FEDERAL UNIVERSITY OF TECHNOLOGY, AKURE & ANOR v. MR. ADEBAYO AFOLABI VICTOR
(2019)LCN/12731(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of February, 2019
RATIO
CIVIL RIGHT: CIVIL RIGHT OF STUDENTS
“It was also emphasized by the Supreme Court in the case of University of Ilorin v. Rasheedat Adesina (2014) 10 NWLR (pt.1414) 159, per the lead judgment prepared by his Lordship, Aka ahs, J.S.C., that a University has the sole power and responsibility to lay down requirements which must be satisfied before any student who is considered in the opinion of the Senate of the university to be worthy in learning and character to an award of its degree.The Supreme Court added that though the Courts do not ordinarily have jurisdiction to interfere in the internal or domestic matters of a university, where it becomes clear that in resolving domestic disputes by the Senate and the visitor of the university, the university is found to have infringed the civil rights and obligations of a student thereby raising issues of public import, the Courts would have the jurisdiction to intervene.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
DAMAGE: SPEACIAL DAMAGE
“…For the proposition that special damages be proved to the letter or specifically, see for example, Eneh v. Ozor (2016) 16 WLR (pt.1538) 219, B.B. Apugo and Sons Ltd. v. O.H.M.B. (2016) 13 WLR (pt 1529) 206. Relief 2 should have been expressly granted on the trend of the evidence to tally with reliefs 5 and 7 rightly granted by the Court below, while relief 6 is presumptive and may only fall into line or due after the affected courses or scripts are remarked, so the Court below was right in refusing to grant it. Except where the matter speaks for itself (res ipsa loquitor) negligence and particulars thereof must be pleaded as it is a question of fact vide Diamond Bank Ltd. v. P.I.C. Ltd. (2009) 18 NWLR (pt. 172) 67. So relief 1 was rightly refused as it was based on unsubstantiated allegation of negligence; likewise, relief 3 and the reliefs in paragraphs 4 and 9 – 12 of the statement of claim which were rightly refused by the Court below.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is from the judgment of the Federal High Court sitting in Lagos (the Court below) granting the respondents claim in part with respect to reliefs ordering the appellants to cause some of the respondents examination papers to be re-marked.
In outline, the respondent took courses in a degree in Mechanical Engineering. At the end of the final examination the appellants awarded Cumulative Point Grade Average (C.P.G.A.) to the respondent which, according to the respondent, did not represent the true scores that should have earned him a Second Class (Upper Division) degree in Mechanical Engineering; but that the respondent was awarded a Second Class (Lower Division) degree instead.
The case was heard on the merits. It was essentially documentary; upon which the Court below entered judgment directing the appellants to re-mark the respondents scripts by external examiners in courses MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MEE 311, MEE 302, EEE 352 and MEE 312 and issue a final result and transcripts reflecting results of the respondent and, also, awarded N500,000 as general damages against the appellants.
The appellants were dissatisfied with the judgment and filed a notice of appeal with twelve (12) grounds of appeal. The respondent filed a brief of argument on 28.05.18. The respondent raised a preliminary objection to the appeal which was argued in the brief to the effect that the leave of the Court was not sought and obtained before the notice of appeal was filed, as the Court below sat at second instance after the case was assigned to it by the Chief Judge of the Federal High Court acting on the order of the Court of Appeal in Appeal No. CA/L/AK/39/13; and that the leave of the Court was not obtained to file and argue grounds of mixed law and fact, therefore the notice of appeal is incompetent and should be struck out relying on Section 241 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution), and the cases of Afribank Plc. v. Akwara (2006) 1 SC (pt. 11) 40, Eze v. Okechukwu (1998) 5 NWLR (pt. 548) 85 86, Ifeajuna v. Ifeajuna (1999) 1 NWLR (pt. 587) 492 at 505, Onifade v. Olayiwola (1990) 7 NWLR (pt. 161) 130, Mohammed v. Olawunmi (1990) 2 NWLR (pt. 133) 458, 480, 483.
It was also argued in the preliminary objection that grounds 1, 2, 3, 5, 8 and 9 of the notice of appeal relating to the question of the respondents action being premature, was determined by the Court of Appeal (Akure Division) in Appeal No. CA/L/AK/39/13 since 2013 in which is contained in pages 255 256 of the record, so for appellants to raise it again would be caught by the doctrine of res judicata, therefore the appellants should not be allowed to relitigate the same issue in grounds 1, 2, 3, 5, 8 and 9 of the notice of appeal.
The respondent submitted that the same issue of exhaustion of domestic or internal remedies was raised at the Federal High Court which dealt with it as a preliminary objection in a ruling in pages 364 365 and 476 479 of the record which the Court below also determined in its judgment in pages 1005 1006 of the record where it relied on the decision of the Court of Appeal, Akure Division in Appeal No. CA/AK/39/13, therefore it is wrong for the appellants to relitigate the same issue in the present case citing in aid the cases of Ishola v. Ajiboye (1998) 1 NWLR (pt. 532) 71 at 77 78, Eyo and Ors. v. Okpa and Anor. (2009) LPELR CA/C/130/2008, Udo v. Akpan (2010) 8 NWLR (pt. 1195) 196, Oyegbola v. Aremu (1992) 8 NWLR (pt. 259) 326 at 334, Odua Inv. Co. Ltd. v. Talabi (1997) 10 NWLR (pt. 523) 1, consequently, the respondent urged that grounds 1, 2, 3, 5, 8 and 9 of the notice of appeal should be struck out.
The other preliminary objection is based on grounds 3, 4, 6, 7, 10 and 11 of the notice of appeal which the respondent contended are vague, narrative and general in terms and should be struck out for offending Order 7 Rule 2 (3), 3 and 3 of the Court of Appeal Rules 2016 (the Rules of the Court) read with the cases of Aderibigbe v. Abidoye (2009) 10 NWLR (pt. 1150) 592 and Machika v. Imam (2010) LPELR 4448; and that once the preliminary objection succeeds the appeal should be terminated in limine to save time citing in support Afribank Plc. v. Akwara (2006) 1 SC (pt. 11) at 43, Yaro v. Arewa (2007) 17 NWLR (pt. 1063) 333.
The appellants reply brief filed on 19.10.18, but deemed as properly filed on 24.10.18 responded to the preliminary objection by defining a Court of first instance as a Court of original or primary jurisdiction like a trial Court vide Blacks Law Dictionary (Sixth Edition) showing the Court below which is of one jurisdiction but with several Divisions over the country is the same as the Federal High Court Akure under Section 249(1) of the 1999 Constitution read with Sections 1(1) and 19(1), (2), (3) and (4) of the Federal High Court Act 2004, so the remitting of the case to the Court below by the Chief Judge of the Federal High Court on the orders of the Court of Appeal (Akure Division) does not constitute the hearing of the case by a Court of second instance; and that it being a final decision given by the Court below the appellant does not need the leave of the Court to file and argue the grounds of appeal in the notice of appeal citing in support Section 241 (1) (a) of the 1999 Constitution. Likewise, it was contended that the appellant did not require the leave of the Court to appeal on grounds of mixed law and facts from the said final decision of the Court below vide Section 241(1) (a) of the 1999 Constitution.
The appellants responded to the preliminary objection to grounds 1, 2, 3, 5, 8 and 9 of the notice of appeal that it was in the course of determining the issue of the Public Officers Protection Act which is an issue of jurisdiction that the Court of Appeal (Akure Division) had to look at the claim before it to decide the issue relating to the time the cause of action accrued and whether the internal remedies of the appellants were exhausted before the respondent filed the action that the Court of Appeal (Akure Division) relied on the presumption of correctness of the averments in the statement of claim, not evidence to decide that the action was not premature, therefore the action was not caught by the plea of res judicata and that grounds 1, 2, 3, 5, 8 and 9 of the notice of appeal are competent citing in support the cases of Tukur v. Govt. of Gongola State (1989) 4 NWLR (pt. 117) 517, CBN v. Okojie (2015) 4 NWLR (pt. 1479) 231, Barclays Bank of Nigeria Ltd. v. C.B.N. (1976) ALL NLR 326 at 331, D.T.T. Ent. (Nig.) Co. Ltd. v. Busari (2011) 8 NWLR (pt. 1249) 387 at 410, Agu v. Ikewibe (1991) 3 NWLR (pt. 180) 385.
The appellants responded to the preliminary objection to grounds 3, 4, 6, 7, 10 and 11 of the notice of appeal in pages 1055 1059 of the record that the quotation of part of the judgment of the Court below in the grounds of appeal with particulars of error in law or misdirection linked to them do not make the grounds of appeal vague, narrative and general in terms as to offend Order 7 Rule 2 (3) and 3 of the Rules of Court placing reliance on the cases of Alade v. Ogundokun (1992) 5 NWLR (pt. 239) 42 at 52, Ibrahim v. Mohammed (2003) 6 NWLR (pt, 817) 615 at 637, Peter v. N.N.P.C. (2010) 8 NWLR (pt. 1195) 173 at 184, Dairo v. U.B.N. Plc (2007) 16 NWLR (pt. 1059) 99 at 158, S.C.O.A. (Nig.) Plc v. Mohammed (2004) 3 NWLR (pt. 862) 20 at 33, Sosanya v. Onadeko (2005) 8 NWLR (pt. 926) 185 at 215 216; and that even if the said grounds of appeal are inelegant they should be accepted on the ground of substantial justice as stated in Sosanya (supra).
