University of Calabar V. Franklin C. Ugochukwu & Ors (2007)
LawGlobal-Hub Lead Judgment Report
NGWUTA, J.C.A.
This is an appeal against the ruling delivered by Uke. J. of the High Court of Cross River State. Calabar Judicial Division in an interlocutory motion in suit No. HC/MSC/134/2004.
Based on their applications, the respondents, who were applicants in the lower court, were admitted by the appellant University to study medicine and surgery. Each of the respondents was offered temporary admission. See pages 17 to 25 for “Temporary Letters of Admission 1999/2000 Admissions” The temporary admission letter, under the heading “CLEARANCE AT THE REGISTRY” directed each student on receipt of the correct JAMB admission letter to present it to the Registry for clearance during checking of credentials at a date to be announced later and listed the documents to be verified at the screening.
At a screening exercise conducted by the appellant. it was discovered that the respondents presented fake credentials and fake JAMB scores in their application for admission upon which they were offered temporary admission. The respondents, along with 77 other students who presented fake credentials and fake JAMB scores were expelled by the appellant by her letter of 9th Feb., 2004. their appeals against the recommendation of the Screening Panel having been dismissed.
Aggrieved, the respondents, by motion exparte brought pursuant motion to Order 1 r. 2(1). (3) & (6) of the Fundamental Rights (Enforcement) Rules filed on 7/5/04 prayed the court below for the following reliefs:-
“1. Leave of this Honourable Court for the applicants to enforce their fundamental rights as enshrined in S. 36 of the 1999 Constitution of the Federal Republic of Nigeria.
2. That the leave so granted shall operate as a stay of all actions or matters relating to or connected with the complaint(s) by allowing the applicants to attend lecture pending the determination of the case”
The application was supported by 18 paragraph affidavit deposed to by the 1st respondent on 7/5/04 and a further affidavit of 3 paragraphs also sworn to by the 1st respondent on 7/5/04. There was also an affidavit of urgency deposed to by the 1st respondent on 7/5/04.
On 7/5/04, the learned trial Judge heard the exparte application and delivered his ruling on same day thus:-
“After listening carefully to the submission of learned counsel, the affidavit attached the statement pursuant to Order 1 rule 2(3) and since there is affidavit of urgency the application is granted as per paragraphs I and II of the motion Paper. cases is adjourned to 21/5/04 for hearing.”
Upon service on it of the motion on notice for the enforcement of the respondents’ fundamental rights pursuant to the leave granted them. the appellant launched a two pronged attack on the motion –
(1) that the trial court lacked jurisdiction to entertain the matter and
(2) that it is not appropriate to commence the action by procedure for the enforcement of fundamental rights.
The preliminary objection was predicated in the following grounds:-
1. By virtue of the provision of section 251(1)(p) and of the Constitution of the Federal Republic of Nigeria, 1999. this court has no jurisdiction to entertain this suit and make the order in this suit dated the 7th day of May. 2004.
2. The order of May, 2004 is a nullity, unenforceable and inexecutable.
3. The claim of the applicants is not cognizable under the Fundamental Rights contained in Chapter IV of our Constitution and cannot even if justiciable, be enforced as a fundamental right.
4. The suit constitutes an abuse of the process of this Honourable Court.”
In the ruling delivered on 14/6/04, the learned trial Judge referred to S. 46 of the 1999 Constitution and concluded as follows:
“This section confers jurisdiction on any High Court in a state in matters of fundamental rights irrespective of who is affected by an action founded on such rights. Therefore, irrespective of the statues of the respondent, the High Court has jurisdiction.”
The appellant (respondent in the court below) was aggrieved and appealed to the court on four grounds.
Learned counsel for the parties filed and exchanged briefs of argument. In his brief which he adopted and upon which he relied at the hearing of the appeal, the learned counsel for the appellant formulated the following lone issue for determination –
“Whether the action before the lower court was competent and or properly initiated under the Fundamental Rights Enforcement Procedure Rules (Ground 1 of the notice of appeal on page 77 of the records).”
Since the learned counsel did not frame issue or issues from any of grounds 2 – 4. the grounds are deemed abandoned and are hereby struck out See Ojegbe & Anor v. Omatsone & Ors. (1999) 6 NWLR (Pt. 608) 591 CA: Baridam v. State (1994) 1 NWLR (Pt. 320) 250; Adigun v. Ayinde (1993) 8 NWLR (Pt. 313) 516.
