UNIVERSITY OF AGRICULTURE, MAKURDI & ORS v. SUGH
(2021)LCN/15809(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Tuesday, May 11, 2021
CA/MK/173/2020
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
1. UNIVERSITY OF AGRICULTURE, MAKURDI 2. SENATE, UNIVERSITY OF AGRICULTURE, MAKURDI 3. THE VICE CHANCELLOR, UNIVERSITY OF AGRICULTURE, MAKURDI 4. THE GOVERNING COUNCIL, UNIVERSITY OF AGRICULTURE, MAKURDI APPELANT(S)
And
JOSEPH TERVER SUGH RESPONDENT(S)
RATIO
THE LEGAL BURDEN OF PROOF IN AN ACTION FOR BREACH OR CONTRAVENTION OF HUMAN RIGHTS
The law is also settled that where a person approaches a Court of law by way of an Application for redress of a breach or contravention of any of his guaranteed rights under Chapter IV of the Constitution, as the person or party making the assertion or allegation against another person or party, the legal burden of initial proof of the assertion is placed on him by the law, unless or except the assertion was expressly or by necessary implication or presumption, admitted by the other person or party. See Sections 131, 132, 133(1) and 123 of the Evidence Act, 2011, respectively. PER AGUBE, J.C.A.
WHETHER OR NOT A UNIVERSITY HAS THE AUTHORITY TO DISCIPLINE AN ERRING STUDENT
In ENUGU STATE UNIVERSITY OF SCIENCE AND TECHNOLOGY V. OBI CHUKWUKADI OGOMEGBULAM (2020) LPELR – 50630 (CA); this Court held per Bolaji-Yusuff, JCA at page 24 paras. A-B thus:
“It is settled that the University has the authority to discipline an erring student. However, the principle of fair hearing entrenched in our Constitution must strictly be observed at all the stages of the process leading to the application of any sanction against an erring student.” PER AGUBE, J.C.A.
THE PURPOSE OF AWARDING DAMAGES IN A FUNDAMENTAL RIGHT CASE
It is settled law that in a fundamental right’s case, the award of damages naturally flows from the violation of the right alleged to have been breached. The purpose of awarding damages in a fundamental right case is to compensate a person for the injury suffered by him. Thus, once it is established that the right of a person has been violated and infringed upon, compensatory and in some cases, exemplary damages would be attracted. See FORTIS MICROFINANCE BANK PLC V. IKECHUKWU AMAEFULA & ORS (2021) LPELR – 52780 (CA). PER AGUBE, J.C.A.
THE FUNDAMENTAL PRINCIPEL OF FAIR HEARING
My Lord captured the essence of fair hearing as enshrined in the 1999 Constitution as amended, and I wish to add my voice to the position of law regarding the issue at hand. The Courts have very consistently over the years, held that the issue of fair hearing guaranteed by the Constitution is not negotiable and goes beyond being a mere personal right only. It is a fundamental right and public policy demands that every person is entitled to a fair hearing in consonance with the Rule of Law. That is one reason why in the determination of whether the principle was breached or not, the test is always objective, that is, the dispassionate opinion of a reasonable man. Any breach or absence of a fair hearing in such proceedings automatically vitiate them and render them null and void, as reiterated in cases of Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23; Ceekay Traders v. G.M. Company (1992) NWLR (Pt.222) 132; Atano v. A.G. Bendel State (1988) 2 NWLR (Pt.75) 201; General Oil v. Ogunyade (1997) 4 NWLR (Pt.501) 613; Okoroike v. Igbokwe (2000) 14 NWLR (Pt.688) 498; Isyaku v. Master (2003) 5 NWLR (Pt.814) 443; Alake v. Abalaka (2003) 6 NWLR (Pt.815) 124; Ekpeto v. Wanogho (2004) 18 NWLR (Pt.905) 394; Sokoto State Govt. v. Kamdax (2004) 9 NWLR (pt.878) 345; Newswatch v. Atta (2006) 12 NWLR (Pt.993) 144. PER NIMPAR, J.C.A.
IGNATIUS IGWE AGUBE, J.C.A. (Delivering The Leading Judgment): This Appeal emanates from the judgment of the High Court of Benue State sitting at Makurdi and delivered by the Hon. Justice W. I. Kpochi on the 27th of July, 2020 wherein the trial Judge entered judgment in favour of the Respondent, upon his Application for Enforcement of his Fundamental Rights. Dissatisfied with the decision of the lower Court, the Appellants invoked the jurisdiction of the Court by filing a Notice of Appeal on the 9th of September, 2020 containing four (4) Grounds which I reproduce without their particulars below, to wit:
“GROUND 1:
The learned trial Judge erred in law when he held on page 14, line 10 to page 15, lines 1 – 24 of his judgment as follows:
“The Senate rather capriciously decided to order the Applicant expelled from the University without giving Applicant any hearing.
The facts of this case are similar to FUTMINNA V. OLUTAYO (2018) 7 NWLR (Pt. 1617) 176 in which case the Senate of the Federal University of Technology, Minna expelled Olutayo for the same ground of examination malpractice after the Students Disciplinary Committee (SDC) absolved her of blame as in the present case but the Senate ignored the recommendation of the SDC and rather expelled Olutayo without giving her an opportunity to be heard.
