UNIVERSITY OF ILORIN v. MR. JOLAYEMI ADEMOLA AYODEJI
(2014)LCN/7309(CA)
In The Court of Appeal of Nigeria
On Monday, the 23rd day of June, 2014
CA/IL/50/2011
RATIO
COURT: DUTY OF THE COURT; WHETHER IT IS THE DUTY OF THE COURT TO PRONOUNCE ON EVERY MATERIAL ISSUE OF LAW PROPERLY RAISED BEFORE IT FOR CONSIDERATION
The law is settled that a Court has a duty to pronounce on every material issue of law properly raised before it for consideration. See: Bayo v. Ahemba (1999) 10 NWLR (pt. 623) 381. per. UCHECHUKWU ONYEMENAM, J.C.A.
PRACTICE AND PROCEDURE: THE PRINCIPLE OF ESTOPPEL; WHAT THE PRINCIPLE OF ESTOPPEL ENTAILS
Instructive on the principle of estoppel is the case of Yusuf V. Dada & ors (1990) 4 NSCC 124 at 144 paragraphs 10 – 20, where his Lordship, Agbaje, J.S.C. had this to say. “The general rule as to estoppels by silence or standing by was laid down in the case of Caincross V. Lorimer (1860) 4 L.T. 140. It is as follows: “It is a rule of Universal law that if a man” either by word or by conduct has intimated that he consents to “an act which has been done and that he will offer no opposition to it, although it could not have been unlawfully done without his consent and he thereby induces others to do that from which they otherwise might have abstained he cannot question the legality of the act he had so sanctioned to the prejudice of those who have given faith to his word, or to the fair inference to be drawn from his conduct. In such cases proof of positive assent or concurrence is unnecessary; it is enough that the party had full notice of what was being done and the position of the other party is altered.” per. UCHECHUKWU ONYEMENAM, J.C.A.
DAMAGES: THE AWARD OF EXEMPLARY OR AGGRAVATED DAMAGES; WHAT THE CLAIMANT MUST SHOW TO JUSTIFY THE AWARD OF EXEMPLARY OR AGGRAVATED DAMAGES BY A COURT
To justify the award of exemplary or aggravated damages by a court, the claimant must show that the conduct of the party which resulted to the injury he suffered was sufficiently outrageous for the fact that the said conduct was laced with either malice, contempt or flagrant disregard of the law. See: Odogu v. A. G. Federation (1990) 7 SCNJ 142. In Odiba v. Azege (1998) 7 SCNJ 119 at 135 lines 5 – 10, per Igu, J.S.C. held thus: “It is trite law that in order to justify an award of exemplary or aggravated damages it is not sufficient to show simply that the Defendant has committed the wrongful act complained of, his conduct must be high-handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the Plaintiff’s right, or disregarding every principle which actuates the conduct of civilized men. See: Eliochin (Nig.) Ltd. V. Mbadiwe (1986) 1 NWLR (Pt. 14) 47. per. UCHECHUKWU ONYEMENAM, J.C.A.
COURT: INTERFERENCE; WHETHER AN APPELLATE WILL INTERFERE TO SET ASIDE ANY DECISION BASED ON SPECULATION
Neither the parties nor the Court is permitted to speculate anything. An appellate Court will interfere to set aside any decision based on speculation. See: Ikenta Best (Nig.) Ltd. V. Attorney General Rivers State (2008) LPELR – 1476 (SC); Alli v. Alesinloye (2000) FWLR (pt. 15) 2610; (2000) 6 NWLR (Pt. 600) 177. per. UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria
Between
UNIVERSITY OF ILORIN – Appellant(s)
AND
MR. JOLAYEMI ADEMOLA AYODEJI – Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The Appellant who was the Defendant at the trial Court has brought this appeal against the decision of the Federal High Court, Ilorin, presided over by Bilkisu Bello Aliyu, J. In the said judgment delivered on 27th July, 2011, the trial Court entered judgment for the Respondent.
In expression of dissatisfaction with the trial Court’s judgment, the Appellant filed a Notice of Appeal containing 7 Grounds of Appeal on 1st August, 2011. The Notice of Appeal is contained at pages 280 – 287 of the record. With the leave of this Court, the Appellant filed an Amended Notice of Appeal containing 10 Grounds of Appeal on 22nd November, 2011.
The facts before the trial court was that, the Respondent while a senior lecturer with the Appellant got admitted as a part-time Ph.D. student in the University in 1995. He allegedly carried on with his program without defaulting on any of the registration requirements and concluded the programme in November, 2000. Upon the submission of his thesis, the Board of Post Graduate School of the Appellant constituted a five-man examination panel to examine him.
The oral defence of his thesis was scheduled for 9th March, 2001. This could not hold because the University was closed down on 7th March, 2001 as a result of industrial crisis that engulfed the University. Before the re-opening of the University, three out of the five members of the examination panel for the Respondent had been sacked as lecturers, thereupon the examination panel could not function. The Respondent said he made several appeals to the University to reconstitute the requisite examination panel for him but his appeals were not heeded by the Appellant out of malice. On 8th March, 2002, the Head of the Respondent’s Department who was also his Chief Examiner, Dr. Bukoye Arowolo wrote a “TO WHOM IT MAY CONCERN” by which he gave an update of the Respondent’s Ph.D. programme and indicated that the Respondent had virtually concluded the programme.
In addition, the Respondent also wrote two letters to the Appellant on 17th of November, 2003 and 18th May, 2004 titled: “REQUEST FOR AN UPDATE ON Ph.D. VIVA” and “REACTIVATION OF Ph.D. PROGRAMME: A PASSIONATE APPEAL respectively.” Even the external examiner of the Respondent wrote a letter to the Post Graduate School of the University on 8th November, 2004, enquiring the position of the authorities on the defence of the Ph.D. of the Respondent, but the Respondent claimed that this letter and the appeals he wrote were all rebuffed by the Appellant.
The Respondent claimed that the delay in the re-constitution of the examination panel delayed the conclusion of his Ph.D. program and caused his loss of a research fellowship, awarded to him by the Alexander Von Humboldt Foundation in Germany. He said after many years of waiting for the Appellant to re-constitute the examination panel, he finally instructed his lawyers to write to the Appellant demanding the re-activation of his Ph.D. programme within 14 days of the receipt of the demand letter which was dated 16th April, 2008.
Despite this demand letter the Appellant kept mum on the fate of the Respondent’s Ph.D. program. He contended that the refusal of the Appellant to allow him conclude his Ph.D. program is arbitrary, malicious, oppressive and a manifestation of hatred for his person by those at the helm of the affairs of the administration of the Appellant.
Based on this fact stated in his amended statement of claim, the Respondent claimed the following reliefs against the Appellant:
“1. A declaration that the refusal, failure or neglect of the Defendant to constitute the requisite panel for the oral examination of the Plaintiff on his thesis since 2001 till date is unlawful, malicious, arbitrary and oppressive in the extreme on the footing of which the plaintiff is entitled to be assuaged in damages.
2. A declaration that it will be unjust, inequitable and indefensible in law to allow the Defendant to permanently deny the plaintiff of the opportunity of concluding the Ph.D. program, regard being had to the fact that the Plaintiff was/is not responsible for any delay or culpable for any malfeasance in respect thereof.
3. A sum of N50 Million as aggravated and/exemplary damages for the career stagnation or retrogression, academic misfortune, untold agony and emotional distress caused by the Defendant to the Plaintiff on the footing of the unjustified denial of the opportunity to complete his Ph.D. all these years.
