Adeniran Tobi Onagoruwa V. Joint Admissions and Matriculation Board (2000)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A.
This appeal is from a judgment of the Federal High Court, Lagos in Suit No. FHC/L/CS/630/99, delivered on the 29th February, 1999 dismissing the plaintiff’s claims in its entirety with costs.
The facts of this case are very simple and straightforward. The Appellant as the plaintiff had filed a claim against the Respondent, as the defendant claiming for declaratory reliefs, an order of injunction restraining the Respondent and also N5,000,000.00 (Five Million Naira) being special and general damages. The claim was in respect of the cancellation of the Appellant’s result at the 1993/94 University Matriculation Examination and withdrawal of the provisional admission granted to the Appellant by the Respondent to read for a degree course, in Electrical Engineering at the University of Ilorin, Kwara State. By order of injunction granted on 27/6/94, the lower court permitted the appellant to continue his course of study at the University, pending the determination of this case. However, by judgment delivered on 26/1/1999, the lower Court dismissed the appellant’s claim in its entirety.
Being dissatisfied with the said decision, the Appellant now lodged this appeal, on four ground, which without their particulars read as follows:
“GROUND ONE
The learned trial Judge erred in law in declining to make a declaration that the plaintiff is not connected with fraud. cheating, falsification of result or any examination malpractices at the 1993/94 University Matriculation Examination.
GROUND TWO
The learned trial Judge erred in law when he held in connection with the word ‘provisional’ appearing on the admission letter issued to the plaintiff by the defendant that:
“The ordinary meaning of the word “Provisional’ is simple and straight which does not require any brain cracking to know what it means. Provisional means provisional. That is tentative, not confirmed.
GROUND THREE
The learned trial Judge erred in law in declining to restrain the defendant, its servants, or agents from interfering with the admission, registration, matriculation and studies of the plaintiff at the University of Ilorin.
GROUND FOUR
The learned trial Judge erred in law in declining to award damages against the plaintiff.”
In compliance with Order 6 rules 2 and 4 of the Court of Appeal Rules, 1981, (as amended), parties filed and exchanged briefs of argument which were adopted at the hearing of this appeal on 15/912000. Four issues were formulated for determination by the appellant as follows:
(i) Whether the word “Provisional” contained in the admission letter issued to the appellant by the Respondent entitles the Respondent to resile from the contract between the parties?.
(ii) Whether the lower Court was right in the circumstances of this case, to have declined to make a declaration that the appellant was not connected with fraud, cheating, falsification of result or any examination malpractices at the 1993/94 University Matriculation Examination conducted by the Respondent?.
(iii) Whether the lower Court was right when it declined to restrain the Respondent, its servants or agents from interfering with the admission, registration, matriculation and studies of the plaintiff at the University of Ilorin?.
(iv) Whether the appellant is entitled to damages in the circumstances. The respondent’s brief of arguments however, contained also four issues for determination. They are as follows:-
(i) Whether the Appellant is entitled to any declaratory relief in respect of connection (sic) with fraud, cheating, falsification of result or any examination malpractices at the 1993/94 University Matriculation Examination.?
(ii) Whether the Respondent has the power to withdraw the provisional admission given to the appellant as well as the Notification of Result given to the appellant?
(iii) Whether the refusal of the lower Court to restrain the respondent, its interfering with the admission, registration, matriculation and studies of the appellant was proper in the circumstances?
(iv) Whether the claim of the Appellant for special and general damages for injury occasioned by the negligence of the respondent was established before the lower court as to enable the court make an award of damages against the Respondent?”
The issues as formulated by both parties for determination are quite similar, apt and they all have the backing of the grounds of appeal. It is in this vein that I, however, opt for the appellant’s four issues for the determination of this appeal.
On the appellant’s first issue, whether the word “Provisional” contained in the admission letter issued to the Appellant by the Respondent entitles the respondent to resile from the contract between the parties, it is submitted by the learned Counsel for the appellant that the learned trial Judge took a simplistic view of the issue when he abdicated his judicial responsibility by not adhering to the proper judicial interpretation of the word “Provisional”, as given in the cases of Branca v. Cobarro (1947) 2 All ER 101 at 103 and United Bank for Africa Ltd. v. Tejumola & Sons Ltd (1986) 4 NWLR (Pt.38) 815 at 821 – 822.