The appellants observed that the respondents reference to the case of Aderibigbe v. Abidoye (supra) that a ground of appeal containing mere quotation from passage of a judgment without specifying the nature of the error in law or misdirection is incompetent and ought to be struck out suo motu by the Court, or on the application of the respondent is not contained in the judgment in that case therefore respondents conduct is not only fraudulent and condemnable but unprofessional showing unconscionable desperation on his part and should be sanctioned by the Court citing in support Tukur v. Govt. of Gomgola State (supra) at 44 and Rule 32 (1) (f) of the Rules of Professional Conduct For Legal Practitioners, 2007; and that as the respondent did not answer all the material points of substance contained in the appellants brief of argument and they are deemed to have conceded the appeal vide Adesanya v. Otuewu (1993) 1 NWLR (pt. 270) 414.
The action was remitted by the Court of Appeal Akure (Division) to the Chief Judge of the Federal High Court for re-assignment to another Federal High Court for determination. It was on that basis transferred by the Chief Judge of the Federal High Court to the Court below for determination. The Court below had to start the matter de novo or afresh vide Bello v. C.O.P. (2018) 2 NWLR (pt.1603) 267.
The Court below was thus properly seised of the action which it started afresh as a Court of first instance under Section 241(1)(a) thereof read with Sections 1(1) and 19(1), (2), (3) and (4) of the Federal High Court Act. Grounds of appeal that arose from the final decision of the Court below in its primary jurisdiction as in this case would not require the leave of the Court. The grounds of appeal can be filed as of right under 241(1) of the 1999 Constitution. There is therefore no substance in this leg of the preliminary objection.
Grounds 3, 4, 6, 7 10 and 11 of the notice of appeal contained in pages 1055 1059 of the record quoted some passages from the judgment of the Court below with particulars of the errors complained of set out and linked to the complaints, contained in the respective grounds of appeal together with their particulars, elucidate in clear and unambiguous terms in advance the reasons for the complaints contained therein in a manner that could not have misled the respondent/cross-appellant and the Court of the case to meet in the appeal. The said grounds of appeal are accordingly valid, and tolerable vide Waziri v. Geidam (2016) 11 NWLR (pt. 1523) 230 at 256, 257 and 281, Orakosim v. Menkiti (2001) 9 NWLR (pt.719) 529, Shanu v. Afribank Plc (2002) 17 NWLR (pt.795) 185, Iwuoha v. NIPOST (2003) 8 NWLR (pt.822) 308, Ifaramoye v. State (2017) 8 NWLR (pt.1568) 457, Ngere v. Okuruket XIV (2017) 5 NWLR (pt.1559) 440.The preliminary objection, accordingly, lacks merit and is hereby dismissed.
The brief of argument of the appellant was filed on 27.04.18, but deemed as properly filed on 27.04.18. The appellants submitted in the brief that Exhibit A, B, E, F, H, I, J, K, L, documents from the appellants, were expunged by court below for non certification under Sections 102 and 104 of the Evidence Act 2011 (Evidence Act); therefore having been admitted in evidence but later expunged the Court below should not have relied on Exhibit F to hold that the respondent complied with the laid down procedure for seeking revision of transcripts after expunging Exhibit F and other documents for non compliance with Section 104 of the Evidence Act, being a public document, as held by the Court below in part of its judgment in pages 1005 and 1007 of the record when the documents were no longer evidence in the case citing in aid the cases of Alamieyeseigha v. F.R.N. (2006) 16 NWLR (pt.1004) 1 at 66, 67, 70, Bob-Manuel v. Woji (2010) 8 NWLR (pt.1196) 266, Aromolaran v. Agoro (2014) 18 NWLR (pt. 1438) 547, Shanu v. Afribank (Nig.) Plc (2002) 7 NWRL (pt.795) 185 at 222, Ayanwale v. Atanda (1988) 1 All NLR (pt.68) 22, Olagbemiro v. Ajagungbade III (1990) 3 NWLR (pt.136) 37 at 63, Gbajor v. Ogunburegui (1961) 1 All NLR 882 at 886, Emokpae v. Stanbic IBTC PM Ltd. (2015) NWLR (pt. 1487) 57, Oguntayo v. Adelaja (2009) 15 NWLR (pt.1163) 150, A.T.P. Nig. Ltd. and Anor. v. Drake & Skull (Nig.) Ltd. (2003) 3 NWLR (pt.649) 848,Adebakin v. Odujebe (1973) NMLR 148, Nigerian Ports Plc v. B.P. PTE Ltd. (2012) 18 NWLR (pt.1333) 454 at 487, Oladele v. Aromolaran II (1996) 6 NWLR (pt.453) 180 at 226, UBN v. Ozigi (1994) 3 NWLR (pt.333) 385 at 399, ACB Ltd. v. Gwagwada (1994) 5 NWLR (pt.342) 25 at 31, Aigbobahi v. Aifuwa (2006) 6 NWLR (pt.976) 270 at 290, Shell Pet. Dev. Co. (Nig.) Ltd. v. Amaro (2000) 10 NWLR (pt.675) 248 at 275.
The appellants submitted that the Court below should not have entertained the action as the respondent failed to exhaust the internal procedure or remedy laid down in the University Handbook, Exhibit DE or Exhibit N in page 67 of the record, therefore it was submitted that the respondent jumped the gun by filing the action at the Court below without exhausting the remedies available in the domestic forum of the appellants, which according to the submission of the appellants, rendered the action premature and should have been struck out citing in support the cases of Akintemi v. Onwumechili (1985) 1 NWLR (pt. 1) 68 at 80 81, 85, University of Ibadan v. Judith A. Asien unreported Appeal No: CA/L/163/84 delivered on 22.05.85, Magit v. University of Agriculture Makurdi and Ors. (2005) 10 NWLR (pt. 956) 211 at 245 and 257 259, Esiaga v. University of Calabar (2004) 7 NWLR (pt. 872) 322 at 387.
The appellants further submitted that by virtue of Section 7 (i) (b) and (c) of the Federal University of Technology Act, 2004 (FUTA Act 2004) on the powers of the Senate of the 1st appellant relating to the organisation and control of courses of study and of examinations held in conjunction with those courses, including the appointment of internal and external examiners, and the award of degrees, and such other qualifications as may be prescribed in connection with examinations held as aforesaid, the respondent was obliged to exhaust the domestic avenues of redress in the 1st appellant who on the pleadings did not show he addressed his application for revision of marked scripts through the appropriate channel before filing the action at the Court below citing in aid the cases of Unilorin v. Akinola (2014) 12 NWLR (pt. 1422) 435 at 464, Magit v. University of Agriculture Makurdi (2005) 19 NWLR (pt.959) 211 at 245 and 248, Alechenu v. University of Jos (2015) 1 NWLR (pt.1440) 333 at 363 364, University of Calabar v. Esiaga (1997) 4 NWLR (pt.502) 719 at 742 743, Osho v. Foreign Finance Corporation (1991) 4 NWLR (pt.184) 157.
It was also argued that the case of Victor v. FUTA and Anor Appeal No. CA/AK/39/13 contained in pages 213 267 of the record relied upon by the Court below is distinguishable from the present case as in that case where the respondent unsuccessfully challenged the action for being statute barred, as the ground that internal remedies were not exhausted and rendered the action premature vide the additional record of appeal compiled and transmitted by the respondent showing the Court below violated procedure and principles of law which created a miscarriage of justice, so contended the appellants relying on the case of Zakari v. Nigerian Army (2015) 17 NWLR (pt.1487) 77 at 104.
The appellants submitted that they relied on page 67 of Exhibit DE or Exhibit N in page 369 of the record, not page 60 thereof, as wrongly held by the Court below in its judgment contrary to established practice that Courts and parties are bound by pleadings vide Fagbenro v. Arobadi (2006) 7 NWLR (pt.978) 172, therefore the said finding should be disturbed; that the respondent did not deny the averment in paragraphs 14, 15, 16 and 17 of the statement of defence in pages 367 368 of the record which are deemed admitted; that in civil actions the claimant must establish his case on the balance of probabilities under Section 132 of the Evidence Act.
It was submitted that the action was also based on declaratory reliefs which the defendants at the Court below, now the appellants, denied in their pleadings thus placing the burden on the respondent, as the claimant at the Court below, to rely on the strength of his case, not the weakness of the appellants case, for the success of the case; and that paragraph 12 of the statement of claim was not supported by the evidence contained in the written statement on oath of the respondent in pages 299 302 of the record and would go to no issue as evidence not led on any piece of pleadings shows the piece of pleading has been abandoned citing in support the cases of Amodu v. Amode (1990) 5 NWLR (pt.150) 356 at 367, Kodilinye v. Odu 2 WACA 336 at 337, Anyafulu v. Meka (2014) 7 NWLR (pt.1406) 396, Adesanya v. Otuewu (1993) 1 NWLR (pt.270) 414.
The appellants also submitted that by Order 13 Rules 5 and 6 of the Federal High Court (Civil Procedure) Rules, 2009 (the rules of the Court below) the respondent was obliged to plead particulars of misrepresentation of scores/marks by the appellants in the statement of claim which he failed to do, and that no evidence was adduced to establish the alleged misrepresentation of scores/marks awarded to the respondent in MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MME 311, MEE 302, EEE 352 and MEE 312.
It was also argued that the scores were not pleaded and the ones the respondent claimed he was entitled to were also not pleaded placing the issue of scores in the realm of conjecture or speculation contrary to the fact that a Court of law should not base its conclusions on speculation, but evidence notwithstanding the respondent served notice to produce the documents vide pages 268 269 of the record citing in support Sections 131 and 132 of the Evidence Act and the cases ofBuhari v. Obasanjo (2005) 13 NWLR (pt. 941) 1 at 151 152, Belgore v. Ahmed (2013) 8 NWLR (pt. 1355) 60 at 94, Ezemba v. Ibeneme (2004) 14 NWLR (pt. 894) 617 at 689.
