Kamaludeen Ibrahim Inuwa V. Bayero University Kano & Anor (2016)
LawGlobal-Hub Lead Judgment Report
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
The Appellant, as Plaintiff before the lower Court, sued the Respondents, as Defendants, challenging his unlawful withdrawal from the 1st Respondent’s institution as an undergraduate student. He testified as sole witness in proof of his case, while 3 witnesses testified for the defence. Following conclusion of trial and consideration of written addresses, the trial Judge, Fatun O. Riman J of the Kano State High Court, in his judgment delivered on the 5th December 2014, dismissed the suit on the grounds that the case was statute barred and that the Appellant had failed to discharge the burden of proof placed on him. He also held that the Courts cannot interfere in the function of the University in the award of degrees.
Dissatisfied with this Judgment, the Appellant has appealed by Notice of Appeal dated and filed on the 27th February 2015.
In prosecution of the appeal, the Appellant, through his Counsel, N.L. Garba Esq. of Nureini Jimoh Chambers, filed on 2nd day of June 2015 a Brief of Arguments dated 25th May 2015 but deemed properly filed by leave of
1
the Court on 6th October 2015, raising the following issues for the Courts determination:
1. Whether the principle of statute bar operates against the suit leading to this appeal.
2. Whether the claims of the Appellant could be rightly held as non justifiable.
3. Whether the Appellant successfully proved his case on the balance of probabilities, taking into consideration the pleadings and evidence before the trial Court.
The Respondents, through their counsel, T.E. Mosugu of S.E. Mosugu & Co, filed a joint Brief of Arguments dated 11th November 2015 on 3th November 2015, in which they adopted the issues formulated by the Appellant. The Appellant, in response, filed an Appellant’s Reply Brief dated 9/2/16 on 10/2/16.
The 1st issue for determination raised by the Appellant is the following:
Whether the principle of statute bar operates against the suit leading to this appeal
At the lower Court, the Respondents contended in their pleadings that the action of the Appellant was statute barred. The trial Judge, upholding this objection, held that the period between 19/4/2012. when the cause of action arose and
2
20/12/2012, when the suit was instituted, was beyond the period of three months, contrary to Section 2(a) of the Public Officers Protection Act. He disagreed with the Appellant that the injury was a continuous one or came within any of the exceptions allowed by the Act.
Both Counsel, in their Briefs of Argument before this Court, have argued extensively on this issue. While the Appellant contends that there was a continuity of damages and injury and that the Respondents acted without a semblance of legal justification rendering the statute unavailable to them, the Respondents contend the contrary. The question, however, is whether the defence of statute bar is available to the Respondents in this case.
Section 2 (a) of the Public Officers Protection Act Cap P41 Laws of the Federation 2004 provides as follows:
SECTION 2
Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act of Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following
3
provisions shall have effect.
a. the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof
Section 18 of the Interpretation Act, Cap 123 Laws of the Federation 2004 defines “public officer” as follows:
“Public officer” means a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or of the public service of a State;
“Public Service”, is defined in Section 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), as follows:
?Public service of a State” means the service of the State in any capacity in respect of the Government of the State and includes service as – a. Clerk or other staff of the House of Assembly;
b, Member of staff of the High Court, the Sharia Court of Appeal, the Customary Court of Appeal or other Courts established for a State by this Constitution or by a Law of a House of Assembly;
c. Member or staff
4
of any commission or authority established for the State by this Constitution or by a Law of a House of Assembly;
d. Staff of any local government council;
e. Staff of any statutory corporation established by a Law of a House of Assembly;
f. Staff of any educational institution established or financed principally by a government of a State; and
g. Staff of any company or enterprise in which the government of a State or its agency holds controlling shares or interest.”
In none of these statutes is it stated that educational institutions are included. While acknowledging that staff of “educational institutions established or financed principally by a Government of the State” come under this definition, it is not stated in any of these statutes that the educational institution itself comes under this definition.
Section 1(2) of the Bayero University Act Cap BS Laws of the Federation 2004 provides that the University may sue or be sued in its corporate name.
It is also provided in Section 3(2) of the Act that “the powers conferred on the University by Subsection (1) of this section shall be exercisable on behalf of the
5
University by the Council or by the Senate or in any other manner which may be authorized by statute”
The parties sued in this case are the Bayero University Kano and the Bayero University Governing Council. By the definitions above, the Respondents are not public servants or public officers but are an educational institution and a body corporate with perpetual succession and a common seal. The Public Officers Protection Act Supra is thus not available to them, I hold.
