NATIONAL UNIVERSITIES COMMISSION v. REV’D SEGUN ADEMOLA ALLI & ANOR
(2013)LCN/6449(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 31st day of July, 2013
CA/I/255/2011
JUSTICES
MONICA B. DONGBAN – MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
NATIONAL UNIVERSITIES COMMISSION Appellant(s)
AND
1. REV’D SEGUN ADEMOLA ALLI
2. LEAD CITY UNIVERSITY, IBADAN Respondent(s)
RATIO
WHETHER OR NOT PRELIMINARY OBJECTIONS SHOULD BE RESOLVED FIRST BEFORE THE SUBSTANTIVE APPEAL
It is trite that where preliminary objections to an appeal have been raised, challenging the grounds of appeal and the issues formulated therefrom, these must first be resolved before going into the substantive appeal if need be. PER UWA, J.C.A.
WHETHER OR NOT QUESTIONS OF FACTS AND LAW WOULD ARISE WHEN THE FACTS ARE DISPUTED IN AN APPEAL
The particulars of the ground must be examined to get the purport of the ground of appeal but, any issue of fact in the particulars of error does not convert the ground to a ground of mixed law and fact as contended by the 1st Respondent, if this interpretation is given, every ground of appeal would become a ground of mixed law and fact because particulars of error are facts supplied to unveil, elaborate or to explain the intent of the ground of appeal. The purpose of the particulars in a ground being to expand the gist of a ground of appeal, See, OGBECHIE V. ONOCHIE (1986) 2 NWLR (pt. 23) 484; ADILI V. STATE (1989) 2 NWLR (pt. 103) 305; NWADIKE & ORS V. IBEKWE & ORS (1987) 4 NWLR (pt. 67 718; OJEMEN & ORS V. H.H. WILLIAM O. MOMODU II & ORS (1983) 1 S.C.N.L.R. 66; (1983) 1 S.C. 173;
It is therefore noteworthy that the presence of facts in particulars of error does not make the ground of appeal preceding it of mixed law and fact as argued by the 1st Respondent. It is when the facts are disputed, that the question of replaced facts and law would arise which would require leave of court. Which is not the case here, see, OGBECHIE V. ONOCHIE (SUPRA) AND NWADIKE V. IBEKWE (SUPRA). PER UWA, J.C.A.
THE POSITION OF LAW ON WHAT CONSTITUTES A VAGUE GROUND OF APPEAL
In the Supreme Court decision of C.B.N. V. OKOJIE (2002) 8 NWLR 48 at 61 PARAS E-G. His Lordship, Uwaifor JSC in respect of what constitutes a vague ground of Appeal held thus:“Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized, or the particulars are clearly irrelevant. See ATUYEYE V. ASHAMU (1987) 1 NWLR (pt. 49) 267, (1987) NSCC VOL. 18 (PT. 1).”
Also, a decision of this court in GOVERNOR OF EKITI STATE V. OSAYEMI (2005) 2 NWLR (PT. 909) 67 at 79 PARAS F-G. PER UWA, J.C.A.
THE REQUIREMENT OF LOCUS STANDI IN CIVIL CASES
In OMEGA BANK Plc. V. GOVERNMENT OF EKITI STATE (2007) ALL FWLR (pt. 386) 658 at 690 PARA. B at 690-692; it was held that locus standi is a Constitutional requirement to enable a person maintain an action and limited to the prosecution of matters relating to the civil right and obligation of the Plaintiff. It was held thus:“The requirement is also constitutionally defined in civil cases by reference to the criterion that only the person or persons whose civil rights or obligations are in issue can institute any particular suit…where no question as to the civil rights and obligations… of the Plaintiff is raised in the statement of claim for determination, the statement of claim will be struck out and the Action dismissed.” (Underlining mine for emphasis)
No civil right or obligation of the Plaintiff’s was raised in the originating summons to have conferred any right of action on him. It is clear that the alleged “wrong” if any was against the University and the Plaintiff cannot be rewarded or compensated in damages for it. Again, the award of damages is ancillary to the success of the other reliefs. It cannot stand on its own. The award of damages only arises when the plaintiff has established a wrongful act see, AKINFOSILE v. MOBIL OIL (NIG.) LTD. (1969) N.C.L.R. 253. PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A.(Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court Holden at Ibadan in Suit No. FHC/IB/CS/50/2009, delivered on the 26th day of July, 2011 by J.E. Shakarho, J. in which judgment was given in favour of the 1st Respondent granting all the reliefs sought.
The 1st Respondent herein was the plaintiff in the trial court and a student of the 2nd Respondent (hereafter referred to as the University) commenced action against the appellant as 1st defendant and the University as 2nd defendant by way of originating summons in the lower court in which the following questions were sought to be determined.
1. “Whether the 1st Defendant has the power in law to declare the Faculty of Law, Lead City University, Ibadan and its Law programme illegal, unapproved and unrecognized as it has impliedly done in its advertorial in The Nation Newspaper of Monday, October 12, 2009, same having been approved, recognized and licensed by the Federal Government of Nigeria and the 1st Defendant in its letter Ref. No. NUC/AS/122/vol. 1 of 15 April, 2008.
2. Whether the 1st Defendant has the power in law in view of the provisions of Sections 10 and 11 of the Education (National Minimum Standard and Establishment of Institutions) Act CAP E3 Laws of the Federation of Nigeria 2004 and Letter NUC/EC/ACCRED/ vol. 1/03 of 22 September, 2008 to declare invalid the accreditation of the law programme of the Lead City University, Ibadan.
3. Whether the National Universities Commissions Act, Cap N81 and the Education (National Minimum Standards and Establishment of Institution) Act, Cap E3, Laws of the Federation of Nigeria 2004 predicate the performance of the functions of the 1st Defendant on the presence, control, direction, dictation, and or supervision of another statutory body in this case, the Council of Legal Education.
4. Whether the 1st Defendant is not estopped in law to declare the law programme of the Lead City University, Ibadan illegal, unapproved and unrecognized having regard to its letter NUC/AS/122/vol. 1 of 15 April, 2008.”
The Plaintiff sought the following reliefs upon the determination of the above questions:
1. “A declaration that the 1st Defendant has no power to disapprove the law programme of the Lead City University, Ibadan as it has purportedly done as it was made in conformity with S.4 (i) (a), (b) (i), (ii), and (iii) of the National Universities Act, 2004.
2. A declaration that the 1st Defendant act (sic) of declaring the accreditation exercise of May, 2008 invalid for the reason that the “Legal Council of Education was not represented” is ultra vires its powers under SS 10 and 11 of Education (National Minimum and Establishment of Institutions) Act 2005 illegal, null, and void.
3. A declaration that the 1st Defendant is stopped from resiling in the approval and recognition it had earlier accorded the law programme of Lead City University, Ibadan.
4. A declaration that the 1st Defendant is bound in law to issue the result of the accreditation exercise of May, 2008 applying only its stated yardstick as contained in paragraph 2(a), (b) and (c) of its letter NUC/ES/ACCRED/vol. 1/03 of 22 September, 2008.
5. An order compelling the 1st Defendant to include the Faculty of Law, Lead City University, Ibadan in the list of approved, Legal and recognized Faculties of Law of Nigerian Universities.
6. N50, 000,000 (N50m) as general damages from the 1st Defendant only.
7. An order of prohibition restraining the 1st defendant, its agents and or privies from any further act that will portray the Faculty of Law, Lead City University, Ibadan as if legal, unapproved and unrecognized”.
In opposition to the originating summons the appellant filed a counter affidavit and a written address. At the close of the case judgment was given in favour of the 1st Respondent, Dissatisfied with the decision, the appellant appealed to this court vide its original Notice of Appeal dated 15/8/11 filed on 18/8/11 which was later amended. The amended Notice of Appeal dated 30th day of April, 2012 filed on 8th May, 2013, deemed as properly filed and served on 24th May, 2012 contained Nine (9) Grounds of Appeal, from which five (5) issues were distilled for the determination of this appeal. They are:
1. “Whether the learned trial judge erred in law in holding that the Plaintiff had locus standi to institute the action. (Distilled from Grounds 1-4 of the Grounds of Appeal).
2. Whether the Appellant has authority under the law establishing it to accredit or refuse the accreditation of a faculty and whether in the light of the evidence before the learned trial judge, he was right in holding that the faculty of law of the 2nd respondent University had been accredited (Distilled from Grounds 5-6 of the Grounds of Appeal).
3. Whether there was any evidence before the learned trial judge upon which he could base his finding either that the Faculty of Law of the 2nd Respondent University had been accredited or that the Appellant had failed to obtain the requisite permission to withdraw the accreditation of the faculty in spite of the fact that there was no evidence whatsoever that the said faculty had ever been accredited. (Distilled from Ground 7 of the Grounds of Appeal).
4. Whether the learned trial Judge properly evaluated the evidence before him before reaching his decision granting all the reliefs sought by the plaintiff. (Distilled from Ground 9 of the Grounds of Appeal).
5. Whether the learned trial Judge was right in indicting the Council of Legal Education and making orders against that body when it was not one of the parties to the action. (Distilled from Ground 8 of the Grounds of Appeal).”
In response, the 1st Respondent raised a preliminary objection to the competence of the entire appeal, which was argued in urging us to strike out the appeal. In the alternative, he distilled two issues for the determination of the appeal. They are:
1. “Whether the lower court was right in law to hold that the plaintiff/1st Respondent had locus standi to institute the action. (Grounds 1, 2, 3 and 4 of the Appellant’s Amended Notice of Appeal).
2. Whether the lower court, was right in finding in favour of the plaintiff/1st Respondent on the merit of the plaintiff’s case.”
(Grounds 5, 6, 7, 8 and 9 of the Appellant’s Notice of Appeal).
Similarly, the 2nd Respondent also raised a preliminary objection in which it also urged this court to strike out the appeal for being incompetent and in the alternative, formulated two issues for the determination of this appeal, they are:
(a) “Was the lower court right in finding in favour of the plaintiff/ Respondent on the issue of locus standi?
(Grounds 1, 2, 3 and 4 of the Appellant’s Notice of Appeal).
(b) Was the lower court right in finding in favour of the plaintiff/Respondent on the merit of the plaintiff’s case?
Grounds 5, 6, 7, 8 and 9 of the Appellant’s Notice of Appeal).”
When the appeal was argued, the learned Senior Counsel Kanu Agabi (SAN) with Peter Erivwode Esq. for the Appellant adopted and relied on his Amended Brief of Argument dated 30/5/12 filed on 31/5/12 and his reply briefs dated 28/6/12 filed on 29/6/12 deemed filed on 2/7/12 in response to the 1st and 2nd Respondents’ briefs respectively, in urging us to hold that the appeal has merit and allowing same.
In arguing his first issue, the learned senior counsel defined locus standi as the legal capacity to institute an action in court, which where, lacking would deprive the court of jurisdiction to entertain the claims, see DISU V. AJILOWURA (2006) 14 NWLR (pt.1000) PAGE 783 at PAGE 804 PARAGRAPHS E-G. It was submitted that the originating process has to be examined to determine the cause of action, these are the rights and obligation or interest of the plaintiff’s which has been violated. See, A-G ANAMBRA STATE V. EBOH (1992) 1 NWLR (pt. 218) at PAGE 507, PARAGRAPH D-E. SENATOR ADESANYA V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ANOR (1981) 5 SC 112 at PAGE 162, (2001) FWLR (PT. 46) 859 at PAGE 901.
It was submitted that the grant or refusal of the accreditation of the Faculty of Law, of the university did not affect any right or obligation peculiar to the plaintiff. It was contended that from the questions formulated for determination, the dispute if any was between the Appellant and the University. It was also submitted that the plaintiff did not show that his alleged interest had been affected over and above the interest of the other law students of the university. See, OMEGA BANK PLC. V. GOVERNMENT OF EKITI STATE (2007) ALL FWLR (pt. 386) 658 at 690 PARAS B; BEWAJI V. OBASANJO (2008) 9 NWLR (pt. 1093) 540 at 568, PARAS. F-H (CA). It was argued that from the reliefs claimed by the plaintiff, non was for his benefit except the claim for damages. It was further argued that the University, which was the alleged victim, ought not to have been sued as defendant, by this, that the action was wrongly constituted as the alleged aggrieved party, the university was made a party. The alleged wrong being the revocation of the license or authority granted to the 2nd defendant to train Law Students in its University. The action was said to be an abuse of the process of the court and ought to have been struck out, the reliefs being for the benefit of the university and not the plaintiff.
It was further submitted that even if the plaintiff succeeded in establishing that he was a student of the Faculty of Law of the University, which the appellant alleged he did not do, it would still not qualify him to institute an action against the Appellant in respect of a wrong allegedly suffered by the University. Further, that the plaintiff was not in a position to say whether the University had complied with the terms of the license or not; as contained in Exhibits ‘SA12’ and ‘SA12A’ containing the guidelines and conditions for the Establishment of Faculties of Law in Nigeria issued by the Appellant and the Director General of the Nigerian Law School acting for the Council of Legal Education. It was further contended by the appellant that the 1st respondent was admitted to study law on 22nd day of May, 2005. See, Exhibit ‘SA1’, page 11 of the printed records while the University came into existence on the 9th day of June, 2005; See Exhibit ‘SA2’, page 13 of the printed records, the letter of approval and take off of the University Exhibit; ‘IDA’ attached to the counter affidavit of the 1st Defendant clearly stated the approved colleges, deferring that of the Faculty of Law.
It was submitted that the plaintiff alleged that the Faculty of Law was approved since the 15th of April, 2008 and that he graduated in 2009. It was argued that the 1st Respondent cannot benefit from an act of illegality and that the trial court ought to have struck out the pleadings and dismissed the action. See, IBRAHIM v. OSIM (1988) NWLR (PT. 82) PAGE 257; SALEH V. MANGUNO (2006) 15 NWLR (pt. 1.001) Pg. 26, ALAO V. A.C.B. LTD (2000) 9 NWLR (PT.672), P. at PAGES 41-42 PARAGRAPHS G-A.
