THE BRANCH CONTROLLER WEST AFRICAN EXAMINATIONS COUNCIL, ILORIN & ANOR V. KAZEEM SAIDU ALADE & ORS (2011)

THE BRANCH CONTROLLER WEST AFRICAN EXAMINATIONS COUNCIL, ILORIN & ANOR V. KAZEEM SAIDU ALADE & ORS

(2011)LCN/4800(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of November, 2011

CA/IL/3/2011

RATIO

INTERPRETATION OF STATUTE : INTERPRETATION OF SECTION 1(1) AND (2) OF THE WEST AFRICAN EXAMINATIONS COUNCIL ACT (CAP.W4) LAWS OF THE FEDERATION OR NIGERIA, 2004 AS TO WHETHER THE COUNCIL IS AN AGENT OF THE FEDERAL GOVERNMENT

In order to determine whether the appellants are an agency of the Federal Government of Nigeria within the con of section 251(1) (r) of the 1999 constitution, as amended, it is necessary to look at the entire enactment establishing the 2nd appellant, the west African Examinations council. It was created by the West African Examinations Council Act (CAP.W4) Laws of the Federation or Nigeria, 2004 (the WAEC Act). By sections 14 (1)(a) and 24 of the WAEC Act, the sovereign nations of the Gambia, Ghana, Nigeria and Sierra Leone are member states of the 2nd appellant, showing the Federal Government of Nigeria does not own the 2nd appellant as its organ. Its operation in Nigeria as an autonomous body is guaranteed or recognised by section 1(1) and (2) of the WAEC Act as follows: “(1) The institution known as the West African Examinations Council shall continue to be in existence in Nigeria and shall, in accordance with the provisions of this Act, continue to discharge its responsibility for holding such examinations in Nigeria as may be necessary in the public interest in the same manner as (pursuant to the laws respectively in force in the other territories of west Africa as defined in section 24 of this Act) it may hold examinations in such territories: Provided that the President may, after consultation with the council, issue directives to the council as to what examinations are in the public interest in Nigeria and the council shall in Nigeria comply with such directives. (2) The Council shall be a body corporate with perpetual succession and a common seal.” (My emphasis). The proviso to section 1(1) of the WAEC Act (supra) appears to permit the president of Nigeria, after consultation with the 2nd appellant, to issue directives to the 2nd appellant on the type of examinations to conduct in Nigeria for the public interest I think the proviso gives the president of Nigeria limited powers confined only to his having prior discussion with the 2nd appellant on the nature of examinations to hold in Nigeria in line with the non-justiciable section 18 of the 1999 constitution, as amended, without making the 2nd appellant accountable to the Federal Government as its agency or organ. It is logical to conclude that by having prior consultation with the 2nd appellant under section 1(1) of the WAEC Act, the 2nd appellant cannot be said to be an appendage of the Federal Government, as one is not required or expected to consult with another under him before taking a decision on something. PER JOSEPH SHAGBAOR IKYEGH, J.C.A

PUBLIC OFFICER: WHO IS A PUBLIC OFFICER

The definition of “public officer” in section 18 of the Interpretation Act (CAP 123) laws of the Federation, 2004, refers in turn to the 1999 Constitution, as amended, thus: “public officer” means a member of the Public Service of the Federation within the meaning of the constitution of the Federal Republic of Nigeria 1999 or the Public service of a State. PER JOSEPH SHAGBAOR IKYEGH, J.C.A

PUBLIC SERVICE: DEFINITION OF THE “PUBLIC SERVICE” OF THE FEDERATION AS DEFINED IN SECTION 318 OF THE 1999 CONSTITUTION

RULES OF INTERPRETATION: HOW TO DETERMINE THE INTENTION OF THE LEGISLATURE

The above statutory provisions have to be read in harmony following the canon of statutory interpretation enjoining community construction of related sections of an enactment for the purpose of discovering and implementing the intention of the Legislature or draftsman from the clear words used in the enactment. See The Registered Trustees of National Association of community Health practitioners of Nigeria & ors V. Medical and Health Workers Union of Nigeria & Ors (2008) 1 S.C.N.J. 348, Inakoju & ors V. Adeleke (2007) 1 S.C.N.J. 1, Amaechi V. Independent National Electoral commission & ors (2008) 1 S.C.N.J. 1. PER JOSEPH SHAGBAOR IKYEGH, J.C.A

JUSTICES

TIJJANI ABDULLAHI (PJ) Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

1. THE BRANCH CONTROLLER WEST AFRICAN EXAMINATIONS COUNCIL, ILORIN
2. WEST AFRICAN EXAMINATIONS COUNCIL Appellant(s)

AND

1. KAZEEM SAIDU ALADE
2. GOVERNMENT SECONDARY SCHOOL MALETE, KWARA STATE
3. MINISTRY OF EDUCATION KWARA STATE Respondent(s)

