ESUT v. OGOMEGBULAM (2020)

ESUT v. OGOMEGBULAM

(2020)LCN/14038(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Thursday, March 12, 2020

CA/E/732/2018

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

ENUGU STATE UNIVERSITY OF SCIENCE AND TECHNOLOGY APPELANT(S)

And

OBI CHUKWUKADIBIA OGOMEGBULAM RESPONDENT(S)

RATIO

THE PRIMACY ENJOYED BY FUNDAMENTAL RIGHTS ACTIONS

The primacy enjoyed by fundamental rights actions was pointed out by IDIGBE, JSC thus:
There is no doubt that in cases of this nature relating to the Fundamental Rights of the citizens it is very desirable that the matter be dealt with expeditiously and, where possible, procedures which by their nature are cumbersome and prone to delay should be avoided. This is the raison d’etre for the special treatment given to the subject of Fundamental Rights and enforcement thereof in the Constitution (see also Aoko v Fagbemi & Anor (1961) 1 ALL N. L. R. 400 at 403). See AKUNNIA V. A-G OF ANAMBRA STATE (1977) LPELR-394 (SC) at 15-16. PER OYEWOLE, J.C.A.

THE PURPOSE OF PRE-ACTION NOTICES
The purpose of pre-action notices was clearly elucidated by UWAIFO, JSC thus: “The requirement of pre-action notice where this is prescribed by law is known to have one rationale. It is to apprise the defendant before hand of the nature of the action contemplated and to give him enough time to consider or reconsider his position in the matter as to whether to compromise or contest it. The giving of pre-action notice has nothing to do with the cause of action. It is not a substantive element but a procedural requirement, albeit statutory, which a defendant is entitled to before he may be expected to defend the action that may follow.” See EZE VS. OKECHUKWU (2002) 12 S.C.(PT. 11) 103 and MINISTRY OF EDUCATION, ANAMBRA STATE & ORS VS. ASIKPO (2013) LPELR-21393(CA).
AKINTAN, JSC further clarified the position lucidly thus:
I believe that a pre-action notice should be in the form of a letter usually written by a plaintiff or his Solicitor to the prospective defendant giving him notice of intention to institute legal proceedings against him for specified reliefs. See NTIERO VS. NPA (2008) LPELR-2073(SC) at 11. PER OYEWOLE, J.C.A.

THE POSITION OF LAW WITH REGARDS TO CONFLICTS IN AFFIDAVIT EVIDENCE

The position of the law with regards to conflicts in affidavit evidence was well enunciated by ODILI, JSC thus:
What the appellant is seeking in this issue is not supported by the documents on record as there is no conflict to be resolved by oral evidence, enough documentary evidence having proffered the solution in the disputing positions on either side. I will confidently refer to an earlier decision of this Court in Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529 at 548 per M. D. Muhammad JSC thus:-
“Learned respondent counsel cannot be faulted in his further submission that the need to call oral evidence arises only where the conflict in the affidavits are significant and material. The need to call oral evidence, on the authorities, is obviated where the conflict is narrow in which case the Court is in a position to overlook same.”
In agreeing with the leading judgment in Ezechukwu v. Onwuka (supra) I had humbly stated thus at page 559:-
“This is to underscore the fact that there is no hard and fast rule that in every conflict in affidavit evidence against the other, as if there are some documents from which the conflict could be resolved then resort is had thereby without the necessity of calling for oral testimony in resolution of such conflict. In other words, calling for oral evidence to resolve conflict in affidavit evidence is not the first and only option out of the stalemate. I rely on Peters v. Jackson (2002) FWLR (Pt. 113) 376 at 392.” See UNION BANK OF NIGERIA VS AWMAR PROPERTIES LTD (2018) LPELR-44376(SC), EZECHUKWU VS ONWUKA (2016) 5 NWLR (PT. 1506) 529 at 548 and OGAH VS IKPEAZU & ORS (2017) LPELR-42372(SC).PER OYEWOLE, J.C.A.

