the Executive Governor of Lagos State was the appellant, and was affected by the provisions of Section 308(1)(a) of the 1999 Constitution which prohibited the institution or continuation of civil or criminal proceedings against him during his period of office.

Section 308(1)(a) provides as follows:-

"(a) No civil or criminal proceedings shall be instituted or continued against a person to whom this section applied during his period of office."

The words of this provision are clear and unambiguous. It means that no civil actions can be instituted against a Governor during his period of office, and if there is any pending action, it cannot be continued against him during his period in office.

The same issue arose on similar facts in Colonel Olu Rotimi & others v Mrs F. O. Macgregor (1974) All NLR 828, where action was against Colonel Rotimi and others by Mrs F. O. Macgregor, Section 161(1) of the 1963 Constitution relied upon for the decision is in pari materia with Section 308(1) of the 1999 Constitution. Affirming the judgment of the High Court, in effect striking out the action against the first defendant, this Court held, at page 833:-

"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 first 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. No question of waiver arises, for the section prescribes an absolute prohibition to 'any court' during the period of office of any of the posts described in Section 161(2) of the Constitution to entertain any claim for relief against such person.

In this circumstance, the learned trial Judge should have struck out the case of the plaintiff as against the first defendant which, in effect, is what he did, although he made no formal order in that respect."

It is necessary to point out that the court below considered the argument of respondent's Counsel why the appeal should be adjourned sine die. It was submitted that not adjourning the appeal sine die may create a situation where the court may issue processes against the appellant in violation of Section 308(1)(c) of the 1999 Constitution. The Court of Appeal rejected the submission as mere speculation. It was pointed out that if the appeal were allowed to continue, all the court will decide is whether or not the court below was right to have refused to set aside the Writ of Summons and Statement of Claim issued by the plaintiff/respondent. The need to issue processes under Section 308(1)(c) of the 1999 Constitution will not arise.

The Court of Appeal stated its reasons for adjourning the appeal sine die as follows:-

"The suit at the lower court was filed by the plaintiff/respondent against the appellant and two others. Under Section 308(1)(a) of the 1999 Constitution that suit ought not to be further continued. It seems to me however, that continuation of a suit can be undertaken by all parties to the suit. When it is said that a suit may not be continued, all the parties to the suit must be held to the restraining order. Just as a plaintiff may not continue a suit, so must a defendant not do so once it is determined that a suit is of the character which must not be further continued under Section 308(1)(a) of the 1999 Constitution. To allow the appellant, who is now the Executive Governor of Lagos State to further press on with his appeal is another way of continuing the suit before the lower court. This is more so when it is borne in mind that the appeal being pursued by the appellant is upon an interlocutory matter with the result that if the appeal succeeds, the appellant may still have to go back to the High Court. Setting aside the service of a writ does not mean that the writ has ceased to exist. Allowing this appeal to move forward therefore is an indirect way of continuing the suit at the High Court."

The requirements of the prohibition of Section 308(1(a) of the institution or continuance of civil actions or criminal proceedings against a Governor is that such civil actions or criminal proceedings cannot be initiated and if pending cannot be continued. In the instant case, the Court of Appeal relying on the provisions of Section 308(1)(a) adjourned the appeal sine die. Learned Counsel criticising the adjournment has submitted that the adjournment required by Section 308 is statutory and one not subject to the exercise of discretion by the court. It was contended that once it was found that the statute did not prohibit a right of action or appeal for personal wrongs, it does not justify an adjournment and the court had no discretion to exercise in the matter as they have done. It was also submitted that having found that the application to adjourn the appeal was lacking in merit, the proper order to make was one of dismissal of the application.

It is clear from the facts of this case that the appeal before the court, subject matter of the application for adjournment is still pending before the court. Similarly pending in the High Court is the civil action against the three defendants including the appellant Governor. This last mentioned action is the action which has given rise to the appeal. Both actions are pending before the court, and are by the mandatory provision of Section 308(1)(a) of the 1999 Constitution not to be continued against the appellant/third defendant.