JOSEPH SHAGBAOR IKYEGH, J.C.A (Delivering the Leading Judgment): The appeal is from the decision of the High Court of Justice of Kwara State holding at Ilorin (the court below) challenging both interlocutory ruling of the court below overruling the appellants’ objections to the jurisdiction of the court below over them as federal agencies suable only in the Federal High Court and entitled to the defence under the Public Officers (Protection) Act (CAP. p.41) Laws of the Federation, 2004, and the final decision of the court below declaring the appellants negligent and ordering them to issue another West African senior school certificate bearing the correct passport photograph of the 1st respondent to the 1st respondent.
Put concisely, the 1st respondent sat for the West African Senior School certificate examination conducted by the appellants while he was a student under the 2nd and 3rd respondents. At the end of the marking of the examination, the appellants issued the 1st respondent with a West African Senior School certificate with the passport photograph of another candidate, one Adeoye Yinka, fixed on the certificate. The 1st respondent brought an originating summons before the court below requesting for the rectification of the school certificate by the appellants to bear the true identity of the 1st respondent. The 2nd and 3rd respondents were codefendants in the originating summons.
Two preliminary objections – whether the suit was triable only in the Federal High court, and, whether the public Officers (Protection) Act (supra) availed the appellants- were heard and disposed of against the appellants by the court below.
The suit then proceed on the merit where the court below found in its judgment that the 2nd and 3rd respondents, as agent of the appellants, mistakenly fixed the passport photograph of one Adeoye Yinka on 1st respondent’s slot in the school album used to conduct the examinations, which misled the appellants to issue the 1st respondent the West African senior school certificate bearing the passport photograph of another candidate, one Adeoye Yinka, instead of the 1st respondent’s passport photograph.
The court below ended its judgment by finding the appellants, as principal of the 2nd and 3rd respondents, liable for issuing the 1st respondent a West African senior school certificate bearing the passport photograph of another candidate, one Adeoye Yinka, instead of the 1st respondent’s passport photograph. The court below ordered the appellants to issue 1st respondent with a fresh West African Senior School certificate bearing the identity of the 1st respondent by fixing his actual passport photograph on the certificate.
A notice of appeal called additional notice of appeal but titled “notice of appeal No.2” was dated and filed on 04/01/2011. The appellants, however, withdrew the additional notice of appeal titled “notice of appeal No.2” in page 2 of their joint brief of argument. The withdrawn notice of appeal No.2 is, for convenience, hereby formally struck out.
The appellants’ joint notice of appeal dated 05/11/2010, but filed on 09/11/2010, conveyed seven grounds of appeal covering the overruled preliminary objections on jurisdiction and time bar and the judgment on the amended originating summons.
A joint brief of argument prepared on 08/03/2011 by Dr. S. A. Bello of learned counsel for the appellants and filed on 10/3/2011, but deemed properly filed and served on 19/04/2011, contained two issues for determination tied to grounds 1, 2 and 3 of the notice of appeal for the first issue and grounds 4, 5, 6 and 7 thereof for the second issue. It was adopted by appellants’ learned counsel at the hearing of the appeal on 13/10/2011.
For clearness, the issues for determination distilled by the appellants’ read:
“ISSUE NUMBER ONE
“Whether the trial Kwara High Court was right when it assumed jurisdiction in the suit of the Claimant/1st Respondent.
No 2
Whether the trial court was right in its decision that the wrongful act of the 2nd and 3rd respondents was an authorized act of the Appellants and whether the trial court was right when it discountenanced the Appellants’ further written address on the issue of the relationship between the parties which the court raised suo motu”.
The appellants argued on the first issue that by section 1 (1) of the West African Examinations Council Act (CAP. W.4) Laws of the Federation of Nigeria, 2004, (WAEC Act), the appellants are an agency of the Federal Government and, the principal relief in the suit being declaratory in nature, only the Federal High Court has the exclusive jurisdiction under section 251 (1) (r) of the Constitution of the Federal Republic of Nigeria, 1999, (1999 Constitution), as amended, to entertain the suit, consequently the court below lacked the jurisdiction to determine the suit vide the cases of Adeyemi v. Opeyori (1976) 9-70 SC 37 @ 57, Ezenkwe V. Anadozie (1954) 14 WACA 361 @ 363, University of Abuja V. Ologe (1996) 4 NWLR (pt.445) 706 @ 722, Ali v. Central Bonk of Nigeria (1996) 4 NWLR (pt.498) 192 @ 202 to 203, Oyakhire v. Jen (2000) FWLR (pt.20) 699 @ 715, Kwara State Government v. Gadfar (1997) 7 NWLR (pt.511) 64 and section 18 of the 1999 Constitution, as amended.
Appellants also argued on the first issue that by section 2 (a) of the Public Officers (Protection) Act (CAP. P.41) Laws of the Federation of Nigeria 2004, and section 1 of the WAEC Act (supra) read with section 18 of the 1999 Constitution, as amended, the appellants who execute the educational objectives of the Federal Government by inter-alia carrying out the public function of conducting senior secondary school certificates examination in Nigeria and issuing senior secondary school certificates to successful candidates, are public officers protected by the Public Officers (Protection) Act (supra) vide the cases of Chief John Eze V. Dr Cosmas Okechukwu & ors (1998) 5 NWLR (pt.548) 43 @ 73, Ibrahim v. Judicial Service Commission, Kaduna State and others (1998) 14 NWLR (pt.548) 1 @ 36.
The appellants argued further on the first issue that the cause of action arose in June, 2001, the date the appellants conducted the senior secondary school examination, while the suit was filed on 23/02/2010, more than the three months required for an action to be initiated in court against a public officer under section 2 (a) of the public officers (protection) Act (supra), therefore the suit was statute-barred and should have been dismissed on that score vide Ibrahim v. Judicial service commission (supra), University of Ilorin v. Adeniran (2007) NMLR (pt.1030) 498 @ 523, Egbe v. Adefarasin (1985) 1NWLR (pt.3) 549 @ 569, Egbe V. Alhaji (1990) NWLR (pt. 128) 564, Ekeogu v. Aliri (1991) 3 NWLR (pt.179) 528, Egbe v. Yusuf (1992) 6 NWLR (pt.245) 1, and Madukoru v. Nkemditim (1962) NSCC 374 @ 379.
It was also contended on the first issue that the suit was contentious and not in respect of the question of the construction of an enactment, instrument, deed, will, contract or other document, but on the issue of negligence on which there was conflicting affidavit evidence, therefore the court below should have ordered for pleadings for the suit to be heard on the general cause list and, having failed to do so, the decision of the court below should be set aside following the cases of National Bank of Nigeria Ltd & Anor v. Alakija (1978) 2 LRN 78, Doherty v. Doherty (1964) NMLR 144, University of Lagos v. Aigoro (1991) 3 NWLR (pt.179) 3676, Anatogu v. Anatogu (1997) 9 (full citation not supplied), Oloyo v. Alegbe (1983) 2 SCNLR 35 @ 67, Nigerian Breweries Plc v. Lagos State Internal Revenue Board (2002) 5 NWLR (pt.759) (pagination not supplied), Mudashiru v. Persons unknown (2006) 8 NWLR (pt.982) 267 @ 279, Introduction to civil procedure (second edition) pages 132 to 134 by Ernest Ojukwu and Chide Nelson Ojukwu, and Order 2 rules 6 and 7 of the Rules of the court below.
It was finally argued on the first issue that the question of the agency relationship between the appellants and the 2nd to 3rd respondents was not raised in the originating summons, therefore the court below was wrong when it raised the issue suo-motu contrary to the decisions in the cases of Dejonwo v. Dejonwo (2000) 3 WRN 74, Shoboyede v. M. L. H. (1974) 9 NLCC 264; and that, the 1st respondent did not contest appellants, submission that the disputed issue of negligence in the suit was better dealt with on the general cause list where pleadings would be ordered and evidence taken in the suit, consequently, 1st respondent should be taken to have conceded the submission vide Ekeagwulu v. Nigerian Army (2010) All FWLR (pt.531) 1442 @ 1454 and that the appeal be allowed on the impropriety of commencing the suit under the originating summons procedure vide peter v. Jackson (2001) 49 WRN 118.
Arguments on the second issue for determination were to the effect that the court below was wrong to base its decision on agency relationship between the appellants and the 2nd to 3rd respondents when the issue was not placed before it and, the court below had, also, disallowed appellants, further written address on the issue which the appellant filed on the request of the court below, demonstrating inter-alia trial by paragraph 1 (e) of Annexures WAEC “A” and “8” attached to the further written address, the 2nd appellant took no responsibility for any oversight or default made by principals of schools or their representatives, which the court below held to be an unpleaded special defence without hearing arguments on it from the appellants, confirming the suit was contentious and was not to be decided on originating summons. The cases of Nwosu v. Udeaja (1990) 1 NMLR (pt.125) 188, Talba v. Talba (2010) All FWLR (pt.522) 1780 @ 1803, Odiase & Anor v. Agha & ors (1972) 1 All NLR (pt.1) 170, Oje v. Babalola (1991) 22 NSCC (pt.1) 550, were cited in support of the above submission.
