Adeyinka Abosede Badejo (Miss) V. Federal Minister Of Education & Ors. (1996)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C. 

The appellant commenced this action through her father and next friend by a Motion Ex-Parte dated 29th September, 1988 pursuant to Order I Rules 2(3) & 6 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 for the following:-

1. An order granting leave to the applicant to apply to this Honourable Court for an Order to enforce and secure within Lagos State her fundamental human right to freedom from discrimination as contained in Section 39(1) of the Constitution of the Federal Republic of Nigeria 1979 which right has been breached by the respondents who refused to call her for interview for admission into Junior Secondary-1 for the 1989 Session in Federal Government Colleges merely on the ground of the applicant’s state of origin.
2. An interim order restraining the respondents their agents and privies from conducting the interview for admission into Junior Secondary-1 for the 1989 session at Queens College, Yaba Lagos, Federal Government College Ijanikin Lagos and all other designated interview centres throughout Nigeria on Saturday October 8, 1988 or an order directing a stay of all actions on matters relating to admission of students for the 1989 session at Queens College Yaba Lagos, Federal Government College Ijanikin, Lagos and all other Federal Government Colleges in Nigeria for which the interview mentioned in this application is planned until the final determination of the application of the applicant for an order enforcing and securing the enforcement within Lagos State of the Applicant’s said right to freedom for discrimination on the ground of her state of origin.”
3. An interlocutory order restraining the 1st, 2nd and 3rd respondents and/or their agents and privies from marking the scripts of candidates for and/or collating and/or releasing the results of the interview examination held all over Nigeria on 8th October 1988 in respect of the admission of candidates into Junior Secondary School in all Federal Government Colleges in Nigeria including Queens College Lagos by any form of publication issuance and despatch of letters of admission until the final determination of the applicant’s application to enforce and secure the enforcement of her fundamental right to freedom from discrimination as provided by Section 39(1) of the Constitution of the Federal Republic of Nigeria 1979 and to deem the said motion as having been properly so amended.”

(Added by an amendment of 20th October 1988, See page 58 of Record).

In the statement accompanying the Ex-Parte motion also dated 29th September, 1988 the appellant sought for the following reliefs:-

“(i) A declaration that the applicant is entitled to freedom from discrimination on the basis of her state of origin with regards to the cutoff mark and marks scored by the applicant and the applicant’s eligibility to be called for interview for admission into Federal Government Colleges.

(ii) A declaration that the decision of the respondent not to call the applicant for interview based on the criterion published by the respondents in both the Daily Times and National Concord Newspapers of September 16th, 1988 which said criterion was adopted by the Respondents in the selection of candidates for interview for admission to Secondary-1 in Federal Government Colleges in 1989 is discriminatory to the applicant, is faulty, irregular, unconstitutional, null, and void.”

On the 5th day of October, 1988 the High Court granted the appellant leave to apply for the enforcement of her fundamental right but declined or refused her prayer for an interim order of injunction against the Respondents from conducting interview for admission to Federal Government Colleges on Saturday the 8th day of October, 1988 without first giving the respondents a hearing on the issue.

Pursuant to the grant of leave above, the substantive Motion on Notice for the enforcement of fundamental right was then filed. The papers include Affidavit Verifying the Fact Relied upon and an Affidavit of Urgency. The respondents on their part filed a Counter Affidavit as well as a Further Counter Affidavit. It is important to note at once that the appellant filed no reply to any of the Counter Affidavits as I will explain later.

Counsel on both sides addressed the court on 20th October, 1988 and Ruling thereon was reserved till 4th November, 1988. On that day the learned trial judge delivered her ruling dismissing appellant’s application or motion when she concluded on page 76 of the record as follows-

“It is my considered opinion that the applicant had not been able to establish that she had suffered by the acts of respondents, injuries greater than those suffered by all the other successful candidates who were not called for interview in the Common Entrance Examination.

