Chiekwe Ikwunze Esiaga Vs University Of Calabar (2004)

LAWGLOBAL HUB Lead Judgment Report

PATS ACHOLONU, J.S.C.

The appellant in this case was a final year student in the Department of Political Science in the University of Calabar, as well as being the speaker of the students Union Parliament of the University of Calabar, and at one time the President of the Political Science Students Association of the University. He had instituted an action in Calabar High Court Division praying the court for an order for the enforcement of his fundamental rights as provided in the 1979 Constitution, the matter having been commenced sometime in 1991.

The grouse or the complaint of the appellant was that the respondents representing the University authority had illegally suspended him on the ground that they discovered certain incriminating materials in his possession and obviously in his control in a room which he shared with some other students. The discovery of the alleged incriminating materials led the University to suspend him indefinitely as he complained, as the authority strongly felt that these items constituted ex facie evidence of cult membership. He stated that the action of the authority was borne out of malice more especially as the security people who searched the room did not allow themselves to be searched.

In the affidavit in support of his application he averred that his relationship with the University Authority was far from being cordial as he was accused of championing the disturbances in the Institution. He further said that he was surprised to see a Vikings Confraternity insignia, a shot gun cartridge, and a History book said to have been found in his possession in the course of the search which led to his suspension. Consequently, on this he applied for the enforcement of his fundamental rights and

(a) For an order declaring as nullity and setting aside the indefinite suspension order of the applicant by the respondents on the 22nd April, 1991 as the appellant was never heard before the respondents took action.

(b) For an order for the first and second respondents to release the applicant’s result along with others when the examination is taken.

The respondents in this action in their opposing affidavit to what was averred by the appellant in the High Court deposed amongst other facts stated therein that;

(a) An intelligent report had it that the appellant was a member of Vikings Confraternity, a secret society banned from operating on the instructions of the Federal Military Government.

(b) Other room mates of the appellant and the Hall – 5 Chief Porter on duty O. T. Udoh signed as witnesses to the fact that the items recovered in the room belonged to the applicant although the appellant refused to sign.

(c) That the Vikings Confraternity Insignia, the shot gun cartridge and the expired borrowed History book were all discovered from the carton in the last cupboard of wardrobe belonging to the appellant emphasizng that the wardrobe in question belonged to the appellant.

(d) And that it was a fallacy to say that the appellant was suspended indefinitely,

Now after arguments on the complaint and the answers proffered were heard in the court of 1st instance, that court presided by Ita, J. granted the appellant his prayers.

The respondents then appealed to the Court of Appeal. In his leading judgment Niki Tobi, JCA (as he then was) in a trenchant manner characterised by, objective analysis and careful attentiveness he gave to the nuances of the case apropos of the judgment of the High Court, the Court of Appeal allowed the appeal. Interestingly, he literally went to the market in his consideration of the ramnifications of the case of Garba & Ors. v. University of Maiduguri (1986) 1 NWLR (Pt18) 550 which it must be regretted has been used and variously relied both as a sword and a shield by litigants.

The losing party appealed to this court. Counsel for the appellant distilled 3 issues from the grounds of appeal. However, in the course of hearing the appeal, the learned counsel for the appellant abandoned 2 issues to wit (b)and (c) and based his argument on the 1st issue which is this;