Patrick D. Magit V. University Of Agriculture, Makurdi & Ors (2005)
LAWGLOBAL HUB Lead Judgment Report
OGBUAGU, J.S.C.
The case leading to this appeal, commenced at the Benue State High Court sitting at Makurdi under the Fundamental Human Rights (Enforcement Procedure) Rules, 1979 wherein, the appellant sought leave to apply for a judicial review, to wit: Orders of Certiorari, Mandamus and Prohibition against the respondents. The case was canvassed on affidavit evidence and at the end, the learned trial Judge, – Ahura, J. in his ruling dated 16th June, 2000, dismissed the application. The appellant’s appeal to the Court of Appeal (herein called “the court below”), was dismissed hence the instant appeal.
The facts of the case briefly stated, are that the appellant in the 1993/1994 academic session, was admitted by the 1st respondent, to do an M.Sc. degree in Agricultural Economics. As part of the M.Sc. programme, the appellant was required to write/submit an acceptable thesis. A topic for the thesis was chosen and duly approved. The degree awarding authority is the Senate of the University – i.e. the 2nd respondent.
The appellant was given two (2) Supervisors, namely, Dr. G.B. Ayoola as the Major Supervisor and Dr. J. C. Umeh an Associate Professor with the 1st respondent, as the internal examiner. The external examiner of the appellant, was Prof J.O. Olukosi of the Ahmadu Bello University, Zaria. According to the Masters Degree Programme, the appellant’s thesis, must be attested by an External as well as an internal examiner. Prof. M.C. Njike, was the Dean of Post Graduate School in the 1st respondent’s employment.
The appellant, submitted his thesis to the Board of Examiners comprising the above-named gentlemen/personalities who invited the appellant to defend his thesis orally, which he did. Thereafter, the Panel/Board, recommended in exh. 3 at page 14 of the records, inter alia, thus:
“(b) That the thesis be accepted and the degree awarded subject to corrections to be certified as may be determined by the panel.”
As a result of the report submitted to it on the appellant’s corrected thesis, the 2nd respondent, rejected the said thesis and advised the appellant to withdraw from the University with immediate effect and asked him to hand-over certain items/property of the University in his possession to the Acting Dean of Students before he leaves the Campus. In its letter of “withdrawal” to the appellant – exh. 6, the 2nd respondent, gave its reasons for its said decision.
The appellant at the High Court, sought the following reliefs:
“(i) An order quashing the decision of the respondents contained in a letter Ref No. UAM/ACA/COM/04/V dated 18/2/2000, on the grounds that the said decision was arrived at in breach of the rules of natural justice and the fundamental right of the applicant to fair hearing as guaranteed by the 1999 constitution of the Federal Republic of Nigeria.
(ii) An order quashing the decision of the respondents in the said letter on the grounds that the decision ultra vires-(sic.) the powers of the Senate of the University of Agriculture, Makurdi, and or that the said decision of the University of Agriculture, Makurdi, and or that the said decision was taken in breach of the University of Agriculture Decree No. 48 of 1992.
(iii) An order compelling the respondents herein to produce before this Honourable Court for the purpose of their being quashed, every decision taken, every report of any panel that may have been set up and the results thereof, every recommendations made to the respondents by any person or group of persons in relation to the thesis of the applicant contrary to the report of the examination panel headed by Prof J. C. Olukosi and the accepted corrections made thereto, and accepted by applicant’s major supervisor and internal examiner.
(iv) An order of mandamus against the respondents herein, compelling them to issue to the applicant has (sic) M.Sc. (Agric. Econs.) Degree Certificate.
(v) Any other legal or equitable remedies that may be available to the applicant in the circumstances of this case.
- Grounds upon which reliefs are sought
(i) Before the thesis of the applicant was rejected by the Senate of the 1st respondent and applicant advised to withdraw with immediate effect from the University on the grounds of “employing unacademic means” and “academic dishonesty” in arriving at the results, applicant was not given the opportunity to defend the allegations, nor was his attention drawn to this allegations at any time before the decision.
(ii) By s. 19 of the University of Agriculture Decree No. 48 of 1992, Senate of the University lacked the jurisdiction to discipline the applicant even if applicant “employed unacademic means” and “academic dishonesty” in arriving at the results” though not conceding, since the power of discipline of students resides in the Vice-chancellor of the University.
