Federal University Of Technology Minna, Niger State & Ors V. Bukola Oluwaseun Olutayo (2017)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The respondent was, at all times material to this appeal, a student of the Federal University of Technology, Minna, particularly in the Department of Agric Engineering within the School of Science and Engineering Technology. In May, 2004 she sat, as she claims, for the 2003/2004 First Semester Examination in Chem.III. She claims also that before the examination she signed-in, and later signed-out after the examination. The custom is that no student must leave the examination hall, after the examination, until he had duly submitted his answer sheets, and had mandatorily signed-out.
The results of the said First Semester Examination were later released and pasted at the Notice Board. The result posted showed, clearly, that the respondent got 37 marks for Chem.III. That result was later withdrawn from the Notice Board, and replaced with another result which showed and suggested that she was absent and did not write Chem.III examination. The respondent protested. Her complaints at the Department fell on deaf ears. She persisted. The next thing she got was a letter
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inviting her to appear before the Students Disciplinary Committee (SDC) for alleged examination misconduct in respect of the same Chem.III. The letter is dated 20th October, 2005. Before then a letter dated 6th October, 2005 had placed her on suspension and informed her, that her case had been referred to the Students Disciplinary Committee for further investigation and that she would remain on suspension until the final determination of her case. She was thereby advised to keep-off the campus.
The respondent appeared at the SDC hearing. She was duly informed and given the particulars of the allegation against her. That is: that she did not submit her answer booklet after Chem.III examination, and that the answer booklet was found in the School Examinations officers office after 6.00p.m. on the day of the examination, that is 5th May, 2004. The SDC, in their Report, dismissed the allegation and recommended that the respondent be recalled to continue her studies, having already lost one session.
Notwithstanding the finding and report of the SDC that the allegation of examination malpractice
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against the respondent was not established, the University, the 1st appellant, went ahead to issue, on 22nd December, 2005, a letter expelling the respondent from the University. The letter, Exhibit E. states inter alia:
Senate, at its 28th meeting held on 30th November, 2005, considered and upheld the recommendation of the Students Disciplinary Committee that you be expelled from the University after you were found guilty of examination misconduct during the First Semester of 2003/2004 Session.
The Senate of the University, as it appears, may have purportedly acted under Section 7(2)(b) of the Federal Universities of Technology Act, Cap F23, 2004 LFN in the matter of the expulsion of the respondent. The function of the Senate of the University, under Section 7(2)(b) of the Act, includes the organization and control of – examinations held in conjunction with the students course of study at the University. Function and duty are usually co-related. The duty to act fairly in the discharge of this statutory function of the Senate cannot be denied. I think it is for this reason that Section 7(6) of the Act provides a
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right of appeal to the council of the University against the decision of the Senate.
A student expelled, pursuant to the directive of the Vice-Chancellor of the University for examination misconduct under Section 17(1) of the Federal Universities of Technology Act (FUTA), 2004, also has a right of appeal to the council of the university by virtue of Section 17(2) of the same FUTA.
It appears to me that the respondent was exercising the rights of appeal she had, by dint of Sections 7(6) and 17(2) of the FUTA, when she addressed her appeal to the Vice-Chancellor vide her letter dated 14th February, 2006, Exhibit F. In this letter of appeal, the respondent asked for the reconsideration of her expulsion and reiterated the fact that she was called upon to face the panel (that is the SDC), on the allegation of examination misconduct and that at the time she left the SDC and upon the SDC findings and report there was no evidence, and no evidence established, that she committed the alleged examination misconduct. Accordingly, the expulsion, conveyed by Exhibit E, was an embarrassment to her. Protesting her innocence of the allegation of examination misconduct,
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she pleaded, in Exhibit F, that her expulsion be reconsidered to save her the countless loss caused by the expulsion.
