Bukola Oluwaseun Olutayo V. Federal University of Technology, Minna & Ors (2007)

LawGlobal-Hub Lead Judgment Report

ABOKI, J.C.A.

This is an appeal from the decision of the Niger State High Court No.5 Minna delivered on 19/6/2006 by Maria Sanda-Zukogi J.

The suit at the lower court relates to the breach of appellant’s fundamental right to fair hearing resulting from her expulsion from Federal University of Technology, Minna (1st respondent). The suit was brought under Order 2 rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 1979. The applicant prayed for the following reliefs:

“(1) An order declaring applicant’s suspension and subsequent expulsion as being in breach of her

constitutional right to fair hearing and are therefore, null and void and of no effect.

(2) An order directing the respondent to within 7 days of the order of the court serve on the applicant:

(a) a letter withdrawing the purported letter of expulsion of the applicant from the Federal University of Technology, Minna;

(b) a letter recalling her to the Federal University of Technology, Minna to continue with her academic activities as a student.

(3) An order directing the respondent to pay to the applicant N500,000 as general damages.

(4) Such further order(s) as the court may deem fit to make in the circumstances.”

In support of the application is a twenty-one (21) paragraph affidavit. Paragraphs 1-20 are pertinent and are hereby adumbrated as follows:

“AFFIDAVIT IN SUPPORT

I, BUKOLA OLUWASEUN OLUTAYO, Nigerian, Female, Christian, Student of No. 10, Area 1 Section 2, Garki – Abuja make Oath and state as follows:

1. That I am the applicant herein.
2. That until my suspension and ultimate expulsion from the respondent, I was a student in the Department of Agric. Engineering of the School of Engineering and Engineering Technology thereat.
3. That my student identification number is 2003/14862EA.
4. That I was initially admitted into the one-year Remedial (Science) Programme 2001/2002 Session on successful completion of which I was absorbed into the Degree Programme 2003/ 2004. Letters of admission for the Remedial and Degree Programmes are annexed and marked “exh. A” and “exh. B” respectively.
5. That sometime in May, 2004 we had the first Semester 2003/2004 Session examination on CHEM III and the usual practice is for each student to sign-in, before the examination, and sign-out of the hall, after the examination. These I did.
6. That when the CHEM III Examination results were posted on the board, it was shown that I scored:

20 marks for Continuous Assessment

37 marks for the CHEM III exam

57 as total score

C as my Grade

7. That later another set of CHEM III examination results was posted on the board showing my scores as:

20 marks for Continuous Assessment

ABS i.e. absent for the CHEM exam

20 as total score

F i.e. Fail as my Grade.

8. That my complaints to the Department fell on deaf ears and instead I was served with a letter inviting me to appear before the Students’ Disciplinary Committee (SDC) for alleged Examination Misconduct during First Semester 2003/2004 Session Examination. The letter is annexed and marked “exh. C”.
9. That when I appeared I was informed of the particulars of allegation to the effect that I did not submit my answer booklet after CHEM III Examination; and that my answer booklet was later found in the School Examinations’ Officer’s office after 6 p.m. on the day of the exam i.e. 5/5/04.
10. That I informed the SDC that I signed into the exam hall, sat for the exam and, as is the practice, submitted my answer booklet before signing-out.

I would not have been allowed to sign-out without submitting my answer booklet.

11. That I was, by a letter, suspended from the University. Copy is annexed and marked “exh. D”.
12. That in its report, the SDC observed inter alia, my claim that I sat for and submitted my answer booklet as against the School Examinations Officer’s allegation that I did not submit the script; and that the said Officer did not appear before the SDC to give evidence.
13. That in its said report, the SDC arrived at the conclusion that the allegation against me was not established and therefore, recommended that I should be recalled to continue my studies having already lost a session. The allegation of Examination Misconduct against me was not established.
14. That despite paras. 12 and 13 above, I was served with a letter of expulsion from the University. Copy is annexed and marked “exh. E”
15. ‘That at no time after the SDC’s report was I served with any charge or allegation; nor was I present to hear anyone testify against me and given the opportunity to cross-examine such witness(es).
16. That after the SDC submitted its report I was not invited before any panel or body whether quasi-judicial or even the Senate or other organ(s) (of the respondent) or the subcommittee of anyone of them.
17. That on receiving exh. E, I wrote a letter of appeal to the respondent through the office of the Vice-Chancellor to no avail. The said letter is annexed and marked “exh. F’.
18. That the action of the respondent has left me traumatized emotionally and psychologically.
19. That coming to court is my last resort as I have already lost a session and about to loss a second.
20. That respondent shall, in no way be prejudiced by the grant of this application.”