The Respondents, in their pleadings, were thus in error to have sought refuge under this Statute, and the trial Court, in grave error to have upheld their contention. Luckily, the trial Court, in spite of so holding, proceeded to hear the case on the merits. The error did not thus affect the judgment delivered.
In consequence, the singular issue that I consider arises for determination, encompassing the 2nd issue raised by the Appellant, is the 3rd issue, namely:
Whether the Appellant successfully proved his case on the balance of probabilities, taking into consideration the pleadings and evidence before the trial Court.
Learned Counsel to the Appellant
6
commenced by submitting that the trial Judge was in error to hold that the claims are not justiciable as they relate to university issues. The cases relied upon by the trial Judge, he said, are distinguishable and must not be made to apply irrespective of the facts of the instant case. In addition, they were obiter dicta. He distinguished the cases relied on of Magit v University of Agriculture (2005) 79 NWLR Part 959 Page 277 and University of Calaber v Esiaga (1997) 4 NWLR Part 502 Page 719.
Counsel pointed to various admissions made in the Respondent’s pleadings, expressly and by implication. Citing various authorities, he submitted that by the Respondents’ failure to deny specifically the Appellant’s claims; these claims are deemed admitted and need no further proof. Any evidence by the Respondents contrary to these averments in the Appellant’s pleadings, should therefore be expunged. The trial Judge was consequently in error to rely on unpleaded evidence (sic) of the Respondents’ witnesses in refusing the Appellant’s claims. Putting the evidence of both sides, in addition to the failure of the defence to cross examine the Appellant on material
7
facts, the scale clearly preponderated in favour of the Appellants.
The Respondents’ Counsel contends to the contrary, that the Trial Judge’s application of these authorities to the instant case in holding that the dispute presented before the Court is not justiciable, cannot be faulted. In addition, even though the law is that obiter dicta does not decide the live issues in a matter and is not binding on the Courts, it has been held in a number of authorities that it has considerable weight in helping a Court arrive at its decision. The obiter dicta in Magit’s case, he said, found favour in the case of Unilorin v Adesina (2014) 10 NWLR Part 1414 Page 159.
In response to the contentions of the Appellant’s Counsel on the effect of the failure of the Respondents to deny material paragraphs in the Appellant’s pleadings, the Respondents’ Counsel submits that while this may be so, the onus on the Appellant to prove his case has not been discharged, as the evidence proffered by the Appellant, even if uncontradicted, must be evaluated to determine its quality, which the trial Judge did, in dismissing the Appellant’s claims.
?Before proceeding
8
to a determination of the lone issue formulated, it is important to determine the admissions made by the Respondents in their pleading, as where admissions are made by a party, it renders unnecessary the calling of evidence on those facts admitted, for the law is well settled that facts admitted need no proof. Where the pleadings do not contain admissions, however, the matters alleged, have to be proved by evidence. See Atanda v Iliasu (2012) 6 NWLR part 1351 p. 529 at 551 Para A per Ogunbiyi JSC. See also Abimbola v Abatan (2001) 9 NWLR Part 717 Page 66 at 79 Para A per Ejiwunmi JSC quoting from the dictum of Lewis JSC in National investment and Properties Company Ltd v The Thompson Organization Ltd (1969) NMLR Vol. 1 Page 99 at 142-143.
The salient paragraphs in the Appellant’s Amended Statement of Claim, contained at Pages 35-40 of the Record, are as follow:
AMENDED STATEMENT OF CLAIM
1. The Plaintiff was a student in the Department of Accounting, Faculty of Social Management Science, Bayero University Kano with reg. no. SMS/04/ACC/03756
4. The Plaintiff avers that he was a bonafide student of the 1st Defendant since 2004/2005 academic
9
session in the department of Accounting, and was issued with an admission letter.
5. The Plaintiff avers that since that time he has been a good student and of good moral conduct with an average academic performance until 2006/2007 when he could not pass some papers in both first and second semesters of his 300 level due to ill health. Medical reports are hereby pleaded.
6. It is further averred that he had to spill for two maximum years after his normal year of graduation because he continuously dropped some courses every semester after the ill health.
7. The plaintiff avers that at the second year of his spilling over (his last chance to clear his outstanding courses), he registered for three (3) courses in the first semester and passed them all. He also registered for two (2) courses in the second semester, but wrote and passed only one.
8. It is further averred that the Plaintiff did not write the second one, which was BUSINESS LAW Il (ACC 2205) owing to information given to him by his level coordinator. Dr Ibrahim Mogaji Barde that the plaintiffs missing Continuous Assessment (CA) had been found having 14 marks, and that the error in
10
his result would be rectified since the Plaintiff has 28 marks in examination.
