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MAUTECH, YOLA v. YARAI (2020)

MAUTECH, YOLA v. YARAI

(2020)LCN/14261(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, June 08, 2020

CA/YL/164/2017

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

MODIBBO ADAMA UNIVERSITY OF TECHNOLOGY, YOLA APPELANT(S)

And

IJANDIR ISAAC SAMUEL YARAI RESPONDENT(S)

RATIO

WHETHER OR NOT A PARTY WHO ASSERTS MUST PROVE

The law is settled that whoever in Civil Proceedings desires any Court to give judgment as to any legal right or liability which is dependent on the existence of facts which he asserts shall prove that those facts exist. This burden of proof is on the person who will fail if no evidence at all was given on either side. See Sections 131 & 132 of the Evidence Act. PER BAYERO, J.C.A.

WHETHER OR NOT  DOCUMENTARY EVIDENCE IS THE BEST FORM OF EVIDENCE

Documentary evidence is the best form of evidence where the existence of facts are sought to be proved. In the case ofJegede v. FRN (2013) AFWLR (Pt. 666) 594 at 603-4 Paras. H-A it was held thus:-
“The best proof of facts in issue is the documentary evidence that tends to establish the fact alleged, unless and until same is established to have been forged or produced in aid of nonexistent facts”.
The evidence adduced by the Respondent is consistent with his pleadings and has not in any way been impeached through cross examination. The lower Court was therefore right in acting on it. See Cameroon Airline v. Otutuizu (2011) AFWLR (PT. 570) 1286 Paras. A-B and Ogbe v. Sule Asade (2009) 18 NWLR (Pt. 1172) 131 Para E. PER BAYERO, J.C.A.

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This Appeal germinated from the Judgment of the Federal High Court Gombe, sitting in Yola delivered by M. G. Umar J on 15th May, 2017 wherein the lower Court entered Judgment in favour of the Plaintiff/Respondent. By a Writ of Summons dated 26th August, 2014 the Respondent claimed against the Appellant as follows:-
a) A Declaration of the honourable Court that the purported expulsion of the Plaintiff by the Defendant is unlawful, illegal, wrongful and an abuse of the Plaintiff right of fair hearing.
b) A Declaration of the honourable Court that withholding of the Plaintiff’s Statement of Result and non mobilization of the Plaintiff for the NYSC Programme by the Defendant is unlawful and illegal.
c) A Declaration of the honourable Court that in the circumstances of this case the Plaintiff is entitled to his Statement of Result and or certificate withheld by the Defendant.
d) An Order of the honourable Court directing the Defendant to forthwith release the Plaintiff’s Statement of Result/Certificate for onward mobilization to NYSC Programme.
​e) The sum of

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Five Million Naira (N5,000,000) only as general damages.
f) Such further order(s) as the Court may deem fit to make in the circumstances of this case.

Issues were joined. The Plaintiff/Respondent testified for himself as PW1 and tendered Exhibits A, A1-A4, B, B1-B4, C, D, E, E1, F, F1-F9, G, H, J, J1, K, K1, L and M respectively. The Defendant/Appellant called one witness as DW1 who tendered Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 respectively. The lower Court delivered its Judgment resolving all the issues in favour of the Respondent. Dissatisfied, the Appellant filed its Notice of Appeal on 10th August, 2017. The record of Appeal was compiled and transmitted to this Court on 10th October, 2017. The Appellant’s Brief of argument was filed on 13th December, 2017. The Respondent’s Brief was filed on 17th April, 2018 but deemed filed and served on 16th January, 2019. In the Appellant’s Brief three issues are formulated for determination thus:-
i. Whether or not having regard to the surrounding circumstances and the evidence before this Court, the trial Court had jurisdiction under the Public Officers Protection Act, 2004

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(Distilled from Ground 1).
ii. Whether or not having regards to the evidence before this Court and the surrounding circumstance of this case, the Respondent right to Fair Hearing has been breached? (Distilled from Ground 2).
iii. Whether or not the Respondent has proven his case to warrant the trial Court grant the reliefs sought? (Distilled from Ground 4) Ground 3 is hereby abandoned.