(iii) Since the applicant is a Master Degree Programme student of the University and he completed his course works in 1996, defended the thesis in 1997 and submitted bound copies of the thesis in January, 1998, after the corrections spotlighted by a panel of external examiner were corrected and accepted by applicant’s major supervisor and internal examiner acting in the course of their employment, the respondents are estopped from turning around to reject the thesis and asking applicant to withdraw from the University.
(iv) Since the applicant is a Master Degree programme student with the respondents and he completed his course works in 1996, defended his thesis in 1997 and submitted bound copies of the thesis in January 1998 after doing the corrections spotlighted by the panel of external examiner duly constituted by the University and the corrections subsequently done and accepted by Dr. G. B. Ayoola (Major supervisor) and Dr. J. C. Umeh, internal examiner and in the course of their employment, the respondents cannot reject the entire works of the applicant and then ask applicant to withdraw from the University since the only grudge of the respondents is the thesis and a fortiori the only thing the respondents can lawfully do is to ask the applicant to re-write the aspect of the thesis considered not well written.
(i) Applicant has met all requirements for the award of M.Sc. (Agric. Econs.) and his results declared to him by the panel of examiners only constituted by the University and the University is yet to issue him with his certificate in M.Sc. Econs).
(ii) Applicant is being made to suffer from the dust of the encounter of personality clash and not that the thesis is not well written and or that the corrections done by the applicant were radically and fundamentally different from what the applicant was asked to correct by the panel of external examiner” ..
The appellant has filed some lengthy grounds of appeal and particulars in his notice and grounds of appeal containing seven (7) grounds of appeal. In his brief of argument, two issues have been identified/formulated, namely,
“(i) Whether the rules of natural Justice and the Constitutional right of fair hearing guaranteed the appellant were infringed upon by the respondents, having regard to the facts and the circumstances of this case, and, the allegations in exhibits ‘C’, ‘D’ and 6. (grounds 1, 2, 3, and 4 of the notice and grounds of appeal).
(ii) Whether the learned trial Judge and learned Justices of the Court of Appeal were right to have approved of the procedures adopted by the respondents herein leading to the issuance of exhibit 6, having regard to the provisions of Decree No. 48 of 1992, and the fact that exhibit ‘D’ was not even signed by anybody and did not contain the name of the authors and if not, whether appellant is entitled to the reliefs on the statement in support of application. (grounds 5 and 6 of the notice and grounds of appeal)”.
The respondents, before the formulation of their issues for determination, have raised a preliminary objection to the appeal, thus:
“1 That this appeal having been filed before time is therefore incompetent
The appellant filed his appeal to the Supreme Court on the 10th day of December 2001, the very day the Court of Appeal, Jos Division delivered its judgment. Section 27(2)(a) of the Supreme Court Act 1990 fixes three months, within which a person can file his appeal to the court.
A limited time does not include the day of the happening of the event, but commences at the beginning of the day next following that day. We submit with respect that by filling (sic) the appeal on the 10th day of December, 2001 the appellant was not acting within but before the limited time permitted by the Supreme Court Act 1990.
Within means “in the limits”, “inside” and not before or after the limited time. We urge the court to strike out the appeal for the reason that it was prematurely filed.
- In the unlikely event of our not succeeding in the preliminary objection we now present our brief of argument”.
The following issues which are described in their brief as “material”, have been formulated for determination, namely,
“(1) Whether the senate of the University acted maliciously or capriciously in refusing to award an M.Sc. degree to the appellant and whether a recommendatory panel below the Senate has the power to award a degree.
(2) Whether the learned trial Judge and the learned Justices of the Court of Appeal were right in their approval of the procedure adopted by the respondents leading to the issuance of exhibit “6”.
(3) Whether or not the issues of judicial review by way of certiorari, mandamus or prohibition was available to the appellant in the circumstances of the case; especially having regard to the fact that the appellant at no time earned an M.Sc. degree of the University”.
Before going into the merits of this appeal, I will deal first, with the said preliminary objection. I have no hesitation in dismissing the said objection because, it is, in my respectful view of no consequence. It is not uncommon that counsel who perceive/anticipate, that they are going to lose a matter or appeal, before coming to court on the date of the ruling or judgment, arm themselves, with a prepared notice of appeal. Sometimes, the omnibus ground, is the only ground with the statement that “additional grounds will/may be filed on the receipt of the records of proceedings and/or the copy of the ruling or judgment”. As soon as the ruling or judgment is delivered, they walk into the registry and file the process/notice and perhaps, ensure that service of the notice or process is served/effected on the opposite side, on the same date. Such appeals are never rendered void because of their having been filed on the same date the ruling or judgment was delivered.
