Joint Admission & Matriculations Board V. Nkeiruka Orji & Ors (2004)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
This is an appeal by the 4th defendant/appellant against the judgment of Lawson, J., while sitting in the Federal High Court holden at Ibadan on 20th November, 2000. The 1st – 3rd defendants also appealed but did not pursue same with due diligence; it seems.
Two suits were filed by way of originating summons at the trial court. The 1st suit with No. FHC/IB/CS/94/99 was filed by the 1st – 9th plaintiffs/respondents against the 1st – 3rd defendants/respondents and defendant/appellant. The 2nd suit with No. FHC/ IB/CS/2000 was filed by the 10th – 16th plaintiffs/respondents against the stated 1st – 3rd defendants/respondents and 4th defendant/appellant. The two suits relate to the same issues. The plaintiffs also requested similar reliefs. The two suits were consolidated for hearing in one fell swoop; it seems.
The claims put up by the plaintiffs against the defendants at the trial court read as follows:-
“1) A declaration that the plaintiffs cannot be denied of their right of admission into the Faculty of Law. University of Ibadan having satisfied all the requirements laid down in the guidelines for admissions as presented to him by the Joint Admissions and Matriculations Board (JAMB).
2) A declaration that the purported decision of the 1st-3rd defendants not to admit or register the plaintiffs into the Faculty of Law, University of Ibadan is void having being (sic) predicated on a misapprehension of the true position of the Guidelines for admission to First Degree Courses in Nigerian Universities for 1998/99 Session.
3) An order directing the defendants to allow the plaintiffs to proceed with their registration formalities into the Faculty of Law, University of Ibadan.
4) An order of perpetual injunction restraining either by themselves or agents or through their servants or privies or howsoever called from disturbing and or disallowing the plaintiffs from being registered and accorded all the rights duties and privileges of a bona fide student of the Faculty of Law, University of Ibadan.”
It is desirable to state briefly the facts of the matter which culminated into this appeal. The plaintiffs/respondents were candidates for admission into the Faculty of Law, University of Ibadan through the appellant (JAMB). They were given the guidelines for admissions to First Degree Course in Nigerian Universities for 1998/99 session. They sat for the U.M.E. Examination and were subsequently given Provisional Admissions having met the cut off score in U.M.E. Examinations into the said University. They commenced registration in the Faculty of Law, University of Ibadan. Soon after, it was discovered by the University Authorities that all the plaintiffs/respondents did not obtain the minimum requirement of pass at credit level in Literature in English as contained in the Brochure for 1998/99. They were advised to withdraw from the University. They felt aggrieved and went to the lower court for redress. The substance of the issues raised is whether the requirement of a credit pass in Literature in English is a condition precedent for admission into the Faculty of Law, University of Ibadan.
The learned trial Judge was ably addressed by learned counsel for the parties. In his considered judgment handed out on 20th November. 2000. the learned trial Judge found that Literature in English was a condition precedent for admission as contained in the 1998/99 guidelines. The plaintiffs did not meet up with the requirement. Curiously, he gave judgment in their favour and ordered that they should sit for WAEC or GCE examinations within two years of his judgment and ensure that they obtained credit in Literature in English or alternatively, they should take remedial courses in Latin relevant to Law. The learned trial Judge capped same with an order that any of the plaintiffs who failed to meet his own yardstick should withdraw from the Law programme.
The 4th defendant felt irked with the stance posed by the learned trial Judge and has appealed to this court. The 1st notice of appeal dated 7th February, 2001, filed by 1st – 3rd defendants/appellants at pages l75-l76 of the transcript record of appeal carries the omnibus ground of appeal to the effect ‘that the judgment is against the weight of evidence’. The 2nd notice of appeal dated 14th February, 2001, at pages 177-179 of the record of appeal, filed by the 4th defendant/appellant carries two grounds of appeal. The two notices of appeal are in order as they were both filed within the statutorily prescribed period.
The relief sought in the first notice of appeal reads as follows:-
“An order al lowing the appeal and setting aside the judgment of the lower court by dismissing the plaintiffs’ claims in its entirety.”
In the 2nd notice of appeal, the relief sought was fine-tuned as it reads as follows:-
“An order reversing the judgment of the lower court and holding that the appellant was not negligent in offering Provisional Admissions to the plaintiffs/respondents and that the withdrawal of the said admissions is proper in law and in equity.”
The 10th – 16th plaintiffs felt unhappy with some findings of credit pass in Literature in English within two years of judgment.”
In respect of the appeal filed by the appellants, the issues distilled on behalf of the 1st – 16th plaintiffs/respondents read as follows:-
“(i) Whether the learned trial was right in holding that the defendants/appellants were negligent in granting provisional admissions to the plaintiffs/respondents.