In deprecating the decision of the F.U.T. Minna expelling, Olutayo, EKO, JSC proved the road map in the following words:
“The lower Court, relying on Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 and Adigun & Ors V. A.G. Oyo State & Ors (1987) 2SC 250, at 376 had correctly in my view found that the Respondent was not given fair hearing. The principles of natural justice, as held by the lower Court demand that a student accused of examination misconduct and expelled for that misconduct must be afforded an opportunity by the body statutorily empowered to make such decision, either judicially or quasi judicially to:
a) Know the allegation against him.
b) Be present when the case against him is heard and
c) Not only to state his side of the allegation but also to contradict the case against him by the cross examination of witnesses called by his accusers.”
The undisputed facts clearly established that the Senate of the University in their decision to expel the Respondent for examination misconduct acted capriciously and thereby violated the Respondent’s right to fair hearing, not only in the context of audi alteram partem (i.e. denying her of an opportunity to be heard) under Section 36(1) of the Constitution, but also in terms of the rights against double jeopardy, on the basis her plea of autre fois acquit (the exoneration or acquittal) by SDC, guaranteed by Section 36(9) of the Constitution, she had been able to show, satisfactorily that the SDC tried her and acquitted her on the same allegation of examination misconduct, the Senate of the same University ‘convicted and sentenced her for in Exhibit F”.
The features of the present case are not dissimilar with Olutayo’s case and what is good for the gander is good for the goose and this occasioned a miscarriage of justice.
GROUND 2:
The learned trial Judge erred in law in quashing the decision of the Senate of the 1st Respondent/Appellant at her 278th Regular Meeting held on Thursday, 27th October, 2016 as it affected the Applicant/Respondent whereby it overruled the decision of the Engineering College Board that Applicant/Respondent be allowed to write examination, EME 302 at the next available opportunity and setting aside the expulsion of the Applicant/Respondent from the University (1st Respondent/Appellant) by the Respondents/Appellants particularly the 2nd Respondent/Appellant.
GROUND 3:
The learned trial Judge erred in law in awarding the sum of N5,000,000.00 damages against the Respondents/Appellants jointly and severally in favour of the Applicant/Respondent.
GROUND 4:
The entire judgment is against the overwhelming weight of evidence before the Court.”
STATEMENT OF FACTS:
The Respondent as Applicant by way of Originating Motion on Notice instituted the action now on appeal against the Appellants as Respondents on the 14th of October, 2019 for the enforcement of his fundamental rights wherein he prayed the trial Court for the following reliefs:
1. ”A Declaration that the Applicant’s right to fair hearing as enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria has been violated, infringed and trampled upon by the Respondents.
2. A Declaration that the Respondents not being a Court of law cannot and are not vested with the necessary jurisdiction to try, find guilty and expel the Applicant on allegation that are essentially criminal in nature.
3. An Order by way of certiorari to remove to this Court for the purpose its being quashed, the proceedings of the 2nd Respondent held on the 27th October, 2016 as well as the expulsion dated 1st November, 2016 with Reference No. 11/19988/UE titled “COMMUNICATION FROM SENATE: EXPULSION FROM THE UNIVERSITY”, and minutes of the 278th Regular Meeting of the 2nd Respondent (Senate) held on Thursday, 27th October, 2016 as affects the Applicant herein.
4. An Order compelling the Respondents jointly and severally to pay exemplary or general damages limited in the sum of Fifty Million Naira (N50,000,000.00) only to the Applicant as compensation for violation of Applicant’s constitutionally guaranteed fundamental rights by the Respondents.”
The Respondent supported his Originating Motion with an Affidavit of 22 paragraphs deposed to by himself (pages 7-11 of the Record of Appeal) and exhibited nine sets of documents which were marked as Exhibits ‘A-1’. The summary of the Respondent’s case at the trial Court is that he was admitted to study Agriculture Engineering in 2010 in the 1st Appellant. On the 11th of March, 2016 it was alleged that he committed examination misconduct during the EME 302 (Metallurgy) examination. The Respondent made the case that on the fateful day, he was already in the venue of the examination hall revising for the course before the actual commencement of the exams. As at the time the exams were to commence, an Invigilator came into the hall and upon search, found two calculators in his possession. The invigilator sent him out of the examination hall and only allowed him in at about twenty-five minutes to the end of the exams that was allotted a two hour, thirty minutes time frame. The Invigilator then reported him to the College Board i.e., College of Engineering Examination Misconduct Committee.
The Respondent also made the case that the College Board that was constituted to deliberate over his case, did so and absolved him of blame since he was already sent out of the examination and only allowed to enter and write same when it was twenty-five minutes to the end of the examination. The College Board then decided and recommended that the Respondent should be allowed to rewrite the examination EME 302 (Metallurgy) at the next available opportunity. The decision and recommendation of the College Board was overruled by the 2nd Appellant who thereafter in its 278th Regular Meeting held on the 27th of October, 2016 approved the expulsion of the Respondent without first affording him the opportunity to explain or defend himself.