Leave was granted the applicant to enforce her fundamental right to fair hearing. After hearing the submission of counsel the learned trial Judge held that the applicant cannot complain she was not given fair hearing. She was invited by the Students’ Disciplinary Committee and was told the allegation against her. The application of the applicant was refused.

Being dissatisfied with the said decision, the applicant appealed to this court.

At the hearing of this appeal, learned counsel for the appellant Ibrahim Isyaku, SAN said that the appellant’s brief was filed on 14/7/2006. He said that three issues were distilled from the appellant’s three grounds of appeal. He objected to the respondents raising a fourth issue after adopting the three issues formulated by the appellant. Learned counsel referred to the case of Ikegwroha v. Unijos (2005) All FWLR (Pt. 280) page 1572 at 1581-1582. He insisted that it is not permissible and urged the court to strike out the fourth issue. He also informed the court that the cases cited by the learned counsel to the respondents in paragraphs 4.4 and 4.5 of their brief are not contained in the law report he cited.

Learned counsel for the respondents Mohammed Danjuma, Esq. informed the court that they are adopting the brief of argument filed on behalf of the respondents. He conceded to the issues for determination as set out by the appellant and a fourth issue.

He said that the fourth issue was raised from the grounds of appeal based on an analogical deduction. Learned counsel for the respondents urged the court to discountenance the argument of learned counsel for the appellant and to uphold the decision of the trial court and to dismiss the appeal. He said that the cases cited by learned counsel to the appellant are not relevant.

The brief facts of the case is that the appellant was until her expulsion from the 1st respondent a student of Agric. Engineering in the School of Science and Engineering Technology. Some time in May, 2004, she sat for the 2003/2004 first Semester Examination in CHEM. III and as is the practice, she signed-in, before the examination, and signed-out of the hall after the examination. At the point of signing-out no student is permitted to sign-out without also submitting his/her answer booklet.

The result of the CHEM III examinations were later posted on the notice board and it was shown that appellant scored:

20 marks for Continuous Assessment

37 marks for the CHEM III exam.

57 as total score

‘C’ as her Grade.

Later however, the posted results were removed and replaced with another one showing for the appellant the following:

20 marks for Continuous Assessment

“ABS” i.e. absent for CHEM III exam.

20 as total score

“F” i.e. Fail as her Grade.

Appellant complained to her Department but nothing positive was done, instead she was served with a letter inviting her to appear before the Students’ Disciplinary Committee (SDC) for alleged

Examination Misconduct in respect of the same CHEM III Exam.

When the appellant appeared before the SDC she was informed that she did not submit her answer booklet after the CHEM III examination and that the School Examination Officer found her answer booklet in his office after 6 p.m. on 5/5/04 the day of the examination.

The appellant informed the SDC that she signed-in and out of the Examination Hall and could not have been allowed to sign-out without submitting her answer booklet, she was later served with a suspension letter and later an expulsion letter.

The appellant claimed that she was not invited to hear any witness(es) if any, and to cross-examine him (them) and to see any document(s) if any was tendered and comment thereon. The appellant said she did not appear before any other Panel after the SDC not even the Senate or its sub-committee. However, the Senate, according to the letter, “upheld the recommendation of the SDU to expel her.

The appellant instituted an action at the Niger State High Court, Minna under the Fundamental Rights (Enforcement Procedure) Rules to enforce her right to fair hearing as it relates to her expulsion from the 1st respondent.

The learned trial Judge in a considered ruling refused the application for the enforcement of appellant’s fundamental right to fair hearing. It is against this ruling that the appellant filed this appeal.

Three issues were formulated for the appellant from the three grounds of appeal filed. They read as follows:

“(1) Whether the trial court was right when it held that the applicant’s right to fair hearing was not breached.

(2) Whether the trial court was right when it held that the facts deposed to in paras. 12 and 13 of the appellant’s affidavit were not proved.

(3) Whether the trial court was right when it held that the offence of Examination Misconduct is a trivial one that needed not to be tried by a court of law.”

The Respondents conceded the issues for determination as set out by the appellant but added a fourth issue:

“(4) Whether the appellant’s case was properly brought under Fundamental Rights (Enforcement Procedure) Rules.

It is trite that issues for determination in this court cannot be formulated wider than the grounds of appeal from which they derived their existence. See: Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) page 546: Osinupebi v. Saibu & Ors. (1982) 7 SC. 104; Okpala v. Ibeme (1989) 2 NWLR (Pt.102) page 208; Santana Medical Services Ltd. v. KOPA 1999 12 NWLR pt. 630 page 169.

