STEPHEN IORLUMUN IBYEM v. UNIVERSITY OF JOS
(2019)LCN/12857(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of March, 2019
CA/J/112/2017
RATIO
APPEAL: WHEN AN APPEAL COMMENCES BY FUNDAMENTAL RIGHT ENFORCEMENT
“The summary of what I am trying to say here is that, appellant, having not commenced his action by the special procedure for fundamental right enforcement, cannot call in aid the Preamble of the Fundamental Rights (Enforcement Procedure) Rules 2009 to say he can competently bring this action on behalf of his ward even if his action on its face did not disclose a cause of action or locus standi in him. He has to stand or fall by the averments in his common form originating summons filed pursuant to the Rules of the Federal High Court.
And that throws up two pertinent questions:
(1) Did appellant actually have standing and cause of action in the action as he claims.
(2) if he did, is appellant correct in his contention that respondent was enjoined, and bound by, the decision of the Supreme Court in Garba v. University of Maiduguri and the constitutional provisions he cited to first charge its students to Court for criminal misconduct and get a finding of conviction against them before it can mete out punishment to them. In other words, did the respondent have no say whatsoever in the matter particularly in the peculiar circumstances of this case?” PER BOLOUKUROMO MOSES UGO, J.C.A.
COURT AND PROCEDURE: CAUSE OF ACTION AND LOCUS STANDI
“Now, it is settled that a person bringing an action in Court must have a standing and cause of action or else his action will be struck out or dismissed. In fact the two expressions locus standi and cause of action are very closely related in practice, with the result that absence of one most times means absence of the other, too, as it happened in the celebrated case of Thomas v. Olufosoye (1986) LPELR-3237 (SC)…Cause of action consists of the bundle or aggregate of facts in the relationship between the parties which the law will recognize as enabling the plaintiff to enforce the claim against the Defendant. It means an action with some chance of success when only the allegations in the pleadings are considered. A cause of action is an act on the part of a defendant which gives the plaintiff a cause of complaint: see Ibrahim v. Osim (1988) NSCC 1184 @ 1198, and Labode v. Otubu (2001) FWLR (PT 43) 207 @ p.232 para G-H. Locus standi on the other hand refers to the legal right of a party to an action to be heard in litigation before a Court of law. For a person to have locus standi, he must show to the satisfaction of the Court that his civil rights and obligations have been infringed. In determining the issue of locust standi the Court must constantly bear in mind that its judicial powers is being invoked and the matter in which the judicial powers can be exercised are by the provisions of Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999 expressly stated to extend to all matters between person or between government or authority and any person in Nigeria and to all actions and proceedings relating to thereto, for the determination of any question as to the civil right and obligations of that person. See Thomas v. Olufosoye (1986) LPELR-3237 (SC) at p. 27 (Obaseki, J.S.C.)” PER BOLOUKUROMO MOSES UGO, J.C.A.
INTERPRETATION OF STATUTE: SECTION 251, CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999.
“Section 251 (1) (p), (q), and (r) of the 1999 Constitution of the Federal Republic of Nigeria…This provision was explained by the apex Court (Ogundare, J.S.C., in lead judgment) in N.E.P.A. v. Edegbero & Ors (2002) LPELR-1957 (SC) p. 15 as follows: A careful reading of paragraphs (p), (q), and (s) reveals that the intention of the lawmakers was to take away from the jurisdiction of the State High Court and confer exclusive jurisdiction on the Federal High Court actions in which the Federal Government or any of its agencies is a party. While paragraph (s) talked of actions for declaration or injunction, the proviso extended this to actions for damages, injunction or specific performance. It did not say as the learned trial judge with profound respect appear to read into it, that actions for damages, injunction or specific performance against the Federal Government or any of its agencies could still come before a State High Court. I am of the view that the learned trial Judge was in error in his interpretation of the purport of the proviso. Their Lordships of the Court of Appeal were equally in error to affirm the decision of the learned trial Judge. With profound respect to their Lordships of the Court below, they wrongly applied these cases to the matter before them.” PER BOLOUKUROMO MOSES UGO, J.C.A.
JUSTICES
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
STEPHEN IORLUMUN IBYEM Appellant(s)
AND
UNIVERSITY OF JOS Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment):
This appeal is from the judgment of the Federal High Court of Nigeria, Jos Division, of 26th day of May 2016 declining jurisdiction over the suit of the appellant, a Jos-based Legal Practitioner who claims he is guardian of one Mark Gwaza Ibyem, a student of the respondent. Appellant commenced his action by way of originating summons seeking determination of the following three questions:
1. Whether having regard to Section 36 of the Constitution of the Federal Republic of Nigeria 1999 more particularly Section 36(1), (4) (6) and (12) the defendant observed the rules of natural justice before proceeding to surcharge students for damages and other costs and expenses incurred by the defendant as a result of student?s demonstration.
2. Whether the defendant had jurisdiction to surcharge students for damages which constitute an offence under Section 326 of the Penal Code Law and punishable under Section 327 of the Penal Code Law.
3. Whether the defendant in the exercise of the powers conferred on her under the University of Jos Act, Cap U8, Laws of the Federation of Nigeria 2004, can surcharge her students for damages caused by her students to the University’s properties when no Court of competent jurisdiction has found the students culpable.
Should these questions be answered in his favour, appellant asked that the following relief be granted him:
1. A declaration that the defendant’s decision to surcharge her students for the damages and other costs incurred by the defendant as a result of the student’s protest on 24th and 25th November 2014 is unconstitutional, being a violation of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. A declaration that the defendant?s directive that all returning students must pay the sum of Six Thousand Naira (6,000) to cover the cost of damages and other costs incurred by the defendant as a result of the student?s demonstration which took place on 24th and 25th November 2014 is illegal, invalid, ultra vires, null, void and of no effect whatsoever.