DEFINITION OF HEARSAY EVIDENCE

Section 37 of the Evidence Act 2011 defines hearsay as follows:-
“37. Hearsay means a statement.
(a) Oral or written made otherwise than by a witness in a proceeding, or
(b) contained or recorded in a book, document or any record whatever proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of providing the truth of the matter stated in it.”
Relevant to this judgment is Section 37 (a) of the Evidence Act. Black’s Law Dictionary, 9th Edition at page 790 , defines hearsay as follows:-
“Traditionally, testimony that is given by a witness who relates not what he or she knows personally but what others have said and that is therefore dependent on the credibility of someone other than the witness, such testimony is generally inadmissible under the rules of evidence.”
Finally Section 38 of the Evidence Act 2011 outrightly prohibits the admission of hearsay evidence except as provided by the Evidence Act in the following words:-
“Hearsay evidence is not admissible except as provided in this part or under any other provision of this or any other Act.”
From the above analysis therefore, hearsay testimony is inadmissible in evidence, much as the evidence tends to establish the truth of what the witnesses were told, except it is proved that the exceptions under Section 39 of the Evidence Act exist. See EDOSA & ANOR VS. OGIEMWANRE (2018) LPELR-46341(SC). PER OYEWOLE, J.C.A.

WHETHER OR NOT THE UNIVERSITY HAS THE AUTHORITY TO DISCIPLINE AN ERRING STUDENT

It is settled that the University has the authority to discipline an erring student. However, the principle of fair hearing entrenched in our Constitution must strictly be observed at all the stages of the process leading to the application of any sanction against an erring student. See ESIAGA V. UNIVERSITY OF CALABAR & ORS. (2004) LPELR-1169 AT 2223 (F-A). PER BOLAJI-YUSUF, J.C.A.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State, Agbani Judicial Division, holden at Agbani, Enugu State, delivered on the 28th February, 2018 by ANIDI J.

The Respondent was a fourth year law student at the faculty of law of the Appellant, he was supposedly found by the officials of the Appellant to have been involved in some malpractices in the course of a quiz upon which he was expelled by the Appellant. On grounds that the Appellant’s action violated his fundamental rights as guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the Respondent took out an action at the trial Court for the enforcement of his fundamental rights wherein he sought the following reliefs:
(a) A declaration that the expulsion of the Applicant from the Respondent Institution, as contained in the publication of ESUT COURIER of January 2015, page 2, is illegal, and unconstitutional as it violates the Applicant’s rights to fair hearing as guaranteed by Section 36 of the Constitution Federal Republic of Nigeria 1999 as amended, and

Article 7 of the African Charter on Human and Peoples’ Rights, Cap A9 Laws of the Federation of Nigeria, 2004.
(b) A declaration that the expulsion of the Applicant without publishing and communicating to him the Report of the Investigation Panel which sat on 9th August, 2014 over allegation of examination malpractice leveled against the applicant by the 2– man Panel is a violation of his right to fair hearing as guaranteed by Section 36 of the Constitution Federal Republic of Nigeria 1999 as amended, and Article 7 of the African Charter on Human and Peoples’ Rights, Cap A9 Laws of the Federation of Nigeria, 2004.
(c) An order directing the Respondent to restore all the rights and privileges of the Applicant and reinstate him as a bona fide student of the Respondent institution.

The Appellant as Respondent at trial filed a counter-affidavit wherein it was contended that the Respondent impersonated another student who was absent at the said quiz and admitted to the alleged examination malpractice. It was further contended as a preliminary point that the Respondent failed to give the requisite pre-action notice.

After hearing counsel for both sides, the learned trial Judge gave a considered judgment as earlier stated on the 28th February, 2018, wherein his lordship overruled the preliminary objection, found in favour of the Respondent and ordered his reinstatement to complete his studies.

Dissatisfied, the Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 25th May, 2018 and containing four grounds.

At the hearing of the appeal, Mr. Nwokeiwu of counsel for the Appellant adopted the Appellant’s brief filed on the 27th November, 2018 but deemed properly filed and served on the 21st January, 2020 as well as the Appellant’s Reply brief filed on the 3rd September, 2019 but equally deemed properly filed and served on the 21st January, 2020 as the arguments of the Appellant in furtherance of this appeal.