Whereas several grounds of appeal may raise one issue or one ground may raise an issue, where several issues are raised from one ground of appeal that amounts to proliferation of issues. Proliferation or prolixity of issues in the brief in excess of the grounds of appeal filed has on many occasions been frowned at by this court. See: Yakaje v. Haire (2003) 10 NWLR Pt. 828 page 270: Araka v. Ejeugwu (1999) 2 NWLR Pt. 589 page 107.

Where an issue raised in the brief does not relate to a ground of Appeal, it is incompetent, a non-issue and needs to be struck out, as it is settled law that issues are distilled from grounds of appeal, as they derive their source from the grounds. See: A.C.B. Plc v. Emedo (2003) 10 NWLR (Pt. 828) page 244, Ike v. Enang (1999) 5 NWLR (Pt. 602) page 261, Okeke v. Oruh (1999) 6 NWLR (Pt. 606) page 175, Osinupebi v. Saibu & Ors. (1982) 7 SC 104.

In the present case, since the fourth issue formulated by the respondents after adopting the three issues already formulated by the appellant from the three grounds of appeal, is an excess issue, which is not covered by any ground of appeal, being surplus it is incompetent, unarguable and is hereby struck out.

I have carefully examined the three issues which the parties find mutually satisfactory to them for the determination of this appeal and I adopt them.

The first issue states –

“Whether the trial court was right when it held that the applicant’s right to fair hearing was not breached.”

Learned counsel for the appellant referred the court to paragraphs 8, 9 and 10 of the appellant’s affidavit. He submitted that signing-out is not possible without being preceded with submission of answer booklet. He argued that paragraphs 12, 15 and 16 of the affidavit were not controverted. Learned counsel maintained that these paragraphs are to the effect that the principal accuser, the School Examination Officer did not appear before the Students’ Disciplinary Committee and that after it submitted its report the appellant was not invited before any other panel or body (whether quasi-judicial or judicial) or the Senate or sub-committee of the Senate and served with any charge or allegation. The appellant was not informed of the charge(s) nor was she invited by such body to see and hear witness(es) and cross-examine them and to read document(s) tendered and comment on them.

Learned senior counsel maintained that the trial court after an examination of the invitation letter to the appellant by the Students’ Disciplinary Committee, exhibit C as well as paragraphs 8, 9 and 10 of the appellant’s affidavit and exhibit E, it held that:

“There is no breach of fair hearing in this matter. The applicant was invited to appear before the Disciplinary Committee which she did by exhibit C and paragraphs 8, 9 and 10 of the affidavit in support.”

Learned senior counsel argued that it was not shown that the appellant was present whether before the SDC or the Senate when witness(es), if any testified and documents, if any, were tendered.

He submitted that the appellant did not benefit from ingredients of fair hearing as set out by the trial court in the judgment.

Learned counsel argued that even if though not conceding that the Students’ Disciplinary Committee was a mere board of inquiry, and therefore, not bound by the ingredients of fair hearing, the Senate which considered the report was bound to level charge(s) and the particulars of the charge(s) served on the appellant as well as invite her to defend herself and also take any other evidence in her presence before expelling her. He referred to the case of Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) page 550 to support his submission.

Learned senior counsel submitted that the appellant’s right to fair hearing was breached.

Learned counsel for the respondents, Musa Suleiman, Esq. in response to the submission made on issue one argued that the appellant cannot claim that she was denied the right to a fair hearing in light of the fact that she appeared before the SDC and exhibits C, D, E and F. He contended that exhibit D clearly informed the appellant of her suspension and her forth coming appearance before the SDC which she was invited vide exhibit C to appear before the SDC on 27th October, 2005, and that exhibit E informed her of the respondents’ decision with regard to the report of her appearance before the SDC, while exhibit F is her plea against her expulsion from the University.

Learned counsel contended that the respondents’ disciplinary powers are spelt out in section 16 of the Federal Universities of Technology Act, Cap. 143, Laws of the Federation of Nigeria, 1990 as well as the procedure to be followed in disciplinary matters. He argued that the procedures were followed as shown in exhibits C, D, E and F and confirmed by her paragraphs 8 – 17 of the affidavit in Support. Learned counsel contended that in such circumstances the appellant cannot be heard to complain of lack of fair hearing. He maintained that she was notified of allegations against her before appearing before the SDC and that she was given opportunity to state her defence. He referred the court to the case of Akinola v. University of Ilorin (2005) 1 FWLR (Pt. 243) page 157; (2004) 11 NWLR (Pt. 885) 616 and maintained that section 36 of the Constitution was not breached.

Learned counsel argued that the SDC was not an investigatory body but a disciplinary one which acted after a report was received from School of Engineering and Technology.