Upon being served with the Originating Application, the Appellants filed a Motion on Notice for time to be extended for them to react to the Respondent’s case. The Appellants’ Counter Affidavit of 29 paragraphs was deposed to by one Cornelius S. Uvah, a Deputy Registrar (Legal) of the 1st Appellant and annexed were two Exhibits, ‘TD1’ (Certified True Copy of the College Report on Examination Misconduct in respect of various students) and ‘TD2’ (A Certified True Copy of the Minutes and Proceedings of the Senate expelling the Applicant). The Appellants’ Counter-Affidavit which attempted to justify their action was deemed as properly filed on the 10th of February, 2020 and it is contained at pages 58-84 of the Record of Appeal.
In reaction to the Appellants’ Counter Affidavit, the Respondent on the 14th of February, 2020 filed a Further Affidavit of 5 Paragraphs with an Address on Points of Law. This can be found at pages 35 to 48 of the Record of Appeal.
The trial Court heard the parties on the 3rd of March, 2020 wherein the parties adopted their respective Written Addresses and the case was adjourned to the 30th of March, 2020 for judgment. Unfortunately, the judgment could not be delivered on the said date due to the lockdown of the Courts as a result of the COVID-19 pandemic. However, on the 13th of July, 2020 the parties re-adopted their said Written Addresses and judgment was eventually delivered on the 27th of July, 2020. Dissatisfied with the judgment, the Appellants filed this present Appeal.
The Record of Appeal was transmitted to this Court on the 9th of October, 2020. Predicated on the grounds earlier enumerated above, the Appellants have in their Brief of Argument filed on the 30th of October, 2020 and settled by Timothy Dim, Esq., distilled two (2) issues for determination to wit:
“1. Whether the leaned trial Judge was right when he held that the Respondent was not afforded fair hearing by the Appellants before expelling him from the 1st Appellant’s University on allegation of examination misconduct and in quashing or setting aside the said expulsion of the Respondent for that reason. (Covers Ground 1 and 2).
2. Whether the award of N5 Million damages against the Appellants jointly and severally in favour of the Respondent by the learned trial Judge is justified by the evidence before him. (Covers Ground 3 and 4).”
Conversely, the Respondent’s Brief settled by J.K. Adekwagh, Esq., was filed on the 2nd of December, 2020 and learned Counsel for the Respondent distilled a sole issue for determination to wit:
“Whether upon a dispassionate evaluation of the available evidence placed by parties at the trial, the learned trial Judge was right in finding the case of the Respondent proved and granted the reliefs therein?” (Distilled from Grounds 1-4)
Upon receipt of the Respondent’s Brief of Argument, the Appellants filed a Reply Brief on the 8th of December, 2020. At the hearing of the Appeal on the 3rd of March, 2021, learned Counsel to the Appellant, Timothy Dim, Esq., adopted the Appellants’ Brief of Argument as the argument of the Appellants. Likewise, the learned Counsel to the Respondent, J.K. Adekwagh, Esq., adopted the Respondent’s Brief of Argument as the argument of the Respondent in contesting the Appeal.
I shall now proceed to consider the issues as argued by the respective learned Counsel to the parties
ARGUMENT OF THE LEARNED COUNSEL TO THE APPELLANTS ON ISSUE ONE:
“WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE HELD THAT THE RESPONDENT WAS NOT AFFORDED FAIR HEARING BY THE APPELLANTS BEFORE EXPELLING HIM FROM THE 1ST APPELLANT’S UNIVERSITY ON ALLEGATION OF EXAMINATION MISCONDUCT AND IN QUASHING OR SETTING ASIDE THE SAID EXPULSION OF THE RESPONDENT FOR THAT REASON. (COVERS GROUNDS 1 AND 2)?”
The learned Counsel to the Appellants prefaced his arguments on this first issue by answering the question posed by the issue in the negative and submitted that the learned trial Judge was wrong when he held that the Respondent was not afforded fair hearing by them before expelling him from the 1st Appellant’s University on an allegation of examination misconduct thereby quashing the said expulsion of the Respondent.
The Learned Counsel contends that the affidavit evidence before the learned trial Judge reveals that the Respondent was given and/or afforded a fair hearing on the allegation of examination misconduct before the 2nd Appellant expelled him from the 1st Appellant and he has referred us to pages 62, 69, 71, 72, 73, 74, 75 and 76 of the Records of Appeal for the above contention.
The learned Counsel has argued that from the evidence before the trial Court, there is no evidence of the 2nd Appellant receiving any fresh evidence when it considered the matter of the Respondent during her 278th Regular meeting but that the 2nd Appellant only relied on Exhibit TD1 (Proceedings of the College of Engineering Examination Misconduct Committee) to expel the Respondent. He reiterated the trite position of the law that the determinant of fair hearing is not just an issue of dogma but rather dependent on the nature and circumstances surrounding a particular case and more importantly, the necessity to afford parties equal opportunities to present their case to a Court before judgment is given. He has referred us to ALECHENU V. UNIVERSITY OF JOS (2015) 1 NWLR (Pt. 1440) 333.
The learned Counsel submitted that since the Respondent appeared before the College of Engineering Examination Misconduct Committee and interacted with them, the opportunity to be heard was complied with and as such, there was no need for the Respondent’s presence when the matter was placed before the 2nd Appellant as according to the Appellants’ learned Counsel, it was more like placing the Respondent’s answer papers before his examiners which ordinarily would not warrant his presence. The learned Counsel has submitted that the procedure the Appellants adopted did not breach the Respondent’s right to fair hearing. He has placed reliance on MAGIT V. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) 12 SCNJ 203 at 221 Per Ogbuagu, JSC.