I am therefore of the firm view that the applicant has no locus standi to bring this application. See also Gouriet v. Union Post Office Workers (1978) A.C. 437.

The application therefore fails and it is hereby dismissed.”

Aggrieved by the above ruling, the appellant appealed to the Court of Appeal, Lagos Judicial Division. Only one issue was submitted for determination which reads:-

“The central issue for determination in the appeal is whether or not the appellant/applicant has locus standi to bring the action. In order to analyze this issue it is pertinent to examine the facts of the case.”

In a reserved judgment the Court of Appeal (Coram Akpata, Babalakin and Awogu J.J.C.A.) unanimously allowed the appeal holding that the appellant had established that she had locus standi to institute the action and awarded costs of N250.00 against the respondents. The Court of Appeal however, proceeded to strike out the entire suit on the ground that the matters complained of in the motion had been completed and overtaken by events such that there was nothing to be remitted to the High Court for further action. The suit as I said above, was therefore struck out.

Further aggrieved by the decision of the Court of Appeal, the appellant has now appealed to this Court. Only one ground of appeal was filed. The parties filed and exchanged briefs of argument as provided by the Rules of Court. These were adopted and relied upon at the hearing.

Chief G.O.K. Ajayi SAN, learned Counsel for the appellant has submitted in his brief one main and one subsidiary issues respectively as arising for determination in the appeal as follows:-

“1. Whether the applicant ought to have been prevented from being able to obtain redress for the breach of her fundamental rights because the respondents had completed the acts complained of while her application was pending Should the matter have been struck out summarily by the Court of Appeal

2. Was there any basis for the Court of Appeal’s statement that the matters complained of had been completed Had the case in fact been overtaken by events

Counsel for the respondents was however satisfied to summarize the two issues in one thus:-

“Whether having held that the plaintiff has Locus Standi, the Court of Appeal should have sent back the matter to the lower court for determination”.

I propose to treat together the two issues raised by the appellant in her brief. But before I do that I will first of all set out that part of the lead judgment of Babalakin J.C.A. (concurred by both Akpata and Awogu J.J.C.A.), subject matter of this appeal. It appears on page 135 of the record as follows:-

“I am satisfied that the applicant has established that she has locus standi to institute the action and I so hold. The appeal is allowed. The Ruling of Akinboboye J. delivered on 4th November 1988 is hereby set aside. I award N250.00 costs against the respondents. However as the mailers complained of in this appeal had already been completed, the subject matter of the appeal has been overtaken by events and there is nothing more to be remitted to the lower court for further action. The action in the lower court is hereby struck out.”

(Italics supplied by me for emphasis only).

Chief Ajayi in his brief submitted that there was no material before the Court of Appeal upon which it could have based its conclusion that the matter being complained of had been overtaken by events. He said the applicant had complained that she had been discriminated against by not being called for interview for admission into Federal Government Colleges and that there was no suggestion or evidence that the applicant could no longer be called for such interview. It was therefore submitted that only where there had been positive evidence by the respondents that the applicant could not be called for interview after a specific date that the Court of Appeal would have been entitled to find that the appeal had been overtaken by events and that there was no such evidence.

It was also submitted that the Court of Appeal having rightly held that the appellant had locus standi ought not to have shutout the appellant from being heard by striking out her case in the High Court. That the finding ought to have been the beginning of the determination of the infraction of her rights as guaranteed by the Constitution of the Federal Republic of Nigeria 1979. He referred to Page 132 of the record, Section 42(1) of the Constitution and to the case of Ransome-Kuti v. A.G. Federation (1985) 2 NWLR (Pt.6) (21). He said an applicant who complains that her fundamental right has been or is being contravened is entitled to have her complaint investigated by the Court. he applicant is entitled to be heard he stressed.