Appellants submitted on the second issue that contrary to the holding of the court below that the ‘special defence’ in Annexures WAEC “A” and “B” was not pleaded, paragraphs 9 and 10 of the appellants’ counter affidavit contained the ‘special defence’ which was fleshed with Annexures WAEC “A” and “B” and should not have been shut out by the court below on the premise that it was not pleaded, therefore the court should rectify the wrong holding by looking at Annoxures WAEC “A” and “B” to arrive at the conclusion that the appellants were not accountable for the negligence of the 2nd to 3rd respondents in placing the passport photograph of another candidate against the name of the 1st respondent, vide Nigerian Arab Bank v. Shuaib (1991) 4 NWLR (pt.186) 450, Elias v. Disu (1962) ANLR (pt.1) 215 and sections 15 and 26 of the Court of Appeal Act, 2004.
The appellants submitted further on the second issue that the further address with Annexures WAEC “A” and “B” accompanying it did not constitute’ special defence’ within the con of Order 27 rule 4 of the Rules of the court below and the case of Katsina Local Authority v. Makudawa (1971) 7 NSCC 119 and were on matters already known to the respondents who did not dispute same in their respective written addresses; nor were the respondents taken by surprise on them to call in aid Order 27 rule 4 (1) of the Rules of the below court, especially as the respective cases of the parties in the court below brought out the issue of whether or not the appellants were responsible for the negligence of the 2nd to 3rd respondents, upon which the defence of the appellants that they were not responsible for the negligent act of the 2nd to 3rd respondents affixing another candidate’s passport photograph to the name of the 1st respondent can be inferred vide the cases of Pascutto v. Adecentro (Nig) Ltd (1997) 11 NWLR (pt.529) 467, Onamade v. ACB Ltd (1997) 1 NWLR (pt.480) 12s and Attah V. Ezeanoh (2000) 11 NWLR (pt.678) 363 @ 383, consequently the 2nd to 3rd respondents who were not authorised to do the said wrongful act by the appellants cannot be agents of the appellants within the meaning of “agency” as held in the case of Iyere v. Bendel Feed and Flour Mill Ltd (2009) All FWLR (pt.453) 1217 @ 1235 to 1236, and the English case of Jones v. Manchester Corporation (1952) 2 QB 852 referred to in Halsbury’s Laws of England Vol 45 (2) (4th edition) Paragraph 817 @ pages 1235 to 1236.
It was also added on the second issue that, with due diligence and care, the 2nd respondent could not have negligently affixed the passport picture of another candidate to the 1st respondent’s name and, having not shown the due diligence and skill, the appellants cannot be held answerable for their negligence vide Omotayo v. Ojikutu (1961) All NLR 901; nor was the said negligent act shown to have been done within the scope or the control of the appellants and/ or authorised by the appellants as to make them liable for the said negligent act vide Mutual Aids Society v. Akerele (1965) 4 NSCC 273 @ 276 to 277 and Inlaks v. Okonkwo (1970) NCLR 369 @ 373; that at best the relationship between the appellants and the 2nd to 3rd respondents was that of principal and independent contractor respectively vide A.C.B Ltd v. Apugo (1995) 6 NWLR (pt.399) 65 @ 83, Northern Assurance Co. Ltd v. Idugboe (1966) 4 NSCC 78, Olufosoye v. Fakorede (1993) 1 NWLR (pt. 272) 747; that the errors committed by the 2nd to 3rd respondents cannot be visited on the appellants vide N.T.M.B. v. Noridex Trust Ltd (1998) 13 NWLR (pt.582) 404 @ 423, First Bank v. pan Bisbilder (1990) 2 NWLR (pt. 734) 647, Universal Vulcanizing Nig Ltd V. D.U.T.T.C (1993) 23 NSCC (pt.111) 508 @ 579; and that the Court should intervene, as the court below introduced the issue of agency relationship between the appellants and the 2nd to 3rd respondents suo motu when same was not canvassed before it vide Bayol v. Akemba (2001) 2 WRN 109, Adeleke V. Iyanda (2001) 13 NWLR (pt.729) @ 20, Onibudo V. Akibu (1982) 13 NSCC 199.
Appellants contended finally on the second issue that the 1st respondent suffered no ‘damages’ or damage as acknowledged by the court below in its holding that 1st respondent only stood the risk of suffering damages, therefore liability for negligence having not been established, the court below was wrong to find the appellants liable in negligence vide Iyere V. Bendel Feed and Flour Mill Ltd (2009) All FWLR (pt.413) 1217 @ 1244 and Nigerian Low of Torts (2no edition) by Gilbert Kodilinye @ page 38, therefore the judgment should be set aside vide Mba V. Agu (1999) 12 NWLR (pt.629) 1 and the court should re-evaluate the evidence under section 16 of the Court of Appeal Act (supra) read with the case of Akintola V. Balogun (2000)1 NWLR (pt.642) 532.
The 1st respondent’s brief of argument dated and filed on 05/05/2011, was settled by Mr Gegele, learned director in the office of public Defender, Kwara State. It distilled four issues for determination thus:
(1) “Whether the trial court was right to have assumed jurisdiction over the suit (Grounds 1, 2, and 3.)
(2) Whether parties were given fair hearing on the issue raised by trial court. (Ground 4).
(3) Whether any weight at all should be attached to exhibit WAEC “A” and “B” by the trial court and whether the weight attached thereto by the trial court occasioned any miscarriage of justice (Ground 5).
(4) Whether the totality of evidence put on imaginary scale support the judgment of the trial court given in favour of the 1st respondent. (Grounds 6 and 7).”
The above issues were argued consecutively. It was submitted on issue 1 that the claim of the respondent was in the tort of negligence and for an order mandating the appellants and the 2nd to 3rd respondents to issue another certificate to the 1st respondent reflecting 1st respondent’s correct passport photograph affixed to it, which brought the claim within the jurisdiction of the court below (state High court), not the Federal High court under section 251, (1) (r) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, (1999 Constitution): more so by sections 1 (1), 14 (1) and 24 of the West African Examinations Council Act (WAEC Act) (supra), the appellants are not an agency of Federal Government, therefore the court below was right to adjudicate on the suit vide Oju V. Abdulraheem (2009) 6 MJSC 1@ 31, Federal Mortgage Bank of Nigeria V. Lagos State Government (2010) 5 NWLR (pt.1188) 570 @ 592-593 and 574, Federal Mortgage Bank of Nigeria V. Olloh (2009) NWLR (pt.773) 475 @ 487; and that the appellants not being an agency of the Federal Government, the Public Officers (protection) Act (supra) did not apply to them, especially as the damage in the suit was a continuing injury as defined by section 2 (a) of the said Act vide the cases of Francis Ofili V. Civil Service Commission (2008) 2 NWLR (pt.1071) 238 @ 254-255 and the Interpretation Act (CAP.12) Laws of the Federation of Nigeria, 2004.
The 1st respondent’s brief went on to contend that the claim before the court below was for the determination of a question of construction arising under a written instrument, the west African senior school certificate in Exhibit OPD3, issued by the appellants to the 1st respondent’, inviting the court below to make a declaration of the right of the 1st respondent to have his certificate issued to him in correct form, with all the parties in agreement on the core issues that 1st respondent had sat for the examination and was entitled to the certificate claimed after duly passing the examination, showing the suit was not contentious and was rightly instituted under order 2 rule 5 of the Rules of the court below vide Inakoju V. Adeleke (2007) 2 MJSC 1 @ 45; that even if the action was instituted under a wrong law, there was no miscarriage of justice and same should be countenanced vide Falobi V. Falobi (1976) 9-10 SC 1 @ 13-14.
Issue 2 contended that, although the court below raised the issue of agency relationship between the appellants and 2nd to 3rd respondents suo motu, it gave the parties the opportunity to address it on the issue in line with the decision in the cases of Shasi V. Smith (2009) 12 MJSC (pt.11) 150 @ 167 and Iron V. Okimba (1998) 2 SCNJ 1; and the parties indeed filed and adopted their respective written addresses on the issue before the suit was adjourned for judgment.
Issue 3 contended that Annexures WAEC “A” and “B” were introduced by appellants in their learned counsel’s further written address, not by affidavit evidence, and such written address cannot constitute evidence vide Magnusson V. Koiki (1993) 12 SCNJ 114 @ 124-125 and the court below was right to ignore them, especially as they were belatedly brought into the case and amounted to re-opening the case to the surprise of the 1st respondent and should not be allowed to stand.
It was contended on issue 4 that the court below adequately evaluated the affidavit evidence before it and ascribed probative value to it in arriving at the conclusion the 1st respondent was entitled to judgment on the reliefs sought and the said decision should not be disturbed vide Ndulue V. Orjiakor (2001) 14 NWLR (pt.734) 274 and Ajibutu V. Ajayi (2004) 11 NWLR (pt.885) 458.
Mr Oniye, learned principal state counsel, prepared the 2nd to 3rd respondents’ brief of argument dated 10/05/2011, but filed on 11/05/2011. It conceived three issues for determination in this vein:
“(1) Whether the trial High Court lacks jurisdiction to entertain the 1st respondent’s suit against the appellants on the grounds that:-