But assuming that it is a non-compliance of the said rules, I will treat it as a mere irregularity that will not affect the merits of the appeal. In any case, the party complaining as in the instant appeal, has not shown, what prejudice or miscarriage of justice, such filing, has occasioned him.
However, on a more serious note, the method of raising a preliminary objection, apart from giving the appellant three clear days notice before the date of hearing, is now firmly settled. It may be in the respondent’s brief, by a formal separate notice or written objection or both. But there is the need for the respondent or his counsel, with the leave of the court, to move the objection before the hearing of the substantive appeal. See the recent case of Tiza & anor v. Begha (2005) 15 NWLR (Pt. 949) 616; (2005) 5 SCNJ 168 (a) 178 – per Musdapher, JSC citing the cases of Chief Nsirim v. Nsirim (1990) 5 SCNJ 174; (1990) 3 NWLR (Pt. 138) 285; Okolo v. Union Bank of Nig. Ltd. (1998) 2 NWLR (Pt.539) 618;Arewa ile Plc. v. Abdullahi & anor. (1998) 6 NWLR (Pt. 554) 508; Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248 at 257,258. See also Fawehinmi v. NBA (No.1) (1989) 2 NWLR (Pt.105) 494 at 515, 516; (1989) 4 SCNJ 1 and Salami v. Mohammed (2000) 9 NWLR (Pt.673) 469; (2000) 6 SCNJ 281.
It need be stressed and this is also settled, that the object/purpose of filing the notice, is to safeguard against embarrassing an appellant and taking him by surprise. See Chief Agbaka & 3 ors. v. Chief Amadi & anor. (1998) 11 NWLR (Pt. 572) 16 at 25; (1998) 7 SCNJ 367 at) 370 and recently, Auto Import Export v. Adebayo & 2 ors. (2002) 18 NWLR (Pt. 799) 554; (2002) 2 SCNJ 124 at 139; also cited and relied on by the respondents in their additional case law without inserting at what page of the NWLR report.
It must always be borne in mind that the failure to bring the notice in accordance with Order 2 Rule 9 of the Supreme Court Rules does not render it ineffective. See Chief Agbaka v. Chief Amadi & anor. (supra) at p.375 of the SCNJ; Alhaji Maigoro v. Chief Garba (1999) 10 NWLR (Pt.624) 555 (1999) 7 SCNJ 270 and Ajide v. Kelanin (1985) 3 NWLR (Pt. 12) 248 (supra) which is also reported in (1985) 2 NSCC 1298 at 1306.
Since the learned counsel for the respondent, never sought for leave to move the said objection neither did he breathe/say a word about it before or during the oral hearing of the appeal, the same, is deemed by me as having been abandoned.
Before proceeding with the said issues of the parties, I will pause here to observe that the respondents in formulating their issues for determination, did not distil, relate or derive any of the issues from any of the grounds of appeal of the appellant. This court has stated and restated the firmly established principle that every issue for determination, must be formulated from, or based upon and related to or distilled from a competent ground of appeal.
In other words, an issue for determination is incompetent, when it does not arise from any of the grounds of appeal. Thus, the issues must encompass the grounds of appeal, otherwise, any argument in support of an issue, not adequately backed by a ground or grounds of appeal, will be discountenanced and struck out. See at least the recent cases of Adah v. Adah (2001) 2 SCNJ, 90 at 97 (2001) 5 NWLR (Pt. 705) 1 citing several other cases therein; Alhaji Kokoro-Owo & 6 ors. v. Lagos State Government & 4ors. (2001) 5 SCNJ 203; (2001) 11 NWLR (Pt. 723) 237; Alhaji Adeleke v. Alhaja Raji & Anor. (2002) 6 SCNJ 341 at 348 (2002) 13NWLR (Pt. 783) 142 referring to several other cases; Mobil Producing Nig. Unlimited & Anor. v. Chief Monokpo & Anor (2003) 12 SCNJ 206 at 245; (2003) 18 NWLR (Pt. 852) 346; Adelusola & 4 ors. v. Akinde & 3 ors (2004) 12 NWLR (Pt. 887) 295; (2004) 5 SCNJ 235 at 246 and Stirling Civil Engineering (Nig.) Ltd. v. Ambassador Yahaya (2005) 4 SCNJ 133 at 147; (2005) 19NWLR (Pt. 935) 181. See also earlier cases of Alhaji Kala v. Alhaji Potiskum & anor. (1998) 3 NWLR (Pt.540) 1; (1998) 1 SCNJ 143; Godwin v The Christ Apostolic Church (1998) 14 NWLR (Pt.584) 162; (1998) 12 SCNJ 213 cited in Calabar East Cooperative Thrift & Credit Society Ltd. & 30rs. v Etim E. Ikot (1999) 14NWLR (Pt.638) 225; (1999) 12 SCNJ 321 at 340 – per Achike, JSC, (of Blessed memory) and many others.