(ii) Whether the learned trial Judge rightly held that the withdrawal of the plaintiffs/respondents’ admissions was inequitable.
(iii) Whether the judgment is against the weight of evidence.”
As the only issue formulated in the cross-appeal appears to have bearing with issue 2 of the 4th defendant/appellant as reproduced above, let me reproduce same here for a clear focus. It reads as follows:-
“Whether from the provisions of the 1998/1999 JAMB Brochure, a student applying for law studies in the University of Ibadan must have a credit pass in Literature in English.”
The 4th defendant/appellant’s issue 1 appears to have the same tune with the only sustained issue of the 1st – 3rd defendants/appellants/respondents. I shall however, rely on issue 1 couched on behalf of the 4th defendant/appellant.
Learned counsel for the 4th defendant/appellant, with all seriousness, submitted that the argument that the appellant should have checked to see if the respondents had the required compulsory subjects before offering them provisional admissions cannot hold water in view of the fact that the letters of admission issued to the plaintiffs/respondents were made contingent to certain factors. He felt that the action of the appellant in granting provisional admission to the plaintiffs/respondents in the circumstance cannot be said to be negligent since it had stated in clear terms the conditions upon which such provisional admission was offered. He cited Onagoruwa v. JAMB (2001) 10 NWLR (Pt.722) 742.
Learned counsel further submitted that the reliance placed on the evidence of Mr. Johnson Ojo, Dean of Law. University of Ibadan to find that the 4th defendant/appellant was negligent cannot hold water as such evidence was at best, hearsay. He referred to Aguda’s ‘Law and Practice relating to Evidence in Nigeria’, First Edition, 1980 at page 80, para. 5-03. He also cited Kala v. Potiskum (1998) 3 NWLR (Pt. 540) l; Egbaran v. Akpotor (1997) 7 NWLR (Pt. 514) 559: Owonyin v. Omotosho (1961) 2 SCNLR 57.
Learned counsel finally submitted that the hearsay evidence of Mr. Johnson Ojo which was wrongly admitted by the lower court precipitated the decision of the trial Judge which would have been different if the said hearsay evidence had not been admitted. He urged us to so hold and expunge the said inadmissible evidence and reverse the said judgment.
With respect to issue 1, learned counsel for the 1st – 16th plaintiffs/respondents felt that the judgment of the lower court was based on negligence and the doctrine of estoppel and not on hearsay evidence. He referred to section 77 of the Evidence Act on what sort of evidence constitutes hearsay. He cited Jolayemi v. Olaoye (2004) 12 NWLR (Pt. 887) 322; (2004) All FWLR (Pt. 217) 584 at 604.
Learned counsel maintained that the substratum of the judgment is that the appellant was negligent in offering provisional admission to the respondents without satisfying itself that they had the certificates required by JAMB. He cited Aliyu v. Aturu (1999) 7 NWLR (Pt. 612) 536 at 553; Enyika v. Shell B.P Petr. Dev. Co. (1997) 10 NWLR (Pt. 526) 638 at 650.
Learned counsel further referred to section 151 of the Evidence Act. He felt that the appellant was caught by the doctrine of estoppel. He cited Ehidimhen v. Musa (2000) 8 NWLR (Pt. 669) 540 at 556: Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127 at 143 -144. He urged that the decision of the learned trial Judge be upheld.
After a careful perusal of the letters of admission offered to each of the 1st – 16th plaintiffs/respondents, it is extant therein that each letter is headed ‘Offer of Provisional Admission … ‘ paragraph I therein stipulates that:-
“I. 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 fulfilment of the condition spelt out below.”
And paragraph 2 of the said letter of ‘Offer of Provisional Admission’ states thus:
“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 this offer of admission has been based. The Board reserves the right to withdraw your admission if it is discovered that you have been involved in any form of examination/admission irregularity even after registration by the University.”
It is my considered opinion that the action of the 4th defendant/appellant in granting provisional admission to each of the respondents in the prevailing circumstance cannot be said to be negligent since it stated in clear terms the conditions upon which such provisional admission was offered.
The Black’s Law Dictionary defines the word ‘Provisional” as temporary. Preliminary, tentative’. The same word is defined in Webster Comprehensive Dictionary (International Edition) as ‘provided for a present service or temporary necessity: adopted tentatively’.
It naturally flows from the above that the effect of a letter of provisional admission issued by JAMB to candidates who have taken U.M.E. like the 1st – 16th plaintiffs/respondents is that if JAMB discovers at any time that a candidate does not possess any of the required qualifications, the Board has the undoubted power to require such a candidate to withdraw from the University. Refer to Onagorywa v. JAMB (supra). I fully endorse the opinion expressed therein by this court.
