braimoh akinola v. vc unilorin - yusuf ali · nigeria weekly law report braimoh vs university of...

Nigeria Weekly Law Report

Braimoh vs University of Ilorin 1

BRAIMOH BABATUNDE AKINOLA

V.

1. VICE-CHANCELLOR, UNIVERSITY OF ILORIN

2. THE GOVERNING COUNCIL, UNIVERSITY OF ILORIN

3. UNIVERSITY OF ILORIN

COURT OF APPEAL

(ILORIN DIVISION)

CA/1L/17/2003

ABOYIJOHNIKONGBEH.J.C.A. (Presided)

WALTER SAM UKL N KANU ONNOGHEN, J .C.A. (Read the Leading Judgment)

JA'AFARU MIKA'ILU, J.C.A.

TUESDAY, L1TH MAY, 2004

ACTION - Abuse of court process - What constitutes.

ACTION - Action for enforcement of fundamental rights - Claim cognisable hereunder -

Jurisdiction of court to entertain -Condition precedent thereto.

ACTION-Consolidation of actions - Consolidated suits - Appeal therefrom - Whether multiple

notices of appeal required to be filed.

ACTION- Consolidation of actions - Purpose of- Judgment in consolidated suits - How

delivered.

APPEAL— Consolidated suits—Appeal therefrom- Whether multiple notices of appeal required to be filed.

CASE LAW-Egbuonu v. Borno Radio Television Corporation (1997) 12 NWLR (Pt. 531) 29 - What Supreme Court decided therein.

CONSTITUTIONAL LAW - Fundamental rights - Action for enforcement of fundamental rights — Jurisdiction of court to entertain — Condition precedent thereto.

CONSTITUTIONAL LAW - Fundamental rights - Action for enforcement of fundamental rights - Claim cognisable hereunder - Jurisdiction of court to entertain - Condition precedent thereto.

COURT-Abuse of court process - What constitutes.

COURT — Judgment of the Supreme Court — Bindingness on the Court of Appeal.

COURT - Jurisdiction of court - Fundamental rights - Action for enforcement of fundamental rights - Jurisdiction of court to entertain — Condition precedent thereto.



COURT— Jurisdiction of court — Where court lacks jurisdiction to entertain principal or main claim — Effect on subsidiary or ancillary claim falling within court's jurisdiction.

CRIMINAL LAW AND PROCEDURE - Offences - Membership by University student of association not registered by University - Whether criminal in nature — Whether requires proof beyond reasonable doubt.

DOCUMENT — Document not tendered as exhibit — Whether court can look at it.

DOCUMENT - Pleading - Facts in pleaded exhibit- Where not independently averred in pleading - Whether court can rely on.

EVIDENCE — Documentary evidence — Document not tendered as exhibit but in court's file - Whether court has power to look thereat.

EVIDENCE - Proof - Evidence led on fact not pleaded - How treated.

EVIDENCE - Proof - Facts in pleaded exhibit - Where not independently averred in pleading — Whether court can rely on.

FAIR HEARING - Right to fair hearing-Allegation of breach of-Party dragged before panel - When he cannot complain of.

FUNDAMENTAL RIGHTS - Action for enforcement of fundamental rights - Claim cognisable hereunder - Jurisdiction of court to entertain — Condition precedent thereto.

JUDGMENT AND ORDER - Judgment of the Supreme Court -Bindingness on the Court of Appeal.

JUDICIAL PRECEDENT- Stare decisis - Judgment of the Supreme Court — Bindingness of on Court of Appeal.

JURISDICTION - Action for enforcement of fundamental rights -Jurisdiction of court to entertain-Condition precedent thereto.

JURISDICTION - Jurisdiction of court - Where court lacks jurisdiction to entertain principal or main claim — Effect on subsidiary or ancillary claim falling within court's jurisdiction.

PRACTICE AND PROCEDURE - Abuse of court process - What constitutes.

PRACTICE AND PROCEDURE - Consolidation of actions -Consolidated suits - Appeal therefrom - Whether multiple notices of appeal required to be filed.

PRACTICE AND PROCEDURE - Consolidation of actions -Purpose of- Judgment in

consolidated suits — How delivered.

PRACTICE AND PROCEDURE - Pleadings - Bindingness of on parties and court — Implication of - Evidence led on fact not pleaded - How treated.

PRACTICE AND PROCEDURE - Pleadings - Facts in pleaded exhibit - Where not



independently averred in pleading -Whether court can rely on.

STARE DECISIS - Judgment of the Supreme Court - Bindingness of on Court of Appeal.

STATUTE - Students Union Activities (Control and Regulations Purport of - Whether student's membership of unregistered associations a criminal act thereunder.

UNIVERSITY-Membership of unregistered association-Allegation of by University - Nature of - Whether criminal in nature -Whether requires proof beyond reasonable doubt.

UNIVERSITY- Students Union Activities (Control and Regulations) Act - Purport of- Whether student's membership of unregistered association a criminal act thereunder.

WORDS AND PHRASES-Abuse of court process-What constitutes.

Issues: 1. Whether the trial court was right in dismissing the cross-appellant's objection that the

appellant's suits were filed in abuse of court process.

2. Whether the trial court was right in dismissing the appellant's suits.

Facts:

The appellant was a final-year student of the 3rd respondent in the Department of Linguistics and Nigerian Languages. He was suspected of being a member of an unregistered association known by the letter "X". As a result, the Deputy Chief Security Officer of the 3rd respondent handed him over to the police who searched his private residence and found a "Malcolm X" poster on the wall of his residence.

Thereafter, the 3rd respondent wrote a letter to the appellant and invited him to appear before the 3rd respondent's Students Disciplinary Committee to explain why he should not be disciplined for being a member of an unregistered association contrary to the 3rd respondent's regulations and the appellant's matriculation pledge, The letter further stated that the appellant's conduct was punishable as a misconduct under section 17 of the University of Ilorin Act.

The appellant appeared before the 3rd respondent's Students Disciplinary Committee without any objection. During the proceedings of the Committee, the Committee found that the appellant had an "X" mark on his back and the Committee recorded its finding in its report.

Subsequently, the appellant was expelled from the 3rd respondent for being a member of an unregistered association contrary to the respondent's regulation and the appellant's matriculation pledge.

Following his expulsion, the appellant wrote an appeal to the 3rd respondent's authorities to reconsider his case but he got no response. Consequently, the appellant filed a suit against the respondents under the Fundamental Rights (Enforcement Procedure) Rules. He sought declarations that his expulsion from the 3rd respondent was wrongful; that his expulsion from the 3rd respondent on the ground that he was a member of a secret cult that committed criminal acts when he was not indicted by a police report was unconstitutional and void; and that the proceedings of the 3rd respondent's Student's Disciplinary Committee was conducted in breach of his fundamental right to fair hearing and void. He also sought orders setting aside his expulsion from the 3rd respondent and for his reinstatement as a student of the 3rd respondent. Thereafter, the appellant filed a second suit by writ of summons against the respondents. He sought the same reliefs he sought in his application under the Fundamental Rights (Enforcement Procedure) Rules. In addition, he sought an order of perpetual injunction to restrain the



respondents from taking any step concerning the subject of his suit, which would have the effect of adversely affecting his completion of his degree programme. The appellant's suits were later consolidated by an order of court.

The respondents raised preliminary objections to the suits on the ground that the second suit was an abuse of court process in view of the subsistence of the first suit and that the first suit ought not to be filed under the Fundamental Right (Enforcement Procedure) Rules because the main relief therein challenged the dismissal, expulsion and termination of the appellant's studentship while the issue of fair hearing was ancillary.

The respondents also pleaded that they would rely on the record of proceedings of the 3rd respondent's disciplinary committee and did tender it without any objection as exhibit "E"' at the trial of the

suit.

In its judgment on one of the suits, the trial court overruled the respondents' preliminary

objection. It also raised and considered the fact that an "X" mark was found on the body of the

appellant as stated in exhibit "E" although the appellant was not cross-examined directly on the

matter in the course of the trial. The trial court made findings on the issue and dismissed the

appellant's suits.

