University of Calabar V. Franklin C. Ugochukwu & Ors (2007)

LawGlobal-Hub Lead Judgment Report

NGWUTA, J.C.A.

This is an appeal against the ruling delivered by Uke. J. of the High Court of Cross River State. Calabar Judicial Division in an interlocutory motion in suit No. HC/MSC/134/2004.

Based on their applications, the respondents, who were applicants in the lower court, were admitted by the appellant University to study medicine and surgery. Each of the respondents was offered temporary admission. See pages 17 to 25 for “Temporary Letters of Admission 1999/2000 Admissions” The temporary admission letter, under the heading “CLEARANCE AT THE REGISTRY” directed each student on receipt of the correct JAMB admission letter to present it to the Registry for clearance during checking of credentials at a date to be announced later and listed the documents to be verified at the screening.

At a screening exercise conducted by the appellant. it was discovered that the respondents presented fake credentials and fake JAMB scores in their application for admission upon which they were offered temporary admission. The respondents, along with 77 other students who presented fake credentials and fake JAMB scores were expelled by the appellant by her letter of 9th Feb., 2004. their appeals against the recommendation of the Screening Panel having been dismissed.

Aggrieved, the respondents, by motion exparte brought pursuant motion to Order 1 r. 2(1). (3) & (6) of the Fundamental Rights (Enforcement) Rules filed on 7/5/04 prayed the court below for the following reliefs:-

“1. Leave of this Honourable Court for the applicants to enforce their fundamental rights as enshrined in S. 36 of the 1999 Constitution of the Federal Republic of Nigeria.

2. That the leave so granted shall operate as a stay of all actions or matters relating to or connected with the complaint(s) by allowing the applicants to attend lecture pending the determination of the case”

The application was supported by 18 paragraph affidavit deposed to by the 1st respondent on 7/5/04 and a further affidavit of 3 paragraphs also sworn to by the 1st respondent on 7/5/04. There was also an affidavit of urgency deposed to by the 1st respondent on 7/5/04.

On 7/5/04, the learned trial Judge heard the exparte application and delivered his ruling on same day thus:-

“After listening carefully to the submission of learned counsel, the affidavit attached the statement pursuant to Order 1 rule 2(3) and since there is affidavit of urgency the application is granted as per paragraphs I and II of the motion Paper. cases is adjourned to 21/5/04 for hearing.”

Upon service on it of the motion on notice for the enforcement of the respondents’ fundamental rights pursuant to the leave granted them. the appellant launched a two pronged attack on the motion –

(1) that the trial court lacked jurisdiction to entertain the matter and

(2) that it is not appropriate to commence the action by procedure for the enforcement of fundamental rights.

The preliminary objection was predicated in the following grounds:-