Mr Adebayo Afolabi Victor V. Federal University Of Technology, Akure & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment)

The plaintiff who hereinafter shall also be referred to as the appellant, commenced an action against the defendants who hereinafter shall be referred to as the respondents, at the Federal High Court, Akure, Ondo State vide a Writ of Summons issued 4th day of August, 2011 and a Statement of Claim also filed on the same 4th of August, 2011. Therein the plaintiff made the following claims against the defendants:

1. A DECLARATION that the handling, processing and subsequent computation of the Plaintiff’s examination papers in courses: MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MEE 311, MEE 302, EEE 352 and MEE 312 by the defendants was most inappropriate, negligent and does not reflect his actual grades/performance in the said examinations.
2. A DECLARATION that the refusal of the Plaintiff’s request by the defendants to either investigate how he came about the low scores or, remark his examination scripts altogether in courses MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MEE 311, MEE 302, EEE 352 and MEE 312 amount to defendants abandoning their duty of care to the Plaintiff.
3. A DECLARATION that the deliberate handling of the Plaintiff’s examination scripts in MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MEE 311, MEE 302, EEE 352 and MEE 312 with view to parade or portray him as academically incompetent is very unfair and inconsiderate looking at his strong academic records.
4. AN ORDER of this Honourable Court compelling the defendants to make known to the Plaintiff efforts made to investigate his complaint and why it took so long (eight months) December, 2010 – July, 2011 to publish their findings.
5. AN ORDER of this Honourable Court either directing the defendants to remark the Plaintiffs examination scripts in courses MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MEE N311, MEE 302, EEE 352 and MEE 312 or to appoint neutral, unbiased and independent scholars from an institution as this Court may direct to remark the Plaintiff’s examination
6. Scripts in courses MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MEE 311, MEE 302, EEE 352 and MEE 312 and rectify his result accordingly.
7. AN ORDER of this Honourable Court setting aside the defendants letter dated 12th July, 2011 headed: SENATE DECISION EXTRACT: REQUEST FOR RECTIFICATION OF RESULT: ADEBAYO V. A. (MEE/05/5405).
8. AN ORDER directing the defendants to issue a final result and transcripts reflecting the actual performance of the Plaintiff in the said examination.
9. General damages as this Honourable Court will deem just and appropriate in the peculiar circumstances of this case.
10. Special damages in the sum of N1,650,000.00 at the rate of N150,000 per month from October, 2010 – August, 2011, as lost earnings for the period the plaintiff would have been gainfully employed if he had been given an appropriate academic grade and continuing until judgment is delivered.
11. Cost of this law suit.
12. AN ORDER directing the defendants to investigate persons behind the attack, intimidation and harassment of the Plaintiff at various times and places within the school premises from October, 2010 up to date.
13. AN ORDER directing the defendants to explain why the plaintiff’s department stopped pasting results from 2008 – 2010 (300 Level to 500 Level) and why he was not allowed to know his final result before convocation.

As shown at page 18 of the record of appeal, the learned counsel for the respondents filed a conditional appearance on 11th September, 2011 and dated 19th August, 2011. The said conditional appearance was signed by O.J. JEJELOLA & Co. The learned counsel followed up by filing a Notice of Preliminary Objection brought pursuant to Order 29 Rules 1, 2 and 4 of the Federal High Court (Civil Procedure Rules), 2009 wherein the said respondent as applicant prayed that the suit be struck out on the ground that it is/was statute barred same having been filed more than two years after the accrual of the cause of action. The Motion on Notice is dated and filed 2nd September, 2011.

