DR. TAIWO OLORUNTOBA-OJU v. ATTORNEY-GENERAL OF THE FEDERATION & ORS
(2016)LCN/8422(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of March, 2016
CA/IL/73/2013
RATIO
PRACTICE AND PROCEDURE: PRELIMINARY OBJECTION; HOW A PRELIMINARY OBJECTION MAY BE RAISED IN AN APPEAL
It is very glaring that issue one raised by the 1st Respondent is tantamount to a camouflage to raise and argue a preliminary objection without complying with the Rules if the Court. The issue is certainly a preliminary objection notwithstanding the disguised nomenclature. The only way by which preliminary objection may be raised in an appeal is by filing a Notice of Preliminary Objection which must be served on the Appellant at least three days before the hearing of the appeal as prescribed by Order 10 Rules 1 & 2 of the Court of Appeal Rules, 2011. In this appeal, the 1st Respondent had not filed a Notice of Preliminary Objection and has thereby offended the above provision of the Rules of this Court. PER. HUSSEIN MUKHTAR, J.C.A.
APPEAL: RAISING FRESH ISSUES ON APPEAL; WHETHER A FRESH ISSUE CAN BE RAISED IN AN APPEAL WITHOUT LEAVE OF THE APPELLATE COURT SIEZED WITH THE MATTER FIRST SOUGHT FOR AND OBTAINED
As a fresh issue also it cannot stand because no new or fresh issue may be raised in an appeal without leave of the appellate Court seized with the matter first having been sought for and obtained. In the case of EKENG v. EFFANGA (2010) All FWLR (Pt. 505) 1650 AT 1670 PARA E-H, it was held as follows: “It is a well-established principle of law that issues proposed for the determination of an appeal should originate, relate to or be distilled from the grounds of appeal. Thus a respondent who has not cross-appealed nor filed a respondent’s notice cannot formulate on issue for determination that is not related to the appellant’s case. Therefore, issue for determination in appeal which is not related to or derived from any of the grounds of appeal challenging the judgment appealed against is incompetent and must be discountenanced together with argument advanced thereunder…” Much as the 1st Respondent is of liberty to raise on issue of jurisdiction anytime and even for the first time on appeal, an issue that is completely foreign to the proceedings and never raised before the trial Court requires leave of this Court as a new issue. As no such leave was sought for and obtained to raise it, the issue on this basis is incompetent and liable to be struck out. See Shanu v. Afribank Plc (2002) 17 NWLR (Pt. 795) 185, (2002) 6 SCNJ 454 at 470-471 and Salami v. Mohammed (2000) 9 NWLR (Pt. 673) 469, (2000) 6 SCNJ 281 at 288. The fresh issue formulated by the 1st Respondent without leave was incompetent and has to be and is accordingly hereby struck out for incompetence. PER. HUSSEIN MUKHTAR, J.C.A.
COURT: JURISDICTION OF COURT; SITUATIONS WHERE THE COURT IS COMPETENT
The 1st Respondent raised this as an issue of jurisdiction, which he said may be raised of any time and stage of proceedings. The Learned Counsel for the 1st Respondent submitted that jurisdiction is the nerve centre of adjudication, the threshold issue and lifeline for legal proceedings. See: INAKOJU v. ADELEKE (2007) 4 NWLR (Pt. 1025) pg. 423 at 588 paras. E-H; S.P.D.C.N. LTD v. GOODLUCK (2008) 14 NWLR (Pt. 1107) pg. 294 of 309 paras. F-G. Jurisdiction is the power conferred on a Court by the Constitution or other statute. In OBIUWEUBI v. C.B.N. (2011) 7 NWLR (Pt. 1247) pg. 465 at 507 PARAS F-G the Supreme Court per ADEKEYE, JSC enunciated the position when he stated thus:
A Court is competent when:
1. It is properly constituted with respect to the number and qualification of members.
2. The subject matter of the action is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction.
3 The action is initiated by due process of law; and
4. Any condition precedent to the exercise of its jurisdiction has been fulfilled.”
See: MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341. PER. HUSSEIN MUKHTAR, J.C.A.
