University Of Ilorin & Anor V. Idowu Oluwadare (2006)
LAWGLOBAL HUB Lead Judgment Report
S.U. ONU, JSC
This is an appeal against the judgment of the Court of Appeal (hereinafter in the rest of this judgment referred to as “the court below”) sitting at Ilorin, Kwara State delivered on 24th day of June, 2002, wherein the court below upheld the decision of Tsoho, J., of the Federal High Court, Ilorin delivered on 22nd day of November, 1999.
The claim of the respondent before the trial court was an application for enforcement of his Fundamental rights on the expulsion order placed on him by the appellants contending among other things”-
“(1) That his expulsion from the appellants’ University (the 2nd appellant being the Vice-Chancellor of the 1st) pursuant to an allegation of criminal offence of examination malpractice is unconstitutional, null and void.
(b) An order of mandatory injunction on the respondent/appellant or their privies, agents etc to forthwith allow appellant/respondent to continue with his academic career in the appellants’ institution without let or hindrance especially in the area of registration, receiving lectures and writing examination etc, and
(c) An order of perpetual injunction restraining the appellants, their agents, servants etc from taking any step(s) prejudicial to the smooth pursuit of the applicant’s/respondent’s Academic career in the appellant’s institution vide the suspension or other disciplinary measure save and except the guilt of the applicant/respondent has been conclusively established through the appropriate judicial forum
The applicant/respondent, a student of the appellant’s University during the Harmattan Semester Examination conducted by the appellants on 27th day of August, 1998, was caught while collecting a question paper meant for the examination during the examination itself in the examination hall from one Miss Sule Oluwatoyin Sandra, a fellow student of the appellant who was also sitting for the same examination. The officer who was invigilating the examination and who caught the respondent on the spot confronted the respondent and requested him to make a statement but the respondent refused (see Exhibit “A” attached to the counter-affidavit especially paragraphs 7, 8, 9, 10, 11, 12 and 13 thereto) sworn to by the respondent himself on 9/6/99 at page 36 of the record of proceeding.
On the strength of this examination misconduct, the respondent was invited to appear before the appellants’ Student Disciplinary Committee (SDC for short) to defend himself on allegation of examination misconduct (vide Exhibit “B” at page 40 of the Record of Proceedings. The respondent appeared before the said SDC and after a thorough investigation and interrogation of the respondent, the SDC found him (respondent) to have committed examination malpractice and therefore recommended the expulsion of the respondent from the appellant’s University and consequent upon which Exhibit “C” at page 41 of the Record of proceedings was issued to the respondent.
Pursuant to the law establishing the 1st appellant, to wit: Cap. 455 Laws of the Federation of Nigeria 1990 the respondent was to appeal to the University Governing Council against the decision of the SDC recommending the expulsion of the respondent from the 1st appellant. However, the respondent did not await the outcome of his appeal to the Governing Council of the 1st appellant before rushing to court to institute this action. See Page 11 of the Record of Proceedings for the letter dated 28/4/99.
At the hearing of the respondent’s application for the enforcement of his fundamental right, the respondent contended that the SDC lacked the power to deal with examination misconduct which is criminal in nature and that the respondent was not afforded adequate opportunity to defend himself. On the other hand, the appellants contended at the trial that an act of examination misconduct is a misconduct that can be dealt with by the appellants under the University of Ilorin Act, Cap. 455 Laws of the Federation 1990 and that the respondent was given a fair hearing while the step taken by the respondent in rushing to court, after he had appealed to the Governing Council, was indeed premature and constituted an abuse of judicial process and also runs counter to the relevant provisions of Unilorin Act, Cap.455 which allows appeal from the decision of the SDC.
On the appeal to the court below, that court refused to consider Ground 1 and 2 contained on the Notice of Appeal against the judgment of 22nd November, 1999 and Issue Nos. 3 and 4 in the appellants’ brief of argument on mere technical ground. The court below also upheld the decision of the trial Judge to the effect that the SDC of the appellants lacked the powers to deal with examination misconduct and that the respondent was not bound to first appeal on the matter to the University Council, hence the appeal to this court. Where the appellants have formulated for issues from three original grounds and one additional ground of appeal.
“1. Whether the action/suit of the respondent before the trial court is competent, and whether the trial court has jurisdiction to entertain same (additional Ground of Appeal).
- Whether two issues of merit formulated from one ground of appeal should be rejected out rightly as invalid on mere technical ground rather than being carefully consider on its merit (Ground one of the original Ground of Appeal).
- Whether the appellant possesses the power and authority under its enabling law (i.e. Unilorin Act, Cap. 455 1990, Laws of the Federation) to deal with any act of omission or commission of its students that is tantamount to misconduct. (Ground two of the Original Ground (sic) of Appeal).
- Whether the statutory provision which provides proceedings for internal resolution of issues are mere formalities and should not be adhered to before resorting to external adjudication. (Ground Three of the Original Grounds (sic) of Appeal).”
As identified by the respondent, the issues calling for determination in the appeal are simply as follows:
“(i) Considering the facts and circumstances of this case, whether the respondent ought to institute his action by way of Writ of Summons instead of an application for enforcement of his fundamental rights and whether by so doing the trial High Court acted without jurisdiction (Additional Ground of Appeal).
