UNIVERSITY OF ILORIN V. OLUFEMI IBUKUN DUNMADE
(2013)LCN/6353(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 26th day of June, 2013
CA/IL/51/2011
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
OBANDA FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
UNIVERSITY OF ILORIN – Appellant(s)
AND
OLUFEMI IBUKUN DUNMADE – Respondent(s)
RATIO
THE TIME LIMIT FOR INSTITUTING AN ACTION, PROSECUTION FOR PROCEEDING UNDER THE PUBLIC OFFICERS PROTECTION ACT CAP P41
The Respondent was kept in suspense waiting for response from the Appellant for over six years, up to the time he went to court to file his action no decision was taken by the appellant, Section 2(a) of the Public Officers Protection Act Cap P41 Laws of the Federation of Nigeria 2004 provides as follows:”The action, prosecution or proceeding, shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained at, or in case of a continuance of damage or injury within three months next after ceasing thereof”. From the provisions of section 2(a) above, the law would only apply upon the event of withholding Respondent’s Ph.D being decided by the Appellant, up to the time the Respondent commenced the action at the trial court no decision was taken by the Appellant, it is clear from the materials before us that Respondents action is not caught up by provisions of section 2(a). In the decision in EDJERODE (Supra), Ejiwunmi JSC said;”…Time, it was held would not commence in respect of their cause of action, consequent upon the rejection of their claim until that rejection was communicated to them and not before…”relying on Turbervile Vs Westhain, (1950) 2 KBD. Counsel Eleja in paragraph 5-18 of Appellants brief of argument said;”…A necessary corollary of this is that, once a matter is placed before the visor as it was done by the Respondent in this case, it would border not only on impertinence, but a flagrant distortion of the law to continue to look into the matter by any of the other organs or bodies or persons earlier referred to it is therefore premature for the Respondent having regard to the scenario depicted above to seek to invoke the powers of the trial court to compel the Appellant to award his Ph.D Degree”. It appears to me that the Appellant actually blew hot and cold, holding on one hand that the action was premature, on the other it was statute barred, Appellant certainly found itself on the cross-roads; the learned trial Judge in my view arrived at appropriate conclusion by holding that the trial court had jurisdiction. This issue is therefore resolved in favour of the Respondent. PER ABUBAKAR, J.C.A.
TIJJANI ABUBAKAR, J.C.A. (Delivering The Leading Judgment): This appeal is against the decision of the Federal High court sitting in Ilorin presided over by Aliyu J; delivered on 27th July, 2011.
The Plaintiff now Respondent before us, started his Ph.D part time Programme in 1992, he could not complete the program within the allowable period due to some intervening factors, which culminated in the plaintiff taking out writ of summons against the Defendant Appellant on 15th July, 2008.
The trial court delivered judgment on 27th July, 2011. The Defendant became aggrieved by the decision, and therefore filed notice of appeal containing ten grounds on 1st August 2011. The grounds of appeal without their particulars are reproduced as follows:
1. The Honourable court erred in law, when it dabbled into the affairs of the Defendant/Appellant concerning award of Ph.D degree, thereby over-ruling the Defendant/Appellants objection to its jurisdiction.
2, The Honourable trial court erred in law, when it held that the plaintiff/Respondents suit was not inchoate in the circumstance and thereby came to a wrong conclusion.
3. The Honourable court erred in law, when it held that
“The argument in support of this ground proffered by the defence counsel is that the calls of this action arose on 20th June, 2003, when the plaintiff wrote to the Defendant a letter which was not favoured with a reply. Having admitted that, the defendant did not favour the plaintiff with a reply on this letter, how can a call of action arise for the purpose of the application of the above provisions of the POPA, it is evidence (1) that the last thing which the plaintiff heard from the defendant is that his examination result is being attended to.
It is logical for the plaintiff to still be in the hope that, what the Defendant said was correct. No cause of action has accrued in the circumstances of this case to warrant the invocation of Section 2(a) of the POPA. The objection of the defendant on the grounds stated has no merit and it is dismissed. I answer issue one formulated in the affirmative that is to say that, this suit is competent, and the court has the requisite jurisdiction to hear and determine it on the merit”.
