Mr Yesufu Amuda Garba & Ors V. The University Of Maiduguri (1986)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C

The appellants were students in various disciplines in the University of Maiduguri, the respondent, before their expulsion from the said institution with effect from the 30th day of March, 1983. Their expulsion was sequel to the riotous behaviour of about 500 students in the University on the 2nd day of February, 1983 at about 9.00 p.m. followed by demonstration rampage, wanton destruction of properties in the University and assaults on persons.

Their expulsion was not till after the Senate had considered the reports of the Disciplinary Board and Panels set up on the 9th day of February 1983 by the Vice-Chancellor to investigate the said students’ rampage of the 2nd February 1983. The Senate noted that out of a total of four thousand students, only about five hundred students went to the residential area and only less than one hundred students took part in the destruction, arson and the looting. Senate also observed that from the pattern of arson and destruction, the intention of the perpetrators of the ghastly incident was far more sinister than the atrocities they were able to actually commit. It concluded that it was a carefully planned but hurriedly executed insurrection.

Following their expulsion, the appellants initiated in the High Court of Justice of Borno State of Nigeria, Maiduguri Judicial Division at Maduguri, the proceedings which led to the appeal by the respondent to the Court of Appeal and a further appeal by the appellants against the decision of the Court of Appeal to this Court. The proceedings initiated were for the enforcement of their fundamental rights and the procedure adopted was that laid down under and by the Fundamental Rights (Enforcement Procedure) Rules, 1979.

Following the grant of leave to apply for an order for enforcing and securing the enforcement of their fundamental rights, each of the appellants filed his statement setting out the reliefs sought as:

“(1) A declaration that the applicants’ expulsion with effect from 30th march, 1983 from the University of Maiduguri constitutes a violation of his fundamental right to fair hearing;

(2) A declaration that the applicants be re-admitted into the University of Maiduguri to continue with their studies with immediate effect.

(3) A declaration that the respondent acted with bias in purporting to expel the applicants.

(4) A declaration that the applicants cannot be deprived of their fundamental rights.”

The main ground on which the application was founded was that:

“the applicants were not given a fair hearing, before the respondent expelled the applicants from the University of Maiduguri with effect from 30th March, 1983.”

Each of the applications was also supported by affidavit evidence. The respondent filed a counter-affidavit in reply.

There was no oral testimony taken by the learned trial judge and after hearing the submissions of counsel on both sides, the learned trial judge, Adagun, J. delivered his considered ruling granting all the reliefs. This is brought out vividly in the concluding paragraph of the Ruling of Adagun, J. which reads:

“In the totality of affidavit evidence adduced in this matter, I am convinced that the fundamental rights of the applicants entrenched under section 33(11) of the Constitution of the Federal Republic of Nigeria 1979 have been contravened by (sic) not affording them their right to cross-examine the witnesses who gave evidence against them before the investigation panel.

Secondly, the defences of alibi put up by the applicants in the affidavit were not properly investigated.

A fundamental right of all is a legal right which the law protects and which can be enforced in a court of law. These rights are not only protected but are also guaranteed under the Constitution. Since the rights are guaranteed under the Constitution, Government functionary be they (sic) legislative, executive, judicial, cannot act in contravention of such rights and if the rights are to be taken away, it is the Constitution itself which has to be amended (see section 9 of the 1979 Nigerian Constitution). The applicants complained of the infringments of their fundamental rights of fair hearing, it has been proved before this court beyond reasonable doubt, that their fundamental rights have been in fact fractionalised and infringed.

Accordingly, it is hereby declared that the expulsion of the applicants with effect from the 30th March, 1983 from the University of Maiduguri constitutes a violation of their fundamental rights to fair hearing.

It is also declared that the applicants be re-admitted into the University of Maiduguri and treated like other students in the University of Maiduguri who were compelled to pay N160.00 for reparation of the properties damaged in the University during the students rampage.

Finally, it is also declared that the applicants cannot be deprived of their fundamental rights.”

The University of Maiduguri was dissatisfied with the judgment and in the desire to obtain a reversal of the decision, it took the matter on appeal to the Court of Appeal on 8 grounds. The grounds were extensively argued before five Justices of the Court of Appeal (Nasir, P., Akanbi, Agbaje, Ogundare and Abdullahi, JJ.C.A.) and in a considered judgment, the Court unanimously allowed the appeal. In the penultimate paragraph of his judgment with which the other four Justices concurred, Nasir, P. said:

“It is not surprising, therefore, that the only complaint in this case is failure to comply with the constitutional provisions of fair hearing. I entirely agree that this is always within the jurisdiction of the High Court particularly as section 42 of the Constitution has specifically so provided. The only question for consideration is what will be the court’s direction or order after it has found that in the course of exercising a valid statutory function the adjudicating authority has infringed the principle of fair hearing.

I have to some extent dealt with this already. I am in no doubt that the only valid order a High Court can make is to refer back the matter to the body authorised by law to deal with it with the necessary guidelines for such body to comply with the rules of natural justices which were formerly offended. In this case, I am of the opinion that the High Court was not seised with the jurisdiction to state who should not be expelled from or admitted to one University.