(i) the appellants are agents/agency of the Federal Government (Distilled from ground 1 of the Notice of Appeal dated and filed on 18/06/2010 and ground of the notice of appeal dated 05/11/2010 and filed on 09/11/2010).
(ii) the suit is statute barred under the Public Officers protection Act (Distilled from ground 2 of the Notice of Appeal dated 05/11/2010 and filed on 09/11/2010).
(iii) the suit ought not to have been commenced by originating summons. (Distilled from ground 3 of the Notice of Appeal dated 05/11/2010 and filed on 09/11/2010).
(2) Whether the trial court was right in the resolution of the question raised suo motu by it, to which all the parties submitted further addresses in respect thereof and if so, whether the trial court was right in the manner Annexure WAEC “A” And “B” were treated (premised on grounds 4 and 5 of the Notice of Appeal dated 05/11/2010 and filed 09/11/2010).
(3) whether the trial court was right when it held that the appellants and the 2nd and 3rd respondents were jointly negligent in placing another candidate’s photograph on the 1st respondent’s WAEC certificate. Formulated from grounds 6 and 7 of the Notice of Appeal dated 05/11/2010 and filed 09/11/2010.”
Arguments on issue 1 stressed that the jurisdiction of a court is determined by the originating process filed by the claimant vide Madukolu V. Nkemditim (1962) 2 SCNLR 341, Akegbejo & Ors V. Ataga & ors (1998) 1 NWLR (pt.534) 459 @ 569 and Governor of Kwara State v. Lafiagi (2005) 5 NWLR (pt.917) 139 @ 151, which the court below properly followed when it assumed jurisdiction over the suit of the 1st respondent for the negligent act of the appellants and the 2nd to 3rd respondents of affixing another candidate’s photograph to the 1st respondent’s certificate issued by the appellants and, for an order mandating the appellants to issue the correct certificate to the 1st respondent, which involved an interest arising from a written instrument, Exhibit OPD 2, cognisable by the originating summons procedure under Order 2 rules 5 and 5 of the Rules of the court below, as the crux of the dispute was not contentious, or was not likely to be contentious vide Inajoku V. Adeleke (2007) All FWLR (pt.353) 3 and Dapianlong V. Dariye (No.2) (2007) All FWLR (pt.373) 81, more so the appellants are not an agency of the Federal Government within the con of sections 1 (1), 2 and 24 of the West African Examinations Council Act (supra) read with the cases of Federal Mortgage Bank of Nigeria V. Uwadiale (2004) 10 NWLR (pt.882) 626, Federal Mortgage Bank of Nigeria V. Lagos State Government (2010) 5 NWLR (pt.1188) 570 and Federal Mortgage Bank of Nigeria V. Olloh (2002) NWLR (pt.773) 475 @ 487 as to have brought the suit within the exclusive jurisdiction of the Federal High Court under section 251(1) (r) of the Constitution of Federal Republic of Nigeria,1999, as amended (1999 Constitution) read with the case of University of Abuja V. Ologe (1994) 4 NWLR (Pt.445) 706.
Arguments on issue 1 added that the appellants are not public officers within the meaning of the Interpretation Act (CAP, 123) Laws of the Federation 2004, read with section 318 of the 1999 Constitution, as amended, and the cases of Fajimolu V. University of Ilorin (2007) All FWLR (pt.350) 1361, Ofili V. Civil Service Commission (2008) 2 NWLR (pt.1071) 238 @ 254, and Eze V. Chukwu (Supra) @ 73-74 on the attributes of a public officer which are absent in the matter under consideration, distinguishing the appeal from the cases of Ibrahim v. Judicial service commission (supra), Obiefuna V. Okoye (supra), Egbe v. Adefarasin (supra) and University of Ilorin V. Adeniran (supra) cited in the appellants, brief of argument; and that the injury complained of in the suit was at all material times extant or continuing, ruling out the defence of the public officers (protection) Act (supra) vide the proviso to section 2 (a) of the public officers (Protection) Act (supra) and that, even if the suit was wrongly commenced, order 4 rules (1) and (3) of the Rules of the court below saved it.
It was submitted on issue 2 that the question of the agency relationship between the appellants and the 2nd to 3rd respondents raised suo motu by the court below was, upon the order of the court below, canvassed on the further written addresses filed by the parties before judgment was delivered in the action and; that the said legal relationship was already in the affidavit evidence before the court below, consequently the parties were given adequate opportunity to address the court below on the issue it raised suo motu and the parties utilised the opportunity before judgment was delivered in the case vide Adegoke v. Adibi (1992) 5 NWLR (pt. 242) 410 @ 420 and Oje V. Bobalola (1991) 5 NWLR (pt.242) 410 @ 420, also Annexures WAEC “A” and “B” were unpleaded documents arising from the written address of the appellants and would not constitute evidence upon which the court below could have acted vide Nigeria Arab Bank Ltd V. Femi Kane Ltd (1995) 4 NWLR (pt.387) 100 @ 106, especially as it was belatedly raised at the stage the case was adjourned for judgment contrary to the rule of fair hearing vide Raman V. Jinadu (1986) 5 NWLR (pt.37) 100 and was in respect of “candidates examination paper” as shown in Annexure WAEC “B”, not certificate, therefore the defence was not available to the appellants.
Issue 3 canvassed that on the face of the certificate issued by the appellants in Exhibit OPD 2 to the 1st respondent with line 7 thereof stating:-
“having been in attendance at the following recognised School GOVERNMENT SECONDARY SCHOOL MALETE sat the West African Senior School Certificate Examination”.
a fiduciary relationship of implied agency between the “accredited/recognised” 2nd respondent and the appellants was established vide Bayero V. Mainasara and Sons Ltd (2007) All FWLR (pt.359) 1285 @ 317, Iyere V. Bendel Feed and Flour Mill Ltd (supra) on implied agency/authority relationship, and Okoye V. Okonkwo (2006) All FWLR (pt.332) 1526 @ 1541, Godwin V. CAC (198) (sic) 14 NWLR (pt.584) 162 and union Bank V. Agogu (1990) 1 NWLR (pt.328) 343 on vicarious liability of the appellants.
It was submitted finally on issue 3 that the statutory duty of issuing replacement certificate to the 1st respondent is on the appellants, not the 2nd and 3rd respondents, and, it stands to reason that to shift the responsibility to the 2nd to 3rd respondents who lack the statutory powers to issue replacement certificate would amount to giving an unenforceable order by the court contrary to the cases of Ekpenyong V. Nyong (1975) 2 SC 71 and Woluchem V. Wokama (1974)3 SC 153.
The appellants, reply brief to the 1st respondent’s brief dated and filed on 31/05/2011, reiterated that the issue of agency relationship between the appellants and the 2nd to 3rd respondents was not raised by the 1st, respondent in his suit, nor were issues joined on it in the affidavit evidence of the parties, and that, the agency relationship which was not specially pleaded should not have been used by the court below to ground the liability of the appellants vide the Law of Evidence in Nigeria: substantive and procedure by Mr S.T Hon at page 533 and that, the court below was wrong to suo motu import the agency relationship in question in the suit without evidence in support vide African Continental Seaways Ltd V. Nigerian Dredging Roads and General Works Ltd (1977) NSCC 323 @ 331-333, Bayol V. Akemba (supra), Adeleke V. Iyanda (2001) 13 NWLR (pt 729) 20 and Onibudo V. Akibu (1982) 73 NSCC 199.
The appellants, reply brief to the 2nd and 3rd respondents’ brief of argument also dated and filed on 31/05/2011, repeated verbatim the arguments in the appellants’ reply brief to the 1st respondent’s brief (supra), the summary (supra) of which I adopt for the appellants’ reply brief to the 2nd and 3rd respondents’ brief of argument.
In my respectful opinion, the issues for determination formulated by Mr. Oniye for the 2nd to 3rd respondents encompass the issues framed by the appellants and the 1st respondent and same shall guide the determination of the appeal, starting with the first issue (supra).
In order to determine whether the appellants are an agency of the Federal Government of Nigeria within the con of section 251(1) (r) of the 1999 constitution, as amended, it is necessary to look at the entire enactment establishing the 2nd appellant, the west African Examinations council. It was created by the West African Examinations Council Act (CAP.W4) Laws of the Federation or Nigeria, 2004 (the WAEC Act). By sections 14 (1)(a) and 24 of the WAEC Act, the sovereign nations of the Gambia, Ghana, Nigeria and Sierra Leone are member states of the 2nd appellant, showing the Federal Government of Nigeria does not own the 2nd appellant as its organ. Its operation in Nigeria as an autonomous body is guaranteed or recognised by section 1(1) and (2) of the WAEC Act as follows:
“(1) The institution known as the West African Examinations Council shall continue to be in existence in Nigeria and shall, in accordance with the provisions of this Act, continue to discharge its responsibility for holding such examinations in Nigeria as may be necessary in the public interest in the same manner as (pursuant to the laws respectively in force in the other territories of west Africa as defined in section 24 of this Act) it may hold examinations in such territories:
Provided that the President may, after consultation with the council, issue directives to the council as to what examinations are in the public interest in Nigeria and the council shall in Nigeria comply with such directives.
(2) The Council shall be a body corporate with perpetual succession and a common seal.” (My emphasis).
