College of Education, Warri & Anor V. Gladys Odede (1998)
LawGlobal-Hub Lead Judgment Report
MOHAMMED, J.C.A.
Gladys Odede, the respondent in this appeal was a student at the College of Education. Warri, the 1st appellant since 1989. Some time in 1991, the respondent was among the students of the institution sitting for the semester examinations in an examination hall. The duration of the phonology paper which the respondent was writing was 3 hours, However 15 minutes before that time, the respondent left the examination hall. When the invigilators in the examination hall checked the written papers submitted by the students at the end of the examination period, it was discovered that one script was missing. On further cross-checking of the scripts against the attendance sheet, it was discovered that the missing script was that of one Gladys Odede the respondent. When the respondent was invited and questioned about her missing scripts, she stated that she had submitted the papers to a female Youth Corper who was in attendance as one of the invigilators in the examination hall.
The respondent was subsequently charged for failing to submit her examination scripts which is an examination malpractice under the rules of the College, when the respondent’s claim to have submitted the scripts could not be substantiated.
The respondent was ultimately expelled from the College for her alleged involvement in the examination malpractice. When the respondent’s attempts to have the College authorities rescind their decision on her expulsion failed, she filed an action at the High Court of Justice Warri as a plaintiff against the College of Education, Warri, its Provost and the Academic Secretary as defendants and claimed against them jointly and severally in paragraph 13 of the statement of claim relief’s as per the writ of summons. The relief’s are:-
“(a) A declaration that the purported expulsion of the plaintiff as student of the College of Education, Warri by the defendants is wrongful, null and void and of no effect whatsoever.
(b) The sum of N1, 000,000.00 (one million naira) being special and general damages for wrongful expulsion of the plaintiff by the defendants from the College of Education, Warri together with the consequential loss of right to good education, promotions, self-respect and honour to the plaintiff.
(c) An order of mandatory injunction compelling the defendants their servants and agents to reinstate the plaintiff as a student of the said College of Education, Warri.
(d) An order of interim/perpetual injunction restraining the defendants, their servants and agents from expelling the plaintiff as a student of the College of Education. Warri and/or interfering with the plaintiffs rights as a student of the said College.”
At the close of pleadings between the parties, the case proceeded to hearing before Bazunu J. of High Court No. 3 Warri where the respondent as the plaintiff was the only witness who testified in support of her claims; while three witnesses including the 3rd appellant/defendant testified in support of the defence. In his judgment, the learned trial Judge identified two issues for determination namely.
- Whether failure to submit examination scripts amounted to examination malpractice and
- Whether the plaintiff had fair trial.
In resolving the first issue, the learned trial Judge came to the conclusion that the failure of the respondent to submit her examination answer scripts to the appellants amounted to an examination malpractice which however was not enough to have earned the respondent an expulsion from the College. On this ground alone, without resolving the 2nd issue for determination, the learned trial Judge found for the respondent and granted her first two relief’s by declaring her expulsion from the College as wrongful, null and void and of no effect whatsoever and in addition awarded her the sum of N200.000.00 as damages. This judgment was delivered on 28-7-1994.
Being dissatisfied with that judgment the appellants have now appealed to this court by a notice and grounds of appeal dated 1st August 1994. Briefs of argument were duly filed and served between the parties before the appeal came up for hearing. Three issue for determination were formulated in the appellants’ brief of argument They are:-
“1. Whether the judgment of the trial court declaring the expulsion of the respondent null and void with an award of N200,000.00 damages is sustainable in view of the stage of the plaintiff respondent’s statement of claim and evidence before the lower court.
- Whether the learned trial Judge went outside the issues raised by parties in arriving at his decision.
- Whether the trial court’s award of N200,000.00 damages in favour of the respondent was proper having regard to the fact that it had earlier on declared the expulsion to he null and void.”
However in the respondent’s brief of argument filed on her behalf by her learned counsel, the following two issues were identified for the determination of the appeal.
“1. Whether the learned trial Judge was right in declaring the expulsion of the respondent null and void in view of the evidence proffered by both parties to this suit.
