Nnamdi Azikiwe University & Ors V. Casmir Nwafor (1998)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

In the Federal High Court of Nigeria, in Enugu Judicial Division sitting in Enugu, the applicant applied ex parte for and obtained leave to enforce his fundamental rights against the appellants on 30th day or January, 1995. Consequent upon the order granting respondent leave to enforce his fundamental rights, the respondent filed a motion on notice, statement or grounds of his application supported by an affidavit to which were attached Exhibits A. B, C, D and E. Thereafter the fourth appellant deposed to, on behalf of all the appellants, a counter-affidavit in opposition to the respondent’s affidavit. The learned trial Judge. Kassim, J., took argument of the respective counsel and on 3rd August 1995 in a reserved and considered judgment acceded to the respondent’s reliefs. The suspension order clamped on respondent, suspending him from classes, was set aside and he was reinstated to pursue his academic work in the Faculty of Law of the Nnamdi Azikiwe University.

The respondents to the application in the trial court were thereby aggrieved. And thoroughly dissatisfied with the judgment, they appealed to this court on 7 grounds of appeal.

Notwithstanding the respondent’s returning to the University, he was not wholly happy with the judgment. He therefore sought and obtained extension of time within which to appeal against the decision of the trial court that the respondent failed to prove that 5th-8th appellants sat and served on the examination committee that tried the respondent on allegation of examination malpractices. A proper finding would have enabled the court to grant the respondent’s application

on the ground that the committee was not constituted in such a manner as to ensure its impartiality. The appellant after obtaining the extension of time to appeal filed a notice of appeal containing a ground of appeal carrying five particulars.

In compliance with the practice and procedure of this court, briefs of argument were filed and exchanged in respect of the appeal. The appellants, in their brief or argument, framed three issues for determination in this appeal.

The appellants’ three formulations read as follows –

“(a) Whether the learned trial Judge misconceived the case put before him by the respondent.

(b) Whether the learned trial Judge made out a case different from that presented by the parties.

(c) Whether the learned trial Judge correctly applied the principle that examination malpractice being a crime should be tried by a court of law or tribunal.”

On the other hand, the respondent formulated four issues from the appellants’ seven grounds of appeal. The issues identified as calling for determination in the respondent’s brief read as follows-

“(i) Whether the learned trial Judge misconceived the case put before him by the respondent.

(ii) Whether there is sufficient evidence before the learned trial Judge to justify his findings and conclusions.

(iii) Whether the learned trial Judge made out a case different from that presented by the parties.