The appellants also submitted that the respondent was entitled to produce or give secondary evidence of the documents covered by the notice to produce since they are primary evidence in the custody of the appellants, but the respondent failed to do so which should be held against the respondent citing in support Sections 89(a), 90(1) (c), 102(a) and 104 of the Evidence Act read with the cases of Aromolaran v. Agoro (supra) and Anatogu v. Iweka 11 (supra).
The appellants submitted that the respondent challenged his scores/marks after graduation from the University in breach of the students. Handbook for information page 67, Exhibit DE, read with paragraph 6, 7, 11, 14, 15 and 16 of the statement of claim and the statement of oath of the respondent but no evidence was led on paragraphs 11, 14 and 15 of the statement of claim vide pages 299 302 of the record read with the evidence of DW1 in pages 374 376 thereof and these paragraphs should be deemed abandoned citing in support Anyafulu v. Meka, Adesanya v. Otuewu, thus the respondent violated the Students Handbook for Information, a subsidiary legislation, therefore his case is an afterthought citing in support the cases of Okereke v. YarAdua (2008) 12 NWLR (pt.1100) 95 at 127, Orubu v. INEC (1988) 5 NWLR (pt.94) 323.
The appellants submitted that there was unchallenged evidence that the respondents semester result from the University were correctly pasted vide paragraph 5 of the written statement on oath of DW1 in page 373 of the record read with Exhibits DA, DB, DC and DE with emphasis on Exhibit DC, the internal memorandum dated 10.12.12 showing the appellants investigated the actual marks scored by the appellant in the courses complained of and found no merit in his complaints.
The appellants added that –
The Appellants also adduced unchallenged evidence through DW1 that the Respondent being an adamant, obstinate and emotionally unstable person with hearing impairment had unpleasant attitude of insisting on his views even facts could not support his claims. We refer to DW1’s Written Statement on Oath in paragraphs 17(e) and 23. See pages 375 and 377 of the Record of Appeal.
The Appellants have established in this case that the Respondent has failed woefully to substantiate his bogus/imaginary claims that the award of Second Class (Lower Division) is not his true scores/marks. These frivolous and unsubstantiated allegations were made to tarnish the image of the University which the Respondent has not denied in this case.
The appellants submitted that paragraphs 5, 6, 7, 9, 10, 12 26, 28, 30 and 31 of the statement of defence were not specifically denied by the respondent who did not file a reply to the statement of defence.More so, the evidence of DW1 in page 655 of the record was unchallenged and is therefore deemed admitted under Order 36 of the rules of the Court below read with the case of Unity Bank Plc v. Bouari (2008) 7 NWLR (pt.1086) 372 at 406, Oshodi v. Eyifunmi (2000) 13 NWLR (pt.684) 298 at 326 327, Iwuoha v. NIPOST Ltd. (2003) 8 NWLR (pt.822) 302 at 342, Egbunike v. A.C.B. Ltd. (1995) 2 NWLR (pt.375) 34 at 39.
The appellants submitted on weight of evidence that the respondent applied for revision of his marked scripts through letters, Exhibit H, Exhibit I, Exhibit J, Exhibit K, Exhibit L which were later expunged as inadmissible vide page 1007 of the record; that the Court below also expunged Exhibits A, B, F, J and O at judgment stage showing there was no evidence to support the findings of the Court below that the respondent complied with the internal procedure for seeking a revision of scores/marks, therefore the Court below should not have granted reliefs 5 and 7 as the respondent did not discharge the evidential burden of proof and the Court below wrongly shifted the burden of proof on the appellants to establish the case for the respondent in its holding in page 1049 of the record citing in support the cases of UBA Plc v. Samba Petroleum Co. Ltd. (2002) 16 NWLR (pt. 793) 361 at 376, Ajayi v. Ogun State (2009) 7 NWLR (pt. 1141) 443 at 448, Edosomwan v. Ogbeyfun (1996) 4 NWLR (pt. 422) 266 at 278, Kate Enterprises Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (pt. 5) 116, Govt., Kwara State v. Lawal (2007) 13 NWLR (pt. 1051) 347 at 387.
It was further argued that having refused the principal reliefs, the consequential reliefs 5 and 7 built on the prospect of success of the declaratory reliefs 1, 2, 3 and 4 should not have been granted by the Court below citing in support the cases of Fayemi v. Awe (2009) 15 NWLR (pt. 1164) 315 at 342, YIL v. Ngumar (1998) 8 NWLR (pt. 560) 125 at 137.
The appellants submitted against the award of general damages of N500,000 for emotional stress or pain suffered by the respondent that emotional stress or pain were not pleaded in the statement of claim in pages 11-14 of the record, therefore the Court below acted on some wrong principle in awarding erroneously estimated and ridiculously high general damages which in law are generally incapable of substantially exact calculation, therefore the Court should interfere with the said award which is according to the appellants contention, is excessive, extravagant and unreasonable citing in support the cases of Yalaju – Amaye v. Associated Registered Engineering Contractors Ltd. and Ors. (1990) NWLR (pt. 145) 422, Onaga v. Micho and Co. (1961) 1 ALL NLR 101 at 105 106, Ifeanyi-Chukwu Co. Ltd. v. Akhigbe (1999) 7 SC (pt. 1) 1, Odogu v. A. G., Federation (1996) 6 NWLR (pt. 456) 508, U.B.N. Plc. v. Ntuk (2003) 16 NWLR (pt. 845) 183, NICON Hotels Ltd. v. Nene D.C. Ltd. (2007) 13 NWLR (pt. 1051) 237, Oyeneyin v. Akinkugbe (2010) 4 NWLR (pt. 1184) 265 at 288; and that the appeal should be allowed and the judgment of the Court below set aside.
The respondents brief in respect of the main appeal stated in pages 10 11 as follows
ISSUES FOR DETERMINATION IN THE MAIN APPEAL
None.The main appeal is incompetent.
LEGAL ARGUMENTS ON THE MAIN APPEAL
None.The main appeal is incompetent.
CONCLUSION ON THE MAIN APPEAL
The 4 ISSUES for determination formulated by the appellants counsel rest on the 12 incompetent grounds of appeal. Therefore, the main appeal is incompetent and should be dismissed. The judgment of Hon. Justice Olatoregun specifically granting prayers 5 and 7 of the writ cannot be faulted and should therefore be affirmed.We urge this honourable Court to so hold.”
For better appreciation of the respondents case as claimant at the Court below, I find it necessary to copy the reliefs sought by him as indicated in the opening part of the judgment of the Court below in pages 988 990 of the record thus –
1. DECLARATION that the handling, processing and subsequent computation of the Plaintiff’s examination papers in courses MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MME 311, MEE 302, EEE 352 and MEE 312 by the defendants was most inappropriate, negligent and 2S not reflect is actual grades/performance in the said examinations.
2. AN DECLARATION that the refusal of the plaintiff’s request by the defendants to either investigate how he came about the low scores, or remark his examination scripts altogether in courses MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MME 311, MEE 302, EEE 352 and MEE 312 amounts to the defendants abandoning their duty of can to the plaintiff.
3. A DECLARATION that the deliberate handling of the plaintiffs examination scripts in courses MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MME 311, MEE 302, EEE 352 and MEE 312 with view to portray or parade him as academically incompetent is very unfair and inconsiderate looking at his strong academic records.
4. AN ORDER of this Honourable Court compelling the defendants to make known to the plaintiff efforts made to investigate his complaint and why took so long (eight months) December 2010 – July 2011 to publish their findings.
5. AN ORDER of this Honourable Court either directing the defendants to remark the plaintiff’s examination scripts in courses: MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MME 311, MEE 302, EEE 352 and MEE 312 or to appoint neutral, unbiased and independent scholars from an institution as this Court may direct to remark the plaintiff’s examination scripts in courses: MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MME 311, MEE 302, EEE 352 and MEE 312 and rectify his result accordingly.
6. ORDER of this Honourable Court setting aside the defendants’ letter dated 12-July 2011 and headed: SENATE DECISION EXTRACT: REQUEST FOR RECTIFICATION OF RESULT ADEBAYO, V. A. (MEE/05/5405).
7. AN ORDER directing the defendants to issue a final result and transcript reflecting the actual performance of the plaintiff in the said examination to him.
8. GENERAL DAMAGES as this honourable Court will deem just and appropriate in the peculiar circumstances of this case.
9. SPECIAL DAMAGES in the sum of N1,650,000 at the rate of N150,000 per month from October 2010-August 2011 as lost earnings for the period the plaintiff would have been gainfully employed if he had been given an appropriate academic grade and continuing until judgment is delivered.
10. Cost of this lawsuit.
11. ORDER directing the defendants to investigate the persons behind the attacks, intimidation, and harassment of the plaintiff at various times and places within the school premises from October 2010 up to date.
12. ORDER directing the defendants to explain why the plaintiff’s department stopped pasting results from 2008-2010 (300 level to 500 level) and why he was not allowed to know his final result before convocation.
Permit me to preface the discussion by pointing out that the fact that the respondent did not file respondent brief would not per se entitled the appellant to judgment on his brief. The Appellant(s) still has the onus to displace the presumption that the case appealed against is right.It follows that the failure of the respondent to file brief against the appeal does not automatically entitle the appellants to judgment.