The appellant refuted the allegation by the plaintiff (1st Respondent) that the refusal of the accreditation of the Faculty of law had brought odium and contempt upon the plaintiff, it was contended that defamation was not proved, reference was made to paragraph 24 of the affidavit in support of the originating summons. In conclusion on this issue it was submitted that the action was not justiciable and constituted a gross abuse of the process of the court. We were urged to resolve the 1st issue in favour of the Appellant.
The appellant’s issues two and three were argued together. It was submitted that the accreditation of a Faculty of Law is the requisite approval granted by the Appellant and the Council of Legal Education by virtue of Section 1(2) of the Legal Education (Consolidation, etc.) Act, Section 4(b) (i) and (iii) of the National Universities Act and Section 10 of the Education (National Minimum Standards…) Act which respectively confer on the Council of Legal Education the responsibility for the Legal Education of persons seeking to become members of the Legal profession; while relying on Exhibit ‘SA11’, dated 22nd September, 2008, at pages 45-48 of the records of Appeal it was submitted that the faculty of Law of the University had never been accredited by the Appellant, Exhibit ‘SA11’ having declared as invalid the accreditation exercise conducted by the Appellant without the participation of the Council of Legal Education.
It was further submitted that the Appellant has the statutory power to accredit and de-accredit the faculty. It was contended by the learned Senior Counsel that the consent of the Appellant was for the University to establish a law faculty but did not accredit the faculty after the accreditation exercise, since it had an invalid result after the accreditation exercise for the reason that the sole body that over sees the legal education of persons seeking to become members of the legal profession was absent in the accreditation exercise.
Without conceding the facts as presented by the learned trial judge that the Appellant did not get the approval of the President through the Minister in withdrawing or withholding the accreditation result, it was submitted that there is a presumption of regularity in favour of the Appellant, being an official Act in which the onus lies on the party challenging the Act to prove that there is an irregularity, see, SHITTA BEY V. A. G. FED. (1998) NWLR (pt. 570) P. 392 at 426 PARA A-B, SCHMIDT V. UMANAH (1997) 1 NWLR (pt. 479) 75 at 84 PARAS. B-C and SODIPO V. OGIDAN (2008) 4 NWLR (PT. 1077) 342 at P. 370 PARAS B-E. It was argued in the alternative that from the pleadings of the Plaintiff in the trial court this was not raised by him but rather raised suo motu by the learned trial judge, outside the plaintiff’s case and resolved by the learned trial judge, which was argued to be a miscarriage of justice, see, ABUBAKAR V. YAR’ADUA (2008) 19 NWLR (PT. 1120) PAGE 1. We were urged to resolve issues two and three in favour of the Appellant.
The Appellant’s fourth issue is whether the learned trial judge properly evaluated the evidence before him before reaching his decision granting all the reliefs sought by the plaintiff. It was the submission of the learned Senior Counsel to the Appellant that the learned trial judge ought not to have relied upon the preliminary objections filed on behalf of the Appellant on 7/12/09 and 16/2/10 respectively which were struck out on the application of learned counsel to the appellant on 21/4/10 and 27/1/11, pages 286 and 289 of the printed records, reference was also made to pages 298 and 312 respectively of the printed records.
It was the contention of the learned Senior Counsel to the appellant that the counter affidavit and written address in opposition to the originating summons dated 10/1/11, filed on 13/1/11, heard and adopted on 27/1/11 with Exhibits attached to same were not considered by the learned trial judge, which amounts to lack of fair hearing and vitiates the judgment. We were urged to set aside the judgment on this basis alone, see, ETAJATA V. OLOGBO (2007) ALL FWLR (pt. 386) 584 at 607-611; PARAS. G-E. It was argued that there was no proper appraisal of the law by the learned trial judge.
The learned Senior Counsel submitted that the council of Legal Education did not deserve the indictment by the learned trial judge as the Council did not participate in the accreditation exercise. Further, Section 4(1) (b) of the National Universities Commission Act (hereafter referred to as the NUC Act) was highlighted as to the powers of the Appellant, and the appropriate bodies that are to assist in ensuring that new academic units are approved or disapproved based on their recommendations.
It was the submission of the learned Senior Counsel that, there was an element of possibility of bias where the learned trial judge was said not to have looked at the law, see, MR. DIRECTOR GENERAL OF FAIR TRADING V. PROPRIETARY ASSOCIATION OF GREAT BRITAIN (2001) 1 WLR 700 at PAGE 721, UDOGU & OTHERS V. EGWUATU & ANOTHER (1994) 3 NWLR (pt. 330) 120 at 128, LOCABIL LIMITED V. BAYFIELD PROPERTIES (2000) 1, 65 CA (PG 69) PARAS J (3); and LTD COL OMONIYI V. CENTRAL SCHOOL BOARD & OTHERS (1988) 4 NWLR (pt. 89) 448 at 451. We were urged to set aside the judgment for not being supported by evidence and the law.
The Appellant’s fifth and last issue was whether the learned trial judge was right in indicting the Council of Legal Education and making orders against the body when it was not one of the parties to the action. It was submitted that what precipitated the action filed by the plaintiff was contained in a publication made by the Appellant and the Council of Legal Education in which the conditions and guidelines for the establishment of faculties of law in Universities and the list of faculties with full and partial accreditation were stipulated. It was argued that it was necessary to have joined the council of Legal Education, more so considering the orders made by the trial court in its judgment at pages 323 – 324 of the printed records to the effect that the NUC and the Council of Legal Education should visit and re-assess the faculty of law, Lead City University, Ibadan to cure any lapses to enable the graduated students to proceed to the Nigerian Law School, in 2011. It was submitted that failure of the Plaintiff to join the Council of Legal Education (hereafter referred to as the Council) was fatal to his case, as not-having the proper parties before the court affects the jurisdiction of the court, reference was also made to the contents of Exhibit ‘SA7’ as well as the case of AMADIUME V. IBOK (2006) ALL FWLR (PT. 321) 1247 at 1260 (CA). We were urged to allow the appeal.
In reaction to the arguments of the learned senior counsel, the 1st Respondent who appeared in person in his Amended brief of argument dated and filed on 7th June, 2012 incorporated his Notice of preliminary objection, consequent upon his Notice dated and filed on 23/11/11 in which he challenged the competence of this appeal, making out that the grounds are incompetent, and referred to paragraphs 3.23 and 3.24 of his brief of argument to the effect that the part of the judgment of the lower court from which Ground 8 of the Appellant’s appeal is based is an obiter dictum, a statement made in passing which did not form part of the ratio decidendi, therefore incompetent to form a ground of Appeal. Also, that it is not necessary for the determination of the issues joined in the parties pleadings, see, ONAFOWOKAN V. WEMA BANK PLC. (2011) 12 NWLR (pt. 1260) 24 at 56-57, PARAS. G-E. We were urged to hold that Ground 8 and Issue 5 formulated therefrom are incompetent and should be struck out.
It was submitted by the 1st Respondent that Grounds 1, 2, 3, 4 and 6 of Amended Notice of Appeal are not grounds of law but of mixed law and fact for which the leave of court is required and in this case that no leave of court was sought or obtained by the Appellant. We were urged to strike out these grounds as well as the particulars that cannot exist alone without the grounds, see, THOR LTD V. FIRST CITY MERCHANT BANK LTD. (2002) 3 SCM 130 at 138, JIMKASHI V. MATAZU (2004) ALL FWLR (pt. 230) 1077 at 1093-1094 and BELLO V. UDOYE (2004) ALL FWLR (pt. 225) 63 at 82.
It was also argued that Grounds 5, 6 and 7 are incompetent as they relate to the consent judgment of the lower court for which leave of court is required which was not sought for by the Appellant.
While referring to most of the averments in the verify affidavit in support of his claims in the lower court, the 1st Respondent contended that the Appellant admitted all his claims in the originating summons since same were neither specifically denied or by implication denied, having regard to other facts averred in the pleadings, see, KYARI V. ALKALI (2001) 5 S.C. (Pt. 11) 192 at 205. It was submitted that the appellant in the lower court only distilled and canvassed arguments only on the locus standi of the 1st Respondent averred in paragraph 15 of her counter affidavit, (page 229 of the printed records) and abandoned all other averments with no issue(s) distilled nor argued therefrom in her written submission. It was further submitted that paragraphs 1, 2, 4, 5, 6, 10 and 12 of the Plaintiff’s affidavit were admitted in the Appellant’s paragraph 6 of her Counter Affidavit, while paragraphs 3, 7, 8 and 9 were admitted in paragraph 7 of her Counter Affidavit.
It was contended that paragraphs 19, 20, 21, 22, 23 and 24 of the affidavit in support were not-controverted by the Appellant, reference was made to paragraphs 12 and 13 of the counter affidavit, page 229 of the printed records of Appeal, the above paragraphs were argued to have been admitted as the denials were general and vague, see, YESUFU V. CO-OPERATIVE BANK (1989) 3 NWLR (pt. 110) 483 at 503, PARA. F-G and NWOSU V. IMO STATE ENVIRONMENT SANITATION AUTHORITY (1990) 2 NWLR (pt. 135) 688 at 721, PARA. A.
It was stressed that from the issues for determination in the lower court, page 248 of the records, the appellant only challenged the locus standi of the 1st Respondent to institute the action and nothing more which meant that the Appellant admitted all the claims in the originating summons. See, OWOSHO V. DADA (1984) 7 S.C 149 and KYARI v. ALKALI (supra). It was argued that the appellant had also abandoned its paragraphs 1-14 and 16 of her counter affidavit. We were urged to hold that the appellant’s issues 2 and 3 are incompetent as they were formulated from Grounds 5, 6 and 7 which were argued to be incompetent in that the particulars in their support are not related to the Grounds.
Ground 9 was also challenged as being incompetent; it was alleged to be a ground on facts alone and cannot sustain a point of law. We were urged to uphold the preliminary objection and strike out the entire appeal as there is no competent ground of appeal.
In the alternative, on the merits of the main appeal, the 1st Respondent formulated two issues for determination of the Appeal. They were earlier reproduced in this judgment. The first issue is as to whether the lower court was right in law to hold that the Plaintiff/1st Respondent had locus standi to institute the action.
In arguing his first issue, the 1st Respondent defined locus standi as the legal right of a party to an action to be heard in litigation before a court of law or tribunal, also as the legal capacity to commence or institute an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body, see, INAKOJU V. ADELEKE (2007) 4 NWLR (pt. 1025) 423 at 601, PARAS. G-H. It was also argued that, what determines the locus standi of a plaintiff is ability to show sufficient interest in the subject matter of the suit and not the statutory relationship of parties as submitted on behalf of the Appellant. It was submitted that the issue for determination in the suit at the lower court was the purported “invalid” status placed on the accreditation of the 2nd Respondent by the Appellant which affects the interest of the Plaintiff/1st Respondent, who at the material time was, and still is, a law graduate of the 2nd Respondent.
The first Respondent argued that he had the locus standi to have instituted the action on the invalidation of the accreditation of the law programme in which he got a degree and that his interest is greater than that of the ordinary member of the society. The first Respondent refuted the argument of the Appellant that it is only the 2nd Respondent that could challenge a Legislative Act between it and the 2nd Respondent, which was submitted to be contrary to the provision of Section 6 (6) (b) of the 1999 Constitution of the Federal Republic of Nigeria and the cases of OLORIODE V. OYEBI (1984) 1 SCNLR 390 at 400, PARAS. E-F and A.G. LAGOS STATE V. EKO HOTELS (2006) 12 SCM (pt. 1) 1 at 53.
Also, ADESANYA v. PRESIDENT, F.R.N. (2004) 9-12 SCM (PT. 1) 159 at 181 and OJUKWU v. OJUKWU (2008) 12 SCM (pt. 2) 580.
It was further submitted that the learned trial judge found that the action of the 1st Defendant, though directly meted to the 2nd Defendant, has a devastating impact on the plaintiff, was not appealed against and is deemed conceded by the Appellant and settles the issue of locus standi in the 1st Respondent’s favour. It was argued that the appeal against the locus standi of the 1st Respondent is academic. It was further argued that the defendant who did not counter-claim sought to make a different case contrary to that made by the plaintiff; we were urged to so hold. We were also urged to discountenance Exhibit ‘IDA’ tendered by the Appellant as an inadmissible piece of document, as it is a photocopy of an uncertified public document, see, Section 87 of the Evidence Act, 2011 and the case of ALAMIEYE-SEIGHA F.R.N. (2006) 16 NWLR (pt. 1004) 1 at 69 – 70, PARAS. H-A. The 1st Respondent refuted the Appellant’s argument that the cause of action is founded on an illegality. Also, in respect of Exhibit ‘IDA’ to wit which stated: “the college of law is deferred for now”, assuming but not conceding that it has any evidential value, does not avail the Appellant as subsequent actions of the Appellant had ratified the act it deferred as shown in Exhibits ‘SA5’; ‘SA6’; ‘SA9’ and ‘SA11’; pages 22-27 and 45-49 of the printed records.
It was argued that the issue of illegality raised by the Appellant in paragraphs 3.30-3.35 of the Appellant’s brief is unsupportable and unsustainable in law. We were urged to resolve the 1st respondent’s issue one in his favour.
The 1st Respondent’s second issue is whether the lower court was right in finding in favour of the plaintiff/1st Respondent on the merit of the plaintiff’s case? It was submitted by the 1st Respondent that the challenge of the merit of the 1st Respondent’s case through the Appellant’s issues 2, 3, 4 and 5 in its brief, the appellant has by this set up a different case on appeal, see, MKPA V. MKPA (2010), 14 NWLR (pt. 1214) 612 at 636, PARAS. A-B. It was once again argued that the two issues distilled for determination in the lower court, only challenged the plaintiff’s locus standi to institute the action. Further, that the appellant’s case on appeal is different from his case at the lower court, OSHO v. STATE (2012) 8 NWLR (pt. 1302) 243 at 284, PARAS. B-E.