On his part, learned counsel for the respondents adopted in the respondents’ brief of argument the lone issue presented by the appellant.
He adopted and relied on the said brief at the hearing of the appeal.
In his argument in his brief, learned counsel for the appellant referred to and reproduced the four reliefs sought by the respondents in the motion on notice. Learned counsel argued that the main aim of the respondents was to challenge their expulsion from the appellant University. Learned counsel said the respondents claimed that they were still students of the appellant and sought an order restraining the appellant from disturbing them, Counsel, referred to S.36 of the Constitution and contended that neither in the said section nor anywhere else is the right to write
examination or the right not to be expelled or to remain a student is guaranteed or made justiciable. The action, according to counsel is a challenge of the administrative act of the appellants in preventing the respondent from writing examination and or expelling them. Counsel contended that the mode of commencing the action did not alter the nature of the claims. He argued that the issue of fair hearing is secondary or merely ancillary to the claims of the appellants. He submitted that Fundamental Rights (Enforcement Procedure) Rules are special provisions made only for cases in which the main claims or reliefs are the enforcement of fundamental rights and where the main or principal claim is not enforcement or protection of a fundamental right the Fundamental Rights (Enforcement Procedure) Rules are inappropriate. He relied on:
1. Tukur v. Govt., Taraba State (1997) 6 NWLR (Pt.510) p. 549.
2. Egbuonu v. Borno Radio Television Corporation (1997) 12 NWLR (Pt. 531) 29.
3. Sea Trucks(Nig.) Ltd. v. Anigboro (2001) 2 NWLR (Pt.696) p. 159
4. Jack v. Unam (2004) 5 NWLR (Pt. 865) 208.
Counsel stated that the main complaint in Tukur v. Govt. of Taraba State. was the challenge of the deposition of the Emir of Muri with the breach of fundamental right to fair hearing incidental to the main claim and in Egbuonu v. Bornu Radio Television Corporation, the main claim related to the dismissal of the appellant from the respondent’s employment from which the claim of denial of fair hearing was made. In each case it was held that the main claim of deposition and dismissal from service are not rights enforceable under S. 42 of the Constitution and that the trial court lacked jurisdiction in each case. He referred to Achebe v. Nwosu (2003) 7 NWLR (Pt. 818) 103 at 114 ratio 9. He contended that the main claim herein is the alleged wrongful expulsion of the respondents by the appellant which is not enforceable under the Fundamental Rights (Enforcement Procedure) Rules. Counsel argued that the respondents’ claim of wrongful expulsion is potentially contentious and therefore should have been commenced by a writ of summons. In his submission, the respondents’ case was not commenced by due process of law and the procedure adopted robbed the trial court of jurisdiction to entertain the matter. He relied on:
1. Madukolu v. Nkemdilim (1962) 2 SCNLR p. 341
2. Jack v. UNAM (supra)
3. Gobang v. Shelim (2003) 3 NWLR (Pt. 807) p. 286
4. Chevron (Nig.) Ltd. v. Warri North L.G.C. (2003) 5 NWLR (Pt. 812) p. 28.
5. Saleh v. Monguno (2003) 1 NWLR (Pt. 801) p. 221.
He urged the court to resolve the lone issue in favour of the appellant.
Counsel urged the court to allow the appeal, set aside the decision of the court below and strike out the respondents’ case.
Arguing the lone issue in his brief, learned counsel for the respondents referred to a portion of the letter of expulsion –
” … the Vice Chancellor acting in consonance with the provision of S. 5, 12.4 of the Students Handbook, has approved your expulsion from the University.”