The Supreme Court had cause to hold in the case of Federal University of Technology Minna, Niger State and Ors. v. Olutayo (2018) 7 NWLR (pt. 1617) 176 at 189 per the lead judgment prepared by his Lordship, Eko J.S.C., that By virtue of Section 7 (2) (b) of the Federal Universities of Technology Act Cap F23, Laws of the Federation of Nigeria, 2004, the function of the Senate of the Federal University of Technology includes the organisation and control of examinations held in conjunction with the students course of study at the University. Function and duty are usually co-related. The duty of the senate of the Federal University of Technology of act fairly in the discharge of this cannot be denied.I think it is for this reason that Section 7 (2) (b) of the Act provides a right of appeal to the Council of the University against the decision of the senate.
(My emphasis).
It was also emphasized by the Supreme Court in the case of University of Ilorin v. Rasheedat Adesina (2014) 10 NWLR (pt.1414) 159, per the lead judgment prepared by his Lordship, Aka ahs, J.S.C., that a University has the sole power and responsibility to lay down requirements which must be satisfied before any student who is considered in the opinion of the Senate of the university to be worthy in learning and character to an award of its degree.The Supreme Court added that though the Courts do not ordinarily have jurisdiction to interfere in the internal or domestic matters of a university, where it becomes clear that in resolving domestic disputes by the Senate and the visitor of the university, the university is found to have infringed the civil rights and obligations of a student thereby raising issues of public import, the Courts would have the jurisdiction to intervene.
The judgment of the Court of Appeal (Akure Judicial Division) contained in pages 213 267 of the record, particularly pages 255 256 thereof held inter alia that the respondent had exhausted every internal remedial approach before he filed the action in Court. For clearness, I copy the relevant part of the judgment of the Court of Appeal (Akure Division) in pages 255 256 of the record below
Now despite the mix up of facts, figures and apparent on the face of the appellant’s statement of claim, I am still able to make out of the averments therein, that it was the respondents’ publication dated 12th July, 2011 that drove home the futility of his seeking an internal or domestic resolution of his cause, paragraph 16 indeed bears the outcome and culmination of the efforts made by the appellant to have his grievance sorted out internally. In the matter of ABIMBOLA AKINTEMI VS ONWUMECHILI (SUPRA), the Supreme Court, per IRIKEFE, JSC, at page 61. Lines 31-37 opined that;
if a matter is justifiable in Nigeria, the domestic nature of the dispute does not, under the 1979 Constitution, oust the jurisdiction of the Court.See Section 6(6)(b) of the 1979 Constitution [now Section 6(6)(b) of the 1999 Constitution]. It can only mean that until the remedies available in the domestic forum are exhausted, any resort to Court action would be premature.”[Emphasis mine]. [italics supplied].
The ratio decidendi in Akintemi (supra), being a well determined principles as to when a cause action accrued as far as domestic disputes such as the case at hand is concerned was followed subsequently by this court in the cases of:
i. UNILORIN VS. AKINOLA (2007) 17 NWLR (Pt. 1064) 568 at 587;
ii. UNILORIN VS. ADESINA (2010) 9 NWLR {Pt. 1199} 331 at 383 paras. F-H.
As is expected of every reasonable student and I believe so of the appellant, he took the first sensible action which was to make his petitions or grievances known to the relevant authorities. To my mind, it was not until the 12th of July, 2011 when the appellant received that letter from the office of the Registrar captioned [SENATE DECISION EXTRACT: REQUEST FOR RECTIFICATION OF RESULT: ADEBAYO v. A. (MEE/05/5405)], did the cause of action accrue for him. The tone and content of the letter made it obvious that the respondents were done with the said appellant and his complaint. Indeed all the facts and circumstances that gave rise to the appellant’s cause of action came to a head on the day he got the result notification from the Registrar of the respondents’ institution. Having exhausted every internal remedial approach, he was faced with nothing else but a brick wall. That was the day the cause of action accrued in the circumstances of this case.”
(My emphasis).
The Court below also endorsed or followed the decision (supra) of the Court of Appeal (Akure Division) as it was bound by precedent or stare decisis to do. The appellants themselves admitted in their case especially in paragraphs 9 22 of their statement of defence that the respondent resorted to internal mechanism of the appellants for domestic resolution of the dispute but was not satisfied with the outcome before he came to Court. So much of it is reflected in the judgment of the Court below in pages 994 999 of the record.
The respondent did not therefore jump the gun when he filed the action at the Court below.Grounds 1, 2, 3, 5, 8 and 9 of the notice of appeal and the issues tied to them which sought to relitigate the same issue that was closed by the Court of Appeal (Akure Division) that the action was not prematurely filed but was filed after the respondent exhausted the domestic remedies of the appellants is binding on the parties and the Court and cannot be re-opened in the appeal as it is caught by issue estoppel.See Udo and Ors. v. Obot and Ors. (1989) 1 NWLR (pt.95) 59, Fadiora v. Gbadebo (1978) 3 S.C. 219 at 228.
I resolve that the respondents action was not prematurely filed at the Court below, and the said Court rightly assumed jurisdiction over the dispute, therefore all the arguments on the prematurity of the action at the Court are accordingly not countenanced vide University of Ilorin v. Rasheedat Adesina (supra) at 178 following Akintemi v. Onwumechili (1985) 1 NWLR (pt.1) 68 and University of Calabar v. Esiaga (1997) 4 NWLR (pt.502) 719 to the effect that where the student has exhausted all avenues and entreaties and the university is adamant, the student is entitled to approach the court for redress. In such circumstance, the Court should ensure that the university authority abides by the law setting up the institution.That award of degrees and certificates should be done in accordance with the law establishing the university and international best practice. It should not be at the whims and caprices of the university authority.
The appellants are no doubt a public officers vide University of Jos and Ors. v. Ikegwuoha (2013) 9 NWLR (pt.1360) 478. Private records kept by the appellants become public records; likewise appellants own records are public records vide Sections 102 and 104 of the Evidence Act; and, only certified true copies thereof are admissible in evidence vide Section 105 of the Evidence Act; consequently, the Court below was obliged to expunge in evidence uncertified public documents in its judgment vide Alade v. Olukade (1976) NSCC 34.
The certification of public document is necessary was stressed in the case of Udom v. Umana No.1 (2016) 12 NWLR (pt.1526) 179 at 234 235 thus –
From the phraseology of the italicised clauses of Subsection (2) (supra), a document can only be called a certified copy of a public document if, in addition to the “payment of legal fees prescribed in that respect, together with a certificate written at the foot of such l-copy that it is a true copy,” (Subsection 1, supra), it (the certificate) “is … dated and subscribed by such officer with his name and his official title …
In effect, any document that falls below the above mandatory threshold is inadmissible as a certified copy of a public document, Omisore v. Aregbesola and Ors (2015) 15 WLR (Pt. 1482) 205, 294; Ndayako v. Mohammed (2006) 17 WLR (Pt. 1009) 676; Tabik Investment Ltd. v. Guaranty Trust Bank Plc (2011) LPELR-3131 (SC); (2011) 17 WLR (Pt. 1276) 240; Nwabuoku v. Onwordi (2006) All FWLR (Pt. 331) 1236,1251-1252.
The whole essence of the Court’s insistence on the scrupulous adherence to the above certification requirement of public documents is to vouchsafe their authenticity, vis-a-vis, the original copies, to third parties. G & T.I. Ltd. and Anor v. Witt & Bush Ltd.(2011) LPELR-1333 (SC) 42, C-E; (2011) 8 WLR (Pt. 1250) 500.
That explains why, in the absence of the original document only such properly certified copies are admissible as secondary copies of public documents “but no other kind of secondary evidence”, G. & T. I. Ltd. and Anor v. Witt and Bush Ltd. (supra); Araka v. Egbue (2003) 33 WR 1; (2003) 17 NWLR (Pt. 848) 1; Minister of Lands, Western Nigeria v. Azikiwe (1969) 1 All LR 49; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373; Tabik Investment Ltd. and Anor v. Guarantee Trust Bank Plc (2011) 6 MJSC (Pt.1) 1, 21; (2011) 17 NWLR (Pt. 1276) 240; Dagaci of Dere v. Dagaci of Ebwa (2006) 30 WRN I; (2006) 7 NWLR (Pt. 979) 382; Iteogu v. L.P.D.C. (2009) 17 NWLR (Pt. 1171) 614, 634 etc.
See also Ukiri v. E.F.C.C. (2013) 14 NWLR (pt.1639) 195.
Exhibit F was a photocopy of letter dated 17.12.2010 written by the respondent, of which the original copy was with the appellants. It contained the attached receipt of the prescribed fee.The Court below expunged Exhibit F and still relied on it in its judgment on the issue of exhaustion of internal machinery or domestic remedies by the respondent. I think the Court below erred by still relying on Exhibit F after it had expunged it.
Expunged evidence is rejected evidence. It is settled that a Court should not act on rejected evidence as it is no longer evidence to act upon and is as if it was never tendered and admitted in evidence as Exhibit vide Nigeria Ports Plc v. Beecham Pharmaceutical PTE Ltd. and Anor. (2012) 18 NWLR (pt.1333) 454 at 489 490 following Oladele v. Aromolaran II (1996) 6 NWLR (pt.453) 180 at 226. See also Oguntayo v. Adelaja (2009) 14 NWLR (pt.1162) 429, Oguntayo v. Adelaja (2009) 15 NWLR (pt.1163) 150, Agbaje v. Adigun (1993) 1 NWLR (pt.269) 261, Emokpae v. Standbic IBTC P.M. Ltd. (2015) 17 NWLR (pt.1487) 57, Ekpo v. Kanu (2012)W.R.N. 132, Kekong v. State (2017) 18 NWLR (pt.1596) 108, Ikpa v. State (2018) 4 NWLR (pt.1609) 175 at 220 and 227, Bello v. Gov., Kogi State (1997) 9 NWLR (pt.541) 496.