That she was heard before a decision was taken by the respondents. The court was referred to the cases of: Onyekwufuje v. Benue State Government (2005) 2 FWLR (Pt. 258) page 1069 at 1086 – 1087, (2005) 8 NWLR (Pt. 928) 614; Akinola v. University of Ilorin (supra).

Learned senior counsel contended that the appellant is clearly not complaining of breach but the rationality of the decision taken by the respondents. He submitted that the appellant was not denied her right to fair hearing.

The grouse of the appellant is that though she was invited to appear before the Students’ Disciplinary Committee vide exhibit C, her accuser was not present nor was she given an opportunity to see and hear witness(es) and cross-examine them and to read documents tendered and comment on same.

These allegations of the appellant were made on Oath.

Paragraphs 12,13 and 15 of the affidavit in support of her application for enforcement of her fundamental right to fair hearing are pertinent and for purposes of emphasis they are hereby reproduced:

“12. That in its report, the SDC observed inter alia, my claim that I sat for and submitted my answer booklet as against the School Examinations Officer’s allegation that I did not submit the script, and that the said officer did not appear before the SDC to give evidence.

13. That in its said report, the SDC arrived at the conclusion that the allegation against me was not established and, therefore, recommended that I should be recalled to continue my studies having already lost a session. The allegation of Examination Misconduct against me was not established.
14. That at no time after the SDC’s report was I served with any charge or allegation, nor was I present to hear any one testify against me and given the opportunity to cross-examine such witness(es).”

Since these averments of the appellant before the trial court were sworn on Oath before a Commissioner of Oath at the High Court Registry, Minna on 14th day of April, 2006, to contradict these averments the defendants/respondents must swear to corresponding counter-affidavit. The respondents have not done so and the facts deposed to by the appellant in paragraphs 12, 13, and 15 are deemed to be correct and true.

The position of the law is that where affidavit evidence has not been challenged or contradicted by way of counter-affidavit facts deposed to in such affidavit are deemed admitted. See: Mohammed Hassan Rimi v. INEC & Anor. (2004) 15 NWLR (Pt. 895) page 121 at 131; Okeke v. A. -G. Anambra State (1997) 9 NWLR (Pt. 519) page 123; Ejikeme v. Ibekwe (1997) 7 NWLR (Pt. 514) page 592; Fawehinmi v. Abacha (1996) 5 NWLR (Pt. 447) page 198, Adegoroye v. Adegoroye (1996) 2 NWLR (Pt. 433) page 712.

In the case of The Honda Place Ltd. v. Globe Motor Holdings (Nig.) Ltd. 23 NSCQR page 74 at 84 – 89; (2005) 14 NWLR (Pt.945) 273 at 293 per Katsina-Alu, JSC:

“The law is that where the facts in an affidavit remain unchallenged and uncontroverted, the court is bound to accept those facts as established as those facts were deemed to have been admitted. See Nwabuoku v. Ottih (1961) 2 SCNLR 233.

No counter-affidavit was filed by the respondent with the result that the facts deposed to in support of the application were neither challenged nor disputed by the respondent. What this means is this. Those facts remain unchallenged and uncotroverted. The inevitable consequence is that those facts deposed to in the affidavit filed by the applicant must be deemed to have been admitted by the respondent and must also be taken as true by the court unless they are obviously false to the knowledge of the court. See Alagbe v. Abimbola (1978) 2 SC 39 at 40.”

Also in the case of Alhaji Mohammed Sanusi Daggash v. Hajiya Fali Ibrahim Bulama & Ors. (2004) 14 NWLR (Pt. 892) page 144 at 234 per Ogbuagu, JCA (as he then was):

“An allegation in an affidavit which is not specifically traversed/denied, such an allegation/averment, must be deemed to be indirectly admitted by the adverse party and no need for the deponent of the said affidavit to establish it by evidence.”

In the present case since the averments contained in paragraphs 12, 13 and 15 of the affidavit in support of the appellant’s application at the lower court are not false to the knowledge of the trial court and the allegation in them have not been specifically traversed/denied through a counter-affidavit, I am of the opinion that the allegations/averments are deemed indirectly admitted by the respondents and the appellant has no duty to establish those allegations again by evidence. Such as the production of the report of the Students’ Disciplinary Committee which is in the possession of the respondents.

The complaint of the appellant at the lower Court and in this court is that she has been denied her right to fair hearing. The question to ask is, what does fair hearing entail?

On what constitutes fair hearing, the Supreme Court held in the case of Garba & Ors. v. The University of Maiduguri (1986) 2 SC 127 at 128; (1986) 1 NWLR (Pt. 18) 550 at 617 per Oputa, J.S.C.:

“Another but related view is that fair hearing (even in an Administrative Board or a Disciplinary Investigation Panel as the one set up by the Vice-Chancellor in this case) implies the right in the appellants to know what and what were being alleged against them; what evidence has been given; and what statements had been made affecting them; and they must be given a fair opportunity to correct and contradict such evidence. It also follows that the Panel must not hear evidence, or receive representation behind their backs. The case that brings out these points clearly is the case of Kanda v. Government of Malaya (1962) AC 322.”

