Sylvanus Eze V. University Of Jos (2017)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

The appellant/applicant’s Motion of Notice filed on 11 July, 2014 seeks the following orders:-

1. An Order of this Court granting the Appellant/applicant leave to raise and argue fresh issue of law for the first time before the Supreme Court against the decision of the Court of Appeal Jos delivered on 17 December, 2012.
2. An Order of this Court deeming the appellant’s brief which contains argument on the fresh issue of law as duly filed and served separate copies having been filed and paid for.

Sylvanus Eze, the appellant/applicant deposed to a 15 Paragraph affidavit in support of the Motion. Annexed to it are documents marked Exhibit 1, 2, and 3.

Emmaunel Jawander, the Principal Registrar (Land Matters) with the respondent deposed to an 11 paragraph counter affidavit.

At the hearing of the Motion on Notice on 13 February, 2017 learned counsel for the appellant/applicant, E. O. Okoro, Esq., adopted his written submissions and reply on points of law filed on 11 July 2014, and 8 June 2016 respectively and urged this Court to grant the application in the interest of

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justice.

On the other side of the fence, learned counsel for the respondent, D.D. Rimdam, Esq. adopted his written address filed on 23 October, 2014 and urged this Court to dismiss the application.

The facts are these. The appellant/applicant was a lecturer at the University of Jos (Respondent). In 2006 while still a lecturer in the University of Jos, there was an allegation that he was demanding and receiving money from newly admitted students without the authority of the University. He was queried and subsequently placed on suspension by the Vice Chancellor of the University. Between 8 – 11 August, 2006, the appellant appeared before the Council/Senate Disciplinary Committee to defend himself, and between 2-4 November, 2006 the Council of the of the University considered the Report of the Disciplinary Committee and decided to dismiss the appellant. The appellant was accordingly dismissed. Dissatisfied with the turn of events the appellant filed an Originating Summons on 31 May, 2007 before a Federal High Court (Jos Division) challenging his dismissal from the service of the University of Jos. The trial Court dismissed the suit, and on 17 December, 2012

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the Court of Appeal affirmed the decision of the trial Court, and dismissed his appeal.

Pending before this Court is an appeal by the appellant from the judgment of the Court of Appeal.

In his written submissions, learned counsel for the appellant/applicant formulated a sole issue for determination of this application.

It reads.

“Whether the application to raise fresh issue of law for the first time before the Supreme Court should be granted in the interest of justice.”

On his part, learned counsel for the respondent also formulated a sole issue for determination of the application. It reads:

“Whether, considering the nature and circumstances of this case/appeal, this is an application that should be granted by this Honourable Court.”

I have examined both issues and I am satisfied that in considering the appellant’s issue, the respondent’s issue would be comprehensively addressed. In view of this observation the sole issue formulated by the appellant shall be considered for the determination of this application.

ISSUE FOR DETERMINATION

Whether the application to raise fresh issue of law for the first time before

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the Supreme Court should be granted in the interest of justice.

Arguing the issue, learned counsel for the appellant observed that the respondent dismissed the appellant without complying with the provisions of Section 15 (1) of the University of Jos Act. He further observed that in his Originating Summons he challenged his dismissal on the ground that the respondent did not comply with Section 15 of the University of Jos Act, contending that both Courts below agreed that the respondent followed the correct procedure before arriving at its decision to dismiss the appellant. He observed that both Courts below also did not consider Section 15 (1) supra, contending that it amounts to a denial of fair hearing for the appellant to be denied a hearing as provided by Section 15 (1) supra, Section 36 (1) of the Constitution. Relying on Intercontinental Bank PLC v. Olam (Nig) Ltd (2013) 6 NWLR (pt. 1352) p. 468 Adeosun v. Gov of Ekiti State (2012) 4 NWLR (pt. 1292) P. 581.

He submitted that it is a proper case where the appellant’s/applicant’s application to raise fresh point of law ought to be granted.

Opposing the application, learned counsel for the

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respondent observed that both cases relied on by the appellant, Intercontinental Bank PLC v. Olam (Nig) Ltd (supra) and Adeosun v. Gov of Ekiti State (supra) were commenced by Writ of Summons and pleadings and so were not applicable to this case commenced by Originating Summons.

He submitted that the appellant having commenced his suit by Originating Summons is not allowed to change his mind and the nature of proceedings at the Supreme Court level as he is trying to do by this application.

Reliance was placed on F.H.A. v. Kalejaiye (2010) 19 NWLR (pt. 1226) p. 147.