However, although the general rule is that issue for determination must relate to the grounds of appeal filed, otherwise, the issue is incompetent, but since it is also firmly settled that issues should be formulated in general particular terms and tailored to the real issues in controversy in such a way that they must of necessity be limited by circumscribed and fall within the scope of the grounds of appeal and the judgment appealed against See Chief Ikpuku & 5 ors. v. Chief Ikpuku & 3 ors. (1991) 5 NWLR (Pt.193) 571 at 588 and Chief Agbaisi & 3 ors. v. Ebikorefe & 6 ors. (1997) 4 NWLR (Pt.502) 630 at 650; (1997) 4 SCNJ 147 at 157 citing several other cases therein, This “omission” perhaps, “inadvertence”, can be “tolerated” and dealt with by me in this judgment because, the said issue of the respondents are germane or reasonably relevant, in my respectful view, to the real issues in controversy in the instant appeal.
This “tolerance, I plead with counsel who appear in this court or prepare briefs, should not be regarded as an excuse or licence for not complying with the well established principle of formulating issues which must be related or distilled from grounds of appeal.
Issues (i) one and (ii) two of the appellant and issue 2 of the respondents.
The summary of the appellant’s complaint under the two issues is firstly, that because, he the appellant, did not appear before the 2nd respondent when it deliberated on the matter and took its said decision as evidenced in Exh. 6, amount/amounted to a denial of fair hearing of the appellant. Generally, about the procedures adopted by the respondents, I note that these same issues were raised and canvassed also in the court below by the appellant or his same learned counsel. The Court of Appeal – per Mukhtar, JCA (as he/she then was), at pages 107 and 108 of the records, dealt with the said issues, inter alia, thus:
” … Professor M. Njike, Dean of the Post Graduate School in his counter-affidavit made the following depositions –
(40) That I further aver that when a Student’s thesis reaches the senate of the University, it is like placing the answer papers of such a student before his examiners and his presence is not required and this is a world wide practice and procedure”.
(41) That I have read paragraph 21 of the affidavit in support of the application and I aver that if opportunity to defend was necessary, that opportunity was given when the applicant was called upon to correct his original thesis and submit same to the Attestation Panel.”
The learned Jurist then stated inter alia, as follows:
” … First, the appellant was told to make some corrects (sic) (meaning corrections) which he did, and at the end of the day, the Dean of the Post Graduate School who supervises Post Graduate word found the corrections done not only below standard as per exh ‘C’, but also made certain recommendations to the Senate that was not satisfied with the thesis and rejected it I believe that should have been the end of the story for it is only when the students thesis meets the standard required that the University can award the MSC. Degree.
Besides, the appellant was in my opinion given ample opportunity to correct whatever errors were contained in the thesis.
(the italics mine)
I cannot fault this reasoning which I humbly endorse and agree with Now exh. 6, addressed to the appellant, reads as follows:
“Withdrawal
Senate at its 122nd (Continuation) meeting held on Tuesday 1st February 2000 considered the report on your corrected M.Sc. thesis. Senate acted that you were earlier requested by the Oral Examination Panel to effect suggested corrections to improve the thesis. Paramount among these was that you should not other functional forms in addition to the Cobb-Douglas.
Senate exhaustively discussed the report and observed with concern that the re-run function in the corrected thesis had produced a result which is radically different from the original one. After careful analysis of the circumstances which might have brought about the radical changes in the results, Senate was convinced that you employed unacademic means in arriving at the results. Senate viewed this as academic dishonesty and unacceptable.
(the italics mine)
Consequently, Senate decided that
“(i) Your M.Sc Thesis be rejected.