The respondent heard nothing in response to her appeal, contained in Exhibit F. On the 14th April, 2006 she approached the High Court of Niger State for enforcement of her right to fair hearing, a fundamental right guaranteed by Section 36(1) of the 1999 Constitution and enforceable under Section 46(1) of the said Constitution, and the Fundamental Rights (Enforcement Procedure) Rules (FREP). The originating motion was supported by an affidavit and 6 exhibits. The appellants did not file any counter-affidavit joining issues with the respondent on all the facts constituting the cause of action of the respondent against them. The law is trite: Facts not disputed are taken as admitted and/or established. They accordingly require no further proof. Admitted facts are, usually regarded as the best evidence: DIN V. AFRICAN NEWSPAPERS OF NIG. LTD. (1990) 2 NSCC (pt.2) 313.
The most fundamental of these undisputed or admitted facts are that the respondent appeared before the SDC on allegation of examination misconduct; the SDC
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finding the allegation not established or proved against her recommended that she should be recalled to continue her studies. The other germane facts not disputed, or taken as admitted, as averred in paragraphs 15 and 16 of the respondents affidavit, are
- That at no time after the SDCs report was I served with any charge or allegation, nor was I present to hear anyone testify against me and given the opportunity to cross-examine such witness(es);
- That after the SDC submitted its report I was not invited before any panel or body whether quasi-judicial or judicial, or even the Senate or other organ(s) of the (appellants.) or the sub-committee of any one of them. [emphasis supplied]
In other words, the Senate of the University, when at its 291st Meeting held on 30th November, 2005, considered and upheld the recommendation of the Students Disciplinary Committee that (the respondent) be expelled from the University after (finding her) guilty of examination misconduct during the First Semester of 2003/2004 Session, did not give the respondent an opportunity to be heard. Now, if as admitted or as it is deemed admitted by the
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appellants, that the SDC, upon hearing the respondent on the allegation of examination misconduct, had exonerated or acquitted her on that allegation, on what basis did the Senate of the University act to find the respondent guilty of the same examination misconduct No facts are available on this fundamental question.
The trial Court (coram: M.S. Zukogi, J.) dismissed the respondents case. The Court of Appeal (the lower Court), on the appeal of the respondent, allowed the appeal and in consequence declared null and void the suspension and expulsion of the respondent from the University, vide Exhibits D and E. This further appeal has been brought on two grounds. They are (shorn of their particulars):
- The learned Justices of the Court of Appeal erred in law in entertaining an appeal that was brought from the lower Court that has no jurisdiction to entertain the matter.
- The learned Justices of the Court of Appeal erred in law by entertaining an appeal from a lower Court that assumed jurisdiction in a case where the defendants are protected by the provisions of the Public Officers Protection Act Cap P41 LFN 2004.
Counsel
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on both sides are ad idem on the issues for the determination of this appeal. That is –
- Whether the lower Court had jurisdiction to entertain an appeal from a case that was instituted against a Federal Government agency in a State High Court; and
- Whether the lower Court had jurisdiction to entertain an appeal from a case that was instituted against Public Officers well outside the 3 months statutory period.
Appellants counsel, on Issue 1, had strenuously argued that this case, specifically for the enforcement of the respondents fundamental right to fair hearing, comes under Section 251(1)(q), (r) & (s) of the 1999 Constitution and therefore distinguishable from the case of GARBA v. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt.18) 550 where this Court had held that the High Court of Borno State had jurisdiction, by virtue of Section 42(1) of the 1979 Constitution (in pari materia with Section 46(1) of the extant 1999 Constitution), to entertain the case filed by students of University of Maiduguri for the enforcement of their right to fair hearing in disciplinary proceedings for misconduct. The GARBA case was also for
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enforcement of the fundamental rights of some students.