3. A declaration that the defendant?s directive that all returning students must present evidence of payment of the sum of Six Thousand Naira (?6,000) being surcharge for damages occasioned by student?s demonstration on 24th and 25th November 2014 before being eligible to sit for the second semester examination is illegal and oppressive.
4. An order nullifying or setting aside the defendant’s directive that all returning students must pay the sum of Six Thousand Naira (6,000) to cover the cost of damages and other costs incurred by the University (defendant) as a result of student?s demonstration on 24th and 25th November 2014 as same is illegal and unconstitutional.
5. An order nullifying or setting aside the defendant’s directive that all returning students must present evidence of payment of the sum of Six Thousand Naira (6,000) being surcharge for damages occasioned by student?s demonstration on 24th and 25th November 2014 before being eligible to sit for the second semester examination as same is illegal, oppressive and unconstitutional.
6. An order of injunction restraining the defendant from attempting to implement or implementing and enforcing her directive that all returning students must present evidence of payment of the sum of Six Thousand Naira (6,000) to cover the cost of damages and other costs and expenses incurred by the University (defendant) as a result of being surcharge for damages occasioned by student’s demonstration on 24th and 25th November 2014.
7. An order of injunction restraining the defendant from attempting to implement or implementing and enforcing her directive that all returning students must present evidence of payment of the sum of Six Thousand Naira (6,000) being surcharge for damages occasioned by student’s demonstration on 24th and 25th November 2014 before being eligible to sit for the second semester examination.
8. An order directing the defendant to refund the Six Thousand Naira (?6,000) surcharged the plaintiff?s ward (Mark Gwaza Ibyem) as a consequence of the alleged students demonstration which took place on 24th and 25th November 2014.
9. Cost of this action.
10. Any consequential relief that will meet the objective of this suit.
Appellant as plaintiff set out in paragraphs 4, 6, 7 and 8 of the Statement in Support of his Originating Summons what necessitated his action thus:
4. On the 24th and 25th November 2014, students of the defendant carried out a protest wherein they called on the defendant to remove the Development Levy of Ten Thousand Naira (10,000) from their school fees and to reduce the Acceptance fee of Twenty-Five Thousand Naira (25,000) payable by students upon admission by the defendant.
5. As a result of the protest carried by students of the defendant on the 24th and 25th November 2014, the defendant directed students to vacate the campuses of the defendant forthwith.
6. On the 6th of February 2015, the defendant directed that students return back to school. The defendant also gave directives as follows:
i. The University Properties were extensively damaged during the students? unrest and they should therefore be surcharged for the damages and other costs incurred by the University and not captured in the report of the Investigative Committee.
ii. All returning students should sign an undertaking under oath to be of good behavior during their remaining period as students of the University.
iii. That all returning students must pay the sum of Twelve Thousand Naira (12,000) each online using the students payment system to cover cost of damages and other costs and expenses incurred by the University as a result of the demonstration.
iv.For a student to be eligible to sit for the Second Semester Examination, he or she must present a duly completed letter of Undertaking stamped by the Commissioner of Oath to be of good behaviour and evidence of payment of the sum of Twelve Thousand Naira (12,000).
v. That a case of gross misconduct had been established against the SUG EXCO and therefore, they should appear before the Senate Student’s Disciplinary Committee to explain their roles in the students’ unrest of the 24th and 25th November 2014. The SUG has been dissolved and a caretaker committee appointed.
7. On the 18th of February, 2015, the defendant issued a press Release as follows:
Following the interaction between management of the University of Jos and Officials of the National Association of Nigerian Students led by its National President, Comrade Tijani Usman Sheu on 19th February, 2015, management considered the appeal by the students leaders and resolved as follows:
(i) That the surcharge payment which is to cover the cost of damages and other expenses incurred by the University as a result of the last students’ demonstration be reduced from Twelve Thousand Naira (12,000) to Six Thousand Naira (6,000) only.
(ii) That the suspension order on the 16 former officials of the dissolved University of Jos Students Union Government (SUG) be lifted immediately and they be allowed to sit for the Second semester Examination. However, they are still expected to appear before the Students Disciplinary Committee to explain their roles in the November 2015 students’ unrest.
(iii) That all returning students must sign an undertaking on oath to be of good behavior during their remaining period as students of the University.
In the affidavit supporting his summons, appellant first deposed in paragraph 8 and 12 what he deemed as his standing to directly bring action against defendant. He anchored it on the Undertaking he witnessed as guardian for his said ward and the Six Thousand Naira (?6,000) surcharge which he claimed he, appellant, personally paid for him. He swore thus:
8. That plaintiff being the sponsor and guardian of Mark Gwaza Ibyem who is a student of the defendant, is required by the defendant to witness the Undertaking under Oath to be signed by Mark Gwaza Ibyem. Attached to this affidavit, marked Exhibit UJ1 is the Undertaking which I witnessed as guardian of Mark Gwaza Ibyem.
12. That the sum of Six Thousand Naira (6,000) surcharged my ward, Mark Gwaza Ibyem by the defendant is to be paid by me and I consider this sum to be illegal and oppressive.
Appellant also further deposed (argued would be a more appropriate expression) at paragraphs 9, 10 and 11, 12, 13, 14, 15, 16 and 17 of his affidavit, even without suggesting that he was informed by the said Mark Gwaza Ibyem let alone believed him, that:
9. That I know that my ward Mark Gwaza Ibyem did not participate in any students? unrest on 24th or 25th November 2014 or on any other date.
