LAGOS STATE UNIVERSITY, OJO V. NATIONAL UNIVERSITIES COMMISSION
(2010)LCN/4089(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of December, 2010
CA/A/219/M/08
RATIO
GROUND OF APPEAL: WHAT A GROUND OF APPEAL ENTAILS
A ground of appeal is the complaint of the Appellant against the judgment of the lower court. Such a complaint must be based on the live issue or issues in controversy in the suit. Issues so framed for determination of the appeal must arise from such ground. See IWUOHA VS NIPOST LTD (2003) 8 NWLR (PT.822) 308, UBA PLC VS OGUNSANYA (2003) 8 NWLR PT.821) 111. PER PAUL ADAMU GALINJE, J.C.A.
WHETHER WHERE A RESPONDENT HAS NOT FILED A CROSS APPEAL, HE CAN NOT FORMULATE ISSUES OUTSIDE THE GROUNDS OF APPEAL FILED BY THE APPELLANT
It is the law that where a Respondent has not filed a cross appeal, the issues for determination formulated by him must arise from the grounds of appeal filed by the Appellant. See PADAWA VS JATAU (2003) 5 NWLR (PT.813) 247 at 264 paragraph B-C, OGUNDARE V. OGUNLOWO (1997) 6 NWLR (PT.509) 360; ANIMASHAUN VS UNIVERTSTY COLLEGE HOSPITAL (1996) 10 NWLR (PT.476) 65; UAC (NIG) LTD VS GLOBAL TRANSPORT S.A. (1996) 5 NWLR (PT.448) 291. PER PAUL ADAMU GALINJE, J.C.A.
EFFECT OF THE FAILURE OF THE RESPONDENT TO FILE A RESPONDENT’S BRIEF
A Respondent who fails to file a Respondent’s brief is deemed to have conceded to the issues raised and argued in the Appellant’s brief. However the Appellant must succeed on the strength of his own case and not on the weakness of the Respondent’s case. It is therefore not automatic that once a Respondent fails to file his brief the Appellant succeeds in the appeal. See ECHERE VS EZIRIKE (2006) ALL FWLR (PT.323) 7597 at 1608 paragraph A-B; JOHN HOLT VENTURES LTD VS OPUTA (1996) 9 NWLR (PT.470) 101; ONYEJEKWE VS THE NIGERIA POLICE COUNCIL (1996) 7 NWLR (PT.463) 704; SOFOLAHAN Vs SOFOLAHAN (1999) 10 NWLR (PT.621) 86. PER PAUL ADAMU GALINJE, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF SECTIONS 19, 20, 21 AND 22 OF THE EDUCATION/NATIONAL MINIMUM STANDARDS AND ESTABLISHMENT OF INSTITUTIONS ACT 2004 AS IT RELATES TO POWERS OF THE NATIONAL UNION COMMISSION TO CLOSE UNIVERSITIES ESTABLISHED UNDER THE ACT
Section 19 of the Act deals with conditions for ownership or proprietorship of certain institutions. It does not provide for power to close down those institutions. Section 20 of the same Act provides for persons who may establish institutions of higher learning, while Section 21 provides for procedure for establishing institutions of higher learning. The Section of the Act that is relevant to this appeal, is Section 22 which deals with the power to close down erring institutions. Subsection 1 of this Section reads as follows:- “Any institution established otherwise than in compliance with Sections 19, 20, or 21 of this Act may be liable to closure by the appropriate authority but before closing down any such institution, the appropriate authority shall afford the proprietor of the institution an opportunity to make representations for consideration by the appropriate authority not later than sixty days after receipt of notice by the proprietor from the authority of the intention to close down the institution: Provided that the powers conferred under this subsection shall not be exercised by the appropriate authority in respect of any institution belonging to any government in the Federation without the prior approval of the President’s (underlining is mine) The words used in this Section of the Act are very clear and do not admit of any ambiguity. The Section says “Any institution established otherwise than in compliance with Sections 19, 20, and 21 of Education Act….” Clearly the Section is referring to those institutions established in a different manner from those ones established under Sections 19, 20 and 21 of the Act. There cannot be any other meaning from the one provided in the Section aforesaid. Black’s Law Dictionary defines ‘otherwise’ as follows:-“In a different manner, in another way, or in other ways” The golden rule of interpretation is that where the provision of the law is very clear and unambiguous, the words contained therein should be given their natural and grammatical meaning. The word otherwise as used in section 22 0f the Act is used to differentiate institutions that are registered under the procedures set out under Sections 19, 20 and 21 of the Act which are not liable to be closed by the appropriate authority and those not registered under the Act and which are liable to be closed by the appropriate authority subject to fulfilling certain conditions. The proviso to Section 22 (1) of the Act clearly prohibits the appropriate authority from closing any institution belonging to any government in the Federation without the prior approval of the President even where such institution is not established in accordance with the provisions of the Act. Government in the Federation, means any of the three tier system of government in Nigeria and these include Federal, states and Local Government. This is so because ‘in’ instead of ‘of is used between Government and the Federation. In the instant case the Lagos State University including its Satellites campuses having been established as provided for under sections 19, 20 and 21 of the Act cannot be closed by the Respondent. Even if the Lagos State University were not established in accordance with the provisions of the Act, the Respondent has no power to close it or any of its Satellites Campuses without first obtaining the approval of the President. PER PAUL ADAMU GALINJE, J.C.A.