In reaction to the Notice of Preliminary Objection, the learned counsel for the plaintiff/appellant one S.L. AKANMODE filed a Motion on Notice dated 5th December, 2011 and filed 6th December, 2011. In the said motion which was brought pursuant to Order 10 Rules 21 and 23 of the Federal High Court (Civil Procedure Rules), 2000 counsel prayed the trial court for a directive order against the defendants (respondents herein) to issue to the plaintiff (appellant herein) the degree certificate of SECOND CLASS UPPER DIVISION (reflecting his actual performance in the affected courses) as well as an order entering summary judgment for him in specified sums as damages. See page 27 of the record of appeal. S. L. AKANMODE of counsel also filed what was captioned: “PLAINTIFF’S DEFENSE TO DEFENDANT’S COUNTER-CLAIMS IN MOTION ON NOTICE” as well as written address on the motion. See pages 33 – 73 of the record of appeal.

After the suit was struck out and relisted with the leave of the trial court, the Motion on Notice of Preliminary Objection was moved by the learned counsel for the defendants/respondents and the plaintiff/appellant replied to same. In a considered ruling delivered 16th January, 2013, the learned trial Judge Justice I.M. Sani saw merit in the Notice of Preliminary Objection consequent upon which he dismissed the plaintiff’s suit for being statute barred. The plaintiff/appellant feeling aggrieved with the ruling has appealed to this court. To this end he filed a Notice of Appeal dated and filed 11th February, 2013 containing five grounds of appeal.

The parties in compliance to the rules of this court duly filed and exchanged their respective briefs of argument. The Appellant’s Brief of Argument dated 16th April, 2013 and filed 17th April, 2013 was settled by CHIEDOZIE MADUBUEGWU, Esq. On the other part, the Respondents’ Brief of Argument which included a Notice of Preliminary Objection made pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011, dated 14th May, 2013 and filed 16th May, 2013 was settled by CHIEF O.J. JEJELOLA (JP). The Appellant’s Reply Brief dated 3rd June, 2013 and filed 4th June, 2013 was settled by BARR. OLADAISI BUSAYO.

At the hearing of the appeal on 8th October, 2013, the appellant represented himself having sought for and obtained the leave of this court on 6th May, 2013, to prosecute his appeal as a person without means in line with Order 13 Rules 1 and 3 of the Court of Appeal Rules, 2011. Consequently he identified the Appellant’s Brief of Argument dated 16th April, 2013 and filed 8th May, 2013. He equally identified the Appellant’s Reply Brief dated 3rd June, 2013 and filed 4th June, 2013. Appellant adopted and relied on both briefs as his argument in this appeal. He urged the court to grant the appeal and set aside the judgment of the Lower Court. G.O. OMOEDU, Esq. identified, adopted and relied on the Respondents’ Brief of Argument as their argument in this appeal. Counsel drew the attention of the court to their Notice of Preliminary Objection as contained at paragraph 3.01 line 8 where they had “2011” and sought the leave of court for it to be amended to read “2013” and paragraph 3.03 line 5 where the year “2012” is to read “2013”. He urged the court to dismiss the appeal and affirm the judgment of the lower Court.

Having raised a preliminary objection to the hearing of this appeal pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011, it is necessary to resolve it first before going into the merit or demerit of the appeal. The grounds of objection as enumerated by the learned counsel for the respondents are that:

i. The decision being appealed against was a ruling delivered in an interlocutory application for a preliminary objection as a result of which the leave of the Lower Court was required which was not obtained by the appellant in the instant case.

ii. The Notice of Appeal filed in this case is incompetent because it was filed after fourteen days out of time without any leave of court.

iii. The grounds of appeal contained in grounds 1, 3, 4 and 5 of the Notice of Appeal are grounds of mixed law and facts which requires the leave of the court but which was not obtained by the appellant.

iv. The appellant in this case failed to seek the leave of court below or that of the appellate court before filling this appeal as required in respect of a person permitted by the Lower Court to sue in forma pauperis.

v. The Appellant’s Brief was filed out of time without leave and therefore incompetent.

vi. The Appellant’s Brief filed in this case was not prepared by a Legal Practitioner as required by the Rules of this Court thereby rendering same incompetent.