4. AND ORDER compelling the Defendant to fortwith set up the requisite examination panel for the oral examination of the Plaintiff’s thesis and subsequent thereto award the Ph.D. degree backdated as appropriate vis-a-vis the original schedule to the Plaintiff, subject to all relevant conditions of award of the degree to the plaintiff.”
The Appellant in reaction to the process served on it filed a statement of defence in which a Notice of Preliminary Objection was incorporated. The said objection challenged the competence of the suit on a variety of grounds. The statement of defence is at pages 32 – 35 of the record.
Apart from the objection incorporated in the statement of defence, the Appellant also joined issue with the Respondent regarding averments contained in the statement of claim and denied the entitlement of the Respondent to any of the reliefs sought before the trial Court.
At the end of trial, the trial Court entered judgment for the Respondent leading to the present appeal. It is worthy to note that the Respondent on his own being dissatisfied with some part of the judgment filed a Notice of Cross Appeal on 15th December, 2011.
In this Court parties duly filed and exchanged their briefs. The Appellant’s brief was filed on 20th March, 2012 but deemed properly filed and served on 7th November, 2012. The brief was settled by K. K. Eleja Esq. The Respondent’s brief prepared by Y. A. Alajo was filed on 9th May, 2013, deemed properly filed and served on 4th November, 2013, but further deemed on 6th May, 2014. Also filed and served on the Respondent was the Appellant’s reply brief which was filed on 15th November, 2013.
On 15th May, 2014 when the appeal was heard Mr. Ibrahim Alabdun who appeared for the Appellant/Cross Respondent adopted and relied on the Appellant’s brief and reply brief in urging the Court to allow the appeal and dismiss the Cross appeal. In the Appellant’s brief, 3 issues were distilled for the determination of the appeal. The 3 issues are:
1. “Whether the trial court was right in dismissing the various heads of objection incorporated in the Appellant’s statement of defence and agitated before it.
2. whether the trial court was right in finding the Appellant liable in the circumstances of the facts at its disposal and in granting the Respondent’s brief.
3. whether the trial court was right in awarding general and exemplary damages as it did against the Appellant.”
In response, Mr. Y. A. Alajo for the Respondent intimated the Court of their Notice of Cross Appeal filed on 15th December, 2011 but deemed properly filed and served on 25th March, 2014. He adopted and relied on the Respondent’s brief as his argument in the appeal to urge the Court to dismiss the appeal and to allow the Cross appeal. He invited the Court to pages 1 – 24 of the brief which contains the arguments that amount to the Respondent’s brief and pages 25 – 29 as the argument relating to the Respondent’s cross appeal. In the Respondent’s brief, 3 issues were formulated for the determination of the appeal. The issues are:
1. “Whether the trial Court was not right in dismissing the Preliminary Objection of the Appellant under the various heads of objection for being devoid bf any merit. Grounds 1, 2, 5, 9 and 10
2. considering the circumstances of this case, whether the trial court was not right in holding that the Appellant’s claim of overstay is an afterthought and oppressive excuse for not allowing the Respondent to conclude his Ph.D. programme. Ground 3
3. Whether the trial court was not right, considering the circumstances of this case and the evidence adduced, in granting declaratory reliefs and damages sought by the Respondent. Grounds 4, 6, 7 and 8.”
I have considered the issues formulated by both parties, I am of the opinion that the issues formulated by the Appellant are more elegantly couched and will ably settle the controversy of the appeal. I shall therefore adopt them in the determination of the appeal.
ISSUE 1
Mr. Eleja in the Appellants’ brief referred to the 5 Grounds of the Preliminary objection and the Appellant’s argument on it at pages 156 – 163 of the record. He invited the court to the holding of the trial court at page 259 of the record and argued that there is nothing in Section 7(2) (b) and (c) of the University of Ilorin Act CAP. U7 Laws of the Federation of Nigeria 2004 which donate to the Court the power to dabble into such an affair. He cited: University of Calabar V. Esiaga (1997) 4 NWLR (pt. 502) 719 at 742; Magit v. University of Agric, Makurdi (2005) 19 NWLR (pt. 959) 211 at 259.
The learned Counsel equally submitted that the Respondent jumped the gun by not affording the senate the opportunity to deliberate on the case first before approaching the court.
For the above contentions, the learned Counsel urged the Court to hold that the trial Court was in error in over ruling the 1st and 2nd grounds of the objection.
On Ground 3, he referred to the Appellant’s argument at pages 160 – 161 of the record and the Court’s resolution of same at page 260 of the record to submit that failure of the Court to pronounce upon the issue that the Respondent had not exhausted domestic avenues for redress before approaching the Court was an error. Mr. Eleja urged the court by virtue of section 15 of the Court of Appeal Act, to pronounce on the issue. He relied on University of Ilorin V. Oluwadare (2000) All FWLR (Pt. 338) 747 at 756; University of Ilorin and ors v. Idowu Oluwadare (Unreported) Appeal No. CA/IL/76/2007 of 16th July, 2008 at 41; Per Nweze JCA.
He urged the court to uphold the objection on this ground.
On the second part of ground 3 of the objection, the Appellant’s counsel referred to paragraphs 4, 11 and 13 of the Appellant’s statement of defence; evidence from Respondent under cross examination at page 128 lines 10 – 23; DW1’s evidence at page 147 lines 8 – 11 to submit that the reason for overruling ground 3 of the objection is perverse and ought to be upturned. He referred to Nnorodim v. Ezeani (1995) 2 NWLR (pt. 378) 448 at 467.
On Section 2(a) of the Public Officers Protection Act, the learned Counsel submitted that the trial Court erred when it held that the injury of the Respondent was a continuing one. He contended that the cause of action accrued on 22nd June, 2004. See: Ibrahim v. JSC (1998) 14 NWLR (Pt. 584) 1 at 34; Fajimolu v. Unilorin (2007) 2 NWLR (pt. 1017) 74 at 89. On the meaning of continuing injury he referred to; Adigun v. Ayinde (1993) 8 NWLR (pt. 313) 516.
Finally, Mr. Eleja urged the Court to uphold the objection to the jurisdiction of the trial Court in line with the decisions of the apex Court in: Madukolu v. Nkemdilim (1962) ANLR (Reprint) 587 at 589 – 590; Gafar v. Government of Kwara State (2007) 4 NWLR(pt.1024) 375 at 402 – 404.
In response, Mr. Alajo for the Respondent relied on Section 6(6) (b); 251(1) (p) and (r) of the constitution and Oloruntoba Oju v. Dopamu (2008) ALL FWLR (Pt. 411) 810 at 847; to submit that, by the nature of the Respondent’s claim the trial court has jurisdiction to entertain the matter. See also: University of Ilorin V. Stephen Akinola (2008) ALL FWLR (Pt. 413) 1218 at 1251; University of Ilorin v. Adesina (2009) ALL FWLR (pt. 487) 56 at 108 – 111.
The learned Counsel for the Respondent contended that the decions in: Magit v. University of Agric Makurdi; Akinyemi v. Onwumechili; University of Calabar v. Esiaga; cited by the Appellant are not helpful to her position. Mr. Alajo at paragraphs 4.10 – 4.14 at pages 6 – 7 of the Respondent’s brief reproduced excerpts in the referred decisions to support his submissions.
He urged the court to hold that the trial court was right in its holding at page 259 lines 8 – 15 of the record. He equally urged the court to uphold the overruling of Grounds 1 and 2 of the preliminary Objection by the learned trial Judge.