It is the submission of the learned Counsel for the Respondent that the use of the word “Provisional” in Exhibit ‘B’, the letter of admission, is not only fundamental, but in the circumstances empowered the respondent to withdraw the admission earlier offered to the appellant; since on the Exhibit A, the Notification of Result, it is written that this was not a letter of admission into any University. It was also stated that the candidate would be informed if he was offered any provisional admission. That the notification of result as the property of the respondent it could be withdrawn at any time it was deemed necessary. The clear heading of the respondent’s Exhibit ‘A’ is “OFFER OF PROVISIONAL ADMISSION TO FIRST DEGREE PROGRAMMES UNIVERSITY MATRICULATION EXAMINATION CANDIDATES”. In it is conveyed to the Appellant that he has been offered provisional admission to “pursue a first degree programme in Electrical Engineering” at the University of Ilorin. Underneath Exhibit ‘A’ the following paragraphs were set out:
“1. The confirmation of this offer is subject to your obtaining the minimum entry qualifications for the course to which you have been offered admission as well as fulfilling the conditions spelt out below:
- …………………….
- At the time of registration in your University you will be required to present the originals of the Certificate(s) or any other acceptable evidence of the qualifications on which the offer of admission has been based.
- If it is discovered at any time, that you do not possess any of the qualifications which you claim to have obtained you will be required to withdraw from the University.
- …………………….
- ……………………
- ……………………
SIGNED
MRS. M. H. SHAYU
THE REGISTRAR.”
Exhibit “B” which is the Notification of Results by the respondent carried the following notes:
“PLEASE NOTE
(1) This is not letter of admission into any University
(2) …………………….
(3) ……………………
(4) You will be informed in due course if you are offered provisional admission into any of the institutions.
(5) This document is NOT transferable. It remains the property of the Board which reserves the right to withdraw that any time it is deemed necessary.
REGISTRAR
JAMB IKOYI, LAGOS”.
By virtue of section 5 of the Joint Admission and Matriculation Board Act, Cap. 193 of 1990, the Respondent is empowered to control the conduct of matriculation examinations for admission into tertiary institutions in Nigeria. They have the power of placement of suitable qualified candidates in collaboration with the tertiary institutions concerned.
From the clear wordings of Exhibit ‘A’, if the respondent discovers at any time that the candidate does not possess any of the qualifications which he claims to have obtained he will be required to withdraw from the University.
Respondent has the power to cancel the result of the appellant. This ought to be done where the respondent deems it necessary. It must not be an arbitrary exercise. Circumstances which necessitate the withdrawal of the notification of the appellant’s result and his provisional admission ought to be clearly seen fair and just.
In paragraphs 12 and 13 of their statement of defence, the respondent has averred as follows:
“11. The defendant avers that subsequent to the release of 1993/94 J.A.M.B. examinations results, it carried out post release review exercise and remarked the entire candidates’ results numbering 401,791 out of which number 1,706 candidates including the plaintiffs had discrepancies on the marks they were alleged to have earlier obtained. The defendant shall rely on the list containing the names of the affected candidate at the trial.
(italics mine for emphasis)
- Out of the affected number of candidates 620 has already been issued with provisional letters of admission including the plaintiffs.
- The defendant further avers to paragraph 6 above, that as the score of the affected candidates fell below the minimum entry requirements by the various Universities, the defendant subsequently wrote to the affected universities to withdraw the affected candidates including the plaintiffs.”
It would seem that the appellant did not file any reply to deny the averment in paragraph 11 of the statement of defence, which is in effect that upon the post release review exercise, it was discovered that the appellant amongst others, had discrepancies on the mark they were alleged to have earlier obtained. Under cross-examination, the veracity and truth of the evidence given by DW1 with respect to the actual score of the appellant was unchallenged. The unchallenged evidence before the lower Court was that the score indicated on Exhibit ‘A’, which is the notification of result as 214 was wrong and the actual score of the appellant was 112. This authentic score was determined after a post review exercise carried out by the Respondent. The Respondent has shown that candidates who sat for the examinations conducted by it, were required by the Universities to score up to a certain marks to be eligible for admission. It is also shown that it is the practice for admission into the Universities, for the respondent to carry out post Release Review Exercise of the result after the dispatch of notification of result and provisional admission letters to the candidate who sat for the examination.