and contended that the respondents were expelled from the University based on the findings of the Panel of Inquiry set up by the University on the grounds that the respondents committed acts of forgery and impersonation. He argued that the assertion on page 5 of the records that the sections of the Handbook cited in the letter of expulsion deals with the commission of crime like forgery and impersonation was not denied by the appellant. He argued that the appellant violated the respondents’ right to a fair hearing. He argued further that the action was commenced by due process as the respondents were expelled on the finding that they committed fraud. According to learned counsel, the expulsion of the respondents was in breach of S. 36(1) of the 1999 Constitution as their trial was not by a court or tribunal established by law and constituted in such a manner to secure its independence and impartiality. He relied on Dr. O. E. Sofekun v. Akinyemi & Ors. (1980) 5 – 7 SC 1 where it was held that “fundamental right of the appellants to fair hearing within a reasonable time by a court has been violated by their being tried and punished for criminal offence without a proceeding and conviction by court.” He referred to Esiaga v. University of Calabar (2004) 7 NWLR (Pt. 872) p. 366 at 386 where the court held that the University rather than punish the appellant for commission of a clime should have reported the matter to the Police and suspended the students instead of expelling them. He also referred to University of Ilorin v. Idowu Oluwadare (2003) 3 NWLR (Pt.808) p. 557 at 562 for a similar decision on similar facts. He argued that on the facts of this case a declaratory relief can be granted in a summons or motion as provided by Fundamental Rights (Enforcement Procedure) Rules. He relied on Direction, S.S.S. v. Agbakoba (1999) 3 NWLR (Pt.595) 314 at 340 ratio 18 where it was held that:
that a declaratory relief cannot be granted on an admission in pleadings cannot and do not apply to a claim for declaratory reliefs brought under summons or by motions as provided by Fundamental Rights (Enforcement Procedure) Rules. In other words, a declaratory relief can be granted under a summons or motion on notice where the respondent failed to file a counter-affidavit”.
He said that the affidavit in support of the respondents’ motion was not challenged by way of counter-affidavit. He referred to F.R.N. v. Ifegwu (2003) 15 NWLR (Pt. 842) p. 113 at 135 ratio 9 where it was held that:”
Declaratory and other reliefs can be sought and obtained to enforce and protect fundamental rights by filing an action in a High Court.”
He relied further on WAEC v. Akinkunmi (2002) 7 NWLR (Pt.766) p. 327 at 330 ratio I for the decision that:
“Whenever a person alleges that he was punished by an administrative body without hearing, such a person can invoke the provisions of the Fundamental Rights (Enforcement Procedure) Rules to seek legal redress.”
He submitted that a fundamental right is not only enforceable as a main or principal right and cited the case of Anuka Community Bank Ltd. v. Olua (2000) 12 NWLR (Pt.682) p. 641 at 645 ratio 2. He said the cases of Tukur (supra) and Jack relied on by the appellant are on termination of contract and are distinguishable from the present case wherein the respondents were expelled for a Clime where there was no trial by a Court.
According to counsel, unlike the present case, issues in the cases relied on by the appellant are contentious. He relied on Oruk Anam L.G. v. Ikpa (2003) 12 NWLR (Pt. 835) p. 558 at 562 ratio 3 in his contention that the primary consideration for the court is to do justice and not the procedure adopted by the respondents. He urged the court to dismiss the appeal.
The order of the lower court against which this appeal lies reads:”
Leave of this Honourable Court for the applicants to enforce their fundamental rights as enshrined in S. 36 of the 1999 Constitution of the Federal Republic of Nigeria”, S. 36(1) of the Constitution provides for the rights for which the respondents were granted leave of the court to enforce. It provides:”
36(1) In the determination of his civil rights and obligations including any question or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality,”
Also S. 46(1) of the Constitution provides:-
“Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.”
Order 1 r. 2(1) of the Fundamental Rights (Enforcement Procedure) Rules states:-
“Any person who alleges that any of the Fundamental Rights provided for in the Constitution and to which he is entitled has been, is being, or is likely to be infringed may, apply to the court in the State where the infringement occurs or is likely to occur, for redress.”
While section 36 of the Constitution is not limited or confined to any particular Chapter or section of the Constitution S. 46( 1) is limited to Chapter IV of the Constitution. So also in Ord. 1 r. 2(1) of the Fundamental Rights (Enforcement Procedure) Rules in as much as it provides for violation of any of the Fundamental Rights provided for in this Constitution because the Fundamental Rights are provided for in Chapter IV of the Constitution. It follows that the fundamental rights for which the respondents were granted leave to enforce must be rights provided for in Chapter IV of the Constitution which runs from sections 33 to 46 inclusive.
If the right sought to be enforced does not fall within any of the provisions of Chapter IV of the Constitution, that is sections 33 to 46 thereof, there can be no resort to Fundamental Rights (Enforcement Procedure) Rules. See Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt. 276) 410 at 445; Ransome-Kuti v. A-.G., Federation (1985) 2 NWLR (Pt. 6) at 211: Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt. 200) 708 at 762.