On ground 3 of the objection, Mr. Alajo argued that the final written address of the Appellant at pages 160 – 161 of the record and the trial Court’s decision on that at page 260 of the record show that the learned trial Judge was right when he held that there was nowhere in the pleadings or evidence adduced that the Respondent was ever asked or advised by the Appellant to re-activate his programme.
On the other leg of Ground 3 of the objection; the learned counsel for the Respondent argued that the reference to Exhibit PW1J by the trial Judge at page 260, answered the issue of exhausting domestic avenues. However, he contended that assuming without conceding that the trial Court did not pronounce on the alleged Respondent’s failure to explore the internal dispute resolution mechanism before going to Court, that this Court after considering the circumstances of the case will still come to an irresistible conclusion that the ground of the objection lacks merit.
He therefore urged the Court to hold that the cases the Appellant referred to in paragraph 6.11 of her brief are irrelevant.
on Grounds 4 and 5, the Respondent’s counsel contended that the cause of action did not accrue when Exhibit PW1J was written for the purpose of the applicability of the Public Officers Protection Act.
He submitted that the cause of action accrued as a result of the continuous refusal of the Appellant to re-constitute panel of examiners for the purpose of the oral defence of the Respondent’s Ph.D. thesis; and was kept in abeyance by her failure to categorically state the fate of the Respondent’s programme. He further submitted that the filing of this case after the failure of the Appellant to respond to Exhibit PW1K only showed the limit to which the Respondent could forbear the continuous injury he suffered by the attitude of the Appellant.
He urged the Court to hold that the action was not statute barred.
RESOLUTION OF ISSUE 1
Issue 1 is on the Preliminary Objection raised at the trial Court which was dismissed. The Appellant while responding to the Respondent’s Claims in his statement of defence filed on 7th November, 2008, raised an objection to the competence of the suit on the following 5 Grounds:
“(1) The Suit is an invitation to flagrant incursion into the functions of the senate of the Defendant
(2) The action is unmaintainable and liable to be struck out having regard to applicable laws.
(3) The action is premature and inchoate.
(4) Alternatively, the case is statute barred.
(5) At all event, the Court lacks jurisdiction to entertain the case”.
The Appellant argued Grounds 1 and 2 of the said grounds of objection together. In resolving these 2 Grounds what I must first answer is; whether having regard to sections 6 (6) (b) and 251 (1) (p) and (r) of the 1979 Constitution of the Federal Republic of Nigeria, section 7 (2) (b) and (c) of the University of Ilorin Act CAP U7 LFN 2004 ousted the jurisdiction of the trial court to hear the suit.
For ease of understanding I hereunder reproduce the relevant laws referred to above.
On the Constitution;
Section 6(6) (b).
(6) The Judicial powers vested in accordance with the foregoing provisions of this section-
(b) shall extend, to at matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;
Section 251(1) (p) and (r)
251 (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
(p) the administration or the management and control of the Federal Government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.
Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity”
University of Ilorin Act; Section 7 (2) (b) and (c) “(2) Without prejudice to the generality of Subsection (1) of this section and subject as there mentioned, it shall in particular be the function of the Senate, to make provisions for
(a) …………..
(b) The organization and control of courses and study at the University, and of examinations held in conjunction with those courses, including the appointment of examiners, both internal and external.
(c) The award of degrees, and such other qualifications as may be prescribed, in connection with examinations held as aforesaid”
The effect of the combined reading of the Sections of the Constitution and University of Ilorin Act reproduced above is that; while the functions of the senate as they relate to the organization, control of courses, study and examinations, appointment of examiners both internal and external at the University and the award of degrees cannot be interfered with by the Courts so long as the senate performs her statutory duties in accordance with the law. However, where in the exercise of the senate’s statutory power the Civil rights and obligations of any student or candidate is breached or abridged, the Court’s jurisdiction is not ousted to grant reliefs for the protection of such rights and obligations so long as the student or candidate had exhausted the University’s domestic avenues of seeking redress for such a wrong. See: Per Obaseki, J.S.C. in Miss O.A. Akintemi & ors V. Prof. C. A. Onwumechili & Ors. (1985) 1 NWLR (Pt. 1) 68.
In Akintemi V. Onwumechili (supra) the Supreme Court upheld the decision of this court refusing to grant the Appellants order of mandamus compelling the university to release their results and award them their degree because they had not exhausted the domestic avenues of securing their right. The Senate was still deliberating on the outcome of their involvement in examination malpractice in the previous academic session when the Appellants sought the remedy in the court. Per Obaseki, J.S.C. had this instructive position laid down as follows:
“If a matter is justifiable in Nigeria the domestic nature of the dispute does not, under the 1979 Constitution, oust the jurisdiction of the court. See section 6 (5) (b) of the 1979 Constitution.
It can only mean that until the remedies available in the domestic forum are exhausted, any resort to Court action would be premature….I agree with … The courts cannot and will not usurp the functions of the Senate, the Council and Visitor of the University in the selection of their fit and proper candidates for passing and for the award of certificates, degrees and diplomas. If however, in the process of performing their functions under the law, the Civil rights and obligations of any of the students or candidates is breached, denied or abridged, it will grant remedies and reliefs for the protection of those rights and obligations.”
The referred appeal failed because it was not proved that there was any breach or denial or abridgment of the Appellants’ rights.
In the instant case, a careful examination of the endorsement of the writ of summons contained at pages 1 – 3 as well as paragraph 20 of the statement of claim contained at pages 4 – 7 of the record, will show that the claims of the Respondent at the trial Court are declarations, damages and order of specific performances against an agency of the Federal Government. These reliefs, no doubt, squarely situate the claims of the Respondent within the ambit of the earlier reproduced constitutional provisions and as such the court will ordinarily have jurisdiction. See: Oloruntoba – Oju vs. Dopamu (supra) 844. By logical extension, the submission of the Appellant that the trial Court lacked jurisdiction to entertain this matter on the ground that it was an invitation to flagrant incursion into the functions of the Appellant’s Senate can only hold legal force if it is shown that the Appellant had not exhausted the domestic avenues for redress.
Instructively, the cases of Magit v. University of Agric, Makurdi; Akintemi V. Onwumechili; University of Calabar V. Esiaga cited by the Appellant in her brief to the effect that the trial Court lacked jurisdiction to entertain the Respondent’s Suit are not helpful to the position taken by her. It is interesting to note that in none of these cases was it decided that a Court lacks jurisdiction to entertain matters relating to the domestic affairs of a University.
In Magit v. University of Agric, Makurdi (2005) 19 NWLR (pt. 959) 211; the Appellant’s thesis was examined. The oral examination Panel requested the Appellant to effect suggested corrections to improve the thesis paramount. After the corrections, the Senate observed and concluded that the Appellant employed unacademic means in arriving at the results and viewed that as academic dishonesty and unacceptable.
The apex court in the above referred case held as follows:
“(a) That the decision of the 2nd respondent – the senate, was an administrative/academic act intended, to ensure the good and stable administration of the University and this it had/has the power to do or perform by the Act establishing it. See section 7 of the Act.
(b) That the appellant, did not appeal to the University Council against the said decision of the Senate. Therefore, the application to the trial court, was premature.
(c) That in considering the appellant’s corrected thesis by the 2nd respondent, …Dishonest and/or un-academic practice on his part, was discovered and so, his thesis was rejected by the 2nd respondent. ……….Being an administrative or academic act, an order of certiorari, with respect, cannot lie. A writ of mandamus can also not avail the appellant because, he did not pass his Master’s Degree and non was ever awarded to him………..