For the Respondent, his learned counsel, Mr. Okoloagu adopted his brief filed on the 30th July, 2019 but also deemed properly filed and served on the 21st January, 2020 as the arguments of the Respondent in contesting the appeal.

Each side distilled three issues for determination addressing the same

subject-matters. The Appellant’s issues are set out as follows:
1. Whether failure to serve pre-action notice as prescribed by law renders a suit incompetent.
2. Whether the lower Court was right in holding that the Respondent was not given fair hearing by the Appellant before the Respondent was expelled by the Appellant.
3. Whether a Court is at liberty to resolve apparent conflicts in parties affidavits suo motu without calling for oral evidence.

The Respondent’s issues are as follows:
(i) Whether having regards to the fact that the action is a fundamental rights action, the Respondent was mandatorily required to serve the Appellant with pre-action notice before commencing the action, and where so, if Exhibits “C”- p. 15- and “A”-Pp. 100-101- do not suffice as pre-action notice to the Appellant.
(ii) Whether the lower Court was right in holding that the Respondent was not given fair hearing by the Appellant before the Respondent was expelled by the Appellant.
(iii) Whether there was/were material conflicts in the affidavits of the parties that needed to, or could not, be resolved without

calling oral evidence.

As there are only semantic differences in the formulated issues, I shall adopt the version formulated by the Appellant and proceed seriatim.
The first issue therefore is:
Whether failure to serve pre-action notice as prescribed by law renders a suit incompetent.

Arguing this issue, the Appellant contended that where a pre-action notice is prescribed by statute, it is a condition precedent to the action and failure to serve same in line with the provision of the statute deprives the Court of jurisdiction to entertain such an action. Learned counsel referred to NIGERIAN PORTS PLC VS NTIERO (1998) 6 NWLR (PT 555) 640, NOCLINK VENTURES LTD & ANOR VS CHIEF OKEY AROH & ANOR (2008) ALL FWLR (PT 408) 352 at 361 and ODOEMELAM VS AMADIUME (2008) ALL FWLR (PT 405) 1760 at 1767-1768.

It was submitted that Section 45 (4) of the Enugu State University of Science and Technology Law Cap 74 Revised Laws of Enugu State 2004 provides for the service of mandatory three months pre-action notice before any action may be commenced against the Appellant otherwise the said action becomes incompetent.

It was argued that although the Respondent attached exhibits A and B as evidence of the pre-action notice, the said documents were part of a separate motion on notice and ought to have been properly filed via a further affidavit to the substantive application and that having failed to so file, it meant that the said action at the trial Court was commenced without the requisite pre-action notice.

Learned counsel for the Appellant submitted further that even if the said exhibits were part of the substantive action, they were inadequate as they did not state clearly the cause of action, particulars of claim, name and abode of the intending plaintiff and the relief he claims as mandatorily required by law. He referred to AMADI VS NNPC (2000) 10 NWLR (PT 674) 76 at 110-111, ODOEMELAM VS AMADIUME (supra) and N.I.W.A. VS G.C.I.T.F (2008) 7 NWLR (PT 1085) 109 at 120.

For the Respondent, Chief Okoloagu submitted that cases of fundamental rights are sui generis to which the requirement for pre-action notice is not applicable. He referred to ESSIEN VS INYANG & ORS (2012) ALL FWLR (PT 626) 951 at 967, RANSOME-KUTI VS A.G. OF FEDERATION (1985) 2 NWLR (PT 6) 211,

NGOZI ADINUSO & ORS VS ALOYSIUS OMEIRE & ORS ALL FWLR (PT 310) 1759 at 1775, LAGOS STATE DEVELOPMENT PROPERTY CORPORATION VS ADEYEMI BERO & ANOR (2005) ALL FWLR (PT 275) 484 at 499 and NIGERIA PORTS AUTHORITY PLC & ORS VS NTIERO (1998) 6 NWLR (PT 555) 640 at 650-651.

The learned counsel argued further that pursuant to Section 46 (1) of the Constitution, the cause of action could arise before an actual violation as the violation of rights need not have taken place before an applicant could approach the Courts and that the intendment of the Fundamental Rights (Enforcement Procedure) Rules, 2009 is to remove all impediments in the way of quick enforcement of individual rights. He referred to OLATUNJI VS HAMEED (2010) ALL FWLR (PT 540) 1365 at 1374.