JUSTICE
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
LAGOS STATE UNIVERSITY, OJOAppellant(s)
AND
NATIONAL UNIVERSITIES COMMISSIONRespondent(s)
PAUL ADAMU GALINJE, J.C.A.(Delivering the Leading Judgment): With the leave of the Federal High Court (hereinafter to be referred as the Lower Court) which was granted on the 9th of January 2007, the Appellant herein, by an Originating Motion on Notice dated 10th January 2007 sought for the following reliefs:-
1. A declaration that the decisions of the Respondent as contained in its letters of 3rd October 2006 Ref. No.NUC/ES/426/Vol.III/195 and of 13th December 2006 Ref.NUC/ES/426/Vol. VIII/195 to the Applicant purportedly closing the Applicant’s external campuses are ultra vires, illegal, in bad faith, invalid, null and void and of no effect whatsoever.
2, An Order of certiorari, to remove for the purpose of being quashed and quashing the decisions contained in the Respondent’s said letters of 3rd October 2006 with Ref. No. NUC/ES/426/Vol.III/195 and 13th December 2006 Ref. NUC/ES/426A/Vol.VIII/195 which purportedly closed down the Applicant’s external campuses,
3. An Order of injunction restraining the Respondent whether by itself, its servants and/or agents including its Executive Secretary from further implementing or giving any further effect in any manner whatsoever to its decisions purportedly closing and/or directing the closing down of the Applicants external campuses’
4. An Order of mandatory injunction directed at the Respondent whether by itself, its servants and/or agents including its Executive Secretary to withdraw forthwith all publications giving effect to the decisions purportedly closing down and/or directing the closure of the Applicant’s external campuses.
5. Alternatively to prayer 2 on order setting aside the said decisions of the Respondent.
After having heard the parties in their argument, the lower court held as follows:-
“That even though the Respondent has the powers to issue guidelines to the Applicant and even to close the Applicant, the Applicant was not given a fair hearing before the decision was taken by the Respondent in exhibit KA1 and consequently set aside the decision taken by the Respondent without first giving the Applicant a fair hearing and without complying with the requirement of gazetting any guidelines in the Federal Gazette as required by Section 24(2) of the Education Act’ I so order.”
The Appellant as the Applicant at the lower court is dissatisfied with the ruling of the lower court. Being dissatisfied and aggrieved, it brought this appeal. Its notice of appeal dated 28th August 2007 and filed on the 30th of August 2007 contains three grounds of appeal, which I reproduce hereunder without their particulars as follows:-
“(i) The learned trial judge erred in law when she held that under the provisions of Education (National Minimum Standards and Establishment of Institutions) Act, the Respondent has the powers to close the Appellant or its campuses’
(ii) The learned trial judge erred in law when she held as follows:-
“…The Respondent has the powers…even to close the Applicant…”
(iii) The learned trial judge erred in law in refusing to hold not only that the Respondent has no Power to close down or order the closure of the campuses of the Appellant but also that the Respondent’s decision to close and/or ordering the closure of the external campuses of the Appellant purportedly in exercise of such Power was altra vires, illegal, invalid, null and void and of no effect whatsoever.”
In line with the relevant Rules of this Court, parties filed and exchanged briefs of argument which were variously adopted on the 3rd day of October 2010, when the appeal came up for hearing. Two issues for the determination of this appeal were formulated for the Appellant.
These issues read as follows:-
“1. Whether the learned trial judge was right to have held that, the Respondent has the powers to close the Appellant under the provisions of the Education/National Minimum Standards and Establishment of Institutions) Act,
2. Whether or not the Court was right in not granting the reliefs 1, 2, 3, and 4 as sought in the originating motion on notice”
For the Respondent, two issues were also formulated for the determination of this appeal. These issues read as follows:-
I. What is the legal import where the trial court declared that the act of a Public officer/institution has breached the rule of fair hearing in the discharge of its duties?