Learned counsel for the respondent argued that the appearance or non-appearance of the appellant before the Governing Council of the Respondent is an issue of fact which ought to have been taken before the trial Court and not raised for the first time in the Supreme Court as the Supreme Court would be denied the benefit of opinions of the lower Courts.

He observed that by raising the issue of denial of fair hearing, the appellant is springing a surprise on the respondent as such an issue ought to have been raised at the trial Court. He further argued that since the appellant is

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seeking equitable relief which is given at the Court’s discretion, he should convince the Court why he never raised the issue of fair hearing before the Federal High Court. Concluding, he urged this Court to dismiss the application as it lacks merit.

According to the appellant/applicant, this application has become necessary because he claims that he was not given fair hearing since he did not appear in person before the Council of the University in accordance with Section 15 (1) of the University of Jos Act before it took the decision to dismiss him.

Is this true The affidavits would answer that questions, and the question is:

Whether the appellant appeared in person before the Council of the University in accordance with Section 15 (1) of the University of Jos Act.

A relevant extract from the affidavit in support of this application reads as follows-

“8 e. That the issue of the failure of the Council of the University of Jos to invite me to appear in person under Section 15 (1) could have been taken at the trial Court on the affidavit evidence of both parties but unfortunately was not taken.”

In response to the above, paragraph 6 of

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the Counter affidavit is instructive. It reads:

6. That I am aware that the appellant/applicant after making his representations in writing also personally appeared before the Council/Senate Disciplinary Committee and was heard by them.

I must explain the position in law of affidavits before I resolve the above.

An affidavit is a deposition by the deponent stating clearly his factual position on the issue for consideration. So once the facts deposed to in an affidavit have not been controverted, such facts must be taken as true except they are moonshine.

It is only where there are contested allegations of material facts that the Court ought to invite the parties to call oral evidence to resolve the said conflicts. See Akinsete v. Akindutire (1966) 1 ANLR p, 147 Alagbe v. Abimbola 1978 2 SC P.39 Efet v. INEC & 2 ors (2011) 1-2 SC (Pt.III) p.61

Inegbedion v. Selo-Ojemen & anor (2013) 1-2 SC (Pt. II) p.59.

There is a world of difference between the Council of University of Jos and the Council/Senate Disciplinary Committee. The fact that the appellant did not appear before the Council of the University of Jos is not denied by the

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respondent. This is a case of a fact not denied or countered by the respondent.

It is established to my satisfaction that the appellant was not invited to appear before the Council of the Respondent as provided by Section 15 (1) of the University of Jos Act.

In the light of the above finding which to my mind is correct, the facts of this case are not and cannot be the subject of serious argument.

Before I go to the merits of the application, I intend to deal and dispose of the complaints of learned counsel for the respondent.

Originating Summons is one of the ways of commencing an action. In such an action, pleadings are not filed. Affidavit takes the place of pleadings. Reliance is placed on affidavits and facts are not in dispute.

Originating Summons are thus not suitable for hostile proceedings where the facts are seriously in dispute. So once a suit has been filed by Originating Summons and it becomes obvious that facts are in dispute or the proceedings are likely to be hostile a Writ of Summons would be ordered. Originating Summons can be used in matters that involve interpretation of documents, Statutes, contract etc and it is

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by no means a procedure to enlarge the jurisdiction of the Court. The striking aspect of suits commenced by Originating Summons is that there are no pleadings or witnesses, and so proceedings are simple and concluded quickly.

See Pam v. Mohammed (2008) 5-6 SC (pt. 1) P.83

Osunbade v. Oyewunmi (2007) 4-5 SC p.98.

In the appellant’s Originating Summons before the trial Court, the sole question for determination reads:

Whether the plaintiff, having been placed on suspension on 21 July, 2006, the Council of the University had subsisting/extant power to discipline him as they did vide the decision taken at the 5th regular meeting of November 2- 4, 2006 having regards to the provisions of Section 15 particularly 15 (2), (3) (4) of University of Jos Act Cap 456 Laws of the Federation of Nigeria,1990.

The facts deposed to in the affidavit in support of the Originating Summons was sufficient to support the case.

It is so obvious from the above that at the trial Court the applicant asked that Court to consider Section 15 of the University of Jos Act, and that includes consideration of Subsection 1 of Section 15 supra. The applicant

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has not changed his mind and the nature of proceedings at the Supreme Court as learned counsel for the respondent suggests. Rather the applicant is asking this Court to consider Section 15 (1) supra which was not considered by both Courts below and commencing the action by Originating Summons is very much in order since facts are not in dispute.

The issue of appearance or non appearance of the appellant before the Governing Council of the respondent as provided by Section 15 (1) of the University of Jos Act is a question of fact. At this stage of the suit the opinion of both Courts below are no longer necessary as this Court can examine the Record of Appeal to see if the respondent complied with Section 15 (1) supra before the appellant was dismissed.