In the statement pursuant to Order 1 r. 2(3) of the Fundamental Rights (Enforcement Procedure) Rules. the reliefs sought by the respondents were stated as follows:
“(i) A declaration that the denial of the applicants the opportunity to write their Part 1 MBBCH Professional Examination by the respondent without any explanation whatsoever, is an infringement of the applicants’ right to fair hearing.
(ii) A declaration that the applicants are still bona fide students of the respondent.
(iii) That the expulsion of the applicants by the respondent is a violation of their right to fair hearing as enshrined in S.36 of 1999 (sic) and is unconstitutional, null and void.
Perpetual injunction restraining the respondents, her agents, servants and parties from further disturbing the applicants in any way or manner associated with this matter”
See pages 9 – 10 of the records. The reliefs were sought on the following grounds:
(i) The refusal of the respondent to allow the applicants sit for their Part 1 MBBCH Professional Examination, without any reason communicated to them infringes their rights to fair hearing.
(ii) Bona fide students of the respondent are entitled to sit for their Part 1 MBBCH Professional Examination without hindrance by the respondent.
(iii) That the reason for the applicants’ expulsion based on section 5.12.4 of the Student Handbook amounts to the commission of a crime and the respondent has no jurisdiction to try criminal matters.
That based on the provision of clause 3 of the Joint Admission Matriculation Board Letter of Admission, the respondent has no authority to expel the applicants on the issue of admission.”
In addition to the above, paragraphs 11, 13 and 16 of the affidavit in support of the application leave are also relevant in determining the principal relief sought by the respondents as applicants in the lower court. The paragraphs are hereunder reproduced:
“11. That as a result of the fresh screening the applicants were denied access to write their Part I MB BCH Professional Examination without any reason advanced for the refusal by the respondent.
13. That surprisingly, on March 25th, 2004. the respondent served on some of the applicants a back-dated letter of 9th February, 2004. expelling them from the respondent’s Medical School on grounds of Commission of various crimes. That an expulsion list was also pasted by the respondent on the 25/3/2004. See exhibit H.
16. That the other applicants and I are informed by our counsel T. N. Edor. Esq. and we truly believe him that the respondent has no right to expel us on grounds of fraud.”
From the reliefs sought, the grounds upon which the reliefs were sought and the affidavit in support of the application for leave to enforce fundamental rights reproduced above it is beyond dispute that the main or principal relief sought by the respondents as applicants in the court below is a reversal of their expulsion from the University and the restoration of their status as students of the appellant University as well as the vacation of the order banning them from the MBBCH examinations.
There is a difference between the expulsion of the respondent on one hand and the method of their expulsion on the other hand. The method and/or the reasons for their expulsion are matters incidental, subsidiary and ancillary to the principal relief which is a challenge to their expulsion from the Medical School of the appellant University. In other words, the issue of fair hearing guaranteed in S. 36 of the Constitution is not the principal relief but is incidental to the principal relief.
In any case, the portion of the argument of the learned counsel for the respondent, in his brief, that has any relevance to the issue of principal relief did not dispute the appellant’s contention that breach of right to fair hearing is not the main relief but is ancillary to it. Rather teamed counsel for the respondent contended that enforcement of fundamental rights is not limited to the main relief and that both the main and subsidiary reliefs can be enforced by the same procedure, contrary to the appellant’s argument that enforcement proceeding is not appropriate when the main claim is not within Chapter IV of the 1999 Constitution, irrespective of whether or not the subsidiary relief is provided for in the said chapter.
My Lords, permit me to reproduce once more the special jurisdiction of High Court in S. 46(1) of the 1999 Constitution for ease of reference and clarity. S. 46(1) provides:
“Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.”
