University of Ilorin & Another. v Idowu Oluwadare (S.C. 165/2003) [2006] NGSC 35 (13 July 2006)

**In The Supreme Court of Nigeria** **On Friday, the 14th day of July 2006** **S.C. 165/2003** **Between** **University Of Ilorin ....... Appellants** **The Vice Chancellor, University of Ilorin** **And** **Idowu Oluwadare ....... Respondent** **Judgement of the Court** Delivered by Sylvester Umaru Onu, J.S.C. 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: - (a) 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 proceedings). 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 misconduct 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 steps 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 Grounds 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 four 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). 2\. Whether two issues of merit formulated from one ground of appeal should be rejected outrightly as invalid on mere technical ground rather than being carefully considered on its merit (Ground one of the original ground of Appeal). 3\. 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). 4\. Whether statutory provision which provides procedures 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 this appeal are simply as follows: “(i) Considering the facts and circumstances of this case, whether the respondent ought to institute this action by way of Writ of Summons instead of an application for enforcement of his fundamental rights and whether by so doing the trial Federal 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 provision of Section 17 of the University of Ilorin Act Cap. 455, Laws of the Federation of Nigeria 1990. (Grounds 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 a 40-paragraph affidavit sworn to by the Respondent. The Respondent filed a 15-paragraph counter-affidavit deposed to 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 border upon the expulsion and for restoration of his studentship with the 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 2 sub-rules 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 by 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 envisaged by the _Fundamental Rights Enforcement Procedure Rules_. In the case of __Tukur__ __v._ _Government of Taraba 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 right or securing the enforcement thereof should, from the applicant’s claim as presented, be the principal or fundamental claim as presented, and not accessory claim. See __The Federal Minister of Internal Affairs & Ors. v. Shugaba Abdulrahaman 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 partly 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 liable to be struck out for being incompetent and prematurely embarked upon. I am therefore of the firm 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 giving rise to this appeal be and is hereby accordingly struck out with ~~N~~ 10, 000 costs to the Appellants. ### **Judgment delivered by** Umaru Atu Kalgo, J.S.C. I have had the advantage of reading in advance the judgment of my learned brother Onu, J.S.C. just delivered. In my respectful view he had painstakingly dealt with the issues, which were in controversy in the appeal and I agree with his conclusions thereon. I adopt them as mine and find that there is no merit in the appeal. I dismiss it with costs as assessed in the said judgment. ##### Judgment delivered by Mahmud Mohammed, J.S.C. I have had the privilege of reading in draft the judgment of my learned brother, Onu J.S.C., which he has just delivered in this appeal. I agree with the judgment. I would however add some observations of my own. The respondent, who was expelled from the appellants’ University on the allegation of examination misconduct, went before the Ilorin Federal High Court to enforce his Fundamental Rights under the Fundamental Rights (Enforcement Procedure) Rules 1979 and Section 46 (1) of the 1999 Constitution seeking the following reliefs. “1. A Declaration that the expulsion of the Applicant from the 1st Respondent University pursuant to an allegation of criminal offence of examination malpractice without his guilt having been established before a Court of law or constitutional tribunal constitutes a flagrant abuse of the plaintiff's right to fair hearing and by reason thereof the order of expulsion is unconstitutional, null and void. 2\. AN ORDER of mandatory injunction on the Respondents, their agents, servants, privies, or any person(s) whosoever connected with the running of the 1st Defendant to forthwith allow the Applicant to continue with his academic career in the 1st Respondent University without let or hindrance especially in the areas of registration, receiving lectures and writing examinations and so on and so forth. 