(d) …………….
(e) That in so far as the award of a degree or certificate to a student is concerned, in the discretion to award or refuse to award, the courts have no jurisdiction in the matter…..”
It was upon this premise that the position of the Supreme Court in Magit’s case (supra) quoted by the Appellant’s counsel at paragraph 6.05 at page 8 of the Appellant’s brief arose. From the facts and circumstances of the case of Magit v. University of Agriculture Makurdi (Supra); the apex Court held that the court had no jurisdiction to decide for a University whether a student’s thesis has met the standard the University has set. The Court did not say that the Court cannot enquire into the rights and obligations of a student which has been breached in the course of the University performing its statutory duty. It is glaring that in the cases of Akintemi (supra) and Magit (supra); the Senate and or the University acted based on the dishonest behavior of the students and the Court held that in such circumstance, the Court has no jurisdiction to usurp the power of the University in refusing to award a degree to a student whom the University has found to be dishonest in his or her mode of passing an examination.
The facts of these cases are quite distinct from the instant case where it is on record that the Respondent who has not been found dishonest in any area by the University sought to be given an opportunity to be examined on his thesis and to complete his Ph.D. programme. In my respectful view, with the facts and circumstances of the instant appeal; denying the Respondent the opportunity to complete his Ph.D. programme by the University for no adduced dishonest reason on his part, amounts to a breach of the Respondent’s Civil right for which the Constitution empowered the trial Court to enquire into. This is unlike the cases referred to by the Appellant where the Civil rights of the Appellants were not breached and as such the court had nothing to enquire into as any inquiry in the given circumstances would have amounted to the usurpation of the statutory powers of the University.
In conclusion therefore, I hold that the trial Court was seized of the jurisdiction to entertain the matter considering the effect of the provisions of Section 6(6) (b) and (c) of the Constitution with the proviso thereto. Also the learned trial Judge was right in his holding at page 259 of the record.
I resolve Grounds 1 and 2 of the objection in favour of the Respondent.
GROUND 3
The law is settled that a Court has a duty to pronounce on every material issue of law properly raised before it for consideration. See: Bayo v. Ahemba (1999) 10 NWLR (pt. 623) 381.
Without wasting judicial time, I will quickly state that from the judgment of the trial Court which I have carefully read, it is correct as submitted by the Appellant that the learned trial Judge failed to consider the issue of non-exhaustion of domestic avenue by the Respondent in his redress before instituting the action in court. See page 260 of the record. However, by virtue of Section 15 of the Court of Appeal Act, I shall step into the shoes of the learned trial Judge to resolve the issue he failed to pronounce on.
The question that need be answered therefore is whether from the facts and circumstances of the case; the Appellant exhausted the University domestic avenues for redress before approaching the court.
It is on record that the Appellant, who was scheduled for the oral examination of his doctoral dissertation on 9th March, 2001 could not have the examination conducted as a result of the closure of the University because of ASUU industrial action. After the School reopened two months later and until this action was filed in 2008 the Respondent had not been re-invited for the oral examination of his thesis.
Before instituting this action, the Respondent wrote to the Head of Department, Modern European Languages requesting for an update of his oral thesis examination. See Exhibit PW1H dated 17th November, 2003. By Exhibit PW1F dated 8th March, 2002, the Appellant’s Head of Department and Chief Examiner had written the progress report of the Respondent’s Ph.D. By Exhibit PW1J dated 22nd June, 2004, the Respondent wrote to the chairman, governing council of the University appealing to the Council on the refusal of University of Ilorin authorities to allow him to complete his Ph.D. Programme. Then again on 16th April, 2008 by Exhibit PW1K as a prelude to the filing of this action at the trial court, the Respondent’s solicitors wrote to the Appellant a letter addressed to the Registrar and copied to the Vice Chancellor of the University. The letter titled ‘Clarion call and Demand on the University of Ilorin to facilitate the completion of the Ph.D. Programme of Mr. Jolayemi Ademola Ayodeji’ did not receive an answer just like previous demands made on the University by the Respondent.
The Respondent having appealed to the council in 2004 and waited till 2008 when his solicitor wrote to the university without any response from the Appellant in my opinion had exhausted every domestic avenue for redress. This further distinguishes this case from the case of Magit v. University of Agriculture Makurdi. It is on record that between 2004 when the Respondent wrote Exhibit PW1J and 2008 when the action was filed at the trial court the Respondent had waited for four years hoping that his matter will be looked into. Since the Respondent had appealed up to the council and no internal redress was forthcoming for four years and there is nothing on record to show the Appellant had given attention or was giving attention to the demand of the Respondent; it is my view that the Respondent had exhausted all domestic avenues for redress. I hold that the action filed by the Respondent in 2008 is not inchoate and premature. Accordingly the failure of the learned trial Judge to pronounce on this issue did not lead to a perverse conclusion.
On the challenge of the finding of the learned trial Judge that there was nothing in the pleadings or evidence that the Respondent had overstayed and needed to apply for extension; paragraphs 4, 11 and 13 of the statement of defence, and facts elicited from the Respondent at page 128 lines 10 – 13 of the record are in focus. The paragraphs in focus are hereunder reproduced.
4. “The Defendant avers that the plaintiff who was a part-time student did not complete the Ph.D. programme within the time allowed by the rules of the Defendant and never applied for any extension of time within which to complete the Ph.D. programme. The Defendant shall rely on the Plaintiffs letter of Admission dated 28th June, 1994 and the Forms PGs completed by him.
11. The Defendant in reaction to paragraph 14 of the statement of claim avers that it is not obliged to reconstitute any panel on the thesis of the plaintiff, the time allowed for same having lapsed and a formal application for extension of time having not been made.
13. The Defendant in reaction to paragraph 15 avers that it was/is not obliged to respond to the Plaintiffs Solicitor’s letter demanding re-activation of the Ph.D. programme which has lapsed on account of the plaintiff’s inability to complete same within allotted time due to no fault of the Defendant as the Plaintiff failed to apply for official extension”
By the above reproduced paragraphs of the Appellant’s statement of defence, the Appellant’s case is that she did not reconstitute a panel for the Respondent’s oral examination of his thesis nor deem it necessary to reply his Solicitor’s letter because the time for the Appellant to complete his Ph.D. programme as part-time student had lapsed and the Respondent did not apply for extension of time. In paragraph 2 of the statement of defence the Appellant stated the time frame for the completion of the part time programme.
Under cross examination, the Respondent said
“I am also aware that in the event of Ph.D. student not being able to complete the programme within the time frame there is room for extension of time. It is the duty of the student who is unable to complete the Ph.D. programme in time to apply for extension to the University…… I did not apply for extension of time for my Ph.D. programme because I did not need to apply”
See page 128 of the record.
From this evidence elicited from the Respondent and the paragraphs of the statement of defense earlier reproduced, I re-echo the finding of the learned trial Judge that, there is nowhere either in the pleadings or in the evidence where it is stated that University of Ilorin had informed the Plaintiff that he had overstayed his Ph.D. programme and needed to apply for extension. Infact the Appellant had ample opportunity to do so because the Respondent wrote Exhibits PW1G, PW1H and PW1J to the University all in connection with his programme and none of these letters was responded to.
The final written address of the Appellant at page 180 paragraph 4.09, which the Appellant’s Counsel invited this Court to peruse to come to the conclusion that the respondent had not done all that was expected of him does not support the paragraphs of the statement of defence reproduced above. I will not however, dwell on the Counsel’s address as the law is clear that the Counsel’s address cannot replace the pleadings and evidence of a party.