9. The Business Law (ACC 2205) was a second semester 200 level course which the Plaintiff failed during 2005/2006 session (200 level). He rewrote it during 2005/2007 (300 level) but was informed by the coordinator that he scored 28 in examination, but his CA was not found. The coordinator however promised to find the CA.
10. The plaintiff avers that the coordinator informed him that he needed not to re-register for the course again, that he would contact the lecturer in charge, who was Dr A.B. Ahmed from Faculty of Law, B.U.K. Relying on this, the Plaintiff did not register for the course in 2007/2008 (400 level) and 2008/2009 (spill over 1), as the coordinator kept assuring him of taking up the issue.
11. The Plaintiff was later advised by the coordinator to register for the course during 2009/2010 session (spill over II) since that would be his last registration in the school and the mission CA had not been found, and the Plaintiff did.
12. The Plaintiff further avers that he was later informed by his coordinator that the CA was found and he had 14 marks
11
making his aggregate 42 marks out of 100, which would fetch him ‘E grade (a pass grade). He was therefore told by the same coordinator that he needed not to sit for the course in the examination, that the correction would be effected. Relying on that, the Plaintiff did not sit for the examination in the last chance.
13.The Plaintiff avers that to his greatest dismay, he saw his name recommended for withdrawal because he did not write the paper.
The response of the Respondents in their Amended Statement of Defence found on Pages 81- 85 of the Record is as follows:
AMENDED STATEMENT OF DEFENCE
1. The Defendants affirm the averments contained in paragraph 1 of the Plaintiffs statement of claim only to the extent that the Plaintiff “was a student” in the Department of Accounting, Faculty of Social Management Science, Bayero University, Kano.
4. That in response to paragraphs 4, 5, 6, 7, 8 & 9 of the Statement of Claim, the Defendants aver that they are in no position to deny or affirm same and put the plaintiff to strict proof of same
5. That in response to paragraphs 10 and 11 of the Statement of Claim, the Defendants, again,
12
aver that they are in no position to affirm or deny the statements contained therein and put the plaintiff of strict proof of same.
6. The Defendants in response to paragraph 12 and 13 of the Statement of Claim the Defendants aver that they are in no position to affirm or deny same. And further add as follows:
a. The Plaintiff himself by his admission at paragraph 12 did not sit for his examination on/at his “lost chance”
b. The Defendants further aver that they put the plaintiff to strict proof of his entire averments in the said paragraph.
9. That the Defendants in response to paragraphs 18, 19 and 20 aver that they are in no position to affirm or deny the contents of the said paragraphs, but add as follows:-
a, That the 1st Defendant did write a letter in response to the letter of Messrs Haruna Muhammad and Company (Falali Chambers) where the Defendants gave a thorough exposition of their position as it concerned the Plaintiff.
b. That it is the business and primary concern of the 1st and 2nd Defendants that duly qualified/qualifying students fulfill their ambitions/dreams through academic or their academic pursuits
c.
13
That these ambitions/dreams or pursuits must be within the ambits of reality and the law/due process – that is by passing, with good grades, approved courses of study and being diligent, obedient and dutiful citizens of the Federal Republic of Nigeria (as well as of the 1st Defendant)
d. That the Defendants deny giving erroneous information to anyone including the Plaintiff or the general public on any matter; and further adds that it is not in the business of “protecting” persons for any reason whatsoever save the level of protection (physical) permissible in law.
13. The Defendants more specifically deny all the averments as contained in the Plaintiff’s Statement of Claim particularly Statements directed at Mall. Ibrahim Barde at paragraphs 8,9, 10, 12 and 17.
It is indeed true, as submitted by the Appellant’s Counsel, that the effect of the Respondents averments in the paragraphs above that “They are in no position to affirm or deny” any of the Appellant’s averments, is deemed to be an admission of the same. This position of the law was amply stated by the Supreme Court in the case of Asafa Foods Factory v Alraine (Nig.) Ltd (2002) NWLR 12
14
(Pt.781) Page 353 at 379 Para E-G per lguh JSC as follows:
“…The point cannot be over-emphasized that in order to raise an issue of fact in pleadings, there must be a proper traverse. If a defendant refuses to admit a particular allegation in a statement of claim, he must state so specifically and he does not do this satisfactorily by pleading, as in the present case, that he is not in a position to admit or deny the particular allegations raised by the plaintiff and/or that he will, at the trial, put the plaintiff to the strictest proof thereof. See Lewis and Peat (N.R.L.) Ltd. v. Akhimien (1976) 7 SC 157; Nwadike v. lbekwe (1987) 4 NWLR (Pt. 67) 718 at 847; Lawal Owosha v. Dada (1984) 7 SC 149 at 163.”