The only issue before the High Court was whether there was fair hearing by the Disciplinary Investigation Board or whether there was likelihood of bias. To take over the jurisdiction of the Vice-Chancellor or of the University Council is, in my opinion, wrong. The students, including the respondents, must abide by the law establishing the University and any lawful conditions created in running the University. I am of the opinion that mere likelihood of bias will not be sufficient to disqualify the Vice Chancellor or his deputy when they are infact performing statutory functions.

I am in fact satisfied that to establish bias in this case, one must look at all the surrounding circumstances of the case. In the light of the terms of reference of the Disciplinary Investigation Board and the consultations undertaken by the Vice-Chancellor and the fact that the respondents were given opportunity to present their side of the story, I am of the opinion that the learned trial judge was in error to hold that there was no fair hearing and that there was likelihood of bias.

…To sum up, I am of the opinion that this appeal succeeds and the orders made by the learned trial judge including any order as to costs are hereby set aside.”

The success of the appeal of the University of Maiduguri did not go well with the students – the plaintiffs/appellants herein. They decided to take the matter on appeal to this Court and accordingly filed their notice of appeal.

Three grounds of appeal were filed along with the notice of appeal and for the purposes of this judgment, it is desirable to set them out in detail. They read:

“1. The learned Justices of the Court of Appeal erred in law in allowing the appeal after holding in the judgment of Mamman Nasir, J.C.A. (sic read p.) ‘On the other hand each of the respondents had sworn in his affidavit that “the said period of rampage, I was in my room in the University campus”, except the 5th who said he was in Haruna Abdul Rashidi’s room on the campus and the 9th who said he was at the College of Arabic Studies with one Ibrahim M. Basir. On the University’s side it was stated that each of the respondents took part in the disturbances. Each of the respondents also stated that he was not allowed to cross-examine witnesses and was not allowed to call witnesses. These allegations were also denied and it was sworn that each of the respondents were given opportunity of being heard and that none of the respondents requested to call any witness. In short, there were issues which were in conflict between the affidavits and court-affidavits.)’

PARTICULARS OF ERROR

(a) when there is any conflict in affidavit evidence on crucial issues to be determined, oral evidence must be adduced.

(b) The only valid order the Court of Appeal ought to have made was to have remitted the case back to the High Court for a rehearing on the crucial issues in conflict joined by the parties on their affidavit evidence, especially after expressing the opinion at page 30 that

‘….the only valid order a High Court can make is to refer back the matter to the body authorised by law to deal with it with necessary guidelines for such body to comply with the rules of natural justice which were formerly offended.’

(c) The Court of Appeal ought not to have interfered with the findings of fact made by the trial Judge and substitute its own findings.

2. The learned Justices of the Court of Appeal misdirected themselves in law (Mamman Nasir, J.C.A. (sic) p.) in holding:

‘To sum up, I am of the opinion that the learned trial judge was in error and have over-played the principle of fair-hearing and this had clouded his approach as a result of which he missed the issue involved. It was not the case of the respondents/applicants that they had a fundamental right to be students in the University. Their case was that they did not have a fair hearing. In my opinion, the only order open to the trial court was to make a declaration that there was a breach of the fundamental right of fair hearing and on the basis the trial court must quash the alleged hearing and order the appropriate authority to comply with the said fundamental right. Having quashed the said hearing, there is nothing left upon which the High Court order or declarations can be based.’

PARTICULARS OF ERROR

(a) The appellants claim in the High Court ‘A Declaration that the applicants’ expulsion with effect from the 30th of March, 1983 from the University of Maiduguri constitutes a violation of their fundamental rights to fair hearing.’

On the ground that the applicants were not given a fair hearing before the respondents expelled the applicants from the University of Maiduguri with effect from 30th March, 1983.

(b) The High Court by virtue of section 42 of the Constitution of the Federal Republic of Nigeria, 1979, is given special jurisdiction and it enjoins any person who alleges that any of the provisions of Chapter 4 of the Constitution has been, is being or likely to be contravened in any State to apply to the High Court for redress.

(c) By virtue of section 42(2) of the Constitution of the Federal Republic of Nigeria 1979, the High Court is enjoined to make such orders “and” issue such writs, these therefore supplement, or are in addition to the existing remedies for securing the enforcement of fundamental rights.

(b) In granting a declaratory order as to the rights of the parties before it, the court can exercise the ancillary power which it has to grant consequential reliefs whether the consquential reliefs are claimed or not.

3. The learned Justices of the Court of Appeal erred in law per Mamman Nasir, J.S.C. (sic p.) in holding that:

‘I am of the opinion that mere likelihood of bias will not be sufficient to disqualify the Vice-Chancellor or his Deputy when they are in fact performing statutory function. I am in fact satisfied that to establish bias in this case one must look at all the surrounding circumstances of the case. In the light of the terms of reference of the Disciplinary Investigation Board and the consultations undertaken by the Vice-Chancellor and the fact that the respondents were given opportunity to present their side of the story, I am of the opinion that the learned trial judge was in error to hold that there was no fair hearing and that there was likelihood of bias

PARTICULAR OF ERROR

(a) The defence of alibi put up by the applicants were neither considered nor investigated by the Investigating Panel set up by the respondent.