On issue one (1), it is submitted that the Respondent took a Writ of Summons against the Appellant on the 26th August, 2014 while the cause of action arose on the 15th July, 2008 as per Exhibit ‘8’.

That the Respondent’s suit was caught up by the Statute of Limitation Act, Section 2(a) of the Public Protection Act, Cap. P41 LFN 2004 which provides:
“The action, prosecution or proceeding shall not be instituted unless it is commenced within three months next after ceasing thereof”.

That the Writ of Summons was taken by the Respondent on the 26th August, 2014 while the cause of action arose over three months earlier as per their Statement of Claim dated 26th August, 2014 and filed on the same date.

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That the Respondent’s suit before the trial Court was statute barred. He referred to the case of Alhaji Ibrahim v. JSC Kaduna State (1998) 12 SCNJ, 228 at 272, lines 25 – 36 per Iguh JSC; Forestry Research Institute of Nigeria v. Mr. I.A. Enaifoghe Gold (2007) 11 NWLR (Pt. 1044)1 at 5 Ratio 2.

That despite the above authorities brought to the attention of the lower Court, the trial Judge held at page 237 of the record of Appeal as follows:-
“I agreed with the Plaintiff’s counsel that paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 are supportive of their contention that the Defendant acted not in good faith. You cannot approbate and reprobate at the same time.”

That there is ample evidence before the trial Court that the Appellant/Defendant did not act with malice or bad faith referring to paragraphs 12, 13, 14, 15, 16, 17 and 18 of the Appellant/Defendant’s Statement of Defence at pages 57 – 58 of Record of Appeal, and Exhibits 1, 2, 3, 4, C, E, E1, 6, 7, 8 and 9 respectively.

​That the Respondent must adduce evidence to establish bad faith to deprive the Appellant from availing itself of the protection

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afforded by the Public Officers (Protection) Act, 2004 – Lagos City Council Vs. Ogunbiyi (1969) 1 All NLR 297 at 229. According to Counsel, in the instant appeal, the Respondent did not adduce evidence that established bad faith.

On Issue Two, it is submitted with that the Respondent was served 4 Notices before his expulsion and 2 Notices after his expulsion, that same were tendered by both the Appellant and the Respondent as Exhibits 1, 2, 3, 4, E and E1 respectively. That a party who is given opportunity to present his case but fails to do so, has waived his right to complain – Adebayo v. T.S.G. (Nig.) Ltd. (2011) 4 NWLR (Pt. 1238) 493 at 508. According to Counsel, Courts are enjoined not to interfere with the internal administration of an institution or university – University of Uyo v. Essel (2006) All FWLR (Pt. 315) 80 at 100 Para. C – E.

On Issue 3, it is submitted that it is trite that the Plaintiff must succeed on the strength of his case notwithstanding the weakness of the Defendant’s case. That the oral testimony of the Plaintiff/Respondent as PW1 at the Lower Court contradicts his pleadings. That the Respondent further admitted

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during cross examination that he was cleared by the Appellant. That the Appellant had followed due process in expelling the Respondent referring to Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11. He urged the Court to allow the Appeal and set aside the Judgment of the lower Court.

In his response, the Respondent adopted the three issues formulated by the Appellant thus:-
i. Whether or not having regard to the surrounding circumstances and the evidence before my Lords, the trial Court had jurisdiction under the Public Officers (Protection) Act 2004 (Distilled from ground 1).
ii. Whether or not having regards to the evidence before my Lords and the surrounding circumstance of this case, the Respondent’s right to fair hearing has been breached (Distilled from ground 2).
iii. Whether or not the Respondent has proven his case to warrant the trial Court grant the reliefs sought (Distilled from ground 4) Ground 3 is hereby abandoned.