The stress is on the phrase “any of the provisions of this chapter”. In my view the special jurisdiction in S. 46(1) of the Constitution is not open to every infraction of the citizen’s right but it is confined to infringement of Fundamental Rights” provided for in Chapter IV of the Constitution, that is sections 33 to 46 inclusive. The special provision in S. 46(1) can be invoked only if the right sought to be enforced can be found in any of sections 33 – 46 of the Constitution that is Chapter IV. If no right guaranteed under Chapter IV is infringed there can be no justiciable issues under S. 46(1) of the Constitution and the court would be without jurisdiction to grant leave to enforce the right not within the said chapter. See Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt. 200) 708 at 762: Federal Ministry of Internal Affairs & Ors. v. Darman (1982) 3 NCLR 915; Tukur v. Gov. Gongola Stare (1989) 4 NWLR (Pt. 117) 517: Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt. 276)-110 at 445: Ransome-Kuti v. A-.G., Federation (1985) 2 NWLR (Pt. 6) at 211. Clearly, the main reliefs claimed by the respondents are not provided for in S, 36 of the Constitution pursuant to which the reliefs are sought. However, if any of sections 33 to 46 in Chapter IV of the Constitution had guaranteed a right not to be expelled from an institution of higher learning or a right against being denied the opportunity to take any University examinations, the court below would have been competent to entertain the matter notwithstanding the fact that the right was not guaranteed by the section relied upon. The principle that once a person is entitled to a remedy provided by law it is immaterial that he has applied for it under a wrong law or a wrong section of the law. If the reliefs had been guaranteed by any section in Chapter IV of the Constitution. it would have made no difference that the particular section was not cited in place of the section which did not guarantee the rights.
See Edewor v. Uwegba (1987) 1 NWLR (Pt. 50) pg. 313 at 315.
Since the main claim – a challenge to expulsion of students from the University and exclusion from University examinations – are not guaranteed in any of sections 33 to 46 of the Constitution that constitute Chapter IV thereof the procedure adopted in initiating the action is not appropriate. In Effiong & Ors. v. Inih A. Ebong (2006) 18 NWLR (Pt.1010) p. 109 at 127 paras. C-D Omokli, JCA. speaking for the Court held that:-
” … Where the alleged breach of right is ancillary or incidental to the principal claim, grievance or complaint, it is incompetent to proceed under the rules. This is because the right violated is not synonymous with the substantive claim which is the subject matter of the action.”
This was a challenge to the suspension of an employee from work. In University of Ilorin v. Idowu Oluwadare (supra) another challenge to students’ expulsion from the University, the court held that since right to studentship is not guaranteed in Chapter IV of the Constitution, the action challenging expulsion by way of fundamental rights proceeding is incompetent.
I entirely agree with the above views of His Lordship. The said view apply in this case.
A court is not competent to entertain any matter if all conditions precedent to the exercise of its power in hearing the matter are not fulfilled and in this case a condition precedent to the hearing of the application is that the right sought to be enforced is one provided for in Chapter IV of the Constitution. Since the right to a fair hearing sought to be enforced is not the main relief and the main relief is not within Chapter IV of the Constitution. It follows that a condition precedent to the exercise of court’s powers was not fulfilled and consequently, the lower court lacked jurisdiction to grant the application. See Inah & Ors. v. Ukoi (2003) FWLR (Pt. 143) 382: Madukolu v. Nkemdilim (1962) 2 SCNLR 341. (1962) 1 ANLR 587 at 595. The State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33.
While the court has a duty to expound its jurisdiction it cannot expand same to matters not contemplated by the statute vesting the jurisdiction. See African Newspaper (Nig.) Ltd. v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 37. (1985) 1 All NLR 50 at 175; Inah & Ors. v. Ukoi (supra).
The reliefs sought in a fundamental right application are the paradigm for determining whether or not a court is seised of jurisdiction in a particular case. When the claims cannot be validly presented under S. 46 of the Constitution, the court would have no jurisdiction to hear or grant any order in the matter. See Faith Tabernacle Church v. Ikwechegh (2001) 1 CHR 423 at 424.
The principal reliefs arising from the expulsion of the respondents from the appellant University are not within the provisions of Chapter IV of the Constitution and ipso facto the trial court lacked jurisdiction in the matter. The lower court should have upheld the appellant’s preliminary objection challenging the competence of the application and the jurisdiction of the court to entertain same. I resolve the lone issue in favour of the appellant. I allow the appeal set aside the decision of the court below and strike out the respondents’ application for leave to enforce their Fundamental Rights as enshrined in S. 36 of the 1999 Constitution of the Federal Republic of Nigeria for being incompetent and for want of jurisdiction on the part of the trial court to entertain same.
I make no order as to costs.
Other Citations: (2007)LCN/2406(CA)