- Whether the learned trial Judge was right in awarding N200.000,00 (two hundred thousand naira) as damages in favour of the respondent bearing in mind the state of the pleadings set out in respondent’s statement of claim and oral evidence before the trial court.”
A respondent’s notice dated 9-1-98 was also filed in this court by the respondent.
The notice is seeking this court to affirm the judgment of the lower court on grounds other than those relied upon by the lower court. The ground upon which this court is bring urged to affirm the judgment of the lower court is that the respondent was not given a fair hearing, Close examination of these issues has revealed that issue No.2 in the appellants’ brief is not an issue properly so called. This is because even if the issue were to be resolved in the positive, the finding that the learned trial Judge went outside the issues raised by the parties in arriving at his decision alone without relating the effect of that error to the decision of the lower court, would not resolve the appeal one way or the other. Therefore having regard to the judgment of the lower court now on appeal and the grounds of appeal filed by the appellants, the real issues for determination in this appeal are those two identified in the respondent’s brief of argument which I shall now proceed to resolve.
The first issue for determination therefore is whether having regard to the pleadings and the evidence before the learned trial Judge he was right in declaring the expulsion of the respondent from the College wrongful, null and void and of no effect whatsoever. In support of this issue, it was argued for the appellant that the relief’s of the respondent granted by the lower court were not supported by any averment in her statement of claim which superseded the writ of summons and in which the respondent merely claimed “as per the writ of summons”. That the relief’s claimed not having been restated in the statement of claim were deemed have been abandoned on the authority of the case of Enigbokan v. American International insurance Co. (Nig.) Ltd (1994) 1; 1994 6 SCNJ Part II page 168 at 172. Furthermore, learned counsel contended that since the respondent had abandoned her claims, the lower court was in error in granting the relief’s which were not claimed. A number of cases including the case of Onweonu & Ors. v. Okeagu & Ors. (1996) 5 SCNJ 74 at 76 were cited and relied upon by the appellants.
It was futher submitted for the appellants that the issue upon which the respondent fought her case and upon which the appellants also based their defence before the trial court was on the complaint of fair hearing and bread of the rules of natural justice. However, that the learned trial Judge framed two issues for determination one of which was on fair trial. That while the learned trial Judge resolved the first issue in favour of the appellants, the issue on fair trial was not resolved at all before the lower court found in favour of the respondent. Learned counsel concluded by citing the case of Eigbejale v. Oke & Ors. (1996) 5 NWLR (Pt. 447) 128, (1996) 5 SCNJ 49 at 51 and submitted that the lower court was in error in basing its judgment on issues not canvassed by the parties at the trial.
Learned counsel for the respondent however maintained that the lower court was quite right in basing its judgment on Exhibit ‘A’ containing the rules governing the conduct of examination in the College as both parties in this appeal relied on it at the trial. That the learned trial Judge having found that the appellants had failed to observe the provisions of Exhibit ‘A’ was right in declaring the expulsion of the respondent null and void and of no effect whatsoever as the appellants had exceeded the punishment prescribed for the respondent therein.
In the alternative, relying on the respondent’s notice learned counsel urged this court to affirm the judgment of the lower court on the ground that the respondent was not given a fair hearing relying on the case of Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550. That it is clear from the record that the respondent was not given a hearing at all before her expulsion. That the respondent was not given any opportunity to cross-examine any of the witnesses who testified in the proceedings of the Examination Committee before she was expelled.
Learned counsel observed that even the evidence of DW1 and DW2 under cross-examination supported the case of the respondent that she was not present before the Committee when the witnesses gave evidence which by virtue of the case of Niger Construction Ltd. v. Chief Okugbeni (1987) 11-12 SCNJ 133; (1987) 4 NWLR (Pt. 67) 787 was in support of the respondent’s case.
It is not at all in doubt that the respondent as the plaintiff at the court below in paragraph 13 of her statement of claim claimed relief’s against the appellants as defendants jointly and severally.