On the application of the rules of natural justice, the apex court held in the case of Adigun & Ors. v. A.-G. Oyo State & Ors. (1987) 2 SC 250 at 375; (1987) 1bNWLR (Pt. 53) 678 at 732 per Nnamani, JSC (of blessed memory):

“In effect to accord with the principle of natural justice each party must have notice of the case he has to meet and be given an opportunity of stating his case and answering, if he can, any arguments put against it.

Coopers v. Wandworth Board of Works 14 CBN (NS) 180; Ridge v. Baldwin (1964) AC 40; Pillar v. City Council of Singapore (1968) 1 WLR 1278; Mallock v. Aberdeen Cooperation (1971) 1 WLR 1578; (1971) 2 All ER 1278.

See also the decision of the Court in Garba v. University of Maiduguri (1985) 1 NWLR (Pt. 18) 550.”

The ratio decidendi in these two authorities I have referred to, is that fair hearing which is in accordance with the principles of natural justice is that which guarantees any person accused, whether it be before the regular courts or before Tribunals, Boards or Panels of Inquiry, the following:

(a) That he should know what is alleged against him.

(b) That he should be present when any evidence against him is tendered.

(c) That he should be given a fair opportunity to correct or contradict such evidence, including cross-examination of the witnesses presented by his accuser(s).

What is to be considered in this appeal is not whether any injustice has been occasioned on the appellant due to want of hearing, but the question whether an opportunity of hearing was afforded the appellant by the respondents before her expulsion from the Federal University of Technology, Minna, whether before the Students’ Disciplinary Committee made its recommendation to the Senate of the University for the expulsion of the appellant she had been accorded all the rights stated in items (a), (b) and (c) above.

These rights will be examined in relation to the evidence presented before the trial court.

(a) Whether the appellant knew what was the allegation against her when she was invited by the Students’ Disciplinary Committee.

Exhibit C referred to in paragraphs 8 and exhibit D in paragraph 11 and exhibit E referred to in paragraph 14 of the affidavit in support of her application are hereby reproduced thus:

Exhibit C:

“FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA

(Registry Division)

Date: 20/1 012005

Olutayo O. B.

Area 1 Section 2

Garki, Abuja

INVITATION TO APPEAR BEFORE THE STUDENTS DISCIPLINARY COMMITTEE

I write on behalf of the Students Disciplinary Committee to invite you to appear before it on Thursday 27th October. 2005.

At 10:00 a.m. in the Senate Chamber unfailingly.

This is in connection with your involvement in Examination Misconduct during First Semester 2003/2004 Session Examination.

Please attend promptly.

Thank you.

(SGD)

A. D. USMAN (MRS.)

Secretary

Cc: Chairman, S.D.C.”

Exhibit D:-

“FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA

(Registry Department – Academic Office)

R/ACA/25 6th October, 2005

Olutayo, O. B. (03/14862ea)

Department of Agric. Engineering,

School of Engineering & Engineering Tech.,

Federal University of Technology,

Minna

SUSPENSION FROM THE UNIVERSITY

Following the report of the School of Engineering and Engineering Technology alleging your involvement in an examination misconduct during the First Semester of the 2003/2004 Session, the Vice-Chancellor has approved your suspension from the University with immediate effect.

2. The case has accordingly been referred to the Students Disciplinary Committee for further investigation.
3. You will remain on suspension until the final determination of your case. You are therefore, advised to keep-off the Campus.
4. By a copy of this letter all concerned including your parents/sponsor are being informed accordingly.

(SGD)

A. N. Kolo

Ag. Academic Secretary

For: Ag. Registrar

Cc: Vice-Chancellor

Ag. Registrar

Bursar

All Deans

HOD, Agric Eng.

Editor (Information)

Medical Officer i/c

Parents/Sponsor

SPF: 03/14862EA

Chairman, Students Disciplinary Committee.”

Exhibit E:

“FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA

(Registry Department – Academic office)

R/ ACA/25 22nd December, 2005

Olutayo, O. B. (03/14862ea)

Department of Agric. Engineering,

School of Engineering & Engineering Tech.,

Federal University of Technology,

Minna

SUSPENSION FROM THE UNIVERSITY

Senate, at its 291st meeting held on 30th November, 2005, considered and upheld the recommendation of the Student Disciplinary Committee that you be expelled from the University after you were found guilty of Examination Misconduct during the first semester of 2003/2004 Session.