It was pointed out that none of the cases referred to by the Appellant relates to enforcement of fundamental rights but that in the event this Court holds that pre-action notices are necessary in fundamental rights cases then exhibits “A” and “C” constitute sufficient pre-action notice having fully or substantially met the requirements of Section 45(4) of the Enugu State University of Science and Technology Law (supra).

Learned counsel referred to NIGERIAN PORTS AUTHORITY VS NTIERO (supra) and LAGOS STATE DEVELOPMENT PROPERTY CORPORATION VS ADEYEMI BERO (supra).

In his reply arguments, Mr. Nwokeiwu reiterated his earlier arguments and in addition submitted that pre-action notices would only be excused where the situation was urgent but not where the infringement had been completed as in the instant case.

Fundamental rights proceedings are sui generis and enjoy a pride of place in the firmament of litigation. For centuries mankind grappled with the need for universal basic rights for all human beings. The evolution of these rights progressed from the Cyrus Cylinder of Cyrus the Great, to the English Magna Carta, unto the Universal Declaration of Human Rights and presently found domestic codification in Chapter 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) hereinafter referred to simply as “the Constitution”.
The existence of rights is meaningful where enforcement is ensured. Towards this end, the framers of the Constitution made far reaching provisions in Section 46 thereof thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.
(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.
(4) The National Assembly –
(a) may confer upon a High Court such powers in addition to those conferred by this section as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by this section; and (b) shall make provisions- (i) for

the rendering of financial assistance to any indigent citizen of Nigeria where his right under this Chapter has been infringed or with a view to enabling him to engage the services of a legal practitioner to prosecute his claim, and (ii) for ensuring that allegations of infringement of such rights are substantial and the requirement or need for financial or legal aid is real.
As well argued by Chief Okoloagu for the Respondent, I hold strongly to the view that fundamental rights proceedings are special and do not permit of the luxury envisaged by pre-action notices when a breach is contemplated or has occurred. The rights conferred on the Applicant take their root from the Constitution which is superior to any other piece of legislation and before which any legislation must bow pursuant to Section 1 (3) of the Constitution.
The primacy enjoyed by fundamental rights actions was pointed out by IDIGBE, JSC thus:
There is no doubt that in cases of this nature relating to the Fundamental Rights of the citizens it is very desirable that the matter be dealt with expeditiously and, where possible, procedures which by their nature are cumbersome and

prone to delay should be avoided. This is the raison d’etre for the special treatment given to the subject of Fundamental Rights and enforcement thereof in the Constitution (see also Aoko v Fagbemi & Anor (1961) 1 ALL N. L. R. 400 at 403). See AKUNNIA V. A-G OF ANAMBRA STATE (1977) LPELR-394 (SC) at 15-16.
Furthermore, even if this were some ordinary litigation to which pre-action notices applies, I cannot close my eyes to exhibit C on page 15 of the record of appeal and exhibit A on pages 100-101 thereof. While exhibit A was written personally by the Respondent, exhibit C was written by his solicitors.
It was contended by the Appellant that these documents fall short of the strict requirements of Section 45 (4) of the Enugu State University of Science and Technology Law (supra) but once more I do not see the logic in this argument. The purpose of pre-action notices was clearly elucidated by UWAIFO, JSC thus:
“The requirement of pre-action notice where this is prescribed by law is known to have one rationale. It is to apprise the defendant before hand of the nature of the action contemplated and to give him enough time to consider or

reconsider his position in the matter as to whether to compromise or contest it. The giving of pre-action notice has nothing to do with the cause of action. It is not a substantive element but a procedural requirement, albeit statutory, which a defendant is entitled to before he may be expected to defend the action that may follow.” See EZE VS. OKECHUKWU (2002) 12 S.C.(PT. 11) 103 and MINISTRY OF EDUCATION, ANAMBRA STATE & ORS VS. ASIKPO (2013) LPELR-21393(CA).
AKINTAN, JSC further clarified the position lucidly thus:
I believe that a pre-action notice should be in the form of a letter usually written by a plaintiff or his Solicitor to the prospective defendant giving him notice of intention to institute legal proceedings against him for specified reliefs. See NTIERO VS. NPA (2008) LPELR-2073(SC) at 11.
The two letters in this instance were written more than three months before the commencement of the present action and gave the Appellant sufficient opportunity to have resolved the grievances of the Respondent if it intended to do so.
In totality I resolve this first issue in favour of the Respondent and against the Respondent.