(b) The Chairman of the Investigating Panel and the vice Chancellor on the affidavit evidence where personal victims of the students rampage, hence, there was likelihood of bias.

(c) The appellants neither knew their accusers and were not given an opportunity of cross-examining them to test the veracity and accuracy of the evidence against them, when moreso before the Panel they pleaded alibi.

(d) The witnesses who testified against the appellants did so in their absence.”

The respondents filed subsequently a notice of intention to contend that judgment should be affirmed on grounds other than those relied on by the Court of Appeal, i.e. the court below. The grounds on which the Respondent intended to rely on as contained in the said notice read:

“1. The High Court ought not to have entertained the plaintiff’s action since the proper authority which ought to have adjudicated on their complaints was the Visitor to the University.

2. Since the power of the Vice-Chancellor to discipline the plaintiffs, though regulated by section 17 of the University of Maiduguri Act, derived essentially from contract, the High Court ought not to have entertained a claim by the plaintiffs for a declaratory relief in the nature of an order of mandamus. In any event, it is irregular for the plaintiffs to have invoked the special jurisdiction conferred on the High Court under section 42 of the Constitution for the enforcement of what is no more than a contractual right.
3. The High Court fell into error of thinking that the provisions of section 33(1) of the Constitution apply to the exercise by the Vice Chancellor of his disciplinary powers under section 17 of the University of Maiduguri Act when those provisions do not in fact apply. It is the provisions of subsection (2) of section 33 of the Constitution which apply.”

Arising from the grounds of appeal, the issues for determination as set out in the brief of appellants are:

“1. whether the learned Justices of the Court of Appeal were right in allowing the appeal and not remitting the case back to the High Court for a re-hearing after expressing the opinion that there were issues which were in conflict between the affidavits and counter affidavits of the appellants and the respondents

2. whether having regard to No.1 above the Court of Appeal was right in interfering with the findings of fact made by the trial judge and substituting its own findings thereof.
3. whether in view of the combined effect of the provisions of section 42 of the Constitution of the Federal Republic of Nigeria, 1979, Order 24 Rule 1 of the Borno State High Court (Civil Procedure) Rules and the appellants’ claims at the lower court, the learned Justices of the Court of Appeal misdirected themselves in law when they held that the only order to open to the trial court was to make a declaration that there was a breach of the appellants’ fundamental right to fair hearing and nothing more.
4. whether the Disciplinary Investigation Board had jurisdiction to look into the matters referred to it by the Vice-Chancellor in respect of the appellants.
5. whether in view of all the surrounding circumstances of the case there was fair hearing contrary to the findings of the trial judge.”

The respondent in the brief filed by its counsel formulated only four issues for determination in this appeal. These four issues read:

“1. whether the High Court ought to have entertained the action;

2. whether the Court of Appeal ought to have remitted the case to the High Court for re-hearing;
3. whether it was right for the High Court to have granted reliefs which it granted to the appellants;
4. were the Disciplinary Investigation Board competent to perform the duties assigned to them”

The important feature of this matter is that there was no oral hearing besides the address of counsel. All the evidence on which the learned trial judge acted was contained in the affidavit of each of the applicants and the counter-affidavit deposed to by Abubakar S. Chide. He, Abubaker S. Chide was the Principal Assistant Registrar (Students Affairs) in the University of Maiduguri and was a member and secretary of the Investigation Panel appointed by the Vice-Chancellor with the approval of the Senate to investigate the Student’s rampage of 2nd February, 1983.

Each of the appellants deposed to an affidavit almost identical in terms except for a few paragraphs. Common to all the affidavits was the denial of any participation or involvement in the rampage and the fact that their expulsion was based on their involvement and their participation in the rampage and their being guilty of wilful destruction of property, arson, looting and assault in the University. Exhibit A issued by Mr Dahiru Bobbo the Registrar on the 30th day of March, 1983 clearly shows that the disciplinary action was taken against those who took part in the rampage. The statement at page 8 inter alia reads:

DISCIPLINARY ACTIONS ON STUDENTS

“Having regard to the provisions of section 17 of the University of Maiduguri Act 1979, Senate at its meeting of 28th – 29th March, 1983, was constituted into a Disciplinary Board to consider the report of the Disciplinary Investigation Panel that investigated the students’ ramapage and advised the Vice-Chancellor to take appropriate disciplinary actions against those students who took part in the rampage of 2nd February, 1983. After a careful consideration of the role played by each student identified to have participated in the rampage, the Disciplinary Board of Senate advised the Vice Chancellor and the Vice Chancellor decided to take action as follows:

(1) That the following students should be expelled from the University with immediate effect.”

The names of all the 9 appellants appeared on that list of students expelled with immediate effect.

The statement Exhibit A giving detail of what the students did reads:

“At about 9.00 p.m. Mr. Zadok and a small group of his supporters who were fore-armed with inflammable materials such as petrol and matches, and dangerous weapons led a crowd of about 500 students to the residential area of the University, attacked the Vice Chancellor’s lodge where they set fire to the Guest lodge, the main lodge and the mosque and burnt and destroyed six cars and a bicycle belonging to his five year old child. Many of the students who accompanied Mr. Zadok to the Vice-Chancellor’s lodge ran back in panic when they saw the Vice-Chancellor’s house set on fire. At the Registrar’s house, the students burnt three cars, destroying another one. There was an attempt to set the house on fire. At the staff club, the demonstrating students looted 33 cartons of beer and some roast meat worth forty Naira.