10. That I know that my ward Mark Gwaza Ibyem did not damage any property of the respondent and so should not be surcharged for any damage to the property of the defendant.
11. That I further depose as follows:
i. My ward, Mark Gwaza Ibyem is not resident on campus. He lives with me in my residence at Bukuru Low Cost, Jos.
ii. My ward, Mark Ibyem did not go to the defendant’s campus on 24th November, 2014 because exams were to commence on that day and he (Mark Gwaza Ibyem) had no paper to write on that day.
iii. As a result the students’ protest on 24th November, 2014 and the ensuing tension, my ward (Mark Gwaza Ibyem) did not go to school (Defendant?s Campus) on 25th November, 2014.
12. That the sum of Six Thousand Naira (N6,000) surcharged my ward, Mark Gwaza Ibyem by the Defendant is to be paid by me and I consider this sum to be illegal and oppressive.
13. That the Defendant’s action of surcharging my ward (Mark Gwaza Ibyem) the sum of Six Thousand Naira (N6,000) for damages not caused by my ward, has placed upon me an obligation to pay the said sum to the Defendant, a sum which I consider to be unfair and oppressive.
15. The Plaintiff states that no case of gross misconduct has been established against Mark Gwaza Ibyem by the Defendant and there is therefore no basis for the surcharge of Six Thousand Naira (N6,000).
16. That I know that the Defendant’s action is unconstitutional and contrary to the University of Jos Act Cap U8 Laws of the Federation of Nigeria 2004.
17. That it is necessary in the circumstance for this Court to interpret the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Penal Code Law and the University of Jos Act Cap U8 Laws of the Federation of Nigeria 2004 in view of the Defendant’s action.
The respondent opposed the summons and, through its Legal Officer, one Mrs. Hauwa Lami Temine, deposed to a 19-paragraph counter affidavit where it confirmed the said students’ unrest and the consequential damage of its properties for which it admitted ordering immediate closure of its campuses. It also confirmed the disciplinary, actions including surcharge and undertaking of good behavior, it imposed on all its students as a result of the unrest. It went on to further depose at pages 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 thus:
6. That I know as a fact that the Defendant?s management decision directing that the Students should sign an undertaking under oath to be of good behavior during their remaining period as students of the Defendant was proper and in line with the disciplinary measures of the Defendant.
7. That I know that the demand on each student to pay N6, 000 (Six Thousand Naira only) was part of the disciplinary measures taken by the Defendant.
8. That I know as a fact that the Student Union Government as a body represents the interest of every student of the defendant and every decision taken by the Students? Union Government whether good or bad affects every student.
9. That I know as a fact that when the Students’ Union Government took a decision to embark on the willful protest leading to the damage of the Defendant?s facilities, the ward of the Plaintiff did not renounce his membership and up till date, he has not renounced his membership of the Students’ Union Government.
10. That I know as a fact that having not renounced his membership and whether the ward of the Plaintiff was around in school on 24th and 25th November, 2015 (which is denied) during the willful misconduct of the Students’ Union Government, the ward of the Plaintiff actively participated in the damage of the Defendant?s facilities.
11.That I know as a fact that every student represented by the Students Union Government enjoys the benefit and suffers the consequences of the decision of the Students? Union Government whether the student is resident on campus or not.
12. That I know as a fact that the charge placed on every student by the Defendant is not illegal and oppressive but part of the disciplinary measures taken by the Defendant.
13. That I know as a fact that the charge placed is the consequences of the action of the Students’ Union Government as whole which union the ward of the Plaintiff belongs to.
14. That I know as a result of the Students? Union Government that every student represented by the Union was surcharged so that the willful misconduct caused by them on the facilities of the Defendant will be replaced.
15. That I know as a fact that the action of the Defendant is legitimate flowing naturally from the action of the students and is not in any way unconstitutional or contrary to the University of Jos Act.
16. That I know as a fact that there is no reason for interpreting the constitution or any other law where no cause of action has been established.
Appellant responded with a Further Affidavit where he deposed that his ward Mark Gwaza Ibyem informed him and he verily believed him that the Students’ Union Government (S.U.G.) of respondent is a voluntary association and represents only students who are members of the Union; that Mark Gwaza Ibyem is not a member of respondent’s Students’ Union Government (S.U.G.) so the issue of his renouncing his membership does not arise, and that Mark Gwaza Ibyem did not participate in any protest led by the Students’ Union Government on 24th and 25th November 2014 or any other date.
Written addresses were exchanged by parties along the lines of these arguments. Worthy of special mention is that appellant in its address relied strongly on the Supreme Court’s decision in Garba v. University of Maiduguri (1986) 1 NWLR (PT 18) 550 to contend that the charge of willful destruction of its property for which respondent surcharged its students was an offence under the Penal Code of Northern Nigeria which can only be tried in the Courts; that without that finding, it amounted to breach of respondent’s students’ right to fair hearing under the Constitution for respondent to impose the said surcharge.
As earlier said, the trial Federal High Court in its Judgment of 26th May, 2016 declined jurisdiction and struck out the suit. It reasoned that the suit was for enforcement of fundamental right but not covered by the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria 1999 as amended. It made it clear that it took that decision without hearing parties, saying:
I would have called upon counsel to both parties to address the Court on the issue of jurisdiction. However, since this case was not filed by way of writ of summons but by way of enforcement of fundamental Rules, I have before me enough materials to proceed to judgment.
In conclusion, I do not see how the Federal High Court can entertain this suit being outside the provision of Section 251.