CONSTITUTIONAL LAW: FUNDAMENTAL HUMAN RIGHT; WHAT CONSTITUTE THE CONCEPT OF FAIR HEARING
The above findings of the lower Court are predicated upon hard facts and the evidence adduced before the Court. One wonders what else the Presidential Visitation Panel to the University of Ilorin (2004-2010) could have done to constitute sufficient fair hearing to the Appellant who has admitted in Exhibit OJU5 that he had a free interaction with the Panel. In the case of Osun State IEC v. AC 47 NSCQLR 178 at 256-257 the Supreme Court held thus:
“Fair hearing revolves around opportunity to be heard being offered to a person aggrieved or to be adversely affected by the decision of the Court or body or tribunal. Once the opportunity exist, it is left for the party, person or body to utilize same in the protection of his right or ventilation of his grievances” The Appellant herein has not shown that any of his fundamental rights claimed under Sections 34, 35, 37, 39, 40, 41 of the Constitution Federal Republic of Nigeria 1999 (as amended) has been or was threatened to be breached. The Appellant’s comment in Exhibit OJU5 shows thus: “…it is not in the interest of the Union or its chairperson to disrupt the academic calendar of the University, even where this is possible.” This shows that the Appellant’s grouse was that he was simply not satisfied with the findings of the panel as it relates to him, which is not a matter of fundamental right under Chapter 4 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Declaratory reliefs are granted upon proof of entitlement, which the Appellant herein has done in the reverse. The learned trial Judge was right in dismissing the case of the Appellant. The second issue cannot but be resolved against the Appellant and in favour of the Respondents. In view of the foregoing resolutions, this appeal is totally bereft of substance. The appeal, therefore, fails and same is hereby dismissed. The decision of the learned trial judge dismissing the Appellant’s application for enforcement of fundamental rights for lacking in merit is hereby affirmed. The parties shall bear their respective costs. PER. HUSSEIN MUKHTAR, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
Between
DR. TAIWO OLORUNTOBA-OJU Appellant(s)
AND
1. ATTORNEY-GENERAL OF THE FEDERATION
2. UNIVERSITY OF ILORIN COUNCIL
3. VICE CHANCELLOR UNIVERSITY OF ILORIN
(Professor Is-haq Olanrewaju Olayede) Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court Ilorin presided over by Honourable Justice A. O. Faji delivered on 27th, 2013 wherein all the reliefs sought by the Apellant were refused by the trial Court.
The Appellant is the leader of the ASUU. He was amongst the University of Ilorin (Unilorin) 49 lecturers once sacked by the 2nd Respondent but reinstated by the Supreme Court in 2009.
?In February, 2011, the President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria being the visitor of the University of Ilorin and acting through the Minister of Education appointed and inaugurated a routine Presidential Visitation Panel for the University of Ilorin (hereinafter referred to as “the Panel”). When the Panel visited Unilorin, the Appellant as the leader of ASUU in Unilorin approached the Panel for information on the schedule and modus operandi of the Panel. He was however refused the information and his attempt to submit memorandum was also rebuffed by the Panel. Despite the Appellant’s several correspondences emphasizing
1
the readiness of the Association to assist the Panel in performing her duties, the Panel did not accord the Appellant the required audience but rather resorted to what the Appellant understood as lopsidedness and bias against the Appellant, when he went personally to the venue of the Panel’s meeting to make enquiries.
The Panel in its report made recommendations about the Appellant in such a way that the Appellant felt that his fundamental rights were either violated or threatened to be violated. The visitor accepted the recommendations of the Panel. It was against this backdrop that the Appellant instituted an action against the Respondents under the Fundamental Rights Enforcement (Procedure) Rules.
In response to the processes filed by the Appellant, the 2nd and 3rd Respondents filed a Counter-Affidavit in opposition to the Appellant’s motion and subsequently filed a Further Counter-Affidavit.