4. The Honourable court erred in law, when it held that,
“now having exercised this statutory duty and allowed plaintiff the take his examination, wilt it too just for the same University to turn around and say that, the examination which it concluded was a nullity and declare that against the plaintiff, If the examination was wrongly conducted, it was conducted by the defendant not by the plaintiff. No one is allowed, to benefit from his own wrong and deprive another of his right. In this case, the University is claiming that, it exercises its duty outside the period of the plaintiffs Ph.D program, and allowed him to take the examination which he has passed. I have to agree with the Plaintiffs counsel, that the University has acquiesce and waived whatever delay it may claim against the student, and the principle of estoppels will apply to stop the defendant from belatedly remembering that, the plaintiff had overstayed its program and based on that, without his degree. That, stand of the University is not only an after-thought, but it is oppressive because other students who overstayed like the plaintiff were awarded their Ph.D as shown in our review of the documentary evidence earlier”.
5. The Honourable trial court erred in law, when it held that,
“I must comment on the comments of the Head of Department, and the Dean of Faculty of Arts. The postgraduate School after conducting examinations for the plaintiff, went on a fact finding mission to ask his Supervisor HOD and Dean of Faculty to comment on the issue of overstay of the plaintiff it strongly held on to comments of the plaintiffs supervisor, that, the supervision of the plaintiffs Ph.D degree difficult, and the HODs comments of the plaintiffs attitude to work. These comments are not unsupported by any facts but are contradictory to the examiner’s report on the Ph.D thesis. In any event, the comments did not claim that the plaintiff did not pass his examinations, nor stated that, the causes of the delay are not as stated by the plaintiff. It is still belated for the defendant, which has already conducted examination to look for plaintiffs fault in order to deny him his degree and I so hold”.
6. The Honourable trial court erred in law when it held that.
“There is no doubt, that the University has the ultimate academic authority to ascertain and decide on who to award its degree to. It has the discretion whether or not to award its degree ‘Margit Vs University of Agriculture Makurdi (Supra). But in the exercise at that discretion, it must be fair to all students, and treat all students equally before it, in its decision to award the degrees…it must be seen to treat each case fairly and all its students equally. …the least that is expected of a university system which has such enormous responsibility of training future leaders, in the final analysis, the plaintiffs Ph.D has not been treated fairly by the Defendant, having regards to all the circumstances of this case. The manner of the post-graduate school went about seeking the fault of the plaintiff, so as to use same as the basis, not to recommend him for the award of the Ph.D degree shows malice”.
7. The Honourable trial court erred in law, when it held that;
“Having held on to his Ph.D degree for so long as found above, the plaintiff is entitled to damages. He had shown by evidence that he had to take a lower appointment thon his senior Lecturer because of the change of policy in the university system, whereby any holders of the Ph.D are made Senior lecturers. This evidence has not been contradicted, I believe him. Consequently, I am of the view and indeed so hold that, the plaintiff has proved his case, and he is entitled to judgment, which hereby entered in his favour against the defendant in the following terms”.
8. The Honourable court erred in law in granting the reliefs awarded to the Respondent when he palpably failed to establish his entitlement to same, thereby reaching a wrong conclusion occasioning miscarriage of justice on the Appellant.
9. The trial court erred in law, in awarding Ten Million Naira (N10,000,000.00) exemplary damages against the appellant when there is no factual or legal justification for same, thereby occasioning a grave miscarriage of justice on the Appellant.
10. The judgment of the trial court is against the weight of evidence.
Learned counsel for the Appellant K. K. Eleja distilled from Appellants grounds of appeal, the following issues for determination.
1. Whether, from the general circumstance of the case, the trial court was right in dismissing the appellant’s preliminary objection and assuming jurisdiction over this matter – grounds 1, 2 and 3.
2. Whether from the material evidence in this case, the trial court was right in holding that, the Appellant is estopped from claiming that the Respondent over-stated his Ph.D programme.
Ground 4 and 5.
3. Whether, the trial court was right based on the material evidence before it to grant the declaratory reliefs sought by the Respondent. Grounds 6, 7, 8, and 10.
4. Whether the trial court was right in awarding the ten million naira (N10,000,000.00) exemplary damages against the Appellant? Ground 9.
Appellants brief of argument was filed on 22 November 2011, deemed filed by an order of this court on 15th February 2012.
Learned Counsel Alajo Y. A. filed Respondents brief of argument on 15th February 2012; he submitted four issues for determination, the issues are:
1. Whether the trial court was not right in dismissing the Preliminary Objection of the Appellant for being devoid of merit. Grounds 1, 2 and 3.
2. Whether in the circumstance of this case, the trial court was not right in holding that the Appellant is stopped from claiming that the Respondent overstayed his Ph.D programme thus, unlawfully withholding his result ground 4 and 5.
3. Whether the trial court was not right, considering the circumstances of this case in granting the declaratory reliefs sought by the Respondent grounds 6, 7, 8 and 10.