Consequently, I am of the clear view that this suit is hereby struck out.
Miffed by that decision, appellants have lodged the instant appeal to this Court on two grounds, from which it also framed the following two issues:
1. Whether the Federal High Court was right in declining jurisdiction to hear and determine the appellant’s suit.
2. Whether the appellant’s right to fair hearing was violated when the trial judge failed to invite counsel to address the Court on the issue of jurisdiction.
Respondent on its own also framed two issues as follows:
1. Whether the appellant has the locus standi to institute this action.
2. Whether the trial Court was right when it found that based on the materials placed before it the Court has no jurisdiction to entertain the suit.
On his issue 1, appellant argued that contrary to the lower Court’s reasoning, the three questions he sought answers for in his summons are all within the purview of Section 251(1) (p)(q) and (r) of the 1999 Constitution of this Country. Citing a plethora of cases including NEPA v. Edegbero (2003) 18 NWLR (PT. 798) 79, he submited that in so far as the Federal Government or its agencies is a party to an action the proper Court to approach under Section 251 of the Constitution is the Federal High Court as he did and not the State High Court.
On issue 2, appellant faulted the lower Court on its decision to decline jurisdiction without first hearing parties. He said that amounted to denial of fair hearing and making a case for the respondent, especially as respondent never asked that the case be struck out.
In the light of that, he prayed us to allow the appeal, set aside the decision of the lower Court and invoke our powers under Section 15 of the Court of Appeal Act 2004 and assume jurisdiction over the case and hear it on its merits more so as parties have exchanged all necessary processes.
Respondent as shown by its issue 1 approached the issue from the perspective of appellant’s standing to question its exercise of disciplinary jurisdiction over its students when appellant is not one of them. All its students, it pointed out, have since complied with its directives so appellant who according to it ?has no axe to grind with it? lacks standing to question its decision.
On issue 2, it argued that a person seeking to invoke the jurisdiction of the Court must establish a reasonable cause of action and show that the parties as well as the subject matter are within its purview. Appellant, it argued, lacked reasonable cause of action necessary to clothe the lower Court with jurisdiction.
On the Court’s failure to first hear parties before striking out the action, it argued that appellant having commenced his action by originating summons and having placed all the facts placed before the lower Court, it was right to rule on the basis of the records before it that it lacked jurisdiction, that it is no moment that it did not hear parties. For that, appellant cited the decision of the apex Court in Effiom & Anor v. C.R.S.I.E.C (2010) LPELR-1027 (SC) where it was held that, the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it.? In any case, it further argued, relying on Alims (Nig.) Ltd v. U.B.A. Plc (2013) 6 NWLR (PT 1351) 613 @ 626, and Alh. I.Y. Ent. Ltd v. Omolaboje (2006) 3 NWLR (PT 966) 195 @ 203, mere failure to invite argument from parties before ruling on an issue cannot result in reversal of decision, that the party has to go further to show that he suffered miscarriage of justice by that failure. That, it argued, was not proved in this case by appellant. It also made the point that the facts deposed to by appellant and the declaratory and injunctive orders sought by him did not also establish grounds for invocation of the lower Court?s jurisdiction. All the reliefs and injunctive orders sought by him are acts that have been completed, it argued.
Further citing the cases of Onuorah v. Kaduna Petrochemical Co. Ltd (2005) NWLR (PT. 921) 393 @ 402-405 (S.C.) and W.S. & F Plc v. N.A.I.C. (2015) ALL FWLR P. 807 P.410 (incomplete reference), it submitted that the mere fact that a party to an action is a federal agency does not ipso fact confer jurisdiction on the Federal High Court, rather it is the cause of action, the subject matter of the suit or the claim in the suit that is conclusive of the jurisdiction of that Court. Appellant, it also argued, failed to establish a cause of action so the lower Court right in declining jurisdiction over his case and we should so hold.
In response, appellant in his Reply Brief first urged us to discountenance issue 1 of respondent where it questioned his standing in the action. He submitted that his locus standi was not an issue in his grounds of appeal so respondent who did not file a Respondent’s Notice cannot formulate grounds outside his grounds to question his standing. The issue of his standing in the action raised by respondent, he further argued, is even a new one in the proceedings since respondent did not raise it at the trial Court. For that reason, he submitted, respondent also needed the leave of this Court to raise it. Assuming, but without conceding, that respondent’s said issue 1 is competent, he continued, the issue of locus standing raised by respondent, albeit connected to jurisdiction, lacked merit in this case given his deposition that Mark Gwaza Ibyem, respondent?s student, is his ward, he (the appellant) is also responsible for paying the said Mark Ibyem fees including the surcharge of 6,000 imposed on all its students by respondent for the alleged damages, and he was also made to witness an Undertaking of good behaviour on behalf of the said he Mark Ibyem. He also pointed to the fact that among his claims is a prayer for refund of the 6,000 he paid on behalf of his said ward. The grant of that relief, he argued, would relieve him of the pain of parting with the said amount.
Appellant argued, too, that his action was in reality for enforcement of fundamental right and to that extent, locus standi is further granted him by the Preamble of the Fundamental Rights (Enforcement Procedure) Rules 2009 which encourages public interest litigation and specifically allows a person acting on behalf of another to apply for enforcement of the latter’s fundamental rights. To buttress this fact, appellant cited the decision of this Court in Nwankwo v. Ononeze-Madu (2009) 1 NWLR (PT. 1123) 715 where this Court upheld the right of two legal practitioners to institute fundamental rights application to question the appointment of the respondent of as Judge of the High Court. He submitted that the Courts now advocate a more expansive approach to the issue of locus standi; for which he cited another decision of this Court in Williams v. Dawodu (1988) 4 NWLR (PT 86) 189 @ 218.