(ii) You be advised to withdraw from the University with immediate effect.
You should hand-over your Student’s Identity Card, Library Card and books and other University property in your possession to the Ag. Dean of Students before you leave the campus.
P.A. Uzer
For. Ag. Registrar”.
It is noted by me and as was done by the court below at pages 105 and 106 of the records, that before Exh. 6 was written, the said Prof. Njike, had written Exh. ‘C’ titled “Report on The Corrected M.S.C. Thesis. The Economic Analysis of Irish potato production in Plateau State, by Magit. P.D. (M.Sc./282/23)”.
It should be noted that Prof. Njike, was at the relevant time, the Acting Dean of the Post Graduate School of the University. He was not a “busy body”. It was his said report, that the Senate in exh. 6 stated that it considered. I note that the averments in his counter affidavit, were not controverted in any further-affidavit, by the appellant. The Senate, has the duty and responsibility, to award or refuse to award a degree or degrees, certificates and such other qualification, as it considers fit, to any student or students of/in the University.
Let me pause here and deal, even briefly, with fair hearing.
Fair hearing, and what it is all about, has been “flogged”, stated and restated or defined/interpreted in a number of decided authorities by this court see Mohammed v. Kano Native Authority (1968) ANLR 411, NLR 424 at 426, 428-428; (1968) NLR 411, 413; The A.-G., Bendel State & 2 ors. v Aideyan (1989) 4 NWLR (Pt. 118) 646 at 675; (1989) 9 SCNJ 80; Kim v The State (1992) 4 NWLR (Pt. 233) 17 at 37; (1992) 4 SCNJ 81; Donatus Ndu v. The State (1990) 7 NWLR (Pt.164) 550 at 578; (1990) 12 SCNJ 50 and Ekiyor & anor. v. Chief Bomor (1997) 9 NWLR (Pt.519) 1 at 12, 14 -15; (1997) 7 SCNJ 179 and many others.
Surely, the great pronouncements in the above cases, with respect, have no relevance to a University system and procedure as in the instant appeal, whereby section 7 of the University Decree/Act of 1992, vests, in the Senate, to the exclusion of any other body or organ, of the University, the responsibility of “the award of degrees and such other qualifications, as may be prescribed in connection with examinations held”.
Indeed in the case of T.M. Orugbo & anor. v. Buhari Una & 10 Ors. (2002) 16 NWLR (Pt. 792) 175 at 211-212 (2002) 9-10 S.C. 61 at 85-86; (2002) 9 SCNJ 12, the following appear, inter alia,
“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial court – But it is not so and it can not be so…the courts must not give a burden to the provision which it can not carry or shoulder”.
“Fair Hearing is not a cut and dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case”.
This great pronouncement, is also applicable in this case on appeal.
Surely and as rightly submitted by the learned counsel for the respondents, a bad or dishonest and fraudulent thesis, is ipso facto, a failed thesis. The Senate, as the Supreme and ultimate academic authority in the University, has and in the instant case leading to this appeal, the duty to ascertain the quality of the thesis placed before it. Since an appeal is in the nature of a re-hearing and this court, can draw its own inferences from the records,
“I hold as follows:
(a) that the decision of the 2nd respondent – the Senate, was an administrative/academic act intended, to ensure the good and stable administration of the University and this it had/has the powers to do or perform by the Act establishing it. See section 7 of the Act.
(b) that the appellant, did not appeal to the University Council against the said decision of the Senate. Therefore, the application to the trial court, was premature.
(c) that in considering the appellant’s corrected thesis by the 2nd respondent, his presence was no longer necessary. Dishonest and/or un-academic practice on his part, was discovered and so, his thesis was rejected by the 2nd respondent. This means that the appellant, has failed his Master’s Degree Programme/Examination. Being an administrative or academic act, an order of certiorari, with respect, cannot lie. A writ of mandamus can also not avail the appellant because, he did not pass his Master’s Degree and none was ever awarded to him by the 1st respondent or any other respondent. So also, a writ of prohibition, cannot also lie because, the said decision of the 2nd respondent, has already been taken or completed and therefore, there is nothing to be stopped or prohibited by the court.
(d) that the functions of the Post Graduate School are merely recommendatory. A recommendation is not mandatory. The Senate has the last say, except where the matter is further referred to the University’s Council.