At the residence of the Deputy Vice-Chancellor, (Central Administration) there was an attempt to set the house on fire. The students broke into the house carrying away with them television sets, books, cooked and raw food, live chicken and destroyed children’s lunch boxes and toys.

At the residence of the Deputy Vice-Chancellor (Academic Services), the demonstrating students burnt two cars, and destroyed window glasses. From the residential area, the demonstrating students proceed to the bookshop and they burnt the bookstore.

From the bookshop, the students broke into the Aisha Hall (the Female Hostel) where they manhandled some female students in their rooms and left many of them in utter disgrace and humiliation.”

The counter-affidavit specifically denied the facts deposed to in paragraphs 1, 3, 4, 5, 9, 10, 16 and 17 of the affidavits of the 8th and 9th appellants, Abdul Abubakar Aliyu and Mohammend Bapetrel Yahaya. There is no evidence that the other facts deposed to in the affidavit of the other appellants were ever challenged.

Paragraphs 1, 3, 4, 5, 9, 10, 16 and 17 of the affidavit of the 8th appellant, Abdul Abubakar Aliyu reads:

“(1) That I am a part II Law student at the University of Maiduguri and one of the applicants in this suit;

(3) that at the said period of the rampage, I was in my room in the University campus.

(4) that I learnt of the said rampage and destruction of properties a few hours after the incident was brought under control;

(5) that I never participated in any demonstration, rampage, or wanton destruction of properties in the University on the said date and time nor at any other period;

(9) that I orally applied to the Panel to call my own witnesses to testify in support of my absence from the demonstrating students and innocence to the allegations levelled against me but the panel refused my applications without reasons;

(10) that the Panel did not investigate the claim of my alibi I put up before the Panel;

(16) that if the order of expulsion on me is not quashed, I might not benefit from further university education in my life;

(17) that great mischief and life hardship will result if the said order of expulsion is not quashed on the basis of a Disciplinary Investigating Panel which lacked the principles of “audi alterem partem” .

What facts did the counter-affidavit contain relevant to the incident The answer to this question can best be provided by a reproduction of paragraphs 1 to 12 of the counter-affidavit which is all it contains. It reads:

“I Abubakar S. Chidi, Nigerian, Male, Moslem of the Students Affairs Department, University of Maiduguri do hereby make oath and say as follows:

1. That I am a Principal Assistant Registrar (Students Affairs) in the University of Maiduguri.
2. That I was a member of and Secretary of the Investigation Panel that was appointed by the Vice-Chancellor with the approval of the Senate to investigate the student rampage of 2nd February, 1983 which led to the closure of the University of Maiduguri from

3rd February -10th April, 1983.

3. That from my membership of and position in the Investigation Panel, I know the applicants in this case and I am familiar with the facts of this case.
4. That I have the authority of my employers to despose to this counter-affidavit;
5. That I have seen the affidavit of both applicants in this suit, i.e. Abdul Aliyu and Mohammend Bapetrel Yahaya and also the statements annexed to the notice of motion and I am aware that the averments in both are not true.
6. That paragraphs, 1, 3, 4, and 5 of the affidavit of the 1st applicant are not true because the applicant who until his expulsion from the University was the Secretary-General of the University of Maiduguri Students Union was one of those who summoned the congress on the fateful day and it was from the congress that the students proceeded to destroy both the university property and property belonging to some staff of the university and also threatened the safety and security of the university community.
7. That in the same vein the averments contained in paragraph 1, 3, 4 and 5 of the affidavit of Mohammed Bapetrel Yahaya are not true as the student had been expelled from the University after the Investigation Panel had so recommended to the Vice-Chancellor as per page 9 of Exhibit A annexed to the applicant’s affidavit.
8. That the contents of paragraphs 9 and 10 of the applicant affidavit are not true as the panel gave the applicants opportunity of being heard and the applicants did not at any time request to recall any witness or witnesses. Further, the Panel was not set to try any particular person but to find out the remote and immediate causes of the wanton destruction of property by the students and recommend appropriate disciplinary measures:
9. That after the violent and wanton destruction of property at the University on 2/2/83, the Investigation Panel was set up by the Vice Chancellor with the approval of the Senate with the following terms of reference.

(a) To investigate the remote and immediate causes of the recent grave students disturbances on the night of Wednesday, the 2nd of February, 1983 in the University campus;

(b) To identify the principal organisers and perpetrators of the disturbances and in particular to investigate the activities of the executive members of the Students Union before, during and after the disturbances;

(c) To identify all those who in anyway at all participated in the disturbances;

(d) To determine the role of persons or organisations inside or outside the University, of Maiduguri, in influencing, planning, organising or executing the disturbances and what factors might have motivated such interests;

(e) To assess and report on the extent of damage inflicted upon public and private property and to give competent costing of such damages and losses using the services of appropriate appointed University professional (sic);

(f) To examine the performance and effectiveness of security information and communication system in anticipating, monitoring and apprehending the disturbances as well as reducing dangers to those involved and minimising the damage caused;

(g) To comment on the role of law enforcement agencies in controlling the disturbances;

(h) To apportion blame or give credit as the case may be to all individuals concerned and in the former case to recommend suitable disciplinary measures to be taken against the culprits;

(i) To recommend measures to be taken by the University to forestall any such disturbances and to make such other recommendations as the committee may consider fit.