The appellant was dissatisfied, and he filed a notice of appeal against the judgment of the

trial court. The respondents, on their part, also filed a notice of cross-appeal against the aspect of

the judgment overruling their preliminary objections to the appellant's suits.

In the Court of Appeal, the respondents raised a preliminary objection to the appeal,

contending that the appeal being against decisions in consolidated suits ought to have been initiated

by two separate notices of appeal instead of one, as was done, thereby rendering the appeal

incompetent. They contended that it was wrong for the single notice of appeal to contain complaints

against the two cases.

Held (Unanimously dismissing the appeal and allowing the cross-appeal): 1. On Competence of court to decide ancillary claim where it lacks jurisdiction to entertain

the principal claim -Where an ancillary or incidental or accessory claim or claims are so inextricably tied to or bound up with the main claim before the court in a suit, a court cannot adjudicate over them where it has no jurisdiction to entertain the main claim or where the determination of such incidental or ancillary claims must necessarily involve a consideration or determination of the main claims. In the instant case, there was no way the appellant's claim relating to breach of his fundamental right to fair hearing could be determined without a determination of his main claim for wrongful expulsion from the 3rd respondent and the related claims which he also included in his application for enforcement of his fundamental right. In the circumstance, the application under the under the Fundamental Rights (Enforcement Procedure) Rules was incompetent and ought to be struck out. [Tukur v. Govt. of Gongola Slate (1989) 4 NWLR (Pt. 117) 517; Tukur v. Govt of Taraba State (1997) 6 NWLR (Pt. 510) 549; Egbuomi v. BRTC (1997) 12 NWLR (Pt. 531) 29 referred to.] (Pp. 639-640. paras. F-A)

2. A condition precedent to the exercise of the court's jurisdiction in an action filed under the Fundamental Rights (Enforcement Procedure) Rules is that the enforcement of a fundamental right or the securing of the enforcement of the right should be the main claim and not an accessory claim. Consequently, where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the court cannot be properly exercised because the action is



incompetent. In the instant case, the main complaint of the appellant in his application under the Fundamental Rights (Enforcement Procedure) Rules was against his expulsion from the 3rd respondent. In the circumstance, the application was incompetent. (Pp. 638-639, paras. H-B; D-E)

3. On When party can initiate two suits against same defendant - What the Supreme Court decided in Egbuonu v. B.R.T.C. (1997) 12 NWLR (Pt. 531) 29 is that where certain facts in a cause of action can support an action under the Fundamental Rights (Enforcement Procedure) Rules while others can support an action by a writ of summons, then the plaintiff can bring two actions depending on the supporting facts; the one under the Fundamental Rights (Enforcement Procedure) Rules and the other by writ of summons and then the two actions may be consolidated by the court. It did not by that decision hold that a party whose cause of action constitutes both a breach of a fundamental right and an ordinary wrong must institute two actions. (P. 642, pann, A-E)

4. On When person dragged before Disciplinary Panel cannot complain of denial of right to fair hearing - A party cannot complain of a breach of his right to fair hearing where he was given an opportunity to defend himself against allegations which were reduced into writing before a panel whose members' integrity he did not challenge during the proceedings. In the instant case, the appellant was given an opportunity to be heard by the disciplinary panel in respect of the allegations which were made against him. He did not challenge the impartiality of the panel's members and no other person was heard in the course of the proceedings. In the circumstance, the appellant could not complain assert that his right to fair hearing was breached by the respondents. (P. 647, paras. A-E)

5. On Whether membership of unregistered association is criminal under Students Union Activities (Control and Regulations) Act - The Students Union Activities (Control and Regulations) Act deals with the powers of University authorities in Nigeria to regulate the activities of students' unions and associations; and empowers the governing councils of the Universities to proscribe unlawful societies in Universities. The Act does not provide that it is a criminal offence for a student of a University to belong to an unregistered association. (P. 648, paras. E-F)

6. Nature of allegation of student's membership of association not registered by University –

An allegation of a University student's membership of an association not registered by the University contrary to the University's regulations and the student's matriculation pledge is not an allegation which borders on criminality. Consequently, it need not be proved beyond reasonable doubt. In the instant case, the allegation against the appellant was that he was a member of an association not registered by the 3rd respondent contrary to the 3rd respondent's regulations and the appellant's matriculation pledge. In the circumstance, the appellant was not accused of any criminal offence, Consequently, the trial court was right when it held that the standard of proof of the allegation against the appellant was on the balance of probability and not beyond reasonable doubt as contended by the appellant. (P. 648, paras. A-D; H)

7. On what constitutes abuse of court process –



What amounts to an abuse of court process cannot be clearly defined because it involves circumstances and situations of infinite variety and conditions. However, it has a common feature in the improper use of judicial process by a party in litigation to the irritation and annoyance of his opponent and the efficient and effective administration of justice. (P. 640, paras. C-D)

8. On What constitutes abuse of court process - An abuse of process of court is constituted when more than one suit is instituted by a plaintiff against a defendant in respect of the same subject matter, notwithstanding the fact that the plaintiff has the right to bring the actions or that the actions were brought on different grounds. The abuse is said to consist in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice. In the instant case, the appellant's second suit which was instituted while his application for enforcement of his fundamental right was pending on the same subject matter was instituted in abuse of court process and ought to have been struck out by the court. [Tukur v. Govt. of Gongofa State (1989) 4 NWLR (Pt. 117)517; Tukur v. Govt. of Taraba Stale (1997) 6 NWLR (Pt. 510) 549; Egbuonu v. BRTC (1997) 12 NWLR (Pt. 531) 29 referred to.] (Pp. 640. paras. E-/7; 641. para. G)

9. On Purpose of consolidation of suits and how judgment delivered in consolidated suits - Consolidation of suits is for the convenience of trial of the suits. In other words, the suits still retain their individuality. That is why at the end of the trial, two or more judgments or decisions are handed down depending on the number of suits consolidated. In the instant case, the trial court erred when it fused the cases into one and delivered judgment in only one of the two cases leaving out the other. \Nasr v. Complete Home Ent. (Nig.) Ltd. (1997) 5 SC 1; Kulse v. Bakfur (1994) 4 NWLR (Pt. 337) 196; Ahiribc v. Nwankpa (1999) 4 NWLR (Pt. 600) 551; Atanda v. Ajani (1989) 3 NWLR (Pt. Ill) 511; Snwiita v. Ngah (1998) 13 NWLR (Pt. 580) 39 referred to.] (Pp. 641-642, paras. H-A; 642, paras. D-G)

10. On Whether multiple notice of appeal required against judgment in consolidated suits - A party who is dissatisfied with the judgments of a trial court in consolidated suits can file a single notice of appeal because there is no rule of law or practice requiring an aggrieved party appealing from a decision in consolidated suits to file two notices of appeal. In the instant case, the appellant acted properly by filing a single notice of appeal against the judgment of the trial court in the consolidated suits. [Igwe v. Kalu (1993) 4 NWLR (Pt. 285) 1 referred to.] (Pp. 634-635, paras. G-G; 637, para. E)

11. On Bindingness of pleadings on parties and court and implication thereof - Parties to a suit, and the court, are bound by the pleadings; and evidence on facts not pleaded goes to no issue. (P. 649, paras. G-H)

12. On Whether court can rely on facts in pleaded exhibit when those facts not independently averred in pleading - A court can rely on facts contained in an exhibit which was pleaded in making findings of fact notwithstanding that the facts in the exhibits were not independently pleaded. In the instant case, exhibit "E" was pleaded and admitted in evidence without objection by the appellant. In the circumstance, it was evidence before the trial court and it could make a finding based on it. [Ekpe v. Oke (2001) 10 NWLR (Pt. 721) 341 referred to.] (Pp. 649- 650, paras. II-E)