(e) that in so far as the award of a degree or certificate to a student is concerned, in the discretion to award or refuse to award, the courts have no jurisdiction in the matter. The courts, have no business to flirt into the arena of a University deciding whether a thesis has met the standard of which it has set, has been met.
Any attempt by any court, including this court, to dabble or encroach into the purely administrative and domestic affairs of a University including that of the 1st respondent, that may lead to undue interference, nay, the weakening inadvertently so to speak, of the powers and authority conferred on the Universities by statute as that conferred on the 1st respondent, will not be justifiable or justified.
Learned counsel for the appellant at page 8 of the brief, has referred to the cases of Adeniyi v. Governing Council of Yaba College of Technology (1993) 6 NWLR (Pt.300) 426, (1993) 7 SCNJ (Pt.11) 304 at 322 – 333 and Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550 at 580-582 which were also cited and relied on by him, at the lower court. In dealing with these cases, the learned Justice, stated inter alia, thus;
” … Be that as it may the Senate being the only competent body that has the power to award any degree and can refuse to award a degree to a student whose academic work is not worthy of the conferment of any degree … ,
I am of the opinion that the cases of (i.e. the above cases and that of Federal Civil Service Commission & 2 ors. v. Laoye (1989) 2NWLR (Pt. 106) 652 etc), relied upon by the learned counsel for the appellant in his brief of argument are of no material assistance to this discussion.
I think the learned trial Judge was correct when he held as follows in his judgment:
“I agree with Professor M. C. Njike that if the opportunity to hear him was necessary, that opportunity was given when the applicant was called upon to correct his original thesis and submit same to the Attestation Panel. When this thesis reached the Senate, it was like placing his answer papers (the corrected thesis) before his examiners and his presence was not required. I cannot see in the procedure followed by the respondents a breach of the rules of fair hearing”.
(the italics mine)
I am in complete agreement not only with the holding of the learned trial judge hereinabove, but I endorse in their entirety, the pronouncement of the court below reproduced by me hereinabove.
I will add that the said cases cited by the learned counsel for the appellant relate especially, to situations where crime is alleged.
As have been observed in some cases by this court, the case of Garba v. University of Maiduguri (supra), has either been used both as a sword and a shield by litigants – See per Pats Acholonu, JSC, in the case of Chief Ikwunze Esiaga v. University of Calabar & 2 ors. (2004) 4 SC. (Pt.11) 1 at 4; (2004) 4 SCNJ 13; (2004) 7 NWLR (Pt. 872) 366.
In the above case, Belgore, JSC, in his concurring contribution at page 17 of the S.C. report and page 31 of the SCNJ, and pages 389 – 390 of the NWLR had this to say, inter alia
” … If the act of the student amounts to crime, the normal report should be lodged with the police but this will not preclude the University exercising its power under its statute to punish misconduct by any student.
The case of Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550 has not precluded the University taking action against mis-conducting student within its campus”.
(the italics mine)
Kalgo, JSC, on his part stated inter alia, as follows at page 18-190 the S.C. report & page 33 of the SCNJ; and P 391 of the NWLR:
” … This was an administrative act intended to ensure good and stable administration of the institution and which he (meaning the Vice Chancellor) was empowered to do … Therefore, the question of fair hearing did not arise at all in the circumstances of this case and so neither section 33 of the 1979 Constitution nor the ratio decidendi in Garba v. University of Maiduguri case (supra) are applicable in the circumstances of this case”.
The decision in Garba v. University of Maiduguri (supra), in my respectful view, is that it should be taken as a prohibition of instituting disciplinary measures against civil servants when there has been a criminal charge or accusation, that other considerations might be involved. That once such criminal allegations are involved, care must be taken that the provisions of section 33(1) of the 1979 or section 36(1) of the 1999 Constitution, are adhered to. That where the person so accused accepts his misconduct in the acts complained of, no proof of the criminal charges against him would be required. That he as in such a case, has been confronted with the accusation and he had admitted it and could face discipline thereafter. Regrettably, learned counsel for some litigants, have stretched this case, with respect, to a point of absurdity.
