IDRIS OLATOKUNBO OLAREWAJU v. UNIVERSITY OF LAGOS & ORS (2014)

IDRIS OLATOKUNBO OLAREWAJU v. UNIVERSITY OF LAGOS & ORS

(2014)LCN/7482(CA)

In The Court of Appeal of Nigeria

On Friday, the 24th day of October, 2014

CA/L/203/09

RATIO

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF FIRST PROVING A FACT

The burden of first proving a fact is usually on the plaintiff who brought the action, if the plaintiff adduces evidence which reasonably satisfies the Court, that the fact sought to be proved is established, the burden of proof shall now lie on the party against whom judgment will be entered if no more evidence is adduced, this chain goes on successively until the issues raised in the pleadings are completely and effectively dealt with. See EGHAREVBA V. OSAGIE (2009) 18 NWLR (Pt.1173) 299. per. TIJJANI ABUBAKAR, J.C.A.

COURT: INTERFERENCE; WHAT AN APPELLATE COURT CONSIDERS IN ARRIVING AT A DECISION ON WHETHER IT IS PROPER TO INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

In arriving at a decision on whether it is proper to interfere with the findings or not, the Appellate court considers whether there was evidence before the lower court to concrete the decision, whether the lower court accepted or rejected any evidence tendered or adduced at the trial, whether the evidence adduced by either party to the dispute was properly evaluated by the lower Court, and whether the evidence adduced was sufficient to support the decision arrived at by the trial court. See MAFIMISEBI V. EHUWA (2007) 2 NWLR (Pt.1018) p.385. OMOMEJI V. KOLAWOLE (2008) 14 NWLR (Pt.1106) P.180. And HASSAN V. ALIYU (2010) 17 NWLR (Pt.1223) p.547. per. TIJJANI ABUBAKAR, J.C.A.

COURT: JURISDICTION; WHEN DOES THE COURT ASSUME JURISDICTION ON THE CONDUCT OF EXAMINATION AND ASSESSMENT OF THE OF THE WORK OF THE STUDENT BY THE EXAMINER

PRACTICE AND PROCEDURE: ESTOPPEL; WHAT IS THE DOCTRINE OF ESTOPPEL AND CASES WHERE THE COURT WAS RIGHT TO REJECT THE PLEA OF ESTOPPEL
Estoppel is a doctrine in common law jurisdictions recognized both at law and equity, the principle protects a party who would suffer detriment if for instance Defendant says or does something to induce an expectation and plaintiff relies on the expectation and would suffer detriment if that expectation were false, it is also defense that prevents a plaintiff from enforcing legal rights or from relying on a set of facts that would give rise to enforceable rights, if that enforcement or reliance would be unfair to the defendant. See: Almanac of contemporary judicial restatements Vol 1 a, by Lai O. O. Shisanya. Page 285. Let me also refer to the decision of the Court in MISS ALBERTA OMOBOLAJI ADEOGUN CA/L/78/09. Where my learned brother IKYEGH JCA said as follows:
“The court below was right to reject the plea of estoppel which should normally be a shield for the defence not a sword in the hand of a claimant.
Academic excellence is the soul and body or hallmark of educational institutions. The modus operandi of an academic institution as the 1st respondent University of ensuring only candidates with valid minimum qualification are admitted to read any course in 1st respondent University should not be subjected to control by the court: It is a specialized area exclusively reserved for those imbued with the training to scrutinize and oversee without looking over their shoulders.
Academic matter should be left alone for academicians to handle in their own wisdom and expertise upon which the benefit of the doubt should be given them based on their sense of judgment. The court cannot, in my humble view, decide who the 1st respondent University should graduate and the grades the grandaund should have – See Thorne v. University of London (1966) 1 ALL E.R. 338, Akintemi & Ors v. Professor Onwumechili & Ors. (1985) 1 NWLR (Pt.1) 68 and Magit v. University of Agriculture Makurdi (2005) 19 NWLR (Pt.959) 211.”

COURT: DUTY OF COURTS; THE DUTY OF THE TRAIL COURT TO EVALUATE EVIDENCE AND MAKE PRIMARY FINDINGS AND WHEN AN APPELLATE COURT CAN INTERFERE WITH SUCH DUTY

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

IDRIS OLATOKUNBO OLAREWAJU Appellant(s)

AND

1. UNIVERSITY OF LAGOS
2. UNIVERSITY OF LAGOS COUNCIL
3. COLLEGE OF MEDICINE (UNIVERSITY OF LAGOS)
4. VICE CHANCELLOR, UNIVERSITY OF LAGOS
5. PROF. OLALEKAN ABDU (PROVOST COLLEGE OF MEDICINE, UNIVERSITY OF LAGOS) Respondent(s)

TIJJANI ABUBAKAR, J.C.A. (Delivering The Leading Judgment): The Appellant in this appeal, enrolled into the Medical college of the University of Lagos to read medicine in 1993, expecting to be awarded MB, BS, upon successful completion of his studies. He sat for four compulsory core subjects in his 5th year; the four core subjects are, (Obstetrics Gynecology, Pediatrics, Medicine and Surgery). Results of these subjects were then published indicating that Appellant met Examiners requirements, and therefore passed the said subjects.

On the 25th day of September, 2001 Appellant applied to the Respondents to be issued letter for his induction by the Nigerian Medical and Dental Council. In response to this request, the Respondents replied to say that Appellant could not be issued the letter because he did not pass pediatrics and that the publication in 1998 where he was shown to have passed the subject was made in error. Appellant became aggrieved and therefore approached the Federal High Court and took out writ against the Respondents claiming as follows:

1. A DECLARATION that the plaintiff had passed all the core courses and in particular;
(i) Obstetrics and Gynecology
(ii) Pediatrics
(iii) Medicine and
(iv) Surgery.