It was further submitted that the rationale behind the decision of the Court of Appeal is subversive of the jurisdiction granted to the courts by Section 6(6) of the Constitution to hear and determine all disputes between individuals and Government, because in an appropriate case all that Government would need to do would be to complete or execute the act sought to be challenged and then go to the High Court and rely upon its action as a complete defence to the application. He cited the case of Ojukwu v. Military Government of Lagos State (1986) 1 NWLR (pt.18) 621 and submitted that the order which the Court of Appeal ought to have made in this case was one cancelling the whole exercise of the interviews which affected the applicant and, ordering fresh interviews to which the appellant would have been invited. He said where a person complains of a breach of her fundamental rights, the court has the bounded duty to provide an appropriate remedy to the complainant and not necessarily what she asks for. It was submitted that the Court of Appeal had not addressed its mind to Section 42(2) of the Constitution and that if it had done, the proper order it could have made was to have remitted the case back to the High Court to be heard by another judge on its merit. We were urged to allow the appeal.

On behalf of the respondents, It was submitted that the record including the orders and reliefs sought, show that the appellant’s complaint was about interviews for admission into Junior Secondary – 1 for the 1989 academic year. And that the appellant in a motion and affidavit in support both dated 17/10/88 stated clearly that the interview complained of had been carried out on 8/10/88. The subject matter of the appeal was therefore no more subsisting when the Court of Appeal gave its judgment and struck out the suit on 8th January, 1990. That neither the High Court nor the Court of Appeal was in a position to enforce the fundamental rights of the appellant with regard to the reliefs and orders sought by her and that remitting the case to the High Court for trial would only have amounted to an academic exercise. A number of cases were cited in support including Ukejianya v. Uchendu (1950) 13 WACA 45 Ekpeyong v. Nyong (1975) 2 S.C. 71; Kigo (Nigeria) Ltd. v. Holman Bros. (1980) 5 – 7 SC. 60.

It was further submitted that the Court of Appeal could not have closed its eyes to the various documents before it on record showing dates of the interviews and tests as well as dates for commencement of the academic year for the interviews and admissions complained of. The Court of Appeal therefore needed no further address to be able to arrive at the conclusion that the 1989 academic year complained of had since expired, and that it is trite that the court will not make an order in vain. Learned Counsel said the Court of Appeal has powers under Section 16 of the Court of Appeal Act 1976 (as amended) and Order 3 Rule 23 of the Court of Appeal Rules 1981, to make the order it made. We were referred to the cases of Shodeinde v. Registered Trustees of Ahmadiyya Movement in Islam (1980) 1- 2 S.C 163; (1980) N.S.C.C. 163 and A.G. Bendel State v. A.G. Federation & Anor (1982) 3 NCLR 1; (1981) 10 S.C. 1.

The Court was urged to dismiss the appeal.

It is common ground, and I think there is no doubt whatsoever about it, that a careful reading of the three orders and the two declarations sought by the appellant from the High Court and reproduced above, all pertained to one thing only, and that was:-

The applicant’s eligibility to be called for interview on 8th October, 1988 for admission to Secondary-1 in Federal Government Colleges in 1988.

Let me now examine the facts as revealed on the record. In the Affidavit of Urgency in support of the Motion Ex-Parte for leave, it was deposed thus:-

“2. That the application is being brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979.

4. That the application also contains a prayer for an order to restrain the respondents from holding on October 8, 1988 the interview which the respondents seek to exclude the applicant from.
5. That if the application is not heard before the said interview date the applicant will suffer irreparable loss because she will be deprived of her said freedom from discrimination and the applicant will be permanently prevented from attending a college of her choice (i.e. Federal Government College).”

Also in the Affidavit Verifying the Facts Relied upon for the enforcement of the fundamental right, it was averred as follows:-

“11. That the respondents have issued letters to candidates invited for interview for selection into said Federal Government Colleges and such candidates received their letters on Friday 23rd September, 1988.