3\. AN ORDER of perpetual injunction restraining the Respondents, their agents, servants, privies or any person(s) whosoever connected with the running of the 1st Respondent from taking any step(s) prejudicial to the smooth pursuit of the Applicant’s academic career in the 1st Respondent University through suspension or whatever other disciplinary measure save and except the guilt of the Applicant had been conclusively established through the appropriate judicial forum.” These reliefs sought by the Respondent as applicant before the trial Federal High Court centred principally on his expulsion from the University and the urge for his readmission into the institution. The law in relation to the claim for the Enforcement of Fundamental Right is trite. It is to the effect that enforcement of Fundamental Right or securing the enforcement thereof must form the basis of the applicant’s claim as presented to the Court and not merely as an accessory claim. In other words where the main or principal claim is not the Enforcement or securing the Enforcement of Fundamental Rights, the jurisdiction of the Court cannot be properly exercised because it will then be incompetent. See _Tukur_ _v. Government of Taraba State (1997) 6 NWLR (pt 510) 549 at 574-575._ In the present case, the respondent’s application not having been brought in accordance with the requirements of Section 46 (1) of the 1999 Constitution and the Fundamental Rights (Enforcement Procedure) Rules, it ought not to have been heard and granted by the trial Court not to talk of it being affirmed by the Court below. In the result I entirely agree with the conclusion reached by my learned brother Onu, J.S.C., in the determination of this appeal and the orders made in his judgment including the order on costs. Judgment delivered by Ikechi Francis Ogbuagu, J.S.C. I had the advantage of reading in draft, the lead judgment of my learned brother, Onu, J.S.C., just delivered by him. I agree with his reasoning and conclusion that the appeal has merit. However, by way of emphasis, I will make my own contribution. The reliefs sought by the Respondent and the grounds on which they are sought appear at pages 2 and 3 of the Records, (i.e. Declaration, Order for Mandatory Injunction and Order of Perpetual Injunction). In my respectful view, I am in no doubt at all, that a careful reading/perusal of pages 33 to 38, 40 to 45 of the Records by me, clearly shows and I am convinced that the case of the Respondent, to say the least, is hopeless. As a matter of fact, on his own admission in paragraphs 27 and 28 of his affidavit in support of his application to the High Court at page 38 of the Records and paragraph 13 of the Counter-affidavit at page 34, it is beyond doubt that the said application of the Respondent, for the enforcement of his alleged fundamental right, was not only premature, it was made in very bad faith and was meant to overreach. In paragraph 27, it is averred as follows: “That subsequent to the foregoing paragraph, I received a letter dated 6th April, 1999 expelling me from the University with immediate effect and equally directed that _in case I am dissatisfied with the decision, I am free to appeal to the University Council_ through the Dean of my Faculty and the Vice-Chancellor within 24 days of the letter. The said letter of expulsion is attached herewith and marked as EXHIBIT 4.” (The underlining mine) While in paragraph 28, it is averred as follows: “That sequel to the contents of Exhibit 4 _supra,_ I _appealed to the appropriate quarters through my letter dated 28 th April 1999._ Copy of the said letter is attached herewith and marked as _Exhibit 5”_ (The underlining mine) In paragraph 13 of the counter-affidavit sworn to by one Akin Sesan on behalf of the Appellant, it is averred uncontroverted in any further affidavit, as follows: “That in answer to paragraph 13 of the Applicant’s (sic) Affidavit, (i.e. the affidavit in support of the application), I know as a fact that it is not true that the Respondent did nothing to consider the Applicant’s (sic) appeal _since it is the Council of the 1 st Respondent which is vested with powers to consider the Applicant_ (sic) _appeal and that the Applicant did not give the Respondents’ Council sufficient time to consider his appeal before he rushed to Court”._ (The underlining mine) Of course, having rushed to the Court, the matter became _sub-judice_ and there is nothing the Council or the Appellants could have done, until the matter is determined by the Court. As a matter of fact, if the Respondent had realized this simple fact, that he remained an undergraduate of the 1st Respondent, until the Council had determined the matter or his fate, he should have not rushed to the Court as he did. But he did not give the said Council, the opportunity or chance, to consider his appeal as clearly averred in the said counter-affidavit hereinabove reproduced. Now, section 17 (2) of the University of Ilorin Act, Cap. 455 Laws of the Federation, 1990 (which is the enabling Law or Act of the 1st Appellant), provides as follows: “(2) Where a direction is given under subsection (1) or (d) of this section in respect of any student, the student _may,_ within the prescribed period and in the prescribed manner, _appeal from the direction to the_ Council; and where such an appeal is brought, _the Council_ shall, after causing such inquiry to be made in the matter as the council considers just, _either confirm_ or _set aside_ the direction or _modify it_ in such manner _as the Council thinks fit”._ (The underlining mine) I agree with the submission of the Appellants in paragraph 7.03 of the Brief that, “......... rather than awaiting the outcome of his appeal to the University (sic) Council the Respondent herein “jumped the gun” by reporting {sic) (meaning resort) to Court action thus _drawing a domestic issue to the arena of Court litigation_ a practice which is not only embarrassing but frowned at by the Supreme Court in the case of _Miss Abimbola Akintemi & Ors. V Professor C.A. Onwumechili & Ors. (1985) 1 NWLR Part 68 at Page 85”. _ (The Underlining Mine) They reproduced in their said Brief, the observation of Obaseki, J.S.C., which relevant portions, I will reproduce hereunder. But firstly, in the above case, in the lead judgment of Irikefe, J.S.C. at page 81, His Lordship, reproduced Section 16 (3) of the University of Ife law spelling out, the functions of the said University and thereafter stated _inter alia_ , as follows: “............ it would be seen from the above that success in examinations may not be all that is required for earning a Degree from this institution. On the whole, _it seems to be incontestable_ that the issues with which this appeal is concerned belong to the domestic domain of the University as enshrined in the Statute establishing it and are as such, not justiciable in a Court of law. See _Thorne vs. University of London (1966) 2 Q.B. 237; R. v. Dunsheath Ex Parte Meredith - (1951) 1 K.B. 127; University of Lagos & 2 Ors. vs. Dr. Dada - 1 University of Ife Law Reports Part III (1971) 344”_. (The underlining mine) Obaseki, J.S.C., on his part, stated at page 85, inter alia, as follows: “From an examination of the above provisions of the University of Ife Law and Statute, (i.e. Section 17), the Senate and the Council of the University have each a _say in the academic fortune or misfortune of any student. Governing Authority of the University and the Senate is the Supreme academic authority of the University_ and since no decision has been taken by these authorities on the recommendations by _the faculty board_ on the result of each of the applicants in their Part IV Law examination, the application for an order of mandamus is misconceived and cannot be granted.” (The underlining mine) At page 86, the learned Jurist continued inter alia, thus, “........... _The Courts cannot and will not usurp the_ _functions of the Senate, Council_ and the Visitor of the University, in _the selection of their fit and proper candidates for passing and for the award of certificates, degrees and diplomas._ If however, in the process of performing their functions under the law, the civil rights and obligations of any of the students or candidates is breached, denied or abridged it will grant remedies and reliefs for the protection of those rights and obligations. In the instant appeal, it has not been established that there was such a breach or denial or abridgement. The appeal therefore fails.” (The underlining mine) His Lordship, also had this say, “............... it can only mean that _until the remedies_ _available in the domestic forum are exhausted, any resort to Court action would be premature........... .”_ (The underlining mine) So was the remedy or remedies available at the domestic forum of the Appellant, not exhausted, before the Respondent, initiated/commenced his said application/action in Court. Kazeem, J.S.C., at page 86, stated inter alia, as follows: “............ I have nothing more to add than to observe _that it is the prerogative of institutions of higher learning such as the University of Ife to grant and award their degrees to all their students_ if and _when they deserve them._ It is therefore inconceivable to think that any aggrieved student can invoke the machinery of Court of justice _to compel such an institution to grant and award him its degree by obtaining an order of mandamus”._ (The underlining mine) Coker J.S.C., in his contribution/concurring judgment, referred to the visitorial powers of a Visitor under Section 6(2) of the University of Ife Edict 1970 No 17 of 1970 reproduced at pages 86 - 87 and referred to the case of _Dunsheath_ _Ex Parte Meredith_ (supra) and also reported in (1950) 2 All E.R. 741 - per Lord Goddard, C.J. and the case of _St. John's College, Cambridge v. Toddington (97 E.R. - 245)_ \- per Lord Mansfield (1 Burr. 200) which His Lordship, reproduced. His Lordship, also referred to the case of _Thorne v. University of London_ (supra) which is also reported in (1966) 2 All E.R. 388 and stated that the Court of Appeal in England -per Diplock, L.J. had observed, that the High Court, “does not act as a Court of Appeal from University examiners”. He also referred to the functions and powers of the Senate and that of the Vice Chancellor in Sections 16(2) and 31 (1) respectively, of the said Act. The learned Jurist at page 90, stated _inter alia_ , thus: “It is clear that the Laws of the University fully empowers the Senate to take the decision to suspend the publication of the result of each of the three Appellants, in the interest of promoting the objectives of the University as provided by Section 4 of the 1970 Edict”. His Lordship also referred to Section 29 relating to the powers of maintaining of discipline and order in the University and stated that the provisions of the Edict are adequate and reasonable, _for any aggrieved student to appeal against the decision of the Senate_ or the Vice Chancellor _in any disciplinary action taken against her. That none of the Appellants_ had availed herself of these pr