The learned trial Judge was therefore right in his conclusion.
In all, I hold that the action was not inchoate and premature.
Ground 3 of objection is dismissed.
GROUNDS 4 AND 5
By Section 2 (a) of the Public Officers Protection Act, an action against a public officer in relation to any act done in the performance, discharge, execution of any Act or Law or any public duty or authority, or in regard of any alleged neglect or default of the execution of same can only be commenced within three months next after the act, neglect or default complained of unless it is a case of continuance of damage or injury in which case the person aggrieved must bring the action within three months next after the cessation of the damage or injury.
The case of the Respondent as could be garnered from the pleadings and the totality of the evidence on record is against the refusal of the Appellant to allow him complete his Ph.D. programme and to make a categorical statement on it. The Respondent who was unable to have his oral examination on 9th March, 2001 because of the closure of the University waited in vain after the re-opening of the University to be re-invited for the examination. He then by Exhibit PW1H requested for an update on his Ph.D. VIVA and copied same to the Coordinator, Post Graduate studies, Modern European Languages Department. Exhibit PW1H was made on 17th November, 2003. When after one year he was not re-invited, he by Exhibit PW1J wrote to the Chairman, Governing Council of the University attaching amongst other documents Exhibit PW1H and PW1G. Exhibit PW1G is letter of appeal addressed to the Dean Post graduate School on re-activation of his Ph.D. programme. When after four years the Council did not make any statement nor take a stand on the fate of the Respondent’s Ph.D. programme, he then instituted the action at the trial Court which the Appellant had urged the Court below to decline jurisdiction as the action was statute barred. The Appellant contended that the cause of action accrued on 22nd June, 2004 when Exhibit PW1J was made. The Respondent on his own contended that upon non communication of the University stand, the cause of action was in abeyance. The Appellant has urged on the Court to set aside the holding of the learned trial Judge that the Respondent’s case was a clear one of a continuance of damage or injury for which Section 2 (a) operates only after the seizure of such continuous damage.
The non communication to the Respondent of his fate in the Ph.D. programme made the injury and damage continuous. The refusal of the Appellant to allow the Respondent complete his Ph.D. programme was therefore a running injury which could only cease upon the Appellant’s categorical statement on the fate of the said programme. The Respondent’s injury or damage being a continuous one which cessation is unascertainable, Section 2 (a) of the Public Officer’s Protection Act is not applicable. See: CBN v. Amao (2007) All FWLR (pt. 351) 1490.
The case of Ibrahim v. JSC (1998) 14 NWLR (pt. 584) 1; Fajimolu v. UniIlorin (2007) 2 NWLR (Pt. 1017) 74 are to the effect that the Courts are not clothed with the jurisdiction to distort or import words into the plain meaning of a statute and in this case the Public Officer’s Protection Act in order to make it conform with its own views of sound social justice. They are therefore in line with the position I have taken herein. I have not imported words into the provisions of the Act and I have also diligently followed the plain meaning of the Act, that as the injury caused the Respondent is continuous, an action against the Appellant could only be statute barred if it is brought after three months next after the cessation of the injury. While the case was pending before the trial court, the injury had not ceased and the cessation could not be predicted. So according to the principle laid down in CBN v. Amao (supra) the provision of section 2 (a) of the Public Officers Protection Act does not apply.
Put succinctly, the failure or refusal of the Appellant to formally communicate to the Respondent categorically on whether his plea had been rejected or not; and whether he could still be considered for the award of Ph.D. Degree, made the cause of action in this case to be continuous and in abeyance for the purpose of the application of section 2 of the Public Officers Protection Act. The case of Ikine v. Edjerode (2002) FWLR (Pt.92) 1775 at 1776 paras E – G is relevant here, particularly his Lordship Ejiwunmi, J.S.C. opining that:
“For that view of the Court below, and with which I am in full agreement, may I refer to the case of Turbuville and Another V. West Ham Corporation (1950) 2 KBD 208. This was a case of some assistant school teachers and the adjustment of their salaries during the 2nd world war. The teacher put salary claims which their corporation-employer rejected. Time it was held, would not commence in respect of their cause of action, consequent upon the rejection of their claims, until that rejection was communicated to them and not before. Hence, it was held, inter alia, that the Plaintiff’s cause of action did not accrue until they received notice of rejection of their claims on 25th February, 1946, and therefore the time limit had not expired when the writs were issued on 23rd January, 1947”
In the instant appeal, contrary to the submissions of the Appellant in paragraph 6.21 of her brief, 22nd June, 2004 when Exhibit PW1J was written could not have been the time the cause of action accrued for the purpose of the application of the Public Officers Protection Act. The cause of action in this case was as a result of the continuous refusal of the Appellant to re-constitute panel of examiners for the purpose of oral defence of the Respondent’s Ph.D. thesis and was kept in abeyance by the failure or refusal of the Appellant to state in categorical terms the fate of the Respondent’s Ph.D. programme. Time therefore did not start to run on 22nd June, 2004.
Accordingly, I hold that the Respondent’s action at the trial Court was not statute barred and the learned trial Judge was right to have come to that conclusion.
In its totality, the learned trial Judge was right in dismissing the Appellant’s objection. I uphold the decision of the trial Court, that the jurisdiction of the Court was not ousted.
Finally I resolve issue 1 in favour of the Respondent.
ISSUE 2
Mr. Eleja in the Appellant’s brief referred to the findings of the Court at pages 271 to 275 of the record. He invited the Court to note Exhibit DW1A especially at page 41, of the Bound Exhibits, the evidence of DW1 at page 146 lines 18 to 21; as against Exhibits DW1K and PW1L which rather influenced the trial court, to submit that: for ignoring necessary materials at its disposal which would have assisted him to arrive at a just but different decision, the decision of the trial Court qualifies as a perverse decision which ought to be set aside by this Court. He cited: Baridam v. State (1994) 1 NWLR (Pt. 320) 250; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448.
The learned Counsel therefore urged the Court to allow the grounds of appeal upon which this issue is predicated and resolve the issue in favour of the Appellant.
Mr. Alajo for the Respondent referred to Exhibit DW1A, PW1B, and PW1L to submit that the Appellant was estopped from claiming that the Respondent could not continue his programme for the singular reason that he had overstayed the maximum period of 4 1/2 years. He relied on: Oyerogba v. Olaopo (1998) 2 SCNJ 115; Yusuf v. Doda & ors (1990) 4 NSCC 124; University of Ilorin v. Adesina (2009) FWLR (Pt. 487) 56.
He urged the court to resolve issue 2 in favour of the Respondent.
“A decision is perverse where the trial Judge takes into account matters which he ought not to have taken into account or where he shots his eyes to the obvious or to proved facts in favour of a party, or distorts the facts or evidence in the case so as to tilt the scale of Justice in favour of a party”.
See Per Iguh J. S. C. in Baridam v. State (1994) 1 NWLR (Pt. 320) 250.
The gamut of the Appellant’s contention herein is that the learned trial Judge did not consider the fact that: the Respondent’s Ph.D. programme had a time frame and that for him to continue the programme after the stipulated time frame the Respondent was obliged to apply for an extension; also that the Respondent was already outside the time allowed for his Ph. D. programme as at the time he was billed originally to defend his thesis in the year 2001; again, the internal supervisor of the Respondent was no longer in the service of the Appellant at all material time and the evidence of DW1 on the procedure of re-activation of Ph. D. programme.