13. On Power of court to look at document in its file not tendered as exhibit - A court is entitled to look at a document in its file while writing its judgment or ruling despite the fact that the document was not tendered and admitted as an exhibit at the trial. [Agbaisi v. Ebikerefe (1997) 4 NWLR (Pt. 502) 630; Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt. 594) 170 referred to.] (P. 650, paras. B-C)

14. On Bindingness of judgment of the Supreme Court on Court of Appeal - By the principles of stare dicisis and judicial precedent, the Court of Appeal is bound by decisions of the Supreme Court. (P. 635, para H)

Nigerian Cases Referred to in the Judgment: Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325 Aiyetan v. NIFOR (1987) 3 NWLR (Pt. 59) 48 Alaribe v. Nwankpa (1999) 4 NWLR (Pt. 600) 551 Animashaun v. Osuma (1972) 4 SC 47 Alanda v. Ajani (1989) 3 NWLR (Pt. 111)511 Badejo v. Fed. Min. of Education (1996) 8 NWLR (Pt. 464) 15 Benaplastic v. Vasilyev (1990) 10 NWLR (Pt. 624) 620 Denloye v. Medical & Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306 Doma v. Adamu (1999) 4 NWLR (Pt. 598) 311 Egbuonu v. BRTC (1997) 12 NWLR (Pt. 531) 29 Egonu v. Egonu (1978) 11-12 SC 111 Ekpe v. Oke (2001) 10 NWLR 2 (Pt. 721) 341 Garbav. University ofMaiditguri (1986) 1 NWLR (Pt. 18)550 Igwe v. Kalu (1993) 4 NWLR (Pt. 285) 1 Igwilo v. C.B.N. (2000) 9 NWLR (Pt. 672) 302 Ikine v. Edjerode (1996) 2 NWLR (Pt. 431) '161 Kutse v. Bakfur (1994) 4 NWLR (Pt. 33 7) 1 % N.S.I.T.F.M.B. v. Adebiyi (\990) 13 NWLR (Pt. 6) 16 N.V. Scheep v. M.V. "S. Aral" (2000) 15 NWLR (Pt. 691) 622 Naxrv. Complete Home Ents. (Nig.) Ltd. (1977) 5 SC I Nwaeze v. Eze (1999) 3 NWLR (Pt. 595) 410 Ogiamen v. Ogiamen (1967) NMLR 245

Ogundiran v. Commissioner of Police (Appeal No. CA/1L/28/2002) Ojengbede v. Esan (2001) 18 NWLR (Pt. 746) 771 Oko v. Igweshi (1997) 4 NWLR (Pt. 497) 48 Okomdiidu v. Okoromadu (1977) 3 SC 21 Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156

Sawuta v. Ngah (1998) 13 NWLR (Pt.580) 39

Shell Trustees (Nig.) Ltd. v. Imanni & Sons Ltd. (2000) 6 NWLR (Pt.662) 639

Shitta-Bayv. F.P.S.C. (1981) 1 SC 40

Tukurv. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517

Turkur v. Govt. of Taraba Slate (1997) 6 NWLR (Pt. 510) 549

UBNv. Ozigi (1994) 3 NWLR (Pt. 333) 385

WAEC v. Akinkunmi (2002) 7 NWLR (Pt. 766) 327

WAEC v. Mbamalu (1992) 3 NWLR (Pt. 230) 481

Woluchem v. Gudi (1981) 5 SC. 291

Nigerian Statute Referred to in the Judgment:



University of llorin Act, S. 17

Nigerian Rules of Court Referred to in the Judgment:

Fundamental Rights (Enforcement Procedure) Rules

Appeal and Cross-appeal: This was an appeal against the judgment of the Federal High Court, llorin, dismissing the

appellant's suits. The respondents cross-appealed against the decision overruling its preliminary objection by the trial court. The Court of Appeal, in a unanimous decision, dismissed the appeal and allowed the cross-appeal.

History of the Case:

Court of Appeal: Division of the Court of Appeal to which the appeal was brought: Court of Appeal, llorin Names of Justices that sat on the appeal: Aboyi John Ikongbch, J.C.A. (Presided); Walter Samuel Nkanu Onnoghen, J.C.A. (Read the Leading Judgment); Ja'afaru Mika'ilu, J.C.A. Appeal No.: CA/IL/17/2003 Date of Judgment: Tuesday, llth May, 2004 Names of Counsel: Roland Otaru, Esq. (with him, V. 0. Awomolo [Mrs.]) -for the Appellant/Cross-Respondent K. K. Eleja, Esq. (with him, Tafa Ahmed, Esq., Yakub Dada, Esq. and M. O. Ekundayo [Mrs.]) -for theRespondents/Cross-Respondents

High Court: Name of the High Court: Federal High Court, llorin Name of the Judge: Olayiwola, J. SuitNos.: FHC/IL/M. 1/2002 and FHC/1L/CS/10/2002 Date of the Judgment: Friday. 7th February, 2003

Counsel: Roland Otaru, Esq. (willi him. V. O. Awomolo [Mrs.]) -for the Appellant/Cross-Respondent

K. K. Eleja, Esq. (with turn, Tafa Ahmed. Esq., Yakub Dada. Esq. and M. O. Ekundayo [Mrs.]) -for the Responden/s/Cross-Respondents

ONNOGHEN, J.C.A. (Delivering tin- Loading Judgment): This is an appeal against the judgment of the Federal High Court sitting at llorin in the consolidated suit Nos. FHC/IL/M. 1/2002 and IL/CS/10/2002 delivered by Hon. Justice P. F. Olayiwola on 7ih February 2003 dismissing the case of the appellant. The facts of the case include the following. The appellant was a final year student of the University of llorin in the department of Linguistics and Nigerian Languages of the Faculty of Arts until his expulsion from the said University vide a letter dated 27th September, 2001 and tendered in the proceedings as exhibit C. Before the expulsion, the appellant was invited to appear and did appear before a Students Disciplinary Committee of the University on allegation of membership of an unregistered association etc. in the University on 26th September 2001. Following the expulsion, the appellant wrote an appeal to the University authorities to reconsider his case but had no response before instituting his first action under the Fundamental Rights



(Enforcement Procedure) Rules. The action is suit No. FHC71L/M. Appellant followed suit with another action, this time under a writ of summons in suit No. FHC7IL/CS/10/2002. The two actions were later consolidated by order of court and tried accordingly. The reliefs in the two separate actions are very much the same. They are as follows:

In FHC/IL/M. 1/2002. 1. A declaration that the trial, conviction and expulsion of the appellant on the allegation that

he was a member of a secret cult (an unregistered association) who allegedly killed fellow students, raped female students and committed various criminal acts, when the police investigation did not establish such allegation is unlawful, unconstitutional, null and void and of no effect.

2. A declaration that the purported dismissal, expulsion and determination of the applicant's studentship of the University in the department of linguistics, on the ground that he was one of the members of a secret cult, who committed murder, rape and such criminal acts, when the plaintiff was not incriminated by the Nigeria Police report issued on the applicant, is unlawful, unconstitutional null and void.

3. A declaration that the trial of the applicant whereby the respondents' committee was the accuser, investigator, witnesses, prosecutors and adjudicators of the offence of he being a member of an unregistered secret cult is against his right to fair hearing, unconstitutional, null and void.

4. An order setting aside the decision and the order of the respondent's to expel, terminate and bring to an end the appellant's studentship of the University. An order directing the respondent's to withdraw forthwith the letter dated 27th September, 2001, which conveyed the expulsion of the plaintiff and reinstate him as a student of Department of Linguistics, University of Ilorin.

And in FHC/IL/CS/10/2002 as follows: "Whereof the plaintiff claim from the defendants the following:

1. A declaration that the purported dismissal, expulsion, and termination of the plaintiffs studentship of the University of Ilorin, in the Department of Linguistics, on the ground that he was one of the members of a secret cult unregistered body who committed murder, rape and such criminal acts when the plaintiff was not in criminated by the Nigeria police report the appellant on the allegation that he was a member of a secret cult (an unregistered association) who allegedly killed fellow students, raped female students and committed various criminal acts, when the police investigation did not establish such allegation is unlawful, unconstitutional, null and void and of no effect.