The Appellant also filed a Further Affidavit in support of his application with other exhibits and a Reply to the 2nd and 3rd Respondents’ Address.
The 1st Respondent filed a Counter-Affidavit and a written Address in opposition to the
2
Appellant’s motion. A Notice of Preliminary Objection together with an Address was also filed by the 2nd and 3rd Respondents against the competency of the Appellant’s case, which was subsequently withdrawn and struck out.
Thereafter, parties adopted their processes and the matter was adjourned for judgment.
In its Judgment, the trial Court refused all the reliefs sought by the Appellant and dismissed his case in its entirety. Being dissatisfied with the judgment, the Appellant appealed on eleven grounds of Appeal contained in the Notice of Appeal dated and filed on 20th June 2013 as follows:
1. The learned trial Judge misdirected himself when he held that Exhibit OJU5 is in stark contrast to paragraphs 19 and 20 of the Appellant’s Affidavit thus making the paragraphs unbelievable.
2. The learned trial Judge misdirected himself in holding that there is no need for the Panel to react to OJU5 and her failure to react to same should not be construed as an endorsement of its contents.
3. The learned trial Judge misdirected himself in inferring that Exhibit OJU5 as confirmed by … OJU7 contains a veiled reference to disruption of
3
academic activities by the Appellant.
4. The learned trial Judge misdirected himself when he held thus:
“To my mind this was as a result of the Applicant’s utterance threat. That says a lot about his demeanor and his style of stating two different positions in the same document i.e. paragraphs 18 and 19 of his affidavit and OJU5. Paragraphs 18 and 19 and OJU5 when read with OJU7 show to me that the Applicant’s demeanor of the Panel was not entirely commendable; for reason best known to Applicant alone.”
5. The learned trial Judge erred in law when he held thus:
In so far as there was on interaction which Applicant sought to convey in OJU5, and in view of paragraphs 18 on nature of the Panel’s interaction as well as paragraph 13.5.1 (iii) and (iv) of OJU7 which show that the hostility was as a result of the use of inflammatory words by Applicant, I am of ‘ the view that Applicant was not only heard but his written representation was received by no less a person than the Secretary of the Panel.”
6. The learned trial Judge misdirected himself in holding that the Appellant did not deny being cautioned for use of inflammatory words
4
of the Panel but rather confirmed in a veiled manner in OJU5 that he threatened to disrupt academic activities.
7. The learned trial Judge erred in law in holding thus:
“OJU4 is similar to a litigant going public to say a Judge had been involved in previous skirmishes with him and stating his hope that the Judge will not be biased. That in itself is an affront to a panel set up by the President of the Federal Republic of Nigeria OJU4 was intended to whip up prejudice against members of the panel. Applicant obviously was preparing himself for a showdown with the panel. OJU4 is entirely at cross-purposes with OJU5 and gave an insight into Applicant’s frame of mind during his interaction with the panel.”
8. The learned trial Judge erred in law in holding thus:
“It is noteworthy that 13.5.1(ii) to (iv) do not relate to the substance of the mandate of the Panel. However, the panel was entitled as it did to comment on the conduct of the Applicant which in my view was material in the execution of its mandate. The panel was therefore within its remit in commenting on his conduct and making recommendations about him.”
?9. The learned
5
trial Judge misdirected himself in holding that the word “monitor” can only be read to mean that the Appellant be ‘watched’ in an administrative manner and still held that he would have looked for a more innocuous expression.
10. The learned trial Judge erred in law in dismissing all the reliefs sought for by the Appellant.
11. The totality of the Judgment is against the weight of evidence
Four issues were distilled, on behalf of the Appellant from the foregoing eleven grounds as follows:
1. Whether the learned trial Court was not wrong in failing to declare that the presidential visitation panel was biased in its findings and observations as they relate to the appellant. (Grounds 1, 2, 5, 7 and 8).