I have carefully gone through the judgment of Bilikisu Bello Aliyu J. particularly at pages 271 – 276 of the record. I must commend the industry exhibited therein. The learned trial Judge meticulously considered the obvious facts the learned Counsel for the Appellant alleged was ignored and finally arrived at legally justifiable conclusions.
The examination of the oral and documentary evidence in the judgment is reasonable and legally sound, it is unassailable and I adopt same to be mine. I totally fail to see any way I can justify the contention of the learned Counsel for the Appellant that the decision of the learned trial Judge is perverse. Rather, I hold that the decision of the trial Court as regards this issue, having the evidence at its disposal was properly arrived at.
I am at home with the fact that; from the totality of the evidence before the trial Court, the attitude of the Appellant was a representation to the Respondent that she was not going to hold him down to the initial maximum period of 4 1/2 years for the completion of his Ph. D. part time programme. It is equally my view from Exhibit DW1A – the postgraduate prospectus that there was nothing to suggest to the Respondent that a continuation of his programme was contingent on his mandatory application for extension of time. The postgraduate prospectus said the Respondent may apply for extension after the 4 1/2 years maximum period. See page 41 of the Bound Exhibits. Again at page 57 of the Bound Exhibits, column 4, the two consecutive periods of 12 months is headed official extension. Then at column 5 you now have 6 1/2 years as the overall maximum extension.
By the Merriam Webster dictionary, full definition of official is “prescribed or recognized as authorized”. It means in the programme the Respondent undertook, the prescribed or recognized extension is 2 years after the 4 1/2 years maximum period. The prospectus – Exhibit DW1A said the Respondent may apply for extension after the initial 4 1/2 years but is silent on what will happen if the Respondent fails to apply and the university allows him to carry on with the programme. Firstly, I want to note that Exhibit PW1A did not make it mandatory for the Respondent to apply before his Ph.D. programme will be extended after the initial 4 1/2 years. There being no such mandatory requirement and the 2 years extension being the University’s recognized as authorized extension; when the University accepted the Respondent’s thesis, appointed examiners, scheduled an oral defence of his thesis, and collected reactivation fees all after the expiration of the 4 1/2 years maximum period of his Ph.D. programme. The University -Appellant, made the Respondent believe that the programme had been extended and was still running after the expiry of the first maximum period of 4 1/2 years. She was therefore estopped from pulling the string that the Respondent had over stayed on his programme as a reason to deny him the opportunity to complete his Ph.D. programme.
Instructive on the principle of estoppel is the case of Yusuf V. Dada & ors (1990) 4 NSCC 124 at 144 paragraphs 10 – 20, where his Lordship, Agbaje, J.S.C. had this to say.
“The general rule as to estoppels by silence or standing by was laid down in the case of Caincross V. Lorimer (1860) 4 L.T. 140. It is as follows: “It is a rule of Universal law that if a man” either by word or by conduct has intimated that he consents to “an act which has been done and that he will offer no opposition to it, although it could not have been unlawfully done without his consent and he thereby induces others to do that from which they otherwise might have abstained he cannot question the legality of the act he had so sanctioned to the prejudice of those who have given faith to his word, or to the fair inference to be drawn from his conduct. In such cases proof of positive assent or concurrence is unnecessary; it is enough that the party had full notice of what was being done and the position of the other party is altered.”
From all I have said above, the Appellant’s refusal to re-constitute the panel to examine the Respondent’s Ph. D thesis cannot be justified by the evidence before the Court. Also by the principle of law in Yusuf V. Dada (supra), she is estopped from relying on Exhibit DW1A to deny the Respondent the completion of his programme for the reason that he had overstayed on his programme.
Having held that the decision of the learned trial Judge was not perverse and the Appellant is estopped from relying on Respondent’s overstay on his programme to refuse to re-constitute his oral examination panel, I resolve issue 2 in favour of the Respondent.
ISSUE 3
The Appellant referred to paragraphs 14 and 19 (iii) of the Respondent’s Amended Statement of claim, paragraphs 12 and 14 of the Appellant’s statement of defence, the Respondent’s reply to statement of defence at pages 57 – 58 and the written statement on oath of the Respondent at pages 103 – 108 to submit that; in the award of N10,000,000.00 (Ten Million Naira) only damages to the Respondent as general and exemplary damages for the oppressive manner the Appellant delayed the conclusion of the Respondent’s Ph.D. programme, the trial Court did not consider nor pronounce on the applicable principles of law on the award of damages nor the relevant averments in the pleadings. He contended that the mere fact that the Respondent’s action succeeded would not be enough justification to award exemplary damages against the Appellant.
The learned Counsel further submitted that even if the trial Court was right to have awarded damages at all, an award of N10,000,000.00 is not only outrageous but excessive given the circumstance of this case.
He urged this Court to hold this award as perverse and to interfere in the award. He relied on: Kotun v. Olasewere (2009) All FWLR (Pt. 477) 41 at 65 – 66; A. S. E. S. A. v. Ekwenem (2009) All FWLR (Pt. 491) 838.
In response, the Respondent with respect to the Alexander Von Humboldt Fellowship submitted that there is an unbroken cord between the Appellant’s refusal to allow the Respondent complete his programme and the loss of the fellowship. He submitted that a community reading of the letter dated 16th June, 2003 found at page 22 of the record and Exhibit DW1H at page 80 of the bound Exhibits will show that though the utilization of the Fellowship was contingent upon the possession of a Ph.D. degree, the foundation was aware at the time it awarded the Fellowship that the Respondent was about to defend his Ph.D. thesis. He therefore submitted that the Appellant cannot run away from liability of the consequences of her failure to allow the Respondent complete his Ph.D. degree which consequence includes the loss of the Fellowship award.
The learned Counsel further submitted that the Respondent having been denied the completion of his Ph.D. degree for many years, logically suffered career stagnation and or retrogression and as such was rightly awarded exemplary damages by the learned trial Judge. He cited: University of Ilorin v. Rasheedat Adesina (2009) FWLR (pt. 487) 56 at 131; University of Ilorin v. Stephen Akinola (2008) FWLR (pt. 413) 1218; Odiba v. Azege (1998) 7 SCNJ 119 at 135; Odogu v. A. G. Federation (1996) 7 SCNJ 142 at 149 – 150.
He urged the Court to resolve the issue in favour of the Respondent.
To justify the award of exemplary or aggravated damages by a court, the claimant must show that the conduct of the party which resulted to the injury he suffered was sufficiently outrageous for the fact that the said conduct was laced with either malice, contempt or flagrant disregard of the law. See: Odogu v. A. G. Federation (1990) 7 SCNJ 142. In Odiba v. Azege (1998) 7 SCNJ 119 at 135 lines 5 – 10, per Igu, J.S.C. held thus:
“It is trite law that in order to justify an award of exemplary or aggravated damages it is not sufficient to show simply that the Defendant has committed the wrongful act complained of, his conduct must be high-handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the Plaintiff’s right, or disregarding every principle which actuates the conduct of civilized men. See: Eliochin (Nig.) Ltd. V. Mbadiwe (1986) 1 NWLR (Pt. 14) 47.