The proviso to section 1(1) of the WAEC Act (supra) appears to permit the president of Nigeria, after consultation with the 2nd appellant, to issue directives to the 2nd appellant on the type of examinations to conduct in Nigeria for the public interest I think the proviso gives the president of Nigeria limited powers confined only to his having prior discussion with the 2nd appellant on the nature of examinations to hold in Nigeria in line with the non-justiciable section 18 of the 1999 constitution, as amended, without making the 2nd appellant accountable to the Federal Government as its agency or organ. It is logical to conclude that by having prior consultation with the 2nd appellant under section 1(1) of the WAEC Act, the 2nd appellant cannot be said to be an appendage of the Federal Government, as one is not required or expected to consult with another under him before taking a decision on something.
The function of the 2nd appellant in section 2 of the WAEC Act, its administrative and finance apparatus in section 3 thereof, the composition and conditions of service of its staff in sections 4 and 5 thereof, ownership of its offices and premises under section 7 thereof, the power to accept gifts etc under section 9 thereof, the power to borrow money under section 10 thereof and the power to maintain its fund under section 11 thereof are exclusively vested in the 2nd appellant, not in the control or supervision of the Federal Government.
Section 12 and 13 of the WAEC Act further enhance the autonomy of the 2nd appellant as follows:
“12: Expenditure of the Council:-
(1) The council may from time to time apply the proceeds of the fund established pursuant to section 11 of this Act:-
(a) to the cost of administration of council;
(b) for reimbursing members of the Council or of any committee set up by the Council for such expenses as the Council thinks fit;
(c) to the payment of salaries, fees or other remuneration or allowances and pensions, superannuation allowances and gratuities payable to the officers and servants of the Council, so however that no payment of any kind under this paragraph (except such as may be expressly authorized by the Council) shall be made in Nigeria to any person who is in receipt of emolument from the Federal Government or State:
(d) to the repayment of any money borrowed under section 10 or of any interest payable thereon;
(e) for the maintenance of any property acquired by or vested in the Council; and
(f) for and in connection with all or any of the functions of the Council under this Act or any other written law.
(2) The Council may from time to time invest money standing to its credit in such manner and to such extent as the Council may think necessary or expedient,
13: Accounts:-
(1) The Council shall keep proper accounts and other records relating thereto and shall cause to be prepared not later than 30 tune of each year a statement of accounts relating to the last preceding financial Year.
(2) The accounts of the Council shall be audited by auditors to be appointed by the Council.
(3) As soon as the accounts of the Council have been audited, the Council shall cause the statement of accounts together with the auditors, report thereon to be published in such manner as it thinks fit.” (my emphasis).
Section 12(1) (c) (supra) which excludes payment of salaries, fees or other remuneration or allowances and pensions, superannuation allowances and gratuities to staff of the 2nd appellant from the Federal or state Government coffers and the auditing of the accounts of the 2nd appellant by auditors appointed by the 2nd appellant under section 13 (2) of the WAEC Act (supra), not by the Auditor-General of the Federation or of a state also confirm the detached status of the 2nd appellant, indicating it is not an organ or agency of the Federal Government.
Even the application of the pensions Act to the staff of the 2nd appellant under section 6 of the WAEC Act does not transform the 2nd appellant into an organ of the Federal Government when it used the words “as if” the office were in the Public service of the Federation within the meaning of the constitution of the Federal Republic of Nigeria, 1999. The underlined phrase “as if” not “it is” clearly, in my opinion, demarcates the 2nd appellant from the Public service of the Federation. And to make the matter more explicit, the 2nd appellant’s power over the application of the pensions Act is, by section 6 (3) of the WAEC Act (supra), reposed in the 2nd appellant, not the Federal Government in these words:
“For the purposes of the application of the pensions Act in accordance with sub-section (2) of this section, any power exercisable thereunder by a Minister or other authority of the Government of the Federation, other than the power to make regulations under section 23 thereof is hereby vested in and shall be exercisable by the council and not by any other person or authority”. (my emphasis).
To further demonstrate the independence of the 2nd appellant, its power of compulsory acquisition of land and payment of compensation therefore with the assistance of the Federal Government under section 8 of the WAEC Act preserves the autonomy of the 2nd appellant from the Federal Government in sub-section (3) thereof as follows:
“the compensation, if any, payable for the acquisition of any land under this section or payable under the Land Use Act for the revocation of any rights relating is the land, as the case may be, shall in the first instance he paid by the Federal Government, but the Council shall refund to that Government any compensation so paid and all incidental expenses incurred by that Government.” (my emphasis).
Also, to prove the international existence of the 2nd appellant as a west African body comprising the Gambia, Ghana, Nigeria and Sierra-Leone, in the West Africa sub-region, paragraph 1 (1) of the schedule to the WAEC Act stipulates the international composition of the governing body thus:
“The council shall consist of the following members, that is-
(a) two persons appointed by the Government of the Gambia;
(b) four persons appointed by the Government of Ghana;
(c) four persons appointed by the Government of the Federation of Nigeria;
(d) three persons appointed by the Government of Sierra Leone;
(e) one person appointed by the Senate or equivalent academic body of each university or university college in the countries served by the Council;
(f) two persons appointed by the Chancellors of the Universities of Cambridge and London, each chancellor nominating one person;
(g) not more than seventeen persons to be elected by the National committees in accordance with the provisions of this Act, the exact number from each National committee to be determined by the Council; Provided that not more than nine members of the council shall be appointed by any one National Committee.”
The above statutory provisions have to be read in harmony following the canon of statutory interpretation enjoining community construction of related sections of an enactment for the purpose of discovering and implementing the intention of the Legislature or draftsman from the clear words used in the enactment. See The Registered Trustees of National Association of community Health practitioners of Nigeria & ors V. Medical and Health Workers Union of Nigeria & Ors (2008) 1 S.C.N.J. 348, Inakoju & ors V. Adeleke (2007) 1 S.C.N.J. 1, Amaechi V. Independent National Electoral commission & ors (2008) 1 S.C.N.J. 1.
Taking a cue from the above interlocking statutory provisions establishing the nature, component and structure on the 2nd appellant, it appears certain, in my modest view, that the Federal Government merely provided the legal frame-work in the WAEC ACT to give the 2nd appellant statutory existence as an independent legal entity to facilitate the execution of its educational objectives of conducting public examinations in Nigeria under the watch, not control, of the Federal Government; as distinct from its ownership by the Federal Government as its ministry, department, agency or arm/organ.
The 2nd appellant and the 1st appellant who exists under the 2nd appellant are, therefore, not an agency or part of Federal Government structure/body; nor do the appellants have any connection with the affairs and/or the running of the Federal Government, as rightly submitted by the respondents who placed reliance on the analogous cases of F.M.B.N V. Olloh (supra) and F.M.B.N V. Lagos State Government (supra) and Cotecna Int’l Ltd V. Church gate (Nig) and Anor (2011) 18 WRN 1 @ 23. The objection to the jurisdiction of the court below over the appellants under section 251 (1) (r) of the 1999 constitution, as amended, was accordingly not well taken and was rightly overruled or dismissed by the court below, in my modest view.
In connection with the applicability of the Public Officers (protection) Act, 2004, (the Act), the precursor of the same Act contained in the 1990 Revised Laws of the Federation, its title or name implies the protection of public officers or public bodies, whether statutory or incorporated or unincorporated acting in the execution of public duties under the Federal Government. See by analogy Ibegbu v. Lagos city Council Caretaker Committee & Anor (1974) N.S.C.C 124.
As earlier stated, Nigeria as a sovereign nation co-partners the other West African sovereign nations of the Gambia, Ghana and Sierra-Leone as facilitators in the pursuit of the 2nd appellant’s objectives of conducting public examinations in the said member countries. The definition of “public officer” in section 18 of the Interpretation Act (CAP 123) laws of the Federation, 2004, refers in turn to the 1999 Constitution, as amended, thus:
“public officer” means a member of the Public Service of the Federation within the meaning of the constitution of the Federal Republic of Nigeria 1999 or the Public service of a State.