12. That the interview is scheduled to be held on 8th October, 1988.
13. That if the interviews in the centres mentioned in paragraph 14 above are held before the disposal of the applicant’s application to enforce the fundamental right, the applicant will lose the opportunity of attending a Federal Government College and this will cause the applicant irreparable loss.”

When on 5/10/88 the learned trial judge granted leave to appellant to apply for the enforcement of her fundamental rights but declined to make the order for interlocutory injunction against the respondents, one Mr. Olugbemi, learned counsel for the appellant was recorded on Page 52 of the record to have submitted amongst others as follows;-

“On the 2nd leg of the application, Mr Olugbemi relies on paras ……. of the affidavit and paras of the further affidavit to support her application for an Interim Order restraining the respondents, their agents and privies from conducting the interview for admission into the Federal Government College until this application is disposed of. If the interview is held on October 8th, 1988 as scheduled then the subject matter of the application will be destroyed and there will be no need for the application …….M. Olugbemi finally urged the Court to grant their prayer as to allow the interview to take place on Saturday the 8th October would cause an irreparable damage to the applicant as she will no longer be able to take part in the examination for a Federal Government College.”

(Italics is mine for emphasis only).

It is doubtless therefore that the appellant and her Counsel knew that the interview would be held on 8/10/88 and if so held and before the application was heard, then the subject matter of the application would have been destroyed completely. Now, before the substantive motion on notice pursuant to the grant of leave was moved on 20/10/88, the respondents had filed a Counter Affidavit and a Further Affidavit as I mentioned earlier. Paras. 8, 9, 13 and 20 of the Counter Affidavit read thus:-

“8. That the applicant was not invited for the interview because she scored below the cut -off mark of her state of origin and as such was not qualified to be invited for the interview.

9. That whereas the cut-off mark for Ogun State was 295 for girls, the applicant scored 293.
10. That the Federal Government Colleges were set up for the purpose of enhancing the unity of this country by bringing children from different parts of Nigeria together so that they can appreciate each other’s customs and ways of life
11. That it is the responsibility of the Federal Ministry of Education to implement policies in the manner that reflects the Federal character of Nigeria which implies quota system and to achieve the purpose for which the Unity Schools were set up.

Paras. 5, 8, 9, 10 and 12 of the Further Counter Affidavit also read:-

“5. That the interview for the successful candidates who scored up to the cut-off mark for their respective States of Origin had already been held on 8th October. 1988.

8. That having not been invited for the interview which had already been held. she had no further stake in the mode of admission to the Unity schools for the year 1988 and therefore not be allowed to disturb the other on-going processes of admission to the Unity/Schools for this year.
9. That the applicant is just one of the many candidate who did not score up to the cut-off mark for their states of origin and were consequently not invited for the interview and so there is no question of any discrimination.
10. That in bringing this application before this Honourable Court, the applicant is placing her own individual interest of and above that of the Society (i.e. the interest and several thousand other candidates) who qualified and had attended the interview.
11. That it would amount to this Honourable Court making an order in vain as the interview for admission to the Unity Colleges had already been held on 8th October. 1988”

There was no reply from the appellant particularly to the depositions in the Further Counter Affidavit reproduced above to the effect that the interview had been held on 8/10/88. When the Motion on Notice was being moved on 20/10/88 and Mr Olugbemi’ s attention was drawn to the respondent’s counter affidavit and further counter affidavit, he was recorded on Page 59 to have said:-

“Mr Olugbemi as regards the Counter Affidavit submitted that this confirms the deposition of the applicant and as such it lacks merit. As to the Further Counter Affidavit – there is no opposition to the averment of applicant for an interlocutory ”

Further down the page he said:-

..even though the interview had been passed yet the respondents should be restrained from marking papers, collecting the results and releasing the results of the examination to stem this suffering of the applicant. Applicant’s inconvenience outweighs that of respondents if any”.