2. Please hand over immediately any University property in your possession including the Student Identification Card to the Dean of Students.
3. Good luck in your future endeavours.

A. N. Kolo

Ag. Academic Secretary

For: Ag. Registrar

Cc: Vice-Chancellor

Ag. Registrar

Bursar

All Deans

University Librarian

HOD, Agric Eng.

Principal Medical Officer i/c

Chief Security Officer

Editor (Information)

Parents/Sponsor

SPF: 03/14862EA

All Registrars of Nigerian Universities.”

Also the appellant said in paragraphs 8, 9 and 11 of the affidavit in support thus:

“8. That my complaints to the Department fell on deaf ears and instead I was served with a letter inviting me to appear before the Students’ Disciplinary Committee (SDC) for alleged Examination Misconduct during First Semester 2003/2004 Session Examination. The letter is annexed and marked “exh. C.”

9. That when I appeared I was informed of the particulars of allegation to the effect that I did not submit my answer booklet after CHEM III Examination; and that my answer booklet was later found in the School Examinations’ Officer’s office after 6 p.m. on the day of the exam i.e. 5/5/04.
10. That I was, by a letter, suspended from the University.

Copy is annexed and marked “exh. D”.”

I am satisfied from the content of exhibits C and D and her averments in paragraphs 8, 9 and 10 of the affidavit in support that the appellant knew what was the allegation against her.

I agree with the finding of the learned trial Judge on page 39 of the record of appeal when he said:

“The applicant was invited to appear before the Disciplinary Committee which she did by exhibit C and paragraphs 8, 9 and 10 of the affidavit in support.”

(b) Whether the appellant was present when evidence against her was being presented by her accuser.

The appellant deposed in paragraphs 12, 15 and 16 thus:

“12. That in its report the SDC observed, inter alia my claim that I sat for and submitted my answer book-let as against the School Examinations’ Officer’s allegation that I did not submit the script; and the said Officer did not appear before the SDC to give evidence. (Italics mine).

15. That at no time after the SDC’s report was I served with any charge or allegation nor was I present to hear any one testify against me and give the opportunity to cross-examine such witness(es).
16. That after the SDC submitted its report, I was not invited before any panel or body whether quasi-judicial or judicial or even the Senate or other organ(s) (of the respondents) or the sub-committee of anyone of them.”

It is clear from these averments that the appellant did not know her accuser, since he did not appear to testify before the Students’ Disciplinary Committee. The question to ask is, who label the accusation/allegation of Examination Misconduct against her? The appellant was truthful when she deposed in paragraph 13 of the affidavit in support that:

‘That in its said report, the SDC arrived at the conclusion that the allegation against me was not established and, therefore, recommended that I should be recalled to continue my studies having already lost a session. The allegation of Examination Misconduct against me was not established.”

Since there is no counter-affidavit I believe this statement contained in the affidavit is true and that the respondents have impliedly admitted same since they did not contradict the averment through a counter-affidavit.

The appellant was equally not present when other witnesses if any testified against her or tendered documents if any at the Students’ Disciplinary Committee constituted to investigate the allegation of Examination Misconduct against her.

(c) Whether the appellant was given a fair opportunity to correct or contradict such evidence, including cross-examination of the witness(es) presented by her accuser(s).

There is no evidence before the trial court to show that there were witness(es) who testified against the appellant at the Students’ Disciplinary Committee level before it recommended to the senate of the University which approved the expulsion of the appellant.

The respondents did not adduce any evidence oral or documentary to dislodge the averments of the appellant before the lower court or before this court.

On the 15th day of April, 2006 when hearing commenced on the applicant/appellant’s application and after counsel for the applicant had argued his application, counsel to the respondents Miss Jiya asked for an adjournment.

The proceedings went as follows on page 30 of the record of appeal:

“Miss Jiya – I am applying for a date to file our counter-affidavit.

Court – The Respondent should have done that long ago. We however in the interest of justice give them an adjournment to 17/5/2006 for reply to the submission of Mr. Isyaku this morning. Case is adjourned to 17/5/2006 for reply.

(Sgd)

Justice Maria Sanda Zukogi

15/5/2006.”

The court never resumed sitting on 17/5/2006 until 23rd day of May, 2006 when counsel for the respondents Mr. Danjuma addressed the court thus at page 31 of the record of appeal:

“Mr. Danjuma – We are objecting to the application on point of law.