On the appellant not being given fair hearing, the 1st Respondent submitted that the complaint of lack of fair hearing in the lower court cannot be sustained as the Appellant was given fair hearing and utilized same fully in conducting his case before the lower court, the processes filed by the appellant in the lower court were reviewed.
The 1st Respondent re-submitted that from Exhibit ‘SA11’, page 47 of the Records, the law programme was accredited as shown in the “SUMMARY OF RESULT OF MAY 2008 MOP UP ACCREDITATION EXERCISE.” It was argued that from the above summary, the law programme was accredited. It was submitted that the Appellant declared the accreditation invalid without showing any law which made the accreditation of a law programme invalid because of the non-participation of the Council of Legal Education. The 1st Respondent argued that the accreditation exercise was carried out jointly with the council, going by paragraph 12 of the Appellant’s counter Affidavit, page 229 of the records.
It was also argued that the Appellant can neither support nor justify its purported withdrawal of the 2nd Respondent’s Law Programme on the ground of non-representation of the Council, assuming without conceding that their non-participation in the accreditation exercise was done without compliance with Sections 15 and 16 of the (Education National Minimum Standards and Establishment of Institutions) Act (Supra). It was submitted that Exhibit ‘SA6′, page 25 of the records is clear that the 2nd Respondent was approved by the Appellant. It was argued that, it was wrong for the Appellant to have excluded the name of the 2nd Respondent from the list of Universities with full or partially approved programmes in the Newspaper Publication, page 52 of the records. Finally, that the submission of the Appellant that there was no evidence that the Faculty of Law of the 2nd Respondent was approved and accredited is misconceived. We were urged not to disturb the judgment of the trial court and to hold that the trial court was right in holding in favour of the 1st Respondent on the merit of the case.
On the part of the 2nd Respondent, the learned counsel K.C. Obisike Esq. appearing with Oluwatobi Ishola Esq. and T.O. Onipede Esq. in reaction to the argument proffered on behalf of the Appellant also raised a preliminary objection incorporated in his Amended brief of argument dated and filed on 12/6/12 and in the alternative also responded to the substantive appeal. The 2nd respondent in her preliminary objection also challenged the Appellant’s Grounds 5, 6, 7, 8 and 9 as being incompetent because they were said to relate to the “consent judgment” of the lower court for which the leave of court is required, as similarly argued by the 1st Respondent in his preliminary objection. All the issues formulated from the above grounds were argued to be equally incompetent; these are issues 2, 3, 4 and 5 in the Appellant’s brief. Issue 2 was also challenged and argued to be incompetent; it was alleged not to be covered by the appellant’s Grounds 5 and 6 from which it was formulated. The Appellant’s Issue 3 was also argued to be incompetent having been argued together with the alleged incompetent issue 2. The Appellant’s Ground 8 and issue 5 formulated there from were argued to be incompetent as they relate to an obiter dictum that is, the comment by the trial court on the Council of Legal Education, not on the Appellant who could not be aggrieved by such comment.
In sum, the arguments proffered by the learned counsel to the 2nd Respondent were similar to the submissions of the 1st Respondent in support of his preliminary objection which I earlier reproduced in detail in this judgment and I would not reproduce same all over again, it would be repetitive of the submissions and points made in objection to the Appellant’s Ground 5, 6, 7, 8 and 9 of the Appellant’s Notice of Appeal and its issues 2, 3, 4 and 5 formulated therefrom, as comprehensively argued by the 1st Respondent and re-submitted by the learned counsel to the 2nd Respondent. Doing so, would be unnecessarily tedious, boring and a waste of time. The learned counsel to the 2nd Respondent also urged us to sustain his preliminary objection.
The learned counsel to the 2nd Respondent also responded to the substantive appeal to which he formulated two issues for the determination of the Appeal, which I earlier reproduced in this judgment.
In arguing the main appeal, the learned counsel to the 2nd Respondent argued along the same line as the 1st respondent in support of his two issues which were similar to those formulated by the 1st Respondent with only a slight difference in the couching of same. In respect of her issue one, we were urged to resolve same against the Appellant and in favour of the 2nd Respondent. In respect of issue two we were urged to hold that the lower court was right in holding in favour of the 1st Respondent on the merit of his case.
The learned Senior Counsel to the Appellant responded to the two sets of objections and submissions in reaction to the main appeal in his reply briefs, which he adopted and relied on dated 28/6/12 filed on 29/6/12 respectively deemed filed on 1/7/12.
Since the preliminary objection’s of the respondents were responded to in a similar manner by the learned senior counsel to the Appellant, as well as his response to the arguments of each set of respondent in his reply briefs, for this reason I would review the arguments in the reply briefs simply as reply to the arguments of the respondents.
On whether Grounds 1, 2, 3, 4 and 6 of the Appellant’s Notice of Appeal are grounds of mixed law and fact to which the leave of court would be required, it was submitted by the learned senior counsel that it is common that where a Ground of Appeal complains about a misunderstanding or misconception of the law or misapplication of the law to the facts such ground is a ground of law, see, ANUKAM v. ANUKAM (2008) 2 S.C. 42; It was argued that in construing any ground of appeal, due regard must be given to the particulars to know the exact purport or frame of the grounds filed and that it is not correct that once any issue of fact is found in the particular of Error it changes the ground to a ground of mixed law and fact as contended by the 1st Respondent. It was argued that the mere presence of facts in particulars of error does not make the corresponding ground of appeal a ground of mixed law and facts as argued by the 1st Respondent.
Without conceding that Grounds 1, 2, 3, 4 and 6 are grounds of mixed law and fact as contended by the 1st Respondent, it was argued that the leave of court is not required to raise these grounds, being grounds of appeal emanating from a final decision of the Federal High Court sitting at first instance, see, Section 241 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (hereafter referred to as the Constitution). It was submitted that these are grounds of law and even if they were not, leave of court is not required to raise these grounds.
The 1st Respondent had made out that Grounds 4 and 6 of the Notice of Appeal relate to a consent judgment, the learned senior counsel submitted that no argument was proffered in support of Ground 4 in the Preliminary Objection; we were urged to treat the objection to this ground as abandoned.
In respect of Ground 6, the learned senior counsel refuted the argument in support in that the appellant had filed a counter affidavit in opposition to the Plaintiff’s verifying affidavit at the lower court on 9/6/10, Pages 145 – 150 of the records, thus the judgment could not be said to be consent judgment. Similarly, the learned senior counsel in response to the objection of the 2nd Respondent concerning Grounds 5, 6, 7, 8 and 9 of the Notice of Appeal submitted that the appellant appealed against the finding of the trial court, to the effect that its judgment was not a consent judgment, the trial judge having failed to evaluate all the evidence and issues placed before him, particularly failure to consider the appellant’s counter affidavit in opposition to the originating summons and the verifying affidavit. It was submitted that not being a consent judgment, leave of court was not required; we were urged to so hold.
On the incompetence of Ground 8 alleged to relate to an obiter dictum it was submitted that it was formulated from the ratio and not from the obiter as contended by the Respondents. Ground 8 was argued to have arisen from the decision of the trial court on the scope or extent of power of the Council of Legal Education as it relates to the accreditation or de-accreditation of law programmes in the universities, therefore an issue presented for the determination of the court, therefore not an obiter dictum. It was argued to be a ratio decidendi, we were urged to so hold, and to hold that Ground 8 of the Notice of Appeal is competent.
The learned senior counsel in responding to the 1st Respondent’s objection to Ground 9, submitted that the said ground is competent and does not require the leave of court to raise same as contended by the 1st Respondent, and that it is immaterial that it is a ground of fact, see, Section 241 (1) (a) of the Constitution. It was finally submitted that grounds 1, 2, 3, 4, 5, 6, 7 and 9 are competent as well as issues formulated therefrom, Issues 2, 3, 4 and 5. It was submitted that the preliminary objections are misconceived, misleading, frivolous and lack merit. We were urged to dismiss same.
In respect of the substantive appeal, on the respondents’ first issue in which the locus standi of the 1st respondent was challenged, covered by Grounds 1, 2, 3 and 4 of the grounds of appeal, in response to the arguments of the respondents the learned senior counsel submitted that illegality as alleged by the appellant, in the present circumstance of this case goes to the jurisdiction of the court to entertain the matter in the first place. This was argued to be so because of the illegal admission of the Plaintiff/1st Respondent into 2nd Defendant/2nd Respondent (Lead City University) one of the anomalies that robbed the plaintiff of the requisite locus standi to sue. It was argued that the Plaintiff lacked the locus to sue and that the court lacked the jurisdiction to entertain the matter.
Further, that being an issue of jurisdiction, it could be raised at any stage and in any manner without the leave of court, even viva voce, see FAGBOLA V. K.C.C.I.M.A. (2006) 6 NWLR (pt. 977) PAGE 433 at 437 and OYAKHIRE v. STATE (2006) 15 NWLR (pt. 1001) PAGE 157 at 165. We were urged to resolve issue one in favour of the Appellant.
In respect of their issue two, it was argued that the 1st Defendant filed a counter Affidavit and a written address in opposition to the merit of the Plaintiff’s case, page 145-150 of the records of Appeal but, the trial court failed to consider these processes which occasioned a miscarriage of justice which necessitated this appeal. The case of IBORI V. AGBI (2004) 6 NWLR (686) at 87 relied upon by the 2nd Respondent was said to be inapplicable to the present case. It was the contention of the learned senior counsel that it is not correct for the 2nd respondent to argue that the 1st Defendant/Appellant chose not to use the opportunity given it to be heard on the merit of the Plaintiff’s case, we were urged to so hold.
Further, it was submitted that paragraphs 8 and 12 of the 1st Defendant’s counter Affidavit in opposition to the originating summons when read together would reveal the fact that the council of Legal Education did not participate in the accreditation exercise as contended by the 1st Respondent. We were once again urged to resolve the respondents, issue two in favour of the Appellant and allow the appeal.
It is trite that where preliminary objections to an appeal have been raised, challenging the grounds of appeal and the issues formulated therefrom, these must first be resolved before going into the substantive appeal if need be. On whether grounds 1, 2, 3, 4 and 6 of the Appellant’s Notice of Appeal are grounds of mixed law and fact to which leave of court would be required as contended by the 1st Respondent, in determining this, the important thing to note is the essence of the grounds and the complaint therein. The complaint in the above grounds is the misapplication of the relevant laws to facts before the court, while ground 6 in particular relates to the misapplication of the Education (National Minimum standards and Establishment of Institutions) Act which makes the grounds, of law as rightly argued by the learned senior counsel to the Appellant. The particulars of the ground must be examined to get the purport of the ground of appeal but, any issue of fact in the particulars of error does not convert the ground to a ground of mixed law and fact as contended by the 1st Respondent, if this interpretation is given, every ground of appeal would become a ground of mixed law and fact because particulars of error are facts supplied to unveil, elaborate or to explain the intent of the ground of appeal. The purpose of the particulars in a ground being to expand the gist of a ground of appeal, See, OGBECHIE V. ONOCHIE (1986) 2 NWLR (pt. 23) 484; ADILI V. STATE (1989) 2 NWLR (pt. 103) 305; NWADIKE & ORS V. IBEKWE & ORS (1987) 4 NWLR (pt. 67 718; OJEMEN & ORS V. H.H. WILLIAM O. MOMODU II & ORS (1983) 1 S.C.N.L.R. 66; (1983) 1 S.C. 173;
It is therefore noteworthy that the presence of facts in particulars of error does not make the ground of appeal preceding it of mixed law and fact as argued by the 1st Respondent. It is when the facts are disputed, that the question of replaced facts and law would arise which would require leave of court. Which is not the case here, see, OGBECHIE V. ONOCHIE (SUPRA) AND NWADIKE V. IBEKWE (SUPRA).
Without conceding, the learned senior counsel had argued that even if Grounds 1, 2, 3, 4 and 6 were of mixed law and fact the leave of court would not be required to raise these grounds, the appeal having emanated from a final decision of the Federal High Court sitting at first instance by virtue of the provisions of section 241 (1) (a) of the constitution, I am in agreement with this view and hold that leave is not required to raise the above grounds.
The 1st Respondent had argued that, grounds 4 and 6 relate to a consent judgment which requires the leave of court to appeal against same, while the 2nd Respondent raised the same argument in respect of grounds 5, 6, 7, 8 and 9. It is on record that the action in the lower court was instituted by the 1st Respondent vide an originating summons supported by a verifying affidavit to which the appellant as 1st Defendant opposed and filed a counter affidavit on 9th day of June, 2010, pages 145 – 150 of the printed records of Appeal. At page 298 of the printed records, the learned trial judge acknowledged the fact that the action in the lower court was challenged by the then 1st Defendant now Appellant when he observed thus:
“The 1st Defendant filed a counter affidavit of 16 paragraphs and a written address. The learned counsel for the 1st Defendant formulated 2 issues for determination as follows…”
With the challenge by the Appellant, the judgment of the lower court cannot be rightly termed a consent judgment; the Appellant did not concede facts as contended by the Respondents.
The 1st Respondent had also argued that paragraphs 19, 20, 21, 22 and 24 of the Plaintiff’s Affidavit in support of the originating summons were not properly controverted by the Appellant. In paragraph 8 of the Appellant’s Counter Affidavit in opposition to the plaintiff’s verifying Affidavit, it was deposed as follows:
“The 1st Defendant denies paragraphs 11, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26 and 27 inclusive and put the plaintiff to the strictest proof thereof” (underlined mine for emphasis).
The 2nd Respondent also concluded that the Appellant conceded the substantive suit on the basis of the following statement attributed to the Appellant, that is:
“We therefore do not concern ourselves with the merit of this case as presented by the plaintiff.”
The above statement can be found at page 112 of the printed records, paragraph 1.04 of the written address of the appellant as 1st Defendant (pages 112 -119) dated 23rd November, 2009 filed on 16/2/2010 in support of its preliminary objection to the action of the 1st Respondent as plaintiff.