He further contends that recommendations contained in Exhibit TD1 are mere recommendations and/or advisory of which the 2nd Appellant possesses the discretion to either accept or reject and he submits that the decision of the 2nd Appellant is an administrative/academic act with the intention of ensuring a good and stable administration to the University. To this, he argued that an order of Certiorari would not be sustainable against the 2nd Appellant because, by virtue of Section 9 of the Federal Universities of Agriculture Act, Cap 163 Laws of Nigeria, 2010, the 2nd Appellant has the power to do or perform the said function. To add flesh to his contention, the learned Counsel has referred us to ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION (2007) ALL FWLR (Pt. 354) 234 at 265 Paras. C-D Per Ogbuagu JSC; MAGIT V. UNIVERSITY OF AGRICULTURE, MAKURDI (Supra) at 220.
Predicated on the above, the learned Counsel submitted that the learned trial Judge did not appreciate or understand the powers of the 2nd Appellant but in addition, usurped the powers of the 2nd Appellant as to whom it can award the degree of the 1st Appellant. He further submitted that the case of F.U.T. MINNA V. OLUTAYO (2018) 7 NWLR (Pt. 1617) 176; relied on by the trial Court was not applicable to the suit at the trial Court because, the issue of whether or not the Senate of a University is bound to accept recommendations of an Examination Misconduct Committee was never agitated in the above case the trial Court relied on. He urged that this Court should allow the Appeal on this issue as evidence abound from the records to show that the Respondent was not denied fair hearing before his expulsion.
ARGUMENT OF THE LEARNED COUNSEL TO THE APPELLANTS ON ISSUE TWO:
“WHETHER THE AWARD OF N5 MILLION DAMAGES AGAINST THE APPELLANTS JOINTLY AND SEVERALLY IN FAVOUR OF THE RESPONDENT BY THE LEARNED TRIAL JUDGE IS JUSTIFIED BY THE EVIDENCE BEFORE HIM. (COVERS GROUND 3 AND 4)?”
On this second issue, the learned Counsel to the Appellants after answering the question posed above in the negative, submitted that the award of the sum of N5 million as damages against the Appellants jointly and severally is not justified by the evidence before him. He contends that the reason the trial Court relied on to award damages in the Respondent’s favour was “to assuage the loss and trauma suffered by the Applicant due to his expulsion from the 1st Respondent in circumstances that were avoidable” whereas an award of damages must be based on pleadings and evidence. He placed reliance in INTERNATIONAL MESSENGERS (NIG.) LTD. V. ENGINEER DAVID NWACHUKWU (2004) ALL FWLR (PT. 220) 1216 at 2037 Paras D-F per Musdapher JSC (as he then was).
The learned Counsel contends that on the weight of evidence, the Respondent took prohibited materials into the examination hall with intention to cheat even though he was caught before he could carry out his evil intention, and that the learned trial Judge ought not to have awarded the sum of N5 Million as damages to assuage the alleged loss and trauma suffered by him due to his expulsion by the Appellants. Learned Counsel has also reproduced some portions of page 71 to 72 of the Record of Appeal and contends that besides the perverse nature of the award of N5 million as damages, the trial Judge shut his eyes and deliberately ignored the illegal act of the Respondent. He submitted that the award of damages is not only oppressive but excessive. To buttress his contention, learned Counsel reiterated the trite position of the law that an Appellate Court will not interfere with an award of damages by a trial Court unless: a). Where the Court acted under wrong principles of law; b). Where the Court acted in disregard of applicable principles of law; c). Where the Court acted in misapprehension of facts; d). Where the Court took into consideration irrelevant matters and disregarded relevant matters whilst considering its award; e). Where injustice will result if the Appellate Court does not act; and f). Where the amount awarded is ridiculously low or ridiculously high that it must have been erroneous estimate of damage. In support of this contention, learned Counsel relied on UBN V ODUSOTE BOOK STORES LTD. (1995) 9 NWLR (Pt 421) 558; ACB LTD V. APUGO (2001) 5 NWLR (Pt. 707) 483.
Learned counsel has submitted that assuming without conceding that the Respondent made out a case to be re-instated of his studentship of the 1st Appellant, he did not make out a case to be awarded such a humongous sum as damages and same be set aside by this Court. He has also urged that this issue be resolved in the Appellants’ favour.
ARGUMENT OF THE LEARNED COUNSEL TO THE RESPONDENT ON HIS SOLE ISSUE:
“WHETHER UPON A DISPASSIONATE EVALUATION OF THE AVAILABLE EVIDENCE PLACED BY PARTIES AT THE TRIAL, THE LEARNED TRIAL JUDGE WAS RIGHT IN FINDING THE CASE OF THE RESPONDENT PROVED AND GRANTED THE RELIEFS THEREIN? (DISTILLED FROM GROUNDS 1-4)”
The Learned Counsel to the Respondent initiated the argument of his sole issue by defending the decision of the trial Court. He posits that the trial Judge carefully evaluated the evidence as presented by the Parties, graphically analyzed same, made his findings with sound reasoning, backed by relevant authorities and reached legal conclusions on those findings, most of which the Appellants have not appealed against. He has urged that this issue be answered in the affirmative.