The next issue is:
Whether the lower Court was right in holding that the Respondent was not given fair hearing by the Appellant before the Respondent was expelled by the Appellant.

Arguing this issue, Mr. Nwokeiwu submitted that the Respondent in his affidavit depositions showed that he was invited and did appear before the Appellant’s Senate Examinations Malpractice Committee to present his case but failed to show how he was denied fair hearing by the Appellant thereby failing to discharge the burden on him pursuant to Section 131 of the Evidence Act, 2011. He referred to CHIEF (DR) O. FAJEMIROKUN VS COMMERCIAL BANK (NIG.) & ANOR (2009) ALL FWLR (PT 487) 1 at 199 and MR. C.I.B. MADUABUM VS HON. BEN CHUKS NWOSU (2010) 13 NWLR (PT 1212) 623 at 630.

On his part, Chief Okoloagu outlined the relevant legal principles relating to fair hearing enshrined in Section 36 of the Constitution and submitted that the test of the observation of fair hearing lies in the procedure followed in the determination of a case and not in the correctness of the decision. He referred to EKPETO & ORS VS WANOGHO & ORS (2004) 20 NSCQR 332 at 350.

The learned counsel then referred to various portions of the depositions of the Respondent at trial which highlighted the infractions of his rights and which were either not countered by the Appellant or inadequately countered.

He submitted in addition that the allegations against the Respondent bothered on criminality without their being subjected to police investigation.
He urged the Court to resolve the issue in favour of the Respondent.

In his reply brief, Mr. Nwokeiwu argued that that the Appellant’s Senate’s Examination Regulations and Irregularities Committee was an administrative panel which was not bound to observe the rules of fair hearing but nonetheless acted fairly in the conduct of its activities before recommending the expulsion of the Respondent. He referred to IYEGHE VS ABU, ZARIA (2015) LPELR-40874(CA), HART VS MILITARY GOVERNOR OF RIVERS STATE & ORS (1976) LPELR-1355 (SC) and GYANG & ANOR VS C.O.P. LAGOS STATE & ORS (2013) LPELR-21893 (SC).

The learned trial Judge considered the facts presented by the two sides in their various depositions and stated on pages 145-146 of the record of appeal thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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There needed to be clear indication of what transpired during the hearing in line with the claim of the Respondent since this deems to be the point of departure. Court expected to see the record of such a panel attached as exhibit to the Respondent’s counter affidavit. That would have also cleared the fact whether others were invited, whether the Applicant agreed to have written exams for another student (his woman friend), it would have also cleared the air whether or not witnesses were invited and cross-examined by the Applicant. In the absence of such clarification, Court is bound to believe what the Applicant stated and those facts fell short of principles of fair hearing.
Before us, the Appellant contends in his Reply brief that the Appellant’s Senate’s Examination Regulations and Irregularities Committee was a mere investigative panel which was not bound to observe the rules of fair hearing. This was a deviation from the earlier argument that indeed the said panel and the Appellant did not breach the rights of the Respondent.
It seems apparent that where a contentious point could be resolved by the production of a piece of

evidence, mere ipse dixit would not suffice. The mere assertion by the Appellant that the rights of the Respondent were not breached is insufficient as rightly held by the learned trial Judge. The record of the said panel or any of its organs responsible for determining the Respondent’s fate, which would show that his rights were duly respected, ought to have been produced to clear the air.

Expulsion of a student is akin to capital punishment and every step leading to such a conclusion must be scrupulous and pristine. The Appellant could not expect that its conclusion in this regard would not be subjected to scrutiny.