Similarly, Adio JSC in the case of Egbunike v ACB Ltd (1995) 2 NWLR Part 375 Page 34 at 56 Para A-B held:
“In order to raise an issue of fact, a defendant should properly traverse an averment in the Amended Statement of Claim either expressly or by necessary implication. Therefore, if the defendant refuses to admit a particular allegation in the statement of claim he must state so specifically and not by stating that he is not in a position to
15
admit or deny the allegation.”
However, the Respondents, in Paragraph 13 of their Amended Statement of Defence, made a volte face and averred, as set out above, as follows:
“The Defendants more specifically deny all the averments as contained in the Plaintiffs Statement of Claim particularly Statements directed at Mall. Ibrahim Barde at paragraphs 8, 9, 10, 12 and 17.”
This, no doubt, is an extremely clumsy manner of pleading, in view of their former manner of pleading above. Paragraph 13, I must, however, unfortunately hold, has satisfied the rule of pleading, as it has joined issues on the allegations made in the Appellant’s pleadings, for, as held in the case of lbeanu v Ogbeide (1998) 12 NWLR part 576 page 1 per Mohammed, JSC at Page 9 Para E-F, a proper traverse must be a specific denial or a specific non-admission. See also Asafa Foods Factory v Alraine (Nig) Ltd Supra.
The consequence is that the Respondents, by their denial above, have joined issues with the Appellant on the facts pleaded, in particular the alleged misrepresentation made to him by Mallam Ibrahim Barde, the “Level coordinator”, which misrepresentation, he said,
16
led to his withdrawal from the University, rendering proof of these facts necessary for the success of his claim.
To recap, the issue for determination is:
Whether the Appellant successfully proved his case on the balance of probabilities, taking into consideration the pleadings and evidence before the trial Court.
The claim of the Appellant before the lower Court, by its Amended Statement of Claim, was for the following:
a. An order of this honourable Court setting aside and quashing the purported withdrawal of the plaintiff by the Defendants for being unjust and inequitable:
b. An order of this Court directing the Defendants to release the real scores of the Plaintiff as 28 I examination and 14 in the continuous assessment, and effect same in result computation:
c. A declaratory order of this Court that the Plaintiff has successfully completed his degree studies in Accounting and in entitled to his final result and certificate
d. An order of this Court directing the Defendants of issues the Plaintiff with his final result and certificate awarding him the required and relevant degree award for his course of studies:
<br< p=””
</br<
17
e. An order of this Court directing the Defendants to pay the Plaintiff damages of five million naira (N5,000,000:00k) only for all the injuries and inconvenience.
f. Cost of this action in the sum of three hundred thousand naira (N300,000:00)
The deposition of the Appellant, contained at Pages 41- 46 of the Record, is in line with his pleadings. He stated that he was a student in the Department of Accounting, Faculty of Social Management Science, Bayero University, Kano. He had no problem with his studies until 2006/2007 when he could not pass some papers in both the first and second semesters of his 300 level due to ill health and had to “spill over” after his normal year of graduation, dropping some courses every semester as a result of the ill health. At the second year of his “spill over”, being his last chance to clear his outstanding course, he registered for three courses and passed them all. He also registered for two courses in the second semester but wrote and passed only one. The outstanding course was the Business Law II (Acc 2205) which he had failed during the 2005/2006 session (200 level) and which he rewrote in 2006/2007
18
session (300 level). He was informed by his “level coordinator”, Dr. Ibrahim Barde, that he scored 28 in the examinations and that his Continuous Assessment (CA) could not be found, but in which he scored 14 marks, which, when added to his examination result of 28, would give him an aggregate of 42 marks out of 100. This score was sufficient to give him an E grade, a pass grade. He was later advised to register for this course during the 2009/2010 session (his last registration in the school), as the missing CA was not found, later to be told by the same coordinator that the CA had been found and he needed not sit for this course, as the correction would be effected. He thus did not sit for this course, only to be requested to withdraw, on the ground that he did not write the paper.