The Court below held in its judgment in page 1005 of the record that –
Counsel, Mr. Imade referred to Exhibit DE, the Federal University of Technology Akure Students Handbook For Information 2010 2012 at page 67. I have examined Exhibit DE and N (which is also the Handbook). I am satisfied that the plaintiff complied with the laid down procedure for seeking a revision of marked scripts at the end of the semester.See also Exhibit F the letter written by the plaintiff to the Dean with the attached receipt of the prescribed fee.”
A corporate perusal of the judgment of the Court below particularly on the issue of the respondent resorting to the domestic remedies of the appellants would disclose in pages 1005 of the record that the Court below had relied on Exhibit DE and the judgment of the Court of Appeal (Akure Division) in CA/AK/39/13 and the Ruling of the Federal High Court (Saidu, J.) to hold that the action was not premature as the respondent had exhausted the domestic remedies provided by the appellants before filing the action at the Court below.
On the proposition that the decision of a Court must be read as a whole, seeAdegbuyi v. A.P.C. (2014) All FWLR (pt. 761) 1486 at 1504, Adebayo v. A.-G Ogun State (2008) All FWLR (pt. 412) 1195, Mbani v. Bosi (2006) 11 NWLR (pt. 991) 400 at 417, Akaighe v. Idama (1964) All NLR (Reprint) 317 at 322.
Exhibit DA which was tendered by the appellants is contained in pages 872 873 of the record. It is also on the same subject as the expunged Exhibit F which was on rectification of the result of the respondent.The document was tendered by the appellants and is certified as a true copy by the Registrar (the 2nd appellant) of the 1st appellant in page 873 of the record; therefore the fact that Exhibit F was expunged would not have adverse effect on the outcome of the appeal having regard to the valid Exhibit DA on the same subject matter.
Being documentary evidence, Exhibit DA can be looked at by the Court under Section 15 of the Court of Appeal, Act 2004, as amended, read with the case ofSalzgitter Stahl GMBH v. Tunji Ind. Ltd. (2011) 11 NWLR (pt.1206) 589. There is therefore no substance in the argument as Exhibit DA also cured the absence of Exhibit F. The complaint alone on the use of the expunged Exhibit F is therefore not enough to warrant the appeal to be allowed.
The error or slip committed by the Court below on the use of Exhibit F did not therefore alter the decision of the Court below on the issue as the other solid materials (supra) bolstered the decision on the issue and did not occasion a miscarriage of justice.
Based on these reasons, the decision of the Court below on the issue is unassailable even without Exhibit F as its absence in the case did not affect the weight and correctness of the judgment of the Court below on the issue.
It has to be appreciated that it is not every error or slip committed by a Court that will lead to an appeal against the judgment being allowed, unless the slip is substantial and affects the outcome of the case as to cause a miscarriage of justice by the Court arriving at a wrong decision which was not the case here as there were other formidable materials (supra) without Exhibit F which supported the decision of the Court below on the issue of exhaustion of domestic remedies by the respondent before resorting to litigation vide M.D.P.D.T. v. Okonkwo (2009) 19 W.R.N.I, Ezeoke v. Nwagbo (1988) 1 NWLR (pt.16) 182, Patrick v. State (2018) 16 NWLR (pt.1645) 263 at 284 (letter F) and Ndike v. State (1994) 8 NWLR (pt.360) 33 for the proposition that if there are other materials in the record in support of the decision of the Court such materials should be used without more to sustain the decision of the Court.
The conclusion reached by the Court below on the issue is therefore correct as the Court is more concerned with whether the decision is right or correct and not necessarily the reasoning thereof vide Mainstreet Bank Capital Ltd. and Anor. v. Nigerian Reinsurance Corporation Plc (2018) 14 NWLR (pt.1640) 423 at 446 following State v. Ogbubunjo (2001) 2 NWLR (pt.698) 576, Ndayako v. Dantoro (2004) 13 NWLR (pt.889) 187, Abaye v. Ofili (1986) 1 NWLR (pt.15) 134.
Reliefs 1, 2 and 3 of the claim (supra) are declaratory.Declaratory reliefs are not determined on the pleadings but on hard evidence, so the fact that no reply was filed or paragraphs 5, 6, 7, 9, 10, 20 26 of the statement of defence were not expressly challenged by a reply to the statement of defence would not defeat an action based on declaratory reliefs which must be proved by convincing evidence, not on the pleadings vide Motunwase v Sorungbe and Anor. (1988) 5 NWLR (pt.92) 90 at 101 102 following Bello v. Eweka (1981) 1 S.C. 101.
Pages 268 269 of the record indicated the appellants were served notice to produce these documents containing inter alia the respondents marks and/or scores –
NOTICE OF MOTION TO PRODUCE DOCUMENTS
BROUGHT PURSUANT TO ORDER 43 RULES 17 & 19 OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE RULES) 2009 AND UNDER THE JURISDICTION OF THIS HONOURABLE COURT
TAKE NOTICE that this honourable Court will be moved on the day of .., 2014 at the hour of 9 oclock in the forenoon or so soon thereafter as counsel may be heard on behalf of the above named plaintiff/applicant for:
1) AN ORDER directing the defendants to produce the following documents in Court for inspection:
A) The Plaintiffs examination scripts with matriculation number MEE/05/5405 in the following affected 10 courses:
I) MEE 202 —ENGINEERING DRAWING II (2006/07 session)
II) MEE 307 —APPLIED FLUID MECHANICS (2007/08 Session)
III) MEE 308 —INDUSTRIAL ENGINEERING ANALYSIS (2007/08 Session)
IV) MEE 301—MANUFACTURING TECHNOLOGY (2006/07 Session)
V) MEE 305—HEAT TRANSFER 1 (2007/08 Session)
VI) MEE 312—HEAT TRANSFER II (2007/08 Session)
VII) MEE 302—MECHANICAL ENGINEERING DESIGN 1 (2007/08 Session)
VIII) MEE 309—STRENGTH OF MATERIALS II (2007/08 Session)
IX) MEE 311—ENGINEERING METALLURGY (2007/08 Session)
X) MEE 352 — ELECTROMECHANICAL DEVICES AND MECHINES II (2007/08 Session)
The Notice of Produce is included in this application.
B)The score sheets of each course lecturers showing the plaintiffs continuous assessment scores in each of the above listed courses.
And for such further order or order(s) as this Honourable Court may deem fit to make in the circumstances of this case.
This motion is supported by a 13-paragraph affidavit and all paragraphs will be relied on.”
The respondent thus complied with the requirements for the appellants to produce for use in evidence the documents (supra) vide Aremu and Anor. v. The State (1991) N.S.C.C. vol. 22 (pt. 2) 331 at 341 per the lead judgment prepared by Nwokedi, J.S.C., thus –
The presumption (of withholding evidence under Section 167(d) then Section 148(d) of the Evidence Act) arises when it is shown that the adverse party has suppressed a document which has been proved to be in its possession and which it had refused to produce after service of notice.
See also Danladi v. Dangiri (2015) 2 NWLR (pt.1442) 124 at 195, Famakinwa v. State (2016) 11 NWLR (pt.1524) 538 at 560.
Paragraph 12 of the statement of claim which is in page 12 of the record complained that the scores in the courses listed in paragraph 11 thereof were not the true scores and that the scripts affected should be remarked. The appellants were put on notice to produce in evidence the scores in question.Their failure to produce the documents containing the scores upon notice been served on them to be so brought into effect Section 167 (d) of the Evidence Act (supra). The appellant would, in my considered opinion, be wrong to blame the respondent that he did not establish that aspect of the case in the circumstances as the presumption under Section 167(d) of the Evidence Act states such withheld evidence if produced would have been unfavourable to the appellants.
Had appellants honoured the notice to produce served on them, there would have been the materials for the respondent to meet the requirements of Order 13 Rule 5 and Rule 6 of the Rules of the Court below by the respondent pleading the particulars of misrepresentation complained of. At any rate, the appellants were entitled to ask for particulars if they needed them at the trial as they had the documents complained of in their possession.
In other words, had the appellants complied with the notice to produce the documents in question the complaints on misrepresentation and scores would not have arisen. Justice is not a fencing game where one sets out to outwit or outsmart another vide Afolabi v. Adekunle (1983) N.S.C.C. 398 at 405. The appellants who sat on the documents contained in the notice to produce (supra) served on them cannot be heard to accuse the respondent of not proving the pieces of evidence withheld by them; consequently, the presumption of withholding evidence under Section 167(d) of the Evidence Act afflicted the appellants’ case showing if they had produced the said documents in evidence it would have been unfavourable to them.
The reliance on the wrong page of Exhibit DE, the Students Handbook, by the Court below was a mere slip. The Court below still reached the correct decision in the matter vide Mainstreet (supra), Ukejianya v. Uchendu 13 WACA 45 at 46, Lebile v. Registered Trustees of Cherubim and Seraphim (2003) 1 S.C. (pt.1) 25, Taiwo v. Sowemimo (1982) 5 S.C. 60 at 74 – 75, Ndayako and Ors. v. Dantoro and Ors. (2004) 13 NWLR (pt.689) 187 at 198.