II. What is the attitude of the Appellate Court when what Appellant (sic) is seeking to appeal against is an obiter dictum of a judgment?
The grounds of appeal reproduced elsewhere in this judgment alleged that the trial judge committed error in law in the passage of the judgment against which this appeal lies. Where such grounds of appeal are couched, the Appellant is required to formulate issues that will directly point out such errors and suggest solutions to them. Such issues will be the basis upon which this court will decide whether the lower court was right or wrong in not granting the prayers sought before it. To that extent, the second issue formulated by the Appellant amount to surplusage and does not arise from any of the grounds of appeal. A ground of appeal is the complaint of the Appellant against the judgment of the lower court. Such a complaint must be based on the live issue or issues in controversy in the suit. Issues so framed for determination of the appeal must arise from such ground. See IWUOHA VS NIPOST LTD (2003) 8 NWLR (PT.822) 308, UBA PLC VS OGUNSANYA (2003) 8 NWLR PT.821) 111.
The said issue is too general and it is the reason why this appeal is here. It is incompetent and is therefore struck out along with all the argument canvassed thereon,
The Respondent’s two issues for the determination of this appeal do not seem to arise from any of the grounds of appeal. The grounds of appeal complain about error of law on the part of the trial judge in the passage of his judgment. The issues formulated by the Respondent are questioning the legal import of the decision of the trial court and the attitude of this court to an appeal against obiter dictum. Clearly the two issues formulated by the Respondent are at variance with the grounds of appeal. It is the law that where a Respondent has not filed a cross appeal, the issues for determination formulated by him must arise from the grounds of appeal filed by the Appellant. See PADAWA VS JATAU (2003) 5 NWLR (PT.813) 247 at 264 paragraph B-C, OGUNDARE V. OGUNLOWO (1997) 6 NWLR (PT.509) 360; ANIMASHAUN VS UNIVERTSTY COLLEGE HOSPITAL (1996) 10 NWLR (PT.476) 65; UAC (NIG) LTD VS GLOBAL TRANSPORT S.A. (1996) 5 NWLR (PT.448) 291.
For the reason I have set out hereinabove, the two issues formulated for the determination of this appeal by the Respondent are incompetent. They are hereby struck out along with all the argument canvassed thereon.
Having struck out the two issues formulated by the Respondent for the determination of this appeal, the Respondent’s brief of argument is not supported by any submission and it is therefore incompetent and liable to be struck out. Accordingly the Respondent’s brief of argument dated 17th March 2010 and filed on the 6th April 2010 but deemed filed on the 15th April 2010 is hereby struck out. With the striking out of the Respondents brief of argument, the Appellant’s reply brief dated 26th April 2010 and filed on the 27th April 2010 cannot be sustained even though the argument contained therein amounted to a preliminary objection to the two issues formulated by the Respondent for the determination of this appeal. It clearly gave notice to the Respondent that the two issues formulated by it are incompetent. The reply brief is accordingly struck out.
The sum total of what is left of the appeal is the sole issue formulated by the Appellant. Even at the risk of repetition, I hereunder reproduce the sole issue as follows:-
“Whether the learned trial judge was right to have held that, the Respondent has Powers to close the Appellant under the provisions of Education (National Minimum Standards and Establishment of Institutions) Act.”
In this appeal, the Respondent has no brief.
A Respondent who fails to file a Respondent’s brief is deemed to have conceded to the issues raised and argued in the Appellant’s brief. However the Appellant must succeed on the strength of his own case and not on the weakness of the Respondent’s case. It is therefore not automatic that once a Respondent fails to file his brief the Appellant succeeds in the appeal. See ECHERE VS EZIRIKE (2006) ALL FWLR (PT.323) 7597 at 1608 paragraph A-B; JOHN HOLT VENTURES LTD VS OPUTA (1996) 9 NWLR (PT.470) 101; ONYEJEKWE VS THE NIGERIA POLICE COUNCIL (1996) 7 NWLR (PT.463) 704; SOFOLAHAN Vs SOFOLAHAN (1999) 10 NWLR (PT.621) 86.
I will now proceed to consider the Appellant’s submission on the sole surviving issue for determination of this appeal. Mr. Benson Igbanoi, learned counsel for the Appellant, who also settled the Appellant’s brief of argument submitted that since the Appellant was established in compliance with the requisite law and laid down procedure, the only role of the Respondent is to make recommendations and advice the Appellant accordingly. It is also the submission of the learned counsel that Sections 19, 20, 21 and 22 of the Education/National Minimum Standards and Establishment of Institutions Act 2004 (henceforth to be referred to as the Act) are related and if construed or interpreted together, the logical conclusion that will be reached is that, once it is certain that a university is established in compliance with those relevant Sections, the Respondent cannot exercise its power of closure over it. According to the learned counsel, if the learned trial judge had read Sections 19, 20, 21 and 22 of the Act together as related Sections, she would have had no difficulty in arriving at the conclusion that Section 22 is inapplicable to the Appellant.