2. A DECLARATION that the plaintiff had fulfilled all the requirements of the 1st Defendant and in particular the 1st Defendant for the award of MB, BS Degree, and cannot be compelled to resit pediatrics examination or any examination at all.

3. A DECLARATION that the plaintiff is entitled to be issued with a letter of induction as a graduating MB, Student by the 3rd Defendant.

4. AN ORDER of Court directing the 3rd Defendant to forthwith clear the Plaintiff and issue to him a letter of induction as a graduating MB, BS Student of the 3rd Defendant Institution.

5. AN ORDER directing the Defendants to issue the Plaintiff with his qualifying certificate as a graduating MB, BS Student of the 3rd Defendant.

6. The sum of N5m (Five Million Naira) as compensation to the Plaintiff for the loss of years, embarrassment and the psychological trauma caused to the plaintiffs by the action of the Defendants.

Appellants suit before the Federal High Court Presided over by Aliyu J went to trial, both parties called evidence, at the conclusion of trial the claim was dismissed on the 27th day of November, 2008. Appellant became dissatisfied with the decision of the lower Court and filed Notice of Appeal to this Court on the 14th day of January, 2009. Appellant’s grounds of appeal are therefore reproduced less their particulars as follows:

GROUND 1.

MISDIRECTION IN LAW: The learned trial Judge erred and misdirected himself in law when he held that the Appellant did not pass the Pediatrics examination conducted by the Respondents in 1998 and or that pass earlier issued by the Respondents was in error.

GROUND 2.

ERROR OF LAW: The learned trial Judge erred when he held that the Appellants result in pediatric, which was sent to the University of Lagos Senate in 1998 and approved by the Senate, was in error.

GROUND 3.

The Judgment of the Federal High Court Ilorin is against the weight of the evidence.

Learned counsel Chris Ikemezie represented the Appellant and filed Appellants brief of argument on the 11th day of May, 2009. Appellants brief was deemed properly filed and served on the 25th day of February, 2010. Appellant filed reply on the 20th day of December, 2011. Learned Senior Counsel Taiwo Osipitan, SAN represented the Respondents and filed Respondents brief of argument on the 16th day of May, 2011. Respondents brief was deemed properly filed and served on the 8th day of December, 2011.

The Appellant submitted three issues for determination, the issues are as follows:

1. Whether it was in error that the Respondents published the result in 1998 that the Appellant passed pediatrics examination held in 1998.
2. Whether the Academic Board can avoid result approved by the University Senate.
3. Whether the evidence before the Court supports the Judgment of the Federal High Court.

On the part of the Respondents, they nominated just one issue for determination; the issue is also reproduced as follows:

“Whether learned trial Judge was right or wrong in her decision to dismiss the Appellant’s case.”

Both parties, submitted arguments in their briefs, learned Counsel for the Appellant argued issues 1 and 3 together and argued issue number 2 separately. I will consider Appellants argument on all the three issues, then consider Respondents argument on the sole issue before determining this appeal, this is not to say that the three issues for determination submitted by the Appellant have been collapsed into one even though it appears possible that Appellants issue number one and Respondents sole issue for determination if resolved are likely to effectively determine this appeal.

Making submission on the 1 and 3 issues on behalf of the Appellant, learned counsel Ikemezie said, the Appellant as a 500 level Student sat for University of Lagos College of medicine examinations, he specifically said Appellant sat for Surgery, Medicine, Obstetrics & Gynecology in 1998. That after the examinations were conducted, the Respondent published results, and the results showed that Appellant passed Obstetrics & Gynecology, but had resit in Surgery and Medicine, he therefore sat for Surgery and Medicine again and passed. At the stage of graduation in 2001 when Appellant applied to be given induction letter to proceed for induction by the Medical and Dental Council of Nigeria, he was now told by the Academic Board that he did not pass Pediatrics and that the publication made in 1998 wherein it was shown that he passed the subject was made in error. Learned Counsel said the decision of the Academic Board offends the decision in ONAGORUWA v. JAMB (2001) 10 NWLR (PT 722), where the court reversed the decision of the university for failure to provide good reasons for cancelling results. Counsel said the Respondents may where good reasons are given for cancellation have good defense if the reasons for cancellation are sound good and sufficient as held in JAMB V. WICKLIFFE (2005) All FWLR (Pt.251) 255. He said in the instant Appeal the Respondents published the results several times repeatedly indicating that Appellant sat for and passed the examinations, and at the trial they did not give any good reason for the error, and there was no evidence before the lower Court showing how the error occurred.

Learned Counsel for the Appellant said he was fully aware of the decision in MAGIT V. UNIVERSITY OF AGRICULTURE, MAKURDI (2006) ALL FWLR (PT.298) 1313. Where the Supreme Court of Nigeria held that courts must not dabble into the affairs of Universities in matters concerning conduct of examinations, Counsel said there is an exception, the Supreme Court gave a caveat that Courts must not dabble into affairs of Universities concerning examinations if the examinations are conducted in accordance with the rules of the University. Learned Counsel also relied on the decision in UNIVERSITY OF CALABAR V. ESIAGA (1997) 4 NWLR (PT.502) 719. Appellant submitted that pediatrics examination conducted in 1998 was in conformity with the rules and regulations of the University having been approved and duly ratified by the Senate before the publication of results. Learned Counsel said even witnesses for the Respondents testified along this line at the trial.

Mr. Ikemezie referred to the evidence of Professor James Kweku Renner and Mr. Godwin Kelechukwu Ajunwa, Principal Secretary Academics College of Medicine University of Lagos who both testified for the Respondents and said every examination conducted by the Respondents passes through four stages before publication of results, and they both listed the following four stages:

1. Examiners mark sheet,
2. Masters mark sheet
3. Academic Board and
4. The Senate.

Learned Counsel gave a brief description of how examination results are processed by the Respondents, they are entered in the examiners mark sheet, collated and entered in the Masters mark sheet, they are reviewed by the Academic Board and thereafter forwarded to the Senate for approval, Counsel relied on Exhibit H (examiners mark sheet) and Exhibit J (masters Mark sheet), Counsel said both exhibits show that the Appellant failed Pediatrics, he then submitted that if Appellant failed in both document, it may then be inferred that they were not the same documents used by the Respondents to obtain Senate approval.