The contention of the appellants counsel is that the named appellants herein are all agents or agencies of the Federal Government and that in the expulsion of the respondent from the University, the appellants were undertaking or had taken executive or administrative action or decision in their official capacities and also within their statutory powers. He therefore called in aid NEPA v. EDEGBERO (2002) 18 NWLR (pt.798) 79 and invoked Section 251 (1)(q),(r) & (s) of the 1999 Constitution, in the submission that only the Federal High Court, to the exclusion of the Niger State High Court, has jurisdiction in the matter since the appellants, as the defendants, were agents or agencies of the Federal Government. In the process the appellants counsel had disingenuously cited in support of his fallible position the Court of Appeal decision in UNIVERSITY OF AGRICULTURE MAKURDI v. JACK (2000) II NWLR (pt.679) 658 per Mangaji, JCA, that was set aside by this Court in JACK v. UNIVERSITY OF AGRICULTURE, MAKURDI (2004) ALL FWLR (Pt.200) 1506.
The core issues in GARBA V. UNIVERSITY
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OF MAIDUGURI (supra); JACK v. UNIVERSITY OF AGRICULTURE, MAKURDI (supra) and the instant case are not dissimilar. They are whether the State High Court has jurisdiction to entertain the complaints of students of higher institutions of learning that the University authorities, in purporting to discipline them for misconduct, had infringed on their fundamental rights guaranteed in Chapter 4 of the Constitution. I find no substantial distinction between this case and the cases of GARBA v. UNIVERSITY OF MAIDUGURI (supra) and JACK v. UNIVERSITY OF AGRICULTURE (supra). This case, brought under Section 36(1) of the 1999 Constitution, is for the enforcement of the respondents right to fair hearing, a fundamental right guaranteed under Chapter 4 of the Constitution.
Section 42(1) of the 1979 Constitution, under which GARBA v. UNIVERSITY OF MAIDUGURI (supra) and JACK V. UNIVERSITY OF AGRICULTURE were brought for the enforcement of the fundamental rights of students of the Universities, is in pari materia with Section 46(1) of the 1999 Constitution.
Section 46(1) of the 1999 Constitution provides
46.(1) Any person who alleges
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that any of the provisions of this Chapter has been, is being or is likely to be contravened in any State in relation to him may apply to a High Court for redress.
Section 46(1) of the 1999 Constitution (ipssma verba with Section 42(1) of the 1979 Constitution) clearly vests concurrent jurisdiction in both the Federal High Court and the State High Court in the matters for the enforcement of citizens fundamental right. A High Court in Section 46(1) of the Constitution and FREP, means and includes the Federal High Court and or a State High Court. Katsina-Alu, JSC (as he then was) had put it succinctly thus in JACK v. UNIVERSITY OF AGRICULTURE (supra) at 1518.
In the resolution of this issue, I would like to point out that Section 42(1) of the Constitution of the Federal Republic of Nigeria, which I reproduced above, has provided the Court for the enforcement of the fundamental rights as enshrined in Chapter IV. A person whose fundamental right is breached, being breached or about to be breached may therefore apply to a High Court in that State for redress. Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules,
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1979 – defines a Court as meaning the Federal High Court or the High Court of a State. What this means is this, both the Federal High Court and the High Court of a State have concurrent jurisdiction. An application may, therefore, be made either to the judicial division of the Federal High Court in the State or the High Court of the State in which the breach occurred, is occurring or about to occur.
See also GAFAR v. GOVERNMENT OF KWARA STATE (2007) ALL FWLR (Pt.360) 1415.
On this issue, I have no hesitation agreeing with the respondents counsel that the settled position of the law that the jurisdiction to entertain actions for the enforcement of any of the fundamental rights guaranteed by the Constitution in Chapter IV thereof is concurrently vested in the Federal High Court and the State High Court. This is without with prejudice to whether any of the parties is either the Federal Government or an agent or agency of the Federal Government. NEPA v. EDEGBERO (supra) is accordingly inapplicable as it does not deal with enforcement of fundamental rights. On the other hand, GARBA v. UNIVERSITY OF
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MAIDUGURI (supra); JACK v. UNIVERSITY OF AGRICULTURE (supra) as well as GAFAR v. GOVERNMENT OF KWARA STATE (supra) are very apposite.