Attached to the application and supporting affidavit filed before the court, are exhibits A, B, E, D and F all the exhibits emanated from the 1st respondent i.e. Federal University of Technology, Minna. We submit that all the documents are public documents and have not been certified with the Evidence Act (sic) and the applicant has not complied with sections 97 and 98 of the Evidence Act. We pray the court to discountenance with the exhibits. The implication there is that no exhibit is attached to the supporting affidavit and we pray the court to hold so.

We submit further that reading through the application and supporting affidavit, what will easily come to mind is whether the applicant’s constitutional right to fair hearing has been breached.

On prayers 2 and 3 we submit that the prayers are parasites and depend on prayer 1. If prayer 1 fails and prayers 2 and 3 also fail. We pray the court to hold so.

We on the whole, we pray the court to refuse the application.”

The Respondents did not fulfill their promise to file a counter affidavit as on 15/5/2006. It is very clear from the record of appeal that the learned trial Judge did not make any finding on the submission of the learned counsel for the respondents on the admissibility of exhibits A, B, E, D and F which counsel said are public documents which needed certification but were not certified.

On the issue of public documents attached to affidavits, where such documents have not been certified. The Supreme Court in the case of Adejumo v. Governor of Lagos State (1970) 1 All NLR 183, held that document in an affidavit must not be objected to until the substantive action comes up for hearing. See: Cross River Property Development & Investment Co. Ltd. v. Eno Ibor Obongha (2000) 8 NWLR (Pt. 670) page 751 at 765.

It is very clear that the appellant was not afforded a fair hearing by the respondents before she was expelled from the Federal University of Technology, Minna.

The learned trial Judge was in grave error when she held that the applicant’s right to fair hearing was not breached. The first issue is resolved in favour of the appellant.

On the second issue which is “Whether the trial court was right when it held that the facts deposed to in paragraphs 12 and 13 of the appellant’s affidavit were not proved.”

Learned counsel for the appellant contended that it is not in dispute that there was no counter-affidavit and that the deposition in paragraphs 12 and 13 of the affidavit are statements of fact to the effect that the SDC reported that the appellant appeared before the Committee and that the Committee recommended appellant’s recall to continue with her studies. Learned counsel referred the court to the case of General and Aviation Services Ltd. v. Thahal (2004) 10 NWLR (Pt. 880) page 50 at 90.

Learned senior counsel submitted that in the absence of a counter-affidavit controverting paragraphs 12 and 13 of the appellant’s affidavit, same are deemed to have been proved.

In his response, learned counsel for the respondents contended that since the appellant had claimed that the SDC report exonerated her, then the onus is on her to produce the report by annexing it to the supporting affidavit which she has not done. He submitted that having not discharged the onus of proof the appellant’s assertion that the respondents have not filed counter-affidavit does not render paragraphs 12 and 13 of the affidavit in support proved.

This issue is closely connected to issue one. Although the applicant/appellant deposed on Oath to a 21 paragraph affidavit, the respondents did not file any counter-affidavit to contradict any of the averments contained in applicant/appellant’s affidavit in support.

The facts deposed to in paragraphs 12 and 13 of the applicant/appellant’s affidavit have not been contradicted by a counter-affidavit and they are taken as having been admitted by the respondents.

Issue two is also resolved in favour of the appellant.

The third issue is,

“Whether the trial court was right when it held that the offence of Examination Misconduct is a trivial one that needed not to be tried by a court of law.”

Learned counsel for the appellant submitted that Examination Misconduct is a criminal offence by virtue of sections 1 and 6 of the Examination Malpractices Act, 1999. Being a criminal offence therefore only a court of law or a Tribunal set up for the purpose can try an allegation for the commission of same. He referred the court to section 36(1) and (4) of the 1999 Constitution.

Learned counsel also cited the cases of: University of Uyo v. Essel (2006) All FWLR (Pt. 315) page 80 at 105-106; Garba v. University of Maiduguri (supra) at page 584 and 586.

He submitted further that the offence of Examination Misconduct is not a minor or trivial one. Learned counsel referred the court to the case of University of Uyo v. Essel (supra) at page 100 and urged the court to so hold.

In response, learned counsel for the respondent argued that section 16(1) of the Federal Universities of Technology Act, Cap.143, Laws of the Federation, 1990 gives the respondents power to deal with all matters of misconduct against prescribed conduct by erring students such as the appellant. He contended that the matter of Examination Malpractice is an internal affair of the respondents.

He argued that what the appellant was accused of borders on academic honesty of which she was found wanting and considered unfit to remain in the University. He maintained that the 1st respondent is an academic institution set up by law to advance the course of knowledge, learning, academics and moral development of students.

He argued that only the 1st respondent is equipped to deal with issues for which it was set up by law and which is considered its internal affairs outside the grasp of the court’s jurisdiction, which are not set up to deal with academic matters. He referred the court to the case of WA.P.M. v. Okojie (2003) FWLR (Pt. 150) page 1761; (2004) 2 NWLR (Pt. 857) 232.