I do not agree with the submission of learned Counsel to the appellant/third defendant that the requirement of Section 308(1)(a) not to continue a pending civil action against the appellant being a mandatory provision leaves no room for the exercise of discretion. Not to continue with the action may involve either striking out the action or granting an adjournment. The latter option leaves the Judge with the discretion to adjourn the matter sine die or indefinitely as was urged by learned Counsel to the respondent/plaintiff, or to a stated date. In each of these latter options, the action against the Governor is still on the court list even though no proceedings are continuing.

The Latin expression sine die means without a date being fixed, indefinitely. A matter is said to be adjourned sine die when it is adjourned without a day being fixed for its resumption. In Goddard v Smith 6 Mod 261, Holt CJ explained the effect of a nolle prosequi by analogy with sine die. He said:-

"The entering of a nolle prosequi was only putting the defendant sine die, and so far from discharging him from the offence, that it did not discharge any further prosecution upon that very indictment, but that notwithstanding new process might be made out upon it."

The effect of an adjournment sine die in the analogy is not to continue but to keep the pending civil action in abeyance indefinitely. In the instant case, the provisions of Section 308(1)(a) which confers the immunity from civil suits and criminal proceedings applies during the period of office of the Governor.

In my considered opinion, a fair, correct and acceptable construction of the expression "no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office" in Section 308(1)(a) of the Constitution 1999 must take into account in the application of the prohibition the qualification of and limitation by the words of the prohibition.

It seems to me obvious that the qualification and limitation by the expression, prohibiting the institution of or continuing an action during the tenure of the persons mentioned in Section 308(3) is also clear and not ambiguous. The plain words therefore mean that no action civil or criminal action can be filed, and no pending proceedings continued daring the period in office of the persons mentioned in Section 308(3). This construction is justified by the qualification of the prohibition by Section 308(1)(a) and limitations for its application to persons stated in Section 308(3).

It is important also to consider the etymological meaning of the word "continued" in Section 308(1)(a). This is neither a technical term nor a word of art, and to my understanding has not acquired a technical meaning. The ordinary plain dictionary meaning of the word "continue" is "maintain", "keep up", "not cease", "resume", "prolong", "remain". The expression "continued" is the antonym of the word "discontinue". The meaning of the word "discontinue" is "cease", "cease from", "give up". What gives the expression force is the peremptory word "shall" with the negative "not", both of which prohibit continuance.

The word "discontinuance" has acquired a technical meaning with a procedural requirement involving legal consequences to the person who has initiated the action. (See the decision of this Court in Aghadiuno v Onubogu (1988) 5 NWLR (Part 548) 16). It seems to me that the prohibition that the pending action "shall not be continued" is a direction to the court and necessarily to the plaintiff.

Stricto sensu, Section 308(1)(a) therefore enables the cessation pro tempore of proceedings instituted against persons mentioned in Section 308(3) of the Constitution 1999 during their tenure in office. It is not a requirement permanently depriving the aggrieved the right to institute actions or continuing with pending proceedings. It is therefore in my considered opinion permissible for a court seised with a matter requiring the application of Section 308(1)(a) in the exercise of its judicial discretion in compliance with the constitutional requirement to adjourn the pending proceedings appropriately. Accordingly, such proceedings may be adjourned to a convenient future specified date outside the prohibited period, or sine die as it deems fit with liberty to the plaintiff to apply to restore the proceedings to the cause list.

The lead judgment has made an order striking out the appeal. I agree with this order. It is appreciated that striking out the appeal is not a dismissal of the appeal. This is because, in this case, Section 308(1)(c) provides that the period of office shall not be taken into account in calculating the period of limitation.

The right of an applicant to restore the suit to the cause list will not be adversely affected by the order.

On the other hand, an adjournment sine die as granted by the court below, or a long adjournment to a date outside the period of prohibition leaves the pending proceedings on the cause list subject to application for restoration on the cause list.

In Colonel Oluwole Rotimi & others v Mrs Macgregor (1974) 11 SC 133, this Court on similar situation as in the instant case observed that the trial court should have struck out the action against Colonel Oluwole Rotimi, who was at the material time Military Governor of Western State of Nigeria.