On the contention of respondent that a Court can in special circumstances legitimately raise and decide an issue of jurisdiction without hearing parties where all the facts are before it, appellant’s response was that that principle was of no avail because no special circumstances existed in this case to warrant that. Counsel distinguished Onuorah v. Kaduna Refinery & Petrochemical Co. Ltd (2005) 6 NWLR (PT 921) 393, saying Onuorah’s case was about a simple contract which the apex Court held was outside the jurisdiction of the Federal High Court. Appellant relying on the provisions of Section 251(1) (p), (q), and (r) argued that the subject matter of this suit including the declarations and injunctive orders sought therein were clearly in relation to the administration or management and control of the respondent, an agency of the Federal Government; that orders also questioned the validity of executive orders of respondent, so the lower Court?s jurisdiction was properly invoked.
Resolution of issues
Let me first make the point that I am at one with appellant that respondent cannot validly formulate issues outside his grounds of appeal and as it purported to do in its issue 1 where it raised afresh the issue of appellant’s locus standi which was not the ground on which the lower Court declined jurisdiction. The course adopted by respondent will only be open to it if it had filed a Respondent’s Notice pursuant to Order 9 Rule 2 of the Rules of this Court 2016 to contend that the decision be affirmed on grounds other than the one relied on by the lower Court. Without filing that Notice, it is bound to defend the decision of the lower Court only on the ground relied on by it: see Kayili v. Yilbuk (2015) 7 NWLR (PT 1457) 26 @ 86; Orji v. Zaria Ind. Ltd (1992) 1 NWLR (PT 216) 124 @ 128.
And coming to the appeal proper, the lower Court struck out appellant’s action on the ground only that in its view it lacked subject matter jurisdiction going by the provisions of Section 251(1) of the 1999 Constitution of this country. Was it correct in that decision. It does not appear to me that it was. Section 251 (1) (p), (q), and (r) of the 1999 Constitution of the Federal Republic of Nigeria on which appellant hinged his action provides as follows:
S.251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters arising from…
(p) the administration or the management and control of the Federal Government or any of its agencies;
(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies; and
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies;
Provided that nothing in the provisions of paragraph (p), (q), and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.
This provision was explained by the apex Court (Ogundare, J.S.C., in lead judgment) in N.E.P.A. v. Edegbero & Ors (2002) LPELR-1957 (SC) p. 15 as follows:
A careful reading of paragraphs (p), (q), and (s) reveals that the intention of the lawmakers was to take away from the jurisdiction of the State High Court and confer exclusive jurisdiction on the Federal High Court actions in which the Federal Government or any of its agencies is a party. While paragraph (s) talked of actions for declaration or injunction, the proviso extended this to actions for damages, injunction or specific performance. It did not say as the learned trial judge with profound respect appear to read into it, that actions for damages, injunction or specific performance against the Federal Government or any of its agencies could still come before a State High Court. I am of the view that the learned trial Judge was in error in his interpretation of the purport of the proviso. Their Lordships of the Court of Appeal were equally in error to affirm the decision of the learned trial Judge. ? With profound respect to their Lordships of the Court below, they wrongly applied these cases to the matter before them.?
That was reconfirmed in Adetayo v. Ademola (2010) LPELR-155 (SC) p. 19, with the apex Court (Mahmud Mohammed, J.S.C. (later C.J.N.) saying:
For the Federal High Court to exercise jurisdiction under Section 251(1)(i) (r) not only must the party be Federal Government or any of its agencies, the proceeding must also be for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.
The respondent, the University of Jos, is undoubtedly an agency of the Federal Government. The reliefs in the action – declaratory and injunctive – sought by appellant also question the validity of respondent?s executive/administrative decision to surcharge all its students for damages to its properties occasioned by the students. The action was thus squarely within the provisions of paragraph (p), (q) and (r) and the proviso to Section 251(1) of the 1999 Constitution conferring exclusive jurisdiction on the Court below – the Federal High Court, and the Court was wrong in its decision that it lacked subject matter jurisdiction over appellant’s action on account of the same Section 251(1). I so hold and hereby set aside its decision to that effect.
But then, that is only one aspect of the matter, for appellant has also gone further to pray us to exercise our powers of rehearing under Section 15 of the Court of Appeal Act and decide the case on its merits should we agree with him on the lower Court?s jurisdiction as we have done. He said we can do that particularly as parties have already exchanged affidavits and even written addresses in compliance with the rules of the lower Court. The respondent has no response to that application. I do not see how it could have opposed it in any case.
Now, Section 15 of the Court of Appeal Act 2004 states inter alia that, the Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal and … shall generally have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part ?’
These wide and general powers are invested on this Court are to enable it to do complete justice in deserving cases by exercising full jurisdiction over the entire proceedings in the same manner as the trial judge would have done, provided the following conditions, which are not exhaustive, exist: (1) availability of necessary materials to consider and adjudicate in the matter; (2) the length of time between the disposal of the case in the trial Court and the hearing of the appeal; and (3) the interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial Court for rehearing and the hardship such an order would cause on either of both parties Court: see Mato v. Hember (2018) ALL FWLR (PT. 925) 146 (S.C.), (2018) 5 NWLR (PT 1616) 258, (2017) LPELR-42675 (SC). These factors exist here; I shall therefore proceed to determine the case on its merits.