2. Whether the learned trial Court was not wrong in failing to quash the recommendation of the presidential visitation panel contained in Exhibit OJU7 as it relates to the ‘monitoring’ of the appellant, having admitted/concluded that “a more innocuous word should have been used”. (Ground 9)
3. Whether the learned trial Court was not wrong, considering the circumstances of this case and the affidavit evidence adduced, in dismissing
6
all the appellant’s reliefs. – (Grounds 10 and 11).
4. Whether there is any iota of evidence on record to justify the learned trial Court’s inference/conclusion that the appellant’s attitude and utterances before the panel constituted a veiled threat to the academic activities of the university. – (Grounds 3, 4 and 6).
The 1st Respondent, however, raised the following two issues for determination:
1. Whether the trial Court was clothed with the requisite jurisdiction to hear and determine this suit (fresh issue)
2. Whether considering the affidavit and documentary evidence before the trial Court, the Court was right to have dismissed the Appellant’s suit. (Distilled from Appellant’s eleven grounds of appeal)
The 1st Respondents’ second issue is on all fours with the 2nd and 3rd Respondents’ sole issue for determination couched thus:
?Whether considering the facts and circumstances of this case, the affidavit and documentary evidence adduced, the trial Court was not right in dismissing the appellant’s case on his claim of the breach of his fundamental right?
It is pertinent that the proceedings of the lower Court were
7
predicated upon on application for enforcement of fundamental rights, which was a special procedure laid by the Constitution of the Federal Republic of Nigeria and the Fundamental Rights Enforcement (Procedure) Rules made by the Chief Justice of Nigeria.
The clear intendment of the law is to provide an urgent remedy for human rights abuses or eminent human rights abuses as the case may. Thus, any person who alleges that any of the fundamental rights provided for in the Constitution and to which he is entitled, has been, is being, or is likely to be infringed may apply to the Federal High Court or the High Court of a State where the infringement occurs or is likely to occur, for redress.
The appeal will therefore be determined on the 1st Respondent’s twin issues that cover the Appellant’s relevant issue 3 and the 2nd and 3rd Respondent’s sole issue.
ISSUE ONE:
Whether the trial Court was clothed with the requisite jurisdiction to hear and determine this suit (fresh issue)
The 1st Respondent raised this as an issue of jurisdiction, which he said may be raised of any time and stage of proceedings. The Learned Counsel for the
8
1st Respondent submitted that jurisdiction is the nerve centre of adjudication, the threshold issue and lifeline for legal proceedings. See: INAKOJU v. ADELEKE (2007) 4 NWLR (Pt. 1025) pg. 423 at 588 paras. E-H; S.P.D.C.N. LTD v. GOODLUCK (2008) 14 NWLR (Pt. 1107) pg. 294 of 309 paras. F-G.
Jurisdiction is the power conferred on a Court by the Constitution or other statute. In OBIUWEUBI v. C.B.N. (2011) 7 NWLR (Pt. 1247) pg. 465 at 507 PARAS F-G the Supreme Court per ADEKEYE, JSC enunciated the position when he stated thus:
A Court is competent when:
1. It is properly constituted with respect to the number and qualification of members.
2. The subject matter of the action is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction.
3 The action is initiated by due process of law; and
4. Any condition precedent to the exercise of its jurisdiction has been fulfilled.”
See: MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341.
It was submitted, for the 1st Respondent that the Appellant’s suit was in contravention of the 2nd requirement above based on the grounds
9
that the subject matter of the suit has been taken away from the Federal or State High Courts and vested exclusively in the National Industrial Court by the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010. Section 254A-254F thereof established the National Industrial Court in the hierarchy of Superior Courts in Nigeria. It was submitted that the powers of the Federal High Court to handle fundamental right cases relating employment, work place, trade union activities, labour and anything connected to or related to employment and labour matters is now vested exclusively in the National Industrial Court.
It was argued, for the 1st Respondent, that the Appellant’s case is connected to his employment with the University of Ilorin. Therefore his case comes squarely within the ambit of Section 254C (1) ? of the Constitution of the Federal Republic of Nigeria (as amended) and the only Court vested with the jurisdiction to hear and determine the case is the National Industrial Court. This assertion is further supported by the fact that the Appellant commenced this suit on the 9th day of May, 2012, a period more than one year
10
after the coming into force of Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010.