The objection, with the supporting affidavit and Exhibits attached are at pages 103 -110 of the printed records. From pages 290 – 293, it is clear that from the proceedings of the trial court of 27/1/11 the then learned counsel to the Appellant (as 1st Defendant, Otunba E.A. Solanke) withdrew the Notice of preliminary objection dated 23rd May, (should be November) 2009 and filed on 16th February, 2010 without any objection from the Appellant and 2nd Defendant which was granted by the lower court, and same was struck out, see page 291 of the printed records. The process having been withdrawn and struck out on the application of the Appellant (owner of the process) same ought not to have been utilized by the Respondents, the court or anybody else. Reference to its content is wrong; all argument by the respondent relying on the above extract is discountenanced. On the other hand, for whatever it is worth, in any case at the stage of a preliminary objection the parties and the court are not permitted to delve into the substantive suit, all argument and decision ought to be limited to the preliminary objection.
The extract relied upon for arguing that the Appellant is not concerned with the merit of the case was not part of the averments in the counter affidavit to the verifying affidavit. I hold that the judgment of the lower court on the substantive suit was not a consent judgment, considering the counter affidavit filed in opposition to the verifying affidavit.
In respect of the objection to Ground 4, as rightly argued by the learned senior counsel to the Appellant, the 1st Respondent who objected to the competence of Ground 4 did not proffer any argument in its support, same is deemed abandoned.
The 1st Respondent had argued that grounds 5 and 7 are incompetent as they are vague. I have examined these grounds with their particulars, they are clear and there is no doubt as to their meaning or purport. There is nothing in the grounds and the manner in which they were couched that would make the meaning doubtful or difficult for it to be understood. In the Supreme Court decision of C.B.N. V. OKOJIE (2002) 8 NWLR 48 at 61 PARAS E-G. His Lordship, Uwaifor JSC in respect of what constitutes a vague ground of Appeal held thus:
“Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized, or the particulars are clearly irrelevant. See ATUYEYE V. ASHAMU (1987) 1 NWLR (pt. 49) 267, (1987) NSCC VOL. 18 (PT. 1).”
Also, a decision of this court in GOVERNOR OF EKITI STATE V. OSAYEMI (2005) 2 NWLR (PT. 909) 67 at 79 PARAS F-G. Grounds 5 and 7 of the Notice of Appeal do not fall into the above category. Further, the 1st respondent utilized these two grounds in formulating his issue two. It is clear then that the 1st Respondent understood the content and purport of grounds 5 and 7 of the Notice of Appeal and comfortably utilized same as part of the grounds from which he formulated his second issue, for these reasons the objection to these two grounds are discountenanced.
The 2nd Respondent had made out that there was no appeal against the findings of the lower court to the effect that the judgment was a consent judgment. As rightly submitted by the learned senior counsel to which I am at one with, the 2nd Respondent in his Amended brief, paragraphs 3.1, 3.2, 3.4 and 3.5 argued that paragraphs 5, 6, 7, 8 and 9 of the Notice of Appeal relate to consent judgment which the Appellant did not appeal against. While the 2nd Respondent in his same amended brief of argument, paragraph 3.8 submitted that Grounds 5, 6, 7, 8 and 9 are incompetent because the leave of court was not sought and granted the Appellant to argue these grounds. The 2nd Respondent cannot blow hot and cold. In one breath alleged that the Appellant did not appeal against what was erroneously termed a consent judgment (since I have held that it was not a consent judgment) and in another breath alleged that the leave of court was not sought and obtained before appealing against what it termed a consent judgment. Having held that the judgment of the lower court was not a consent judgment, the issue of leave not having being sought in arguing grounds 5, 6, 7, 8 and 9 would not therefore arise and I so hold.
The Respondents each faulted ground 8 of the Notice of Appeal as incompetent, alleging that it relates to an obiter dictum. The starting point would be what this means. In Black’s Law Dictionary 7th Edition at page 1100, obiter dictum has been defined as follows:
”A judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive)”
On the other hand, the learned senior counsel argued that ground 8 is competent. The reason or principle on which a court takes its decision is the Ratio Decidendi which in the same edition of the Black’s Law Dictionary at page 1268 has been defined as follows:
“The principle or rule of law on which a court’s decision is founded (many poorly written judicial opinion do not contain a clearly ascertainable ratio decidendi) 2. The rule of law on which a later court thinks that a previous court founded its decision; a general rule without which a case must have been decided otherwise (this opinion recognizes the Supreme Court’s ratio decidendi in the school desegregation cases) often shortened to ratio.”
It is trite that the Ratio Decidendi of a case is usually in the court’s answer to issues raised for the determination of the court.The third question the plaintiff raised in the lower court for determination was as follows:
“Whether the National Universities Commission Act, Cap 81 and the Education (National Minimum Standards and Establishment of Institution) Act, Cap E3, Law of the Federation of Nigeria, 2004 predicate the performance of the function of the 1st Defendant on the presence, control, direction, dictation and or supervision of another statutory body in this case, the counsel of Legal Education.”
In determining the above question, the learned trial judge in its judgment, at pages 320 -321 of the printed records held as follows:
“As I noted above, there is nothing in both Acts pertaining to the 1st Defendant directing it to subjugate its functions to the whims and caprices or control and dictation of the Council of Legal Education. I have seen the Law or Act setting up the Council of Legal Education. It does not have a supervisory role or control of the accreditation or de-accreditation of Law Faculties in Nigeria Universities, public or private, Federal or State.”
Further, at pages 323 – 324 held thus:
“The Council of Legal Education has arrogated too much power to itself. The Council of Legal Education in this matter behaved as a despot, tyrant and great oppressor. The Council of Legal Education acted in malice and vindictively against the 2nd Defendant which affected the plaintiff.”
The above holdings by the learned trial judge cannot be termed as a comment made in passing as an obiter dictum that does not touch on the ratio for the decision. The above reproduced portions show the binding part or points of the decision of the trial court, which is the ratio decidendi as opposed to an obiter dictum. In the case of AFRO – CONTINENTAL (NIG) LTD V. AYANTUNJI & 8 ORS (1995) 9 NWLR (pt. 420) 411 at 435 PARAGRAPH D-E. His Lordship, Iguh JSC held thus in this respect:
“It is indisputable that in the judgment of a court, the legal principle formulated by that court which is necessary in the determination of the issues raised in the case, that is to say, the binding part of the decision is its ratio decidendi as against the remaining parts of the judgment which merely constitute obiter dicta, that is to say what is not necessary for the decision. See SAUDE V. ABDULLAHI (1989) 4 NWLR (pt. 116) 387; BANGBOYE V. UNIVERSITY OF ILORIN (1991) 8 NWLR (pt. 207) 1 at PAGE 24.”
It is apt at this point to reproduce Ground 8 of the Grounds of Appeal.
GROUND 8 – ERROR OF LAW
The learned trial judge erred in law when he held as follows:
“As I noted above, there is nothing in both Acts pertaining to the 1st Defendant directing it to subjugate its functions to the whims and caprices or control and dictation of the Council of Legal Education. I have seen the Law or Act setting up the Council of Legal Education. It does not have a supervisory role or control of the accreditation or de-accreditation of Law Faculties in Nigeria Universities public or private… The Council of Legal Education has arrogated too much power to itself. The council of Legal Education in this matter behaved as a despot, tyrant and great oppressor. The Council of Legal Education acted in malice and vindictively against the 2nd Defendant which affected the Plaintiff.”
PARTICULARS OF ERRORS
1. “There was no justification whatsoever for the unwarranted attack on the Council of Legal Education which was given no opportunity to defend itself against the virulent attack.
2. The Appellant is required under section 4(b) of the National Universities Act to work in consultation with such other bodies as it considers appropriate including the Council of Legal Education and ought not to be stigmatized as subjugating its functions to the whims and caprices of the council of Legal Education.”
It is evident from the above that Ground 8 of the Appellant’s Amended Notice of Appeal was clearly formulated from the ratio and not from the obiter as contended by the Respondents in their respective preliminary objections. In my humble view, Ground 8 is competent as well as the Appellant’s issue 5 formulated therefrom.
Ground 9 of the notice of Appeal was also alleged to be incompetent by the Respondents alleging that the Appellant did not challenge the merits of the 1st respondent’s case in the lower court, and termed the judgment of the lower court a consent judgment that requires the leave of the Court to Appeal against same. While resolving the other points raised in the objections, I held that the judgment of the lower court was not a consent judgment and no leave of court is therefore required. Ground 9 adequately challenged the findings of the lower court to the effect that the Appellant conceded the substantive suit, which I have already dealt with, earlier in this judgment. In sum the preliminary objections raised by the Respondents lack merit and same are hereby dismissed.
With the substantive appeal, I have examined the issues formulated by the parties and would adopt those of the appellant’s as the issues are more comprehensive and would capture all the issues raised and argued in this appeal. I deliberately reviewed the submissions of learned counsel on both sides in detail for clarity.
The appellant’s first issue covers each of the respondent’s first issue; whether the learned trial Judge erred in law in holding that the plaintiff had locus standi to institute the action. Locus standi has been adequately defined by each of the parties, which is basically the legal capacity to institute an action in court and if one lacked the legal standing to institute an action the court would have no jurisdiction to entertain the claim. It follows that a person who has no locus standi cannot be a party and only proper parties can invoke the jurisdiction of the court where the question as to a person’s standing to sue is in issue, as in the present case, to ascertain same the originating process is examined to ensure there is a cause of action that is, the rights and obligation or interest of the plaintiff’s that have been violated. See, DISU V. AJOLOWURA (2006) 14 NWLR (pt. 1000) page 783 at page 804 PARAGRAPHS E-G and the case of A.G. ANAMBRA STATE V. EBOH (1992) 1 NWLR (pt. 218) at page 507 para. D-E. A party can only invoke the judicial powers of the court when his civil rights are in issue. In the case of ADESANYA V. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA & ANOR. (1981) 5 SC 112 at Page 162, (2001) FWLR (pt. 46) 859 at page 901 the Apex court in this regard held thus:
“It is only when the civil rights and obligations of the person, who invokes the jurisdiction of the court, are in issue for determination that the judicial powers of the court may be invoked. In other words, standing will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of”
In the present case, can it be said that the grant or refusal, in this case invalidates result of the accreditation to the faculty of law of the University affected any right or obligation peculiar to the 1st Respondent as plaintiff? The faculty of law had not been accredited. The issue of accreditation is an issue between the University and the Appellant; the University did not take out the action rather the Plaintiff took out the action against the Appellant and the University as 2nd defendant. The accreditation or its refusal of it by the Appellant cannot be rightly challenged by the 1st Respondent since the lack of accreditation affects the University. The 1st Respondent had argued that as a graduate of law from the University he had a right to protect that is, the validity of his certificate from being rendered of no use by the decision of the appellant.
From the questions for determination as formulated by the Plaintiff in the lower court, the first is an issue between the appellant and the University, the question as to whether the 1st defendant (appellant) has the power in law to declare the Faculty of law, Lead City University, Ibadan and its law programme illegal. The 1st respondent is not the University and did not allege to have taken out the action on behalf of the University whom he sued as 2nd defendant in any case. There was no issue between the Appellant and the Plaintiff. This also goes for the 2nd, 3rd and 4th questions for determination in the lower court. In my humble view the Plaintiff had no right to question the Appellant’s right to accredit or disaccredit the faculty of law of the University; this is so because the contest is between the Appellant that exercised the power and the University over which the power was exercised. This court in BEWAJI v. OBASANJO (2008) 9 NWLR (pt. 1093) 540 at 568, paras. F-H gave the two acid tests for determining whether or not a person has locus standi, to initiate an action as:
a. The action must be justiciable;
b. There must be a dispute between the contending parties. OGBUECHI v. GOVERNOR OF IMO STATE (1995) 9 NWLR (pt. 417) 53; U.B.A. Plc. VS. BTL IND. LTD. (2004) 18 NWLR (pt. 904) 180; GUDU V. KITTA (1999) 12 NWLR (pt. 629) 21.(Underlined mine for emphasis).
Looking at the reliefs sought by the Plaintiff, he was not a beneficiary of any of the reliefs except for the claim for damages from the 1st defendant (Appellant) only. Also, there was no dispute between the Plaintiff and NUC and no relationship between them; even if the Appellant withdrew the alleged accreditation of the law faculty (which was not conceded by the appellant) and which it did not, it gave no right of action to the Plaintiff. There was no civil right of the Plaintiff’s raised in the claim as contained in the originating summons earlier reproduced in this judgment. The 1st respondent had argued that as a graduate of the University he had a right to contest the non-accreditation of the law faculty of the University by the Appellant. This is not tenable, otherwise every student admitted to study law in the University from inception till date would have a right of action against the Appellant challenging the non-accreditation or invalidation of the accreditation exercise. In OMEGA BANK Plc. V. GOVERNMENT OF EKITI STATE (2007) ALL FWLR (pt. 386) 658 at 690 PARA. B at 690-692; it was held that locus standi is a Constitutional requirement to enable a person maintain an action and limited to the prosecution of matters relating to the civil right and obligation of the Plaintiff. It was held thus:
“The requirement is also constitutionally defined in civil cases by reference to the criterion that only the person or persons whose civil rights or obligations are in issue can institute any particular suit…where no question as to the civil rights and obligations… of the Plaintiff is raised in the statement of claim for determination, the statement of claim will be struck out and the Action dismissed.” (Underlining mine for emphasis)
No civil right or obligation of the Plaintiff’s was raised in the originating summons to have conferred any right of action on him. It is clear that the alleged “wrong” if any was against the University and the Plaintiff cannot be rewarded or compensated in damages for it. Again, the award of damages is ancillary to the success of the other reliefs. It cannot stand on its own. The award of damages only arises when the plaintiff has established a wrongful act see, AKINFOSILE v. MOBIL OIL (NIG.) LTD. (1969) N.C.L.R. 253.In this case, at this stage, I am of the view that the Plaintiff lacked the capacity to have brought the action in the first place, to talk of success and award of damages. The main purpose of awarding damages, general or special is to compensate the aggrieved party, or victim, for the loss, injury or damages suffered by him, see, MAXIMUM INS. CO. LTD. V. OWONIYI (1994) 3 NWLR (pt. 331) Pg. 178-195 and OKHAI vs. C & C CO. LTD. (1998) 3 NWLR (pt. 543) 584 at 598-599. The position of the law is that in claiming damages, a Plaintiff must have findings in his favour in relation to his reliefs. Where he fails to prove his case upon which damages are sought as in the present case then the claim for damages must also fail, worse still, in the present case, where I have held that the plaintiff had no capacity to have brought the action, the issue of entitlement to damages does not arise because it has no leg to stand on. See, FASHANU v. ADEKOYA (1974) 6 S.C. 83; I.I.T.A. V. AMRANI (1994) 3 NWLR (pt. 332) 296 at 325 and MACFOY VS. U.A.C. LTD. (1962) A.C. 150, 160, (1961) 3 W.L.R. 1405 at 1409. The only relief pertaining to the Plaintiff on damages cannot stand, same also fails as there is no reason for the Plaintiff to be the beneficiary for a wrong allegedly done to the University and I so hold.