This Court rarely makes pronouncements on an issue over which it does not have the benefit of the opinion of the Courts below, but would do so as in this case where non compliance with Section 15 (1) supra may amount to a denial of the appellant’s right to fair hearing. An allegation that a party was denied fair hearing can be raised at any stage of proceedings even at the Supreme Court for the

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first time. If found to be true it could amount to the trial being declared a nullity for miscarriage of justice.

The respondent’s complaint that raising the issue of denial of fair hearing at this stage amounts to springing a surprise on the respondent is rather strange.

The respondent can only seriously complain about surprise if he had no notice of what the appellant is complaining about, or if the issue of denial of fair hearing was brought to the notice of the respondent too late, thereby depriving him of the opportunity to respond properly. The appellant raised the issue of denial of fair hearing in this application filed on 11 July, 2014. The respondent responded to the issue by his counter-affidavit and written submissions on 23 October, 2014. That is to say the respondent replied to the appellant’s allegation that he was denied fair hearing three months after it was made. The respondent had adequate time to respond to the issue of denial of fair hearing.

He cannot in good faith still maintain such a stance in 2017.

I shall now consider the merits of the application. An application to raise fresh issue of law on appeal is granted to

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prevent an obvious miscarriage of justice.

In order to justify the reception of fresh issue of law on appeal the following conditions must be fulfilled.

Firstly, the issue must be pleaded as it cannot be at large.

Secondly, the issue must involve substantial points of law.

Finally, further evidence would not be required. See Fadiora v. Gbadebo (1978) 3 SC P.219 Koya v. UBA Ltd (1997) 1 NWLR (pt.481) p. 251.

The fresh issue of law is Section 15 (1) of the University of Jos Act. A review of the Record of Appeal reveals that is was pleaded (see paragraph 6 of the Affidavit in support of the Originating Summon). The issue involves substantial points law, and in considering it in the top Court further evidence by way of calling witnesses would not be necessary. It follows that the conditions are resolved easily in favour of the appellant/applicant.

Section 36(1) of the Constitution guarantees the right to fair hearing. An attribute of that provision is that parties to an action should be given adequate notice and opportunity to be heard and to present their case to the best of their ability. Even the Lord God gave Adam an oral hearing

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despite the evidence supplied by his act of covering his nakedness, before the case against his continued stay in the Garden of Eden was decided against him.

Natural justice demands that a person must be heard before the case against him is decided.

Any breach of Section 36 (1) of the Constitution can lead to the entire proceedings being declared null and void. See Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt.53) p.678.

Jang v. Dariye (2003) 15 NWLR (Pt.843) p. 436.

It is manifest from the facts of this case that there was an infraction or infringement of the appellant’s constitutional right to fair hearing when the respondent denied the appellant his right to be heard by the Council of the University of Jos as provided by Section 15 (1) of the University of Jos Act, before he was dismissed, and both Courts below failed to see the infraction. It is now left for the top Court to ensure that the appellant’s right to fair hearing as provided by the Constitution is guaranteed. This can only be done by allowing counsel to be heard in this Court on appeal, on Section 15 (1) of the University of Jos Act.

There would be miscarriage of justice

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where there is a departure from well laid down procedure before arriving at a decision, thereby resulting in a failure of justice.

Where there is a miscarriage of justice the decision would be inconsistent with the substantial right of the party. There is miscarriage of justice when the Court fails to do justice, in such a case, injustice reigns supreme. In short, it is justice misapplied.

See S. Akpene Djukpan v. P. Orovuyovbe & anor (1967) 1 ALL NLR p. 134 Okonkwo & anor v. Udoh (1997) 9 NWLR (Pt.519) p.16, Ojo v. O. Anibere & ors (2004) 10 NWLR (Pt.882) p. 571.

Section 15 (1) of the University of Jos Act was raised by the appellant before the trial Court and the Court of Appeal but was not considered by both Courts.

It is long settled that this Court will not allow a party on appeal to raise any question not raised in the trial Court or grant leave to a party to argue new points or new grounds not canvassed in the Court below except where the new points involve substantial points of law which should be allowed to prevent clear miscarriage of justice. The application is hereby granted.

In the light of all that I have

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been saying, leave is granted the appellant/applicant to raise and argue fresh issue of law to wit:

Section 15 (1) of the University of Jos Act.

It is hereby ordered that the appellant’s/applicant’s brief which contains argument on the fresh issue of law is deemed duly filed and served today, 13 April, 2017.

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SC.428/2013(R)