It was therefore evident from the record that both sides knew and were aware of the fact that when the motion was actually being argued on 20/10/88. the subject matter of the motion, that is, the holding of interviews for the Unity Colleges (Federal Government Colleges) had in fact been held on 8/10/88 throughout the entire Federation of Nigeria. That fact was deposed to in the respondent’s Further Counter Affidavit and clearly admitted by appellant’s counsel in his address in court on that day as shown above. Chief Ajayi was therefore not correct when he said that there was no material before the Court of Appeal upon which it could have based its conclusion that the matter being complained of had been overtaken by events. There certainly were, as shown above. The only evidence required and available here was the positive admission on both sides that the interviews had been accomplished.

The question now is – Did the Court of Appeal need any further address from counsel before it could strike out the suit in the High Court as it did I answer in the negative. The Court of Appeal on the facts before it had no choice in the matter. Certainly if the declarations and the orders sought by the appellant were all founded and based on the appellant’s eligibility to be called for interview on 8/10/88 for admission into Secondary -1 in Federal Government Colleges in 1989, the Court of Appeal must be right when on 8/1/90, some 15 months after the interviews, it held that the subject matter of the appeal had been overtaken by events and that there was nothing left for the High Court to try and therefore struck out the suit in its entirety. I endorse the action.

Again, I find no substance in the submission of Chief Ajayi to the effect that the rational behind the decision of the Court of Appeal was subversive of the jurisdiction granted to the Court by Section 6(6) of the Constitution to hear and determine all disputes between individuals and governments. It will in my view be subversive for a court of law to claim to determine disputes where none existed or had ceased to exist Quite rightly and properly too in my view, the parties had made it known that the act complained of had been accomplished. The case of Ojukwu v. Military Governor of Lagos State (Supra) cited by Chief Ajayi is quite distinct from the present case both on facts and circumstances. It does not therefore apply. Chief Ajayi ought to have realised that for a court of law to have proceeded in the way he suggested would amount to putting the entire Federal Republic of Nigeria at the mercy of one aggrieved individual. A case of total “brutalization” of the people’s fundamental right when compared with an infringement of the appellant’s fundamental right That to me would again amount to a subversion.

Again Chief Ajayi’s submission that the Court of Appeal on 8/10/90 should have cancelled the whole exercise of the interviews of 8/10/88 which affected the appellant and ordering fresh interviews is to say the least, preposterous. Admittedly, the interviews were held on 8/10/88, the 1989 Academic Year for Secondary-l had ended, and the 1990 Academic Year for Secondary-2 (former Secondary-I) had already commenced when the Court of Appeal delivered its judgment on 8/1/90. In short, Chief Ajayi wanted the Court of Appeal to put the hands of the clock backwards by 2 Academic Years! The end result Chaos! I repeat – Chaos all over the country! No court should allow itself to be used as an instrument of subversion under the guise of enforcing a fundamental right.

A fundamental right is certainly a right which stands above the ordinary laws of the land, but I venture to say that no fundamental right should stand above the country, state or the people. I think I can safely say now and thanks to the vigorous and educational activities of the National Judicial Institute, that gone are the days of wanton grant of ex-parte injunctions when operation of a bank was halted by a person who had been removed as a director, or when installation ceremonies of chiefs were halted by those who had lost and the disputes dragged on for years; or when the convocation ceremony of a university was halted by two students who had failed their examinations! It is quite gratifying for one to observe in this case that the High Court rightly and quite properly too in my view refused appellant’s request for an order of interim injunction sought against the respondents just before the interviews of 8110/88 were held. That was as it should have been.

From all I have said above, the appeal must fail. The Court of Appeal had abundant and uncontradicted affidavit evidence before it, as well as submissions of Counsel on both sides, for it to have come to the conclusions it did. The decision of the Court of Appeal Striking out the appellant’s suit before the High Court is hereby confirmed. The appeal is therefore dismissed with N1,000.00 costs to the respondents.

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Other Citation: (1996) LCN/2663(SC)