Issue 1, accordingly is resolved in favour of the respondent, and against the appellants.
The bases of the decision of the lower Court, the subject to this appeal, are that the appellants by not joining issues with the averments of the respondents, contained in paragraphs 12, 13 and 15 of the supporting affidavit, that she signed-in to write Chem.III examination, wrote the examination and that she submitted her answer booklet after writing Chem.III and thereafter signed-out of the examination hall, and further that the SDC, after hearing her on the allegation of examination misconduct, absolved her as there was no evidence establishing the allegation. The lower Court further found, as a fact, that the Senate of the University did not give the respondent an opportunity to be heard before purporting to find her guilty of examination misconduct, and expelling her on the same allegation she had, previously on the facts, been exonerated and acquitted of. The lower Court, relying on GARBA V. UNIVERSITY OF MAIDUGURI
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(supra) and ADIGUN & ORS. v. A.G. OYO STATE & ORS. (1987) 2 SC 250 at 375, had correctly, in my view, found that the respondent was not given fair hearing. The principles of natural justice, as held by the lower Court, demand that a student accused of examination misconduct and expelled for that misconduct must be afforded an opportunity by the body statutorily empowered to take such decision, either judicially or quasi-judicially, to :-
a. know the allegation against him;
b. be present when the case against him is heard, and
c. not only to state his side of the allegation but also to contradict the case against him by the cross-examination of the witnesses called by his accusers.
The undisputed facts clearly established that the Senate of the University, in their decision to expel the respondent for examination misconduct acted capriciously and arbitrarily and thereby violated the respondents right to fair hearing, not only in the con of audi alteram partem (i.e. denying her an opportunity to be heard) under Section 36(1) of the Constitution, but also in terms of the right against double jeopardy, on the basis of
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her plea of autrefois acquit (the exoneration or acquittal) by the SDC, guaranteed by Section 36(9) of the Constitution. She had been able to show, satisfactorily, that the SDC tried her and acquitted her on the same allegation of examination misconduct the Senate of the same University convicted and sentenced her for in Exhibit E.
The appellants, having no answer to the factual situations made out by the respondent against them, which facts justify and warrant the decision of the lower Court, have now under Issue 2 raised the question or point: whether the lower Court had jurisdiction to entertain the appeal from the High Court of Niger State Straight away, this poses no problem. The answer is in Section 240 of the 1999 Constitution that provides: subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the High Courts, including the High Court of Niger State.
However, it appears from the submissions of the Appellants counsel under the said Issue 2, raised from their ground
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2 of the grounds of appeal, that his complaint under this issue is: whether, in the first place, the trial Court was bereft of any jurisdiction over the cause of action, by operation of the limitation clause in Section 2(a) of the Pubic Officers Protection Act, and accordingly, the lower Court also lacks jurisdiction to entertain the appeal arising therefrom. The appellants appear here to misconceive or confuse the substantive jurisdiction of the Court of Appeal, vested by Section 240 of the Constitution, with the cause of action jurisdiction of the trial Court. This latter jurisdiction is rather a procedural jurisdiction and it is about whether the trial Court had or did not have jurisdiction over the cause of action of the claimant, like the instant respondent. This cause of action jurisdiction depends on the peculiar facts of the case that vary from case to case. They are not always constant, nor are they always identical.
The misconception of the appellants in this regard stems from their erroneous belief that the cause of action at the trial Court determines the substantive jurisdiction of the appellate Court. The cause
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of action does not determine the substantive jurisdiction of the Court of Appeal vested by Section 240 of the Constitution.
The lower Court is not a Court of first instance. It is an appellate Court. What was before it was the complaint that the decision of the trial Court was either wrong or right. What the appellants sought of, or at the lower Court, was a remedy, upon review, to correct the error(s) committed by the trial Court and give the correct decision as regards the issues at the trial. Thus, as it is stated by this Court in EFFIOM & ORS. v. I.N.E.C. & ANOR. (2010) 14 NWLR (pt.1213) 106 and FIRST BANK OF NIGERIA PLC v. T.S.A. INDUSTRIES LTD. (2010) 15 NWLR (pt.1216) 247; an appeal is not a new action, but a continuation of the matter which is a subject of the appeal; and that it is a complaint against the decision of the Court below. In effect, as Onnoghen, JSC (as he then was) puts it in EFFIOM v. INEC (supra), it amounts to a complete review of the proceedings and the decision appealed against.