The defence of the Respondents was presented by three witnesses. The first is Dr. A. B. Ahmad Abdulmumin (DW1), Dean Faculty of Law, whose deposition is contained at Page 91-92 of the Record, with his cross examination on 190-191 of the Records. DW2 is Tijani Bashir, immediate past head of the Department of Accounting, whose deposition is at Page 101-104 of the Record, with
19
cross examination at Page 195-196 of the Record. The deposition of the star witness, Ibrahim Magaji Barde is at Page 88-90 of the Record, while his cross examination is at 195-196. The cumulative evidence of the defence witnesses is a denial of the Appellant’s claim, also a denial of giving false information to the Appellant. They denied that he scored 42 marks but that the marks scored were 28 marks. They gave the requirements qualifying a student to be issued with a certificate, which they said was not met by the Appellant, having scored only a total of 28 marks. This mark, they said, included both examination scores and continuous assessment scores. Having scored only 131 credits, he was 2 credits short of the prescribed credits of 133 within a maximum period of 6 years, to qualify for a BSC Accounting degree. DW3, Ibrahim Barde denied all the representations attributed to him by the Appellant.
?The trial Judge, following the conclusion of evidence and a consideration of the written addresses of Counsel, on the justifiability of the Appellant’s claims, held, as aforesaid, that the decision to withdraw a student is an administrative or academic act,
20
and that the Court cannot “arrogate to itself the functions of a University, where it is shown that the student could not meet the required credits after exhausting the period allowed for the programme”. He thereafter proceeded to determine whether the Appellant had proved its case on the balance of probabilities, eventually finding against the Appellant.
The Appellant has complained, inter alia, that the trial Court was in error to have admitted and relied on Exhibit 7 in holding that the Appellant failed to prove his case, the document not having been pleaded, “frontloaded” or identified as being authored by the Respondents. Furthermore, the mere fact of the writing of a letter does not prove the truth of the contents of the letter, he submitted. The Respondent’s Counsel, in reply, contends that though the Federal High Court Rules mandate the “frontloading” of evidence, the Rules do not shut its eyes to the even handed interest of justice, anchored on the provisions of Section 2 of the Evidence Act.
Exhibit 7 is a letter dated 19/3/12, written by DW2 to the Deputy Chief Registrar of the 1st Respondent. It was tendered by the defence from the
21
Bar and admitted by the Court, in spite of objections of the Appellant’s Counsel.
The Appellant’s Counsel, unfortunately, I note, did not include in the Record of Appeal, the Ruling of the lower Court, showing the reasons given for the rejection of his submissions. All that is found in the Record in respect of this Ruling, at Page 192, are the proceedings of 21/2/14 when the document was sought to be tendered but objected to, with the Court stating as follows:
“Court: Matter is hereby adjourned to 7th March 2014 for ruling/hearing”.
On the next adjourned date, the proceedings went thus:
“Ruling read. Objection to the documents succeeds in part; Matter is hereby adjourned to 21st March 2014. Hearing Notice to issue.”
The Respondents, pointing to their alleged pleading of this document, refer to Para 12 of their Amended Statement of Defence, which states as follows:
“The Defendants hereby give the Plaintiff NOTICE TO PRODUCE any or all documents/evidence as may be necessary for the successful trial of this suit. And the Defendants also will plead and Rely on all such documents as may be necessary for the successful
22
trial/prosecution of this suit.”
Exhibit 7 is however not a document in the possession of the Appellant, as this averment presupposes, being a letter written by DW2, and addressed, as aforesaid, to the Deputy Chief Registrar of the 1st Respondent. The Notice to produce such a document in the custody of the Respondents themselves is thus an absurdity.
In spite of the absence of this ruling of the Court, I must agree with the submissions of the Appellant’s Counsel, that the document, not having been pleaded, neither were facts in support thereof pleaded, rendered this document inadmissible. A party pleads a document either specifically or pleads the facts which such a document is intended to support. See Oghone v Oghoyone (2010) 3 NWLR Part 1182 Page 564 at 587 Para B-C per Rhodes-Vivour JCA(as he then was); lpinlaiye v Olukotun (1996) 6 NWLR Part 453 Page 748 at 166 Para A-B per lguh JSC; Odunsi v Bamgbala (1995) 1 NWLR Part 374 Page 641 at 667 Para B-C per Adio JSC.
In addition, the purpose of “frontloading” a document is to avoid surprises to the opposing party, who must know the case he is to meet in Court.
?Exhibit 7, I
23
accordingly hold, was wrongly admitted by the trial Judge and should not have been relied upon by him.