The appeal before us is against the ruling of the Court of Appeal granting the application before that court that the appeal before it be adjourned sine die pending when the third respondent ceases to be Executive Governor of Lagos State.

The appeal is accordingly dismissed. The order of the court below adjourning the appeal sine die is amended.

The appeal is accordingly hereby struck out.

There is no order as to costs.

Belgore, JSC:- The purport of Section 308 of the Constitution leaves no room for ambiguity. I do not have to quote the section as it is already set out in the judgment of my learned brother, Iguh JSC but it is clear no civil or criminal proceedings shall be instituted (or even commenced) against President or Vice-President, the Governor or Deputy Governor during the period in office of any of them. (Subsection (3)) of the Section 308 refers). The only permissible proceedings is when such a person holding any of the aforementioned offices is sued in his official capacity i.e. President or Vice-President, or as Governor or Deputy Governor and only when he is a nominal party. Thus, when a proceeding is pending against any of the persons Section 308 refers immediately before he assumes office the proceedings should be discontinued. The idea of the matter being adjourned sine die is not applicable, rather the proceedings should be discontinued. I therefore find no merit in this appeal and I dismiss it. As for the order of adjournment sine die made by Court of Appeal, it is not a competent order and I set it aside.

The reason for the protection of the person given the immunity in Section 308 of the Constitution is to afford him quiet tenure free from harassment on personal matters rather than matters of office. It is to afford the person complete devotion to the high office which pertains to the welfare and stability of governance.

I therefore strike out the entire appeal in this Court with liberty to litigate after the appellant might have left the high office of Governor of Lagos State. I make no order as to costs.

Kutigi, JSC:- The issue here is simply whether having regard to the provisions of Section 308 of the 1999 Constitution, the Court of Appeal was right in declining to determine the appeal of the appellant pending before it until after the appellant must have vacated his office as Governor of Lagos State.

Section 308 of the Constitution reads:-

"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 the 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 purpose of any proceedings against a 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 a 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."

It is noteworthy to point out that the above provisions are in pari materia with those of Section 161 of the 1963 Constitution and Section 267 of the 1979 Constitution.

In the case of Rotimi & others v Macgregor (1974) 11 SC 133, this Court said:-

"The provisions of Section 161 of the Constitution are peremptory and admit of no waiver and the introductory words of the section clearly assert the supremacy of the Constitutional provisions over any other laws including the laws of pleading."

The court also said:-

"In the circumstances, the learned trial Judge should have struck out the case of the plaintiff against the first defendant (Governor), which in effect is what he did, although he made no formal order in that respect but declined to make any orders against him (Governor) only."

The court thereafter proceeded to make a final order amongst others striking out the plaintiff's case against the first defendant (Governor).

Following Rotimi & 2 others v Macgregor (supra) I have no hesitation in coming to the conclusion that the Court of Appeal rightly declined to entertain the appellant's appeal pending before it thus giving effect to the mandatory provisions of Section 308 of the Constitution above. But the Court of Appeal was wrong when it proceeded to adjourn the appeal sine die instead of striking it out. The appeal certainly cannot be continued during his (appellant) period in office. A proper order striking out the appeal will therefore have to be substituted for that of an adjournment "sine die." And I so do.

For the above and more detailed reasons contained in the lead judgment of my learned brother Iguh, JSC, which I read before now, I must dismiss this appeal. It is accordingly dismissed. I endorse the consequential orders made therein.

Kalgo, JSC:- I have had the privilege of reading in advance the judgment delivered by my learned brother Iguh, JSC in this appeal. I entirely agree with him that there is no merit in the appeal and it ought to be dismissed.

The defendant/appellant appealed to the Court of Appeal, Lagos, in which that court declined to hear his appeal there but adjourned it sine die until after the appellant vacates office of the Governor of Lagos State. The adjournment was granted pursuant to the provisions of Section 308 of the 1999 Constitution.

Section 308 of the Constitution reads:-

"(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 a 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 a 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." (My emphasis.)