In the proceedings at the Court of first instance, culminating in the appeal at the lower Court, the appellants filed no defence
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or counter affidavit. The facts constituting the cause of action were deemed taken as admitted and therefore established against the appellants. The basic principle of our adversarial jurisprudence is that it is the duty of the defendant to raise his defence. The trial Court owes the defendant no duty to raise a defence to the claims against him. Doing that offends Section 36(1) of the Constitution and the principles of natural justice, particularly the rule that the Court or Tribunal established by law shall be constituted in such a manner as to secure its independence and impartiality. See also Section 17(2)(e) of the Constitution. This injunction is what, in common law, is expressed as nemo judex in causa sua. The rule prohibits or restrains the Judge or Court of law from being a judge in his own cause in order to actualise his or its impartiality.
The appellants contended that Section 2(a) of the Public Officers Protection Act Cap P41 LFN 2004 (POPA) has rendered the respondents cause of action statute barred. They rely on EGBE v. ALHAJI (1989) 1 NWLR (pt. 128) 546; IBRAHIM v. J. S. C. (1998) NWLR (Pt.584) 1;
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OSUN STATE GOVT. v. DALAMI (NIG) LTD (2007) 9 NWLR (pt. 1038) 66, and F. R. I. N v. GOLD (2007) 11 NWLR (pt.1044) 1 for the contention that the respondents cause of action, having elapsed by effluxion of time, had become extinguished by Section 2(a) of POPA at the time the suit was taken out on 14th April, 2006. The issue of jurisdiction raised from these facts is that the respondents cause of action having become statute-barred, the trial Court lacked jurisdiction to entertain it.
In the first place, the appellants did not raise this special defence at the trial. They did not file any defence or counter-affidavit to challenge the facts which the respondents cause of action was predicated. The averments, in the supporting affidavit of the respondent remain unchallenged, and are consequently taken or deemed to have been admitted. Paragraph 17 of the said supporting affidavit avers that on receiving the letter of expulsion, Exhibit E, the respondent wrote Exhibit F to appeal the decision and ask for the review of the expulsion. She got no reply or response thereto. The question that follows is; when did the cause of action
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accrue to warrant the appellants invocation of Section 2(a) of POPA This is a question of fact.
I agree, as submitted for the appellants relying on BRONIK MOTORS v. WEMA BANK LTD (1983) 1 SCNLR 296, that it is the claim of the plaintiff that determines the jurisdiction of the Court of first instance that entertains the claim. In the appellate jurisprudence, the burden is on the appellant to show how and in what way the trial Court or the Court below erred in its decision. To corroborate this, Section 131(1) of the Evidence Act, 2011 [formerly Section 134(1)] firmly places on whoever desires any Court to give him judgment as to any civil right or obligation dependent on the existence of facts which he asserts must prove that those facts exist. The appellants have not pointed at or shown on what legal evidence have they situated their invocation of Section 2(a) of POPA.
The appellants may have obtained leave to raise and argue this fresh issue about the suit or claim of the respondent at the trial Court being statute-barred by the operation of Section 2(a) of POPA. They, however, did not obtain any leave to adduce fresh or additional
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evidence. The operational facts in this case are those facts in the claim of the respondent as contained in her supporting affidavit.