Indeed, in the case of University of Calabar & 2 ors v. Esiaga (infra) the Court of Appeal, interpreted the holding of this court in Garba’s case (supra) at pages 741-742 inter alia, as follows:
“Whether or not a student is guilty of a crime is not an internal affair of the University but whether or not he should continue to retain his status or be suspended or dismissed is an internal affair of the University”
“That where a student has been adjudged by a court not guilty of the offence charged, the University acting by due process, can still satisfy itself of the commission of a misconduct which attracts severe disciplinary measures, such as suspension or dismissal …”
It need be stressed, that every case must be determined or decided, on its own peculiar facts and circumstances. The appellant was not accused of the committal of a criminal offence. What the 2nd respondent in exh. 6 gave as its reason, for its action or decision, is that the appellant “employed unacademic means in arriving at the results. Senate viewed this as academic dishonesty and unacceptable”.
Period! What is the criminal allegation or accusation leveled against the appellant by the 2nd respondent I or one may ask. I see or find none. The learned counsel for the appellant, with respect, dissipated a lot of energy and harped and harped on an alleged or purported accusation of crime against the appellant. It needs be emphasized and this is also settled, that repetition of an argument by any counsel, with respect, does not improve an earlier arid, weak or completely unacceptable argument, See Calabar East Co-operative Thrift & Credit Society Ltd & 3 ors. v. Etim E. Ikot (supra) at p. 339 of the SCNJ report and F.S.B. International Bank Ltd. v Imano Nig. Ltd. & anor. (2000) 7 SCNJ 65 at 74; (2000) 11 NWLR (Pt. 679) 620.
I will also, respectfully, share the views of Tobi, JCA, (as he then was) in his lead judgment in the case of University of Calabar & 2 ors. v. Esiaga (1997) 4 NWLR, (Pt. 502) 719 at 742 C.A. (cited and relied on by the learned counsel for the respondents also in their Additional Case Law and which came on appeal to this court and was also reproduced at page 10 of the S.C. report), where his Lordship, stated inter alia, as follows:
“In so far as the examinations are conducted according to the University rules and regulations and duly approved and ratified by the University Senate, the courts have no jurisdiction in the matter. A court of law which dabbles or flirts into the arena of University examinations, a most important and sensitive aspect of University function should remind itself that it has encroached into the bowels of University autonomy.
Such a court should congratulate itself of being a party to the destruction of the University and that will be bad not only for the University but also for the entire nation.
Let that day not come”.
The powers of the 1st respondent, are statutorily provided in the said Decree/Act establishing it.
Now, both learned counsel for the parties, in their respective brief, referred to the book – the “Law and University Administration in Nigeria by J. D. Ojo”. The appellant’s learned counsel relied on pages 131 – 133. I note that in the case of Miss Akintemi & 2 ors. v. Prof Onwumechili (1981) O.Y.S.H.C. 457 referred to by the learned counsel for the appellant, (he did not cite the report) the learned trial Chief Judge, dismissed the claims of the applicants for mandamus and declarations which fell for consideration, on the grounds that the issues/questions of setting, sitting and marking of examination papers and publishing the results of such examinations, were matters of domestic dispute which could be looked at by the visitor. The appeal to the Court of Appeal was dismissed – per Akanbi, JCA (as he then was). But Mr. Okutepa of counsel to the appellant has submitted that the issues in the instant case, had/have gone beyond this question. That while a University has the discretion to award or not to award a degree (not a degrees) or Certificate to those participating in its programme or curricular, it “cannot act maliciously, whimsically and capriciously, in refusing to award a degree to a student who fulfils its degree requirement”.
Learned counsel then referred to the case of Tamner v. Board of Trustees of University of Illinois 363 N-E 2d. 208 (111 ct. App. 1977) cited by J.D. Ojo in his said book afore-mentioned at pages 110 – 111 and also referred to by Chief Ogiri of counsel to the respondent in their brief. In the above-named case, a University student brought an action for an order of mandamus compelling the State University to issue him the degree of Doctor of Philosophy, or in the alternative, pay $100,000 damages for breach of an implied contract to issue the degree. On appeal, the Court of Appeal, held that although the University was under a discretionary and not a mandatory duty to issue degrees to those participating in its curricular, it cannot act maliciously and capriciously in refusing to award a degree to a student who fulfils its degree requirements.