10. That paragraphs 16 and 17 of the applicant’s affidavits are not true because the applicants can still apply for and gain admission into other universities in the country. Further, the applicants failed to avail themselves the opportunity of appealing against the decision to expel them to the University Council as provided by law.
11. That to the best of my knowledge and belief, although the panel was not and could not be a court of law or police investigating body, the procedures adopted by the panel in carrying out the investigations aimed at justice and fairplay and the panel strictly acted within the frame of its terms of reference.
12. That I swear to this affidavit in good faith.”

The grounds on which the application for the reliefs were based are:

(1) The applicant was not given a fair hearing before the respondent expelled the applicant from the University of Maiduguri with effect from 30th March, 1983:

PARTICULARS

(a) All the allegations levelled against the applicants through witnesses were received by the respondent in the absence of the applicants

(b) The applicant was not given the opportunity of seeing or cross-examining any of the witnesses who so testified before the Investigation panel set up by the respondent against the applicants.

(2) The alleged rampage and wanton destruction of property levelled against the applicant was not proved beyond reasonable doubt against the applicants as required by law before the respondent expelled the applicants from the University.

(3) The defence of alibi put up by the applicants was not considered or investigated by the Investigation Panel set up by the respondent.

(4) Both the Investigating Panel and the Vice-Chancellor of the University of Maiduguri were biased against the applicant in finding the applicant guilty of mis-conduct.

PARTICULARS

(a) The Chairman of the Investigating Panel Dr. Nuhr Alkali and the Vice-Chancellor, University of Maiduguri were personally victims of same students’ rampage and wanton destruction of properties at the University of Maiduguri campus at the material time. It is clear from the affidavit and counter-affidavit and it is indeed common ground that the appellants were students at the University, that they were expelled on the 30th day of March, 1983 that they were found guilty of mis-conduct which has been vividly described in Exhibit A and amounting to arson, willful destruction of property, stealing and indecent assault.

If the Investigating Panel was not set up to try any particular person as deposed to in paragraph 8 of the counter-affidavit I cannot but wonder by what process the Investigating Panel found the appellants guilty of the acts complained of above. However, it does appear to me that by the terms of reference set out in paragraph 9 of the counter affidavit particularly sub-paragraphs (b), (c), (d) and (h) of paragraph 9 that the Panel was empowered to try those identified as having participated in the disturbance for it is only by this process that (i) the Panel can identify the principal organisers and perpetrators of the disturbance, (ii) identify all those who in any way participated in the disturbance (iii) determine the role of persons in influencing, planning organising or executing the disturbances and (iv) apportion blame and recommend suitable disciplinary measures to be taken against the culprits.

The use of the term culprits implies a finding of guilt and any finding of guilt without a trial is a breach of all the rules of natural justice. The Investigating panel is therefore turned into prosecutor, witness and judge. I will leave the facts of the case there for now.

Turning to the issues for determination set out above, learned counsel, Chief Gani-Fawehinmi for the appellants and Chief F.R.A. Williams submissions in their briefs of argument filed. Both counsel were forth-coming in making concession on points of law where the occasion called for it and such assistance from counsel is highly commended as it lightens our path in the search for justice and enables the desirable holy development of the law. Learned counsel for the appellant identified four issues for determination. These four issues, he submitted were:

(1) whether the High Court was competent to entertain the action;

(2) whether in the exercise of the powers conferred by section 17(1) of the University of Maiduguri Act 1979 the Vice-Chancellor and his appointees ought to have applied the rules of natural justice;

(3) whether the appellants established a breach of section 33(1) of the 1979 Constitution; and

(4) whether the trial court was competent to grant the relief which it granted.

Learned counsel then referred the Court to the facts deposed to in the affidavit and counter-affidavit and Exhibit A and submitted that the appellants were expelled because of alleged criminal actions amounting to (1) wilful destruction of property; (2) arson (3) looting and (4) assaults. These he submitted, are offences under the Criminal Code and Northern Penal Code. He submitted that criminal matters do not come within visitorial jurisdiction or that the visitor has no visitorial jurisdiction over them. Learned counsel then cited in support:

The King and Queen v. St. Johns College Cambridge 4 MOD 233 Adeyinka Albert Laoye v. The State S. C. 200/1984 delivered 25/10/85 (1985) 2 N. W.L.R. (parts 10) p. 382 ;Sofekun v. Akinyemi & Ors. (1981) 1 N.C.N.L.R. 135 at 137 (1890) 5 S.C.; Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All N.L.R. 306

Learned counsel then contended that the misconduct envisaged in section 17(1) University of Maiduguri Act 1979 does not include criminal misconduct. He then submitted that where the misconduct amounts to a crime against the state it must be referred to a Court for hearing and determination.