(ii) Whether the allegation of examination malpractice is a criminal offence not amenable to domestic jurisdiction of the appellants inspite of the provisions of Section 17 of the University of Ilorin Act Cap. 455, Laws of the Federation of Nigeria 1990, (Ground 2 & 3)
(iii) Whether the lower court is bound to follow issues formulated by the appellants in arriving at its decision (Ground 1).”
Upon a careful study of the two sets of issues submitted as arising by the appellants and the respondent alike, I take the view that the appellants’ issues and indeed, appellants’ issue 1 alone is enough to dispose of the query raised. That issue which falls within a narrow compass, queries whether the action/suit of the respondent before the trial court is competent, and whether the trial court had jurisdiction to entertain same.
The appellants’ contended under Issue 1 as follows:
That the trial lower court on 22nd July, 1999 granted leave to the plaintiff/respondent to enforce his fundamental human right to seek the reliefs contained on the motion on notice. The said motion on notice was supported by 40 paragraphs affidavit sworn to by the respondent. The respondent filed a 15 paragraph counter-affidavit deposed by one Akin Sesan, the deputy Registrar and Students Affairs Officer of the 1st appellant. After this court’s attention was drawn to this originating motion dated 21st day of July, 1999 but filed on 22nd day of July, 1999 at pages 17-29 of the record, the statement setting out the names and description of the applicant of the reliefs sought are contained on pages 19-20 of the Record.
The appellants next submitted and I fully agree with them that the reliefs sought by the applicant/respondent at the trial court borders upon the expulsion and for restoration of his studentship with 1st appellant.The 1st appellant then submitted and I agree with it that the reliefs are not competent as it is trite law that for a court of law to have jurisdiction to entertain a matter, such matter must be initiated by due process of law and any condition precedent to the court’s jurisdiction must be fulfilled vide Madukolu & Ors. v. Nkemdilim (1962) NSCC 374 at 379-380.
I therefore agree with the appellants’ submission that having regard to the reliefs sought on the originating motion and the statement in support, they have not been initiated by due process of law. Thus, when the learned trial Judge in his ruling of 22nd July, 1999 ruled:
“I am quite satisfied that the applicant has satisfied the requirements of the law, to wit: Order 1 Rule subrules, 1, 2, 3, and 4 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 to enable me exercise my power to grant him leave to apply to enforce his fundamental rights guaranteed under the 1999 Constitution. Leave is accordingly granted in terms of the motion.
The application shall be a motion on notice to be filed and served on the respondents….”
The respondent was thereby jumping the gun, as his case being a challenge to his expulsion as a student from the 1st appellant’s institution, is not one of those claims/reliefs envisage by the Fundamental Rights Enforcement Procedure Rules. In the case of Tukur v. Government of Gongola State (1997) 6 NWLR (Pt.510) 549 at 574-575, this Honourable Court held as follows:-
“When an application is brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979 a condition precedent to the exercise of the court’s jurisdiction is that the enforcement of fundamental rights or the security of the enforcement thereof should be the main claim and not an accessory claim. Enforcement of fundamental claim as presented, and not accessory claim. See The Federal Minister of Internal Affairs & Ors. v. Shugaba Abdulraman Darman (1982) 2 NCLR 915 in which the principal or main claim was a declaration that the order… was ultra vires and that the same constituted a violation of his fundamental rights to personal liberty, privacy and freedom to move freely throughout Nigeria…
However, where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the court cannot as has been pointed out above, be properly exercised as it will be incompetent by reason of the foregoing feature of the case.”
I also agree with the appellants that the defect in the procedure adopted by the respondent is fatal and that it affected the competence of the action and of course, the jurisdiction of the trial court because, the case cannot be said to have been initiated by due process of law. And what is more, the right to studentship not being among the rights guaranteed by the 1999 Constitution, the only appropriate method by which the respondent could have challenged his expulsion was for him to have commenced the action with a Writ of Summons under the applicable rules of court see Akintemi & Ors. v. Prof. C. A. Onwumechili & Ors. (1985) All NLR 94. See also the case of Egbuonu v. BRTC (1997) 12 NWLR (Pt.531) 29 at pages 41-42 where the court held:-
“In this appeal, the claims are partly for wrongful dismissal or termination of appointment and party for breach of fundamental right, but here, as in Tukur, the principal claim being wrongful termination of appointment which ought to have been commenced by a Writ of Summons, which was not, then all the claims, principal and subsidiary which flow directly from it, are incompetent and therefore ought to be struck out.”
Thus, when the court below held (per Amaizu, JCA), affirming the decision of the trial court, as follows:
“I have earlier stated in this judgment that the purported expulsion of the respondent is null and void because he was denied a fair hearing. In the words of Lord Denning in Macfoy v. U.A.C. Ltd (1961) 3 All ER 1169 at 1172-
“If an act is void, then it is in law a nullity. It is not bad, but incurably bad.”
In that case, if the respondent was bound to take the matter to the University Council, (which he was not bound to do), there was no valid decision which the respondent could have taken to the University Council.
It is for the foregoing reasons that I hold that this case is laible to be stuck out for being incompetent and prementurely embarked upon. I am therefore of the first view that the trial lower court lacked jurisdiction to entertain the same at the point in time it did.
In the result, I hold that the action given rise to this appeal be and is hereby accordingly struck out with N10,000.00 costs to the appellants.
SC.165/2003