It was submitted that judgment appealed against was given without jurisdiction and it amounts to an exercise in futility. The 1st Respondent’s counsel urged the Court to so hold and strike out the appeal including the suit of the Appellant filed of the Court below.
APPELLANT’S REPLY TO ISSUE OF JURISDICTION
The Learned counsel for the Appellant argued that the contest by the 1st Respondent of the trial Court’s jurisdiction to hear and determine the suit leading to this appeal should have been brought by way of cross-appeal or Respondent’s Notice in this appeal. Also, because of the 1st Respondent’s belief that the issue is a fresh issue, the issue is not tied to any of the Appellant’s grounds of appeal. It was submitted that the 1st Respondent’s issue one as formulated in his brief is grossly incompetent and liable to be discountenanced.
It was further observed that a careful perusal of the record of appeal (particularly of pages 252 – 278) shows that the so called ‘fresh issue’ was raised and argued by way of preliminary
11
objection before the trial Court and same was dismissed. The trial Court had, therefore, pronounced on the 1st Respondent’s issue one. It, therefore, does not qualify as a fresh issue and same is incompetent, notwithstanding that it challenges the jurisdiction of the trial Court.
It was submitted for the Appellant that where a Respondent who did not file a Notice of Cross-Appeal or Respondent’s Notice as the case of the 1st Respondent herein formulates any issue which is not tied to any of the Appellant’s grounds of appeal, such issue is incompetent and must be discountenanced by this Court. See the case of EKENG v. EFFANGA (2010) All FWLR (Pt. 505) 1650 at 1670 PARA. E-H.
On the other hand, it was further argued that if the 1st Respondent’s issue one is fresh, it is still not competent for raising same for the first time at the appellate Court without leave of the Court first sought and obtained notwithstanding that it is predicated on jurisdiction. The only appropriate way to raise such jurisdictional issue for the first time of the appellate Court is either by seeking leave of the appellate Court or by way of notice of preliminary objection
12
in compliance with the Rules of this Court. See the case of OPOBIYI v. MUNIRU (2013) All FWLR (Pt. 661) 1537 AT 1549 PARA B – C.
It is very glaring that issue one raised by the 1st Respondent is tantamount to a camouflage to raise and argue a preliminary objection without complying with the Rules if the Court. The issue is certainly a preliminary objection notwithstanding the disguised nomenclature.
The only way by which preliminary objection may be raised in an appeal is by filing a Notice of Preliminary Objection which must be served on the Appellant at least three days before the hearing of the appeal as prescribed by Order 10 Rules 1 & 2 of the Court of Appeal Rules, 2011. In this appeal, the 1st Respondent had not filed a Notice of Preliminary Objection and has thereby offended the above provision of the Rules of this Court.
As a fresh issue also it cannot stand because no new or fresh issue may be raised in an appeal without leave of the appellate Court seized with the matter first having been sought for and obtained. In the case of EKENG v. EFFANGA (2010) All FWLR (Pt. 505) 1650 AT 1670 PARA E-H, it was held as
13
follows:
“It is a well-established principle of law that issues proposed for the determination of an appeal should originate, relate to or be distilled from the grounds of appeal. Thus a respondent who has not cross-appealed nor filed a respondent’s notice cannot formulate on issue for determination that is not related to the appellant’s case. Therefore, issue for determination in appeal which is not related to or derived from any of the grounds of appeal challenging the judgment appealed against is incompetent and must be discountenanced together with argument advanced thereunder…”
Much as the 1st Respondent is of liberty to raise on issue of jurisdiction anytime and even for the first time on appeal, an issue that is completely foreign to the proceedings and never raised before the trial Court requires leave of this Court as a new issue. As no such leave was sought for and obtained to raise it, the issue on this basis is incompetent and liable to be struck out. See Shanu v. Afribank Plc (2002) 17 NWLR (Pt. 795) 185, (2002) 6 SCNJ 454 at 470-471 and Salami v. Mohammed (2000) 9 NWLR (Pt. 673) 469, (2000) 6 SCNJ 281 at 288.