It is thus left to consider whether in the absence of this document there were sufficient grounds for the Court to have found as it did, for the law is that it is not every mistake or error of a trial Judge, that will vitiate the entire judgment, more so, if there is other evidence to support the judgment. It is only where the error is so substantial as to affect the justice of the case that the judgment will be set aside. See Diamond Bank Ltd v Partnership investment Co Ltd (2009) 18 NWLR Part 1172 Page 67 at Page 95 Para G-H, per Ogbuagu JSC; Ngumo v A-G lmo State (2014) 7 NWLR Part 1405 Page 119 at 146 to 147 Para A-B per M.D. Muhammad JSC; Ali v State (2015) 10 NWLR Part 1466 Page 7 at 29 Para F-H per Ogunbiyi JSC; Ohakim v Agboso (2010) 19 NWLR (Part 1226) 172 per Onnoghen JSC.
It is thus necessary at this juncture to refer to the judgment of the Court.
The trial Judge, prior to his receipt of this document, placed the burden of proof on the Appellant ?to prove the fact that he sat for and passed the Business Law (ACC 2205)
24
with the scores of 14 marks for continuous assessment and 28 marks in examination making his aggregate 42 marks out of 100 which fetched him ‘E’ grade (a pass grade)”.
He held (Pages 218-219 of the Record).
“The Plaintiff testified as his only witness and relied on the information he said was given to him by DW3, Dr. Ibrahim Barde, his level coordinator which was that his continuous assessment had 14 marks and his examination scores was 28 which gives him on aggregate of 42 marks out of 100. This would give him a pass grade ‘E’ grade. Apart from relying on his ipsedixit evidence there is nothing before the Court to support the Plaintiff’s case. When the Plaintiff’s evidence is considered in the light of paragraphs 6, 7, 8, 9, 10, 11 and 12, all the amended statement of claim, the case of the Plaintiff lacks foundation and the Plaintiff has not led credible evidence to prove his case. The plaintiff is relying on Section 167 (d) of Evidence Act and urging the Court to pressure (sic) that the defendants withheld the examination script because if produced, it would be unfavorable to the defendants. With due respect to learned counsel, I do not think it
25
is a case of withholding of evidence. The DW1, Dr. A.B. Ahmad, under cross examination said:
“The score sheet I submitted to the Department of Accounting contained both students? scores in continuous assessment and scores in examination. That is why nobody contacted me”
The same witness also said:
“In his examination, he (the Plaintiff) scored 8 out of 70. I cannot precisely give details of continuous assessment being a continuous process. In 2006 – 2007 year, l was never contacted. This is because there was no problem”
The DW2 Tijani Bashir testified under cross examination that “there was no need to refer it (the petition) to the faculty. I dispatched the departmental examination officer to faculty of law where he collected the result of the student.
I set on investigation panel of me and the departmental examination officer,
“…I am not aware of Dr. Barde stopping the examination officer from looking for the raw scripts. I will be surprised to hear that Dr. Barde stopped exam officer and l will see it as a wrong thing”
It is important to find out the reaction of Dr. Barde who testified
26
as DW3 under cross examination, he said:
“The controversy regarding the scores or examination of the plaintiff came up after several semesters. I did not contact the lecturer because you must check the scores sheet. I directed him to the examination officer. It was not my duty to contact the lecture. I was not the head of deportment. If there is CA (continuous assessment) there is no need to contact the lecturer. Formal request starts with the student who brings a verification form. The level coordinator them signs it requesting for the missing continuous assessment scores or the missing examination scores where a student has examination scores and continuous assessment scores, the level coordinator is not allowed to sign any verification form.
“…I inform the exam officer to look for score sheet and not exam sheet. I use score sheet and not exam sheet as level coordinator …”
The evidence of DW1, DW2 and DW3 is that because the score sheet was found containing the scores of the examination and the continuous assessment, there was no need to go for the raw sheet, that is, the examination sheet.”
?The
27
trial Judge thereafter referred to Exhibit 7 as supporting the Respondents’ case. He observed that the document had an attachment showing the second semester examination of the 2006/2007 session, reflecting the Appellant as No. 23 with a continuous assessment of 20 and examination score of 8, with an aggregate score of 28.
Referring further to Exhibit 7, he said, at Page 220-221:
“Part of Exhibit 7 reads:
“Having gone through the aforementioned stages, I came to a conclusion that Kamaluddeen has failed the course. As per attached, the course lecturer scored Kamaluddeen 20% in the continuous assessment and 8% in examination, bringing it to a total of 28%. As a result, I told Kamaluddeen that as Chief Examiner, I cannot question judgment of the law lecturer, especially in this circumstance when entire results (including that of Kamaluddeen) have been considered and approved at all levels.
Consequently, I informed Kamaluddeen that if he is not satisfied he may explore the last option available to him, which is to write a petition to demand for remarking of his examination” … By Section 136(1) of the Evidence Act, the burden of
28
proof may in the course of a case be shifted. Burden of proof is not static. In the instant case it is my considered view that burden of proof never shifted from the plaintiff to warrant the defendants proof their outside of the case (sic).”