To buttress his contention that the Appellants did not appeal against specific findings of the trial Court, the learned Counsel has referred us to portions of the judgment contained at pages 115-116 and 117 of the Record of Appeal and he reproduced the extracts of same thus:
“To my mind, the first fruit lying low to be plucked is whether the supporting affidavit in support of this application is valid and qualifies as valid evidence to be considered, despite the failure by Applicant to have the accompanying exhibits ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘F’, ‘G’, ‘H’, & ‘I’ certified.
This is because, Mr. Dim of learned Counsel to the Respondents has profusely argued that the supporting affidavit in support of the application is inchoate in view of the non-certification of the accompanying annexure or exhibits and thus renders the said affidavit evidence as invalid evidence before the Court. This, to Mr. Dim means the Applicant has not placed any evidence before the Court in support of the application.
I have agonized over this point but I am unable to see it from the perspective pinpointed by Mr. Dim of learned Counsel.
This is because, apart from this defect in the supporting affidavit from Applicant the averment in paragraphs 18, 19, and 21 of the Counter affidavit on behalf of the Respondents which I have hereinbefore reproduced gives fillip to the Applicant’s case since it amounts to an admission against interest.”
“The offshoot of what I am saying is that, the Respondents cannot be heard to contend that the Applicant has not provided valid evidence in proof of his case since the Respondents have already admitted the very facts alleged by the Applicant. This obviates the need for more evidence since admission by the Respondents is the best for the proof of the case.”
Predicated on the above, the learned Counsel submitted that the Appellants are deemed to have accepted the correctness of the above finding since there is no Appeal on same. He has referred us to: AJIJOLA V. RASAKI & 7 ORS (2019) LPELR … at Pages 13-15 Paras. E-A; NNADIKE & ANOR. V. NWACHUKWU (2019) LPELR-48131 (SC) per Augie, JSC (Pp. 27-28 para D-A); UWAZURIKE & ANOR. V. NWACHUKWU & ANOR. (2012) LPELR-19659 (SC) (Pp. 9-10 Paras G-A); amongst other authorities to buttress the above submission.
In reaction to the Appellants’ Brief of Argument, learned Counsel has also pointed out that the attempt by the Appellants to argue that the Respondent was afforded fair hearing is self-defeating as the Appellants have also argued that the 2nd Appellant did not interface with the Respondent on the assumption that the Respondent’s earlier interface with the College of Engineering Examination Misconduct committee was sufficient.
Learned Counsel contended that contrary to the learned Counsel to the Appellant’s submission in paragraphs 4.8, 4.11 and 4.12 which address the issue that the 2nd Appellant is not bound by the recommendation of the College Board and it is within the 2nd Appellant’s power to discipline erring students for examination misconduct, he submits that the Courts have over the years enjoined Universities in such instances to always adhere to the principles of Natural Justice. To support his submission, he has relied on the cases of ESIAGA V. UNIVERSITY OF CALABAR & ORS (2004) LPRELR-1169(SC); KOBI V. USMAN DANFODIYO UNIVERSITY SOKOTO & ORS (2018) LPELR-44665 (CA) and FUTMINNA V. OLUTAYO (2018) 7 NWLR (Pt 1617) 176.
The learned Counsel further argued that the authority of MAGIT V UNIVERSITY OF AGRICULTURE MAKURDI (SUPRA) and ALECHENU V. UNIVERSITY OF JOS (SUPRA); relied on by the Appellants are distinguishable and do not apply to the instant Appeal as the Respondent is not seeking to compel the University to award a degree certificate to him as was contended in those cases. He posits that the Appellants’ contention that by Section 9 of the Federal Universities of Agriculture Act, Cap 163 LFN, 2004 an Order of Certiorari cannot lie against the 2nd Appellant did not take into cognizance Section 21(10) of the same Act which provides that “Nothing in this Subsection shall affect any power of a Court of competent jurisdiction to enforce the fundamental right of any aggrieved citizen as enshrined in the Constitution of the Federal Republic of Nigeria, 1999.” He submitted that in line with the above provision, where the complaint is predicated on lack of fair hearing, the Courts must jealously guard the Constitutional Rights of students to be heard before any onerous sanction is meted out against them and for this submission he relied on INUWA V. BAYERO KANO & ANOR (2016) LPELR-41615 (CA) Pp. 32-38 Para E; ESIAGA V UNIVERSITY OF CALABAR (SUPRA).
In reaction to paragraphs 5.2, 5.3, 5.4, 5.5, 5.6 and 5.7 of the Appellants’ Brief of Argument that the trial Court was in error to have awarded damages to the Respondent in the sum of five million naira (N5,000,000.00) and that Exhibit ‘TD1’ showed that the Respondent admitted his crime, learned Counsel submitted that it is an attempt by the Appellants to present a fresh case on Appeal and this should be discountenanced. On the argument of the award of damages, he posits that damages are usually awarded to a successful litigant or party and the Respondent having been successful at the trial Court was entitled to the damages awarded in his favour. He further posits that general damages once awarded cannot be disturbed or tempered with by the Appellate Court except in certain situations and relied on AGBU V. CSCNS (2011) 1 NWLR (Pt 1229) 544 At 561 Paras. G-H.