The fresh
14
issue formulated by the 1st Respondent without leave was incompetent and has to be and is accordingly hereby struck out for incompetence.
ISSUE TWO:
Whether considering the affidavit and documentary evidence before the trial Court, the Court was right to have dismissed the Appellant’s suit.
The Learned counsel for the Appellant argued that the learned trial judge was wrong to have dismissed all the Appellant’s reliefs considering the evidence adduced by the Appellant. He argued that once a party has made out his entitlement to the relief sought by adducing credible and unchallenged evidence, the Court is under obligation to grant such relief.
He painstakingly reproduced the reliefs sought for by the Appellant before the trial Court as follows:
1. A DECLARATION that the findings and observations of the Presidential Visitation Panel to the University of Ilorin (2004-2010) as evidenced on pages 33 and 34 of her Report, dated June, 2011 as they relate to the Applicant are biased and constitute a gross violation of the Applicant’s Right to Fair Hearing.
2. A DECLARATION that the recommendation of the Presidential Visitation
15
Panel to the University of Ilorin (2004-2010), as evidenced on pages 33 and 34 of her Report, dated June, 2011, as it relates to the monitoring of the Applicant, is oppressive, without any justification in law and a threat to the Applicant’s Rights to Personal Liberty, Freedom of Movement, Freedom of Expression, Dignity of Human Person, Private and Family Life and Freedom of Association as guaranteed by the Constitution of the Federal Republic of Nigeria.
3. A DECLARATION that the recommendation of the Presidential Visitation Panel to the University of Ilorin (2004-2010), as evidenced on pages 33 and 34 of her Report, dated June 2011 as it relates to the monitoring of the Applicant, is also a gross violation of the African Charter of Human Rights and the Kampala Declaration of Intellectual Rights and Social Responsibility.
4. AN ORDER of Perpetual Injunction restraining the 1st ? 3rd Respondents by themselves, agents, privies or whomsoever acting through them or for them from taking any step or acting on the purported report of the Presidential Visitation Panel to the University of Ilorin (2004-2010) dated June 2011 as it relates to the
16
deprivation of the Applicant’s right to fair hearing and threat on his rights to Personal Liberty, Freedom of Movement Freedom of Expression Dignity of Human Person, Private and Family Life and Freedom of Association.
5. A CONSEQUENTIAL ORDER quashing the Report of the Presidential Visitation Panel to the University of Ilorin (2004-2010) dated June 2011, as it relates to the findings, observations and recommendations concerning the Applicant, same being biased and a threat to the Applicant’s rights to Personal Liberty, Freedom of movement, Freedom of Expression, Dignity of Human Person, Private and Family Life and Freedom of Association.
6. ANOTHER CONSEQUENTIAL ORDER that the orders of this Honourable Court in this regard be published immediately in the Unilorin Bulletin.
It was argued that the Panel did not respond to any of the letters despite several letters requesting for the Panel’s mission. It was also argued that the Panel did not invite the Appellant and when the Appellant went to enquire the schedule of the Panel, he was ambushed by the Panel.
?It was further argued that it was deducible from the Panel’s findings,
17
observation and recommendations that it was biased. That all these put together constitute the violation of the Appellant’s right to fair hearing and the trial Court ought to have granted the reliefs sought for by the Appellant.
Similar arguments were proffered by the Appellant’s counsel on the second and third reliefs. That the recommendation of the Panel for the Appellant’s monitoring was baseless and unjustified and the trial Court should have declared the recommendation as null and void. The other reliefs were similarly treated and it was submitted that the trial Court was wrong to have dismissed the Appellant’s reliefs 4 to 6.
It was submitted for the Appellant that the tag of security threat hung on the Appellant’s neck by the report and the publication of same in the Unilorin Bulletin, the public perception of the Appellant’s personality has been adversely affected. The order of the Court quashing the report should similarly be given equal publicity by the Unilorin Bulletin as done to the report.