4. Whether the trial court was not right in awarding the sum of Ten Million naira (N10,000,000.00) as exemplary damages against the Appellant. Ground 9.
The issues formulated by the Respondent in this appeal are substantially the same with the issues formulated by the Appellant, for this reason therefore the appeal will be determined on the strength of Appellants issues, I am sure resolution of Appellants issues will have the effect of determining this appeal, I therefore adopt appellants issues as the issues for determination in this appeal.
Both Appellant and Respondent argued the issues in the order set by the Appellant, I will therefore deal with the issues the same way.
Resolution of issues:
1. ISSUE 1
Whether from the general circumstances of the case, the trial court was right in dismissing the Appellants Preliminary objection, and assuming jurisdiction over this matter.
Learned Counsel for the Appellant said at the trial Federal High Court the Defendant/Appellant challenged the competence of the suit, by way of preliminary objection, he referred this court to pages 37 to 41 of the Record of Appeal. Learned Counsel said the learned trial Judge fell into grave error by assuming jurisdiction to hear and determine plaintiff/respondent’s claim before the court. In setting out his grounds on this issue, learned counsel sub-divided his argument into:
1. That the trial court lacks jurisdiction.
2. That the Respondents matter was statute barred.
On the first leg of the sub-division, learned counsel said, Respondents suit before the trial court was an invitation to the trial court to make an incursion into domestic jurisdiction of the defendant, thereby usurping the functions of the Senate of the defendant as provided by law. Counsel drew the attention of this court to Section 7(2)(b) and (c) of the University of Ilorin Act Cap 14 Laws of the Federation of Nigeria 2004.
Learned counsel for the Appellant said, Section 7 of the University of Ilorin Act vests in the Senate of the Defendant Appellant the power and functions to make provision for award of degrees and such other qualifications as may be prescribed in connection with examinations held in the University. Counsel said Respondents case amounts to usurpation of the statutorily provided functions of the Senate of the Defendant Appellant.
Counsel for the Appellant referred this court to MAGIT VS UNIVERSITY OF AGRIC. MAKURDI (2005) 19 NWLR (PART 959) 211 at 259 on the interpretation of provision similar to Section 7 of the University of Ilorin Act. Counsel said even from plaintiff/Respondents materials, it is clear, the defendant Appellants Senate has not fully come to a decision not to award the degree thereby making the case inchoate and premature, learned counsel also referred the court to AKINTEMI VS ONWUMECHILI (1995) 1 NWLR (part 1) 58 at 80-81; and said the failure of the trial court to properly consider the authorities cited led it to reach erroneous conclusion.
Mr. Eleja said, the Court of Appeal relied on the decisions cited in resolving similar issue in UNIVERSITY OF CALABAR vs ESIAGA (1997) 4 NWLR PART 502 719 at 742. Learned counsel said,the action of the plaintiff is not maintainable as there is nothing in the Act that confers the court power to dabble into the affairs of the Senate;he therefore urged this Court to sustain the objection and strike out the suit.
Counsel said the Defendant Appellant did not take steps to address Plaintiff/Respondents representation to the visitor; as the senate was yet to conclude deliberation on the same, and the Plaintiff/Respondent did not allow the visitor to resolve the matter, he rushed to court to file this action; and by virtue of Section 14(3)(b) of the University of Ilorin Act, all the bodies and persons are bound to take directives from the visitor. Counsel said once a matter is placed before the visitor, it would amount to flagrant abuse of the law for any organ to look into the matter until the visitor gives directive. Learned counsel said it is premature for the Respondent to seek to invoke the powers of the trial court to compel the Appellant to award his Ph.D degree.
Learned counsel said by the provisions of Section 15 of the Court of Appeal Act,this court is empowered to step into the shoes of the trial court and hold that failure of the Respondent to exhaust domestic avenues before recourse to litigation is fatal. Learned counsel referred this court to UNILORIN VS OLUWADARE (2000) All PWLR PART 338, counsel urged this court to hold that the action is premature and inchoate and strike out the action.
Learned counsel for the Appellant said, as at 15th July 2008, when the trial court became seized of the matter, Plaintiff/Respondents case was statute barred. He said, cause of action arose on 20th June 2005, or 17th November 2006.
That on 20th June 2005, the Respondent wrote a letter to the Appellant which was not replied. Respondent said he was compelled to take a demoting appointment because he was not a Ph.D holder on 17th November 2006.