For the reasons given by me above, I shall disregard all reference to Exhibit 7. Having so done, I cannot, however, fault the reasoning of the trial Judge above, that the onus was on the Appellant to prove that he sat and passed the Business Law II (ACC 2205) with scores of 14 for continuous assessment and 28 marks in the exam. In view of the denial of DW3, his Level Coordinator, that this was so, the burden, I hold, was on the Appellant to prove his scores.
Contrary to the Appellant’s contention, the burden was not on the Respondents to prove his scores, as the burden is on him, having asserted that he scored a cumulative mark of 42, to prove this fact. This, he can do, by either giving to the Respondents a Notice to Produce the scores or taking out a subpoena compelling the Respondents to produce whatever documents he considers are material to his case. Without issuing a subpoena or Notice to produce any
29
document, he cannot accuse the Respondents of failing to produce the same.
Where there is a failure by the opposing party to produce a document for which it has been given notice to produce, the Court, in the event that the Appellant has no copy of the document sought to be produced, may then resolve the non production against them, by virtue of Section 167 (d) of the Evidence Act 2011.
The law, I hold, does not place the burden on the defence to prove its case, for, by Sections 131-133 of the Evidence Act Supra, the burden of proof in a suit is on the person who asserts and who desires a Court to give judgment as to any legal right.
I thus agree with the decision of the lower Court where it held, at page 221 of the Record:
“…it cannot be said that the Defendants withheld the evidence at the trial when the Plaintiff took no step for the Court order or subpoena (sic) a “when the Plaintiff took no step for the Court order or subpoena the Defendants (sic) to produce before the Court the exam scripts”.
The non production of the result sheets or examination scripts can thus not be resolved against the Respondents, I
30
hold.
As observed by the lower Court, the allegations of the Appellant rested mostly on oral evidence of discussions he had with DW3, the “Level Coordinator?, who has denied the same. There was no correspondence or “paper trail” between them in proof of his assertions. I must therefore agree with the trial Judge and resolve against the Appellant the sole issue for determination that the Appellant has failed to prove the facts alleged by him.
In addition to the foregoing, the Courts must be wary about interfering in the administration of an institution in its consideration of the suitability of candidates to be awarded degrees.
The lower Court, in its summary of the case before it, put the facts succinctly as follow:
?l have carefully perused and considered the reliefs of the Plaintiffs claim, It is clear, after reading the Plaintiffs pleadings that his dispute is against the Defendants for not awarding him his degree, In other words the Plaintiff wants this Court to interfere so that the 1st Defendant will release to him what he terms “the real scores of the Plaintiff as 28 in examination and 14 in the continuous
31
assessment and effect same in the result compilation”
He subsequently held:
“Having considered the case of the parties, it is my considered opinion that this case does not fall within the ambit of cases in which Courts can interfere in the function of the University in the award of certificates or degree as was urged by the Plaintiffs, I am unable to see where the law or the civil rights of the Plaintiff has been denied by the Defendants. The Defendants were able to show that the Plaintiff did not pass his course with the required credits.
This Court will therefore not compel the Defendants to do otherwise. The Plaintiff may appeal to the Council of the University for any consideration so long as it is within the discretion of the 1st Defendant to consider who is fit and proper person for the award of its degree.”
Certainly, where the complaint is lack of fair hearing, the Courts must jealously guard the rights of the student to his constitutional rights to be heard before any onerous sanction is meted out against him. The present situation is however, not such a one, but a contention by a student that he made the qualifying mark
32
against the institution’s stance refuting the same.
In this latter case, the Courts must be guided by the strong words of caution given by the Apex Court in the case of Magit v University of Agriculture, Makurdi (2005) 19 NWLR Part 959 Page 277 at 245 Para B-E per Ogbuogu JSC reading the lead judgment, where he held:
“…that in so far as the award of a degree or certificate to a student is concerned, in the discretion to award or refuse to award, the Courts have no jurisdiction in the matter?, any attempt by any Court, including this Court, to dabble or encroach into the purely administrative and domestic affairs of a University including that of the 1st respondent, that may lead to undue interference, nay, the weakening inadvertently so to speak, of the powers and authority conferred on the Universities by statute as that conferred on the 1st respondent, will not be justifiable or justified.”