Significantly and remarkably, Okutepa, Esq. has submitted that the above case and the cases of Akintemi v. Prof Onwumechili (supra) and The University of Ibadan v. Judith A. Asein (not Essien) also cited in J.D. Ojo’s said book, (the learned counsel did not state its reference, but it is the unreported Suit No. CA/I/163/84 of 22nd May, 1985), are inapplicable to this case because, according to him, the facts and circumstances are not the same as those in the instant case leading to this appeal. Surely, if a University has a discretion and not a mandatory duty to decide who it can/will award its degree and section 7 of the University Act, 1992 vests in the 2nd respondent, to the exclusion of any other body or the University, the sole responsibility for the award of degrees and such other qualifications as may be prescribed in connection with examinations held how, can/could it be said that it acted maliciously, capriciously or whimsically in its said decision contained in exh. 6 I or one may ask. I think not. On the said authority relied on by Mr. Okutepa, whether it is foreign or not and as the law is the law and it is universal, and even if it is foreign, I am persuaded by it and hold that this appeal lacks merit. It fails abysmally and it is accordingly dismissed.
It is now settled that where a counsel finds and knows that there are no chances of his/their appeal succeeding, he should honourably throw in the towel, so to speak, and think less of his fees and more of the fact, that he is also an officer/minister in the temple of justice. In other words,
“Where the chances of an appeal succeeding are extremely remote, it behoves counsel in the case to advise his client of the uselessness of pursuing such an appeal which patently lacks merit”.
See K. R. ile Allied Products Ltd. v. Henry Stephens Shipping Co. Ltd. 2 ors (1989) 1 NWLR (Pt. 95) 115 C.A. and Chief Titus Ojo v. Chief Bode Philips (1993) 5 NWLR (Pt. 296) 751 at 764 para C -D – per Kolawole, JCA (of blessed memory), who stated in the later case, inter alia, thus:
” …It is no credit to any counsel who takes a brief knowing fully well that there is not a slim chance of success to blindly prosecute the case. A case is never prosecuted just for the fees due, counsel must have confidence in the success of the case before obtaining the brief”.
There is the need therefore, for counsel, to have confidence, in the success of a case before accepting it.
I wish to state firmly here, that the submission of the learned counsel for the appellant that the appellant “has earned his degree and therefore, entitled to his certificate”, with respect, does not impress me. This is because, the appellant had/has not passed his M.Sc. Degree. Employing dishonest and un-academic methods/means, are weighty words that amount to gross misconduct which attract severe consequences like the one meted out to the appellant.
The acceptance of the thesis and the award of the degree, was subject to a certain condition. I hold therefore, that at no material time, did the 2nd respondent, award any M.Sc. degree to the appellant. Had or if the appellant had simply complied with the said recommendation in (b) of exh. 3, I believe that he should have “earned” or should have been awarded the said degree. It is rather unfortunate! But the appellant has only himself to blame for what he got in the end in exh.6.
My answer to issue one of each of the parties and issue 3 of the respondents, are in the negative, while my answer to issue No (ii) and 2 of the respective parties, is in the positive.
Furthermore, in respect of issue 3 of the respondents, the arguments in respect thereof, have been taken care of in the consideration by me, of the said two issues of the parties in this judgment. However, for the avoidance of any doubt, I agree with the submission of the learned counsel for the respondents, that the respondents did not exceed their powers (jurisdiction) since the Senate is competent to ask a dishonourable student such as the appellant, to withdraw from the University and to refuse awarding him the M.S.C. degree for the reasons that appear in the said exh. 6.
The cases of Wiseman v. Borneman (1971) A.C. 297 at 310-311 and L.P.D.C. (Legal Practitioners Disciplinary Committee) v. Chief Gani Fawehinmi (1985) 2 NWLR (Pt. 7) 300; (1985) 7 SC. (Pt.1) 178 are also cited and relied on by Chief Ogiri (who added Esqr to his name).
In concluding this judgment, I also note that there are concurrent judgments of the two lower courts. It is now firmly settled in a line of decided authorities, that this court, will not interfere with the concurrent findings of fact by the two lower courts unless they are not justified by the evidence and have occasioned a miscarriage of justice. See recently, the case of Daniel Holdings Ltd. v. Union Bank for Africa (2005) 13 NWLR (Pt. 943) 533; (2005) 7 SC (Pt.11) 18; (2005) All FWLR (Pt.277) 895 at 902 citing some other cases in this regard. The judgments of the two lower courts, in my humble view, are not perverse. Their decisions are clearly justified and supported by law and decided authorities of this court. The judgment of the court below affirming the judgment of the trial court, is hereby affirmed by me.
In the end result or final analysis, this appeal is clearly unmeritorious. It fails and it is accordingly dismissed. Although costs follow the events, no order as to costs. The parties are to bear their respective costs.
SC.416/2001