Counsel said, the Respondent wanted the trial court to believe that cause of action arose on 15th April 2008, when his Solicitors wrote the Respondents a letter exhibit PW2M but was not replied, and he wanted the trial court to disbelieve the Appellant that cause of action arose on 20th June 2005 because of exhibit PW2L which was not replied. Mr. Eleja said this amounts to an act of approbation and reprobation; which the trial court ought not accommodate, he relied on AJADI VS AJIBOLA (2004) 16 NWLR PART 898 page 195, counsel referred this court to the testimony of the Plaintiff at the trial court page 131 of the record of appeal, and urged this court to hold that the cause of action accrued on the 17th day of November 2006. Counsel said in determining whether an action is statute barred or not the court must calculate the date with mathematical accuracy, he referred this court to ADEOMI vs GOVERNOR OF OYO STATE & ORS (2003) FWLR PART 149, Counsel said the Respondent made allegations of bad faith, malice and deliberate exercise without lawful authority by the Appellant, counsel said the court can only question such motives or allegations if the action is filed within three months, he relied on FAJIMOLU VS. UNILORIN (2007) All FWLR PART 350 counsel said action was filed out-side the period of three months envisaged by Section 2(a) of the Public Officers Protection Act; he relied on IBRAHIM VS JSC (1998) 14 NWLR PART 584. He finally urged this court to hold that, the action is statute barred, and strike out same.
Learned counsel Alajo for the Respondent said Appellants submission on issue number one is devoid of merit, Mr. Alajo said, jurisdiction of courts over domestic affairs of universities cannot be ousted at the whims and caprices of the authorities. He said courts are hesitant in interfering in the internal affairs of universities, but he said the courts will interfere, where there is threat to the rights of members of the university. He relied on Section 5(6) b and Section 251(1)(p) and (r) of the Constitution of the Federal Republic of Nigeria 1999 and the decision of OLORUNTOBA VS DOPAMU (2008) All FWLR PART 411, to submit that jurisdiction of courts is determined by plaintiffs action before the court.
Learned counsel referred this court to endorsement on the writ at pages 1 to 3 and paragraph 28 of the Statement of Claim at pages 4-9 of the Record of Appeal, to show that plaintiffs claim at the trial court are for declarations, damages and specific performance against an agency of the Federal Government, counsel therefore said Appellants submission that the trial court lacked jurisdiction to entertain Respondents claim is bereft of any legal force, he said there is nothing in Section 7(2)(b) of the University of Ilorin Act, which ousts the jurisdiction of the trial court. He said, the decision in MAGIT vs UNIVERSITY OF AGRICULTURE (Supra), AKINTEMI VS ONWUMECHILI, UNIVERSITY OF CALABAR VS ESIAGA, cited and relied upon by the Appellant are not helpful to their position, he said all the cases relied on were heard and determined on the merit, and that the court could not interfere because there was no basis to justify so doing.
Learned counsel relied on AKINTEMI, cited by the Appellant and said the decision did not state that jurisdiction of courts is ousted by the provisions of the act; Mr. Alajo said from the various excerpts in Akintemi it is clear that, the mere fact that a matter pertains to completion and or award of degree in a university does not divest the court of jurisdiction to entertain the matter. Learned counsel therefore said the court is constitutionally empowered to look into agitations of the Respondent, the learned trial judge was therefore right in holding that the jurisdiction of the trial court is not ousted.
Mr. Alajo said where the University acts capriciously, the court will be entitled to enquire into the grievance of the plaintiff; he referred this court to UNIVERSITY OF ILORIN VS. STEPHEN AKINOLA (2008) ALL FWLR PART 413 1218 AT 1251 AND UNIVERSITY OF ILORIN VS. ADESINA (2009) ALL FWLR (PART 487) 56 AT 108.
Learned counsel urged this court to hold that the trial court had jurisdiction to hear and determine plaintiff Respondents claim.
On the submission by the Appellant that the action filed by the plaintiff Respondent being premature and inchoate having failed to exhaust domestic mechanism for redress, counsel said the learned trial Judge did not gloss over the ground, rather, the learned trial judge properly considered this ground as evident in page 292 of the record of appeal. That Respondent resorted to litigation when he saw that the internal mechanism for redress failed and no remedy was forthcoming.
Learned counsel Alajo said the submission by the Appellant that, the Senate had not exhausted deliberation on the desirability or otherwise of awarding the Ph.D is not supported by evidence, and therefore goes to no issue; counsel referred the court to JOLAYEMI VS. ALAOYE (2004) All FWLR (PT 217) 584 at 604, SODIPO VS OGAJAN (2001) ALL FWLR PART 494.