2. A declaration that the purported dismissal, expulsion and determination of the applicant's studentship of the University in the department of linguistics, on the ground that he was one of the members of a secret cult, who committed murder, rape and such criminal acts, when the plaintiff was not incriminated by the Nigeria Police report issued on the applicant, is unlawful, unconstitutional null and void.

3. A declaration that the trial of the applicant whereby the respondents' committee was the accuser, investigator, witnesses, prosecutors and adjudicators of the offence of he being a member of an unregistered secret cult is against his right to fair hearing, unconstitutional, null and void.

4. An order setting aside the decision and the order of the respondent's to expel, terminate and bring to an end the appellant's studentship of the University.

5. An order directing the respondent's to withdraw forthwith the letter dated 27th September, 2001, which conveyed the expulsion of the plaintiff and reinstate him as a student of Department of Linguistics, University of Ilorin.

Whereof the plaintiff claim from the defendants the following:



1. A declaration that the purported dismissal, expulsion, and termination of the plaintiffs studentship of the University of Ilorin, in the Department of Linguistics, on the ground that he was one of the members of a secret cult unregistered body who committed murder, rape and such criminal acts when the plaintiff was not in criminated by the Nigeria police report unlawful unconstitutional null and void.

2. A declaration that the trial of the plaintiff whereby the defendants committee was the accuser, investigator, prosecutor, witnesses and adjudicators of the offence of bring a member of an unregistered and unrecognized secret cult is against his right to fair hearing unconstitutional null and void.

3. A declaration that the trial, conviction and expulsion of the plaintiff on the allegation that he was a member of a secret cult, an unregistered association, which allegedly killed fellow students, rape female students and committed various criminal acts, when the police investigation did not establish such allegation is unlawful, unconstitutional, null and void and of no effect.

4. An order setting aside, nullifying and make void the decision and the order of the defendants to expel, terminate and bring to an end the educational career of the p l a i n t i f f in the University of Ilorin.

5. An order directing the defendants to withdraw forthwith the letter dated 27th September, 2001 and reinstate the plaintiff to conclude his degree programme in the Department of Linguistics and Nigerian Languages.

6. An order of perpetual injunction restraining the defendants from taking any step or doing anything however relating to or concerning the cause of action in this suit which has the effect of adversely affecting the study and conclusion of the plaintiff's degree programme. It is very clear from the above that apart from relief No. 6 in FHC/IL/CS/10/2002 which is

not part of FHC/1L/M. I /2002, the rest are the same though their numbering was changed - reliefs 1. 2 and 3 in FHC/IL/M. 1/2002 are renumbered as 2, 3 and 1 respectively in FHCAL/CS/10/2002 while reliefs 4 and 5 retained their numbers and are also the same.

The respondents raised preliminary objections to the suits including the ground that the subsequent suit No. FHC/IL/CS/10/ 2002 constitutes an abuse of court process in view of the subsistence of suit No. FHC/IL/M. 1/2002 and that suit No. FHC/IL/M. 1/2002 has the main relief of challenging the dismissal, expulsion and termination of the appellant's studentship while the issue of fair hearing is ancillary.

At the conclusion of trial, the preliminary objection was overruled and the suits dismissed. Parties are dissatisfied with the judgment and while the appellant has appealed against the judgment in the substantive suits, the respondent has cross-appealed against the aspect of the judgment overruling the preliminary objections after grant of leave to do so by this court.

Learned counsel for the appellant, Roland Otaru, Esq., in the appellant's brief of argument filed on 8/5/2003 and adopted in argument at the hearing of this appeal has formulated three issues for determination. These are as follows:

1. Whether the learned trial Judge was right in dismissing the appellant's claims despite failure on the part of the respondents to observe the principles of fair hearing at the sitting of the students' Disciplinary Committee.

2. Whether the learned trial Judge was right in holding that proof of the allegation against the appellant was on the balance of probability and not beyond reasonable doubt.

3. Whether the learned trial Judge was right in basing his decision on a point on which issues were not joined by the parties."

The above issues are the same as those formulated by learned counsel for the respondents K. K. Eleja, Esq. in the respondents' brief filed on 19/11/2003. The respondent's issues are as follows:



Whether the trial court was not right in dismissing the appellant's claims before her and whether that court based its decision on unpleaded fact.

Whether the appellant proved the breach of his fair hearing before the trial court. Whether the trial court was not right in holding that the allegation levied against the appellant

was not criminal in nature and in further holding that proof beyond case-was an abuse of court process and in holding that 'he fundamental rights case was properly initiated?" Before proceeding to consider the appeals it must be noted that there is a preliminary objection raised by the respondents/cross-appellants in their brief of argument on which issues had been joined in the appellant's reply brief filed on 26/11/03.

Learned counsel for the respondent has called upon this court to either dismiss or strike out the appeal on the ground that the appeal being against decisions in consolidated suits ought to have been initiated by two separate notices of appeal instead of one thereby rendering the appeal incompetent. Learned counsel submitted that it was wrong for the single notice of appeal to contain complaints against the two cases. That the notice of appeal is defective thereby rendering the appeal incompetent and liable to be struck out. Learned counsel cited and relied on the case of Nww.-f v. Eze (1999) 3 NWLR (Pt.595)410at418.

I have gone through the reply brief filed by learned counsel for the appellant and I am unable to see any direct answer to the preliminary objection as raised by learned counsel for the respondents/cross-appellants.

Learned counsel however tried to distinguish the decision of this court in Nwaeze v. Eze supra cited and relied upon by learned counsel for the respondents by saying that that case "cannot be used as a carte blanche or a flood gate because:

i. The case arose from the filing of different election petitions. ii. Different parties with different reliefs were claimed by the petitioners therein.

iii. For the purpose of expeditious hearing of the petitions, the petitions were consolidated in accordance with the provisions of the prevailing Electoral Act."

He however concluded thus:

"It is, therefore, humbly submitted that the notice of appeal filed by the appellant based on the judgment of the trial court was competent. There was no need to file several notices of appeal by the appellant ... This Honourable Court is therefore urged to discountenance the preliminary objection and a fortiori dismissed (sic) same."

Both parties agreed that the actions giving rise to this appeal were consolidated by an order of the lower court and judgment delivered accordingly. Also not in dispute is the fact that the appellant who is dissatisfied with that judgment has appealed to this court by filing a notice of appeal against the judgment in the consolidated suits. What is however in dispute is whether a party who is dissatisfied with a judgment in consolidated suits must file a notice of appeal or notices of appeal depending on the number of cases so consolidated. Learned counsel for the respondents/objectors has referred the court to and relied on the decision of this court in the case of Nwaeze v. Eze supra particularly at page 418 where this court held thus:

"Moreover the appellant is supposed to file 2 separate notices, one for each decision on each petition ... I am afraid the appellants in this case have failed to comply with the fundamental requirements of the law by filing incompetent and defective notice of appeal hence this constitutional court cannot determine the appeals as they are presently filed."

It must however be noted that the filing of one notice of appeal instead of two as held above was not the only ground for the court finding that the notice of appeal was defective and therefore the appeal incompetent. In that case the notice of appeal did not exhibit all the names of the parties involved in the two petitions which were consolidated and heard by the tribunal. The persons directly affected by the appeal were also not named in the notice of appeal, whereas the orders made by the



tribunal in respect of each petition directly affected all parties to the petitions.