The Learned Counsel for the 1st Respondent, however, submitted that the trial Court was right to have dismissed the Appellant’s claims
18
before it. The plaintiff should rather rely on the strength of his own case especially where the reliefs sought are declaratory than relying on the weakness of the defence. The Appellant herein sought declaratory reliefs in respect of which he must lead concrete or cogent evidence to prove that he is entitled to those reliefs. The law is also clear that a party seeking declaratory reliefs has a duty to prove same by strong and convincing evidence. The Supreme Court per Fabiyi, JSC in I.N.E.C. v. ATUMA (2013) 11 NWLR (Pt. 1366) pg. 494 @ PP. 520-521, PARAS. G-C, held thus:
“The main relief which is his relief 1 is declaratory by nature and purport. It is for him to establish his claim on the strength of his case. He cannot rely on the weakness of the opponent’s case. See: Nwokidu v. Okanu (2010) 3 NWLR (Pt. 1181) 362; Dantata v. Mohammed (2000) 7 NWLR (Pt. 664) 176; Ekun v. Baruwa (1966) 2 All NLR 211.”
It was argued for the 1st Respondent that the burden of proof was on the appellant to establish the declaratory reliefs to the satisfaction of the Court.
There was no evidence that the Appellant was denied fair hearing by the visitation
19
panel before the recommendation made in Exhibit OJU7. The finding of the trial Judge shows that the Appellant was given ample opportunity to present his grievances before the panel which he did. In reaching this conclusion, the trial Court considered Exhibit OJU5 made by the Appellant and addressed to the Chairman of the Visitation Panel to University of Ilorin. The opening paragraph of Exhibit OJU5 is very clear and quoted verbatim for avoidance of doubt thus:
“We wish to thank you and … members of the panel for the opportunity to interact with the panel yesterday. While the Union Chairman only wanted to obtain the schedule of the panel, the set up and discussion that develop in the process was helpful in illuminating aspects of modus operandi of the panel and attitude of its members to various issues.”
This document speaks for itself and oral or extrinsic evidence is not admissible to contradict the contents thereof. It is clear from the content of Exhibit OJU5 that Appellant had a healthy discussion and/or interaction with members of the panel without any harassment or ambush as alleged by him. The finding of the learned trial judge that
20
the Appellant herein was given fair hearing is supported by the evidence adduced before the trial Court by the Appellant. See the case of JACK v. WHITE (2001) FWLR (Pt. 43) 247; (2001) 3 SC. 121 where the Supreme Court per Ogwuegbu, JSC while considering Section 134 of Evidence Act Cap 112 LFN 1990 (now Section 130 of Evidence Act 2011) held thus:
“Documentary evidence is usually a very reliable piece of evidence because of its permanency and oral testimonies sometimes gives meaning to it. In this case, oral evidence impugned their content. In Section 134 of Evidence Act Cap 112 LFN 1990, wherein provisions are made for the exclusion of oral evidence by documentary… ”
The Learned Counsel for the 2nd and 3rd Respondent’s equally presented similar arguments that need not be repeated.
The Appellant has not denied that he made Exhibit UJO5 and cannot, therefore, turnaround to adduce contrary evidence to contradict or discredit its content. The learned trial judge adequately observed the contents of Exhibit UJO5 in his appraisal of the evidence before him to reach the following conclusion:
“Much has been said about Applicant not
21
being invited to the Panel. The crux however is that he was at the Panel, with which he interacted. If indeed the Panel showed bias towards him, he should have complained in OJU5. Rather, he thanked the Panel for ‘the opportunity to interact’ with the Panel. Even though all he went there for was to obtain the schedule of the Panel. He did not complain about the tone or process at the Panel. He did not also in his affidavit deny that he was cautioned for using inflammatory words at the Panel. All he is complaining about is that he was not given a fair hearing. Neither his affidavit nor OJU5 disputed the contents of OJU7 as regard his being cautioned for use of inflammatory words. Rather OJ U5 in a veiled manner confirms that he threatened to disrupt academic activities as stated in paragraph 13.5.1 (iii) of OJU7.”