The score of 112 was not sufficient to grant the plaintiff admission on merit. The learned trial Judge rightly acted upon unchallenged evidence before him. Where evidence given by a party to any proceedings was not challenged by the other party who had opportunity to do so it is always open to the court seized of the matter to act on such unchallenged evidence before it. See G. S. Pascutto v. Adecentro (Nig.) Limited (1997) 11 NWLR (pt.529) 467 at 487; Omoregbe v. Daniel Lawani (1980) 3-4 SC 108 at 117; Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC 79 at 81 and Odulaja v. Haddad (1973) 11 SC 357.
It therefore seems to me clear that in the face of unchallenged evidence of the respondent before the learned trial Judge, he would appear to have no option than to dismiss the appellant’s claim in its entirety by placing reliance on the word “Provisional” in Exhibit ‘B’ issued to the appellant to read for the Bachelors degree in Engineering at the University of Ilorin.
The definition of the word “Provisional” as stated in Webster Comprehensive Dictionary (International Edition) is “Provided for a present Service or temporary necessity, adopted tentatively.” The word is defined in the Black’s Law Dictionary as “temporary, preliminary, tentative.”
The learned trial Judge has relied on the two Dictionary definitions and held that provisional means tentative,” not “Confirmed”. The learned Counsel for the appellant has on the other hand placed reliance on the judicial interpretation of the word in the English case of Branca v. Cobarro (1947) 2 All ER 101 at 103 and United Bank for Africa Ltd. v. Tejumola & Sons Ltd. (1986) 4 NWLR (Pt.38) 815 at 821-822.
I have carefully read the two cases. There are no similarities between the facts in these cases and the present case. Hence, the principles of law involved in those two cases are quite different. In the English case of Branca v. Cobarro (supra), in an action by the purchaser for the return of the deposit money paid by him in connection with the purchase of a farm, Denning, J. (as he then was), construing the word “Provisional” in the agreement as “tentative”, ordered the return of the deposit money. The vendor appealed to the Court of Appeal presided by Lord Green, M. R. Their Lordships disagreed with the definition given by Denning, J. as it was “certainly not the meaning that is to be found in the Oxford English Dictionary.” I have duly consulted the Oxford English Dictionary, (3rd Edition) p. 1696. There the word “Provisional” is defined as “belonging to, or of the nature of a temporary provision, or arrangement; provided or adopted or used in default or something better.”
With due respect to their Lordships, this definition agrees with the two earlier definitions in the two English Dictionary and also the definition of Denning, J. Taking the definition of the word “provision” as the only relevant issue raised in Branca’s case, with respect to their Lordships, I refused to be impressed, persuaded or bound by their definition. I agree with that of Denning, J and as found in all the English and Law Dictionary cited above.
On the case of Tejumola & Sons Ltd. (supra), it is pertinent to reiterate my earlier view above that it is not applicable to this present case. I am unable to see how this case will help the appellant’s case.
The admission offered to the appellant was provisional and not a final one. It is subject to certain conditions being fulfilled. The acceptance of the offer of provisional admission by the appellant was not sufficient to stop the respondent from withdrawing since the parties had not reached a conclusive agreement as to the terms of the contract. For a valid contract to be formed, there must be mutuality of purpose and intention. The two or more minds must meet at the same point, event or incident. They must not meet at different points, events or incidents. They must be “ad idem”. The post review exercise carried out showed that the appellant has not met the conditions for him to be given a final admission for his course of study.
Issue 2 in the appellant brief questions whether the lower Court was right in the circumstances of this case to have declined to make a declaration that the appellant was not connected with fraud, cheating, falsification of result or any examination malpractices at the 1993/94 University Matriculation Examination conducted by the respondent.
It would appear that the purpose for which this declaration was sought in the lower court is to remove from the appellant the stigma of involvement in examination malpractices; that is to protect his reputation and integrity.