By section 318 of the 1999 Constitution, as amended,” Public service of the Federation” is defined thus:
“Public Service” of the Federation means the service of the Federation in any capacity in respect of the Government of the Federation and includes service as:-
a) Clerk or staff of the National Assembly or of each house of National Assembly;
(b) Member of staff of the Supreme Court, the Court of Appeal, the Federal High court, the High court of Federal capital Territory, Abuja, the Sharia court of Appeal of the Federal capital Territory, Abuja, the customary court of Appeal of the Federal capital Territory Abuja or other courts established for the Federation by this constitution and by an Act of Notional Assembly;
(c) Member or staff of any commission or authority established for the Federation by this constitution or by an Act of the Notional Assembly;
(d) Staff of any area council;
(e) Staff of any Statutory Corporation established by an Act of National Assembly;
(f) staff of any educational institution established or financed principally by the Government of the Federation;
(g) staff of any Company or Enterprise the Government of the Federation or its Agency owns controlling shares or interest; and
(h) Member or officers of the Armed Forces of the Federation or the Nigeria Police Force or other Government security Agency established by law.” (my emphasis).
It can be seen from the above definition of “Public service of the Federation” that the appellants do not belong to any of the persons or bodies stipulated therein for the purpose of the defence under the Public officers (protection) Act, within the meaning of section 18 of the Interpretation Act (supra), as they do not serve in any capacity in respect of the Government of the Federation; nor are they shown to be established, financed and controlled by the Federal Government. The court below was, accordingly, right, in my modest view, to exclude the appellants from the protective cover of the public officers (Protection) Act (supra) as persons not contemplated by the said Act. I would agree with the respondents that the action was not statute-barred under the Public Officers (Protection) Act (supra).
The appellants submitted aright, in my modest opinion that the issue of implied agency relationship of master/servant between the appellants and the 2nd to 3rd respondents respectively was not directly raised by the parties. The court below raised the issue after it had adjourned the suit for judgment. It ordered the parties to file further written addresses. The parties through their respective learned counsel filed their respective written addresses. The parties through their respective learned counsel, also, adopted their respective further written addresses on the issue raised suo motu by the court below. The appellants were, therefore, not only given the opportunity to be heard on the fresh issue of agency relationship between the 2nd to 3rd respondents and the appellants, they utilised the opportunity by filing their further address with Annexures WAEC “A” and “B”. The fact that the court below gave the parties the opportunity to react to or to address it on the issue of agency relationship between the 2nd to 3rd respondents and the appellants satisfied the dictates of fair hearing, in my view- See Narva Co. V. Monster (1982) 12 C.A. 161 at 174, Otu v. ACB (2008) 1 SCNJ 189 at 202.
The documents in Annexures WAEC “A” and “B” were not attached to a sworn affidavit. They were attached to the further written address of the appellants. In my modest opinion, Annexures WAEC “A” and “B” did not constitute evidence upon which the court below could have acted to arrive at a decision in the case. In the case of South Eastern state News Paper Corporation & Anor V. Anwara (1975) N.S.C.C. 388 at 391 and 392, for instance, the Supreme Court held inter-alia that:
“In the present case, an affidavit was filed in support of the motion. Some documents were referred to but were not exhibited with the said affidavit….
In the case in hand, however, the affidavit in support of the application for joinder did not refer to the particular document which the appellant sought to tender as an exhibit at the hearing. Vague references were only made to” documents relating to the action in paragraph 3 of the affidavit” and to “all the relevant documents” in paragraph 4 thereof. That being the case, it seems to us that the facts in Re Hinchcliffe (supra), where the relevant document was not only annexed to the affidavit but was also referred to therein as a particular exhibit is distinguishable from the present case where the letter in question was not referred to at all. Therefore, in the absence of any consent by the respondent, we do not see how the learned trial judge could have admitted the letter as on exhibit as he had done. Bearing the provisions of the applicable rules in mind, it is our view that the proper procedure for rendering the letter is by referring to it specifically in a further affidavit as an “exhibit”, of course, it may be tendered either by exhibiting it with the further affidavit or by calling a witness to testify and tender it formally in court. As none of these procedures has been followed, we are of opinion that the letter was wrongly admitted in evidence.”
See also order 13 rules 8 and 9 of the Rules of the court below which was lifted from Order 41 rule 11 (1) of the Rules of the Supreme court of England (white Book) considered in the south Eastern state Newspaper corporation V. Anwara case (supra).
In addition, the further written address of the appellants with Annexures WAEC “A” and “B” cannot be substituted for evidence, as rightly submitted by the respondents. See Nigeria Arab Bank Ltd v. Felly Keme Nigeria Limited & Anor (1995) 4 NWLR (pt.387) 100 at 111 as follows:
“Mere submission of counsel oral or documentary will not serve as substitute for evidence.”
See also Magnusson v. Koiki (supra), and Vinz Int’l (Nig) Ltd v. Morohundiya (2009) 11 NWLR (Pt.1153) 562 at 583.
So the contention by the appellants that Annexures WAEC “A” and “B” especially Annexure “B”. Raised a defence puncturing the alleged vicarious liability of the appellants arising from the admitted liability of the 2nd to 3rd respondents constituted disputed facts to ground removing the suit form the originating summons procedure to the general cause list does not, with deference, hold water.
The question whether the facts at the disposal of the court below were in conflict or were likely to be in dispute may be gauged inter-alia by the nature of the claim in the 1st respondent’s amended originating summons to wit:
“Let the above named 1st, 2nd, 3rd, and 4th defendants of west African Examination Council, Government Secondary School, Malete, Kwara State and Ministry of Education Kwara State within eight days after service of this summons on them, inclusive of the day of such service cause on appearance to be entered to this summons which is issued upon the application of the claimant for the determination of the following questions:
(1) Whether or not the defendants were negligent in placing another person’s passport on the original West African Senior School Certificate June 2007 issued to the claimant.
(2) whether or not by virtue of the Defendants negligence, the claimant is entitled to be issued another west African senior school Certificate.
PARTICUIARS
l. The claimant registered and sat for WAEC/SSCE June 2001 at Government secondary school Malete, Kwara state (3rd Defendant) under the control of the 4th Defendant.
2. The claimant upon registration for the said WAEC Examination submitted his passport photograph and was thereafter given Examination Number 424120/180.
3. when the result of the aforementioned Examination was released the claimant was issued a statement of result pending the Original Certificate from the 1st and 2nd Defendants.
4 The claimant was thereafter offered Admission at University of Ilorin Faculty of science to study Zoology in the year 2008.
5. The claimant later learnt that the original certificate was out and went to Government secondary school Malete (3rd Defendant) under the control of the 4th Defendant to collect some where he noticed that another person’s passport photograph was posted on his certificate.
6 The Claimant brought same to the notice of the 3rd and 4th  Defendants who eventually notified the 1st and 2nd defendants and requested for its correction.
7 The 1st and 2nd Defendants in reply to the letter written by the 4th Defendant insisted that since the passport photograph of one Adeoye Yinka (4241201/040) was affixed by the 3rd defendant against the name of the claimant with Exam Number 424120/180 the request to make correction cannot be granted.
8 The 3rd Defendant mixed up the passport photograph of the claimant with that of Adeoye Adeyinko whose passport was repeated twice on the school photo album.
9. The claimant is now requested by the University authority to present the original certificate for the ongoing screening exercise. The claimant therefore seeks the following reliefs.
1. A DECLARATION that the Defendants were negligent in placing another person’s passport photograph on the original West African Senior School Certificate June 2001 issued to the claimant.
2. AN ORDER mandating the defendant to issue another West African Senior Certificate to the claimant with his correct passport photograph affixed on same.
AFFIDAVIT IN SUPPORT OF AMMENDED ORIGINATING SUMMONS
I KAZEEM SAIDU ALADE, male, Adult, Nigerian citizen of University of Ilorin, Faculty of Sciences do hereby make an oath and state as follows:
1. That I am the Claimant in this case
2. That by virtue of my position, I am conversant with the facts of this case.
3. That I registered and sat for WAEC/SSCE June 2001 at the 3rd Defendant’s school under the control of the 4th Defendant.
4. That upon registration for the said Examinations in paragraph 3 above, I submitted my passport photograph and Examination Number 424120/180, was thereafter given to me.
5. That When the result of the aforementioned examinations was released, all the candidates including myself that sat for the examination were issued statement of result pending the release of the original certificate from the 1st and 2nd Defendants.
6. That I was offered admission at University of Ilorin, Faculty of sciences to study Zoology in the year 2008. A copy of the offer of provisional admission for first Degree programmes is herewith attached and marked as exhibit OPD1.
7. That upon information that the original certificate was out; I went to Government secondary school Malete, where I registered and sat for the WAEC Exams to collect same and immediately noticed that another person’s passport photograph was pasted on it instead of mine. The senior school certificate is herewith attached and marked as exhibit
8. That going by paragraph 7 above I quickly notified the 3rd Defendant under the control of the 4th Defendant who eventually notified the 1st and 2nd Defendants. A copy of the letter written by the Principal of the 3rd Defendant to WAEC is attached herewith and marked as Exhibit OPD3.
9. That the West African Examinations council in their response to Exhibit OPD3 maintained that since the passport photograph of one Adeoye Yinka (4241201/040) was affixed by the 3rd Defendant against that of mine, the request for replacement cannot be granted. A copy of the said reply by the WAEC is attached herewith and marked as Exhibit OPD4.
10. That the passport photograph of the said Adeoye Yinka was repeated on the school photo album which affected my own. A copy of the school photo album is attached herewith and marked as Exhibit OPD5.
11. That I am now in 300 Level, University of Ilorin and the school authority is requesting every student to present their original certificate for a screening exercise.
12. That the mix up of my passport photographs with that of another candidate was due to the negligence of the Defendants.
13. That I may be expelled from university of Ilorin if I am unable to produce the original certificate bearing my correct passport photograph.
14. That the defendants are in the position to provide me with another certificate.
15. That I swear to this affidavit in good faith, believing same to be true in accordance with OATH ACT 2004.”
The appellants, on their part, answered the amended originating summons in their joint counter affidavit thus:
“I MR A.O. FABORO, Male, Adult, Christian, Nigerian Citizen of West African Examination Council, Ilorin, Kwara State do hereby make an oath and state as follows that:-
1. I am the 1st Defendant in this case, and also I am the Branch controller and representative of 2nd Defendant in this case.
2 By virtue of my aforesaid position, I am conversant with the facts hereunder deposed which are within my personal knowledge, information or belief.
3. I have the consent and authority of the 2nd Defendant to depose to this counter affidavit.
4 The deposition in paragraphs 1, 2, 3, 5, and 9 of the claimant’s amended affidavit in support of originating summons are true, but the 1st and 2nd Defendants are not in a position to answer the averments in paragraphs 4,6,7,8, and 10 -15 of the claimants Affidavit.
5. The practice, was and still  is that on each paper’s day, each student would only be allowed into the examination hall/class after his photo card/ID card has been checked and cross checked with the photo album prepared by his/her school, in the instant case, by the 3rd defendant.