However, if Nwaeze's case supra were the only decision on the matter, it would have laid the matter to rest at this stage particularly as learned counsel for the appellant has produced no authority to the contrary. As it turns out, Nwaeze's case is not the only decision on j g the matter. The Supreme Court, in the case of Igwe v. Kalu (1993)4 NWLR (Pt.285) 1, was faced with a similar situation. In that case, the appellants who were plaintiffs in one of the consolidated suits Nos. HU/24/74 and HU/43/74 but defendant in the other, lost their claim for title, damages for trespass and injunction, while the respondents in the appeal won theirs. The appellants were aggrieved and appealed to the Court of Appeal. Meanwhile they filed a motion on notice praying the court for stay of execution of the judgment and injunction to restrain the respondents from alienating the land, the subject-matter of the consolidated suit or otherwise tampering with the same pending the determination of the appeal. The Court of Appeal granted the stay of execution but found no special or exceptional circumstances to warrant the interim order of injunction. The court went on to hold that the appellants had not appealed against the dismissal of the suit in which they were plaintiffs, so even if their appeal was allowed, they would not have a declaration of title in their favour. The appellants were dissatisfied with that ruling and appealed to the Supreme Court where one of the two issues decided is whether the Court of Appeal was right in holding that the appellants did not appeal against the dismissal of their suit (suit No. HU.J/24/ 74) and consequently would not have a declaration of title in their favour even if their appeal was allowed.

In deciding the issue, the Supreme Court held at page 9 of the report, per Ogwuegbu, J.S.C. as follows:

"The Court of Appeal misdirected itself when it held that the appellant did not appeal against the dismissal of suit No. HU/24/74 brought by them. It was the whole decision in the consolidated suits given by the learned trial Judge that the plaintiffs appeal against which if allowed would decree judgment in their favour and the decision in suit No. HU/43/74 will be set aside. There is no rule of law or practice requiring an aggrieved party in consolidated suits to file two notices of appeal if that is what the Court of Appeal meant in their ruling. The Court of Appeal was therefore clearly in error when it held that the appellants did not appeal against the dismissal of suit No. HU/24/74 in which they were plaintiffs." It must be noted that by the principles of stare decisis and judicial precedent, the Court of

Appeal is bound by decisions of the Supreme Court. However, it is clear that the decision of the Supreme Court in Igwe's case was not cited nor referred So in Nwaeze's case decided by the Court of Appeal even though the Court of Appeal's decision is subsequent to that of the Supreme Court. It is therefore clear that the law on the issue is as decided by the Supreme Court in Igwe's case.

However in the case of Ogundiran & Ors. v. Commissioner of Police & Ors. appeal No. CA/IL/28/2002 decided by the llorin Division of this court on Wednesday, llth June, 2003 I commented on Igwe 's case at pages 8 and 9 of the judgment, which comments I consider relevant and is reproduced hereunder as follows:

"It has already been stated that the law requires individual judgments to be given in respect of each of the consolidated suits for such a judgment to be valid. It is also the law that appeals are normally against judgments or decisions of the court and are usually initiated by the filing of a notice of appeal - see Order 3 rule 2(1) of the Court of Appeal Rules.

Now sections 241 and 242 of the Constitution of the Federal Republic of Nigeria, 1999 which are in pari materia with sections 220 and 221 of the 1979 Constitution provide that an appeal lies from the decisions of a High Court to the Court of Appeal while section 318 of the 1999 Constitution defines the word "decision" as:

"decision" means in relation to a court any determination, decrees. Order, conviction, sentence or recommendation."



When one considers the provisions of the law, it becomes very clear that the Supreme Court's decision in Igwe v. Kalu, supra, provides an exception to the general rule; particularly Order 3 rule 2(1) of the Court of Appeal Rules; to the effect that all appeals shall be brought by notice of appeal against the decision of the lower court. To say that since the appeal is against the "whole decision" in a consolidated case and as such a single notice of appeal is sufficient is to lose sight of the fact that separate decisions must be given in respect of each of the consolidated suits. So when you talk of the whole decision you are talking of the decision in respect of the case or suit on appeal not the two decisions in the consolidated suit. I am of the view that when an opportunity presents itself, the Supreme Court ought to revisit the decision in Igwe v. Kalu supra particularly as the foundation of all appeals is the filing of the notice of appeal. Or in the alternative we take it that the, decision in Igwe v. Kalu supra established an exception to Order 3 rule 2(1) of the Court of Appeal Rules where the case on appeal is a consolidated suit." Having regards to the law on the issue as handed down by the Supreme Court in Igwe v. Kalu supra, I find no merit in the preliminary objection which I accordingly overrule.

The next question to be determined is: which is to be determined first, the cross-appeal or the main appeal? When one looks at the cross-appeal, it arose from preliminary objections touching and concerning the competence of the action as constituted and by extension the jurisdiction of the court to entertain them. The main appeal on the other hand concerns the judgment on the merits of the consolidated suits. It is my view that having regards to the nature of the appeals and the substance of their complaints the cross appeal be treated first and I hereby proceed accordingly.

As stated earlier in this judgment; there is a single issue for determination in the cross-appeal, which had been reproduced.

In arguing the cross-appeal, learned counsel for the respondent/ cross-appellants stated that the cross-respondent filed two separate actions against the cross-appellants seeking the same reliefs- That while one was under the Fundamental Rights (Enforcement Procedure) Rules, the other was by writ of summons. That writ of summons was issued while the action for enforcement of fundamental rights subsisted. Counsel then submitted that the lower com wrongly overruled the objection of the cross-appellants. As regards the fundamental rights action learned counsel submitted that the main or principal reliefs sought therein was a restoration of the cross-respondent's studentship in the 3rd cross-appellant's institution. That the action was directed at his expulsion from the 3rd respondent and that the issue of fair hearing was therefore ancillary. Learned counsel then cited and relied on Turkur r. Government of Taraba State (1997) 6 NWLR (Pt. 53) 549 at 574-575: Egbuonu v. BRTC(1991) 12 NWLR (Pt. 510) 29 at 10 -41; Nigerian Social Insurance Trust Fund Management Board v Adeniyi (1990) 13 NWLR (Pt. 633) 16 at 26.

Turning to the case instituted by writ of summons leaned counsel submitted that that case was instituted in abuse of court process having regards to the parties and reliefs endorsed thereon.

Counsel then referred the court to Suniki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188 - 189; Shell Trustees (Nig.) Ltd. v. Imani & Sons (2000) 6 NWLR (Pt.662) 639 at 659 - 660.

Learned counsel further submitted that the order of court consolidating the two cases does not cure the fundamental defect of the subsequent case filed in abuse of court process. That the lower court misunderstood the decision of the Supreme Court in the case of Egbuonu v. BRTC supra because it is no authority for replication of reliefs in cases stemming from the same background learned counsel further submitted. That what the court decided in that case is that complaint bothering on breach of fundamental human rights should be the focus of the case filed on fundamental human rights while the case initiated by writ of summons should have as its focus, the other complaints outside the fundamental human rights breach. Counsel then urged the court to set aside the decision of the lower court on the preliminary objection and hold that the subsequent action was filed in abuse of court process and strike same out. He urged the court to allow the cross-appeal.

On his part, learned counsel for the cross-respondent submitted that the lower court is right in



overruling the objections of the cross-appellants. That the plank of the action under fundamental rights is the denial of the cross-respondent's right to fair hearing in the action leading to his expulsion from the University and therefore not an ancillary relief as claimed by the cross-appellant. That in any event the right of an individual to enforce his fundamental rights does not depend on a consideration as to whether the right breached is the main or principal cause of action or fundamental issue before the court, relying on the Court of Appeal decision in the case ofAdeyanju v. WAEC (2002) 13 NWLR (Pt.785) 479 at 497 - 498; WAEC v. Akinkunmi (2002) 7 NWLR (Pt.766) 327 at 339 - 340.

I had earlier in this judgment reproduced the five reliefs sought by the appellant under the Fundamental Rights (Enforcement Procedure) Rules. It is the law, as held by the supreme court in a long time of cases dealing with actions for enforcement of fundamental rights under the Fundamental Rights (Enforcement procedure) Rules that when an application is brought under that rule [condition precedent to the exercise of the court's jurisdiction is at the enforcement of fundamental right or the securing of the enforcement thereof should be the main claim and not an accessory claim. That where the main or principal claim is not the enforcement [[[securing the enforcement of a fundamental right, the jurisdiction 'the court cannot be properly exercised as it will be incompetent Turkurv. Govt. of Taraba State (1997) 6 NWLR (Pt.510) 549; Egbuonu v. BRTC (1997) 12 NWLR (Pt.531) 29.