I am inclined towards the same conclusion reached by the learned trial Judge as there is no basis to impugn his lordship’s findings. I therefore resolve this issue in favour of the Respondent and against the Appellant.
The remaining issue is:
Whether a Court is at liberty to resolve apparent conflicts in parties affidavits suo motu without calling for oral evidence.

The Appellant’s contention in this regard was that the trial Court suo motu resolved the observed conflicts in the affidavits of the

parties without calling oral evidence. He referred to HIGH CHIEF OTOOLA ATANDA & ANOR VS MOSUDI OLANREWAJU & ORS (1988) 10-11 SC 1 at 14 and REGD TRUSTEES, CAC & ANOR VS ALHAJI SADIKU & ANOR (2002) FWLR (PT 95) 238 at 252.

The Respondent countered that it not every conflict in affidavit evidence that must be resolved by oral evidence if there exists documentary evidence before the Court upon which the said conflict could be resolved. He referred to NWOSU VS IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT 135) 688 at 718 and PEOPLES DEMOCRATIC PARTY & ANOR VS MOHAMMED & ORS (2005) ALL FWLR (PT 289) 1322 at 1343.

He further submitted that the conflict involved must material, substantial and fundamental to the issues in the case but that in the present instance, the learned trial Judge only mentioned areas of disagreements and not areas of conflict as depositions of the Appellant constitutes hearsay evidence which was inadmissible. He referred to PEOPLES DEMOCRATIC PARTY VS ATIKU ABUBAKAR (2007) ALL FWLR (PT 386) 711 and OGUNSAKIN & ANOR VS AJIDARA & ORS (2010) ALL FWLR (PT 307) 109.

In his reply

argument, Mr. Nwokeiwu insisted that there were material contradictions in the affidavit depositions of both sides and gave instances of such contradictions.

that there is no hard and fast rule that in every conflict in affidavit evidence against the other, as if there are some documents from which the conflict could be resolved then resort is had thereby without the necessity of calling for oral testimony in resolution of such conflict. In other words, calling for oral evidence to resolve conflict in affidavit evidence is not the first and only option out of the stalemate. I rely on Peters v. Jackson (2002) FWLR (Pt. 113) 376 at 392.” See UNION BANK OF NIGERIA VS AWMAR PROPERTIES LTD (2018) LPELR-44376(SC), EZECHUKWU VS ONWUKA (2016) 5 NWLR (PT. 1506) 529 at 548 and OGAH VS IKPEAZU & ORS (2017) LPELR-42372(SC).

In examining the depositions of the parties herein, I must address the point raised by Chief Okoloagu that some of the Appellant’s depositions constitute hearsay evidence. This point was not seriously contested by the Appellant.
Section 37 of the Evidence Act 2011 defines hearsay as follows:-
“37. Hearsay means a statement.
(a) Oral or written made otherwise than by a witness in a proceeding, or
(b) contained or recorded in a book, document or any record whatever proof

of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of providing the truth of the matter stated in it.”
Relevant to this judgment is Section 37 (a) of the Evidence Act. Black’s Law Dictionary, 9th Edition at page 790 , defines hearsay as follows:-
“Traditionally, testimony that is given by a witness who relates not what he or she knows personally but what others have said and that is therefore dependent on the credibility of someone other than the witness, such testimony is generally inadmissible under the rules of evidence.”
Finally Section 38 of the Evidence Act 2011 outrightly prohibits the admission of hearsay evidence except as provided by the Evidence Act in the following words:-
“Hearsay evidence is not admissible except as provided in this part or under any other provision of this or any other Act.”
From the above analysis therefore, hearsay testimony is inadmissible in evidence, much as the evidence tends to establish the truth of what the witnesses were told, except it is proved that the exceptions under Section 39 of the Evidence Act exist. See EDOSA & ANOR VS. OGIEMWANRE

(2018) LPELR-46341(SC).