“as per her writ of summons.” Does this act alone have the effect of the respondent being regarded as having abandoned the reliefs claimed in her writ of summons simply because these relief’s were not repeated in paragraph 13 of the statement of claim which in law has superseded the writ of summons? The answer of course is in the negative. The position of the law in this respect was recently stated by Ogundare JSC in the case of Enigbokan v. America International Insurance Co. (Nig.) Ltd. (1994) 6 NWLR (Pt. 348) 1 at 15 where he said:
“It is well settled that a statement of claim supersedes the writ and must itself disclose a good cause of action – Udechukwu v. Okwuka (1956) 1 FSC 70, 71 (1956) SCNLR 189; Otanioku v. Alli (1977) 11 – 12 SC 9. To supersede the writ, however, the statement of claim must state what is being claimed and not just claiming ‘as per the writ of summons’ – Keshinro v. Bakare (1967) 1 All NLR 280, 284. It follows that to supersede the writ, the statement of claim must contain a claim or claims therein set out – Nta v. Anigbo (1972) 5 SC 156.”
In the present case therefore where the respondent merely claimed in her paragraph 13 of the statement of claim “as per writ of summons” without stating other reliefs in that paragraph of her statement of claim, the reliefs as claimed by the respondent are perfectly in order. In other words since the reliefs claimed in the statement of claim specifically referred to the reliefs claimed in the writ of summons without repeating them in the statement of claim, the respondent could not have been regarded to have abandoned the reliefs claimed in the writ of summons. Therefore, the rule that the statement of claim supersedes the writ does not apply in the circumstances of this case.
It is not at all in dispute that the respondent as the plaintiff at the lower court based her claims against the appellants who were the defendants on the issues of denial of fair hearing and the breach of the rules of natural justice. Similarly, in their reaction to the respondent’s statement of claim, the appellants also rested their own defence on the same issue. It is quite clear therefore that the learned trial Judge derailed completely from the case as presented before him by the parties when he based his judgment on the failure of the appellants to properly apply their own examination rules contained in Exhibit ‘A’ to the case of the respondent which was not pleaded at all by the respondent in her 13 paragraph statement of claim. It is the law that courts of law must limit themselves to the issues properly raised by the parties. This is because to act otherwise might well result in denial to one of the other of the parties of the right to fair hearing, See Kalio v. Kalio ( I975) 2 SC 15. Ogunlowo v. Ogundare (1993) 7 NWLR (Pt. 307) 610 and Eigbejafe v. Oke (1996) 5 NWLR (Pt. 447) 128 at 142. Thus having decided the case between the parties not in accordance with their pleadings, the learned trial Judge was plainly in error which will lead to the setting aside of the judgment particularly when the trial Judge himself had found in his judgment that the conduct of the respondent in failing to submit her examination answer scripts amounted to all examination malpractice which is punishable by the 1st appellant.
What I have to determine next in this issue is whether having regard to the plain refusal of the learned trial Judge in his judgment to go into the issue of the respondent’s denial of fair hearing by the appellants which is one of the two issue framed by him when he said at 38 of the record:-
“It will therefore be wasteful exercise to go into the other issue raised.”
the respondent’s notice urging this court to affirm the decision of the lower court on the same grounds of denial of fair hearing could be sustained. The answer of course lies in whether the decision of the lower court in refusing to consider and resolve the issue of denial of fair hearing on which the respondent based her case at the lower court can be challenged by a respondent’s notice in the absence of a cross-appeal. In order to decide this point I shall refer to Order 3 rule 14(2) of the Court of Appeal Rules 1981 and the relevant judicial authorities on the subject. Order 3 rule 14(1) reads:-
“14(1) A respondent who not having appealed from the decision of the court below, desires to contend on the appeal that the decision of the court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make or to make in that event, as the case may be.”
This rule is in pari-materia with Order 8 rule 3(1) of the Supreme Court Rules 1985 which came under consideration by the Supreme Court in the leading case of Willaims v. Daily Times (1990) 1 NWLR (Pt.124) 1 where Eso JSC (as he then was) in the course of his judgment reviewed a number of cases on the subject, namely, L.C.C. v. Ajayi (1970) 1 All NLR 291 at 296; African Continental Seaway Ltd. v. Nigeria Dredging Roads and General Works Ltd. (1977) 5 SC 235; Adekeye & Anor. v. Akin-Olugbade (1987) 6 SC 268; (1987) 3 NWLR (Pt. 60) 214 and Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47 and held at page 28 as follows:-
“It is my view that any respondent seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and shall not do so by an application to affirm or vary the judgment on other grounds.”