I cannot surmise, even by a stretch of imagination, how the appellant can be said to be negligent in offering provisional admissions to the plaintiffs/respondents. The respondents were offered provisional admissions. The word ‘provisional” points to the direction that same is temporary, preliminary, tentative. It was ‘provided for a present service or of temporary necessity; adopted tentatively’. The admission process was not conclusive and would not be conclusive until certain other steps or conditions are taken or fulfilled by the respondents.
Even then the particulars of negligence must be pleaded. Same was not pleaded. See Aku Nmecha T.S. (Nig.) Ltd. v. Atoloye (1993) 6 NWLR (Pt. 298) 233.
It occurs to me that the learned trial Judge, with due respect to him, did not give due consideration to the meaning and legal import of the phrase – ‘provisional admission’. If he had given adequate and due consideration to same, he would not have found the appellant to be negligent in issuing letters of provisional admission to the 1st – 16th plaintiffs/respondents. The finding of the learned trial Judge precipitated a miscarriage of justice. It ought to be; and is hereby struck down.
It must be further pointed out that the learned trial Judge relied on the oral evidence of Mr. Johnson Ojo, the Dean of Law to find that the 4th defendant/appellant was negligent. The learned trial Judge at pages 172-173 of the transcript record of appeal said thus:
” … The Dean further told the court that some students came to him and told him that the form sold to them contained brochure for 1997/98 which did not make Literature in English compulsory. From the above statement of the Dean it became clear that in 1998/99 session when the Governing Council of the University made Literature in English compulsory and communicated to JAMB office they were negligent to have given 1997/98 brochure to some students which (sic) never saw that Literature in English was compulsory and gave some students 1998/99 brochure which made Literature compulsory. This negligent behaviour of the 4th defendant may have caused the plaintiffs that embarrassment they now face with the result that those plaintiffs who bought forms with 1997/98 brochure could not know that Literature was compulsory as against other students who bought the forms with 1998/99 brochure. In the circumstances, the 4th defendant Board was negligent and accountable for the mystery of the students.”
What then is hearsay evidence? The apex court in Kala v. Potiskum (supra) held that evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by evidence not the truth of the statement but the fact that it was said.
The learned trial Judge said Mr. Johnson Ojo, the Dean of Law, told the court that some students (he did not refer to the plaintiffs/respondents) came to him and told him that the form sold to them contained brochure’ for 1997/98 which did not make Literature in English compulsory. This is utter crass hearsay. The unnamed students who reported to the Dean should have been called to testify and be cross-examined. All speculations by the trial Judge based on the hearsay evidence and findings in respect of negligence against the 4th defendant/appellant were made to no avail: The hearsay evidence of the Dean of Law ought not to be relied upon by the trial Judge in coming to the conclusion that the 4th defendant/appellant was negligent. Where inadmissible evidence is admitted at the trial: it must be expunged on appeal. It is immaterial whether such evidence was objected to or not. See Owonyin v. omotosho (supra). The hearsay evidence of Mr. Johnson Ojo, the Dean of Law, banked upon by the learned trial Judge is hereby expunged.
Undoubtedly, the hearsay evidence admitted by the lower court precipitated the rather erroneous decision of the trial court. It would have been different if same had not been admitted and acted upon wrongly. The finding in respect of negligence cannot stand.
The contention by the learned counsel for the 1st – 16th plaintiffs/respondents that the appellant was caught by the doctrine of estoppel cannot be sustained. This is because the ‘provisional admission’ offered to the respondents was with a string of conditions attached to same. It was for them to satisfy those conditions before they can call to their assistance the doctrine of estoppel. The appellant gave ‘provisional admission’ to the respondents and made them to know that they had to satisfy cel1ain conditions. See Nasaralai v. Arab Bank (Nig.) Ltd. (1986) 4 NWLR (Pt. 36) 409 at 446; Nsirim v. Nsirim (2002) 3 NWLR (Pt. 755) 697 at 714.
I accordingly resolve issue I in favour of the 4th defendant/appellant and against the 1st – 16th plaintiffs/respondents.
On issue 2, learned counsel submitted that there is nothing inequitable in the withdrawal of the admission letters offered to the plaintiffs/respondents since they did not meet the basic requirements in confirmation of their admissions. They did not have credit pass in Literature in English. He felt that equity cannot assist them. He cited Omoniyi v. U.B.A. Ltd. (2001) 5 NWLR (Pt. 706) 240.
Learned counsel felt that the learned trial Judge by ordering that the respondents should remedy the defect in their admission by sitting for G.C.E. examination to obtain credit pass in Literature in English granted a relief not sought by the respondents. He felt same was wrong He cited Lawal v. Adeniji (1997) 3 NWLR (Pt. 494) 457: Hodibia v. N.C.C. Ltd (1997) 7 NWLR (Pt. 512) 714; Onyewulunne v. Ndulue (1997) 7 NWLR (Pt. 512) 250.