Learned counsel said from paragraphs 21 and 24 at the statement of defence and statement of defence at page 41 at the record of appeal and paragraph 30 of the written statement on oath of the Appellants sole witness, it is clear Appellant made up her mind not to award the Respondent his Ph.D, counsel emphasized on Exhibit DW11 at page 54 of the exhibits which also attests to the fact that the Appellant had made up its mind not to award the Respondent his Ph.D.
Counsel Alajo said, between the year 2000 when the Respondent successfully defended his thesis and July 2008 when he filed action at the trial court, the Appellant is unquestionably guilty of unreasonable delay in making its stand known to the Respondent on the programme, there was nothing to show the Respondent that his matter was actually receiving any attention; that Respondent wrote Exhibit PW2J in 2002, between 2002 and 2008, the Respondent refused to say anything to the Respondent. Counsel said the Respondent must not wait to eternity for the Appellant to act on his matter; counsel said the long unexplained delay in resolving Respondents case is enough to conclude that the Appellant was no longer attending to the Respondents case. The reason for failure to resolve Respondents matter proffered by Appellant is untenable said learned counsel, that since the matter is before the visitor the Appellant cannot take a decision on the Respondent, this reason counsel said is not tenable, Respondent must not be made to wait in perpetuity for domestic resolution.
Learned counsel Alajo said, the act of withholding Respondents Ph.D is a continuing act, the cause of action would last as long as the act continues the action cannot be statute barred.
Counsel for the Respondent said, the Appellant failed to communicate its stand to the Respondent on the fate of his representation, they chose to sit on all correspondences, that therefore left his matter pending awaiting response, such an action cannot therefore be held to be statute barred since no decision was taken and communicated to the Respondent, counsel referred this court to IKINE vs ADJERODDE (2002) FWLR PART 92. 1775 at 1769.
Mr. Alajo said the Appellant is guilty of blowing hot and cold, on one hand the action is premature on the other it is statute barred. Counsel said the absence of categorical stand on Respondents Ph.D programme kept Respondents cause of action in abeyance.
Learned counsel urged this Court to resolve this issue in favour of the Respondent.
The Appellant filed reply brief relying on A.G. RIVERS VS A.G. AKWA IBOM STATE (2011) 2 SCM tat a9; Counsel said this submission on this issue does not amount to blowing hot and cold.
Learned counsel for the Appellant said the lower court had no jurisdiction to entertain Plaintiff/Respondents claim having regard to Section 7(2)(b)(c) of the University of llorin Act Cap U4 Laws of the Federation of Nigeria 2004 and relied on AKINTEMI (Supra), incidentally even Respondents counsel relied on the same authority to submit that the lower court had jurisdiction.
The said section provides as follows:
7(2) “Without prejudice to the generality of sub-section (1) of this section, and subject as …. 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 learned trial Judge at page 289 of the record of appeal said as follows:
“…If the body or authority which is empowered to exercise a statutory function and it fails to do so, the action for specific performance can be instituted in court to compel such body to act…”.
Also at page 290 of the record the learned trial Judge said:
“The courts can always enquire on whether or not the defendant has properly exercises its statutory with respect to its students…”
The Plaintiff/Respondent from available records page 131 of the record of appeal said
“I know as a fact, that having exhausted all available non-judicial measures to make the Defendant do the needful on the matter of the Ph.D programme I was constrained to file this action on the conviction that the Defendant appears to be minded to forever stultify my enjoyment of the degree.
It is obvious from the records before us, that Plaintiff/Respondent made efforts to channel his grievance through the internal mechanism of the University without success. I am in absolute agreement with the learned trial Judge, that where the domestic forum established under the Act setting up the Appellant fails to address the grievance of the Plaintiff/Respondent he will have the right to proceed to court to ventilate his grievance.
The Appellant took so long without addressing the complain, in the circumstance therefore the learned trial Judge was right in assuming jurisdiction; I am sure, the provisions of Section 7(2)(b)(c)of the University of Ilorin Act are not designed to oust the jurisdiction of the courts; and if that is allowed it would lead to arbitrariness and reckless show of authority.
On whether or not the action is inchoate and premature, and statute barred, I agree with Mr. Alajo that, an action cannot be premature and statute barred at the same time.
The Respondent was kept in suspense waiting for response from the Appellant for over six years, up to the time he went to court to file his action no decision was taken by the appellant, Section 2(a) of the Public Officers Protection Act Cap P41 Laws of the Federation of Nigeria 2004 provides as follows:
“The action, prosecution or proceeding, shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained at, or in case of a continuance of damage or injury within three months next after ceasing thereof”.