In the present case therefore, applying the law to the facts of the case where the respondent does not agree with the decision of the lower court at page 38 that it was a wasteful exercise to go into the remaining other issue on fair hearing to resolve it, can only challenge that decision by a cross-appeal and not by a respondent’s notice to affirm or vary the judgment of the lower court on grounds other than those relied upon by the lower court. This first issue is therefore resolved against the respondent.
The second and last issue for determination in this appeal is whether having regard to the pleadings of the parties and evidence adduced, the learned trial Judge was right in awarding N200,000.00 as damages. Learned counsel to the appellants had submitted that the learned trial Judge having declared the expulsion of the respondent null and void and of no effect whatsoever, it was superfluous to have further awarded the sum of N200,000.00 as general damages in favour of the respondent. This is because, according to counsel, with that declaration, the respondent was returned to the status quo ante which had the effect as if the respondent had never been expelled and therefore could not have suffered any injury for which she could have been compensated in damages. The case of Adefulu v. Okulaja (1996) 9 NWLR (Pt. 475) 668 at 692 was cited in support of this submission. That the factors which the lower court took into consideration in assessing the damages were contrary to the declaration that the expulsion of the respondent was null and void and of no effect. That having regard to the case of Eseigbe v. Agholor (1993) 9 NWLR (Pt. 316) 128; (1993) 12 SCNJ 82 at 85, the award of damages which is not supported by evidence cannot he allowed to stand particularly when the basis for the assessment of general damages are not clear from the judgment.
For the respondent however it was contended that since the respondent had been wronged in law she was entitled to compensation by way of damages on the authority of Adene v. Dantunbu (1994) 2 NWLR (Pt.328) 509; (1994) 2 SCNJ 131 at 151. That the evidence of the respondent on the issue of damages was neither challenged nor contradicted and as such the lower court was right in accepting it.
It is trite that an appellate court does not ordinarily alter or interfere with an award of damages made by the lower court except where the award is shown to be either manifestly too high or manifestly too low or where it was based on wrong principle. See Ijebu-Ode Local Government v. Balogun (1991) 1 NWLR(Pt.166) 136. In other words, the appellate court should be convinced that the award of damages made by the lower court was based on entirely erroneous estimate before the appellate court could interfere. See Onaga & Ors. v. Micho & Co. (1961) 1 All NLR 124; (1961) 2 SCNLR 101 and Elf (Nig.) Ltd. v. Sillo (1994) 6 NWLR (Pt.350) 258. Thus, having regard to the position of the law stated above, I am of the firm view that this is a proper case in which this court should interfere.
In the first place, the learned trial Judge having found in his judgment that the respondent had failed to prove the main part of her claim when he said at page 37 of the lord:-
“I accordingly find as a fact that failure to submit answer script at the end of an examination is a form of minor examination malpractice which is punishable by the College authorities,”
the basis for the claim for special and general damages of N1,000.000.00 by the respondent as second relief in her writ of summons had been eroded. Furthermore, apart from categorising the damages claimed in the second relief in the writ of summons as ‘special’ and ‘general’ damages, no attempt was made by the respondent in her statement of claim in any paragraph thereof to give particulars of the special damages claimed let alone lead any evidence in support thereof. Also in his judgment the learned trial Judge merely awarded N200.000.00 as damages without specifying which of the two categories of damages claimed by the respondent he was making the award under. The award was therefore not made under any principle of law at all. This issue is also resolved in favour of the appellants.
In the result, this appeal succeeds and it is hereby allowed. The judgment of the lower court delivered on 28-7- 1994 in favour of the respondent is hereby set aside and replaced with an order dismissing the respondent’s claims against the appellants.
I make not order on costs.
Other Citations: (1998)LCN/0420(CA)