The learned trial judge on the Plaintiff’s standing to sue, acknowledged the fact that the Plaintiff’s complaint or action is in respect of the powers exercised by the Appellant (1st defendant) against the 2nd defendant (2nd Respondent) the University, when he held at page 300 of the printed records thus:
“As can be gleaned from the plaintiff’s originating processes, the Plaintiff is complaining about the conduct or the powers exercised by the 1st Defendant over the 2nd defendant. The plaintiff claims that as a student of the 2nd Defendant, he studied for a law degree, obtaining a first class. By the action of the 1st Defendant, the licence or authority granted to the 2nd Defendant to train Law students in its University was revoked. The action though directly meted to the 2nd Defendant has a devasting impact on the plaintiff.
(Underlined mine for emphasis)
I agree and hold that the issue at stake is between the 1st defendant and 2nd defendant and the action of the 1st defendant of non-accreditation or invalidation of same was meted out to the 2nd defendant not the 1st respondent. The learned trial judge and the 1st respondent talked about the impact of the invalidation on the 1st Respondent being devastating, this would be best sorted out in an action for defamation which this is not. The 1st respondent has no power to fight the 2nd Respondent’s battle, he was not part of the accreditation exercise and likewise not part of the decision of invalidation of their assessment of the law faculty in the University. With due respect, I would term the Plaintiff’s action as that of a “busy body”. It was up to the University to complain and not the plaintiff who sued the University as 2nd defendant. This implies that the University also wronged the Plaintiff who has turned round to fight the battle for the University that he also sued.
Further, it is the University that was affected that could challenge the regulating body if it so wishes, but the University did not, no wonder from the printed records even though represented by counsel in the lower court, chose not to challenge the Plaintiff’s action and filed no processes. The Appellant did not regulate the Plaintiff’s conduct and had no business with him. The reliefs claimed were not for the benefit of the 1st respondent and ought to have been struck out by the learned trial court as it constitutes an abuse of the process of the court. In this case as I stated earlier in this judgment, the issue of accreditation or invalidation of same was between the University and the appellant, the 1st Respondent was not part of it to be entitled to claim any right or obligation under it. In this case it does not matter that he as a third party may have suffered as a result of the non-accreditation or invalid result of the accreditation exercise the University’s failure to meet up with their obligations or the appellant not validating the accreditation exercise, or otherwise, whatever the case may be. From the learned trial judge’s holding at page 300 above, the court acknowledged this fact.
Further, was the Plaintiff in a position to establish whether the University had complied with the terms and guidelines of the licence and in view of full accreditation of the faculty of law in the University? In my humble view, the 1st Respondent was not in a position to do anything about the conditions and the contents of the licence and the requirement for accreditation of the law faculty in the university. Another question is: is he in a position to say whether it was right or wrong for the Appellant to have declared the accreditation exercise invalid, even though he alleges to have been a student of the University? He was not in a position to do so.
Exhibits ‘SA12’ and ‘SA12A’ were relied upon by the Respondents to show that the Appellant had withdrawn the accreditation given to the University by the Appellant. The above Exhibits were a Newspaper Publication of October 12th, 2009 Headed: Guidelines and conditions for the Establishment of Faculties of Law in Nigeria, they were issued by the Appellant and the Director General of the Nigeria Law school acting for the Council of Legal Education. There were 15 (fifteen Guidelines) and Notes at the end of it. Nos. 1, 3, 14 and 15 are as follows:
1. “Under no circumstance shall students be admitted and/or enrolled into any proposed Faculty of Law unless and until requisite approval has been granted by the National Universities commission/council of Legal Education.
3. Senate Approval: there must be evidence of prior approval of the University senate on the establishment of the Faculty of Law (Extract of the Senate decision must be attached).
14. Law Programme commenced during the currency of the moratorium remains illegal, unapproved and unrecognized.
15. Sanctions: Any faculty of Law that is established without concurrent approval of NUC/CLE, in line with these guidelines shall be closed down and the officers of the University and Faculty responsible shall be sanctioned in line with relevant Laws.”
At page 50-53 of the printed records, the conditions in the guidelines covered several subheads which included: academic brief, senate approval, non-law courses, number of departments, staffing (academic staff, staff mix, non-academic staff) law library, physical facilities, classrooms/seminar rooms, auditorium, staff office, moot court, student common room, dean and heads of department offices learning environment, funding, curriculum, induction number and conveyance of approval.
It is the university that would face the music so as to say, if these conditions were not fulfilled and the university sets up a Law Faculty and continues to operate it; it would then suffer the sanctions enumerated in the guidelines especially paragraphs 14 and 15 set out above.
In the present circumstances the plaintiff who says he has the locus standi to have brought the action having graduated from the university is not and cannot be in a position to prove to the court or anybody else that the university had complied with the required conditions. The guidelines were directed to all universities and institutions in Nigeria wishing to establish or which has established a Faculty of law. It was not targeted at Lead City University Ibadan in particular. The Plaintiff could not have been in a position to prove that the university had met the conditions for the grant of the licence and that the university was entitled to retain the licence on the basis that it was complying with the terms with no short comings or fall. This confirms that the 1st Respondent had no standing to institute the action. He was not representing the interest of the 1st Respondent that he sued along with the Appellant and I so hold.
The learned trial judge ought not to have held that the 1st Respondent had the locus to institute the action and seeking the reliefs in which the beneficiary was the 2nd Defendant. The lower court (at page 320 of the records) acknowledged the 1st Respondent’s lack of locus standi when he held thus:
“The onus is not on the plaintiff to show that the said exercise of early March, 2008 took place or not. It is also not the duty of the plaintiff to establish that the data and records were not collected by the council of Legal Education. The plaintiff exhibited the Accreditation panel Report Form Exhibit ‘SA9’. End result of the form was recommendation for Approval. Exhibit ‘SA8′ is an extract from the Visitors’ Book of the 2nd Defendant. The comments made by some visitors that signed the Book rated the Faculty of Law of the 2nd Defendant highly. Where then did the 2nd Defendant fail?”
The comments were mere opinion and assessment on the face of the university by the visitors; it was not the required accreditation as stipulated by law. The visitors did not constitute the accreditation panel and the comments were not the required report, The NUC has not alleged lack of facilities at the Lead City University Ibadan but, rather that the accreditation exercise was invalid for the reason that the CLE which was supposed to be present as stipulated in the Acts were not present, no alternative meaning should or could be read into the accreditation report of invalid result.
The 1st Respondent argued that he had locus standi to have instituted the action because he was a student and graduate of the university. In his verifying affidavit in support of his originating summons paragraphs 2, 5 and 11 he averred that he was a law Student of the Faculty of Law, Lead City University, Ibadan between 2005- 2009, Exhibit ‘SA1’ is a copy of his admission letter. He averred that the university was licenced and an approved Private University in Nigeria, and Exhibited a copy of the licence Exhibit ‘SA2’. Also that the 1st Defendant on 15th April, 2008 approved the establishment of the Law Programme, the letter conveying the approval is Exhibit ‘SA6’. There is no question as to or about the approval of the university as a Private one in Nigeria. Also no doubt that there was approval to establish the Law Programme in 2008. One thing is worthy of note, there is a difference between licence to operate as a private university and approval to establish a Law faculty, those are two different things altogether. Even after an establishment of a Law Faculty there is still the hurdle of keeping up or meeting up with the guidelines for the establishment, retention and accreditation of the Law Faculty. One thing is clear, even after the Law Programme has been established, the approval to establish same if already given could be revoked/withdrawn or accreditation revoked or invalidated if the programme does not conform or meet up with the guidelines above for its continued existence, paragraphs 14 and 15 of Exhibit ‘SA12’ and ‘SA12A’ are not ambiguous.
From Exhibit ‘SA1’ (a copy of admission letter) (pages 11-12 of the records) the Plaintiff was admitted on 22nd May, 2005, while Exhibit ‘SA2’ (pages 12-13 of the records) the licence given to the 2nd Defendant to operate as a private university is dated 9th day of June, 2005, in essence, the Plaintiff was offered admission for the Law Degree in the University when it had no licence to operate as a Private University. The Plaintiff in the lower court relied upon (accepted by the learned trial judge) on Exhibit ‘SA6’, see, (paragraph 11 of the Plaintiff’s verifying affidavit) the Appellant’s letter NUC/AS/122/VOL.1 of the 15th April, 2008 in which the establishment of the Law Programme was approved. As I said above, approval to establish a faculty is not automatic accreditation where the department falls short of the requirements, it could be revoked which is not the case here. No doubt the approval to establish the Law Programme was granted, but the last paragraph of Exhibit ‘SA6’ stated thus: (pages 25 – 26 of the records)
“I am to further advise that in view of the enormity of the problems associated with unapproved programmes, universities should not commence the running of any academic programme/unit until requisite approval has been granted by NUC to avoid putting the future of the students in jeopardy as the commission will no longer attend to requisite in retrospect.”
Exhibit ‘SA6’ emanated from NUC signed by Prof. L. Alhassan Bichi MNIM Director, Academic standards For: Executive secretary.
The preceding paragraph stated thus:
“The University is by this letter requested to forward to the commission duly completed self-study forms on the programmes that are mature for accreditation.”
Exhibit ‘S46’ is clear and explicit. Approval to establish the Law Faculty in the university was given in April, 2008 while the Plaintiff commenced his Law Programme in the University in May, 2005, see, Exhibit ‘SA1’.
In Exhibit ‘S46’, the NUC requested that the university should forward to the commission duly completed self – study forms in view of programmes that are mature for accreditation, for the processes to commence, obviously, the law programme had not been accredited. The NUC envisaged the situation that has arisen in the Lead City University Law Faculty when it cautioned (like a prophet) and advised that in view of problems associated with unapproved progremmes, universities should not commence the running of any academic programme or unit until requisite approval has been granted by the NUC to avoid putting the future of students in jeopardy. In the present case the university (2nd Respondent) commenced the law programme before the approval in April, 2008 and had admitted the likes of the 1st Respondent and others, in a worse scenario where the 1st Respondent was admitted to study law even before the university was given the licence to operate as a private University.
The university acted illegally when it admitted students to study law when the university had not been approved to take off. As at the time the Plaintiff was admitted to study law in 2005 he was not a recognized student of the law faculty of the university as he claims. The plaintiff and the lower court were of the view that the law faculty was approved as far back as April 2008, while the Plaintiff graduated in 2009 in a five year course of study. The approval was not indicated on the face of Exhibit ‘S46’ or any other document to operate retrospectively to take care of or cover up those like the Plaintiff that commenced their study of law before the licence for the university to be established and before the law programme was approved, to talk of accreditation which the university’s law programme had not been granted. Can this court hold that the Plaintiff who had an illegal and/or invalid admission be said to have locus to sue the Appellant for not validating the accreditation of the University to enable him and others attend the Nigeria Law School? Between 2008 April and 2009 the law faculty of the University was approved but, not yet to accredited. The plaintiff cannot rightly claim to be a law graduate of the University who has been denied any right or obligation by non-validation of the law programme of Lead City University after the accreditation exercise carried out by the NUC. In my humble view the plaintiff did not have the capacity to have taken out this action to challenge the actions of the NUC and the non-action of the Council Legal Education. Further, it is not possible for the plaintiff to have graduated within a year of study to qualify as graduating from the university, worse still no accreditation had been granted the faculty of law even within the one year between 2008 and 2009. The plaintiff’s claim as a graduate of law not having gone to the Nigerian Law School (due to non-accreditation of the law faculty) who suffered loss is also misconceived to say that the Exhibit ‘SA6’ relied on by the 1st Respondent and the lower court (at page 325 of the records) to hold that there was approval for the law faculty dated 15th April, 2008 in which the approval to set up the law faculty was contained. Exhibit ‘SA2’ dated 9th June, 2005 was the licence approving the set-up of the university. The actual letter of approval and take off of the university was not Exhibited by the 1st Respondent in his verifying affidavit but the Appellant in his counter affidavit as 1st Defendant attached to his counter affidavit Exhibit ‘IDA’ dated 3rd June, 2005 referred to in paragraph 9 of the Appellant’s verifying affidavit, at page 231 of the printed records, headed “Approval and take off of Lead City University, Ibadan.”
Approval was given to establish the University, subject to some conditions (i) (ix); of particular interest is paragraph (ii) which states thus:
(ii) “The start-up colleges will comprise the colleges of management sciences, information and communications technology and some Department in the college of Humanities. The left-over Departments in the Humanities will be established in the third phase. The post graduate school will also be in the third phase”. The College of Law is deferred for now. Underlined mine for emphasis)
Exhibit ‘IDA’ is dated 3rd June, 2005 while Exhibit ‘SA1’ the plaintiffs admission letter is dated 22nd May, 2005, while approval for the programme was 15th April, 2008. From the date of the plaintiff’s admission and course of study of law at the Lead City University, Ibadan he was an unrecognized or illegal law student and naturally “graduate of law”, not qualified to challenge any actions of the Appellant for invalidation of the accreditation carried out in the University. The Law Programme was not one of the approved courses in paragraph (i) of Exhibit ‘IDA’ as at the date of the 1st Respondent’s admission, his admission was illegal and cannot operate ahead of the approval date for the licence to the university to operate as a private university. Also, the approval of 2008 cannot operate retrospectively to favour the 1st Respondent. The learned trial judge was therefore wrong when he held at page 315 of the records thus:
“It is obvious that the Plaintiff has established a special though private interest in the subject matter. The plaintiff’s complaint is that the directive or action of the 1st Defendant has or is going to affect his interest as a law graduate who is intending to proceed to the Nigerian Law School. The plaintiff has thus established a locus standi to institute this action.”