The Appellant submitted that, the Examiners mark sheet is an offshoot of Candidates answer script, which contains the marks, scored by the Candidate. Respondents failed to tender Candidates answer script and this failure Counsel said is fatal to the defense put forward by the Respondents. Counsel referred to Exhibits A5, A6, A7, A8 and A9 to submit that the Respondents repeatedly between 1998 and 2000 published results of the Appellant indicating that he did pass the said pediatrics examination. Learned Counsel said the Appellant tendered various results published by the Respondents to establish his claim, by so doing the burden of proof shifted to the Respondents to disprove the claim by the Appellant by tendering Appellants answer script, which the Respondents failed to do. Counsel further submitted on behalf of the Appellant that, the lower Court was in error when it held that the Appellant did not pass the Pediatrics examination and that the results published by the Respondents were published in error.

Appellants Counsel further submitted that the Respondents having published the results showing that the Appellant had passed the examination are estopped from stating that the Appellant did not pass, he relied on Section 151 of the Evidence Act, MENAKAYA V. MENAKAYA (2001) 8 MJSC 50 at 75, ARIORI V. ELEMO (1983) All NLR 1, and AMORI V. IYANDA (2008) All FWLR (part 416) 1864.

On issue 2, Learned counsel for the Appellant said the examination results of the Appellant were approved by the Senate of the University, at the final stage in the process of approving results before publication, that since Appellants results were approved and published by the Senate, the Academic Board lacks the power to reverse the approval, that it is only the Senate of the University that has the final authority to disapprove the same results. That the moment results are submitted to the Senate for approval, the Academic Board of the University becomes functus officio having performed the function assigned to it, it is no longer legally competent to deal with the matter again. Counsel relied on Blacks Law Dictionary 7th Edition page 539, and the decisions in UBA V. UKACHUKWU (2006) All FWLR (part 337) 511 at 521, ANYAEGBUNAM V. AG. ANAMBRA STATE (2001) 6 NWLR (part 710) 552, ONYEMOBI V. PRESIDENT O.C.C. (1995) 3 NWLR (part 381) 50, INEC V. NNAJI (2004) 16 NWLR (part 900) 473, (2005) All FWLR (part 261) 191, on the definition of functus officio.

Appellants counsel urged that this Appeal be allowed and the decision of the lower Court be set aside.

As I stated earlier in this Judgment, the Respondent formulated and argued one issue:

“Whether the Learned trial Judge was right or wrong in her decision to dismiss the Appellant’s case.”

Professor Taiwo Osipitan SAN filed Respondents brief of argument. Counsel for the Respondents said the Appellant as Plaintiff before the Lower Court said he passed pediatrics examination, and that his results were altered or falsified by the 5th Respondents out of malice or spite for appellant’s father. In other words Appellant made allegations of passing his examination and falsification of his results, these allegations are found at paragraphs 13, 21, and 23 of the amended statement of claim at page 213 and 214 of the record of appeal. Learned Senior Counsel said at page 26 of the amended statement of claim, the Plaintiff now Appellant in this Court said there was fraudulent alteration of his results by high officials of the 3rd Respondent, and Appellant went further to furnish the particulars of fraud at page 215 of the record of Appeal.

Submitting further on this issue, counsel said the Appellant alleged that he passed the examination in issue, he also alleged that his results were deliberately altered by the 5th Respondent, that since it was the Appellant who made the allegations, burden of proof of the allegations is on him, that since there was allegation of forgery against officers of the 5th Respondents, Appellant would be required to prove the said allegations of crime beyond reasonable doubt. Learned Senior Counsel relied on the following in support of this submission, Section 135, 136 and 138 (1) of the Evidence Act, CHUKWUJEKWU v. OLALERE (1992) 2 NWLR (Pt.221) 86, ARASE V. ARASE (1981) 5 SC. 33, NWOBODO V. ONOH (1984) 1 SC NLR 1, ABUBAKAR V. YAR’ ADUA (2008) 19 NWLR (Pt.1120) page 143, NEKA B.B.B. MANUFACTURING CO LTD V. A.C.B. LTD (2004) All FWLR (Pt.198) 1178 at 1191.

Respondents said where there is specific claim, it becomes the duty of the plaintiff to prove all the essential facts succinctly and with clarity to leave no one in doubt, in this case the Appellant failed to establish his claim at the trial. Appellant did not appear before the lower Court, he was not available for cross examination, he did not tender any document given to him by the Respondents to show that he passed the examination in question, he did not tender any statement of result to support his claim. Learned Counsel for the Respondents said Appellants father appeared before the lower Court and testified as if he was the student who wrote the examination in question.

The Respondents who appeared before the lower court as Defendants tendered all relevant materials to show that Appellant failed the examination in question, he was offered opportunity to re-sit which he failed to accept, DW1 and DW2 testified at the trial and their evidence disclosed that Appellant failed the examination. Learned Counsel said Appellant failed to discharge the burden placed on him to prove that he passed the said examination.

It was the submission of the Respondents that, there was mistake in the computation of Appellants results and when this was discovered it was duly communicated to him, that mistake in the computation of results is not synonymous with fraud. That the learned trial Judge who had the opportunity of observing the demeanor of the witnesses in Court accepted the evidence of the Respondents and rejected the evidence of the Appellants father.

Learned Senior Counsel referred to page 574 of the record of appeal where the learned trial Judge referred to the evidence of DW1 on the mistake made by the Respondents and the efforts made to correct the mistake by offering the Appellant opportunity to re-sit the examination, and the Court concluded that the witness appeared to be telling the court the truth.