Thus where the court found that the main complaint of an applicant under the Fundamental Rights (Enforcement Procedure) tales was his deposition as the Emir or termination of his appointments, the alleged breaches of his fundamental rights to fair hearing, liberty and freedom of movement were merely ancillary to [primary complaint and therefore the adopted procedure declared inappropriate - see Turkur v. Govt. ofTaraba State, supra and Egbnonu BRTC also supra.

A close look at the reliefs claimed in the application under consideration reveals that the main complaint of the appellant in the application under the Fundamental Rights (Enforcement Procedure) rules is against his expulsion from the University of llorin. It is very clear that reliefs 1 and 2 have nothing to complain about breach fair hearing or enforcement of such. The same thing applies to reliefs 4 and 5.

The only relief complaining of breach of fair hearing is relief No. 3. It is the law that where ancillary or incidental or accessory claim or claims are so inextricably tied to or bound up with the main claims before the court in a suit, a court cannot adjudicate over them there it has no jurisdiction to entertain the main claims if such incidental or ancillary claims cannot be determined without a termination at the same time of the main claims or where the determination of such incidental or ancillary claims must necessarily involve a consideration or determination of the main claims - see Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517; Tukur v. Govt.of Taraba State (1997) 6 NWLR (Pt. 510) 549; Egbuonu v. BRTC (1997) 12 NWLR (Pt.531) 29. In the present action, there is no way relief No.3 can be determined without a determination if claims 1, 2, 4 and 5 in the application. I therefore agree with the submission of learned counsel for the cross-appellant that the application under the Fundamental Rights (Enforcement Procedure)' Rules for the reliefs claimed is incompetent and liable to be struck out. I hold accordingly.

On the issue of abuse of process regarding the filing of the second action during the pendency of the application under the Fundamental Rights (Enforcement Procedure) Rules, there is no' dispute as to the parties in the two cases being the same. Also not disputed is the fact that the subject-matter or issue between the parties in the two cases are the same.

The question then is, what is an abuse of court process?

It has been held by the courts that the concept of abuse of court process is imprecise. That it involves circumstances and situations of infinite variety and conditions. However it has a common



feature in improper use of the judicial process by a party in litigation to interfere with the due administration of justice. The abuse may, however lie in both proper or improper use of the judicial process in litigation. However, the employment of judicial process is only regarded as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. For instance, where a party institutes multiple actions on the same matter between the same parties even where there exists a right to bring the action. The abuse is not in the exercise of the right per se but in the multiplicity and manner of its exercise. The abuse is said to consist in the intention, purpose and aim of the person exercising the right to harass irritate and annoy the adversary, and interfere with the | administration of justice, such as institution of different actions between the same parties simultaneously in different courts, even though on different grounds - see Okorodudu v. Okommadii (1977) 3 SC 21; Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156.

In all relevant cases the general rule or principle is that an abuse of the process of the court is

constituted when more than one suit is instituted by a plaintiff against a defendant in respect of the

same subject-matter. Therefore for an action to be declared frivolous, vexatious, oppressive and an

abuse of process of court, it must be shown there are two or more actions between the same parties

in respect of the same subject-matter in either one or more courts at the same time. See N.V.

Scheep v. M.V. "S. Araz" (2000) 15 NWLR (Pt.691) 622; Ikine v. Edjerode (2001) 18 NWLR (Pt.745)

446; A.-G, Ondo State v. A.-G., Ekiti State (2001) 17 NWLR (Pt.743) 706; Doma (1999) 4 NWLR

(Pt.598) 311; Bcmtplaslic v. Vasilycv (1990) 10 NWLR (Pt.624) 620.

Learned counsel for the cross-respondent has referred the court to the case of Egbuonu v.

BRTC supra particularly the comment of Uwais, CJN at page 41 of the report as his authority for

instituting the two actions.

The learned CJN staled as follows:

"It would appear that where a set of facts or cause of action gives rise to multiple causes

of action including a breach or threatened contravention of a fundament right under the

Constitution, the party so affected, as plaintiff would have to bring two different actions

at the same time. One of such action by a writ of summons according to the provisions of

the High Court (Civil Procedure) Rules and the other by a motion c\ parte in accordance

with the provisions of the Fundamental Rights (Enforcement Procedure) Rules, Cap. 62.

If it is done in the same High Court, it would perhaps be possible to have the case

consolidated.

―It is my considered view that the situation envisaged by the learned CJN is different from the

facts of this case. In the first place what the learned CJN said is clearly obiter the ratio in that

case being that an action for wrongful dismissal from employment cannot be brought under the

Fundamental Rights (Enforcement Procedure) Rules and that where an ancillary claim is so

inextricably tied to or bound up with the main claim before the court, the court cannot

adjudicate over them where it has no jurisdiction to entertain the main claim. It is therefore my

view that Egbuomt 's case is no authority for the proposition that instituting two or more actions

between the same parties on the same subject-matter and facts is no longer an abuse of court

process.

Therefore looking at the facts of this case as relevant to the issue under consideration

which have not been disputed, and considering the law on the matter, I am of the firm view that suit

No. HC/IL/CS/10/2002 which was instituted by the cross-respondent during the pendency of suit

No. FHC/II./M. 1/2002 against the cross-appellants on the same subject-matter and which were



subsequently consolidated was instituted in abuse of court process and I so hold.

The learned trial Judge erred in holding that the two cases have fused into one by virtue of

the order of consolidation because consolidation is for the convenience of the trial while the cases

consolidated still retain their individuality. That is why at the end of the trial, two or more judgments

or decisions are handed down depending on the number of cases consolidated.

That apart, the Supreme Court in Egbuonu's case never said that a party whose cause of

action constitutes both a breach of fundamental right and ordinary wrong must institute two actions

- one under the fundamental rights and the other by writ of summons. What the CJN is understood as

saying is that where certain facts in a cause of action can support an action under the fundamental

right while others support action by writ of summons then the plaintiff can bring two actions

depending on the supporting facts - one under the fundamental rights and the other by writ of

summons and that the two actions may be consolidated by the court. It is my view that the situation

envisaged by the learned CJN is different from the present case where two actions are exactly the

same by virtue of the facts and reliefs claimed. The appellant simply brought one action under the

fundamental rights and the same case, this time, by writ of summons. If that is not an abuse of process

I wonder what a better example could be like. It is not that the two cases fused into one by order of

consolidation but that they are one and the same case but instituted under two different procedures.

The alleged fusing of the case into one led the lower court to deliver judgment in only one of the two

cases leaving out the other. At the end of the judgment the learned trial Judge held: "In the light of the foregoing, I hereby hold that the plaintiff is not entitled to the reliefs sought. The case is accordingly dismissed without any order as to cost." This clearly is erroneous having regards to the authorities on the matter - see Diab Nasr v.

Complete Home Ents. (Nig.) Ltd. (1077) 5 SC 1; Kutse v. Bakfur (1994) 4 NWLR (Pt.33 7) 196 at 209; Alaribe v. Nwankpa (1999) 4 NWLR (Pt.600) 551; Atanda v. Ajani (1989)3 NWLR (Pt. Il l ) 5ll;Sawula v. Ngah (1998) 13 NWLR (Pt.580) 39.

Consequently and in view of the finding that suit No. FHC/IL/ CS/10/2002 was filed in abuse of process, the said suit is liable to be and is hereby struck out for being incompetent.

Granted that I am wrong in so holding, which I very much of doubt, what are the merits of the substantive appeal?