From the provisions of section 2(a) above, the law would only apply upon the event of withholding Respondent’s Ph.D being decided by the Appellant, up to the time the Respondent commenced the action at the trial court no decision was taken by the Appellant, it is clear from the materials before us that Respondents action is not caught up by provisions of section 2(a). In the decision in EDJERODE (Supra), Ejiwunmi JSC said;
“…Time, it was held would not commence in respect of their cause of action, consequent upon the rejection of their claim until that rejection was communicated to them and not before…”relying on Turbervile Vs Westhain, (1950) 2 KBD.
Counsel Eleja in paragraph 5-18 of Appellants brief of argument said;
“…A necessary corollary of this is that, once a matter is placed before the visor as it was done by the Respondent in this case, it would border not only on impertinence, but a flagrant distortion of the law to continue to look into the matter by any of the other organs or bodies or persons earlier referred to it is therefore premature for the Respondent having regard to the scenario depicted above to seek to invoke the powers of the trial court to compel the Appellant to award his Ph.D Degree”.
It appears to me that the Appellant actually blew hot and cold, holding on one hand that the action was premature, on the other it was statute barred, Appellant certainly found itself on the cross-roads; the learned trial Judge in my view arrived at appropriate conclusion by holding that the trial court had jurisdiction. This issue is therefore resolved in favour of the Respondent.
ISSUE II
“Whether from the material evidence in this case, the trial court was right in holding that, the Appellant is estopped from claiming that, the Respondent overstayed his Ph.D programme.
Learned counsel for the Appellant referred this court to page 301-303 of the record of appeal, where the Appellant conducted defence for the Respondent (outside the stipulated period. Learned counsel said, having conducted defence the court is of the view that the Appellant waived its right of complain, that the conduct of the Appellant in organizing defence for the Respondent is a waiver, the Appellant cannot turn around to allege that Respondent over stayed his programme.
Counsel said the principle of estoppel, waiver and acquiescence do not apply in Respondents case, because according to learned counsel, the Respondent knew that he over stayed his program and the Appellant cannot be held responsible for conducting the defence wrongly outside the statutory period, as the agent who conducted the defence had no such authority to conduct the defence outside the statutory period; counsel said the post-graduate school has authority to conduct defence as part of the processes to award of Ph.D, as found in exhibit DW1A, but the agent had no authority to do so outside the stipulated period; that it was the bid to get ratification that led to writing of exhibits DW1C, DW1D, DW1E, DW1F; counsel relied on VULGAN GASES LTD VS G.I.V. (2001) 5 SCNJ 55, and said where agent acts in excess of authority the action is inconsequential and of no effect.
Counsel Eleja said,the defence took place in December 2001, outside the extended period. That Respondent cannot raise estoppel against the Appellant, that defence of Ph.D thesis does not amount to automatic ticket for award of the Degree. Counsel urged this court to resolve this issue in favour of the Appellant. In his response, learned counsel for the Respondent said, the decision of the trial court that the Appellant is estopped from claiming that the Respondent overstayed his Ph.D programme is unassailable, considering the circumstances of this case.
Learned counsel said by Exhibit DW1P at page 97 of the record of appeal, Respondents Ph.D programme was extended from June 1999 to June 2001, that from Exhibits PW2R, PW2K and PW2R it is clear the Respondent completed his programme within the extension period, that Respondent successfully defended his thesis on 1st December 2000 not 1st December 2001; that Respondent gave oral evidence that he defended his thesis on 1st December 2000 exhibit DW10 Examiners report bears 1st December 2000. That Appellant said Respondent defended his thesis on 1st January 2001, but corrections were certified on 24th July 2001, counsel said correction cannot supersede defence as correction follows defence, he said allegation of over-stay is just a design to misrepresent facts against the Respondent; counsel referred to Exhibit PW2C at page 18 of the bound exhibits tendered, to show that Respondents Supervisor certified his work by 16th February 2001. That Respondent had effected all the corrections suggested by the external examiner and internal examiners on his thesis; that he submitted the corrected version of his thesis on 16th February 2001, and Appellant delayed signing the certification until July 2001.
Mr. Alajo said, the Appellant allowed the Respondent to orally defend his thesis in December 2000, as shown in Exhibit DW1P within the period of extension, counsel said Appellant had by conduct waived the provision as to duration, and therefore estopped from denying the Respondent his Ph.D. counsel relied on OYEDOGBA V. OLAOPA (1998) 2 SCNJ 115 at 122-124. And YUSUF vs DADA & 4 ORS (1990) 3 NSCC 124 at 143.