Respondents submitted that since the lower court had the opportunity of hearing the witnesses in Court, and observing their demeanor, such finding must not be disturbed by this Court, they referred to WOLUCHEM & OTHERS v. GUDI & OTHERS (1981) NSCC 214 at 229-290. EBBA vs. OGOGO & ANOR. (1984) NSCC. page 255 at page 259.

On the contention that Respondents failed to tender answer scripts written by the Appellant, Respondents said the Appellant failed to consider the evidence on record that some part of the examination was conducted orally in which case it would be impracticable to tender answer scripts. Respondents submitted that the best evidence in the instant case is the masters mark sheet, which PW1 admitted under cross-examination that it exists.

On Appellants submission on the principles of estoppel, the Respondents said it would be inequitable to allow a person who failed an examination to be treated as having passed same as whoever comes to equity must do equity, they relied on, SALAKO V. WILLIAMS (1998) 11 NWLR (PT. 574) page 521 and EJOH VS. WILCOX (2003) 13 NWLR (Pt. 838) 488 at paragraph B-C. Again Respondents said estoppel is a defense it cannot therefore be used as a cause of action or foundation of Appellants case that he passed the said examination, Counsel for the Respondents referred this Court to IKOTUN V. OYEKANI (2008) 10 NWLR (PT.1094) page 115-116 and LSCHEI V. ALLAGOA (1988) 12 NWLR (pt.577). Page 214-215. Learned counsel said the function of estoppel is to place an obstacle in the way of a case, which might otherwise succeed or remove an impediment out of the way of a case, which might otherwise fail.

Learned Counsel also said the Appellant raised the issue of fraudulent alteration of his results, he said allegation of fraud is an allegation of crime, Counsel referred to the evidence of PW1 at page 368 of the record of appeal where PW1 referred to exhibit A5 his reply to the Vice Chancellor through the provost, where he PW1 attached documents alleging fraudulent alteration of Plaintiffs/Appellants results, he also gave reasons for the fraudulent alteration at page 369 of the record of appeal.
Learned Senior Counsel said the Appellant specifically alleged in his amended statement of claim that the 5th Respondent Professor Abdu the Provost College of Medicine masterminded the fraudulent alteration of Appellants marks in pediatrics but he clearly contradicted himself at page 384 of the record where he stated that the Provost had no problem with the pediatric results. Counsel said Appellant failed to establish the allegation of forgery and fraudulent alteration of results beyond reasonable doubt. He therefore urged this Court to hold that the conclusion reached by the lower Court was right.

The Respondents contended that passing examination and award of University degree are matters within the exclusive domestic domain of the University, that the decision reached by the Learned trial judge is in accord with the law, that such issues are not justiciable, they are matters that fall within the exclusive statutory duties of the university. Learned Senior Counsel referred this Court to: AKINTEMI v. ONWUMECHILI (1985) 1 NWLR (PT.1) Page 68 at 86, THORNE v. UNIVERSITY OF LONDON (1966) 2 QB 237, R.V. DUNSHEATH EXPARTE MEREDITY- (1951) 1. K.B 127, UNIVERSITY OF LAGOS & 2 ORS. v. DR. DADA – 1 UNIVERSITY OF IFE LAW REPORT PART 111 (1971) 344. ESIAGA V. UNIVERSITY OF CALABAR (2004) 7 NWLR. (PT.872) AT 389, And MAGIT v. UNIVERSITY OF AGRICULTURE MAKURDI (2005), 19 NWLR (PT.959), Page 257-258.

Learned Senior Counsel placed emphasis on these decisions in urging this Court to hold that the lower Court was right in arriving at its decision dismissing Plaintiffs claim before it. While making final submissions on behalf of the Respondents, counsel said the Appellant failed to prove the allegation of fraudulent alteration/forgery beyond either preponderance of evidence or beyond reasonable doubt, that Appellants cause of action which deals with passing University examination is within the exclusive domestic province of the University Authority and therefore a non justiciable cause of action. He urged that Appellants appeal be dismissed.

The Appellant filed reply on the 20th day of December 2011, in reply to Respondents submission that it is within the exclusive right of the University to award degree, learned counsel Ikemezie said the argument canvassed by the Respondents does not arise from Appellants grounds of appeal and that where a Respondent intends to raise any issue for determination which does not arise from Appellants grounds of appeal, the Respondent must file Respondents Notice, and since the purpose of Respondents Notice is to argue fresh grounds which are not the ratio decidendi and do not form part of Appellants Notice of Appeal the Respondent must seek for and obtain leave of this court, he relied on TOUTON V. GRIMALDI COMPAGNIA DI NAVIGA ZIONI SPA (2011) ALL FWLR (PT.595) 286 AT 303, AND DELTA STATE GOVERNMENT V. OKON (2002) 2 NWLR (PT.752) 665. Counsel said the Respondent raised and argued fresh issues without leave of the court, such arguments are therefore incompetent and must be struck out, he relied on INTEGRATED BUILDERS LTD V. DOMZAG VENT NIGERIA LTD (2005) All FWRL (Pt.263).
Reacting to the submission of the Respondents that it is within the prerogative of the University to award degrees, Appellants Counsel said such position does not rob the Court of jurisdiction, he said a party who feels aggrieved by the decision of the University shall have the right to approach the Court for redress, and the Court shall have the right to inquire into the conduct of the Respondents. He finally submitted on behalf of the Appellant that when the Senate of the University approves result of a candidate, no other body within the University has the authority to alter or reverse the decision, he therefore urged this Court to so hold, and allow Appellants appeal.

Appellants 1st and 3rd issues for determination were argued together by learned Counsel for the Appellant. Issue number one relates to whether the results of the Appellant were published in error or not. While issue number three relates to the evidence adduced at the trial by the Appellant, whether the lower Court was right in arriving at the decision reached by the Court. To resolve these two issues it is important to look at the evidence led by the Appellant and the Respondents, and determine whether the lower Court was justified in arriving at the decision dismissing the claim filed by the Appellant.