In arguing issue No. 1 learned counsel for the appellant submitted that the lower court erred in dismissing the claims of the appellant despite in controverted evidence of the breach of appellant's right to fair hearing at the sitting of the Students' Disciplinary Committee. That no member of the alleged unregistered association was called to enable appellant cross-examine him. That no one from the security department which made the complaint to the police, was called to enable the appellant cross-examine him. The applicant was never shown the report of the security department during the sitting of the committee but the committee relied on same in coming to its decision. That members of the committee constituted the accusers, witnesses, prosecutors and Judges. That the only evidence available to the committee was exhibit "A" the Malcom 'X' poster that was removed from the door of the residence of the appellant. That the committee is bound to observe the rules of fair hearing -relying or section 36(1) of the 1999 Constitution. Counsel also cited and relied on Garba v. University of Maidiiguri (1986) 1 NWLR (Pt. 18) 550, (1985) 6 SC 128 at 229; Denin v. Medical A Denial Practitioners Disciplinary Committee (1968) 1 All NLR 306. That the respondents did not call Alhaji Yusuf - an assistant security officer nor any of the staff in the security department. He then urged the court to resolve the issue in favour of the appellant.

On his part, learned counsel for the respondents submitted that the case of the appellant is as pleaded in paragraphs 20. 2.1, 24, 26 and 31(l)(2) and (3) of the statement of claim where he claimed 'hat he was accused of being a member of a secret cult that committed murder, rape and other



criminal acts on campus. That evidence tendered by the appellant, particularly exhibits B and C show that the

allegation against the appellant was one of belonging to an unregistered association. That the appellant also failed to prove that his right to fair hearing was breached. That

the appellant's case was properly dismissed because the case on the pleadings was different from the evidence adduced. That from the pleadings the commission of crime was the foundation of the appellant's case but evidence shows the contrary. Counsel cited and relied on Oko v. Igweshi (1997) 4 NWLR (Pt.497) 48; Abimbola v. Abatan (2001) 9 NWLR (Pt.717) 66.

On breach of fair hearing counsel slated that the appellant admitted under cross-examination that he was given opportunity to defend himself on the allegations against him. That the appellant did not establish the allegation of bias against members of the Student's Disciplinary Committee. That there is no indication on record that the appellant ever challenged the composition of the committee. That there is nothing in exhibit E to show that the committee took evidence from any other person or persons concerning the allegations against the appellant.

That while the Committee was bound to respect the appellant's right to fair hearing, it was not bound to hold its proceedings in strict compliance with the practice and procedure of a court of law. That it is enough if it acts in good faith and gives the person opportunity to be heard before taking a decision. That it can obtain information in any way it thinks best provided the appellant was given an opportunity to correct or contradict any Statement prejudicial to him relying on Igwilo v. Central Bank of Nigeria (2000) 9 NWLR (Pt.672) 302 at 336. That the appellant admitted ownership of exhibit A in exhibit E. He also admitted that the association known by "X" is not one of those registered in the University. That it was not necessary for a copy of the report of the security of the 3rd respondent to be made available to the appellant since it relates only to investigation conducted before the letter of invitation to the Committee was issued to the appellant relying on Aiyetan v. NIFOR (1987) 3 NWLR (Pt.59) 48; WAEC v. Mbamalu (1992) 3 NWLR (Pt.230) 481 at 494. That the authorities cited by his learned friend on the issue are distinguishable on the facts. He then urged the court to resolve the issue against the appellant.

The case of the appellant, as disclosed in the statement of claim, is that he was handed over to the police by the security department of the 3rd respondent on suspicion of being a member of secret cult who commit criminal acts on the campus of the 3rd respondent including murder, rape etc and that the police arrested him searched his private residence where nothing incriminating was found. That during the search a Malcom X poster, exhibit A was found attached to the wall of his residence. That at the conclusion of their investigations the police found the appellant not involved in cult activities and issued a report ... to that effect. That the appellant was subsequently invited to appear before the Students' Disciplinary Committee of the 3rd respondent by a letter dated 24th September, 2001 to defend himself or prove that he was not one of the criminals being looked for. That at the meeting of the Committee he was informed that the poster found at his residence was an insignia of secret cult. That no one was called to say that he was a member of a secret cult or those whom the police were looking for in respect of various crimes committed in the University. That he was denied the right to confront his accusers but was found liable being one of the criminals who had killed, raped, maimed earned guns." He therefore claimed the reliefs earlier reproduced in this judgment.

It is very clear that the case the appellant set out to establish at the trial is one founded on alleged criminal offences against him and breach of his fundamental right to fair hearing by the Students Disciplinary Committee in their proceedings leading to his expulsion from the University.

Fortunately the allegations against the appellant were not oral but in writing. Exhibits B and C merely show that the appellant was accused of belonging to an "unregistered association or body on campus whose membership and identity is ascertainable, amongst other things, by a peculiar sign of "X" adorned on each side by a gun, the very type found and recovered from your possession



contrary to section 3 of the Students' Handbook of Information and Regulations as well as your matriculation pledge.

This is viewed with seriousness as an act of misconduct contrary to your matriculation pledge and sections 3 and 15 of the Students' Handbook of Information and Regulations and punishable under section 17 of the University of llorin Act. Cap. 455, Laws of Federation of Nigeria, 1990 ..."

Exhibit "C" is the letter of expulsion of the appellant, dated 27th September, 2001. It states, infer alia, as follows: "Disciplinary action for act of misconduct You will recall that your (\ic) were invited to appeal-before the Students' Disciplinary Committee (SDC) at the 114th sitting on Wednesday. 26th September. 2001 to defend yourself in respect of the following allegation of misconduct:

That you, Mr. Braimoh BabaUmde Akinola - Mat. 97/15CBo 12 400 level. Department of Linguistics and Nigerian Languages. Faculty of Arts - Alleged to have belonged to. and associated with a notorious and unregistered association or body on the campus whose membership and identity is ascertainable, amongst other things by a peculiar sign "X" adorned on each side by a gun. the very type found and recovered from your possession. After due consideration of the totality of all evidence before it. the Students' Disciplinary Committee (SDC.) is convinced beyond any reasonable doubt that an allegation of misconduct has been established against you."It is very clear from exhibits B and C, both tendered by the appellant in support of his case, that there was no allegation of commission of any crime, let along murder, rape etc made against the appellant nor was he found guilty of any. The case against the appellant is simply that he belongs to an unregistered association contrary to the students Handbook and his matriculation pledge and that to do so amounted to misconduct under section 17 of the University of Ilorin Act. It is therefore clear that the evidence produced by the appellant in an attempt at proving his case turn out to be at variance with his pleadings.

The next question is whether the appellant established a violation of his right to fair hearing against the respondents.

The allegation of breach of fair hearing are contained in paragraphs 23, 26 and 28 of the statement of claim. These are as follows:

"23. The plaintiff avers and will lead evidence to show that from his experience at the trial and proceedings of the said Students Disciplinary Committee members of the Committee including the Security Officer who arrested him and the Chief Security Officer of the University constituted the accusers, investigators, witnesses, prosecutors and Judges who had before the hearing made up their minds on his guilt, merely to pronounce same immediately.

26. That notwithstanding all the above, the defendants, purportedly and in violation of my right to fair hearing, denied me, right to confront my accuser but found me liable of being one of the criminals who had killed, raped, maimed carried guns, being members of the notorious and unregistered association or body on the campus whose members and identity are unascertainable.

28. The plaintiff will contend that the purported trial was a kangaroo contraption, whose members had been their decisions before the invitation to him and it was the most prejudiced and biased in composition that fairness, justice and reasonable adjudication could not be expected."

Going through the evidence on record, it is not in doubt that the appellant admitted under cross-examination that he was given opportunity to defend himself by the Students' Disciplinary committee. There is no evidence of bias of the members of the Committee against the appellant. From exhibit F it is very clear that neither the deputy Chief Security Officer who allegedly arrested the appellant nor the Chief Security Officer is a member of that Disciplinary Committee. There is



nothing on exhibit F, to show. neither has the appellant said anywhere on record, that the appellant raised any objection on the composition or membership of tile-Students' Disciplinary Committee. He admitted that prior to his appearance before the Committee he has had no dealings with the members. There is no evidence that the Committee took evidence from any other person apart from the appellant concerning the allegations against him. We therefore have a situation in which allegations were made against the appellant which allegations were reduced into writing and he appeared before the Committee and defended himself before being found guilty of misconduct by that Committee. I therefore agree with the trial Judge that the appellant failed to establish that his right of fair hearing was breached by the respondents. I therefore resolved the issue against the appellant.