Counsel for the Respondent said the Appellant waived the duration set-out in the prospectus for contemporaries of the Respondent who stayed longer period on their programmes than the Respondent, and whose reasons for over stay were the same with the Respondent were allowed to finish their programmes. He urged this court to resolve this issue in favour of the Respondent and affirm the decision of the lower court.
Learned counsel for the Respondent filed reply on this issue.
In holding that the Appellant waived their right if any, the learned trial Judge at pages 301 to 302 of the record of appeal said:
“From the evidence presented by the plaintiff in support of his case, he has established that, he had been examined on his thesis, and infact has been passed by the examiners, who were duly appointed by the Defendant. This fact is evidences by Exhibit DW10. The Defendant is not contesting the fact that, the plaintiff had passed his examination, but that he overstayed, as at the time he did the oral defence.
It must be remembered that, by the provisions of Section 7(2)(b) of the University of Ilorin Act, which has earlier been quoted in this judgment,the organization of examination in the University is the exclusive statutory duty of the University,and no one else. In the case of University of Calabar Vs Esioga (Supra) cited by the defence counsel in this address, the Court of Appeal held that the conduct of the examination, is exclusively the jurisdiction competences, of portfolio of the University senate.
It does not share this function with any other body or bodies in terms of the finality of the decision…
Now, having exercised this statutory duty and allowed plaintiff to the take his examinations, wilt it be just for the same University to turn around and say that the examination which it conducted was a nullity and declare that against the plaintiff. If the examination was wrongly conducted, it was conducted by the Defendant not by the Plaintiff. No one is allowed to benefit from his own wrong and deprive another of his right.
In this case, the University is claiming that, it exercises its duty outside the period of the Plaintiffs ph.D program and allowed him to take examination which he had passed. I have to agree with the Plaintiffs counsel that the effect of this is that, the university has acquiesced and waived whatever delay it may claim against the student, the principles of Estoppel will apply to stop the defendant from belatedly remembering that the Plaintiff has overstayed its program and based on that will hold his degree…”
The Respondent cited YUSUF vs DADA (supra) Agbaje JSC said
“I think that, the following decision in Morayo vs Okiaro 8 WACA 46 at 47-48 is very much relevant to the point I am considering.
The general rule as to estoppel by silence or standing by was laid down in the case of Caincrass VS Lorimer (1860) 3 LT. 130. It is as follows:
“It is a rule of universal law, that, if a man, either by word or conduct has intimated that, he concerts to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully 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 sanction to the prejudice of those who have given faith to his woes, or to the fair inferences to be drawn from his conduct. In such cases proof of positive assent or concurrences is unnecessary. It is enough that the party had full notice of what was being done and the position of the other party it altered.
The case of the Appellant appears to be that of an architect who took part in design and construction, only to suddenly state that, the project was cited on a wrong plot, Certainly the architect must not be heard to complain, or it may be inferred that he is reckless, unprofessional, or out-rightly malicious. The Appellant in this appeal has clearly demonstrated that it is possible to change steps even where it is absolutely impossible. The attempt by the Appellant to declare the post-graduate School an “Ogbanje” outcast in order to deny the Respondent his Ph.D certification speaks volumes. I agree with the learned trial Judge that the Appellants have waived their right of complain having led the Respondent to believe that they were acting in good faith. It is too late to cry. This issue is resolved in favour of the Respondent.
ISSUE 3
“Whether the trial court was right based on the material evidence before it, to grant the declaratory reliefs sought by the Respondent”.
This issue relates to findings of fact by the trial court, learned counsel Eleja said the court was wrong in granting the reliefs sought by the Respondent as grant of the reliefs is bereft of merit. Learned counsel repeated the issue of overstay, the jurisdiction of the trial court having regard to Section 7 of the University of llorin Act that there is no evidence before the court to show that conduct of the Appellant is malicious and oppressive,that the learned trial Judge relied on extraneous facts, he therefore urged the court to resolve this issue in favour of the Appellant.
Learned counsel for the Respondent, said the Respondent had clearly led credible evidence to establish his claim before the trial court. Learned counsel addressed the issue of over stay in Respondents brief and urged this court to resolve this issue in favour of the Respondent.
I carefully read the record of appeal, at page 303, the learned trial Judge properly and rightly in my view analysed the evidence led at the trial and came to the conclusion that;
“In the final analysis the Plaintiffs Ph.D has not been treated fairly by the Defendant having regard to the circumstances of this case”.