Learned Counsel further submitted that the Appellants failed woefully to satisfactorily discharge the burden of displaying the findings of fact wrongly made against him and by necessary implication, the evaluation of evidence and award of damages by the trial Court, should not be interfered with. He relied on OZUZU VS. EMEWU (2019) 13 NWLR (Pt 1688) 143 at 159 A-C (SC); to buttress the above submission.
Concluding his argument, the learned Counsel has urged that the Appeal be dismissed for lacking in merit and devoid of any consideration.
ARGUMENT OF THE LEARNED COUNSEL TO THE APPELLANTS ON THE APPELLANTS’ REPLY BRIEF:
In reaction to the Respondent’s Brief of Argument, the learned Counsel to the Appellants submitted on points of law that contrary to the learned Counsel to the Respondent’s argument that some findings of the Trial Court had not been appealed against, Ground 1 of the Notice of Appeal adequately challenged those findings of the trial Court. He argued that a Ground of Appeal is an allegation of error of law or fact made by an Appellant as to the defect in the Judgment appealed against and on which it is relied upon to set it aside. He referred us to ODUAH v FRN (2012) 11 NWLR (Pt. 1310) 76.
In reaction to the Respondent’s argument on fair hearing, he reiterated his argument that the decision of the Supreme Court in F.U.T. MINNA V. OLUTAYO (supra); did not decide if the Senate of a University is bound by the recommendations of the College Board but rather that, the Appellants did not file a Counter affidavit in defence of the claims against them.
In reaction to the Respondent’s learned Counsel’s argument on the award of damages, he contended that had the learned trial Judge evaluated the affidavit evidence before him, which reveal that the Respondent was actually afforded an opportunity to be heard by the College Ad-hoc Committee on Examination Misconduct, the award of damages would have been of no moment. He has therefore urged that we discountenance the arguments of the learned Counsel to the Respondent and allow the Appeal.
RESOLUTION OF ISSUES:
I have carefully gone through the Record of Appeal and read the judgment of the trial Court which was in favour of the Respondent and against the Appellants and I have also considered the brilliant arguments of Counsel to the parties as contained in their respective Briefs of Argument.
My perusal of the above processes reveals that the suit was predicated on an Application brought under the Fundamental Rights (Enforcement Procedure) Rules which is a peculiar action. This type of action is usually considered as “Sui Generis” i.e. it is a claim in a class of its own though, with closer affinity to a civil action than a criminal action. The fulcrum of the Appeal is on the Right to Fair Hearing.
In the course of determination of the Appeal, it will be expedient to formulate an independent issue for the just determination of this Appeal. My position is predicated on the authority of SHA v KWAN (2000) 8 NWLR (Pt 670) 685 @ 700; where the Supreme Court stated that – “The Court of Appeal is at liberty and possesses the jurisdiction to modify or reject all or any of the issues formulated by the parties and frame its own issues or, as pointed out above, reframe the issues by the parties if in its view, such issues will not lead to proper determination of the appeal.”
Having analyzed the arguments of the Parties in this Appeal, the sole Issue I deem fit for the just determination of this Appeal is thus:
“WHETHER FROM THE EVALUATION OF THE AFFIDAVIT EVIDENCE ADDUCED, THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE CAME TO THE CONCLUSION THAT THE APPELLANTS DID NOT AFFORD THE RESPONDENT FAIR HEARING BEFORE EXPELLING HIM THEREBY ENTITLING HIM TO DAMAGES?”
It is in my view, pertinent to commence the determination of this issue with the trite position of the law that an Applicant who approaches the Court for enforcement of his fundamental rights must prove the existence of those rights and its infringement. To actualize this position of the law, the affidavit in support of the Respondent’s Application for enforcement of his fundamental rights and the Appellants’ reaction to those averments as contained in their Counter Affidavit are the ready raw materials and I have adequately considered these ready raw materials with their annexures.
My brief understanding of the action which gave rise to the Appeal as can be gleaned from the affidavit evidence of the parties is clear and straight forward. The Respondent who was a final year student in the Department of Agricultural Engineering, College of Engineering, Federal University of Agriculture, Makurdi was on the 11th of March, 2016 alleged to have committed examination misconduct when shortly before the commencement of the exams on a carry-over course, EME 302 Metallurgy, two calculators with inscriptions on them were found in his possession by one of his Lecturers, Engr. Dr. Manasseh Joel. The Respondent was sent out of the examination hall and was only allowed to enter the hall and write the exams when it was 25 minutes to the end of the exams while the Chief Invigilator, one Engr. Dr. (Mrs.) T. K. Kaankuka made a Report (though no such Report was exhibited at the trial Court) on the examination misconduct of the Respondent to the Dean of the College of Engineering. Upon receipt of the Chief Invigilator’s Report, the Dean convened the College of Engineering Ad-Hoc Committee on Examination Misconduct to investigate and make recommendations. It is not in doubt that the Respondent appeared before and interacted with the said Committee, whereupon the Committee at the conclusion of the exercise, recommended that the Respondent be allowed to take the Course as a first attempt at the next available opportunity. This recommendation by the Committee was after being exhaustively deliberated upon by the College Board in its meeting on the 24th of August 2016, eventually accepted by the College Board. The Dean of the College then forwarded the Report (Exhibit ‘TD1’) to the 2nd Respondent who in its 278th Regular Meeting held on Thursday 27th October, 2016, overruled the recommendation of the College Board without reason and without hearing fresh evidence from the Respondent, expelled him. The minutes of the meeting is Exhibit ‘TD2’. The Respondent’s appeal to the 1st Appellant failed which necessitated the filing of the suit at the Trial Court.