The 1st Respondent had argued in his brief that Exhibit ‘IDA’ is inadmissible in law being a photocopy of an uncertified document, with respect; I am of the opinion that this argument is belated, same is discountenanced.
In respect of the 1st Respondent being a Law Graduate of the University, in the case of IBRAHIM V. OSIM 1988 (supra). The Apex court held that where illegality is apparent, the pleadings ought to be struck out and the court ought to dismiss the action. The 1st Respondent cannot rely on an illegal act to enforce a claim or right as in this case. The illegal admission of the 1st Respondent by the 2nd Respondent robbed the 1st respondent of any locus standi to sue, he cannot benefit from it. See, SALEH V. MONGUNO (2006) (supra). Since the 1st Respondent lacked the capacity to sue, the lower court lacked jurisdiction to entertain the matter and I so hold.
The 2nd Respondent challenged the Appellant’s issue of illegality as raised by the Appellant, since it borders on the jurisdiction of the court to entertain the matter, it could be raised at any stage, see, FABOOLA V. K.C.C.I.M.A. (2006) 6 NWLR (PT. 977) PAGE 433 AT 437.
The 1st Respondent took out the action for the reason that his ambition to become a lawyer has been put in jeopardy and a lot of resources committed, page 9 of the records, also that he misled the Bishop of Akure to send his daughter to the Lead City University to study law when it had not been accredited.
It is unfortunate that realization of the 1st respondent’s ambition cannot be enough reason for this court to confer the capacity to sue on him. As I stated earlier in this judgment, as to the 1st respondent being brought to public odium in respect of his graduation, certificate and awards would be better addressed in an action for defamation which this action is not, the argument is discountenanced. The 1st respondent had no locus standi to have instituted this action. In sum, the appellant’s first issue (also the respondents’ 1st issue respectively) is resolved in his favour. In consequence, the action ought to have been and is hereby struck out and the appeal allowed on this issue alone.
This appeal should have ended here, having held that the 1st respondent had no locus to have instituted the action, and having struck out same, but, this court being an intermediate court that could be wrong on my stand in deciding that the 1st Respondent as plaintiff lacked the locus standi to have instituted the action in the lower court, for this reason I am duty bound to resolve all the other issues on their merits in case I am wrong. His Lordship Akpata, JSC in the case of NIPOL LTD. V. BIOKU INVESTMENT & PROM LTD. 1992) 23 NSCC (PT. 1) 606 at 618; (1992) 3 NWLR (PT. 232) 727 at 747 while relying on his previous decision in FRANCIS ADESEGUN KATTO V. CBN (2000) 18 WRN 108; (2001) FWLR (pt. 56) 778; (1990) 22 NSCC (pt. 2) 736; (1991) 9 NWLR (pt. 214) 126 at 149 in this respect following observation:
“Where trial court after holding that it had jurisdiction proceeded to determine the matter before it and an intermediate Court of Appeal thinks the trial court lacked jurisdiction, the said intermediate court should in the alternative resolve the complaints in the appeal. Unless both counsel, particularly respondent’s counsel, concede that the trial court lacked jurisdiction in the matter. While the Supreme Court, being the final Court of Appeal, can afford not to pronounce on other issues placed before it where it finds that the trial court lacked jurisdiction, the Court of Appeal whose stance on jurisdiction may be faulted by the Supreme Court should not ignore other issues raised in the appeal. It should pronounce on them.”
(Underlining mine for emphasis).
See, also the case of AWOJOLU v. ODEYEMI (2013) 14 WRN p. 28 at 81, PARAGRAPHS 18-47 where I relied on the above decisions in holding same.
The appellant’s second and third issues were argued together, I will resolve same in the same manner. I will start by reproducing for ease of reference the law that empowers the Council of Legal Education (CLE) and the National Universities Commission (NUC) to grant approval or otherwise for accreditation of a faculty of law in Nigeria.
Section 1 (2) of the Council of Legal Education Act Cap 206 LFN 2004 provides:
1 (2): “The Council SHALL have responsibility for the Legal Education of persons seeking to become members of the Legal profession”
While, Section 4 (1)(b)(i) and (iii) of the National Universities Commission Act provides as follows:
“The functions of the commission shall be to –
(b) Prepare after consultation with all the state governments, the Universities, the national manpower board and such other bodies as it considers appropriate periodic master plans for the balance and coordinated development of all Universities in Nigeria and such plan shall include –
(i) The general programmes to be pursued by the Universities, in order to ensure that they are fully adequate to meet national needs and objectives.
(iii) Recommendation for the establishment of new academic units in existing Universities or approval or disapproval of proposals to establish such academic units.” (Underlined for emphasis).
Also, section 10 (1) of the Education (National Minimum Standards …..) Act provides:
(1) “The power to lay down minimum standards for all universities and other institutions of higher learning in the Federation and to accredit their degrees and other academic awards is hereby vested in the National Universities Commission in formal consultation with the universities for that purpose, after obtaining prior approval thereof.”
Also of note is the provision of the Legal Education (Consolidation) Act, Cap 206 LFN 2004 as to the Establishment and functions of the Council of Legal Education which provides as follows:
1.(1) “There shall be a body to be known as the council of Legal Education (hereafter in this Act referred to as “the council”) which shall be a body corporate with perpetual succession and common seal.
1. The council SHALL have responsibility for the Legal Education of persons seeking to become members of the Legal profession.
2. (1) The council shall consist of—
(d) the head of the faculty of law of any recognized University in Nigeria whose course of Legal Studies is approved by the council as sufficient qualification for admission to the Nigerian Law School;
(5) The Council shall have power to do such things as it considers expedient for the purpose of performing its functions, but no remuneration shall be paid to any member of the council in respect of his office.”
From the above provisions the accreditation of a faculty of law in Nigeria is the requisite approval granted by the NUC (Appellant) and the Council of Legal Education (CLE) by virtue of S. 1(2) of the Legal Education (Consolidation, etc.) Act. It is a mandatory responsibility by its wordings:
“The Council SHALL have responsibility for the Legal Education of persons seeking to become members of the Legal profession.” While Section 4 (b) (i) and (iii) of the National Universities Commission Act and Section 10 of the Education (National Minimum Standards….) Act both confer on the Council of Legal Education the responsibility in Section 1 (2) of the CLE Act. The above laws empower the Appellant to approve or disapprove new academic units/programmes and lay down the required minimum academic standards and conduct accreditation exercises following the guidelines stipulated in the various laws.
The 1st respondent had argued that the appellant by challenging the merit of the 1st respondent’s case on appeal, the appellant is now setting up a different case on appeal which is not permitted in civil litigation.
To this I would say that appeals are based on issues tried and decided upon by the lower court. It is evident from the records that the lower court after resolving the issue of locus standi, proceeded to look into all the other issues on the merit, from page 300 of the printed records. The 1st respondent did not react to the resolution of the merit of the other issues and cannot do so now as it is belated, I therefore discountenance the argument on this point.
The respondents contended that the appellant had accredited the law faculty after the approval given the University to establish her law faculty; reliance was place on Exhibit ‘SA11’, page 47 of the records, and Exhibit ‘SA6’, page 25 of the records. While resolving the first issue I touched on the contents of Exhibits ‘SA6’ and ‘SA11’. From the contents of Exhibit ‘SA11’ the Faculty of Law of the University was not accredited by the Appellant, the letter dated 22nd September, 2008, page 45-49 headed “Results of the 2008 MOP UP. Accreditation of Academic programmes in Nigerian Universities”. At page 47 “Summary of Results of May, 2008 MOP UP Accreditation Exercise” for Lead City University, Ibadan: From the table of results, there was no score for Law, No Accreditation status was given, under Remarks, it stated thus: “Considered invalid since Legal Council of Education was not represented.” The column for maturity date was blank as well as the last accreditation result, Biochemistry had full accreditation and it is not in dispute. Under the list of results: out of the two faculties Law and Biochemistry, invalid Result was ‘1’ while full accreditation was also ‘1’. The reason given for the invalidation was due to the nonappearance of Council of Legal Education. From these results, there was no accreditation or decision taken in respect of the Law Faculty. The NUC did not declare the law faculty illegal, unapproved and unrecognized as alleged by the respondents. The Lead City University, Ibadan was not accredited for Law. The summary of Results is reproduced below for ease of reference.
NATIONAL UNIVERSITIES COMMISSION
LEAD CITY UNIVERSITY, IBADAN
SUMMARY OF RESULTS OF MAY, 2008 MOP-UP ACCREDITATION EXERCISE
TOTAL ACCREDITATION REMARKS MATURITY DATE LAST ACCREDITATION
o/o SCORE STATUS RESULT
1 LAW
(i) Considered
invalid since
Legal
Council of
Education
was not
represented.
2 SCIENCE
(i) Biochemistry 83.7 FULL 2012
Total Number of Programmes Accredited = 2
Number with FULL Accredited Status = 1 (100.0%)
Number with INTERIM Accredited Status = 0 (0.0%)
Number with DENIED Accredited Status = 0 (0.0%)
Invalid result = 1
Invalid result due to non-representation of Council of Legal Education.”
Exhibit ‘SA11’ to the contrary declared as invalid the accreditation exercise conducted by the Appellant on the ground that the Council of Legal Education was not represented and did not participate in the exercise.
As rightly argued by the learned counsel to the appellant, under such circumstance as above, the University would have rescheduled the accreditation visit and exercise, and invited both the Appellant and the Council of Legal Education to conduct the accreditation exercise, instead the 1st Respondent instituted the present action to challenge the authority of the Appellant, while the University sat back and did nothing, which in my humble view were not the right steps. This was also observed and condemned by the trial court when he held thus: (page 45 of the records)
“Defendant made no contribution to success or failure of the case. I am very disappointed as I condemn the posture of “sit don look”
In respect of Exhibit ‘SA11’ relied upon by the 1st Respondent to argue that accreditation for Law Faculty had been granted the University which was endorsed by the trial court, the lower court held thus: (at pages 303-304 of the printed counts),
“On 22nd September, 2008 the National Universities Commission, i.e. 1st Defendant wrote a letter to the Vice Chancellor of the 2nd Defendant i.e. Exhibit ‘SA11’ in which the 2nd Defendant was given full accreditation status which was valid for a period of five years.
By Exhibits ‘SA12’ and ‘SA12A’ the 1st Defendant and the Nigerian Law School caused to be published in THE NATION newspaper of Monday, October 12, 2009, Guidelines and condition for the Establishment of Faculty of Law in Nigeria, published several law faculties and tactfully excluded the 2nd Defendant’s faculty of Law”
By the above holding, the learned trial judge with respect misconstrued the contents of Exhibit ‘SA11’ to be evidence of full accreditation of the Faculty of Law of the University. The above exhibit did not accredit the law programme in the University; in fact no decision either way was taken (that is accrediting or refusal), the result of the exercise was declared invalid due to the non-representation or absence of the Council of Legal Education in the accreditation exercise as mandatorily required, as the sole body that is empowered to oversee the legal education of persons seeking to become members of the legal profession. The lower court was wrong to have held above that the name of the University was “tactically excluded” in the list of faculties of law in Nigeria, in Exhibits ‘SA12’ and ‘SA12A’, which was not made with the Lead City University, Ibadan only in mind. With the wrong interpretation by the lower court (with due respect) the court also held (at page 325 of the records) thus:
“The 1st Defendant from what I have said variously above is estopped in law from declaring the law programme of the 2nd Defendant invalid. This is so because the 1st Defendant per Exhibit ‘SA6’ approved the programme, I agree with the plaintiff that the exclusion of the 2nd Defendant per exhibits ‘SA12’ and ‘SA12A’ to the list of approved Faculties of Law is not only wrong but mischievously unlawful.
It is too late in the day to withdraw the accreditation already accorded to the 2nd Defendant. On the whole, the action of the plaintiff is well founded and I hold that same has merit.” (Underlined mine for emphasis)
In respect of the above holding I would say that the law programme was not declared invalid but the accreditation exercise was. Secondly, Exhibit ‘SA6’ dated 15th April, 2008 approved the establishment of the faculty which did not automatically qualify to have been listed in Exhibits ‘SA12’ and ‘SA12A’ if the Faculty of Law had not been partially or fully approved and accredited for law programmes as at when the Exhibits were issued on 12th October, 2009, the non-listing cannot be rightly faulted by the trial court. There was no accreditation of Law Faculty of the University, therefore the issue of withdrawal of same did not and would not arise.
Exhibit ‘SA6’ was headed: “Resource Assessment visit to Unapproved/New Academic Programme/Unit in Nigerian Universities”, there was nothing in it to show that apart from the approval to establish the law programme, that accreditation had been accorded the faculty. As I stressed earlier in this judgment approval to establish a law faculty is quite different from accreditation of same. The granting of approval to establish a law faculty is not the same as approval of the courses and accreditation by NUC and Council of Legal Education of the faculty. To further show Exhibit ‘SA6’ cannot be interpreted to be proof of accreditation but, made it clear that it was yet to be approved. Part of the 1st paragraph of Exhibit ‘S46’ read thus:
“…the commission, after a careful study of the reports of the panels, has granted approval for the establishment of the following Units/Programmes.
(i) BSC Biochemistry
(ii) Law”
Further:
“The university is by this letter requested to forward to the commission duly completed Self-Study forms on the programmes that are mature for accreditation.