This court has on a number of occasions mentioned that pluralisation and fragmentation of issues for determination is not necessary where a particular issue appears sufficient. In this appeal issue number 3 even though crafted to demonstrate lack of sufficiency of evidence, the same issue is already resolved in issue number 2 since the major points relate to jurisdiction and allegation of over stay; for whatever reason, this issue even though crafted and addressed differently, I believe it may be properly subsumed in issue number 2, I resolve same in favour of the Respondent.
ISSUE 4
Whether the trial court was right in awarding Ten Million Naira exemplary damages against the Appellant.
Learned counsel said the award of N10,000,000.00 exemplary damages to the Respondent was made in gross error by the court, that the evidence Respondent tendered at the trial was rejected because the learned trial judge agreed the evidence was irrelevant to the proceedings, and therefore marked rejected,he referred the court to pages 172-173 of the record of appeal and pages 98-153 0f the bound exhibits tendered.
Learned counsel said, the learned trial Judge erred in law by awarding the said sum as aggravated and exemplary damages; counsel said Respondents claim for damages was premised on career stagnations, retrogression, etc. due to alleged unjust denial of Ph.D, that apart from the endorsement on the statement of claim Respondent filed no further materials to support this claim, he said pleadings do not amount to evidence, that pleadings must be supported by evidence he referred the court to SKYE BANK PLC vs AKINPELU (2010) ALL NWLR (PART 526) 460 at 475,
Learned counsel said, there is no nexus between refusal to award ph.D degree and plaintiff leaving the services of the Appeallant, that the Plaintiff/Respondent failed that the failed to establish any wrong against him to warrant the award of damages; that the Appellant is not bound to award the Degree; that Appellants conduct is not oppressive, arbitrary or unconstitutional, that, there is no express statute that authorizes the award of exemplary damages against the defendant; that the court has no reason to award the damages it did, that the amount awarded is too high and extravagant, as there is no evidence to support the award.
Mr. Eleja said award of exemplary damages is to show to the Defendant, that his act was not supported by the law, and not to enrich him. Counsel said the award of N10,000,000 is to enrich the Respondent. Learned counsel relied on ALLIED BANK vs AKABU EZE (1997) 6 SCNJ 116 at 142.
Learned counsel said even if the trial court was right in the damages, the amount is excessive, he urges this court to interfere.
In his response counsel for the Respondent said, Appellant failed to award the Respondent his Ph.D because of allegations of over-stay, and that same Appellant went ahead to award degrees to persons who overstayed longer than the Respondent by so doing counsel said Appellant was only minded to isolate and victimize the Respondent, that the Appellant acted capriciously and maliciously that when conduct of a party which resulted in injury suffered is raced with malice’ oppression, insolence, spite and contempt, the court would be right in granting exemplary or aggravated damages against the erring party.
The learned trial Judge at pages 303 to 304 said the appellant compelled the Respondent to take lesser position following denial by the Appellant of his Ph.D.
The Learned trial Judge found as a fact, that Respondent was denied his Ph.D for a long period of above seven years, the Appellant blew hot and cold, conducting examination, and appointing examiner on one hand, and alleging over award of stay on the other. These pieces of facts put together form the basis of the decision reached by the learned trial Judge to award such exemplary damages.
The law is settled that, exemplary damages are awarded where the defendant has committed wrong with reckless impunity, high handedness, exhibiting outright insolence and vindictiveness, I am bound to agree with the learned trial Judge in the area of award of exemplary damages to the Respondent. The Appellant exhibited outright malice, one would certainly fail to understand why, an establishment, enlightened as the Appellant, would chose to toy with the fate of its student in this manner, taking the institution to eternity to communicate simple decision, throwing the Respondent into the abyss and mesh of imponderable mysteries of human behavior. I will stop here. This issue is also resolved in favour of the Respondent.
On the whole therefore, the Appellant has nothing useful to urge this court, the appeal is bereft of merit. It is hereby dismissed. I affirm the decision of the lower court delivered on 27th July 2011. Parties shall bear their respective costs.
HUSSEIN MUKHTAR, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother Abubakar, JCA just rendered.
I agree with his reasoning and conclusion that the appeal lacks merit and stands dismissed.
A adopt the consequential orders made in the judgment.
OBANDE FESTUS OGBUINYA, J.C.A.: I agree.
Appearances
K. K. Ejeja Esq. with T. Aduagba, M. A. Abduraheem, T. Alubarika, I. K. Alabidun, M. F. Ayo (Miss), A. A. Alfa NlaFor Appellant
AND
Y. A. Alajo with E. O. Adewoye (Mrs.)For Respondent