It does greatly appear to me that from the facts and circumstances of this case, there was an implied contract between the Respondent and the Appellant. The Appellant offered admission for Ph.D. Degree which the Respondent accepted. The Respondent as consideration paid fees and committed physical and mental energy in pursuit of the programme. It flows therefore that, the Appellant owed the Respondent a contractual duty not to frustrate the completion of his Ph.D. programme and to consequently award the Ph.D. to him except for good cause as provided for in Section 7 (6) of the University of Ilorin Act CAP. U7 Laws of the Federal Republic of Nigeria 2004. The Appellant who had: constituted an oral examination panel for the Respondent’s Ph.D. thesis which could not hold on the scheduled date because of the closure of the school by the University authorities; dismissed some of the Respondent’s examiners after the school was reopened and who refused and or neglected to reconstitute the panel for no just reason or reason linked with Section 7 (6) of the University Act (Supra); breached the duty he owed the Respondent.
This breach obviously caused a major set back to the Respondent who without doubt pursued the Ph.D. programme for career advancement. Logically therefore, the breach made the Respondent to suffer career stagnation and eventual loss of his fellowship award.
Again, I am of the firm view that the fragrant refusal of the Appellant to reconstitute the Respondent’s oral examination panel from 2001 to 2008 when the action at the lower court was instituted for the sore unjustified reason that he had overstayed in the programme is oppressive, high handed, outrageous and an outright disregard of the Respondent’s right. Hence, the Appellant could not but be liable for the award of exemplary damages.
It is an accepted part of our jurisprudence that award of damages is ordinarily within the discretion of a trial court in respect of which an appellate court would be reluctant to interfere. Although, an appellate court will readily interfere if the trial court acted on a wrong principle of law or under a mistake of law, or where its decision on damages is perverse or the award is unjustified. See: Kotun v. Olasewere (2009) All FWLR (pt. 477) 41.
From the evidence on record, it is correct as submitted by the Respondent’s counsel that there is a binding cord between the Appellant’s refusal to reconstitute the Respondent’s oral examination panel to enable him complete his Ph.D. Degree and the loss of the Alexander Von Humboldt Fellowship award. By the pleadings, the letter dated 6th June, 2003 at page 22 of the record and Exhibit DW1H contained at page 80 of the bound Exhibits, it is glaring that the Respondent applied for the Fellowship award which was granted him via letter of 6th June, 2003 in anticipation that his Ph.D. programme would have been through before the grant of the award in view of the fact that by March, 2001 he was already scheduled to defend his Ph.D. thesis. By the refusal of the Appellant to reconstitute his oral examination Panel, the Respondent was able to obtain an extension with the hope that the Appellant will respect his right and reconstitute the panel. See: Exhibit DW1H. When the Appellant maintained her ground of refusal to reconstitute the panel, the award was cancelled.
The loss of the award was frontally tied to the high handed stance of the Appellant in refusing to allow the Respondent complete his Ph.D. programme. The Respondent was therefore entitled to exemplary damages for the loss.
For all I have said above, I hold that the decision of the award of exemplary damages against the Appellant is not perverse neither is the sum awarded outrageous, I therefore find no reason to interfere with the said decision of the trial Court.
Issue 3 is again resolved in favour of the Respondent.
On the footing of my resolutions of the three issues above, the main appeal fails to succeed. It is hereby dismissed. I uphold the judgment of the Federal High Court, Ilorin in Suit No. FHC/IL/CS/14/2008 delivered on 27th July, 2011.
I award a cost of N50, 000.00 in favour of the Respondent.
CROSS APPEAL
The Cross Appellant/Respondent who was the Claimant at the Federal High Court, Ilorin by a Notice of Cross-Appeal filed on 15th December, 2011- has appealed against part of the decision of the said Court delivered on 27th July, 2011 in Suit No. FHC/IL/CS/14/2008.
The Cross Appeal stems from the decision of the trial Court refusing to award to the Cross-Appellant a “Ph.D. Degree backdated as appropriate viz-a-viz the original schedule”. The Cross-Appellant’s applicable relief upon which the prayer was purportedly anchored may be found at paragraph 19 (iv) of the Amended Statement of Claim at page 218 of the record where the following relief was sought from the trial Court.
“Iv – AN ORDER compelling the Defendant to forthwith set up the requisite examination panel for the oral examination of the Plaintiffs’ thesis and subsequent thereto award the Ph.D. degree backdated as appropriate vis-a-vis the original schedule. Subject to fulfillment of all relevant conditions of award for the degree to the Plaintiff”.
The brief facts of the Cross appeal is that the learned trial Judge did not pronounce on the second arm of the relief sought by the Cross-Appellant in paragraph 19 (iv) at page 218 of the record to wit:
“and subsequent thereto award the Ph.D. backdated as appropriate vis-a-vis the original schedule subject to fulfillment of all relevant conditions of award for the Degree to the Plaintiff”.
Sequel to the judgment of the trial Court and in deference to it, the Cross-Respondent re-constituted an examination panel and resultantly awarded the cross-Appellant a Ph.D. degree via NOTIFICATION OF HIGHER DEGREE RESULT (attached to Exhibit J1) adduced with leave of this court as fresh evidence on appeal. The attachment to Exhibit J1 shows that the effective date of the award is 28th August, 2012.
It is the Cross-Appellant’s case that had Cross-Respondent not denied him the opportunity to complete his Ph.D. programme in 2001, his Ph.D. degree award would have been with effect from 2001. It is for this reason that the Cross-Appellant has brought this Cross appeal for the court to compel the cross Respondent to backdate the award of his Ph.D. degree to 2001.
The sole Ground and relief sought by the Cross-Appellant are as set out hereunder:
GROUND 1
“The learned trial Judge erred in law in failing or refusing to order the backdating of the award of the Cross-Appellant’s Ph.D. degree”
Particulars of Error in Law
“i. The Cross-Appellant, in paragraph iv of his reliefs, sought for an order of the court backdating the award of his Ph.D. degree as appropriate vis-a-vis the original schedule.
ii. The failure of the trial court to make pronouncement thereon has occasioned miscarriage of justice.”
RELIEF SOUGHT FROM THE COURT OF APPEAL
“An order allowing the Cross-Appeal by ordering the backdating of the Cross-Appellant’s award of his Ph.D. degree to 2001 when he would have been due for same.”
The cross appeal was argued with the main appeal. Mr. Alajo for the Cross-Appellant distilled this sole issue:
“Whether it is not just, fair and proper for this honourable court to order the backdating of the Ph.D. award of the Respondent/Cross-Appellant to year 2001”
For the Cross Respondent, Mr. Eleja formulated this sole issue:
“Whether having regard to the material at its disposal as at the time of delivery of its judgment the trial Court was not right in refusing to make an order to backdate the Ph.D. degree to the Cross-Appellant.”
The issue formulated by the Cross-Appellant relates more to his grouse, I shall adopt same in determining this cross appeal.
Mr. Alajo alluded to the pleadings supported by both oral and documentary evidence before the Court to contend that, if the Cross-Respondent had not denied the Cross-Appellant the completion of his Ph.D. programme, he would have been awarded same in 2001. He invited the Court to note the finding of the learned trial judge at page 277 of the record to the effect that; the Cross-Respondent’s failure, neglect or refusal to re-constitute panel of examiners to examine the Cross Appellant on his thesis submitted in 2001 is oppressive bearing in mind that the Cross-Appellant was not responsible for any delay in the oral examination of his thesis. The learned Counsel therefore contended that if the Cross-Respondent is allowed to give any date after 2001 as the effective date of the award, it will amount to justifying the oppressive failure, neglect or refusal of the Cross-Respondent to allow the Cross-Appellant complete his programme through the backdoor.
