Francis Tabai & Anor. V. The Vice Chancellor, Rivers State University of Science and Technology, Port Harcourt & Anor. (1997)
LawGlobal-Hub Lead Judgment Report
KATSINA-ALU, J.C.A.
The appellants Francis Tabai and Prince Georgewell are students of the 2nd respondent. Following certain alleged violent incidents in the University on the 11th and 12th of July, 1995 the 1st respondent set up a panel to investigate the matter. The appellants were invited to appear and appeared before the panel. Meanwhile the Nigeria Police intervened in the matter and subsequently arraigned persons involved on both sides in the matter including appellants before a Magistrate’s Court in Port Harcourt in charges Nos. PMC/1400C/95 and PMC/1401C/95 respectively on 9/11/95.
During the pendency of the criminal proceedings, the 1st respondent suspended the 1st appellant for one academic session and expelled the 2nd appellant altogether for their alleged involvement in the violent incidents. The letters conveying the decisions aforesaid were written on 13/11/95. On the 20/11/95 the appellants filed separate suits numbered PHC/276M/95 and PHC/277M/95 respectively each seeking an order of court for leave to apply for an order of court for leave to apply for an order of certiorari to remove to the High Court for the purpose of being quashed the decision of the 1st respondent suspending and expelling them as contained in the said letters. And also an order staying the said suspension and expulsion of the appellants pending the determination of the motion on notice.
The said suits were on the application of appellants’ counsel, consolidated by the Court.” Thereafter the learned trial Judge, Ungbuku, C.J. heard arguments on the said motion. In a Ruling delivered on 5/12/95 the learned Chief Judge dismissed the applications.
Being dissatisfied with the said Ruling, the appellants appealed to this Court upon a number of grounds which read:
- The learned trial Judge erred in law by making the finding that “Placing the affidavit evidence of the applicants and Exhibit B under consideration together the court is not convinced that the applicants were not granted a fair hearing’ when the motion on notice was not before him.
Particulars of Error
a) It was only the Motion Exparte for leave that was before ‘the court.
b) It was premature for the court to have made a finding on the substantive matter at that stage.
c) The said finding prejudged the merits of the substantive application which was not before the court.
- The learned trial Judge erred in law by refusing to accept and or rely on the uncontradicted facts and depositions in the appellants’ affidavits and application before the trial court by holding or finding that” ….the court is not convinced that the applicants were not granted a fair hearing”.
Particulars of Error
a) The applicants, Messrs Francis Tabai and Prince Georgewill, in paragraphs 13 and 20 of their affidavits respectively had averred inter alia that they were not given the opportunity to call persons who would have supported their claim of innocence and that they were not opportune to know allegations made against them and persons who said things against them and were also not permitted to confront their accusers.
b) The aforementioned depositions were not countered before the trial court by any affidavit or documents before it on the material points.
- The trial Judge erred in law by holding that “The applicants ought to have waited for the determination of the criminal trial against them before embarking on this process to challenge the decision of the University” when in law it was the respondent that were bound to have waited for the outcome of the criminal trial of the appellants before visiting any disciplinary sanctions or measures on the appellants based on the allegations before the court.
Particulars of Error
a) The Appellants were alleged to have taken part in violent incidents for which they have been charged to court along with several others.
b) At the Magistrate Court, the appellants denied the charge and the matter is pending for detailed inquiry.
c) Some days after the arraignment of the appellants and others in court, the respondents suspended and expelled the appellants on the ground that appellants were guilty.
d) If the appellants are found to be innocent by the Magistrate’s Court after the on-going judicial process, the appellants will suffer irreparable loss to their career and future.
- The Ruling of the learned trial Judge is against the weight of evidence.
Briefs of argument were filed and exchanged. Counsel for the appellants formulated a lone issue for determination as follows:”
“Whether the learned trial Judge was right in refusing the application for leave having regard to the unchallenged affidavit evidence before him at that stage.”
On the other hand, counsel for the respondents formulated the following two issues for determination:
- Whether on the evidence before the Court below a prima facie case was made out for the leave sought
- Whether the learned trial Chief Judge has been shown not to have exercised his discretion judicially.
Both counsel adopted their briefs of argument at the hearing of this appeal.
Learned counsel for the appellants, Mr. Talford Ongolo, submitted that the learned trial Chief Judge erred in law by making a finding that “placing the affidavit evidence of the applicants and Exhibit B under consideration together, the court is not convinced that the applicants were not granted a fair hearing” when the motion on notice was not before him. It was pointed out that since what was before him was the motion ex parte it was premature for the trial Chief Judge to have made a finding on the substantive matter at that stage. Learned counsel relied on the case of Ndoma-Egba v. Government of Cross River State (1991) 4 NWLR (Pt. 188) 773. It was argued that by that finding the learned Chief Judge had prejudged the merits of the substantive motion.
It was also the submission of learned counsel for the appellants that the learned Chief Judge erred in law by refusing to accept and or rely on the uncontradicted facts and depositions in the appellant’s affidavits. Counsel relied on the case of Azeez v. State (1986) 2 NWLR (Pt. 23) 541. Counsel for the appellants further submitted that the trial Chief Judge erred in law by holding that “The applicants ought to have waited for the determination of the criminal trial against them before embarking on this process to challenge the decision of the University” when in law it was the respondents that were bound to have waited for the outcome of the criminal trial of the appellants before visiting any disciplinary sanctions or measures on the appellants based on the allegations before the court. It was contended that it is upon the determination of guilt or otherwise by the court that the respondents ought to have exercised their disciplinary powers against the appellants. Counsel relied on the case of Garba v. University of Maiduguri (1986) 1 NWLR (Pt 18) 550 at 615. This court was urged to allow the appeal and make an order granting leave to the appellants to present a motion on notice for an order of certiorari in respect of the matter raised in the motion Ex parte. And also to make an order staying the said decisions of the respondents until the determination of the substantive application.