The counter-affidavit of the Appellant was deposed to by a Leonard Khama who stated categorically that he was the Registrar of the Appellant and was by virtue of that office conversant with the facts of the suit. He then averred positively to the facts contained in the said counter- affidavit directly without any recourse to any other source of information. That however was the issue. An examination of certain paragraphs in the said counter-affidavit, particularly paragraphs 5, 6, 7, 12 and 13 glaringly exposed the deficiencies in this regard. The stated depositions are as follows:
5. That on the 21st day of May, 2014, the Applicant, Obi Chukwukadibia Ogomegbulam, Registration Number ESUT/2011/119437, a student of the Faculty of Law, sat for Sociology 111/Introduction to Sociology quiz and wrote the examination for another student by name, EZURUKA ADA RUBY with registration number ESUT/2012/143851.
6. That the student, EZURUDA ADA RUBY did not sit for the quiz on the 21st day of May, 2014.
7. That the Course Lecturer/Invigilator, Professor Owo Chinweuba discovered that the Applicant wrote the quiz for

another student. The invigilator asked the Applicant to complete the malpractice form, but the Applicant dropped the form and ran away. A copy of the Malpractice Form is hereby attached and marked as “Exhibit A”.
9. That Barr. Kingsley N. Edeh also affirmed in his endorsement on the examination malpractice form that the Applicant was caught in the act of impersonation and two answer scripts were collected from him.
12. That the Applicant admitted the offence of impersonation and stated that Ezuruka Ada Ruby was his woman friend.
13. That the Senate Examinations Malpractice Committee found the Applicant guilty of writing a quiz for another student and recommended his expulsion from the institution, as provided in the law which established the Respondent.

The Deponent to this counter-affidavit did not state that he was physically present at the venue of the quiz in question and could not without being informed, give an account of what transpired at the said venue. His assertion with respect to the endorsement on exhibit A to the said counter-affidavit went beyond the stated endorsement. He did not state that he was a member of the

Appellant’s Senate Examinations Malpractice Committee and was present when the Respondent appeared before the said panel. He did not exhibit either the record of proceedings of the said panel or its recommendations.

It goes without saying that the said paragraphs 5, 6, 7, 12 and 13 contain inadmissible evidence and are accordingly discountenanced. The implication thereof is that there is nothing conflicting with the depositions of the Respondent as to necessitate the calling of oral evidence.
I therefore resolve this issue as well against the Appellant and in favour of the Respondent.
In totality therefore, this appeal is bereft of merit and it is accordingly dismissed.
The judgment of the trial Court is hereby affirmed.

Appellant is directed to recall the Respondent forthwith to enable him complete his course of study.
Parties are to bear their respective costs.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I read in advance the lead judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA just delivered. I entirely agree with his lordship’s reasoning and conclusion therein that the appeal has

merit. It is settled that the University has the authority to discipline an erring student. However, the principle of fair hearing entrenched in our Constitution must strictly be observed at all the stages of the process leading to the application of any sanction against an erring student. See ESIAGA V. UNIVERSITY OF CALABAR & ORS. (2004) LPELR-1169 AT 2223 (F-A).

There is no doubt that the Appellant had the record of the proceedings of the panel set up to investigate the allegation against the Respondent. The Appellant failed to produce the report before the Court. The provisions of Section 167(d) of the Evidence Act entitles the Court to presume that evidence which could have been produced but was not produced would if produced, be unfavourable to the person who withholds it. I agree entirely with my learned brother that the mere assertion of the appellant that the rights of the respondent were not breached is not enough. In the circumstances, the presumption that the appellant failed to produce the report because it is unfavourable to it must be applied in favour of the Respondent. For this and other reasons articulated in the lead judgment, I also allow the

appeal. I abide by the consequential orders made in the lead judgment including the order on costs.

ABUBAKAR SADIQ UMAR, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA, just delivered.

I agree entirely with the reasoning and conclusion reached. The appeal is unmeritorious and is hereby accordingly dismissed. The Appellant is directed to recall the Respondent forthwith to enable him complete his course of study.

The judgment of the High Court of Enugu State, Agbani Judicial Division, Holden at Agbani, delivered on the 28th February, 2018 per Anidi J., is hereby affirmed.

Appearances:

Mr. G. O. Nwokeiwu with him, Mr. C.O. Agbo For Appellant(s)

Mr. A. P. Okoloagu with him, N. Ezeah For Respondent(s)