First permit me to reproduce once again, for purposes of focus, the issues for determination as set out in appellant’s originating summons. They are:
1. Whether having regard to Section 36 of the Constitution of the Federal Republic of Nigeria 1999, more particularly Section 36(1), (4) (6) and (12), the defendant observed the rules of natural justice before proceeding to surcharge students for damages and other costs and expenses incurred by the defendant as a result of students? demonstration.
2. Whether the defendant had jurisdiction to surcharge students for damages which constitute an offence under Section 326 of the Penal Code Law and punishable under Section 327 of the Penal Code Law.
3. Whether the defendant in the exercise of the powers conferred on her under the University of Jos Act, Cap U8 Laws of the Federation of Nigeria 2004 can surcharge her students for damages caused by her students to the University’s properties when no Court of competent jurisdiction has found the students guilty.
I shall answer these three questions together as they are in my humble opinion intertwined. Appellant’s contentions in each and all of them is founded on the pronouncements of the Supreme Court in the case of Garba v. University of Maiduguri (1986) 1 NWLR (PT. 18) 550, which case appellant also quoted profusely in his brief of argument. His principal contention is that the charge of willful destruction of its property for which respondent surcharged its students is an offence under the Penal Code of Northern Nigeria as applicable to Plateau State so it ought to be first tried in the Courts and a finding made, that without that, it amounted to breach of respondent’s students’ right to fair hearing under the 1999 Constitution for respondent to surcharge its students as it did.
Proceeding from that premise and citing in addition the decision of this Court in Nwankwo v. Ononeze-Madu (2009) 1 NWLR (PT. 1123) 715, appellant also argues that his action was for enforcement of fundamental right like Garba v. University of Maiduguri so it was covered by subparagraph (e) of the Preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009 which encourages and allows public interest litigation including commencement of such action by one person on behalf of another even if the former is not personally affected by the infringement complained of.
First, I am afraid appellant is not correct in his argument that his case was for enforcement of fundamental right, even as the lower Court, I note also saw it that way. No doubt a fundamental rights proceeding can be commenced and prosecuted by originating summons, as clearly spelt out in Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009, but that does not per se turn every Originating Summons to one for enforcement of fundamental rights as specially provided for in Section 46 of the 1999 Constitution of this country. After all even the Rules of the Federal High Court specifically provide in its Order 3 Rule 7 for commencement of proceedings by originating summons.
The fact that a plaintiff invokes in support of his action sections of the Constitution relating to fundamental rights does not also by that fact alone turn his action to one for enforcement of fundamental rights under Section 46 of the Constitution.
To qualify as a proceeding for enforcement of fundamental rights under Section 46 of the Constitution the plaintiff must clearly and in the most unmistakable terms say so in his summons, and not just simply invoke fundamental rights in his address. That was made clear by the apex Court inChief (Dr.) Mrs Funmilayo Ransome-Kuti & Ors v. A.G. of the Federation & Ors (1985) LPELR-2940, where it (Eso, J.S.C.) first approached this issue way at p.30:
The learned Attorney-General, Mr. Ofodile S.A.N. argued that the nature of the section was very important, Section 32(2) of the 1963 Constitution governs all the provisions in Chapter III. In any event concluded Learned Attorney-General, the fundamental rights would not override the common law.
I have set out the facts and the sequence of this case in so much detail having regard, as I earlier said, to the importance attached to it. I have no doubt in my mind that having regard to the writ of summons, the statement of claim, the evidence, the legal submissions of learned counsel at the various stages of the case, and I already referred to passages in respect thereof, that the action brought by the plaintiffs against the defendants was one in tort.
I am, certainly, not mindful of paragraph 14 of the statement of claim which states that –
The plaintiffs will at the trial invoke all statutory and common law provisions of the Constitution of the Federal Republic of Nigeria with particular reference to Chapter III and Section 19 of the said Constitution.
This paragraph no doubt calls in aid the provisions of Section 19 of the Constitution of 1963. The question however is to what extent does it add to or modify the cause of action of the plaintiffs? … In so far as the action against the 1st respondent is concerned therefore, the plaintiffs/appellants could only rely on the vicarious liability of that defendant/respondent though in process thereof he could seek in aid Chapter III of the Constitution for proof of his tortuous action but certainly not as a separate cause of action.
His Lordship reinforced the point further at p.36 saying:
In my view under Section 36 of the 1963 Constitution [now Section 46 of 1999 Constitution] the subject was at liberty to approach the Court for enforcement of his right or generally at liberty to seek redress in any manner in which the subject may deem to be convenient in any given circumstance. Though he could do this by way of the prerogative actions, by originating summons or declaratory relief, he must seek that redress before the Court be called upon to apply the provision of the Constitution to his case.
I do share the view of Ademola, J.C.A. that the claim of the plaintiffs was in tort simpliciter and the only question that could be posed by the appellant is whether that claim in tort with reference to fundamental right in paragraph 14 of the statement of claim would be sufficient to be called upon to start enquiry as to the violation of that right. On this topic I am definitely inclined to the view held by Nnaemeka-Agu, J.C.A. that:
For a plaintiff who comes to Court in reliance upon Chapter III of the 1963 Constitution to succeed he must show that one or more of the rights guaranteed by the section had been infringed.
I believe to seek ‘redress’ under Section 32(1) of the Constitution, the plaintiff must be known by whatever application he employs in the High Court to be seeking that redress. Redress under Subsection (1) of Section 32 has been spelt out in Subsection (2) to mean ‘enforcement’ or seeking the enforcement of the guaranteed right.