Mental distress or suffering/pain like ruffled feelings or natural feelings, worry, strain, anxiety and unhappiness put together as psychological trauma is a non-pecuniary head of damages as recognised by the apt English case of Fielding v. Variety Incorporated (1967) 2 O.B. 841 at 855 cited and relied upon by the authoritative works of McGregor on Damages (Fifteenth Edition) page 49 paragraphs 89 under footnote No.7 where Salmon, L.J., aptly stated in the law report in page 855 thereof thus –
“It is fairly obvious to me that the article cannot have any really serious effect upon Mr. Fielding’s reputation. Nevertheless, he is entitled to be compensated, as I say, for the anxiety and annoyance which he will naturally have felt at the title. (My emphasis).
Although McGregor on Damages (supra) page 49 paragraph 89 observed in the footnotes number 26 that the Law Reform (Miscellaneous Provisions) Act, 1970 of England has by sections 4 and 5 thereof abolished that head of damages, I do not with respect appreciate and accept the change as binding here, as psychological feelings of a human being triggered by the unwarranted act of another oftentimes have damaging effect on the psyche of a human being; oftentimes more than physical or economic injury; also, the Act of 1970 of England or the United Kingdom is not a statute of general application as to apply to sovereign Nigeria and is on that basis inapplicable here. I most respectfully follow the apt words (supra) of Salmon, L.J., in Fielding (supra).
In my modest opinion, the award of N500,000 on this head of damages was not an entirely erroneous or outrageous award, but moderate and even-handed, considering the depreciation in the value of money presently, and the anxious moments/agony the respondent was expected endure from the unexpected blow to the high anticipation/expectations of better academic performance; therefore I am slow to interfere with the said award which is an item of general damages coming under non-pecuniary loss vide page 49 paragraph 89 of McGregor on Damages (supra) to the effect that once liability had been established, then in certain torts, compensation for ruffled feelings or injury to feelings may be included under the head of general damages.
On the whole, I see no merit in the appeal and hereby dismiss it and affirm the decision of the Court below.
Now the cross-appeal. The cross-respondents raised preliminary objection to the cross-appeal in the cross-respondents’ brief filed on 19.10.17, but deemed as properly filed on 24.10.18. The cross-respondents started by contending that although the cross-appellant was granted the leave of the Court to file the notice of cross-appeal, the notice of cross-appeal was not filed at the registry of the Court below, nor was a copy of it served on the cross-respondents, so the notice of cross-appeal being the foundation of the cross-appeal and having not been filed at the Court below but at the registry of the Court offended Order 6 Rule 10 of the rules of the Court, and rendered the notice of cross-appeal bad.
It was contended in the preliminary objection that an appeal and a cross-appeal is a rehearing based on the record of appeal (the record) compiled and transmitted from the Court below to the Court and since the cross-appellant did not compile and transmit the record for the cross-appeal there is no cross-appeal citing in support Jadesimi v. Okotie-Eboh (1986) 1 NWLR (p .16) 264 at 265 – 266, Adesina v. Adeniran (2006) 18 NWLR (pt. 1011) 259, A.-G., Federation v. Bi-Courtney Ltd. (2012) 14 NWLR (pt.1321) 407 a 481, Obiamalu v. Nwosu (1973) 8 NSCC 60(?), Abina v. Tika Tore Press (1968) 5 NSCC 164, Garuba v. Omokhodion (1279) (?), Order 2 Rules 1(a) and (b), Order 7 Rule 2, and Order 8 Rule 1, 2, 3, 4, 5 and 6 of the Rules of the Court.
Consequently, the cross-respondents urged that the notice of cross-appeal should be struck out for failure of the cross-appellant to compile and transmit record of appeal for the cross-appeal itself within the prescribed time vide Order 8 Rule 18(1) of the Rules of the Court.
The cross-appellant’s reply brief was filed on 13.11.18. It was argued in it that the cross-respondent’s brief dated 18.10.18 was filed out of time and should be discountenanced citing in support Order 19 Rules 5 and 10(1) of the Rules of the Court read with the cases of PDP v. Okorocha (2012) 15 NWLR (pt.1323) 205, BOSIEC v. Kachala (2006) 1 NWLR (pt.962) 587.
It was further argued that the Court was seised of the appeal when the record was transmitted on 30.04.18, so the notice of cross-appeal was properly filed at the registry of the Court, therefore the cross-appellant is entitled to rely on the same record for the cross-appeal vide Order 6 Rule 4 and Order 19 Rule 9(2) of the Rules of the Court read with the case of Igwe v. Kalu (2002) 14 NWLR (pt. 787) 435; and that substantial justice devoid of technicalities should prevail vide Oloruntoba-Oju v. Abdul-Raheem (2009) 13 WLR (pt.1157) 83, NEPA v. Auwal (2011) 5 NWLR (pt.1241) 571.
The cross-respondents’ brief was deemed by Order of the Court as duly filed on 24.10.18 showing it is valid. I do not agree that it was filed out of time without the leave of the Court.
The cross-appellant was granted the leave of the Court to file the cross-appeal to meet the extant substantive appeal. The argument that the cross-appeal which was ordered to be filed during the pendency of the main appeal should have been filed at the Court below when the record of appeal for the main appeal was compiled and transmitted to the Court well after the notice of cross-appeal was filed is untenable.
The notice of cross-appeal was therefore properly filed in the registry of the Court vide the case ofShell Petroleum Development Company of Nigeria (SPDCN) v. Agbara and Ors. (2016) 2 NWLR (pt.1496) 353 at 395 – 396 which illustrates the position that a notice of appeal filed at the registry of the Court of Appeal after the record of appeal has been compiled and transmitted to the Court of Appeal and served on all the parties and the appeal has been entered is properly filed because it will amount to duplication of efforts, resources and waste of time if such notice of appeal is to be filed in the registry of the lower Court.See again Poroye v. Makarfi (2018) 1 NWLR (pt. 1599) 91 at 146 -147 where the Supreme Court highlighted circumstances an appeal can be filed at the Court of Appeal Registry instead of the Registry of the trial Court and still be permisable/waivable as in this case.
A cross-appeal arises from the same judgment or decision grounding the main appeal but on separate grounds of appeal thus making them separate and independent vide Igwe v. Kalu (supra) but tied to the yoke of the same record of appeal like equity and the law which flow together but their waters never mix; so it is appropriate and good sense to rely on the record of appeal for the main appeal for the cross-appeal as well. It will be duplication of efforts, expenses and time to expect a cross-appellant to compile and transmit separate record of appeal for the cross-appeal when the same record of appeal for the main appeal had been compiled and transmitted to the Court and served on the parties. There is therefore no substance in the preliminary objection which is hereby dismissed.
It was submitted in respect of the cross-appeal that the meaning of public records in Sections 4, 5, 6 of the Second Schedule, Part 11 of the 1999 Constitution read with Section 102(b) of the Evidence Act does not make Exhibits A, B, E, F, H, I, J, K, L, O written by a private person to the cross-respondents public record kept of private documents requiring certification, so the Court below was wrong in expunging the documents in its judgment on the ground that they were uncertified; more so the cross-respondents and their staff are not part of the Federal, State or Local Governments as to make their keeping of private documents metamorphose into public documents and that to construe otherwise would be stretching the statutory or constitutional meaning of the phrase “public documents” beyond the decision in Ibrahim v. J.S.C. (1998) 14 NWLR (pt.S84) 1 at 13 -14,36.
Consequently, the cross-appellant contended that the 151 cross- respondent which is simply in the business of offering university education to the general public cannot turn university records of private documents into public documents under Section 102(b) of the Evidence Act, as such documents still remain private documents under Section 103 thereof and that by the said constitutional provision, Exhibits H, I, J, K, L, F are not public documents, so the supremacy of the Constitution prevails vide Section 1 (1) and (3) of the 1999 Constitution and the definition of ‘public record’ by Black’s Law Dictionary, 8th Edition 1267, 1301, Legal Dictionary by Gerald N. Hill and Kathleen T. Hill 205, PPA v. Saraki (2007) 17 NWLR (pt.1064) 453, Wikipedia Online encyclopedia, OHIO STATE TEST: American Government: Practice and Study Guide should be followed to treat Exhibits H, I, J, K, Land F as private documents.
The cross-appellant contended that contrary to the holding of the Court below in pages 1006 – 1007 of the record that Exhibits A, B, E and O are letters written to the university senate, the said documents are original copies issued by the cross-respondents to the cross-appellant which the Court below expunged contrary to Sections 85 and 86(1) of the Evidence Act dealing with the admissibility of primary evidence which led the Court below to dismiss reliefs 1, 2, 3, 4 and 6 of the claim in its judgment in pages 1009 – 1010 of the record.
Consequently, it was submitted by the cross-appellant that the Court below did not properly evaluate the said documentary evidence and that had the Court below properly evaluated the documentary evidence it would have granted reliefs 1 and 2 based on Exhibits H, I, J, K, L, M, A, N, F, O, R; relief 3 based on Exhibits C, D, F, Q; relief 6 based on Exhibits N, F, O, DC, DO citing in support the cases of Abisi v. Ekwealor (1993) 6 NWLR (pt. 302) 643, Lipede v. Sonekan (1995) 1 NWLR (pt. 374) 668.
The cross-appellant also contended that since the 1st cross- respondent’s senate did not follow due process, it breached the duty of rectifying the cross-appellant’s result under the university regulations, Exhibit N, page 60 in page 845 of the record; consequently, the senate’s decision in Exhibit 0 should be ultra vires and wrong and should not be allowed to stand. It should be set aside citing in support the cases of FGN v. Zebra Energy Ltd. (2002) All L 390, UNTH MGT Board v. Hope C. Nnoli (1994) 8 WLR (pt.393) 376; consequently, the cross-appellant urged that the decision of the Court below refusing reliefs 1, 2, 3 and 6 of the claim should be set aside and the said reliefs be granted by the Court.