There is evidence on the record that the defendant/appellant was sworn in as the Executive Governor of Lagos State on 29 May, 1999 and remains so to this day. There is no doubt therefore that Section 308 of the 1999 Constitution applies to him. Also in the action, which was commenced in the High Court before 1999, the defendant/appellant was one of the three defendants in the case, and was sued in his personal capacity. And looking at the Writ of Summons on page 1A and the affidavit on page 5 of the record, the defendant/appellant was sued as one of the guarantors to the loan of N2.5 million granted to the first defendant, Mawi International Limited. It is therefore very clear that he is a necessary party and not a nominal or desirable party in this case as the case cannot effectually be disposed of without him. So for all intents and purposes, the provisions of subsection 1 of the said Section 308 applied to him.

I now come to subsection (1) of Section 308. Under paragraph (a) of that subsection (1):- "no civil or criminal proceedings shall be instituted or continued against the defendant/appellant whilst in office." In the first place the instant proceedings are civil proceedings and they were instituted before the defendant/appellant became the Executive Governor of Lagos State. By virtue of the same paragraph of subsection (1), the proceedings should not be continued against him whilst he is in office as Governor. It is admitted that the appeal now pending in the Court of Appeal and which was adjourned sine die was instituted by the defendant/appellant and so it was not against him. But even if one argues that the continuation of the case by way of appeal was by defendant/appellant himself and not against him as required under paragraph (a) of subsection (1), one would be bound by the provisions of paragraph (c) of subsection (1) which prohibited the issue of any court process to the defendant/appellant. And once the appeal is allowed to proceed, court processes like hearing notices etc must have to be issued to him and this is what paragraph (c) of subsection 1, prohibits. Another way of looking at it is that the appeal arose out of same case which was filed in the High Court and which paragraph (a) of subsection (1) said should not be continued. It is my respectful view therefore that whichever way you look at it, the combined effect of paragraphs (a) and (c) of subsection (1) of Section 308 constitutes a total prohibition and any step taken to proceed with the appeal now pending in the Court of Appeal, is a contravention of Section 308 (1) of the 1999 Constitution. It is my view that the pith and substance of Section 308 (1) of the Constitution is to restrict all legal proceedings in which the Governor, in this case, is involved while he is in office and that is why the proviso to the subsection says that no account shall be taken of his period of office for the purpose of any period of limitation in the case.

For the above and the more detailed reasons set out in the leading judgment of my learned brother Iguh, JSC, I find no merit in this appeal. I accordingly dismiss it and affirm the decision of the Court of Appeal. I abide by the consequential orders made in the leading judgment including the order as to costs.

Ayoola, JSC:- Section 308 of the Constitution restricted legal proceedings against a person holding the office of President or Vice-President, Governor or Deputy Governor during the period such person holds such office provided that such proceedings could be initiated or continued against him during his period of office in his official capacity.

The civil proceedings from which this appeal arose were against the appellant in his personal capacity when he was not holding office of Governor. There is no doubt that by virtue of Section 308(1)(a) of the Constitution, such civil proceedings could not be continued against him during his period of office. Oguntade, JCA delivering the leading judgment of the Court of Appeal, now appealed against, held that nothing in Section 308 of the 1999 Constitution precluded a Governor from initiating action against other persons for reliefs in his personal capacity. He was of the view that:-

"If this appeal is allowed to continue, all that this Court will decide is whether or not the lower court was right to have refused to set aside the Writ of Summons and Statement of Claim issued by the plaintiff/respondent. The need will not arise for us to issue any process as stated under Section 308(1) (c) of the 1999 Constitution. I do not therefore agree with the respondent's submission on the point."

On this appeal, the appellant's case is that the learned Justices having disposed of the grounds on which the respondent in that court asked the court to stay the appellate proceedings should not have proceeded to adjourn this appeal sine die "for another reason," when such other reason had been raised suo motu by the learned Justice and the parties had not been heard on it.