The right guaranteed by the provision is not, in my respectful view, a mere right; it is a special one the remedy for which is outside the purview of an ordinary action which is brought mainly to seek damages for a delict. And when he is out just to seek damages for a tort, allegedly committed by another, the ordinary common law, which it would appear, the plaintiffs in this case have brought (and not the special Law) is the answer. While the special Law is meant to seek redress which indeed may even include compensation for the damage done, the plaintiff must be seeking that redress and not merely calling in aid constitutional provisions in his action for damages in tort. It is in this con and to that extent that I understand and regard as correct Ademola, J.C.A., statement that:
The question here as I see it is a matter of form of action.
When the Court of Appeal held that monetary compensation could be claimed in a claim for violation of fundamental right, I think their Lordships are right. But then it is incumbent on a plaintiff to be clear as to what he seeks, the manner of approach notwithstanding. His opponent must know what the claim against him is and not to be left to guess. That is the essence of pleadings. That is also the essence of joining issues. (Emphasis all mine.)
I note further that Garba v. University of Maiduguri (supra), on which appellant laid so much premium, was even commenced under the Fundamental Rights (Enforcement Procedure) Rules 1979 then in force.
The summary of what I am trying to say here is that, appellant, having not commenced his action by the special procedure for fundamental right enforcement, cannot call in aid the Preamble of the Fundamental Rights (Enforcement Procedure) Rules 2009 to say he can competently bring this action on behalf of his ward even if his action on its face did not disclose a cause of action or locus standi in him. He has to stand or fall by the averments in his common form originating summons filed pursuant to the Rules of the Federal High Court.
And that throws up two pertinent questions:
(1) Did appellant actually have standing and cause of action in the action as he claims.
(2) if he did, is appellant correct in his contention that respondent was enjoined, and bound by, the decision of the Supreme Court in Garba v. University of Maiduguri and the constitutional provisions he cited to first charge its students to Court for criminal misconduct and get a finding of conviction against them before it can mete out punishment to them. In other words, did the respondent have no say whatsoever in the matter particularly in the peculiar circumstances of this case?
On the 1st issue above posed by me, respondent argued in its brief of argument that appellant not being one of its students affected by its decision lacks standing and even cause of action against it. In its written address before the lower Court contained at pages 67-77 of the records it had also made the point that appellant and his said ward having since paid the said ?6,000 surcharge without objection before appellant filed this action at the lower Court, appellant is estopped and cannot be heard on it. It cited the cases of A.G. of Nassarawa State v. A.G. of Plateau State (2012) 10 NWLR (PT. 1309) 419 @ 470 (S.C.) and A.G. of Rivers State v. A.G. of Akwa Ibom State (2011) 8 NWLR (PT 1248) 31 @ 82 (S.C.) in support of this contention. On his part, appellant besides arguing that estoppel was not raised by respondent in its affidavit and therefore it cannot raise it during address (for which he cited Clay Industries v. Aina (2011) 8 NWLR (PT 1248) 31 @ 82), relied on his status as the guardian of his said ward Mark Gwaza Ibyem, the fact that he had, as directed by respondent, witnessed his ward’s Undertaking of Good Behaviour, the fact that he paid the ?6,000 surcharge on behalf of his said ward, and the fact that he is claiming a refund of that amount, to substantiate his standing and cause of action in the matter.
Now, it is settled that a person bringing an action in Court must have a standing and cause of action or else his action will be struck out or dismissed. In fact the two expressions locus standi and cause of action are very closely related in practice, with the result that absence of one most times means absence of the other, too, as it happened in the celebrated case of Thomas v. Olufosoye (1986) LPELR-3237 (SC).
Cause of action consists of the bundle or aggregate of facts in the relationship between the parties which the law will recognize as enabling the plaintiff to enforce the claim against the Defendant. It means an action with some chance of success when only the allegations in the pleadings are considered. A cause of action is an act on the part of a defendant which gives the plaintiff a cause of complaint: see Ibrahim v. Osim (1988) NSCC 1184 @ 1198, and Labode v. Otubu (2001) FWLR (PT 43) 207 @ p.232 para G-H. Locus standi on the other hand refers to the legal right of a party to an action to be heard in litigation before a Court of law. For a person to have locus standi, he must show to the satisfaction of the Court that his civil rights and obligations have been infringed. In determining the issue of locust standi the Court must constantly bear in mind that its judicial powers is being invoked and the matter in which the judicial powers can be exercised are by the provisions of Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999 expressly stated to extend to all matters between person or between government or authority and any person in Nigeria and to all actions and proceedings relating to thereto, for the determination of any question as to the civil right and obligations of that person. See Thomas v. Olufosoye (1986) LPELR-3237 (SC) at p. 27 (Obaseki, J.S.C.) where it was said that:
The requirement of adversity is graphically expressed in the subsection 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999] by the requirement of any question as to the civil rights and obligations of that person to be raised in matters for determination by the courts.
Set against this statement of the law, can it be seriously asserted that appellant who is not a student of respondent had a cause of action and standing to complain over an issue respondent only had with its students and which it has undisputedly amicably reached agreement and settled with the National Body of all students in Nigeria on behalf of its students, for which all its students including appellant’s said ward have since complied without objection? It does not seem to me that appellant has such standing or even cause of action, his claim to have paid the surcharge of 6,000 on behalf of his said ward notwithstanding. I note, too, that even his said claim that he personally made payment on behalf of his ward is not even corroborated by his said ward.
Among appellant’s reliefs, it must also be noted, are declarations. In fact declarations form his principal reliefs. Declarations lie at the discretion of the Court; they are not granted on admission or lack of defence, contrary to the tenor of the argument of appellant. A claimant for declaratory relief must prove to the satisfaction of the Court his entitlement to it, and he must do so on the strength of his case: see Akinduro v. Alaya (2007) ALL FWLR (PT 381) 1653 @ 1666 (S.C.); Osuji v. Ekeocha (2009) ALL FWLR (PT 490) 614 @ 640 (S.C.).