On issue one, it is submitted that the three (3) months limitation period prescribed in Section 2 (a) of the Public Officers (Protection) Act, 2004 is not readily available in all situations and circumstances and in

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some cases devoid of any legal consequences such as follows:-
1. Cases of continuance of damage
2. A Public Officer acting outside the colour of his statutory or constitutional duty.
3. Cases of recovery of land
4. Breaches of contract
5. Claims for work done
6. Absence or lack of good faith
7. Order 3 of the Fundamental Right (Enforcement Procedure) Rules, 2009.
8. Revival of cause of action by admission of liability.

That the Public Officers (Protection) Act, 2004 is not absolute but there exist well accepted exceptions recognized by law as enumerated above – Ibeto Cement Co. Ltd. v. A.G. Federation (2008) 1 NWLR (PT. 1069) 470 at 499 and A. G. Rivers State v. A. G. Bayelsa State (2013) 3 NWLR (PT. 1340) 123 at 148. According to Counsel, the improper motive and malice in the purported expulsion of the Respondent by the Appellant is without doubt an essential ingredient of bad faith in depriving the Defendant of the protection of the Public Officers (Protection) Act, 2004 citing the case ofEgbe v. Belgore (2004) 8 NWLR (Pt. 875) 336.

​That a calm consideration of the pleadings of the parties at the

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trial Court further reveals this salient point. According to Counsel, Paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 of the Plaintiffs Statement of Claim (pages 8-10 of record of Appeal) and paragraphs 2, 3, 4, 5, 6, 7, 8, 8, 11, 12, 13, 14, 15, 16, 17 and 18 of the Reply to the Statement of Defence, (pages 103-106 of record of Appeal) raise grave elements of bad faith in that the Appellant acted against the right to fair hearing of the Respondent, outside the due process of law, maliciously purported to expel the Respondent and withheld the release of his final result even after collecting his school fees, allowed him to register for those periods, published his yearly result and subsequently cleared him for graduation (Exhibit H).

​That exhibit “L” clearly establishes the case of malice, bad faith, irrationality, and abuse of office against the Appellant and had thus taken this case out of the immediate purview and operation of the Public Officers (Protection) Act, 2004 which the Appellant seeks to hide under; and that the contention of the defence therefore that this suit is statute barred is clearly misplaced. That during the trial of

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this suit on the 8/12/2016, the Appellant’s witness Mr. Marcus Gwandi a senior member of the University Management admitted under cross examination that the recommendation on Exhibit 7 is that there is no case against the Respondent.

According to Counsel, DW1 told the trial Court that the Respondent was expelled on ground of examination and admission fraud. But told the trial Court under cross examination that he was not a member of any of the supposed panels that investigated the Respondent. That he did not tell the Court the source of his evidence (information) since he was not a member of any of the panels. That this alone offends the provisions of Section 38 of the Evidence Act 2011, as his evidence is “hearsay”. He urged this Court to discountenance with his testimony. He equally urged this Court to discountenance Exhibits 1-4 and 6 and declare the purported acts of the Appellant null and void and an abuse of the Respondent’s right to Fair Hearing as guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended. Counsel submitted that Exhibit 9 is undated therefore should not be given any weight at all. According

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to him, Exhibit “10” dated 15/5/2013 was never served on the Respondent. He referred to the averments in paragraphs 22, 23 and 24 of the Plaintiff’s Statement of Claim. That the cause of action arose and continue to arise when the Appellant willfully and maliciously refused after several demands to give the Respondent his Statement of result for onward mobilization for NYSC Programme even after a demand by the Respondent’s Solicitors, on grounds of expulsion citing the case of Akwa Ibom State University v. Ikpe (2016) 5 NWLR (Pt. 1504) 146 at 164 Paras. E – H. He urged this Court to resolve issue one in favour of the Respondent and against the Appellant.