The cross-appellant contended on damages that had the Court below considered the constitutional breach of Sections 34(1 )(a) and 35(1) of the 1999 Constitution and the direct loss arising from the breach of duty of the cross-respondents which is contained in his final address in pages 728 – 732 of the record along with emotional pain and stress it should have awarded enhanced and punitive damages including damages in foreign currency (pound sterling) for the loss of opportunities and for deterioration in his health arising from the breach of duty by the cross-respondents.
Consequently, the cross-appellant urged that the award of 500,000 general damages was accordingly manifestly low and in disregard of the principle of awarding damages under the UBI JUS UBI REMEDIUM rule vide pages 729 – 730 of the record, therefore the award of damages should be increased to meet the justice of the case citing in support the cases of UBA PLC v. BTL Ind. Ltd. (2007) CLRN: (2006) 12 SC 63, Unilorin v. Adesina (2010) 9 NWLR (pt. 1199) 331, Platinum Habib Bank Plc v. Tari Int’L Ltd. (2008) LPELR- CA 11931 106, Harka Air Services Ltd. v. Keazor (2006) 1 WLR (pt.960) 160, 320, Witt and Busch Ltd. v. Dale Power Systems Plc (2007) 17 WL (pt.1062) 1.
The cross-appellant also contended that the Court below raised and decided suo motu that the cross-appellant participated in the convocation and was issued a degree certificate and should have been gainfully employed when there was no evidence to that effect, so the cross- appellant should not ask for damages for loss of earnings which denied the cross-respondent the opportunity to be heard contrary to Section 36(1) of the 1999 Constitution and tile cases of Ibrahim v. J.S.C. (1998) 14 NWLR (pt. 5841) 1, Onyeama v. Obodoh (2008) 16 NWLR (pt.1114) 576, Eke v. Mil. Admin., lmo State (2007) 13 NWLR (pt.1052) 53.
It was further argued that it was wrong of the Court below to have ignored the special damages pleaded in paragraph 17(9) of the statement of claim and the written address of the cross-appellant in pages 732 – 733 of the record citing in support Harka Air Services Ltd. v. Keazor (2006) 1 NWLR (pt.960) 160.
The cross-appellant contended that going by the savings interest rate of 4.2% effective from 01.05.17 fixed by the Central Bank of Nigeria as indicated in the CBN Guideline to Bank charges contained in pages 758 to 784 of the record and Exhibit M6 (Stanbic IBTC) in page 786 of the record the Court below in entering judgment should have followed Order 23 Rule 5 of its own rules to award interest of 4.2% per annum: 0.042 x N150,000 x 92 months = N579,600 on the special damages of loss of earnings which is distinct from the general damages which the cross-appellant urged that it be granted as well as costs denied the cross-appellant in the judgment of the Court below in page 1012 of the record when he had filed cost assessment in pages 741 – 794 of the record on the principle that a successful party is entitled to costs read with Order 25 Rules 2(1) of the rules of the court below and the case of Beredugo v. College of Science and Technology (1991) 4 NWLR (pt.187) 651 at 662.
It was also argued by the cross-appellant that as the Court below failed to take into account relevant matters and disregarded the principle of law that the winning party deserves to be awarded costs, the Court should interfere in the situation and award costs of N400,240 based on the cross-appellant’s cost assessment in pages 741 – 794 of the record and cost of the appeal until judgment is delivered at N109,970 as stated in Appendix 4 attached to details of costs to date; hence, the total costs that should be awarded from 2011 to the date judgment is delivered shall be N510,210 citing in support the case of UBA PLC v. BTL Ind. Ltd. (2007) CLR 1 or (2006) 12 SC 63.
The cross-appellant contended that had the Court below considered the 15 paragraph unchallenged affidavit dated 05.12.11 and paragraph 9 of the unchallenged affidavit dated 25.04.12 in pages 730 and 734 of the record in support of the cross-appellant’s claim for punitive damages in respect of physical assault he suffered after graduation it should have awarded the punitive damages of N100,000 claimed by the cross-appellant citing in support the cases of A.-G., Anambra State v. Okeke (2002) 5 SC (pt.11) at 63, UBA PLC v. BTL LTD. (supra) and Black’s Law Dictionary, 8th Edition 418-419 on the definition of punitive damages.
The cross-appellant concluded that the appeal has “considerable merit” and should be allowed.
The cross-respondents contended that the cross-appellant did not cross-appeal against the decision of the Court below refusing to grant reliefs 11 and 12 of paragraph 17 of the statement of claim in pages 12 – 14 of the record and is deemed to have accepted the decision of the Court below.
The cross-respondents contended that Exhibits A, B, E, F, H, I, J, K, L, O in pages 798 – 866 of the record are public documents within the meaning of Section 102(a) and (b) of the Evidence Act, which are only provable by certified true copies under Section 104 of the Evidence Act and having not certified them, the Court below was right in expunging the said documents in its judgment in pages 1006 – 1007 of the record citing in support cases of Aromolaran v. Agoro (2014) 18 NWLR (pt.1438) 153, Anatogu v. Iweka 11 (1995) 8 NWLR (pt.41S) 547, Onwuzuruike v. Edoziem (2016) 6 NWLR (pt. 1508) 215 at 231, Alamieyeseigha v. FRN (2006) 16 NWLR (pt.1004) 1 at 66, 67 and 70, Bob-Manuel v. Woji (2010) 8 NWLR (pt.1196) 266, Shanu v. Afribank (Nig.) Plc (2002) 7 NWLR(pt.795) 185 at 222, Olukade (?) v. Alade (1976) All NLR (pt.1) 67, Ayanwale v. Atanda(?) (1988) All NLR 22, Onochie v. Ikem (1989) 4 NWLR (pt.116) 458 at 465.
The cross-respondents contended that the cross-appellant did not plead negligence in the statement of claim in pages 11 – 14 of the record nor did the cross-appellant lead evidence on particulars of negligence, therefore the Court below was right in holding in its judgment in page 1050 of the record that reliefs 1, 2, 3 and 4 were not proved and consequently dismissed them citing in support the cases of Koya v. UBA Ltd. (1997) (?) 1 NWLR (pt.481) 251 at 291, Machine Umudje v. SPDCN Ltd. (1975) 9 – 11SC 155.
The cross-respondents contended that Exhibits C and O are based on the performance of the cross-appellant at the secondary school and have no bearing on his performance at the university and were therefore rightly disregarded by the Court below when it refused to grant relief 3 of the claim tied to it; Likewise, Exhibits E, Q and R, while Exhibit O, internal memo dated 12.07.11 which was the only evidence for relief 6 was expunged for lacking in probative value.
The cross-respondents contended that the award of general damages of N500,000 was at the discretion of the Court below and being an issue of discretion the Court should be circumspect in interfering with the said discretion as it was not shown that the Court below abused the discretion by acting under mistake of law or in disregard of principles or misapplication of facts or took into account irrelevant matters or failed to take into account relevant matters or made a ridiculously low or high award that amounted to injustice and a wholly erroneous estimate of damages and that none of these principles ensure to the cross-appellant who did not establish emotional pain and stress; but was none-the-less wrongly awarded N5001000 general damages to cover them which was also a ridiculously high award and in disregard of the credible evidence that the cross-respondents re-marked the cross-appellants scripts at the Departmental and Faculty levels citing in support the cases of Uyo I. v. Egware (supra), Zik Press Ltd. v. Alvan Ikoku (supra), N.A.O.C. ( Nig.) Ltd. v. Ebila (supra).
The cross-respondents contended that the issues said to constitute special damages were not pleaded in the statement of claim in pages 11 – 14 of the record but were “raked up” in the cross-appellant’s brief of argument which are not evidence to act upon and are also academic and were not presented at the Court below showing the cross-appellant is not consistent in presenting his case citing in support the cases of Umanah v. Attah (2005) 12 NWLR (pt. 938) 103 at 116, Ekong v. Oside (2005) 9 NWLR (pt. 926) 102, Jadesimi v. Okotie-Eboh (1986) 1 NWLR (pt.16) 264 at 265 – 266, Adesina v. Adeniran (2006) 18 NWLR (pt. 1011) 359, Ajide v. Kelani (1983) (?) 3 NWL (pt.12) 248.
The cross-respondents contended that special damages pleaded in relief 9 and reflected in paragraph 17(a) of the statement of claim in pages 12 – 13 of the record was not strictly proved and having raised the said issue without evidence the cross-appellant was wrong to contend that the Court below raised and decided the issue suo motu in its judgment in page 1011 of the record; that the issue of awarding the cross-appellant certificate was not an issue in the case as it was not pleaded in the statement of claim in pages 11 – 14 of the record and was only made an issue in the address of the cross-appellant and should go to no issue.
The cross-respondents contended that the cross-appellant’s cost assessment was not tendered as evidence in the case and that costs are awarded to a successful party at the discretion of the Court below under Order 25 Rule 2(1), (2) and (3) of the rules of the Court below read with the cases of Akoledowo v. Ojubutu (2012) 16 NLR (pt.1325) 1 at 27 – 28, Sosanya v. Onadeko (supra).
It was contended that no evidence was given on cost of the suit which was merely filed by the cross-appellant in pages 741 – 794 of the record; that the issuer of punitive damages was not pleaded, but was only raised in the final address of the cross-appellant in pages 730 – 734 of the record and should be disregarded and the cross-appeal be dismissed or struck out for want of fulfillment of condition precedent to activate the jurisdiction of the Court below.