On the issue of the competence of the High Court, learned counsel submitted that once a matter involves a breach of fundamental rights and the aggrieved invokes section 42 of the Constitution, the High Court in the state is invested with jurisdiction. He cited the case of Peenock v. Hotel Presidential (1982) 12 S.C. 1. He concluded that the civil rights and obligations of the appellants in relation to their conduct as members of the University of Maiduguri were called in for questioning and determination by the University.

On the 2nd issue, learned counsel contended that since the investigation Panel had to identify persons who participated and apportion blame, it is bound to observe the rules of natural justice. He emphasised that the rules must be complied with whether the Panel is acting judicially, quasi-judicially or administratively and cited in support;

Legal Practitioners Disciplinary Committee v. Gani Fawehinmi (1985) 2 N. W. L. R. 300 at 307

Glynn v. Keele University (1971) 2 All E.R. 89 at 95 and 96

Kanda v. Government of the Federation of Malaya (1962) A. C. 322 at 337

State Civil Service Commission & Drs. v. Buzugbe (1984) 7 S. C. 19

A.I. Wilson v. Attorney-General, Bendel State (1985) 1 N. W.L.R. (Part4) 572

On issue No.3, learned counsel submitted that the Disciplinary Board did not call on the appellants at the time the report of the Investigating Panel was being considered. Counsel conceded that they appeared before the Investigating Panel but no charges were preferred against them although there was a general allegation. Learned counsel then pointed out that in view of the damage to the Chairman’s property, there was likelihood of bias and referred to the case of Legal Practitioners Disciplinary Committee v. Gani Fawehinmi (supra). There was therefore a breach of section 33(1) and (4) of the Constitution.

Chief F.R.A. Williams, S.A.N., approached the questions from a different angle. He cautioned against reading too much into section 33 and submitted that the common law incorporating the rules of natural justice is part of the law in Nigeria and pointed out that there are many situations in which the court, forgetting section 33 of the Constitution will apply the rules of natural justice. He emphasised that section 33 is there to delimit the powers of the legislature, the executive and the judiciary. He then conceded that the Investigating Panel was bound to hear all the parties concerned, i.e. it must comply with the rules of natural justice. He however, pointed out that the student is bound to the University on matriculation by contract and acquires a status as a member of the University community. He contended that one of the built-in authority in university is the Visitor and that the courts have always recognised the authority of the Visitor in matters of discipline. He then submitted that disciplinary measures against the student who has matriculated is an internal matter. Learned counsel was quick to concede that whether or not a student is guilty of a crime is not an internal affair of the university. He however contended quite rightly, that whether he should continue to retain his status or be suspended or dismissed is an internal affair of the university. But in such matters, the obligation to observe the rules of natural justice and the provisions of section 33(1) exists. The Vice-Chancellor cannot just wake up one morning and say to a matriculated student “I dismiss you” without cause. Counsel submitted, and I agree with him, that even where a student has been adjudged by a court “not guilty of the offence charged”, the university, acting by due process, can satisfy itself of the commission of a misconduct which attracts even the severest of the disciplinary measures. The need for the University to establish the guilt of the student before imposing appropriate disciplinary measures cannot be over-emphasised. Learned counsel contended that as a general rule, when dealing with status of a person as a member of a university, it became an internal matter and referred to the case of Thomas v University of Bradford (1985) 3 W.L.R. 248. London Times, November 4, 1985.

Learned counsel rejected Olaniyan’s case as irrelevant and of no assistance in the present proceedings. Learned counsel submitted that the appellants cannot properly bring an action for the enforcement of a right based on section 33 because they are not dealing with fundamental right under section 33 of the Constitution. He pointed out that the remedy provided by the Orders of cetiorari and prohibition have not been taken away and are more appropriate in the circumstances. He submitted that nobody has infringed the right of the appellants under section 33(1). Learned counsel then referred to and cited the following cases:

U.S. V. Stanlay 27 L Ed. 835 at 841 2nd column; Gobala v. The State (1950) A.I.R. 27 at 93 2nd column ; Shamdasani v. Central Bank in India (1950) A.I.R. (S) 59

In reply, learned counsel for appellants, Chief Gani Fawehinmi, referred to section 2(1) Uiversity of Maiduguri Act 1979 and submitted that the status of the appellants in the university is statutory but not contractual. They are members of the university by virtue of section 2(1)(i) of the Act.

In conclusion, he submitted that section 33 of the 1979 Constitution incorporates all the elements of natural justice and cited Legal Practitioners Disciplinary Committee v. Gani Fawehinmi (supra) (1985) 2 N.W.L.R. 300, 305.