The Appellant who was Plaintiff before the lower court did not appear to testify in person, instead his Father Professor Dauda Akanbi Olarewaju testified on his behalf as PW1, at page 359 of the record of appeal he said as follows:

“I am Professor Dauda Akanbi Olarewaju, I am a Professor of Clinical Radiology at the College of Medicine of Lagos State University Teaching Hospital…”

At page 360 of the record of appeal, PW1 now opened his evidence full blown, where he said as follows:

“I know the Plaintiff in this case he is my Son. In 1993 Plaintiff was admitted into the College of Medicine with 18 other Students, all on concessional basis. The plaintiffs admission paper got missing between Unilag Akoka and Akoka College of Medicine. I was called upon by the then Provost that the Plaintiff should go to Dentistry. For the 1st year, both medical and the dentists Student were doing the same Course. By the end of the year I had come to know JAMB marks of 3 students who were put in dentist instead of medicine. Two of these Students scored at JAMB 188 and 184 while plaintiff scored 194. I then petition the provost that Plaintiff has to be admitted into medicine first having scored higher marks. The petition was accepted and Plaintiff was admitted to read medicine…”

From pages 359-374 PW1 testified giving the background of the case of his son, he made allegations of fraud against the Respondents, his entire testimony cannot be imported into this Judgment, I will just lift some relevant portions of the testimony, which in my view appear to represent his grievance at the trial Court. He said as follows in his evidence in chief:

“In 2001, the Plaintiff having fulfilled the conditions as MBBS student applied and got graduating clearance certificate, duly signed by all Heads of Departments through which he had passed. This certificate is with the College, we have a copy it is with my lawyer. This is the copy……….
After acquisition of Exhibit “A” the Plaintiff now applied for his statement of results through a letter dated 12/9/200(?) The letter of the application is with the 3rd defendant. But I have a copy with my lawyer. This is the letter of application………
On the 500 level of the exam result of July 1998, there is problem. The result given to the plaintiff is at variance with the earlier published result. The Plaintiff then wrote a letter of induction to the 2nd Defendant. We have a copy of the. This is the letter……………
He was refused induction letter because he was told that he failed pediatrics and has not fulfilled the conditions. On the 15/10/01, I wrote a letter to the Provost of the College telling him that my Son had passed the 500 level pediatrics and that it was fraudulent to have issued the A2 showing that he had failed the Course….”

I will refer to the amended statement of claim of the Plaintiff especially paragraphs 20, 22 and 23, the stated paragraphs appeal to reflect the grievance of the Appellant and in line with the testimony of PW1,
“20. The plaintiff states that by the averment in paragraph 10, the 3rd Defendant thus refused his application for letter of induction and instead demanded that the Plaintiff re-sit Pediatrics examination scheduled for 8th November, 2001.
22. The Plaintiff states that in response to the letter referred to in paragraph 12, the 5th Defendant forwarded a letter dated 29th October, 2001 to the 4th Defendant, claiming that the provisional result released to Students in 1998 which shows that the plaintiff has passed pediatrics was ” a genuine but serious error of omission was indeed committed but insisted that the plaintiff should re-sit the pediatrics examination”.
Plaintiff will at the trial place reliance on the letter dated 29th October, 2001.
23. By a letter dated 14th November, 2001 sent to the 4th Defendant, the plaintiffs father raised several issues and particularly indicted the 5th Defendant as the mastermind of the fraudulent alteration of the Plaintiffs results”

PW 1was subjected to intense cross examination by learned Counsel for the Defendants/Respondents, details of the cross examination are at pages 377-385 of the record of appeal. At page 384 of the record PW1 said the Respondents constituted Afonja Panel as a result of the mistake, he also admitted that he made allegations of fraud in Exhibit “C1”. He was also re- examined at page 385 of the record of appeal where he said Appellant was supposed to be inducted when the Respondents said he had to come and re-sit pediatrics.

Respondents called two witnesses at the trial, James Kweku Renner, Professor of Pediatrics and Acting Head of Department of Pediatrics he testified as DW1, his testimony starts from page 386 of the record of appeal to page 395, while Godwin Kelechukwu Ajinwa Principal Assistant Secretary testified as DW2, his evidence is found at page 395 to 406 of the record of appeal. The evidence of DW2 as I said gave evidence starting from page 395; his evidence is lengthy and relevant to the determination of the issues under consideration, at page 396, he said as follows:

“I was posted to the Academic office on 8/1/01 from Committee and Planning section and Administration where I worked for 8 years. I only know the Plaintiff when this case started. In September 2001, the Plaintiff applied to collect his statement of result for 500 and 600 levels examination.
I see Exhibit A1, that is the letter of application the Plaintiff wrote to the Academic office. The Application came to my office along with other merits, I minuted Exhibit A to the Higher Executive Officer Records (HEO) and asked him to treat the matter.
I did not see the plaintiff at that stage. I see Exhibit A3; it is another letter I received from the plaintiff applying to be inducted. I sent this letter to examinations officer to treat. Both HEO records and Examinations officer had problems to prepare the request of the Plaintiff. They both came to me and said they could not see where the Plaintiff passed his pediatrics examination. I sent them back to check the records properly and report to me to see whether it was a problem I could solve as the Head of the Section. Then they brought to me examiners mark sheet and the document presented to the Academic Board i.e. Academic Board paper for results. The report of both officers is in respect of July 1998 examinations. I see Exhibit “J” is the masters mark sheet.
When I saw those documents, I discovered that the Plaintiff did not pass pediatrics. At this time I did not see the Plaintiff. It was later when I reported to the College Secretary my immediate Boss that I saw the Plaintiff. I know one Kayode Owotutu; he is the examination officer who works under me. When I reported to the College Secretary, she called for the records and she immediately stood up and we went to the College Provost together and reported to him. Thereafter asked Mr. Kayode Awotutu to put his discoveries in writing. He wrote the report to me….”