The law is also settled that where a person approaches a Court of law by way of an Application for redress of a breach or contravention of any of his guaranteed rights under Chapter IV of the Constitution, as the person or party making the assertion or allegation against another person or party, the legal burden of initial proof of the assertion is placed on him by the law, unless or except the assertion was expressly or by necessary implication or presumption, admitted by the other person or party. See Sections 131, 132, 133(1) and 123 of the Evidence Act, 2011, respectively.
In my bid to discover whether the Respondent was actually denied his right to fair hearing before he was expelled, my expedition made me consider some provisions of the law which empowers the 1st Respondent to discipline students. As rightly submitted by the Appellants, Section 9 of the Federal Universities of Agriculture Act bestows the 2nd Appellant with the function of disciplining Students. However, I have observed that it is Section 21 of the Act that specifically provides for the Discipline of Students. For the purpose of this Appeal, I have taken the pains to reproduce the respective Subsections of Section 21 which I deem relevant in the determination of the Appeal. The relevant Subsections of Section 21 are: (1); (2); (4); (8) and (10).
Section 21(1) provides thus:
“Subject to the provisions of this Section, where it appears to the Vice-Chancellor that any student of the University has been guilty of misconduct, the Vice-Chancellor may, in consultation with the Senate and without prejudice to any other disciplinary power conferred on him by statute or regulations, direct that:
…..
(d) the student be expelled from the University.”
Section 21(2) provides thus:
“Where a direction is given under Subsection (1) (c) or (d) of this Section in respect of any Student, that student may, within the prescribed period and in the prescribed manner, appeal to the Council; and where such an appeal is brought, the Council shall cause an inquiry to be made in the matter as the Council considers just, confirm or set aside the direction or modify it in such manner as the Council thinks fit.”
Section 21(4) provides thus:
“The Vice-Chancellor may delegate his powers under this Section to a disciplinary committee consisting of such members of the University as he may nominate.”
Section 21(8) provides thus:
“No staff or student shall resort to a law Court without proof of having exhausted the internal avenues for settling disputes or grievances or for seeking redress.”
Section 21(10) provides thus:
“Nothing in this Subsection shall affect any power of a Court of competent jurisdiction to enforce the fundamental right of any aggrieved citizen as enshrined in the Constitution of the Federal Republic of Nigeria.”
From the above provisions of the Federal Universities of Agriculture Act, it appears that the 3rd Appellant of the 1st Appellant in consultation with the 2nd Appellant, is by virtue of Section 21(1) vested with wide powers to expel any student found guilty of misconduct while Section 21(2) affords the Respondent the opportunity to appeal against such decision of the 2nd Appellant to the 4th Appellant. Interestingly, Section 21(4) reveals that the 3rd Appellant can delegate to a disciplinary committee, his powers to discipline a student. More so, while Section 21(8) stipulates that the Respondent cannot resort to a law Court for redress without first exhausting the internal avenues for seeking redress, Section 21(10) empowers the Courts to enforce the fundamental right of any aggrieved citizen inclusive of the Respondent.
The parties are in tandem with the fact that the College Examination Misconduct Committee tried and absolved the Respondent of the allegation. This recommendation was also adopted by the College Board. This fact is well established in Exhibit ‘TD1’ which can be found at pages 65-77 of the Record of Appeal. In the course of evaluating the said exhibit, I observed at page 73 of the Record of Appeal that the Committee made its findings and the recommendation of the Committee is spelt out in paragraph 5.1.4 and it states as follows:
“Committee recommended that Sugh, Terver Joseph (11/19988/UE) be allowed to take EME 302 Metallurgy as first attempt at the next available opportunity since he wrote the examination for only 25 minutes, and should not be punished for one offence twice.”
The wordings of the recommendation are clear and explicit. More so, there is no place in the said findings of the Committee as contained in paragraph 5.1.3 page 73 of the Record of Appeal where it was reported that the Respondent was found guilty of the alleged offence. I am of the firm view that by virtue of Section 21(4) of the Act, the 3rd Respondent could have delegated his disciplinary powers to the College Board but from the recommendation so made, it seems the provision of Section 21(4) was not invoked. At this point, it is pertinent to reiterate the fact that the 3rd Respondent has wide powers to in consultation with the 2nd Appellant, to discipline the Respondent. However, let me quickly add that even though the Act has not expressly provided any procedure for the discipline of students, the Appellants are bound to take whatever disciplinary action within the confines of the law. In ENUGU STATE UNIVERSITY OF SCIENCE AND TECHNOLOGY V. OBI CHUKWUKADI OGOMEGBULAM (2020) LPELR – 50630 (CA); this Court held per Bolaji-Yusuff, JCA at page 24 paras. A-B thus:
“It is settled that the University has the authority to discipline an erring student. However, the principle of fair hearing entrenched in our Constitution must strictly be observed at all the stages of the process leading to the application of any sanction against an erring student.”