6. White the writing of the examination lasted the claimant did not call the attention of the representatives of the 1st and 2nd Defendants to any anomaly in respect of his passport photograph fixed on the photo album and/or the photo card/ID card with which he was being admitted into the examination venue throughout the examination days.
7. Neither the 3rd defendant nor the representatives of the 1st and 2nd Defendants (WAEC supervisor) who checked students into the examination hall/class detected irregularity any mistake in respect of the photograph of the claimant fixed on his I.D. card.
8. No any other students of 2001 set except the claimant has come to lodge complain of error in their statement of result and /or original Certificates.
9. The 1st and 2nd defendants hereby strongly contend that neither the 1st defendant nor the 2nd defendant nor any representative of the 2nd defendant took part in the alleged wrong pasting of passport on the claimant’s senior secondary school certificate. The 1st and 2nd defendants hereby rely on the letter to her from the 5th defendant dated 15th February, 2010 with reference
ESS/EAM/W/WASSCE/VOL.1/115 titled “correction of Photograph on 2001 certificate: Kazeem Saidu Alade (424120/180)” in which letter the 5th defendant stated thus “we also want to accept that it was the school that mistakenly (then) fixed Adeoye Yinka’s passport twice and did not fix Kazeem Saidu Alade of all…” The said letter is exhibited herewith as EXHTBIT WAEC ‘1’.
10. The 1st and 2nd defendants hereby aver that they are not liable in negligence in this case in view of the deposition in paragraph 9 above, and paragraph 9 of the claimant’s affidavit.
11. I have read the counter-Affidavit of the 3rd – 5th defendants sworn to on 14th April, 2010 and filed in this case and I hereby over that paragraph 5, 6, 7, 8, 9, 10, 11, 16, and 17 are true.
12. I depose to this counter affidavit in good faith, believing the content to be true an in accordance with the oaths Act.” (my emphasis).
The 2nd and 3rd respondents also filed counter affidavit as follows:
“I BAMIDELE JIMOH OLORU, Male, Adult, Muslim, Nigerian citizen of Government Secondary School, Malete, Kwara State do hereby make an oath and state as follows that:-
1. I am the current principal of Government secondary school, Malete, Kwara state sued in this case as the 3rd defendant.
2. By virtue of my aforesaid position I am conversant with the facts hereunder deposed which are within my personal knowledge, information, or belief.
3. I have the consent and authority of the 4th and 5th defendants to depose to this counter affidavit.
4. As a matter of fact, the deposition in paragraph 1, 2, 3, and 10 of the claimant’s amended affidavit in support of the originating summons
5. The registration of the claimant like all other students was done with the 1st and 2nd defendants who generated an examination number for each of the registered students.
6. Available record reveals that when the claimant was registered in 2001 a photo card/ID card containing the claimant’s passport was also issued and the claimant did not complain of any anomaly in the photo fixed thereon.
7. The practice was and still is that on each paper’s day, each student would only be allowed into the examination hall/class after his photo card/ID card has been checked and cross-checked with the prepared photo album.
8. While the writing of the examination lasted the claimant did not call the attention of the school to any anomaly in respect of his passport photograph fixed on the photo album and/or the photo card/I.D. card with which he was being admitted into the examination venue throughout the examination days.
9. Neither the 3rd defendant nor the representatives of the 1st and 2nd defendants (WAEC supervisor) who checked students into the examination hall/class detected any mistake in respect of the photograph of the claimant fixed on exhibit OPD…5.
10. To the best of my knowledge, other students who sat for the examination in 2001 along with the claimant since have collected both their statements of result and the original certificates.
11. No any other students of 2001 set except the claimant has come to lodge complain of error in their statements of result and/or original certificates.
12. The claimant delayed in coming to collect his original certificate since 2001 up till the 7th October, 2009, only to come back on 15th October, 2001 that he discovered the photograph fixed thereon is not his but that of another student by name Adeoye Yinka.
13. when the claimant drew the attention of 3rd defendant to the mistake the principal of the school took prompt actions which among others are:
I. Writing of exhibit OPD3 to the 1st defendant to lodge a complaint,
II. Asking the vice principal (Administration) of the school to accompany the claimant to 1st defendant, and
III. Reporting the mixed up to 4th defendant for swift intervention and action.
14. In furtherance of it efforts to get the error corrected, the principal of the school also issued some documents to authenticate the certificate of the claimant and to be used for purpose of the claimant’s final screening with the University of Ilorin. The documents are:-
I. A signed and stamped letter of To Whom It May Concern (exhibit OPD 9),
Il. Signed and stamped Statement of Result with the genuine photograph of the claimant pasted thereon (exhibit OPD 8), and
III. A signed and stamped 2001 WAEC computer sheet showing the claimant’s name and result. A copy is herewith attached and marked as exhibit MOJ 1.
15. I was informed by Hajia S.O Alao, Assistant Director (Exam) of the 4th defendant, during official briefing of counsel handling this case on 09/04/2010 and I verily believe her as follows:-
i. The 4th defendant took no part in the alleged wrong pasting of passport on the claimant’s WAEC Certificate.
ii. Notwithstanding the above, the 4th defendant has intervened in earnest by writing the Head office of the 2nd defendant at Lagos and response in respect thereof is patiently being awaited. A copy of the 4th defendant’s letter is attached herewith as exhibit MOJ 2.
16. I know as a fact that it only the 2nd defendant whose branch in Ilorin is the 1st defendant, that has the statutory duty of issuing senior school certificate to candidates who sat for its examination.
17. By the same token, it is only the 2nd defendant which has the prerogative of correcting detected error(s) in any such certificate issued by it or even issue a replacement.
18. As a fact, the 3rd to 5th defendants are not liable in negligence and the claimant’s delay has contributed to the negligence and the claimant’s delay has contributed to the negligence, if any.
19. I depose to this counter affidavit in good faith, believing the content to be true and in accordance with the oaths Act.”
Though ground 3 of the notice of appeal raised the issue of the contentious nature of the application brought by the 1st respondent in the court below, it did not supply particulars that an issue of negligence cannot be raised in an originating summons. For clarity, I copy it below-
“GROUND THREE
The trial court erred in law when it entertained the suit which was initiated by originating summons
PARTICULARS
1. The contentious claim of the claimant/1st respondent in the suit is not the type that could be initiated by originating summons.
2. The trial court was in error in deciding the complex and conflicting affidavits and counter-affidavits and exhibits disputing facts placed before the court in the case without oral evidence”.
The two issues for determination framed by the appellants (supra) were also not particular or specific/distinct on the issue that the tort of negligence cannot be litigated on originating summons. Accordingly, arguments to the effect that the question of negligence cannot be litigated on originating summons go to no issue and are hereby discountenanced-see Owners of M/V Gongola Hope and Anor v. Smurfit cases Nigeria Ltd. and Another (2007) 6 SCNJ 269, Attorney- General of Lagos State v. Eko Hotels Ltd. and Anor. (2006) 9 SCNJ 104, and Peter Ojoh v. Owuala Kamalu and others (2005) 12 SCNJ 236.
There is no dispute from the affidavit evidence copied above that the 1st respondent actually sat for the examination conducted by the appellants and passed the said examination and was entitled to a certificate in his name bearing his passport photograph, as his identity, affixed to the certificate. It is further not in dispute that the certificate issued to the 1st respondent by the appellants bore his name and the school he sat for the examination, 2nd respondent school.
The 2nd-3rd respondents admitted in paragraph 9 of their joint affidavit that they made the error or mistake of affixing the passport photograph of another candidate, one Adeoye Yinka, to the 1st respondent’s slot in the photo-album maintained by the 2nd respondent for examinations conducted by the appellants and that, the appellants relied on the photo album to erroneously issue the certificate to the 1st respondent bearing the passport photograph of one Adeoye Yinka instead of the 1st respondent’s passport photograph.
The appellants were, in my view, misled by the 2nd respondent in the course of the 2nd respondent’s performance of an assignment on behalf of the appellants in respect of the public examination in question conducted by the appellants in the 2nd respondent school. In offering the assistance to the appellants by maintaining a photo album for the purpose of the examination for and on behalf of appellants as their condut coupled with the admitted fact that only the appellants can rectify the mistake made by the 2nd respondent, good conscience demands that the error be rectified by the appellants: as the 1st respondent’s just entitlement to the certificate he had laboured or sweated for should not be denied him by the error committed by the 2nd respondent in the course of carrying out the task of assisting the appellants to conduct the public examination in question in it’s educational institution- see by analogy TRENCO (Nig) LTD, v A.C.B.  LTD AND ANOR (1978) N.S.C.C.220 at 299 thus:
” For this court  to allow the first defendant’s/respondent to get away with it would amount to yielding to what amounts to constructive fraud which term is clearly explained in Nocton v. Lord Ashburton (1914) A.C.932. It is a case in which this court, acting as a court of conscience, must prevent the plaintiff company from suffering pecuniary injury against the dictates of conscience. At page 952 ibid, Lord Haldane, in developing this doctrine of constructive fraud stated:
But in addition to this concurrent jurisdiction, the court of chancery exercised an exclusive jurisdiction in cases which, although classified in that court as cases of fraud, yet did not necessarily impart the element of dolus malus. The court took up itself to prevent a man from acting against the dictates of his conscience as defined by the court, and to grant injunctions in anticipation of injury, as well as relief where injury has been done”. (my emphasis).
The legalism whether agency relationship or independent contractor relationship existed between the appellants and the 2nd-3rd respondents should not becloud the factual position on the ground shown in the affidavit evidence (supra) that the appellants are merely passing the buck when the buck should stop at their table, (so to speak), as the 2nd respondent made the mistake at stake while discharging a role placed on it by the appellants, showing the nexus between them in respect of the conduct of the said public examination. Moreover, both the appellants and the 2nd-3rd respondents are agreed that only the appellants have the power to rectify or amend the mistake made by the 2nd respondent. Justice and good conscience should, therefore, override legalism and formalism, in my view.
Presently, it is as good as the 1st, respondent has no senior school certificate. He cannot use the one bearing the passport photograph of another person for any purpose. The 1st respondent will definitely suffer some disabilities from not having his own senior school certificate with his identity on it. One of the disabilities was highlighted in paragraph 13 of his affidavit thus:
“That I may be expelled from university of Ilorin if I am unable to produce the original certificate bearing my correct passport photograph.”
Granted the 1st respondent is expelled from the university as deposed to in paragraph 13 of his affidavit (supra), his educational career will be ruined which, in my view, will be a great loss that no amount of money in form of damages may atone for. Then there is this constitutional requirement that a person seeking for elective office -Legislative Houses or Governorship- must show evidence of school leaving certificate- see sections 65(1) (a), 106 (c), 177(d) of the constitution of the Federal Republic of Nigeria 1999, as amended. The 1st respondent would be denied such opportunity in the light of having no senior school leaving certificate bearing his identity. He may even lose the prospect of employment in the public sector, if the said error is I, not remedied. An injury is therefore caused to the 1st respondent in the circumstances of the case. The facts were therefore not in dispute, nor were the said facts likely to be in dispute. In my modest view, suit was properly fought on originating summons.
The loss caused the 1st respondent by depriving him of the school certificate bearing his identity can only be remedied by the appellants issuing him a new certificate bearing his identity, as rightly held by the court below. On the whole, the appeal lacks merit. I dismiss it. The judgment of the court below (Saleeman, J.) is hereby affirmed. Parties to bear their costs.

