Francis Tabai & Anor. V. The Vice Chancellor, Rivers State University of Science and Technology, Port Harcourt & Anor. (1997)

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KATSINA-ALU, J.C.A.

The appellants Francis Tabai and Prince Georgewell are students of the 2nd respondent. Following certain alleged violent incidents in the University on the 11th and 12th of July, 1995 the 1st respondent set up a panel to investigate the matter. The appellants were invited to appear and appeared before the panel. Meanwhile the Nigeria Police intervened in the matter and subsequently arraigned persons involved on both sides in the matter including appellants before a Magistrate’s Court in Port Harcourt in charges Nos. PMC/1400C/95 and PMC/1401C/95 respectively on 9/11/95.

During the pendency of the criminal proceedings, the 1st respondent suspended the 1st appellant for one academic session and expelled the 2nd appellant altogether for their alleged involvement in the violent incidents. The letters conveying the decisions aforesaid were written on 13/11/95. On the 20/11/95 the appellants filed separate suits numbered PHC/276M/95 and PHC/277M/95 respectively each seeking an order of court for leave to apply for an order of court for leave to apply for an order of certiorari to remove to the High Court for the purpose of being quashed the decision of the 1st respondent suspending and expelling them as contained in the said letters. And also an order staying the said suspension and expulsion of the appellants pending the determination of the motion on notice.

The said suits were on the application of appellants’ counsel, consolidated by the Court.” Thereafter the learned trial Judge, Ungbuku, C.J. heard arguments on the said motion. In a Ruling delivered on 5/12/95 the learned Chief Judge dismissed the applications.

Being dissatisfied with the said Ruling, the appellants appealed to this Court upon a number of grounds which read:

1. The learned trial Judge erred in law by making the finding that “Placing the affidavit evidence of the applicants and Exhibit B under consideration together the court is not convinced that the applicants were not granted a fair hearing’ when the motion on notice was not before him.

Particulars of Error

a) It was only the Motion Exparte for leave that was before ‘the court.

b) It was premature for the court to have made a finding on the substantive matter at that stage.

c) The said finding prejudged the merits of the substantive application which was not before the court.

2. The learned trial Judge erred in law by refusing to accept and or rely on the uncontradicted facts and depositions in the appellants’ affidavits and application before the trial court by holding or finding that” ….the court is not convinced that the applicants were not granted a fair hearing”.

Particulars of Error

a) The applicants, Messrs Francis Tabai and Prince Georgewill, in paragraphs 13 and 20 of their affidavits respectively had averred inter alia that they were not given the opportunity to call persons who would have supported their claim of innocence and that they were not opportune to know allegations made against them and persons who said things against them and were also not permitted to confront their accusers.

b) The aforementioned depositions were not countered before the trial court by any affidavit or documents before it on the material points.

3. The trial Judge erred in law by holding that “The applicants ought to have waited for the determination of the criminal trial against them before embarking on this process to challenge the decision of the University” when in law it was the respondent that were bound to have waited for the outcome of the criminal trial of the appellants before visiting any disciplinary sanctions or measures on the appellants based on the allegations before the court.

Particulars of Error

a) The Appellants were alleged to have taken part in violent incidents for which they have been charged to court along with several others.