The cross-appellant’s reply brief rehashed the arguments earlier canvassed in the cross-appellant’s brief in pages 4 – 6 of the cross-appellant’s reply brief adding the case of Leventis (Nig.) Plc v. Akpu (2007) 7 NWLR (pt.1063) 416 on negligence and the value and relevance of Exhibits C, D, E, Q, R as well as the case of Platinum Habib Bank Plc v. Tari lnt’l Ltd. (2008) LPELR – CA/A/193/06 on the parameters for the award of general damages which should be awarded to cover 2011 – 2017, not before 2011 as wrongly contended by the cross-respondents.
The cross-appellant also repeated the submissions earlier made in the cross-appellant’s brief and relied on evidence in part of page 9 of the cross-appellant’s brief and added that the cross-respondents argued the award of N500,000 general damages in the appellants’ brief and cannot import the same argument in the cross-appeal which is separate from the main appeal citing in support Igwe v. Kalu (2002) 14 NWLR (pt. 787) at 435; that Order 13 Rule 4( 1) and 5 of the rules of the Court below requiring particulars of willful default was not raised at the Court below and that raising it now without the leave of the Court is not permissible citing in aid the case of Mbanefo v. Agbu (2014) 6 NWLR (pt.1403) 238.
It was further argued that there are ample evidence in the record on the material facts of the losses suffered by the cross-appellant; that the special damages were established placing reliance on Harka Air Services Ltd. v. Keazor (2006) 1 NWLR (pt.960) 160, earlier relied upon in the cross-appellant’s brief and the repeated findings on the issue as well in page 11 of the cross-appellant’s reply brief and the decision on loss of earnings being based on speculation which was earlier submitted in the cross-appellant’s brief.
It was added that the case of CBN v. Okemuo (2016) LPELR 41405 and Fumudoh v. Aboro (1991) 9 NWLR (pt.214) 210 on the right of the Court to make reference to the case file before it and make use of any documents it finds necessary as well as the case of Bamgbegbin v. Oriare (2009) 13 NWLR (pt.1158) 370 plus the case of Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (pt.14) 47 where the Supreme Court held that exemplary/punitive damages could be awarded even where not pleaded; and that the affidavits filed are pieces of evidence and having not challenged them they are deemed admitted citing in support the cases of Stephen Engineering v. Yakubu (Nig.) Ltd. (2009) 5 – 6 SC (pt.1) 60 at 72 – 73, A.-G., Anambra State v. Okeke (2002) 5 SC (pt.11) (no pagination); upon which the cross-appellant urged that the cross-appeal should be allowed.
Paragraphs 8 and 10 of the statement of claim pleaded general and special damages and cost of the suit in page 13 of the record.
The special and general damages claimed by the cross-appellant were contained in an affidavit in paragraph 18 thereof in page 61 of the record thus –
“That the plaintiff’s claim against the defendant (jointly and severally) is for the sum of N7,550,000 as damages (Special damages in the sum of N2,250,000 for 15 months from October 2010 – December 2011 at the rate of N150,000 per month as lost earnings; General damages to the tune of N5,000,000 for the frustrations and mental disturbance the plaintiff was subjected for 5 years since 2007 until 2011 in this ordeal, the breach of duty regarding rectification of results in the affected courses, the violation of plaintiff’s fundamental human rights and the lost opportunities for several international Post Graduate scholarships that the plaintiff could have benefitted from had he gotten his actual result) all during this period.”
I agree with the cross-respondents that the cross-appellant having not appealed against part of the decision of the Court below refusing to grant reliefs 11 and 12 of paragraph 17 of the statement of claim in pages 12 – 14 of the record is deemed to have accepted that part of the decision vide Oleksandr v. Lonestar Drilling Co. Ltd. (2015) 9 NWLR (pt.1464) 337 and Campagnie Generale De Geophysique (NIGLT) CGG Nig. Ltd. v. Moses Aminu (2015) 7 NWLR (pt.1459) 577 at 594.
The cross-respondents are public officers and documents kept by them, whether private or their own documents, are public documents vide University of Jos and Ors. v. Ikegwuoha (2013) 9 NWLR (pt. 1360) 478, consequently, Exhibits F, H, I, J, K, L, which were private documents kept by the cross-respondents are public documents and were rightly treated so by the Court below under Sections 102, 104 and 105 of the Evidence Act, as they require certification for the documents to have evidential value. I agree with the cross-respondents that the Court below rightly expunged the said documents as they were not certified true copies.
Exhibits A, B, E and O are original copies of documents issued by the cross-respondents to the cross-appellant, therefore they did not require certification as they are original or primary copies/evidence vide P.D.P. v. INEC (2014) 17 NWLR (pt.1437) 525 at 563 thus –
Exhibit W05, the subject of this issue was the original correspondence, between the 25th respondent and Independent National Electoral Commission. The said letter was in the custody of the 25th respondent and remained so up to the point it was tendered. It is my view that there was no need to certify the original copy of the letter even though it was issued to him by a public officer. It is the public officer who keeps the original of a public document who certifies a copy of it which can be tendered where the original cannot be tendered. Put differently, the only categories of public documents that are admissible are either the original document itself or in the absence of such original certified copies and no other. See: Minister of Lands, Western Nigeria v. Azikiwe (1969) 1 All NLR 49; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373; Iteogu v. L.P.D.C. (2009) 17 NWLR (Pt. 1171) 614 at 634 paragraphs G-H, this Court per Onnoghen, JSC held as follows:
“While it is correct to say that the only secondary evidence of a public document admissible in evidence is a certified true copy, the document in question were duly certified while those not so certified were original correspondences addressed from the Ministries of Defence and Works to the petitioner in person and were tendered by the petitioner.”
Exhibit W05, as I said earlier was the original correspondence addressed to the 25th respondent by Independent National Electoral Commission. I do not see how that copy with the 25th respondent which he tendered was a public document. Rather, it is the copy with Independent National Electoral Commission which is a public document. In that case, the original can be tendered through the officer who made it or a certified copy of a secondary copy can also be tendered. The copy with the 2nd respondent, to my mind, was properly tendered. I also resolve this issue against the appellant.
The Court below was therefore wrong in expunging Exhibits A, B, E and O, (primary evidence) on the ground that the documents were not certified when the said documents are primary evidence and did not require certification.
The Court below did not suo motu raise the issue of loss of earnings which was contained in the cross-appellant’s written address therefore the Court below was entitled to comment on it; more so, the evidence of attending the convocation is in the record. The Court below merely re- echoed the well worn principle that a party should mitigate damages when it held that the cross-appellant should have looked for gainful employment during the material period. There was no miscarriage of justice in the circumstance.
The written statement on oath of the cross-appellant which is in pages 37 – 38 of the record upon which he gave evidence in pages 648 – 651 of the record did not mention the special damages pleaded in paragraph 17(a) of the statement of claim. There was thus no proof of the special damages which must be strictly proved or particularised in evidence. Likewise, there was no evidence of constitutional breach for compensation to be awarded to the cross-appellant. Nor was any scintilla of evidence given of costs of the action. It was in the final address of the cross-appellant at the Court below that he featured the issues in question and address of counsel or any address for that matter is not substitute for evidence vide Okuleye v. Adesanya (2014) 12 WLR (pt.1422) 521.
For the proposition that special damages be proved to the letter or specifically, see for example, Eneh v. Ozor (2016) 16 WLR (pt.1538) 219, B.B. Apugo and Sons Ltd. v. O.H.M.B. (2016) 13 WLR (pt 1529) 206. Relief 2 should have been expressly granted on the trend of the evidence to tally with reliefs 5 and 7 rightly granted by the Court below, while relief 6 is presumptive and may only fall into line or due after the affected courses or scripts are remarked, so the Court below was right in refusing to grant it. Except where the matter speaks for itself (res ipsa loquitor) negligence and particulars thereof must be pleaded as it is a question of fact vide Diamond Bank Ltd. v. P.I.C. Ltd. (2009) 18 NWLR (pt. 172) 67. So relief 1 was rightly refused as it was based on unsubstantiated allegation of negligence; likewise, relief 3 and the reliefs in paragraphs 4 and 9 – 12 of the statement of claim which were rightly refused by the Court below.
The award of general damages of N500,000 was fair and even-handed. I am slow to interfere with the fair award as it did not breach any principle for such an award.
A successful party is normally entitled to costs. The Court below having not given any reason to deny the award of costs to the cross-appellant, it should have awarded some costs to the cross-appellant which I assess and enter an award of N50,000 for the cross-appellant against the cross-respondents at the Court below vide Adenaiya v. Gov.-In-Council (1962) 1 All NLR 308, Mbanugo v. Nzefili (1998) 2 NWLR (pt.537) 343 at 353, CCB Nig. Pic v. Okpala (1997) 8 NWLR (pt.518) 673; and having succeeded in part in the appeal, I award N200,000 costs to the cross-appellant against the cross-respondents.
MOHAMMED LAWAL GARBA, J.C.A.: I have read the draft of the comprehensive lead judgement written by my learned brother JOSEPH SHAGBAOR IKYEGH, JCA, in this appeal and completely agree with the views and conclusions on the issues that call for determination.
I join the lead judgement in dismissing the appeal and partially allowing the cross appeal in all the terms set out therein.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother JOSEPH SHAGBAOR IKYEGH JCA afforded me the opportunity of reading in draft before today the lead Judgment just delivered and I agree with the reasoning and conclusion contained therein, I adopt the Judgment as mine with nothing further to add.
Appearances:
Mr. I. ImadegbeloFor Appellant(s)
Mr. Adebayo Afolabi Victor appeared in personFor Respondent(s)