Mr. Alajo finally submitted that failure to backdate the award to 2001 will render the judgment of the trial Court ineffectual and incomplete. He therefore urged the Court to allow the Cross appeal by ordering the backdating of the award of Cross-Appellant’s Ph.D. degree to 2001 when he would have been due for same.
In response, Mr. Eleja for the cross-Respondent, referred to the Cross-Appellant’s prayer at page 218 of the record to submit that the prayer is speculative and not such that can be granted by the Court. He cited: Adefulu v. Okulaja (1996) 9 NWLR (pt. 475) 668; OBMC Ltd. v. Mbas Ltd. (2005) All FWLR (pt. 261) 216.
Mr. Eleja contended that Exhibit J1 cannot be the fulcrum upon which the Cross-Appellant can anchor his claim under the cross appeal as to do so will amount to placing the cart before the horse. He argued that since the relief sought is such that the trial Court could not grant, section 15 of the Court of Appeal Act cannot be invoked to empower this court to grant the relief. He relied on: Tolani v. Kwara State Judicial Service Commission (2009) All FWLR (pt. 481) 880; Obi v. INEC (2007) All FWLR (Pt. 378) 1116.
The Cross-Respondent urged the Court to dismiss the Cross appeal in its entirety.
I note the finding of the trial Court at page 277 of the record which I had earlier in this judgment upheld. It is equally correct that the trial Court did not pronounce on the relief for the subsequent award of the Ph.D. Degree backdated as appropriate. It is clear from even the Cross-Appellant’s relief at paragraph 19 (iv) at page 21.8 of the record that the Cross-Appellant had not fulfilled all relevant conditions for the award of Ph.D. Degree to him else the prayer would not have been qualified with the phrase:
“Subject to the fulfillment of all relevant conditions of award for the degree to the plaintiff”
Also in the course of responding to questions under cross examination, the Cross-Appellant admitted that:
“I agree that even the successful defence of a Ph.D. thesis is just one of the conditions for the award of the Ph.D. …, I agree that it is only the Senate of the University that award Ph.D.”
Evidence equally abound and it is not in dispute that the Cross-Appellant could not defend his Ph.D. within the scheduled time because apart from the closure of the School by the authority, three academic staff who were members of the panel set up to examine the Cross-Appellant had their appointments terminated before the defence of his Ph.D. could take place. This meant that a new panel had to be reconstituted.
The re-constitution no doubt must be subject to many variables. There were therefore so much uncertainties surrounding the time the Cross-Appellant could possibly defend his thesis even if the Cross-Respondent did not neglect their duty to re-constitute the panel.
Outside this, the other conditions required, needed to be fulfilled before the award of the degree and as such it was most uncertain and difficult to determine when all the relevant conditions of award for the degree to the Cross-Appellant could be fulfilled. The time for the award being unascertainable or unpredictable was speculative and highly hypothetical. It is against this background that the trial Court failed to grant the relief to backdate the award of Ph.D. degree to the Cross-Appellant.
It is well settled that speculation has no place in our Courts.
Neither the parties nor the Court is permitted to speculate anything. An appellate Court will interfere to set aside any decision based on speculation. See: Ikenta Best (Nig.) Ltd. V. Attorney General Rivers State (2008) LPELR – 1476 (SC); Alli v. Alesinloye (2000) FWLR (pt. 15) 2610; (2000) 6 NWLR (Pt. 600) 177.
From my analysis above, one thing is obvious, that both the parties and the Court were bound to embark on a great journey into the speculation world to determine when the Cross-Appellant would be due for his Ph.D. Degree award assuming all things were equal. Coming down to the nitty-gritty, it would have been speculative as to whether the Cross-Appellant will pass his oral examination or will be asked to make corrections on the thesis which will either mean rejection of the thesis or more time for the correction thereby increasing the uncertainty of the time the degree could be awarded.
Accordingly, it is my view that since the Cross-Appellant’s Ph.D. thesis had not been examined, assessed, scored and passed coupled with the fact that there was no evidence of fulfillment of other conditions relevant for the award of a Ph.D. Degree by the Cross-Appellant up to the time the trial court delivered its judgment, the Court was right in directing the setting up of panel of examiners to examine the Cross-Appellant’s thesis. It would have been speculative for the trial Court to make order that a Ph.D. Degree be awarded to the Cross-Appellant and further that such degree be backdated to an undisclosed date.
As regards the power of this court under Section 15 of the Court of Appeal Act, while it is correct that the Section confers power on this Court to make any order which the Court below would have made, the Court of Appeal can only have jurisdiction to exercise such power if the lower Court had jurisdiction to exercise the power but failed to do so.
Section 15 does not empower the Court of Appeal to make an order which the trial Court could not have made in resolving the dispute between the parties in the suit. See: Miss Yetunde Zainab Tolani V. Kwara State Judicial Service Commission & 3 Ors (2009) All FWLR (Pt. 481) 880.
The question here is; could the learned trial Judge have granted the order directing the Cross-Respondent to award the Cross-Appellant his Ph.D. Degree and to backdate same to take effect from 2001 having regard to the facts and circumstances of the case. I refer to my considerations above and in addition to Section 7 (2) (b) and (c); and (5) of the University of Ilorin Act, CAP U7, Vol. 15 LFN 2004. The referred provisions of the University Act rest absolute power on the Senate of the University to award amongst other degrees, Ph.D. degrees.
Accordingly, in the exercise of her said statutory duty the Senate considered and approved the award of Ph.D. Degree to the Cross-Appellant on 28th August, 2012. Having the facts and evidence before the lower Court, the trial Court lacked the power to order the Senate to award Ph.D. degree to the Cross-Appellant who had not defended his thesis nor fulfilled other conditions relevant to the award of Ph.D. degree. Also the Court is not permitted to usurp the statutory duty and right of the senate of the Cross-Respondent and direct it to sit on a given date to consider and award a Ph.D. degree to a student when all relevant conditions for the award had not been fulfilled. Since the trial Court could not have made such order, then this Court cannot under Section 15 of its Act make the order.
Then again, it must be noted that Exhibit J1 was made sequent to the trial Court’s judgment and as such the learned trial Judge was not in a position to make the order which the Cross-Appellant has sought neither can this Court make said order. For this Court to make order directing the Cross-Respondent to backdate the Cross-Appellant’s Ph.D. Degree, this will mean making order tantamount to the award of Ph.D. Degree to the Cross-Appellant before he was adjudged successful in the examination of his Ph.D. thesis and before the Senate of the University sat to take decision that the student had satisfied all the requirements for the award of a Ph.D. degree
In the final analysis, I hold that although the Cross-Appellant’s award of Ph.D. Degree was berated because the Cross-Respondent refused to set up a new panel to examine him on his thesis but having regard to the facts and circumstances of this cross appeal, I find no legal backing to order the backdate of the Ph.D. Degree award of the Cross-Appellant to Year 2001.
Accordingly, the sole issue is resolved in favour of the Cross-Respondent.
Cross Appeal therefore fails and is dismissed.
I make no order as to costs.
MOHAMMED LADAN TSAMIYA, J.C.A.: I agree
MUSA HASSAN ALKALI, J.C.A.: I had the opportunity of reading in draft the well written judgment just delivered by my learned brother, Uchechukwu Onyemenam, JCA.
I agree with the 54 pages judgment and the conclusion in this appeal.
Resolved in favour of the respondent and dismissed the cross appeal for lack of merit.
Appearances
IBRAHIM ALABDUN with RILWAN MAHMOUDFor Appellant
AND
Y.A. ALAJO with L.O. BELLOFor Respondent