DW2 went on to state at page 399 of the record of appeal, that the
Academic Board of the College sat on 26th October, 2001 and confirmed the position of the Provost that Plaintiff should re-sit pediatrics examination, and at page 400 of the record witness said the College Secretary wrote a letter Exhibit “N” to the Plaintiff asking him to come and re write the examination. He said Plaintiff did not eventually re-sit the paper.

On the issue of allegation of fraud against the Respondent, witness said as follows at page 401 of the record of appeal:

“When the issue of fraud was introduced into this matter, the College Provost Instituted a panel to investigate the matter. I was mentioned and the Panel sat. It was a seven-man panel headed by Professor Afonja a Chemical pathologist……… I was invited to appear before the panel. PW1 was also invited, I stated my case that as at 1998 when the Plaintiff sat for the exam I was not at the academic section. It was in 2007, when he applied for the statement of result that I discovered pediatric being outstanding. The Plaintiff did not re-sit for pediatrics since July 1998 till date….”

DW2 explained how the error occurred at page 402-403 of the record of appeal.

The Learned trial Judge delivered Judgment on the 27th of November, 2008. The Judgment is from page 545-575 of the record of appeal. At page 573-575 the learned trial Judge said as follows:

“…The conduct of examinations for the purpose of award of degrees is the exclusive statutory duty of the University. Once it is shown that the examinations are conducted according to the laid down procedure and the University Senate has duly approved the results, the Courts will not have jurisdiction on the matter. See University of Calabar, vs. Esiaga (1997) 4 NWLR (Pt 502) 719. In the case at hand the question is, can it be said that taken into consideration of all the facts and evidence in this case, that the 1st defendant duly ratified that the plaintiff had passed pediatrics. There are many stages as shown by evidence, that results passed before it reached the Senate. This has been adequately explained in this case. It is logical that with the statement of result of the plaintiff at the Academic office dated May 1999, the Senate could not have ratified his results if it were laid before it.
There is no doubt that the Appellant was misled by the published results of July 1998, to believe that he had only to repeat two examinations. The defendants admitted this fact and DWI explained in detail how this happened. I note the efforts made by the Defendants to remedy the situation by offering the plaintiff to repeat the examination at the earliest time. I have no reason to doubt the evidence of DW1 a lecturer in pediatrics and the HOD of Pediatrics at the time, who appeared to be telling the truth and indeed described the PW1 as his friend. I therefore hold that the plaintiff had not passed the pediatrics examination in July 1998 as he claimed.

On the issue of fraud, I also note the evidence of PW1 vis-a-vis the evidence of DW1 and DW2. It is clear that the 5th defendant whom the PW1 accused of altering his sons result was the lecturer in O&G the only course the plaintiff passed at 500 level examinations. DW2 the PAS Academics was not even in the Academic office in 1998, when the Plaintiff took the examination. Moreover, the allegation of fraud being criminal must be proved beyond reasonable doubt. The PW1’s evidence that the plaintiffs records was fraudulently altered by the defendants to vent vengeance on him is neither cogent not credible in the light of the evidence both documentary and oral. PW1’s evidence on this issue is speculative and of no probative value to be relied upon by the part or to be acted by the Court to support the claim. See: the case of Rocknnoh Prop Co. Plc Vs. NITEL Plc. (2001) 14 NWLR (Pt.733) 468. I therefore hold that the Plaintiffs result was not fraudulently altered and what happened was a genuine error, and I find no evidence of fraud at all in this case. It is my opinion and indeed I so hold that the Plaintiff indeed failed pediatrics examination in July 1998, and being one of the core clinical subjects in a professional course for the award of MB, BS Degree the plaintiff was not qualified to be inducted as at 27th September, 2001…”

The Appellant is seeking for judicial intervention to determine his fitness for the award of MBBS degree of the University, having passed the necessary examinations. From the evidence of both the Appellant and the Respondents, it is clear that Respondent tried to make a case of error in the assessment of Appellants grades, this fact is clear from the evidence of DW2, even though Appellant said the so-called error was fraudulent from the evidence available. Appellant relied on the decision in ONAGORUWA (supra) to submit that the Respondents failed to justify the error, that there were no good reasons to support the submissions by the Respondents that the error was justified. The learned trial Judge who had the advantage of seeing and hearing witnesses at the trial found in favor of the Respondents. Appellate courts only interfere with findings of fact by trial courts if the facts or the evaluation of evidence by the trial court is found to be perverse or clearly demonstrates misapprehension of the facts thereby leading to failure of justice. In arriving at a decision on whether it is proper to interfere with the findings or not, the Appellate court considers whether there was evidence before the lower court to concrete the decision, whether the lower court accepted or rejected any evidence tendered or adduced at the trial, whether the evidence adduced by either party to the dispute was properly evaluated by the lower Court, and whether the evidence adduced was sufficient to support the decision arrived at by the trial court. See MAFIMISEBI V. EHUWA (2007) 2 NWLR (Pt.1018) p.385. OMOMEJI V. KOLAWOLE (2008) 14 NWLR (Pt.1106) P.180. And HASSAN V. ALIYU (2010) 17 NWLR (Pt.1223) p.547.

