University Of Ilorin & Anor V. Idowu Oluwadare (2006)

LAWGLOBAL HUB Lead Judgment Report

S.U. ONU, JSC

This is an appeal against the judgment of the Court of Appeal (hereinafter in the rest of this judgment referred to as “the court below”) sitting at Ilorin, Kwara State delivered on 24th day of June, 2002, wherein the court below upheld the decision of Tsoho, J., of the Federal High Court, Ilorin delivered on 22nd day of November, 1999.

The claim of the respondent before the trial court was an application for enforcement of his Fundamental rights on the expulsion order placed on him by the appellants contending among other things”-

“(1) That his expulsion from the appellants’ University (the 2nd appellant being the Vice-Chancellor of the 1st) pursuant to an allegation of criminal offence of examination malpractice is unconstitutional, null and void.

(b) An order of mandatory injunction on the respondent/appellant or their privies, agents etc to forthwith allow appellant/respondent to continue with his academic career in the appellants’ institution without let or hindrance especially in the area of registration, receiving lectures and writing examination etc, and

(c) An order of perpetual injunction restraining the appellants, their agents, servants etc from taking any step(s) prejudicial to the smooth pursuit of the applicant’s/respondent’s Academic career in the appellant’s institution vide the suspension or other disciplinary measure save and except the guilt of the applicant/respondent has been conclusively established through the appropriate judicial forum

The applicant/respondent, a student of the appellant’s University during the Harmattan Semester Examination conducted by the appellants on 27th day of August, 1998, was caught while collecting a question paper meant for the examination during the examination itself in the examination hall from one Miss Sule Oluwatoyin Sandra, a fellow student of the appellant who was also sitting for the same examination. The officer who was invigilating the examination and who caught the respondent on the spot confronted the respondent and requested him to make a statement but the respondent refused (see Exhibit “A” attached to the counter-affidavit especially paragraphs 7, 8, 9, 10, 11, 12 and 13 thereto) sworn to by the respondent himself on 9/6/99 at page 36 of the record of proceeding.

On the strength of this examination misconduct, the respondent was invited to appear before the appellants’ Student Disciplinary Committee (SDC for short) to defend himself on allegation of examination misconduct (vide Exhibit “B” at page 40 of the Record of Proceedings. The respondent appeared before the said SDC and after a thorough investigation and interrogation of the respondent, the SDC found him (respondent) to have committed examination malpractice and therefore recommended the expulsion of the respondent from the appellant’s University and consequent upon which Exhibit “C” at page 41 of the Record of proceedings was issued to the respondent.

Pursuant to the law establishing the 1st appellant, to wit: Cap. 455 Laws of the Federation of Nigeria 1990 the respondent was to appeal to the University Governing Council against the decision of the SDC recommending the expulsion of the respondent from the 1st appellant. However, the respondent did not await the outcome of his appeal to the Governing Council of the 1st appellant before rushing to court to institute this action. See Page 11 of the Record of Proceedings for the letter dated 28/4/99.

At the hearing of the respondent’s application for the enforcement of his fundamental right, the respondent contended that the SDC lacked the power to deal with examination misconduct which is criminal in nature and that the respondent was not afforded adequate opportunity to defend himself. On the other hand, the appellants contended at the trial that an act of examination misconduct is a misconduct that can be dealt with by the appellants under the University of Ilorin Act, Cap. 455 Laws of the Federation 1990 and that the respondent was given a fair hearing while the step taken by the respondent in rushing to court, after he had appealed to the Governing Council, was indeed premature and constituted an abuse of judicial process and also runs counter to the relevant provisions of Unilorin Act, Cap.455 which allows appeal from the decision of the SDC.

On the appeal to the court below, that court refused to consider Ground 1 and 2 contained on the Notice of Appeal against the judgment of 22nd November, 1999 and Issue Nos. 3 and 4 in the appellants’ brief of argument on mere technical ground. The court below also upheld the decision of the trial Judge to the effect that the SDC of the appellants lacked the powers to deal with examination misconduct and that the respondent was not bound to first appeal on the matter to the University Council, hence the appeal to this court. Where the appellants have formulated for issues from three original grounds and one additional ground of appeal.

“1. Whether the action/suit of the respondent before the trial court is competent, and whether the trial court has jurisdiction to entertain same (additional Ground of Appeal).

2. Whether two issues of merit formulated from one ground of appeal should be rejected out rightly as invalid on mere technical ground rather than being carefully consider on its merit (Ground one of the original Ground of Appeal).
3. Whether the appellant possesses the power and authority under its enabling law (i.e. Unilorin Act, Cap. 455 1990, Laws of the Federation) to deal with any act of omission or commission of its students that is tantamount to misconduct. (Ground two of the Original Ground (sic) of Appeal).
4. Whether the statutory provision which provides proceedings for internal resolution of issues are mere formalities and should not be adhered to before resorting to external adjudication. (Ground Three of the Original Grounds (sic) of Appeal).”

As identified by the respondent, the issues calling for determination in the appeal are simply as follows:

“(i) Considering the facts and circumstances of this case, whether the respondent ought to institute his action by way of Writ of Summons instead of an application for enforcement of his fundamental rights and whether by so doing the trial High Court acted without jurisdiction (Additional Ground of Appeal).