The Fed. Co-op. College, Ibadan & Ors. V. Miss Adeniran Adeyiola Christiana (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The appeal emerged from a Ruling of the High Court of Justice of Oyo State sitting at Ibadan (the court below). The proceedings behind the appeal were anchored on the Fundamental Rights (Enforcement Procedure) Rules, 1979. The court below found for the respondents that the appellants had infringed her fundamental right to fair hearing. It also found that the appellants had no jurisdiction to discipline the respondent for alleged examination malpractice.

Flowing from the said double – barrel findings, the court below declared the decision of the appellants to withhold the Ordinary National Diploma certificate of the respondent null and void and of no effect. It concluded its Ruling by directing the appellants to release the Ordinary National Diploma certificate (OND) of the respondent to her forthwith.

The relevant facts of the dispute between the appellants and the respondent may be stated in a nutshell as follows. The respondent was at all material times a student of the 1st appellant. In February, 2007, the respondent sat for English (GNS) course 201 examination. There were allegations of examination malpractice at the examination. Five of the students including the respondent were accused of master – minding the examination malpractice. Specifically, it was alleged that the respondent and the other four students were involved in the leakage of English (GNS 201) examination paper. A panel of the Academic Board of the 1st appellant was set to investigate the allegation. The respondent denied before the panel that she was involved in the alleged examination malpractice. Some of the other students, however, gave statements at the panel indicting the respondent.

A second panel of the Academic Board was constituted. It heard the respondent. The second panel was not satisfied with her defence. It recommended the withholding of the respondent’s Ordinary National Diploma Certificate (OND) for one semester as punishment for the examination malpractice. The appellants accepted the recommendation and gave effect to it. The court below faulted the appellants’ handling of the matter on grounds of denial of fair hearing and for want of jurisdiction.

Aggrieved by the Ruling, the appellants filed a joint notice of appeal which was subsequently amended and filed on 28.11,08, but deemed properly filed on 14.1.09, conveying four grounds of appeal.

In a brief of argument filed on 28.11.08, but deemed properly filed on 14.1.09, the appellants identified two issues for determination on the appeal without tying them to the grounds of appeal to wit –

“1. Whether the Applicant’s suit as brought and constituted is competent to give jurisdiction to the lower court.

2. Whether given the facts and circumstances of this case, Applicant’s right to fair hearing was breached and whether Appellant can punish the Applicant for act of misconduct.”

The crux of the argument on the first issue for determination was that the principal reliefs sought by the respondent had no bearing on the enforcement of fundamental right under chapter iv of the constitution of the Federal Republic of Nigeria 1999 as amended (1999 Constitution), as the question of alleged denial of fair hearing was ancillary to the principal reliefs and the action as constituted should have been taken or instituted by writ of summons and, having failed to so do the court below was deprived of the jurisdiction to entertain the action rendering its decision thereon a nullity citing in support the cases of University of Ilorin v. Adeniran (2007) 6 NWLR (Pt.1031) 498 at 529, Afribank (Nig.) Plc. v. Bonik Ind. Ltd. (2006) 5 NWLR (Pt.973) 3OO at 314, Madukolu v. Nkemdilim (1952) 2 SCNLR 341, Owena Bank (Nig) Plc. v. Adeojo (2003) 17 NWLR (Pt.848) 174 at 191 and 195, Oloruntoba – Oju v. Dopamu (2008) 4 M.J.S.C. 1 at 5, Tukur v. Governor of Gongola State Vol.3 Appellate court Landmark cases 274 at305, W.A.E,C. v. Adeyanju (2008) 9 NWLR (Pt.1092) 270 at 295-296, W.A.E.C. v. Akinkunmi (1998) 4 SC 1 at 18-20.

The gist of the arguments on the second issue for determination hinged on the premise that the to appellant, an academic institution, had the powers to discipline an erring student for examination malpractice in the same way a master may discipline a servant for misconduct as held in the case of Olanrewaju v. Afribank (Nig) Plc. (2001) 13 NWLR (Pt.731) 691 at 714-715 and; by paragraphs 9-12 and 16 of the respondent’s affidavit in support of her application at the court below she admitted been accorded fair hearing by the appellants and the said admission should be taken as an admission against interest following the cases of Olatunji v. Adisa (1995) 2 NWLR (Pt.376) 167 at 181, Anyambunsi v. Ugwunze (1995) 6 NWLR (Pt.401) 225 at 201(?); that paragraph 22 of the respondent’s affidavit upon which the court below relied to hold that the respondent was denied fair hearing could not have established the denial of fair hearing having regard to the other paragraphs of the respondent’s affidavit (supra) that she appeared before the disciplinary panel where she denied the allegation of examination malpractice brought against her vide the cases of Fagbenro v. Orogun (1993) 3 NWLR (Pt.284) 662 at 571, Dangote(?) v. C.S.C, Plateau (2001) FWLR (Pt.50) 1639 at 1673-1674; that the respondent did not exhibit the proceedings of the disciplinary panel to her affidavit for the court below to have the benefit of knowing the witnesses that were not made available to her by the panel to cross-examine therefore the said complaint is at large and the appeal should be allowed.

The respondent’s brief filed on 5.2.09, ear-marked two issues for determination thus –

“1) Whether the panel set up by the appellants to investigate the issue of examination malpractice is bound to comply with the principle of natural justice.

2) Whether the Appellants can punish the Respondent by withholding her certificate for a semester given the facts and circumstances of this case.”

The sum total of the respondent’s arguments on the first issue anchored on the appellants’ refusal to allow the respondent to cross-examine a fellow student that gave damaging evidence against her which the disciplinary panel utilised against the respondent when the said evidence was hearsay lacking probative value and was contrary to the principle of fair hearing or fair play and amended to the appellants acting on suspicion to nail the respondent to the accusation of examination malpractice contrary to the decisions in the cases of Head of the Federal Military Government v. Military Governor of Mid-west Ex parte Obiyan (1973) 12 SC 23, Udofe and Ors. v. Aquisisua (1973) SC 119, Orugbo v. Una and Ors. (2002) 9-11 SCNJ 12 at 22, Kasa v. State (1994) 2 NWLR (Pt.325) 152-153, Olutayo v. F.U.T. Minna and Ors (2007) 13 NWLR (Pt.1051) 274 at 295, Ahamba v. State (1992) 5 NWLR (Pt.242) 250.