The "another reason" relied on by the Court of Appeal was put thus in the leading judgment of Oguntade, JCA:-

"The suit at the lower court was filed by the plaintiff/respondent against the appellant and two others. Under Section 308(1)(a) of the 1999 Constitution, that suit ought not to be further continued, it seems to me however that continuation of a suit can be undertaken by all parties to the suit. When it is said that a suit may not be continued, all the parties must be held to the restraining order. Just as a plaintiff may not continue a suit, so must a defendant not do so once it is determined that a suit is of the character which must not be further continued under Section 308(1)(a) of the 1999 Constitution. To allow the appellant, who is now the Executive Governor of Lagos State to further press on with his appeal is another way of continuing the suit before the lower court."

No doubt, if the arguments advanced before the court below are narrowly viewed, the appellant would be right in his submission that the reason given as above went beyond the arguments advanced by Counsel in the appeal. However, the crux of the respondent's application for an adjournment of the appellate proceedings was that a continuation of the appeal would be in contravention of Section 308(1) of the Constitution. The question that thus arose was whether by his appealing from the decision of the High Court, a civil proceeding was being continued against the appellant.

This is a point which in my opinion had not been argued with sufficient clarity and depth to deserve a definitive pronouncement by this Court. A general pronouncement on the scope of Section 308(1) without regard to the circumstances of each case may not be expedient. For instance, if an action had been instituted against a person and judgment obtained against him before he assumed office as a Governor, does Section 308(1) preclude him from continuing an appeal filed by him before he became a Governor during his period in office, even if the only relief he sought from the appellate court was a re-hearing of the suit in the court of first instance?

In this case if the appeal of the appellant in the court below succeeded, it would have led to a termination rather than continuation of the proceedings against him. If he failed, the suit against him in the High Court would have had to be struck out on the authority of Rotimi & others v Macgregor (1974) 9 NSCC 542.

I am unable to share the view of the Court of Appeal on that part of its decision appealed from, that by prosecuting his appeal the appellant was "continuing" the civil proceedings against himself. One of the reliefs he had sought from the Court of Appeal and, indeed, the main purpose of his appeal was that the action be struck out. It is not necessary to put a strained construction on Section 308(1) of the Constitution to get to a reasonable and just resolution of this matter. When a matter can otherwise be disposed of without resort to strained interpretation of the Constitution, that should be the preferred course.

In this case, having regard to its particular circumstances, the course that is just, reasonable and fair is the pragmatic course. It is evident that on the authority of Rotimi & others v Macgregor (supra) which was cited by Counsel in the court below, the proceedings pending in the High Court were now due for termination by striking out. If the appellant's appeal in the Court of Appeal had succeeded, that suit would have been struck out. If his appeal in that court had failed, the same end would, all the same, have attended the proceedings by virtue of Section 308. In the result and in the ultimate, the appeal in the Court of Appeal is on the verge of being an academic exercise.

In the circumstances, I am of the opinion that the judgment of the Court of Appeal adjourning the appeal before it sine die should be set aside. However, I do not think the relief sought by the appellant, that we should substitute an order that the hearing of the appeal be accelerated by the court below, is a proper relief to grant. In substance, the view held by the court below was that the suit should not be continued in the High Court by virtue of the prohibition of civil proceedings against a person holding the office of Governor by virtue of Section 308 of the Constitution. Having come to that view, the court below should have considered the options available to it, namely, to remit the suit to the High Court with directive that it be struck out pursuant to Section 308 or to strike it out by itself as this Court did in the case of Rotimi v Macgregor (supra). Whichever option is chosen would have made no difference to the conclusion of the matter.

Before I part with this appeal, I venture to recapitulate some points for emphasis. First, although an appeal is from a decision and not from an action, once the action in the High Court stood discontinued by virtue of Section 308 of the Constitution, an interlocutory decision aimed at furthering the proceedings disappears with the discontinued proceedings. Secondly, the case of Rotimi & others v Macgregor (supra) did not at all decide that an appeal amounted to a continuation of a civil proceeding against an appellant. What this Court did in that case was to strike out the case against the first defendant/appellant as the trial court should have done, notwithstanding that the first defendant/appellant had appealed and had not relied on Section 161(1) of the 1993 Constitution. It seems instructive that in that case what this Court struck out was the case in the trial court and not the first defendant/appellant's appeal.