The learned trial judge further observed as follows:
“I must however state that the observations of the Panel at 13.5.1 (ii) – (iv) relate to his demeanour of the Panel – a fact which Applicant’s affidavit and OJU5 do not frontally negate. Indeed OJU4 shows that Applicant had in the past had encounters with the chairman of the
22
visitation panel and expressed hope that those experiences would not necessarily becloud objectivity in examining issues presented by the union. I am not sure or convinced that Applicant did not permit those experiences to becloud his own attitude towards members of the panel. Luckily OJU4 was not sent to members of the Panel. If anyone therefore had a pre-conceived notion about the other, it definitely was not the Panel members more so when paragraphs 18 and 19 of Applicant’s affidavit are not supported by OJU5.”
The learned trial judge from the foregoing analysis, rightly come to the following conclusion:
On the whole, I am unable to see how or when any of the fundamental rights allegedly breached were breached. I find no merit whatsoever in the Applicant’s case. I hereby dismiss same.
The above findings of the lower Court are predicated upon hard facts and the evidence adduced before the Court. One wonders what else the Presidential Visitation Panel to the University of Ilorin (2004-2010) could have done to constitute sufficient fair hearing to the Appellant who has admitted in Exhibit OJU5 that he had a free interaction with the
23
Panel. In the case of Osun State IEC v. AC 47 NSCQLR 178 at 256-257 the Supreme Court held thus:
“Fair hearing revolves around opportunity to be heard being offered to a person aggrieved or to be adversely affected by the decision of the Court or body or tribunal. Once the opportunity exist, it is left for the party, person or body to utilize same in the protection of his right or ventilation of his grievances”
The Appellant herein has not shown that any of his fundamental rights claimed under Sections 34, 35, 37, 39, 40, 41 of the Constitution Federal Republic of Nigeria 1999 (as amended) has been or was threatened to be breached. The Appellant’s comment in Exhibit OJU5 shows thus:
“…it is not in the interest of the Union or its chairperson to disrupt the academic calendar of the University, even where this is possible.”
This shows that the Appellant’s grouse was that he was simply not satisfied with the findings of the panel as it relates to him, which is not a matter of fundamental right under Chapter 4 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Declaratory reliefs are granted upon proof
24
of entitlement, which the Appellant herein has done in the reverse. The learned trial Judge was right in dismissing the case of the Appellant. The second issue cannot but be resolved against the Appellant and in favour of the Respondents.
In view of the foregoing resolutions, this appeal is totally bereft of substance. The appeal, therefore, fails and same is hereby dismissed. The decision of the learned trial judge dismissing the Appellant’s application for enforcement of fundamental rights for lacking in merit is hereby affirmed.
The parties shall bear their respective costs.
MOHAMMED LADAN TSAMIYA, J.C.A.: I have read before now the lead judgment of my learned brother, HUSSEIN MUKHTAR, JCA. I agree with the lead judgment that the Appeal lacks merit, and I too dismiss it. The decision of the learned trial judge dismissing the Appellant’s Application for enforcement of fundamental rights for lacking in merit is affirmed. I abide by the consequential Order as to costs.
CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading before now the draft judgment of my learned
25
brother Dr. HUSSEIN MUKHTAR, JCA who has comprehensively dealt with the issues that have arisen in this appeal. I agree with his reasoning and conclusion arrived at in holding that the appeal is lacking in merit, I also dismiss same and affirm the decision of the trial judge. I abide by the order made as to costs.
26
Appearances
Y. A. Alajo, Esq. with him,L. O. Bello, Esq.For Appellant
AND
T. D. Agbe (SC-FMOJ) for 1st Respondent
I. O. Atofarati, Esq. with him, S. O. Akangbe (Mrs.), T. E. Akintunde (Mrs.), D. Y. Awogbade (Miss), I. R. Olarinde (Miss) and O. A. Johnson (Miss) for 2nd and 3rd RespondentsFor Respondent