Pats-Acholonu JSC, in his contributory judgment, at Page 257-258 Para D-A had stronger words:
“A University is a “Degree awarding institution” and can neither delegate its degree awarding powers nor be stampeded to make award where it does
33
not see it fit to do so. For the Court to use its awesome magisterial powers to compel a University to award a degree would in effect mean that the Court has invested itself with the necessary powers to fully appreciate the nuances taken into consideration to award University degree. Too often nowadays, ever since the case of Garba v. University of Maiduguri (supra), many litigants have tended to inundate the Courts with frivolous claims and have tried to invest the Court with powers to run a University usually described as ivory Tower with their strange claims, A University is a place of great learning and research. I would view with consternation and trepidation the day the Court would immerse itself into the couldron of academic issue which is an area it is not equipped to handle. It will indeed be alarming for any court worth its salt to enter into the arena of questioning why a University has refused to award a degree to any student. The danger posed by such venture is better imagined than expressed.
It is my view that it is the indisputable right of a University to award or withhold the award of a degree and it is no business of the Court to
34
question its motives let alone compelling it to award a degree which it has stated that a claimant is not qualified for. The duty or the power of a University in subjecting the work of any student in its portals of learning to merciless scrutiny is naturally to carefully evaluate the academic quality of his or her work, It alone possesses the power to state whether a particular work is below the standard or not.”
The case of Unilorin v Adesina (2014) 10 NWLR Part 1414 Page 159 cited, is somewhat different. In that case, the student had sat for the examination. The University, without assigning any reason, refused to release the results. Rhodes-Vivour JSC of Page 777 Para D-E succinctly put the matter thus:
“A student who takes part in an examination is entitled to see his results, Refusal to release results is not strictly a domestic issue. Refusal to release result with no reason for the refusal raises issues of breach of civil rights and obligation, denial of fair hearing which are all justifiable, Such a refusal is no longer within the confines of domestic affairs of the University.”
Reading the lead Judgment, Akaahs JSC, at Page 175 Para
35
E-H, drew out the distinction between the case before them and one where the quarrel is with the degree awarded. His Lordship held:
“The appellant has the sole power and responsibility to lay down requirements which must be satisfied before any student who is considered in the opinion of the senate to be worthy in learning and character to an award of its degree, To this end it is provided in Section 3(1) (e) of the University of Ilorin Act
“3(1) for the carrying out of its objects in Section 1 of this Act, the University shall have power-
(e) To hold examinations and grant degrees to persons who have pursued a course of study approved by the University and have satisfied such other requirement as the University may lay down.”
The issue at stake is the release of the results and not the award of the degree.” Underlining Mine
Contributing, Okoro JSC at Page 178 Para A-D held, as follows:
?l am aware that the Courts cannot and will not usurp the functions of the Senate the Council and the Visitor of the university in the selection of their fit and proper candidates for passing and for the award of certificates
36
degrees and diplomas. See Akintemi V Onwumechili (1985) 1 NWLR (Pt 1) 68, University of Calabar V Esiaga (1997) 4 NWLR (Pt. 502) 719. However, although the general rule is that consideration for an award of degrees and certificates are in the domestic domain or jurisdiction of the universities, there are however, exceptions, As it has happened in the instant appeal, where the student has exhausted all avenues and entreaties, and the university is adamant, as in neither releasing the result nor giving good, substantial and verifiable reasons for withholding the result, even after intervention by the visitor of the university, the student is entitled to approach the Court for redress. In such circumstance, the Court should not shy away from ensuring that the university authority abides by the law setting up the institution.? Underlining Mine
Section 3 (1) and (e) of the Bayero University Act supra provides:
“3(1) for the carrying out of its objects in Section 1 of this Act, the University shall have power-
(e) To hold examinations and grant degrees to persons who have pursued a course of study approved by the University and have satisfied
37
such other requirement as the University may lay down”.
By Section 3 of the Bayero University Act Supra the prerogative for the conduct of examinations and the award of degrees is entirely that of the Respondents. The Respondents have the sole power and responsibility to lay down requirements to be satisfied before any student is considered worthy of its degree. It is the indisputable right of the University to award or withhold the award of a degree, and which power the Courts cannot usurp or interfere with, let alone compel it to award a degree which it has stated that a claimant is not qualified for.
Acceding to the claims of the Appellant would be enmeshing the Courts in the domestic affairs of the University, which alone has the power to state whether a particular work is below standard or not or whether a Claimant is qualified to be awarded its degree.
?This appeal accordingly fails and is hereby dismissed. The judgment of the lower Court dismissing the Appellant’s claims is accordingly affirmed. The parties shall bear their respective costs.
Other Citations: (2016)LCN/8617(CA)