TIJJANI ABDULLAH, J.C.A.: I have had the privilege of reading in draft the erudite judgment of my learned brother J,S Ikyegh JCA, just delivered and I entirety agree that the appeal is unmeritorious and should not be allowed. I would also dismiss the appeal and abide by the order as to costs contained therein.
The law is trite, that to, determine jurisdiction, the court must always look at the subject matter of the dispute. Both parties and subject matter must co-exist to confer jurisdiction. See Federal Mortgage Bank of Nigeria v. Lagos state Government (2010) 5 NWLR (pt. 1185) 570 at page 592-593 Paras G-C, 594 paras D-H.I am of the considered view that the mere fact that the 2nd appellant is responsible for conducting senior schools certificate Examination objectives of the Federal Government as set out in section 18 of the 1999 Constitution can in no way make it to be an agent of the Federal Government thereby making the matter triable only by the Federal High Court.
I am of the further view that the appellants not being an agency of the Federal Government makes the provision of section 251 (1)(r) of the constitution in applicable to the case in hand and thus vest the trial court the necessary jurisdictional competence to entertain the matter.
For these reasons and fuller ones ably and adequately marshalled out in the lead judgment of my learned brother, I too dismiss the appeal for lacking in merit.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, Joseph .S. Ikyegh JCA. I agree entirely, with his reasoning and conclusions in the lead judgment.
Thankfully, the issue in the case was not that of fraudulent representation by the 1st Respondent at the examination as both the School (2nd Respondent) and the Ministry of Education Kwara State (3rd Respondent) have attested for him and owned up the mistake of the mix up in the fixing of the wrong passport photograph on the 1st Respondent’s Certificate. The letter by the School dated 15/2/2010, Ref, ESS/EAM/W/WASSCE /VOL.1/115, produced by the Appellants explained the entire error. Titled, “CORRECTION OF PHOTOGRAPH ON 2001 CERTIFICATE: KAZEEM SADIU ALADE (42451201180),” the letter stated, thus, inter alia:
“we also want to accept that it was the school that mistakenly (then fixed Adeoye Yinka’s passport twice and did not fix Kazeem Saidu Alade at all…”
The said letter was attached as Exhibit WASSCE 1 to paragraph 9 of 1st and 2nd Defendants’ affidavit (now Appellants) in answer to the amended originating summons. In reply to that letter by the School (2nd Respondent herein), the Appellant wrote:
“Re: CORRECTION OF PHOTOGRAPH ON CERTIFICATE: KAZEEM SAIDU ALADE (4241201/180).
Please, refer to your letter of 15th October, 2009 on the subject above. In the photo album you sent to us, your school affixed the passport photograph of Adeoye Yinka (4241201/040) against the name of Kazeem Saidu Alade (4241201/180). In view of this, your request cannot be granted. The original certificate for Kazeem Saidu Alade and your school copy of the photo album are hereby enclose….
Yours faithfully, FABORO A.O. Branch controller”
Having established that the mistake was that of the handlers of the documentation of the registration of the 1st Respondent for the examination, one would have expected the Appellants to acknowledge the short comings of the handlers as theirs, as the 3rd to 5th Defendants were actually agents of the Appellants for the purpose of the examination as rightly found by the trial court.
See the case of TRENCO NIG LTD V. ACB (1978) NSCC 220); UBN V. AGAGU (1990) 1 NWLR (Pt.328) 343.
Of course, the Defendants and who ever worked for the Appellants for the purpose of the examination, were, indeed, the extended hands of the Appellants, from the point of registration of the candidates for the Appellants’ examination, to the conduct of the exams and even to the Publishing of the results, and whatever short coming of their said extended hands, as servants or agents of the appellants, remained the responsibility of the appellants.
It therefore smacks of insensitivity, if not callousness, for Appellants to, in the course of struggling to escape blame, refuse to correct the error committed by their agents, mindless of the effect of the error on a young person, who had paid and sat for the examination and passed, but given a certificate in the portrait of another person, when he contributed nothing to the making of the error!
With this and the more elaborate reasons ably stated in the lead judgment by my learned brother Ikyegh JCA, I too hold that this Appeal is unmeritorious and should be dismissed. It is hereby dismissed.
I abide by the consequential orders in the lead Judgment.

Appearances

Dr. S.A. BELLOFor Appellant

AND

MR. H.A. GEGELE
MR. M.A. ONIYEFor Respondent