I am to further advise that in view of the enormity of the problems associated with unapproved programmes, universities should not commence the running of any academic programme/unit until requisite approval has been granted by NUC to avoid putting the future of students in jeopardy as the commission will no longer attend to requests in retrospect.” (Underlined mine for emphasis)
From the above extract, all the Exhibit talked about was approval for the establishment of the faculty and a request to forward to the commission self-study forms in view of accreditation. The 1st respondent as Plaintiff was wrong to have relied on Exhibit ‘SA6’ as proof of accreditation.
Worthy of note is that Exhibit ‘SA6’ was dated 15th April, 2008, when the University’s Law Programme was allegedly accredited yet the University participated in the inspection conducted in May, 2008 in view of or preceding accreditation (pre accreditation visit).
The University signed the inspection reports and thanked the Appellant after the inspection exercise in May, 2008. It cannot be rightly said that accreditation had been granted by Exhibit ‘SA6’ dated 15th April, 2008.
In my view, the learned trial judge in his view blew hot and cold. In one breath agreed with the respondents that full accreditation had been granted for Law Programme valid for five years, in the University and in another, acknowledged its non-accreditation by the final orders it made in favour of the respondents that accreditation be given. This is contradictory. Also, In one breath the learned trial judge had held that the Council of Legal Education had no role to play in the education of persons desirous of becoming members of legal Education in another proceeded to order that the Appellant should arrange (within sixty days) and secure from the Council of Legal Education a date to assess the facilities of the Faculty of Law of the University with a view to curing any observed lapses, the seventh order of court in the judgment at page 326 of the records, thus the trial court recognized the role of the CLE in the education of those desirous of becoming lawyers in Nigeria.
The questions before the court concerned the legality of the Appellant’s action of declaring the accreditation invalid, the adverse comments by the trial court against the council of Legal Education had no place in determining the matter. The issue is whether the Faculty of Law of the 2nd Respondent deserved to be accredited, which is what prompted the plaintiff’s action. There was no proof that the Guidelines and/or the laws were targeted at the 2nd Respondent, far from it, they were made for the benefit of all Nigerians, particularly in this case those seeking to belong to the legal profession, to ensure that equal standards are maintained in the university, at the faculty level and subsequently qualification for admission into the Nigerian Law School.
The learned trial judge in his orders acknowledged the fact that there had been no accreditation of the law faculty, at page 326 of the records when he ordered thus:
“I make the following orders:
3. The 1st Defendant is estopped or restrained from resiling from the approval and recognition it had earlier accorded the law programme of the Lead City University, Ibadan.
4. The 1st Defendant is hereby ordered to issue the result of the Accreditation Exercise of May, 2008 applying only its stated yardstick as contained at paragraph 2(a), (b) and (c) of its letter with Reference Number NUC/LSS/ACCRED/VOL.1/03 of 22nd September, 2008.
5. The 1st Defendant is ordered to include the Faculty of Law, Lead City University, Ibadan in the list of approved, legal and recognized Faculties of Law Nigerian Universities with effect from 15th April, 2008.
7. The 1st Defendant shall within a period not exceeding 60 days arrange and secure from the council of Legal Education a date and visit to reassess the facilities of the Faculty of Law, Lead City University, Ibadan to cure any lapses or perceived deficiency to enable the graduated law students proceed to the Nigeria law School this year, 2011.” (Underlined mine for emphasis)
If the Faculty had been accredited, the lower court would not order NUC to issue the result of the accreditation exercise of May, 2008 and the orders in paragraphs 5 and 7 above would not have been made.
I had held that; there was no accreditation of the Law Faculty by the NUC and the Council of Legal Education by Exhibits ‘SA6’, ‘SA11’ or any other document. Paragraph 1 of the order also held thus:
“1. It is hereby declared that the 1st Defendant has no power to disapprove the Law Programme of the Lead City, University, Ibadan as it has purportedly done as same was not made in conformity with section 4 (i) (a), (b) (i), (ii) and (iii) of the National University Acts, 2004.” (Underlined for emphasis)
The above order in my humble view is also erroneous, the 1st defendant (now 1st Respondent/NUC) did not disapprove the Law programme, but declared it invalid. The word invalid in the 7th Edition of the Oxford Advanced Learner’s Dictionary (International Edition) has been defined as:
“Not legally or officially acceptable.”
Similarly, in Black’s; Law Dictionary, 7th Edition, page 829 as:
“Not legally binding”
It is not the same as disapproval.
In respect of the third order above, the Appellant not having granted any order of accreditation did not resile from same as erroneously held by the learned trial judge in the order. Further, the learned trial judge had held that the appellant could not withdraw accreditation except with the prior approval through the Minister, from the president and that there was no approval sought and obtained from the President through the Minister, page 319-320 of the records. Since I have stressed continuously, that there was no accreditation the issue of withdrawal of same through the minister, after approval by the NUC does not arise, also the argument of the appellant that there should be presumption of regularity in favour of the appellant also does not arise. All the submissions of counsel in that respect are hereby discountenanced, and the court’s finding also discountenanced. As a whole, I hold that the learned trial judge having misconstrued Exhibits ‘SA6’ and ‘SA11’ amongst others arrived at a wrong conclusion, for this reason I resolve the Appellant’s issues 2 and 3 in his favour.
The Appellant’s fourth issue is questioning the lower court’s evaluation of the entire evidence before arriving at its decision granting the reliefs sought by the plaintiff in the lower court. The learned trial judge acknowledged the fact that the preliminary objections earlier filed by the Appellant had been struck out with the supporting affidavit yet the trial court ought not to have relied on same in his judgment as those processes were no longer relevant for the court to have referred to same in holding that the NUC had no reason contained in the struck out processes for the alleged threat or directives to close down the Faculty of law, page 304 of the records. Also, at page 312 of the records the trial court referred to 1st Defendant (Appellant) deposing in his affidavit as follows:
“We therefore do not concern ourselves with the merit of the case as presented by the plaintiff.”
The respondents had also relied on this deposition to argue vehemently that the appellant conceded the reliefs sought in the substantive suit in the lower court but rather pursued only the issue of challenging the locus standi of the Plaintiff to institute the action. The findings were erroneous having been made based on a preliminary objection that had been struck out with the supporting affidavit, that is, the findings, that no reason was given for the directives to close the law faculty and also that the appellant conceded the reliefs sought by the Plaintiff not having defended the suit on the merits. It is worthy of note that there was no threat or directive by the NUC to close the faculty of law as stated by the learned trial judge in his judgment, at page 304 of the records, 2nd paragraph. It is clear that all that the NUC and the CLE did was to publish guidelines for the establishment of faculty of law and listed Universities whose faculties had been either fully or partially accredited in Exhibits ‘SA12’ and ‘SA12A’. The publication was not directed or aimed at only the Lead City University. It was for the benefit off all Universities in Nigeria to enable them if nothing else know their status concerning their law faculties. The list did not indicate those with denied or invalidated status. It was for the benefit of all the Universities and for the general public I would say while the appellant made out that he was not given fair hearing by the trial court, the respondents insisted that he was. The appellant’s allegation is that the lower court did not consider and/or evaluate the counter affidavit and the written address filed and adopted on behalf of the appellant in opposition to the originating summons, this is evident as the trial judge relied upon the wrong processes. In the case of EJATA V. OLOGBO (2007 ALL FWLR (pt. 386) 584 at 607-611, PARAS G-E, the Apex court admonished the lower courts to pronounce as a general rule on all issues properly placed before them for determination. Failure to do so would lead to a miscarriage of justice; see, also the cases of FINNIH V. IMADE (1992) 1 NWLR (pt. 219) and OJOGBUE and ANOR. V. NNUBA and ORS (1972) ALL NLR 664. In the present case the learned trial judge had held thus: (Page 304 of the records)
“The learned counsel for the defendants have not challenged or controverted the facts deposed to in the Plaintiff’s processes. All such facts not having been denied or controverted are deemed admitted”
This finding is also erroneous, I had also made it clear in this judgment while resolving the preliminary objections that the appellant as 1st defendant denied and controverted the depositions in the originating summons and its counter affidavit which was not utilized or appraised by the trial court. I agree with the learned senior counsel to the appellant that the learned trial judge with due respect, did not properly appraise the law and evidence before arriving at its conclusions in granting the reliefs sought by the Plaintiff. The trial court held thus:
“I agree with the plaintiff that the exclusion of the 2nd defendant per Exhibit SA12 and SA12A in the list of approved Faculties of Law is not only wrong but mischievously unlawful.”
From the reliefs sought arising from the questions formulated for resolution by the plaintiff in the trial court, the trial court in granting the reliefs sought against the NUC and the 2nd defendant (Lead City University) castigated the council of Legal Education in the following words, which I earlier reproduced while considering issue one, I will do so once again, thus:
“The Council of Legal Education has arrogated too much power to itself.
The Council of Legal Education in this matter behaved as a despot, tyrant and great oppressor.
The Council of Legal Education Acted in malice and vindictively against the 2nd Defendant which affected the Plaintiff.”
See, pages 323-324 of the records. At page 320-323 the trial court had also held concerning the relationship between the council of Legal Education and NUC in performance of their statutory roles thus:
“As I noted above, there is nothing in both Acts pertaining to the 1st Defendant directing it to subjugate its functions to the whims and caprices or control and dictation of the Council of Legal Education. I have seen the Law or Act setting up the council of Legal Education. It does not have a supervisory role or control of the accreditation or de-accreditation of Law Faculties in Nigeria Universities, public or private, Federal or State.”
In my considered but humble view there is nothing to show that the appellant had subjugated its functions to the “whims and caprices or control and dictation of the Council of Legal Education”. The learned trial judge’s view or assessment is wrong because the supervisory role of the council of Legal Education was spelt out by the CLE Act and the NUC Act which stipulated that it performs its duties in consultation with the appropriate bodies. Section 1 (2) of the Council of Legal Education Act (supra) provides:
(2) “The Council shall have responsibility for the Legal Education of persons seeking to become members of the Legal profession.”
While Section 2 (5) provides thus:
(5) The council shall have power to do such things as it considers expedient for the purpose of performing its functions…”
Section 4 (1) (b) of the National Universities Commission Act (supra) vests authority in the Appellant, not to itself alone in consultation with such other bodies as it deems appropriate, to make recommendations for the establishment of new academic units in Universities or approve or disapprove proposals for the establishment of such academic units.
There was no basis for the trial court’s conclusion that the CLE had arrogated to itself supervisory role control over the accreditation, on the-accreditation of Law Faculties in Nigerian Universities, public or private. Further, there is also nothing to show that the CLE had exceeded its powers as conferred by the Acts. The CLE did not participate in the accreditation exercise and did not deserve the condemnation in very strong language meted out on it by the learned trial judge. The allegation of tyranny, malice and all were not substantiated. I would hold that, these were the learned trial judge’s wrong assessment of the CLE. It is a pity that the trial court in very strong and unpleasant language made adverse remarks and described the CLE in an unexpected terms, the court not being the approving body seems to buy the idea of a watered down standard or different standards for different institutions offering a law degree or any other, whatever the case may be which would make nonsense of the laws made to check the standards by playing its supervisory roles over the approval and accreditation with stipulated guidelines for particular courses, not only Law. The fifth order to include the 2nd Respondent in the list of approved, Legal and recognized faculties of Law with effect from 15th April, 2008 ought not to have been made.
May I not live to see the day such different standards would be applied to enable all such institutions and graduating students qualify in respect of law to attend law school in view of being called to the bar. Then there would be no need to set standards or criteria for approval of courses in Universities and accreditation exercises, not only for law but, other fields like Medicine, Engineering etc. where NUC in a similar way performs the accreditation exercise with their respective supervisory professional Council or bodies. Why, one would ask would the CLE want to victimize the 2nd Respondent, assuming it took part in the accreditation exercise? In this case it did not take part; the issue of victimization does not arise. Without sentiment, the words were too strong and unexpected from a learned judge that passed through the crucible of the CLE. The objective of the CLE Act is to check standards generally of the Faculties of Law and not targeted at the Lead City University alone. The opinion was unnecessary and uncalled for. The duty of the court is to evaluate the evidence before it and take a decision on it based on what is before the court and nothing more. These opinions were not deduced from the evidence before the court, the indictment was wrong, I condemn it.
Further, the provisions of the Acts were made for the benefit of all to avoid having different standards for faculties of law accreditation. The evaluation of the laws which specified the powers of the Councils of Legal Education and the NUC were improperly evaluated as well as the evidence before the trial court.
On the other hand the CLE is mandated to do such things as it considers expedient for the purposes of performing its functions and determines the courses of study sufficient for admission to the Nigerian Law School, which necessitates their participation in the accreditation exercise. The powers are not arrogated, they are conferred by law. Since the responsibility for the approval of the course of Legal Studies is vested in the Council of Legal Education, the accreditation by the 2nd Respondent sought must involve the CLE and if the Council did not participate (as in this case) in the accreditation exercise it was enough to invalidate the exercise carried out without CLE. The 2nd Respondent ought to have arranged for another exercise to be conducted, see, also Section 4 (1) (b) of the NUC Act (supra) which when read with Sections 1-5 of the CLE Act (supra) made it clear that the exercise ought to be carried out jointly by the NUC and CLE.
It is worthy of note that the Appellant is a creation of statute with its functions spelt out in Section 4 of the NUC Act, also Section 10 of the Education (National Minimum Standards and Establishment of Institution) Act, with the power of accreditation of a university under Section 10 (1) of the Education (National Minimum Standards and Establishment of Institution) Act (supra). Section 4 (1) (b) (i) provides NUC with power to consult bodies it considers appropriate and (ii) in order to ensure that they are fully adequate to meet national needs and objectives. In the case of a Law Faculty, the Council of Legal Education, (Minimum Academic Standards) Act. The 1st respondent over looked the NUC Act that created and empowered the Appellant.
The CLE alone would also not have been of any help to the 1st respondent’s course. By the provisions of section 10 above the trial court erred when it held thus:
“The two Acts do not in my view give the 1st defendant power to do so. The question now is by what Act or Law the 1st defendant rely on in purporting to close down the 2nd defendant’s faculty of law after same had been duly accredited”
(Underlined mine for emphasis)
With respect, the learned trial judge over looked or underrated the powers of NUC under the Acts.