On issue two, it is submitted that the burden of proving that the Respondent was served with the notices to appear before the panel lies on the Appellant; which he failed to so do. That the Appellant at the lower Court successfully tendered in evidence notice to appear without proving that same was served on the Respondent. That the sole witness of the Appellant could not show during cross examination that the Respondent was served with the notice to appear before any committee set up to investigate

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him. According to Counsel, the lower Court was right when it held at page 240 of the printed record that:-
“In this case, the absence of clear proof of service on the Defendant to appear before the committee, all proceedings conducted by the committee which culminated into the expulsion of the Plaintiff is a nullity and I so hold. See Mpama v. FBN (2013) 53 Pt. 1 NSCQR 12 AT 120.”

He urged us to resolve the second issue in favour of the Respondent and against the Appellant.

On issue three, it is submitted that the Respondent testified on the 8th December, 2016 and through him all the frontloaded documents were tendered and admitted as Exhibits A, A1, A4, B1, B2, C, D, E1, F, F1-4, G, H, J, J1, K, K1, L and M respectively. According to Counsel, documentary evidence is the best evidence citing Jegede v. FRN (2013) AFWLR (Pt. 666) 594 at 603-4 Para A-H and Ajiboye v. Duro (2010) AFWLR (Pt. 507) 136 at 175 Paras. C-F. According to Counsel, the evidence adduced by the Respondent is consistent with the pleadings and was not impeached during cross examination. Counsel relied on his submissions in issue one (1) and submitted that the

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Respondent has adduced credible and uncontradicted documentary and oral evidence in proof of his case before the lower Court. He urged the Court to resolve issue three (3) in favour of the Respondent and against the Appellant, dismiss the Appeal and uphold the Judgment of the lower Court.

In the Reply Brief, the Appellant submitted that a party who is relying on the grounds of malice, bad faith or abuse of office, must first provide and plead the particulars of the alleged bad faith and malice in his pleadings or else it will amount to springing up surprises against the other party. That the trial Court also fell in grave error when it considered the issue of bad faith and malice to find that the special defence will not avail the Appellant – Fajimolu Vs. Unilorin (2007) 2 NWLR (Pt. 1017) 94.

​On issue of fair hearing, it is submitted that, the submission of the Respondent in Paragraph 6.14 of the Brief on the issue of hearsay and Section 38 of the Evidence Act, 2011 is misplaced. That this case does not fall within the exceptions for the application of the provision of the Section 2(a) of the Public Officers Protection Act. That the trial Court

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failed to consider the input of Exhibit ‘5’ which is record of official Proceedings, that the law is clear that where the record of official proceedings has been reduced into a document, the content of such document cannot be contradicted by oral evidence -Section 132 of the Evidence Act, 2011. On issue of burden of proof, it is submitted that from the totality of the material evidence placed before the trial Court, the Respondent did not discharge the burden of proof on him to be entitled to have judgment in his favour.

This Appeal will be determined based on the three issues formulated by the Appellant which the Respondent adopted. Issue one is:
“Whether or not having regard to the surrounding circumstances and the evidence before this Court, the trial Court had jurisdiction under the Public Officers (Protection) Act, 2004”.

For clarity purposes Section 2(a) of the Public Officers (Protection) Act 2004 provides thus:-
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act of Law or of any public duty or

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authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect- [Order 47 of 1951.]
(a) Limitation of Action: The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof: Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison;” The facts of every case are sacred and it is what guides every Court in reaching its decision. Therefore, the proper appreciation of the respective cases of parties is an essential key in the proper resolution of issues as joined by the parties. The contention of the Appellants is that this Suit is caught up by Section 2 (a) above. The issue for determination is whether the protection accorded Public Officers within the contemplation of