Conduct of examinations and assessment of the work of students by the examiners has always fallen within the exclusive domestic affairs of the University, and unless there is clear evidence of glaring infraction on the rights of the student, such assessment is not open to judicial review, See: THORNE V. UNIVERSITY OF LONDON (1966) 2 QB 237, AKINTEMI V ONWUMECHILI (1985) 1 NWLR (Pt.1) P. 68. Where it is found that in dealing with domestic affairs the University commits breach of civil rights and obligations of a student the Court will assume jurisdiction, See: UNIVERSITY OF ILORIN v RASHEEDAT ADESINA (2014) 10 NWLR PART 1414 159 at 163. The Respondents discovered the error and made efforts first to investigate the allegation of fraud by setting up the Afonja Panel, and following its conclusion on the report, Appellant was granted opportunity to rewrite the examination, he declined the offer. What this appears to mean in my humble understanding is that the Respondents saw the error and were prepared to grant redress to the Appellant in line with the regulations of the University to rewrite the examination.
Appellant refused to quickly grab the opportunity offered to him; his major grievance was that there was fraud in the computation of his results.

To resolve this issue, I must mention that the Respondent consistently maintained that there was error in the computation of Appellants results, even though Appellant said his results were not computed properly due to fraud committed by some officers of the Respondents. Error is an assertion or belief that does not conform to objective reality, is a belief that what is false is true, or what is true is false, it may simply be regarded as a mistake. See, Blacks Law Dictionary Eighth edition page 585, witnesses called by the Respondents especially DW2 gave evidence to prove that the error in computation was not deliberate. Appellant through PW1 said there was fraud. Fraud is a knowing misrepresentation of the truth, or concealment of a material fact to induce another to act to his or her detriment, it is also a misrepresentation made recklessly without belief in its truth to induce another person to act, See Blacks Law Dictionary Eighth Edition page 685. Where there is allegation of fraud in civil proceedings the particulars of the alleged fraud must be pleaded and strictly proved. See, BABALE Vs. EZE (2011) 11 NWLR (Pt.1257) 48 at 71.

Appellant raised and argued issue of estoppel and said since Respondents had already published results showing that Appellant sat for the examination and passed, they were estopped from making any claim for error in the publication. The Respondents said the principles of estoppel would not apply because whoever seeks equity must do equity and any person coming to equity must come with clean hands, that estoppel is a defense; Appellant cannot therefore use it as a cause of action. Respondents said it is inequitable to allow the Appellant who failed an examination to be treated as having passed the same examinations, and estoppel cannot be the foundation of the Appellants case that he passed an examination, which he in actual fact did not.

I think estoppel has no place in the instant appeal. From available evidence in this appeal it appears clear that Appellant would not be allowed to employ estoppel to derive undeserving advantage.
Estoppel is a doctrine in common law jurisdictions recognized both at law and equity, the principle protects a party who would suffer detriment if for instance Defendant says or does something to induce an expectation and plaintiff relies on the expectation and would suffer detriment if that expectation were false, it is also defense that prevents a plaintiff from enforcing legal rights or from relying on a set of facts that would give rise to enforceable rights, if that enforcement or reliance would be unfair to the defendant. See: Almanac of contemporary judicial restatements Vol 1 a, by Lai O. O. Shisanya. Page 285. Let me also refer to the decision of the Court in MISS ALBERTA OMOBOLAJI ADEOGUN CA/L/78/09. Where my learned brother IKYEGH JCA said as follows:
“The court below was right to reject the plea of estoppel which should normally be a shield for the defence not a sword in the hand of a claimant.
Academic excellence is the soul and body or hallmark of educational institutions. The modus operandi of an academic institution as the 1st respondent University of ensuring only candidates with valid minimum qualification are admitted to read any course in 1st respondent University should not be subjected to control by the court: It is a specialized area exclusively reserved for those imbued with the training to scrutinize and oversee without looking over their shoulders.
Academic matter should be left alone for academicians to handle in their own wisdom and expertise upon which the benefit of the doubt should be given them based on their sense of judgment. The court cannot, in my humble view, decide who the 1st respondent University should graduate and the grades the grandaund should have – See Thorne v. University of London (1966) 1 ALL E.R. 338, Akintemi & Ors v. Professor Onwumechili & Ors. (1985) 1 NWLR (Pt.1) 68 and Magit v. University of Agriculture Makurdi (2005) 19 NWLR (Pt.959) 211.”

A candidate who is adjudged to have sat for an examination and failed cannot invoke the principles of estoppel as a springboard to achieve academic qualification by using judicial process. The matter being clearly within the exclusive domestic province of the University cannot be subjected to judicial review.
In the recent decision of the Supreme Court of Nigeria in UNILORIN V ADESINA (supra), the Supreme Court clearly reiterated the position that Courts cannot usurp the functions of the senate, the Council and the Visitor in the selection of candidates who are fit and proper to pass and be awarded certificates, degrees and diplomas, but there are exceptions, where the Student exhausts all avenues within the internal mechanism of the University, and the University remains adamant and unshaken in dealing with the issue and fails to give good, substantial and verifiable reasons for its decision, the Court as the last hope of the ordinary man must grant access when approached by the aggrieved Student for redress.
The Respondents gave reason for the error to the Appellant, that there was an error in the computation of his results, and effort was made by the Respondents to grant redress to the Appellant by giving him another opportunity to re-sit the examination which he declined or failed to utilize, at this point I think the Respondent must be taken as having committed the error in good faith. No doubt there was long delay in detecting the error, it still remains the law, that it is the University that determines the fitness of candidates in both character and learning for the purpose of award of degrees, certificates and diplomas. Courts intervene where there is obvious infraction on the civil rights and obligations of the Student. On whether a Court of law can assume jurisdiction over examinations conducted in accordance with the rules and regulations of the University, OGBUAGU (JSC) while rendering the lead Judgment in PATRICK D. MAGIT V. UNIVERSITY OF AGRICULTURE MAKURDI & OTHERS (2005) 19 NWLR (Pt.959) page 257, said as follows:
“I will also respectfully, share the views of Tobi JCA (as he then was) in his lead Judgment in the case of University of Calabar & 2 other v. Esiaga (1997) 4 NWLR (Pt.502) 719 at 742 C.A (cited and relied on by learned counsel for the Respondents also in their additional case law and which came on appeal to this Court and was also reproduced at page 10 of the S.C. report). Where his lordship stated inter alia as follows:
“In so far as examinations are conducted according to the University rules and regulations and duly approved and ratified by the University Senate, the Courts have no jurisdiction in the matter. A Court of law, which dabbles or flirts into the arena of University examination, a most important and sensitive aspect of the University function should remind its self that it has encroached into the bowels of University autonomy. Such a Court should congratulate its self of being a party to the destruction of the University, and that will be bad not only for the University but also for the entire nation. Let that day not come.”
This Court is guided by the above decision and the decision in UNILORIN V ADESINA (supra), we are of the view that there is no infraction on the right of the Appellant, we have therefore chosen to resist the invitation by the Appellant to unwittingly convert the Court to a degree awarding institution, by delving into complex issues of reviewing examination scripts, grades scored by a student and whether results were properly computed and released or not, issues that are clearly outside the business of Courts.
Where there is error on the part of the University in the computation of Students results and the University gives cogent and convincing reasons for the error and offers the Student opportunity to re-sit examination, the University cannot be said to have committed fraud or deliberate infraction on the right of the student as to justify judicial intervention. In the instant appeal the Respondents having offered the Appellant the opportunity to re-sit the examination have clearly demonstrated good faith in their actions while treating Appellants case. I therefore hold the view that there was error in the computation of Appellants results and the Respondents gave good, substantial and verifiable reasons for the error as rightly found and held by the learned trial Judge. Issue number three argued together with issue number deals with the evidence, whether the evidence led could support the decision reached by the learned trial Judge. I have already reproduced substantial part of the evidence and the Judgment of the lower Court. In my view the learned trial Judge conducted proper evaluation of the evidence and came to right conclusion. Issues one and three are therefore resolved in favor of the Respondents against the Appellant.