The appellants cannot insist on the cause of action accruing from the date the letter of expulsion in Exhibit E was written, that is 3 months from 22nd December, 2005, without showing when the letter was infact delivered to her, or when the fact of her expulsion was brought to her knowledge. The computation of the 3 months, for purpose of the limitation imposed by Section 2(a) of POPA starts from the date the cause of action accrue. In this case, it should start from when the expulsion or the letter of expulsion, Exhibit E, was either brought to the knowledge of the respondent or from the date the letter Exhibit E was delivered. It is therefore, not enough that the letter was written. This Court, in EJEGI v. C. O. P (1977) 10 SC 11, has held that a driving licence prepared, but not delivered to the driver or his agent, is not a certificate issued until it was delivered. On this analogy, I hold firmly the view that for the appellants to successfully plead the three month limitation, on the basis of their letter of
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expulsion, Exhibit E; they must also prove the date the said letter was delivered to the respondent and that she became seised of the fact and knowledge of her expulsion from thence. I therefore agree with the counsel for the respondent that the actual date the letter of expulsion was brought to the respondent is material for the computation of the period of limitation. The learned counsel, relying on U.B.A. PLC v. BTL INDUSTRIES LTD (2007) ALL FWLR (Pt.352) 1619 at pages 1650 – 1651; JALLCO LTD v. OWONIBOYS TECH. SERVICES LTD (1995) 4 NWLR (pt. 391) 534; A. G, BAYELSA STATE v. A. G, RIVERS STATE (2007) ALL FWLR (pt.349) 1012, submits and I agree that the respondents right to the cause of action accrued to her from the date she became aware of the cause of action. Section 135 of the Evidence Act, 2004 (now Section 132 of the Evidence Act, 2011) places the burden of proof in a suit or proceeding, on that party who would fail if no evidence at all were given on either side. In this case the burden of proving their defence or objection founded on Section 2(a) of POPA is on the appellants to discharge. This evidential burden they have failed to
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discharge. They failed to prove the date the cause of accrued to the respondent. This, of course, is fatal to the appellants case.
Limitation provisions, like penal provisions, take away or derogate from vested rights. They have to be construed strictly. See WILSON v. A.G, BENDEL STATE (1985) 1 NWLR (Pt.4) 572; OJO v. GOVERNOR OF OYO STATE (1989) NWLR (Pt.95) 1. The right of the respondent vested by law cannot just be set aside by the mere ipsi dixit of the appellants.
In any case the respondents right to enforce her Fundamental right to fair hearing is one specially vested by Section 46(1) of the 1999 Constitution and the Fundamental Rights (Enforcement Procedure) Rules. Accordingly, reasoning as this Court did in UZOUKWU v. EZEONU II & ORS (1991) 6 NWLR (Pt. 200) 708 at 761, I hold that the right to enforce fundamental rights stands above the ordinary laws, including Section 2(a) of POPA; which in my firm view is inapplicable in the circumstance.
Issue 2 canvassed and argued does not avail the appellants. It was not made out. It is accordingly resolved against the appellants.
The appeal, lacking
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substance, is hereby dismissed in its entirety. The decision of the lower Court in the appeal No. CA/A/136/06 setting aside both Exhibits D and E at the trial Court, respectively the letters of suspension and expulsion of the respondent from Federal University of Technology, Minna, is hereby affirmed.
The respondent has been made to throw away costs in defending this unmeritorious appeal. She deserves to be indemnified in costs at the trial Court and this Court. The lower Court specifically stated that it would not make any order as to costs. She is entitled to the costs wasted. I hereby order the appellants, jointly and or severally, to pay a total of N1,000,000.00 as costs to the respondent made up of N300,000.00 as costs at the trial Court and N700.000.00 costs in this Court.
The expulsion resulting in this litigation culminating in this appeal, was itself an unwarranted and capricious violation of the respondents right to fair hearing. The appellant had all the opportunity to make amends to alleviate costs. They chose not to.
Upon proper counseling, which they never had unfortunately, this expensive litigation was
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avoidable. The appellants, however, chose the path of this ignoble and invidious litigation, hoping, probably, in wishful thinking that their outrageous decision to expel the respondent would by some devious judicial accident or default be ratified.
SC.344/2009