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Section 2(a) above is without qualification or not? In the case of Ibeto Cement Co. Ltd. v. A. G Federation (Supra) the Apex Court held thus:-
“Where malice is established on the part of a Public Officer in the exercise of the administrative powers conferred upon him by law the protection afforded him by Section 2 (a) of the Public Officers Protection Act would cease to avail him”.
Furthermore in the case of Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 the Supreme Court held that:-
“An action brought outside the prescribed period offends against the provision of the Section and does not give rise to a cause of action. A cause of action means a factual situation stated by the plaintiff. If substantiated, entitles him to a remedy against the defendant. To the above general rule, there is an exception, which exception constitutes the contention of the Appellant in this case to wit, where the public officer concerned fails to act in good faith or acts in abuse of office, or maliciously or with semblance of legal justification”.
A calm consideration of the pleadings of the parties at the lower Court reveals that the case at hand

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falls squarely within the limited exceptions recognised by law. At paragraphs 13, 14, 15, 16, 17, 18, 19, 20 (Pages 8-10 of the printed record) it was averred thus:-
13) “The Plaintiff avers that based on paragraphs 5-12 above, the said Mr. Ishaya Ibrahim has been expelled from the institution while Mr. Manga, a staff of the University has been dismissed owing to his complicity in the admission fraud. The Plaintiff was told/allowed to go and continue with his studies after responding to series of sundry questions from the committee”.
14) “The Plaintiff avers that it is on the strength of the above that he went ahead and completed all scholarly academic accomplishment and entitle him to graduate from the institution”.
15) “The Plaintiff avers that he has been paying his school fees, attending lectures and writing examinations. The Defendant on its part has been accepting the Plaintiff’s payments and issued receipts of sundry fees, marking of the Plaintiff’s examination scripts and posting the Plaintiff’s results etc as approved by the Senate of the University”.
16) “The Defendant

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equally mobilized the Plaintiff to participate in the 2009 Industrial Training Programme (ITF)”.
17) “The Plaintiff avers that he graduated in the 2009/2010 academic session with a cumulative Grade Point Average of 2.19 based on the 2009/2010 Result Slip issued him by the Defendant and has been cleared by the Defendant as having fulfilled the requirement for graduation”.
18) “The Plaintiff avers that the Defendant wrongfully withheld his Statement of Result and refused to mobilize him for the NYSC Programme. The Plaintiff made inquiries and was told that the problem had to do with admission fraud in the 2006/2007 session which he appeared before the Panel on Student’s Admission”.
19) “The Plaintiff avers that he had made concerted follow up through several written appeals to the Defendant to release his statement of result to no avail. Based on the Plaintiff’s plea/complain the Defendant issued an internal memo dated 25/04/2012 that investigation had to be made”.
20) “The Plaintiff further avers that in the year 2012, he had written several appeals/complaints to the Defendant to

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release his Statement of Result and mobilize him for the NYSC Programme”.
21) “The Plaintiff avers that based on the averment in paragraphs 18, 19 and 20 above, the Defendant again invited the Plaintiff to appear before the Advisory Committee on Student Discipline and he dutifully appeared and made representations to the committee”.
22) “The Plaintiff avers that despite his appearance before the Disciplinary Committee in March, 2013, the Defendant refused and/or failed to make known its stand or position on his case”.
23) “The Plaintiff avers based on paragraphs 21 and 22 above he instructed his Solicitors, Messrs Rickey Tarfa & Co. to write the Defendant to demand the release of the Plaintiff’s Statement of Result and onward mobilization for the NYSC Programme”.
24) “The Plaintiff avers that after the service of the Plaintiff’s demand letter dated 28/10/2013 on the Defendant, the Defendant decline further action, refused to reply the Plaintiff’s Solicitors letter and did not release the Plaintiff’s Statement of Result nor mobilize the Plaintiff for NYSC