On issue No. 2 learned counsel for the appellant submitted that the allegation against the appellant impute act of criminality which ought to have been proved beyond reasonable doubt, relying on Garba's case. Learned counsel then referred the court to the provisions of the Student's Union A c t i v i t i e s (Control and Regulations) Act, Cap. 423, Laws of the Federation of Nigeria. 1990. particularly sections 2(1) and 5(1)(2) and (3) (hereof to support his contention that the allegation is criminal in nature and therefore subject to the standard if prove beyond reasonable doubt.

On his part, learned counsel for the respondents submitted that the relevant materials in determining whether or not (he allegation against the appellant was criminal in nature are exhibit H which is the letter of invitation, exhibit C, the letter of expulsion; exhibit F, the University of Ilorin Students" Handbook of Information and Regulations and section 17 of the University of Ilorin Act. "That the allegation is one of misconduct. That exhibit F contains provisions for regulation and membership of associations on campus. That a document speaks for itself and as such no oral evidence would be allowed to add to, vary or contradict the content of a document relying on UBN v. Ozigi (1994) 3 NWLR (Pt.333) 385 at 389. That the provisions of the Students Union Activities (Control and Regulations) Act, Cap. 423 relied upon by his learned friend does not apply nor is it relevant to the allegation against the appellant in exhibit B. That Garba's case does not also apply. That the misconduct alleged against the appellant can be proved without first having to find him guilty of any act of criminality.

1 had earlier on held that the allegation against the appellant as revealed by the evidence particularly exhibits B and C does not involve criminality at all. To that extent it is very clear that on the fad alone, the decision in Garba's case heavily relied upon by learned counsel for the appellant does not apply. Exhibits B and C speak for themselves and it is my view that nothing more can be read into them except what they state. I am of the view that learned counsel for the appellant is reading into the exhibits what they do not state. Learned counsel for the appellant cited and relied on certain sections of Student's Union Activities (Control and Regulation) Act, Cap. 423, Laws of the Federation of Nigeria, 1990 particularly sections 2 and 5 thereof in submitting further that the allegation against the appellant borders on criminality and as such the standard of proof is that of proof beyond reasonable doubt.

With due respect to learned counsel, I do not think that the said Act applies to the facts in this case. The Act does not say that when a student belongs to an unregistered association, which is the allegation against the appellant in this case, then he is said to have committed a criminal offence. That apart, from the title of the Act it is very clear that it deals with powers of the University authorities in Nigeria, to regulate the activities of students' union and association; and empowers the Governing Councils of the Universities to proscribed unlawful societies, etc. In the case at hand the appellant is not accused of any offence, let alone an offence relating to student union activities. Section 2(1) of Cap. 423. supra relied upon by the appellant says, inter alia'.

"2(1) Where an v society by whatever name called or known operating within the campus of the University ..."

From the evidence on record, the association the appellant is alleged to belong to has no



name nor is it known by any and is not registered in the University as required by University Regulations. In short I hold that issue No. 2 be and is hereby resolved against the appellant.

On issue No. 3 learned counsel submitted that the trial Judge erred in raising the issue of a mark "X" being found on the body of the appellant suo main when the same was neither pleaded nor issue joined on it. That facts not pleaded ground to no issue relying on Egonu v. Egonu (1978) 11-12 SC 111; WuIncJicm v. Gi«H ( l<>8n 5 SC 291. That the appellant had closed his case before exhibit F was tendered and the counsel to the respondent did not cross examine the appellant as to whether he has a similar "X" symbol on his back.

1' Learned counsel then cited and relied on Shitla-Ray \:

F.T.S.C, (198 1) 1 SC 40; Ogiamen v. Ogiamen (1967) NMLR 245 at 248 - 249; Animashaun v. Oswna (1972) 4 SC 47; Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325. He then urged the court to resolve the issue in favour of the appellant.

On his part, learned counsel for the respondents submitted that the trial court did not base its decision on unpleaded fact. That the appellant appeared before a disciplinary committee whose proceedings was pleaded by the respondents. That exhibit E was tendered in support of the pleadings and that the trial court v, as justified in relying on it. That the appellant's counsel cross examined the respondents witness on the said exhibit E and the piece of evidence later relied upon by the trial Judge came out of the cross-examination. That the trial court has the right to rely on documents and facts from documents legally tendered before it, relying on A. Bendel State v. A.-G., Federation (1981) 10 SC 1 at 59; Badejo v. Fed. Min. of Education (1996) 8 NWLR (Pi .464) 15 at 50.

Further but in the alternative, learned counsel submitted that reliance on evidence in exhibit E did not influence the judgment of the trial court because the court had made adverse findings concerning the other aspects of the case such that the decision of the court would still have been the same without the piece of evidence complained of. That it is not all errors of a trial court that would lead to a reversal of its judgment on appeal relying on Ojengbede v. Esan (2001) 18 NWLR(Pt.746)771 at 790 -791. He then urged the court to resolve the issue against the appellant.

It is trite law that parties and the court are hound by the pleadings and that evidence on facts not pleaded ground to no issue.

It is not disputed that the proceedings of the Students' Disciplinary Committee of 26th September, 2001 was pleaded by respondents. The appellant also pleaded the fact that he was invited to and did appear and give evidence before the said Committee on the said date. Also not in dispute is the fact that when the proceedings was tendered, it was admitted without objection from counsel for the appellant and marked as exhibit E.

It is however, the argument of learned counsel for the appellant that even though the fact in issue was brought out in cross-examination by counsel for the appellant on exhibit E, the fact that it was not pleaded makes the evidence so elicited to ground to no issue and that the lower court was wrong in relying on it in coming to the decision it did. It is the law that the court is entitled to look at a document in its file while writing its judgment or ruling despite the fact that the document was not tendered and admitted as exhibit at the trial – see Agbaisi v. Ebikorefe (1997) 4 NWLR (Pt. 502) 630; Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt.594) 170 at 182. The question in this issue is whether a court can rely on facts contained in an exhibit which was pleaded, in making findings of fact even though those facts contained in the said exhibit were not independently pleaded.

I am of the view that the document having been pleaded and admitted in evidence without objection, becomes evidence before the court and that the court can legally make finding of fact based on it; particularly when evaluating same. In the case of Ekpe v. Oke (2001) 10 NWLR 2 (Pt.721)341 at 353 the Supreme Court held that the record of proceedings in a matter and the statement or testimony therein are one and the same. That together, they form a complete record of the proceedings. Not one without the other. In the present case the fact that the appellant has an "X" mark on his back is part of the findings of the Committee in the record of proceedings pleaded, tendered and admitted without objection and marked as exhibit E. I do not think that the



respondents need to separately plead that fact, after having pleaded the record of proceedings in the matter. I am therefore of the view that issue No. 3 be and is hereby resolved against the appellant.

In conclusion, I find no merit in the substantive appeal which is hereby dismissed. The cross-appeal succeeds and is accordingly allowed. It is further ordered that suit No. FHC/IL/M. 1/2002 and FHCAL/CS/10/2002 (consolidated) be and is hereby struck out for being incompetent. I however make no order as to cost.

Appeal dismissed while cross-appeal allowed.

IKONGBEH, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, Onnoghen, JCA. I agree with him that the main appeal lacks merit and ought to be dismissed. I too would dismiss it. I agree with him also that the cross-appeal has merit and should be allowed. I abide by the consequential orders.

MIKA'ILU, J.C.A.: I have had the opportunity of reading the draft of the leading judgment just delivered by my learned brother, Onnoghen, JCA. I agree with the reasoning and the conclusion therein. I also dismiss the appeal with no costs.

Appeal dismissed.

Cross-Appeal dismissed.

braimoh akinola v. vc unilorin - yusuf ali · nigeria weekly law report braimoh vs university of...

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