Learned counsel for the respondents, Mr. B.M. Wifa submitted that it is settled that the consideration of an application for leave involves the exercise of the court’s judicial discretion. Equally, a person seeking to invoke the court’s discretion must put before the court sufficient material upon which to exercise its discretion. It was pointed out that in the instant case the only allegation concerning the application before the court was the bare assertion that the appellants were not accorded fair hearing. The charges if any, that they were confronted with during the investigation of the incidents were not stated; whether they appeared before the panel other than as witnesses was not stated. Copies of the proceedings before the panel were not exhibited. The terms of reference of the panel were not stated.
It was further submitted that the observations of the learned Chief Judge that “Placing the affidavit evidence of the applicants and Exhibit B under consideration together, the court is not convinced that the applicants were not granted a fair hearing” does not mean that the issue had been prejudged but that the appellants had failed to prove by prima facie evidence that they were not given fair hearing.
It was also submitted that a court is precluded from acting on affidavit evidence which even though not countered is to its knowledge false. Counsel relied on the following cases: R.EA.N v. Aswani Textiles Ltd. (1992) 3 NWLR (Pt. 227) 1; Bedding Holdings Ltd. v. NEC (1992) 8 NWLR (Pt 260) 428 at 436; Orient Bank (Nig) Plc v. Bilante lnt’l Ltd. (1996) 5 NWLR (Pt.447) 166 at 180. It was contended that the appellants had failed to show a prima facie case and the learned Chief Judge was entitled to refuse the application for leave.
It was pointed out by learned counsel for the respondents that the appellants were disciplined for “gross misconduct arising from breach of University regulations.” It was the submission of the respondents that the law has not taken away from the Universities the right to punish for violations of its domestic law. Reliance was placed on the case of Garba v. University of Maiduguri (1986) 1 NWLR (Pt 18) 550 at 595. Finally we were urged to dismiss the appeal.
Before an application for certiorari is made the law requires that the applicant must first seek and obtain leave of the court. In most cases, leave is sought ex parte.
An application for leave is a prayer wherein the applicant is urging the court to exercise its discretionary power. In the circumstance the applicant has a duty to make available all relevant materials in the application to enable the court to exercise its discretion judicially. Where therefore relevant materials are not made available to the court, the application will be refused. Leave is not granted as a matter of course.
At the stage of the ex parte application, the applicant need not make a clear and clean case on the merits to deserve being granted the prayer. Understandably, that has to wait until the main application is moved. The applicant must however disclose some real injury done to him for which he seeks a redress. It must be manifest from the affidavit evidence that his case is not frivolous.
In dealing with an application for leave, the trial Judge must ensure that he deals only with that application. He must avoid the temptation to make pronouncements touching on the merits of the main application which is not before him. See Ndoma-Egba v. Govt. of Cross River State (1991) 4 NWLR (Pt. 188) 773. In the instant case, the 1st appellant in paragraph 13 of his affidavit averred thus:
“13.That the panel did not give me fair hearing in that:
a) The panel refused to give me an opportunity to call persons to show that I was not in the Campus but was in our house in town on 12/7/95.
b) That panel called me alone and asked me questions and did not afford me the opportunity to know persons who had said things against me and or what such persons said against me.
c) The panel did not allow me to confront persons who implicated me with questions.”
The 2nd appellant deposed as follows in paragraph 20 of his affidavit:
“20.That the University did not give me fair hearing in that:
a) The panel refused to invite and hear from Security Officer in charge of the particular bit where the incident occurred, popularly called Mr. Joe despite repeated demands by me.
b) The panel refused to visit the scene of the incident.
c) The panel called me alone and asked me questions and did not afford me the opportunity to know persons who had said things against me and or what such persons said against me before the panel.
d) The panel did not permit me to confront persons who implicated me with questions.”
In his ruling the learned Chief Judge said inter alia:
“Placing the affidavit evidence of the applicants and Exhibit B under consideration together, the court is not convinced that the applicants were not granted a fair hearing ……. I am of opinion in the circumstance that the present application is rather too much in haste or premature. The applicants ought to have waited for the determination of the criminal trial against them before embarking on this process to challenge the decision of the University.”
One does not need a magnifying glass to see that the above pronouncement by the trial Chief Judge touches upon the merits of the main application. And the main application was not before him. He was clearly in gross error.
The learned trial Chief Judge in addition admonished the students for bringing this application. In his view, it was premature. He said they should have waited for the conclusion of the criminal trial against them. I find this reasoning rather untidy and the admonition misdirected. There is affidavit evidence before the learned Chief Judge that while the panel set up by the University was still conducting its enquiry into the matter, the police waded in and preferred charges and arraigned the suspects, including the appellants, before a Magistrate Court. I think it is the University that should have stayed further action in the matter until the criminal proceedings were determined. Having regard to the affidavit evidence before him, I have no doubt in my mind that he wrongly exercised his discretion in the application by refusing the leave. The case of the appellants is not frivolous.
In the light of the foregoing I must allow this appeal which is hereby allowed but only to the extent that leave is granted to the appellants to present a Motion on Notice before the lower court for an order of certiorari in respect of the matter raised in the motion Ex parte. I award costs of N2,000.00 to each appellant, that is to say, a total of N4,000.00 costs against the respondents.
Other Citations: (1997)LCN/0256(CA)