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Programme”.
Evidence was led in respect of the above averments as shown at paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 19, 20, 21, 22, 23, 24, 25 and 26 of the written statement on oath of PW1, Isaac Samuel Yarai reflected at Pages 14-17 of the printed record. The evidence led was not contradicted during cross examination as shown at pages 207- 209 of the printed record. The law is trite that evidence not contradicted during cross examination is deemed admitted. In fact at paragraphs 15, 16 and 17 of the statement of defence the Appellant had expressly admitted paragraphs 18, 19, 20 and 21 of the Respondent Statement of Claim. Paragraph 15 reads:-
15 “The defendant admits Paragraph 18 of the claim and avers it was justified in withholding the Plaintiff’s purported statement of result as he was not a student of the Defendant having been expelled on the 15th July, 2008.”
16) “The defendant admits Paragraph 19 of the claim as the Plaintiff was not a student of the Defendant having been expelled.”
17) “The Defendant admits paragraph 20 and 21 of the claim and avers that the Senate with all

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relevant documents at its 172 regular meetings held on Thursday the 28th of March, 2013 considered the recommendation of the Advisory Committee on student’s discipline in respect of admission fraud referred against the Plaintiff and re-affirmed his earlier expulsion from the University”.
The Respondent from the averments in his statement of claim had shown prima facie that his claims fall within the exceptional circumstances of which the Public Officers (Protection) Act, 2004 will not avail the Appellant. The Appellant in recognition of its wrongful act and the genuineness of the Respondent’s complaint invited the Respondent again to appear before the Advisory Committee on Students’ Discipline in March, 2013 (Exhibit L) even after the Appellant had expelled him in 2008.
​Paragraphs 15, 16 and 17 of the statement of defence apart from admission of liability by the Appellant were merely general denial containing allegations of crime but without the particulars of the alleged fraud against the Respondent. These averments raise grave issues of bad faith, malice and lack of due process that the Appellant generated Exhibit

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“L” dated 8/03/2013. A cursory look at the facts and circumstances of this case shows that the cause of action arose and continue to arise when the Appellant willfully and maliciously refused after several demands to give the Respondent his statement of result for onward mobilization for the NYSC Programme; even after a demand letter by the Respondent’s Solicitors. The injury suffered by the Respondent is a continuing one as such the Respondent’s suit has not been caught up by the Statute of Limitation. In the case of Akwa Ibom State University v. Ikpe (2016) 5 NWLR (Pt. 1504) 146 at 164 Paras. E-H this Court held that:- “For the Section of the Act to avail any person, two conditions must be cumulatively satisfied. These are:
(1) It must be established that the person against whom the action is commenced is a public officer or a person acting in execution of public duties within the meaning of that law.
(2) That the act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duties or authorities or in respect of alleged neglect or default in the

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execution of any such law, duty or authority. Where however there is continuing injury being suffered or the wrong is a continuing one, the position of the Law is that the Limitation period shall not apply”. See also the case ofA/G Rivers State v. A/G Bayelsa State (2013) 3 NWLR (PT. 1340) 123 at 135 Ratio 14.

Issue one is therefore resolved in favour of the Respondent and against the Appellant.

Issue two is:
“Whether or not having regards to the evidence before this Court and the surrounding circumstances of this case, the Respondent’s right to fair hearing has been breached”.

The Appellant in its particulars of error of ground two of the Notice of Appeal stated thus:-
1) “That there are ample evidence before the Honourable Court that the Plaintiff was served with the notices to appear before the panel and he refused/neglected to do so.
2) A judge is obligated to consider all issues raised before the Court and resolve same in his judgment”.

The Appellant at the lower Court successfully tendered in evidence Exhibits 1-4 (Notices to appear) but without proving that same were served on the

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Respondent. The Appellant called a sole witness as DW1 called Mr. Markus Gwandi who was cross examined. During the cross examination, the witness was asked to show the lower Court whether on the face of the notices to appear there is proof of service on the Respondent. The answer the witness gave was there is nothing to show on Exhibits 1-4 that the Plaintiff received such exhibits. This is what transpired at the lower Court as shown on Page 211 of the Printed Record:-
“Exhibits 1-4 are the invitation letters to the Plaintiff which he failed to appear. There is nothing to show on exhibits 1-4 that the Plaintiff received such letters”.
On the second particulars of error of ground two of the Notice of Appeal, we observed that the trial judge considered all the issues raised as contained in its judgment of 15th May, 2017 reflected on pages 215-241 of the printed record. At page 240 of the printed record, part of the Judgment of the lower Court reads:-
“Now, failure of the Defendant to prove service on the Plaintiff of the letter of invitation is fatal to the case of the Defendant because he who asserts must prove. If this Court