Learned counsel opined that the statement made by the learned trial Judge was made obiter. He cited the case of Garba v. University of Maiduguri (supra) at page 550. He submitted that since the statement by the trial Judge was made obiter and having form the gravamen of ground 3 of the notice of appeal, then issue 3 and ground three are incompetent. He cited the cases of Urugo v. Una (2002) FWLR (Pt.127) page 1024, (2002) 16 NWLR (Pt. 792) 175; U.T.C (Nig.) Ltd. v. Pamotei (2002) FWLR (Pt. 129) page 1557, (1989) 2 NWLR (Pt. 1(3) 244: Bamaiyi v. State & 4 Ors. 6 NSCQR (Pt. 1) page 156, (2001) 8 NWLR (Pt. 715) 270.

Learned counsel for the respondents urged the court to uphold the decision of the trial court and to dismiss the appeal of the appellant.

Examination Malpractice is an offence under section 1 and punishable under section 1(2)(a) of the Examination Malpractices Act, Cap. E15, Laws of the Federation of Nigeria, 2004 with a fine of N 100,000 or imprisonment for a term not exceeding three years or to both such fine and imprisonment where the person is under eighteen years.

It follows therefore that a person accused of Examination Malpractice is entitled to a right to fair hearing under section 36(1) and (4) of the 1999 Constitution.

The offence of Examination Malpractice which the appellant was accused of and upon which she was investigated by the Students’ Disciplinary Committee of the Federal University of Technology, Minna and later expelled by the Senate of the University is only triable by the Federal High Court pursuant to section 14 of the Examination Malpractices Act. Neither the Students’ Disciplinary Committee nor the Senate which approved the recommendation of the Students’ Disciplinary Committee have jurisdiction under the law to adjudicate on allegations of crime as they are not a court of law.

Offences against the laws of the land fall outside the jurisdiction of the University Senate or Committee set up by the University Council. If a student in a University is charged with the commission of a crime, that student can only be proved guilty before a court of law. See Garba v. University of Maiduguri (supra).

It should be observed and noted that students in our Universities are not above the law of the land, and where obvious cases of breaches of penal laws have taken place the authorities of the University are not empowered to try the matter as an internal affair.

It is therefore a misconception on the part of the learned counsel for the respondents when he submitted that whether a student is guilty or not of a crime is an internal affair of the University.

The exercise of judicial powers which does not exist by the Students’ Disciplinary Committee of University is a denial of the right to a fair hearing of the student accused.

Both the students and the authorities of a university owe the nation a duty to observe the laws of the land and avoid injustice to anyone.

A pronouncement of guilt from the current of unsifted, untested and undistilled mass of evidence which did not pass through the well informed professional minds will do more harm than good to the integrity of innocent students.

In the present case, there is no iota of any evidence shown from the record of appeal upon which the Student Disciplinary Committee could have made recommendation to the senate of the Federal University of Technology, Minna which expelled the appellant.

The appellant had deposed in paragraph 18 of the affidavit in Support thus:

“18. That the action of the respondent has left me traumatized emotionally and psychologically.”

The decision of the learned trial Judge refusing the appellant’s application for the enforcement of her fundamental right to fair hearing has not emerged from any evaluation or appraisal of evidence or from any analytical deduction. In fact the learned trial Judge failed to draw the correct inference from the facts presented before the court in the affidavit evidence.

This is a proper case where this court will invoke its powers under section 16 of the court of Appeal Act, Cap. C.36, Laws of the Federation of Nigeria, 2004 and interfere with the findings of fact of the trial court. See: Fashanu v. Adekoya (1974) 6 SC 83 at 91; Oko v. Ntukidem (1993) 2 NWLR (Pt. 274) page 124 at 135.

Exhibit D the letter of suspension from the University dated 6th October, 2005 and exhibit E the letter of expulsion from the University dated December, 2005 served on the appellant Olutayo O. B. (03/14862EA) Department of Agric. Engineering, Federal University of Technology, Minna are hereby set aside and both the suspension and expulsion from the University are hereby declared null and void.

In conclusion, I will like to adopt the words of Obaseki, JSC in Garba v. University of Maiduguri (supra) at page 577 where he said thus:

“A University student is a priceless asset and he is on the threshold of a world of useful service to the nation.

We cannot afford to destroy him by stigmatizing him with guilt of offence unless proved before the court.”

The respondents are hereby ordered immediately to re-absorb the appellant into the University to resume her studies from the level she was expelled.

This appeal succeeds. There will be no order as to costs.

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Other Citations: (2007)LCN/2451(CA)