Turning to the submissions of counsel set out in their brief of arguments on the various issues raised in the grounds filed by the parties and set out above, Chief Gani Fawehinmin dealing with issue No.1 (that concerning the proper order to make where there is conflict in affidavit evidence), submitted that the Court of Appeal should have exercised its general powers under section 16 of the Court of Appeal Act 1976 and call for oral evidence on its own motion or remitted the case to the High Court for re-hearing in order that the conflicts may be resolved through oral evidence. He then referred to the dictum of Onyeama, J.S.C. in Akinsete v. Akindutire (1966) 1 All N.L.R. 147 at 148 and the case of Government of Ashanti v. Adjuah Korjortee 4 W.A.C.A 83 upholding the judgment of Bannerman, J. He also cited:

(1) the dictum of Sir Udo Udoma, J.S.C. in Chief Uku & 4 Ors. v D.E. Okumagba (1974) 3 S.C. 35 at 64-65

(2) the dictum of Irikefe J.S.C. (as he then was) in Eboh v. Oki (1974) 1 S. C. 179 at 189-190

(3) the dictum of Fatayi-Williams, J.S.C. (as he then was) in Olu Ibukun & Anor. v. Olu Ibukun & Anor. (1974) 2 S. C. 41 at 47-48

(4) the dictum of Fatayi-Williams, J.S.C. (as he then was) in Falobi v. Falobi (1976) 9 & 10 S. C. at 14-15

(5) the dictum of Nnamani, J.S.C. in The State v. Salihu Mohammed Gwonto & 4 Others (1983) 3 S. C. 62 at 108-109

Learned counsel observed that without resolving the conflict, the Court of Appeal also used the facts in the affidavit to found its decision to allow the appeal. Having regard to the complaint and the acceptance in the counter-affidavit filed by the respondent that the Investigation Panel was not a court or police body and that the Investigating Panel was not empowered to try the appellants taken along with the acceptance of the contents of Exhibit A a document exhibited along with the affidavits of the appellants the area of conflict is severely narrowed down and pale into significance to warrant, in my view, an order of retrial. This does not whittle down the necessity for any judge seised of the matter in which affidavit evidence is in serious conflict to revolve the conflict by taking and hearing oral evidence from the parties on the issue.

Learned counsel then submitted that it was wrong of the Court of Appeal to have reversed the decision of the High Court which largely hinged upon the unimpeached findings of fact made by the High Court. He contended that it is not the function of an appellate court to disturb findings of fact made by the court of trial. I agree with learned counsel’s submission only to the extent that the findings were justified by the evidence and all the circumstances of the trial were not perverse and the findings flowed from the evidence the learned trial judge having utilised to advantage the opportunity of seeing and hearing the witnesses testify. Most of the cases decided in the last 20 years in this Court are replete with high judicial pronouncements to this effect. I will refer to only a few of these cases. They are:

Chief Victor Woluchem & Ors. v. Chief simon Gudi & Ors. (1981) 5 S.C. 291

Chief Frank Ebba v. Chief Ogodo & Anor. (1984) 1 S.C. N.L.R.372, 378

George Okafor & Ors. v. Eze. A.E. Idigo III & Ors. (1984) 1 S. C.N.L.R. 481 at 499.

On issue No.3, learned counsel for the appellants submitted that even if the applicants did not specifically ask for a declaration that they be readmitted into the University to continue with their studies with immediate effect, the High Court was right in granting it. He pointed out, and I agree with him, that the High Court has power to grant consequential orders. He then cited in support:

(1) Okupe v. Federal Board of Inland Revenue (1974) 1 All N.L.R.314, 330

(2) Laibru Ltd. v. Building and Civil Engineering Contractors (1962) 1 All N.L.R. 387

(3) Order 34 Rule 1 of the Borno State High Court (Civil Procedure) Rules 1979

On issue No.4, learned counsel submitted that under section 33(1), (4) and (13) only a court of law or a judicial tribunal is competent to hear and determine a criminal charge against the appellants. I agree that neither the Investigating Panel, the Disciplinary Board nor the Vice Chancellor has any competence in law so to do.

Assault is an offence under section 265 of the Penal Code. Stealing or theft is an offence under sections 287 and 288 of the Penal Code. Robbery is an offence under section 298 of the Penal Code. House Trespass is an offence under section 352 of the Penal Code. Arson or mischief by fire is an offence under section 337 of the Penal Code. These are all serious offences, which carry heavy punishment under the Penal Code. Any person found guilty of any of them will have his reputation and name tarnished and stigmatised for life. It is therefore clear why the right to fair hearing within a reasonable time by a court or tribunal is given to any person charged.

It is appropriate at this juncture to refer to the provisions of section 33(1) and (4). They are:

“(1) In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.

(2) Whether a person is charged with a criminal offence he shall, unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a court or tribunal. ”

(2) the dictum of Irikefe J.S.C. (as he then was) in Eboh v. Oki (1974) 1 S.C. 179 at 189-190

(3) the dictum of Fatayi-Williams, J.S.C. (as he then was) in Olu Ibukun & Anor. v. Olu Ibukun & Anor. (1974) 2 S.C. 41 at 47-48

(4) the dictum of Fatayi-Williams, J.S.C. (as he then was) in Falobi v. Falobi (1976) 9 & 10 S.C. at 14-15

(5) the dictum of Nnamani, J .S.C. in The State ve. Salihu Mohammed Gwonto & 4 Others (1983) 3 S.C. 62at 108-109

Learned counsel observed that without resolving the conflict the Court of Appeal also used the facts in the affidavit to found its decision to allow the appeal. Having regard to the complaint and the acceptance in the counter-affidavit filed by the respondent that the Investigation Panel was not a court or police body and that the Investigating Panel was not empowered to try the appellants taken along with the acceptance of the contents of Exhibit A a document exhibited along with the affidavits of the appellants the area of conflict is severely narrowed down and pale into significance to warrant, in my view, an order of retrial. This does not whittle down the necessity for any judge seised of the matter in which affidavit evidence is in serious conflict to revolve the conflict by taking and hearing oral evidence from the parties on the issue.