To further show that the trial court did not properly evaluate the evidence before it, I will further highlight some of the Exhibits once more. Exhibit ‘SA7’ is the census of Law Faculties in Nigerian Universities dated 8th February, 2008, at page 28 of the records, clearly spelt out the purpose of the census exercise carried out jointly by the NUC and CLE, which were to determine the following:
1. The actual number of students by level in each University;
2. The actual number of Academic staff by cadre.
The University was written the above letter Exhibit ‘SA7’ to complete the required forms and collate the necessary data preparatory to the visit of the census panel in early March, 2008 to verify and collect the collated data. The letter no doubt was co-signed by NUC and CLE, reproduced in the lower court’s judgment at pages 302-303 of the records based on which the court held thus:
“It is obvious that the above letter was co-signed by the Director-general Nigerian Law School and the executive secretary national Universities Commission (1st defendant): The accreditation panel report was duly filled which is annexed as Exhibit ‘SA9’.
(Underlined mine for emphasis)
The co-signatory of Exhibit ‘SA7’ does not have anything to do with the accreditation panel and its report and yet the learned trial judge held that based on Exhibit ‘SA11’ while relying on ‘SA7’ and ‘SA9’ the 2nd Defendant had been given full accreditation status, totally too, which was valid for five years. An examination of Exhibit ‘SA11’ would show clearly that no full accreditation was given by it, I had earlier reproduced the trial court’s view on Exhibit ‘SA11’ at page 303-304 of the records while resolving issues 2 and 3. Full accreditation cannot be read into Exhibit ‘SA11’, and I so hold. With another look at Exhibit ‘SA9’, pages 32-42 of the records, page 41, contains the Accreditation Panel Report Form seeking accreditation for Law, from 18th May – 20th May, 2008, at page 40, under summary of scores, the major headings with subheads under Academic content, staffing, Physical facilities, Funding, Library and Employer’s rating, the maximum scores were given on the left column while the Actual Scores on the right column were all blank with no score entered for the University. Similarly, at page 4 of the records, part of Exhibit ‘SA9’ under the heading (a) Full Accreditation (b) Interim Accreditation and (c) Denied Accreditation, all three columns (a) – (c) were blank. It cannot be rightly said (as erroneously held by the trial judge) that the accreditation panel form was duly filled thus showing compliance and accreditation resulting in Exhibit ‘SA11’.
The 1st respondent contended that paragraph 12 of the counter affidavit of the 1st Defendant/Appellant to the originating summons admitted the fact that the Council of Legal Education participated in the accreditation exercise for the 2nd Defendant, which is not the case, because paragraph 8 of the 1st Defendant/Appellant’s Counter Affidavit in opposition to the Plaintiff’s verifying affidavit reads thus:
“The 1st Defendant denies paragraphs 11, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26 and 27 inclusive and put the Plaintiff to the strictest proof thereof.”
If paragraphs 8 and 12 of the counter affidavit are read together they reveal the fact that Council of Legal Education did not participate in the accreditation exercise as contended by the 1st Respondent. On the other hand, the respondents argued throughout that the Law Faculty in the University was accredited but nowhere did the 2nd defendant prove that the Council of Legal Education participated in the accreditation exercise and the 2nd defendant/respondent did not claim to have been accredited for the law programme.
The University was silent on these issues, which the trial court also condemned the attitude when he held thus: (page 325 of the records)
“Another issue worthily (sic) of note is the attitude of the 2nd Defendant in this case. The Defendant bluntly failed to respond to the claim although counsel always represented the 2nd Defendant in court. The law must grow and the 2nd Defendant made no contribution to the success or failure of the case. I am very disappointed as I condemn the posture of “si don look”
It is obvious that the 2nd Defendant/Respondent had nothing to urge the trial court to talk of making out that the CLE had participated in the accreditation exercise. The 2nd defendant the University in the lower court did not react in any way to the claims of the Plaintiff/1st Respondent.
The trial court acknowledged the non-participation of the CLE in the accreditation exercise when it talked about the hardship the CLE’S absence from the accreditation exercise would cause the students, lecturers, 2nd defendant and the public in general, page 324 of the records. The court held thus:
“The council of Legal Education should have caused the 2nd Defendant to rectify any deficiency caused by its absence during the “purportedly void” accreditations. The Council of Legal Education should have arranged for another visitation.
The question is what problems the absence of the council of Legal Education created for the 2nd Defendant? None, I believe every action directed at institutions, establishment, departments must have a human face. The council of Legal Education did not consider the hardship its purported decision would cause students, lecturers 2nd Defendant and the general public.”
The above holding is not borne out of the records, the CLE did not take any decision concerning the accreditation exercise, it was absent.
Further, the court held thus:
“It is my respectful view that the 1st Defendant cannot in any guise whatsoever predicate its activities on another statutory body which does not have a statutory supervisory role over it. That would amount to gross abdication of ones responsibility. That is void the 1st Defendant cannot benefit from its own wrong.”
I have made it clear earlier in this judgment, the supervisory role of the CLE concerning legal education conferred to it by law. There was no basis with respect, for the above holding, the NUC did not abdicate from carrying out its responsibility and I so hold.
As much as it is not the duty of the appellate court to assess and evaluate the evidence at the trial stage, it is the duty of the trial court, but, where the assessment and or evaluation of same is not borne out of the evidence before the trial court, it is perverse and the appellate court would be constrained as in this case to set it aside as the evaluation and decision arrived at is not supported by the evidence and the law. In the instant case it is evident that the evaluation was defective from all that I have said. I am duty bound to re-evaluate the evidence, which I have done and taken a different view in the interest of justice. See, LAWAL V. DAWODU (1972) 8-9 S.C. 83 at PG. 114-117; TORA V. UKPABI (1984) 1 S.C.N.L.R. 214; INCAR NIG. LTD V. ADEGBOYE (1985) 2 WNLR (pt. 8) 453; ATANDA v. AJANI (1989) 3 NWLR (pt. 111) 511 at 539 and TSOKWA MOTORS (NIG.) LTD. UBN LTD (1996) 9 NWLR (pt. 471) 129 at P. 145 and AGBOKE V. IGBIRA (1997) 9 NWLR (pt. 519) at 48. In my humble view the present case is one of the cases where this court as an appellate court could and would interfere with the evaluation and conclusion arrived at based on the documentary evidence, Exhibits before the court in arriving at its decision granting all the reliefs sought by the plaintiff in the lower court, I hold that the evaluation of the trial court is perverse, I set aside same. The Appellant’s fourth issue is resolved in his favour.
The Appellant’s fifth and last issue is whether the learned trial judge was right in indicting the Council of Legal Education and making orders against that body when it was not one of the parties to the action. The plaintiff in the lower court did not make the CLE a party in its action but, in his third question for determination, questioned the NUC and the Education (National Minimum Standards & Establishment of Institution) Act subjecting themselves to the control, direction, dictation and or supervision of the CLE in the performance of their duties. In resolving the other issues I have shown that the power of accreditation of a Faculty of Law vests in the NUC and the CLE, the CLE was not made a party yet the learned trial judge made orders involving the Council and gave directives which were supposed to be compiled with by the CLE in his 7th order at page 326 of the records, earlier reproduce in this judgment while resolving issue four.
It is trite that an order of court cannot be binding on a non-party. The CLE ought to have been joined for the court to make such order. Exhibit ‘SA7’ relied upon by the trial judge as accreditation was co- signed by the NUC and the CLE, as well as Exhibits ‘SA12’ and ‘SA12A’ which were highly challenged and relied upon by the respondents. In the entire case the appellant made out that it is the duty of the CLE to approve the course of Legal studies in institutions in Nigeria and would therefore determine those qualified for the Nigerian Law School. On this basis, the CLE ought to have been joined as a defendant, since also their non-action or action gave rise to the questions raised by the Plaintiff in the lower court for the determination of the court. In sum the appellant’s fifth issue is resolved in his favour.
I cannot end this judgment without commending the effort and industry put in by counsel on all sides, in the briefs and arguments put forward, with wide research, especially the 1st respondent who is yet to be called to the bar, who appeared in person and also prepared his brief.
As an aside, I am in great sympathy as a parent with the fate of the students that have passed through the 2nd Respondent, with the time spent, resources, and the anxiety caused the parents and the students themselves. I add that accreditation or non-accreditation of courses in the University as a whole, is to check quality, standards and facilities in affected courses (and or Universities when it comes to approval) to ensure that a degree from or as in this case, a law degree from a Nigerian University can be equated with those obtained outside Nigeria if not better, United Kingdom, America, Asia and others, that is, all over the world. This is also to enable us as a nation to attain International Standards in the quality of a degree earned in Nigeria. It is for our own good, I look forward to a situation where our graduates (not just the affected law programme in the Lead City University) could like of old, use our degrees to work abroad if desired, in any part of the world without the issue of accreditation no accreditation arising. This would decongest the job market in Nigeria and encourage education tourism in Nigeria and reduce the huge sums of money we spend daily sending our children and wards abroad for studies, the fund could be utilized or invested in Nigeria and to improve and expand existing facilities in our universities and other higher institutions. Most times too, we lose our graduate professionals to the countries that trained them abroad as most remain and work where they have been trained having adjusted to the lifestyle there.
I would also use this opportunity to advise parents to cross check the status, that is the licence, approval and accreditation, of the institutions and particular courses for which admission is sought for their children and wards, not just the licence/approval for the institution to operate but the approval as well as accreditation for particular courses offered by the institutions, it is for our own good. No institution, parent or student could surely be targeted to be victimized by the NUC, Council of Legal Education or any other approving body for other courses, whatever the case may be. We are all aware of the recent happenings in various Nigerian Universities and Institutions where medical and other professional degrees are awarded by our Institutions without accreditation for the medical and other courses and the graduates are unrecognized by institutions outside this country and these countries abroad would not admit out graduates for specialist programmes and/or post graduate courses. United Kingdom amongst others have ceased to recognize medical graduates from some of our Universities. Coming home, some of the Universities, I need not mention them as it of common knowledge continued unaccredited programmes or programmes that have lost previous accreditation for the particular courses for one reason or the other. We have had situations lately where previously approved and accredited courses later lose their accreditation if and (1) When the guidelines and conditions for their existence are not maintained, sometimes the accreditation is reduced to partial in Federal, State and private institutions alike for which the institutions have to strive for restoration of same. In the present circumstances, the law programme at the University has not been declared unaccredited and was not de-accredited (2) as argued by the Respondent and accepted by the lower court, but, the exercise that would have determined the status of the Law Faculty at Lead City University was not conclusive not having been carried out as stipulated by Law, for this reason it was declared invalid.
In a situation where say Doctors and Pharmacists would graduate with different standards, what happens to the lives they are supposed to save? The lives would be put in jeopardy. That would be ridiculous. The entire Nigerian higher educational system would crash, with no standard in any and every field of study. With the legal profession, even if we shut out eyes to the yet to be accredited law courses here, how about those that want to go abroad and qualify for the foreign bar exams or post graduate studies and a discovery is made that there was no accreditation of the Law Degree in Nigeria in the first place. What would be the fate of the graduates?
The Universities that compromised standards and accreditation have as it is, left their graduates unable to pursue further legal training here, in view of their call to the Nigeria bar, which is an unfortunate situation.
What has happened in the present case would hopefully be a check or serve as a caution sign to other Universities and parents to ensure the status of the institutions before sending their wards there as I advised earlier in this judgment. This includes accreditation of courses offered with the relevant bodies, in respect of law NUC and CLE. Different courses have their various professional and supervisory bodies as stated above.
In some situations, still concerning law faculties in our Universities, institutions with approval for the law programme, fully accredited would exceed and over admit number the institution was accredited to admit, as specified in the guidelines and would turn out far more than the Council of Legal Education and the Nigerian Law School can admit. Graduated students would spend as long as three/four years or even more waiting for the back log to clear before admission to the Nigerian Law School, a situation that could have been avoided, by keeping to the approval and accreditation guidelines. I personally look forward to the day whereas of old, we would have influx of foreign students into the Nigerian Universities and institutions to study law and other courses thus acknowledging our high standard of education in all fields without issues of accreditation or otherwise. So be it.
I would also use this opportunity to implore all concerned that the problem that has arisen is resolved once and for all. There is no problem without a solution. Recently, there were institutions in Nigeria that had full accreditation that were later reduced to partial and some later withdrawn yet had the accreditations restored. The case at hand is easier, in that the only hurdle is to ensure that the accreditation exercise is carried out as stipulated by law.
In the final analysis the appeal is allowed, all the issues having been resolved in favour of the Appellant. The judgment of the Federal High court in FHC/IB/CS/50/2009 delivered on 26th July, 2011 by Shakarho, J. is hereby set aside.
The parties to bear their respective costs.
MONICA B. DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother Chidi Nwaoma Uwa, JCA.
I have nothing useful to add.
ADAMU JAURO, J.C.A: I have had the advantage of- reading in advance the lead judgment just delivered by my learned brother, C.N. Uwa, JCA. I am in full and complete agreement with the reasoning and conclusion contained therein, to the effect that the appeal is meritorious.
It should be noted that approval to establish a University is different from accreditation of courses offered by the University. The approval comes first, thereafter accreditation of courses follows. In the instant case students were even admitted before the approval to establish the university was obtained, this is quite irregular. The accreditation for Law courses is made in conjunction with the Council of Legal Education, which was not done in this case.
For the above and fuller reasons contained in the lead judgment, which I adopt as mine, the appeal is hereby allowed by me. I abide by consequential orders made in the lead judgment.
Appearances
Kanu Agabi (SAN) for Appellant with Peter Erivwode Esq.For Appellant
AND
Rev. Segun Ademola Alli, 1st Respondent appeared in person
K.C. Obisike Esq. with Oluwatobi Ishola Esq. and T.O. Onipede Esq. for 2nd Respondent.For Respondent