The said ward of appellant, it is also worthy of note, never even swore to a word of affidavit in support of appellant?s case. Even if he had sworn, it would have been difficult for me to see how appellant became the right person to complain about things which happened only between his said ward and respondent for which his said ward, whom he never also suggested was a minor and so cannot sue, has by appellant’s own showing since reached a compromise with respondent. In Garba v. University of Maiduguri, the plaintiffs were the affected students, not their parents, even as the parents supposedly also stood to lose from their wards and children’s expulsion, they being the ones responsible for their fees. In summary, I hold that appellant lack both cause of action and locus standi in this action.
Assuming but, without conceding, that he had both and could sue as he did, appellant does not even seem correct in his contention that Garba v. University of Maiduguri decided that higher institutions or Universities are bound to charge their students to Court for every criminal misconduct in their campuses. A calm reading of Garba’s case suggests the apex Court rather confirmed that management of Universities has some form of discretion even in such matters. For example, inGarba v. University of Maiduguri (1985) LPELR-1305 (SC) @ p. 112 -113 Uwais J.S.C. (later C.J.N.) said thus:
If students commit serious criminal offences within University Campuses, as in the present case Vice-Chancellors or the Disciplinary Bodies should not feel restrained or reluctant to report the improper conduct to law enforcement agencies. Crimes committed even within the walls of the campuses are crimes against the public at large. No citizen is above the law and students should be made to understand that.
It has long been the view of the Court that where a person is accused of committing a criminal offence, he must be taken before a Court of law for trial and not merely be dealt with by a Tribunal see Dr. E.O. Denloye v. Dental Practitioners Disciplinary Committee (1968) All NLR 306 at 311 and Dr. o. Christophers case (SUPRA) at P.17. However this does not mean every trivial or minor offence committed by students becomes the subject of prosecution in a Court of law. It is the responsibility of the Vice Chancellors in the exercise of his power underSECTION 17, [S.18 in the University of Jos Act] to distinguish between serious and minor acts or misconduct which have given rise to serious or minor criminal offences.
Nnamani, J.S.C. reasoned along the same lines in the same case when he said thus at p.105:
Before concluding this concurring judgment, I would wish to state that nothing I have said can or ought to be taken as condoning the wanton destruction of property, arson etc. perpetrated by whoever took part in those unfortunate events. In the interest of continued development of higher education in this country, it is necessary that the two sides in the University Community – staff and students – should show restraint in dealing with problems which must inevitably arise. Students must channel their grievances through established and sometimes well-tested institutions set up for the purpose.
University authorities imposing disciplinary measures must of necessity do so in accordance with the view expressed in Laoye’s case in which I lamented the tendency of university authorities to settle in the campus matters which .belong to the domain of the regular courts.
Disciplinary measures ought to be imposed with firmness but where possible, particularly in case of less serious misconduct, with compassion and understanding.
Respondent in this case apparently heeding this noble advice of their Lordships reasoned that the extent of damage to its property was not worth using the sledge hammer of arraigning its students in Court or tarring their young lives and names with the stigma of ‘culprits’ as it happened in Garba’s case – a case which in any event turned more than anything else on the fairness and validity of the disciplinary proceedings conducted by the University of Maiduguri, in which the plaintiffs who only appeared as witnesses before the Disciplinary Committee set up by the Vice Chancellor, also a victim of the students? actions, found themselves being stigmatized as ‘culprits’ by the University and expelled. It was in that milieu the Supreme Court said such finding of the few students/plaintiffs the University punished as ‘culprits’ and expelled required a trial by a Court properly constituted as required by Section 33 (1) and (4) of the 1979 Constitution [now Section 36(1) and (4) of the 1999 Constitution], without which their trial breached their right to fair hearing. The lead judgment of Obaseki, J.S.C. brings out this point when His Lordship said at p.32 that:
The use of the term culprit implies a finding of guilt and any finding of guilt without a trial is a breach of the rules of natural justice. The investigating panel is therefore turned into a prosecutor, witness and judge.
The respondent here accepting the plea of the National Leadership of Nigerian Students even halved its original surcharge from 12,000 to 6,000, a sum which every student, I want to believe, gladly paid like appellant’s ward did and may have since moved on with their young lives and their names untainted. I see nothing wrong or unconstitutional in that as to warrant appellant who is not its student insist that it was bound to first put its students through the trauma and uncertainty of a criminal trial in Court.
I am of the humble view that his action is misconceived. Accordingly, I answer all three questions posed in the originating summons against appellant. That is assuming but without conceding that he even had cause of action and standing.
In the event, I hereby dismiss appellant?s action with costs of 150,000 (One Hundred and Fifty Thousand) against him.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Boloukuromo Moses Ugo, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide by the conclusion reached therein. I do not see the need to make any additions.
TANI YUSUF HASSAN, J.C.A.: I have had the opportunity of reading in draft, the judgment of my learned brother, BOLOUKUROMO MOSES UGO JCA, and I agree with the reasoning contained therein and the conclusion arrived thereat. I must add that the appellant who is not a student of the respondent’s institution has no business challenging the decision of the respondent on its students. The sense of responsibility and discipline must be encouraged in our Institutions.
I also dismiss the appeal and abide by the order of costs.
Appearances:
S.T. Ahile Esq. with him, N.V. Denden, Esq.For Appellant(s)
B.D. Daze Esq. with him Mrs. L.M. Daze and B.T. BiangtenFor Respondent(s)