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holds that there was no service on the Plaintiff of the said notices, it invariably follows that the Plaintiff has not been given fair hearing under Section 36 of the 1999 Constitution. In this case, the absence of clear proof of service on the Defendant to appear before the committee all proceedings conducted by the committee which culminated into expulsion of the Plaintiff is nullity and I so hold. See Mpama v. FBN (2013) 53 Pt 1 NSCQR 19 at 210”.
It therefore follows that the Appellant has breached the Respondent’s right to fair hearing having failed to fulfill the requisite requirements of service of notices on the Respondent before his expulsion. Issue two is therefore resolved in favour of the Respondent and against the Appellant.

Issue three is:- “Whether or not the Respondent has proved his case to warrant the trial Court to grant the reliefs sought?” The law is settled that whoever in Civil Proceedings desires any Court to give judgment as to any legal right or liability which is dependent on the existence of facts which he asserts shall prove that those facts exist. This burden of proof is on the person who will fail if no

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evidence at all was given on either side. See Sections 131 & 132 of the Evidence Act. The Respondent in the instant case as a sole witness testified on 8th December, 2016 and through him all the frontloaded documents were tendered and admitted in evidence and marked as Exhibits A, A1, A4, B1, B4, C, D, E, F, F1-4, G, H, J, J1, K, K1, L and M respectively (Page 207 of the Printed record). Documentary evidence is the best form of evidence where the existence of facts are sought to be proved. In the case ofJegede v. FRN (2013) AFWLR (Pt. 666) 594 at 603-4 Paras. H-A it was held thus:-
“The best proof of facts in issue is the documentary evidence that tends to establish the fact alleged, unless and until same is established to have been forged or produced in aid of nonexistent facts”.
The evidence adduced by the Respondent is consistent with his pleadings and has not in any way been impeached through cross examination. The lower Court was therefore right in acting on it. See Cameroon Airline v. Otutuizu (2011) AFWLR (PT. 570) 1286 Paras. A-B and Ogbe v. Sule Asade (2009) 18 NWLR (Pt. 1172) 131 Para E. We further observed that the

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exhibits tendered by the Respondent have established the state of affairs showing the binding relationship between the parties up to the graduation of the Respondent from the Appellant in 2009/2010 session. It therefore follows that from the totality of materials placed and evidence adduced before the lower Court, the Respondent had discharged the burden of proof on him on preponderance of evidence that will warrant this Court to uphold the Judgment of the lower Court. Issue three (3) is resolved in favour of the Respondent and against the Appellant. Having resolved the three issues in favour of the Respondent and against the Appellant, this Appeal is unmeritorious and is accordingly dismissed. The Judgment of the lower Court delivered on 15th May, 2017 is hereby affirmed. Fifty Thousand Naira (N50,000.00) cost is awarded in favour of the Respondent and against the Appellant.

CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment of my learned brother, ABDULLAHI MAHMUD BAYERO, JCA. I agree with his lordship’s decision dismissing the appeal for lacking in merit, I also dismiss it for the same reasons.

JAMES SHEHU ABIRIYI, J.C.A.: I read in

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draft the judgment just delivered by my learned brother Abdullahi Mahmud Bayero JCA.
I agree that the appeal lacks merit. It is therefore also dismissed by me. I abide by the order as to costs.

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Appearances:

Yahaya Mohammed, Esq. A.C.S.L., with him, U. F. Ahmed Esq. P.S.C., M. A. Uba Esq. P.L.O and M.S. Attah S.S.C. For Appellant(s)

Andrew Malgwi Esq., with him, T. U. Danjuma J.M. Ali Esq. and S.J. Garba Esq. For Respondent(s)