On the principle of interpretation, learned counsel submitted that in interpreting a statutory provision, the Court is bound to give the provision of that statute its ordinary and grammatical meaning where the provision is not ambiguous. In aid the following cases are cited:-
SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD VS FEDERAL BOARD OF INLAND REVENUE (1996)8 NWLR (PT.466) 256 at 385; IDEHEN VS IDEHEN (1991) 6 NWLR (PT.198) 382 at 418.
Finally learned counsel urged the Court to answer this issue in the negative.
Section 19 of the Act deals with conditions for ownership or proprietorship of certain institutions. It does not provide for power to close down those institutions. Section 20 of the same Act provides for persons who may establish institutions of higher learning, while Section 21 provides for procedure for establishing institutions of higher learning. The Section of the Act that is relevant to this appeal, is Section 22 which deals with the power to close down erring institutions. Subsection 1 of this Section reads as follows:-
“Any institution established otherwise than in compliance with Sections 19, 20, or 21 of this Act may be liable to closure by the appropriate authority but before closing down any such institution, the appropriate authority shall afford the proprietor of the institution an opportunity to make representations for consideration by the appropriate authority not later than sixty days after receipt of notice by the proprietor from the authority of the intention to close down the institution:
Provided that the powers conferred under this subsection shall not be exercised by the appropriate authority in respect of any institution belonging to any government in the Federation without the prior approval of the President’s
(underlining is mine)
The words used in this Section of the Act are very clear and do not admit of any ambiguity. The Section says “Any institution established otherwise than in compliance with Sections 19, 20, and 21 of Education Act….” Clearly the Section is referring to those institutions established in a different manner from those ones established under Sections 19, 20 and 21 of the Act. There cannot be any other meaning from the one provided in the Section aforesaid.
Black’s Law Dictionary defines ‘otherwise’ as follows:-“In a different manner, in another way, or in other ways”
The golden rule of interpretation is that where the provision of the law is very clear and unambiguous, the words contained therein should be given their natural and grammatical meaning. The word otherwise as used in section 22 0f the Act is used to differentiate institutions that are registered under the procedures set out under Sections 19, 20 and 21 of the Act which are not liable to be closed by the appropriate authority and those not registered under the Act and which are liable to be closed by the appropriate authority subject to fulfilling certain conditions. The proviso to Section 22 (1) of the Act clearly prohibits the appropriate authority from closing any institution belonging to any government in the Federation without the prior approval of the President even where such institution is not established in accordance with the provisions of the Act. Government in the Federation, means any of the three tier system of government in Nigeria and these include Federal, states and Local Government. This is so because ‘in’ instead of ‘of is used between Government and the Federation.
In the instant case the Lagos State University including its Satellites campuses having been established as provided for under sections 19, 20 and 21 of the Act cannot be closed by the Respondent. Even if the Lagos State University were not established in accordance with the provisions of the Act, the Respondent has no power to close it or any of its Satellites Campuses without first obtaining the approval of the President.
On the whole, the Appellant’s sole issue is resolved in his favour and against the Respondent.
This appeal is therefore allowed. The decision of the lower court where it was held that the Respondent has the power to closed down the Appellant or its external campuses is hereby set aside and quashed.
There shall be cost of prosecuting this appeal which I assessed at N30, 000.00 in favour of the Appellant and against the Respondent.
MOHAMMED LAWAL GARBA, J.C.A.: I was availed of the lead judgment delivered by my learned brother GALINJE, JCA in this appeal before now.
His Lordship had admirably sifted the crucial issue that required decision in the appeal from the grounds of appeal filed by the Appellant. I am in complete agreement with views expressed that the Respondent suo motu had no authority under the relevant Act to close the Appellant or any of its external campuses. For the reasons set out in the lead judgment which are hereby adopted by me, I join in allowing the appeal in all the terms thereof.
REGINA OBIAGELI NWODO, J.C.A: I have read in draft the lead judgment of my learned brother Galinje, J.C.A just delivered. My lord has succinctly dealt with the Sole Issue for determination in this appeal, I agree with the reasoning contained therein and the conclusion arrived threat. I adopt same as mine and hold that there is Merit in the appeal and the Appeal is allowed. I abide by the consequential Order made inclusive of the Order as to cost.
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Appearances
Mr. Benson Igbanoi with M. Mohammed Esq.For Appellant
AND
Respondent not represented.For Respondent