Learned counsel for the 1st – 16th plaintiffs/respondents felt that the relief granted by the lower court was incidental and correct.
He cited Ilona v. Idakwo (2003) FWLR (Pt. 171) SC 1715 at 1739, (2003) 11 NWLR (Pt. 830) 53: Okewumi v. Sodunke (2002) FWLR (pt. 79) 613 at 634-635. He submitted that incidental or consequential relief need not be specifically claimed before it can be awarded. He urged us to hold that the reliefs granted were in order.
I am of the considered view that there is nothing inequitable in the withdrawal of the admission letters offered to the plaintiffs/respondents. They did not have credit pass in Literature in English.
Equity cannot come to their aid. He who wants equity must also do equity. I am unable to surmise how the appellant has been unfair to them in the whole gamut and circumstance of this matter. See Omoniyiu v. U.B.A. Ltd. (supra).
The relief granted to the plaintiffs/respondents to sit for GCE examination and have credit pass in Literature in English within two years was one made without a claim for same. It was a vital relief over which parties should have been heard. I am unable to trace where the trial Judge was addressed on same. A court should not award that which was not claimed. The court is not a charitable organisation. And the learned trial Judge is not a Father Christmas.
See Egonu v. Egonu (1978) 11-12 SC 111, 113: Babatunde Ajayi v. Texaco (Nig.) Ltd. (1987) 3 NWLR (Pt. 62) 577: Etim Ekpenyong v. inyang Nyong (1975) 2 SC 71 at 80.
The relief granted relates to the realm of ‘admission policy’ which should be left to the whims and caprice of the 4th defendant/appellant and University authorities. The order that the plaintiffs/respondents should sit for GCE or WAEC examination and obtain credit pass in Literature in English or else withdraw from the University appears to be at large. Such should not be. It is not an incidental order in any respect. It must be struck down. And larder accordingly.
I have no hesitation in resolving issue 2 in favour of the appellant and against the 1st – 16th respondents.
Now to the issue in respect of the cross-appeal: Learned trial Judge found that credit pass in Literature in English is a compulsory subject for law studies in University of Ibadan for 1998/99 session.
Learned counsel for plaintiffs/cross-appellants felt that same was wrong as under waiver consideration it is stated that Ibadan accepts science subjects’. He fell that if the words of an act or document are clear, the court must follows them even though they lead to absurdity.
He cited Chime v. Ude (1996) 7 NWLR (Pt. 461) 379 at 437; Buraimoh v. Karimu (1999) 9 NWLR (Pt. 618) 310 at 323; Braithwaite v. G.D.M. (1998) 7 NWLR (Pt. 557) 307; Summonu Oladokun (1996) 8 NWLR (Pt. 467) 387 at 492: Tukur v. Govt. of Gongola State (1988) 1 NWLR (Pt. 68) 39 at 51-52. He urged us to hold that credit pass in Literature in English is not compulsory for admission into Faculty of Law of the University of Ibadan.
Learned counsel for the 4th defendant/cross-respondent submitted that the learned trial Judge was right in his conclusion that credit pass in Literature in English is a compulsory subject for law studies in University of Ibadan for 1998/99 session.
Learned counsel referred to pages 46 & 47 of the record of appeal. Column 3 headed U.M.E. applicable to the cross-appellants stipulates ‘Five ‘O’ Level passes at credit level to include English language and Literature in English’.
I seriously feel that a community or global reading of the above provision and that pinpointed by the cross-respondents leaves no one in any doubt that English language and Literature in English at credit level are required mandatorily as part of the qualifications of an intending applicant for the U.M.E.
I cannot see how the waiver consideration that Ibadan accepts science subjects’ can radically affect the requirement of ‘Five ‘O’ Level subjects including English Language and Literature in English’. I agree that to give the meaning ascribed by the cross-appellants to the provisions of 1998/99 JAMB brochure will lead to absurdity. English language is the working tool for a would-be lawyer. I cannot imagine how the admission authority would exclude same by sheer implication: as a vital requirement. Provision of a document must be given a plain meaning. Ambiguity must be avoided. See Sunmonu v. Oladokun (supra).
I have no hesitation in resolving the issue against the cross-appellants and in favour of the 4th defendant/cross-respondent.
On the whole, the main appeal of the 4th defendant/appellant is hereby allowed. The cross-appeal lacks merit and is accordingly dismissed. The judgment of the lower court is hereby set aside. The
1st – 16th plaintiffs/respondents’ claim in the court below is hereby dismissed. In its place, it is hereby pronounced without any equivocation that the 4th defendant/appellant was not negligent in offering ‘Provisional Admissions’ to the plaintiffs/respondents and the withdrawal of the admissions is proper in law as well as in equity.
In the prevailing circumstance of this appeal, it is ordered that each party should bear its own costs.
Other Citations: (2004)LCN/1599(CA)