Flowing from the above, it is not in doubt that the 2nd Appellant jettisoned Exhibit ‘TD1’ which showed that the Respondent was initially afforded fair hearing by the Committee. While I agree with the Appellants that the recommendation or report (Exhibit ‘TD1’) of the Committee as adopted by the College Board is distinguishable from the decision of the 2nd Respondent, I am of the firm view, since the statutory provisions are clear as to how to deal with an erring student, the 3rd and 2nd Appellants ought to have adverted their minds to the observance of the principles of fair hearing before expelling the Respondent. In DR. TAIWO OLORUNTOBA-OJU & ORS V. PROFESSOR SHUAIBU O. ABDUL-RAHEEM & ORS (2009) LPELR – 2596 (SC) Pp. 42-64 paras. E-A, the Supreme Court held per Adekeye, JSC thus:
“In the observance of the principles of natural justice and the essential requirement of fair hearing, there is a distinction between the recommendation of an investigating panel which has no statutory powers and the action on the recommendation by statutory body with requisite statutory powers, whereas the recommendation of the panel will not affect the civil rights and obligations of the person whose act or omission is being investigated like the Appellants in this case, the acting upon such recommendation does. Hence, the implementation of the recommendation by a statutory body must comply strictly with rules of natural justice.”
Although, in this particular Appeal, the Statutory Body which is the 3rd Appellant alongside the 2nd Appellant jettisoned the recommendation of the investigating panel, I am of the firm view that, had the 2nd Appellant considered and implemented Exhibit ‘TD1’, the whole scenario would have been avoided.
It is also not in doubt that the 3rd Appellant in consultation with the 2nd Appellant never received any fresh evidence upon which it predicated its decision to expel the Respondent. While I agree in principle with the Appellants that the 3rd and 2nd Appellants can, by the law establishing them, discipline the Respondent for misconduct, I am of the firm view that where such disciplinary action is in contravention of the principles of fair hearing as enshrined in the Constitution, such disciplinary action would not stand the test of time.
Predicated on the foregoing, I find and hold that the fact that the 2nd Appellant did not hear from the Respondent after jettisoning the recommendation contained in Exhibit ‘TD1’ and went ahead to expel him was a breach of the Respondent’s right to fair hearing and as such the Respondent is entitled to the damages assessed and awarded by the trial Court. It is settled law that in a fundamental right’s case, the award of damages naturally flows from the violation of the right alleged to have been breached. The purpose of awarding damages in a fundamental right case is to compensate a person for the injury suffered by him. Thus, once it is established that the right of a person has been violated and infringed upon, compensatory and in some cases, exemplary damages would be attracted. See FORTIS MICROFINANCE BANK PLC V. IKECHUKWU AMAEFULA & ORS (2021) LPELR – 52780 (CA).
It is worthy to mention that, after thoroughly going through the well-considered judgment of the learned trial Judge, I find no fault in the lower Court’s decision especially as she had the opportunity to properly evaluate the Affidavit evidence of the parties first hand. I agree in totality with the submission of the learned Counsel to the Respondent and hold that the 2nd Appellant failed to afford the Respondent his right to fairing hearing before expelling him.
Having arrived at this conclusion, I firmly believe the journey of this Appeal has reached its final bus stop. Consequently, I find no merit in this Appeal. Accordingly, the Appeal is hereby dismissed. The judgment of the High Court of Benue State delivered by Honourable Justice W.I. Kpochi on the 27th of July, 2020 is hereby affirmed. I make no order as to costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the opportunity to read before now, the lead judgment meticulously prepared and delivered by my learned brother AGUBE, PJCA., and I agree with the reasoning and conclusions reached therein.
The appeal lacks merit and is therefore dismissed by me.
I abide by the consequential order made therein.
YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance the judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, JCA, and I am in complete agreement with the reasoning and conclusion arrived at in the lead judgment. My Lord captured the essence of fair hearing as enshrined in the 1999 Constitution as amended, and I wish to add my voice to the position of law regarding the issue at hand. The Courts have very consistently over the years, held that the issue of fair hearing guaranteed by the Constitution is not negotiable and goes beyond being a mere personal right only. It is a fundamental right and public policy demands that every person is entitled to a fair hearing in consonance with the Rule of Law. That is one reason why in the determination of whether the principle was breached or not, the test is always objective, that is, the dispassionate opinion of a reasonable man. Any breach or absence of a fair hearing in such proceedings automatically vitiate them and render them null and void, as reiterated in cases of Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23; Ceekay Traders v. G.M. Company (1992) NWLR (Pt.222) 132; Atano v. A.G. Bendel State (1988) 2 NWLR (Pt.75) 201; General Oil v. Ogunyade (1997) 4 NWLR (Pt.501) 613; Okoroike v. Igbokwe (2000) 14 NWLR (Pt.688) 498; Isyaku v. Master (2003) 5 NWLR (Pt.814) 443; Alake v. Abalaka (2003) 6 NWLR (Pt.815) 124; Ekpeto v. Wanogho (2004) 18 NWLR (Pt.905) 394; Sokoto State Govt. v. Kamdax (2004) 9 NWLR (pt.878) 345; Newswatch v. Atta (2006) 12 NWLR (Pt.993) 144.
It is in the light of above that I also agree that the Appeal lacks merit and is hereby dismissed. I also abide by the other orders made in the lead judgment.
Appearances:
Timothy Dim, Esq. For Appellant(s)
J.K. Ude, Esq. For Respondent(s)