It is trite that the power to make a declaratory judgment is a discretionary one. The appellant is expected to show his interest in having the right declared; that the declaration will not occasion unnecessary inconvenience to the respondent and that failure to make the declaration will inflict injury on the appellant? See Ipaye v. NEPA (1978) 2 ALR (Comm.) 264 at 259. Declaratory orders are not made as a matter of course or based on sentiments. It is the duty of the appellant to show that he is entitled to the declaratory relief sought. The burden of proof is on him. See Sections 135, 136 and 137 Evidence Act, and the case of Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 745.The appellant pleaded in paragraph 12 of the statement of claim that he was not involved in any examination malpractices. No evidence was led in respect of the averment. A party who makes a claim for a declaratory relief must call evidence to show that he is entitled to the relief. It is irrelevant that his opponent had not challenged the averments relied upon in support of the claim for the declaratory relief sought. See Sanni v. Hughes (1999) 7 NWLR (pt.611) 474 at 481-482; Ajuwon v. Akanni (1993) 9 NWLR (pt.316) 182 at 200.The averment in paragraph 12 of the appellant’s statement of claim was never admitted in any way by respondent in its statement of defence. Since the appellant failed to lead evidence in respect of his averment, he is not entitled to the grant of the declaratory order sought before the lower Court.
The third issue for determination is whether the refusal of the lower court to restrain the respondent, its servants or agents from interfering with the admission, registration matriculation and studies of the appellant was proper in the circumstances. The learned Counsel for the appellant having adopted the argument canvassed in respect of issue No.1, submitted that the fact that some of the candidates in the list shown on Exhibit ‘F’ were later cleared of irregularities the respondent has shown mala fide and discrimination against the appellant and this therefore vitiates the decision to cancel the admission of the appellant. The appellant also contended that the averment in paragraph 14 of the statement of claim that three Universities rejected the respondent’s directives to withdraw the candidates affected by the alleged irregularities from school was not denied by the respondent in the statement of defence.
The averments in paragraphs 14 and 15 of the appellants’ statement of claim, even though there was no specific denial of them, evidence ought to be led to establish them. There was no evidence led to prove that the appellant was eligible for clearance. The evidence before the lower court was that the appellant did not obtain the minimum entry score for admission into the University. It is trite that an averment in a pleading is not and does not tantamount to evidence. It must be established by satisfactory evidence unless the same is expressly admitted. See Ajuwon v. Akanni (supra). There is no where in the evidence before the lower Court where the assertions of the appellant in these paragraphs were expressly admitted by the respondent.
It was also the submission of the appellant that the decision of the respondent to cancel or withdraw the admission of the appellant, arrived at after the respondent’s investigation of crime, was unconstitutional, null and void. This submission is absurd and misconceived. There is no evidence before the lower court that the cancellation of the appellant’s admission was carried out after any form of investigation of allegation of crime. When DW1 was cross-examined, he told the trial Court that the cross-checking was carried out and the staff of the respondent who were responsible for alteration were interrogated.
The appellant’s contention in respect of his questions paper and answers scripts which were tendered in evidence before the lower Court, is that there was no marking scheme of the answer scripts in the examination conducted by the respondent. This assertion was made in paragraph 5 of the respondent’s counter-affidavit in the course of proceedings of 25/12/94. The implication of the deposition as contended by the appellant are two fold: firstly, that there were no fixed answers with which to re-assess the scripts and secondly that it was impossible for the court to compare the marking scheme with the candidate’s script to determine the actual scores. In this vein, it is contended that the appellant is entitled to the benefit of doubt as she did not cheat or alter any scores. It seems to me and I would agree with the learned Counsel for the respondent that this contention is merely speculative and it is based on personal opinion. The point was not properly canvassed at the lower Court. DW1 was not even cross-examined on the validity of Exhibits E-E2. There was no basis upon which the lower court could have restrained the respondent, its servants or agents, from interfering with the admission, registration, matriculation and studies of the appellant.
On the fourth issue with respect to the question of compensatory damages for negligence, I do not think that the appellant is entitled. He did not establish before the lower court any claim based on negligence. I find that there was no proper pleading of the act of negligence on the part of the respondent. There were no specific particulars of the alleged negligence. A party alleging negligence must not only plead the act or acts of negligence, but should also give specific particulars; See Aku Nmecha T. S. (Nig.) Ltd. v. S. D. Atoloye (1993) 6 NWLR (pt.298) 233 at 248.
On the whole, all the issues formulated by the appellant having been resolved in favour of the respondent, this appeal lacks merit. It is accordingly dismissed.
I award no costs in favour of the respondent.
Other Citations: (2000)LCN/0897(CA)