Appellants issue number two deals with the cancellation of results by the Academic Board, whether so doing is possible after the Senate of the University has approved results. The learned trial Judge came to the conclusion that, the Senate could not have approved Appellants results as they were. The learned trial judge said as follows at page 574 of the record of appeal:

“There are many stages as shown by evidence, that the results passed before it reached the Senate, This has been adequately explained in this case. It is logical that with the statement of result of the plaintiff at the Academic office dated May 1999, the Senate could not have ratified his results if it were laid before it.”

The duty to evaluate evidence and make primary findings is the duty of the trial Judge, unless it is shown that the trial Judge failed to conduct proper evaluation in line with the established principles of law, the Appellate Court cannot interfere with such findings. See, OYIBO IRIRI & OTHERS v. ESERORAYE ERHURHOBARA & ANOR (1991) 2 NWLR (Pt.173) 252.
The learned trial Judge properly evaluated the evidence, and the conclusion reached is in my view appropriate, this Court has no reason to determine otherwise. This issue is also resolved in favor of the Respondent against the Appellant.

Having resolved the three issues against the Appellant, it is obvious this appeal lack merit and must be dismissed, it is hereby dismissed by me, and the Judgment of the lower Court delivered on 27th November, 2008 by Aliyu J of the Federal High Court Lagos is affirmed. Parties shall bear their respective costs.

SIDI DAUDA BAGE, J.C.A.: I had the privilege of reading in draft, the leading judgment of my learned brother, TIJJANI ABUBAKAR JCA, I am in complete agreement with all the reasonings and the conclusion contained therein. I wish only to add a few words of my own on the subject of Estoppel employed by the Appellant in the circumstances of the present appeal. This doctrine, Estoppel, is often used loosely, by some employers of it, and seem to suggest as if it can be used in general application, no. It is for a purport, under the law, and can only be used to achieve that. It is the law that “An estoppels gives no title to that which is the subject matter of the estoppel.” The Supreme Court per Oputa JSC (of blessed memory) in MRS. G. A. R. SOSAN & ORS vs. M. B. ODEMUYIWA (1986) 5 SC 152 at 157 stated as follows:
“I agree that estoppel is in the main a defensive weapon and not an offensive weapon, to use the language of naval warfare, an estoppel must always be either a mine layer or a mine sweeper, it can never be a capital unit.”
One year after the Supreme Court maintained this position in FRED EGBE VS. THE HON. JUSTICE J. A. ADEFARASIN (1987) 1 S.C. 1 at PP 38-39, again per Oputa JSC (of blessed memory) stated as followings:
“It is to be noted that Estoppel is but a part of law of evidence. It is no other than a bar to testimony and its sole office is either to place an obstacle in the way of a case and which might otherwise succeed or to remove an impediment out of the way of a case which might otherwise fail. An estoppel is thus neither a mine layer or mine sweeper. It is never a capital unit. Normally an estoppel ought to be pleaded by the party relying on it.”
In the present appeal from the record, the Appellant clearly and cleverly wanted to employ Estoppel either as a mine layer or a mine sweeper to estop further evidence or action on an examination that he had failed and to be treated as having passed the same examination, no.

For the more elaborate reasonings contained in the leading judgment, I treat this appeal as lacking in merit and also dismissed same. I also affirm the judgment of the trial court.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother TIJJANI ABUBAKAR JCA just delivered.

The judgment considered all issues raised by the parties in the appeal. I only wish to add that courts indeed cannot encroach in an area reserved for academic excellence without an established reason for doing so. The appellant copiously pleaded fraud but failed to establish it.
Pleading alone cannot establish the facts pleaded without evidence. Failure to prove pleaded facts would leave the pleadings abandoned and liable to be struck out. Fraud is an allegation of crime which must be proved beyond reasonable doubt.

I also dismiss the appeal for lacking in merit and abide by the orders made in the lead judgment.

Appearances

Emeka OgbodoFor Appellant

AND

C. Ahmadu Esq. with Toluwalase Abayomi (Mrs) and Damilola Salisu (Miss)For Respondent