Learned counsel then submitted that it was wrong of the Court of Appeal to have reversed the decision of the High Court which largely hinged upon the unimpeached findings of fact made by the High Court. He contended that it is not the function of an appellate court to disturb findings of fact made by the court of trial. I agree with learned counsel’s submission only to the extent that the findings were justified by the evidence and all the circumstances of the trial were not perverse and the findings flowed from the evidence the learned trial judge having utilised to advantage the opportunity of seeing and hearing the witnesses testify. Most of the cases decided in the last 20 years in this Court are replete with high judicial pronouncements to this effect. I will refer to only a few of these cases. They are:

Chief Victor Woluchem & Ors. v. Chief simon Gudi & Ors. (1981) 5 S.C. 291

Chief Frank Ebba v. ChiefOgodo & Anor. (1984) 1 S.C. N.L.R. 372,378

George Okafor & Ors. v. Eze. A.E. Idigo III & Ors. (1984) 1 S.C. N.L.R. 481 at 499.

Learned counsel then submitted that the Disciplinary Board was an administrative tribunal and could only exercise the powers exercisable by the Vice-Chancellor under section 17 of the University of Maiduguri Act. Since the actions taken by the Disciplinary Board are in excess of the powers of the Vice-Chancellor, they are unconstitutional. The Disciplinary Board is certainly not a court or tribunal established by law within the contemplation of section 33(1) and (4) of the Constitution. Since it accepted the reports of the Investigating Panel which investigated the offences and apportioned blame to the applicants for offences under the Penal Code, all its actions in that respect are, in my view, null and void. Learned counsel cited and I would refer to

(1) Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All N.L.R. 306

(2) Dr. Sofekun v. Chief Akinyemi (1980) 5-7 S.C.1 at 18-19

It should be observed and noted that students in all our universities and institutions of higher learning are not above the law of the land and where obvious cases of breaches of our criminal and penal laws have taken place, the authorities of the university are not empowered to treat the matter as an internal affair. Both the students and the authorities of the universities owe the nation a duty to observe the laws of the land and avoid injustice to anyone. Without subjecting any criminal allegation against any student to the machinery provided by the state for ascertaining the truth of the allegation, a very painful denial of fundamental right is inflicted on the students howbeit laudable or sympathetic the intention of the authorities might be. Mistakes do occur. An innocent student might in such circumstance suffer undeserved punishment. A guilty student might prefer the less austere climate of the Vice-Chancellor’s Investigating Panel’s room and pronouncement of the Disciplinary Board or Vice-Chancellor but the pronouncement of guilt from the current of unsifted, untested and undistilled mass of evidence which did not pass through well informed professional minds will do more harm than good to the integrity of the student. Ours is not a perfect society but our imperfections can be eradicated by our observance of the rule of law. Our human resources are our greatest asset and unless we use them to advantage, the Nigerian nation will be the loser. We cannot afford to lag behind while other nations march forward and enjoy the full benefit of their developed human resources.

A university student is a priceless asset and as he is on the threshold of useful service to the nation, we cannot afford to destroy him by stigmatising him with offences unless proved guilty before a court.

In Denloye v. Medical and Dental Disciplinary Committee (supra) the Supreme Court held at page 312 that

“In view of all these, we have come to the conclusion that the tribunal was wrong to have proceeded to try offences punishable under the Criminal Code and the proceedings in this respect are null and void.”

Earlier on in the same page, the Court said: “In effect, where the unprofessional conduct of a practitioner amounts to a crime it is a matter for the courts to deal with and once the court has found a practitioner guilty of an offence, if it comes within the type of cases referred to in section 3(1)(b), then the tribunal may proceed to deal with him under the Act.”

The case of Dr. O.G. Sofekun v. Chief N.O.A. Akinyemi and 3 Ors. (1980) 5-7 S.C. 1 cited by learned counsel for the appellants is very relevant to the consideration of the issues in the instant appeal. Therein section 22(2) of the 1963 Constitution of the Federal Republic of Nigeria almost in pari materia with section 33(4) of the Constitution of the Federal Republic 1979 was considered. It does, in my view, provide solid support for the contention of the appellants. The claim before the court in that case was for:

“a declaration that the purported dismissal of the plaintiff as senior consultant (Opthalmology) from the service of the Western State is invalid, illegal, ultra vires, null and void and of no effect.”

Fatayi-Williams C.J.N. (as he then was) delivering the lead judgment concurred in by the other justices, said at page 15

“The argument of Mr Kehinde Sofola, S.A.N., who appeared for the plaintiff/appellant, in support of the grounds of appeal was based on the crucial question-

‘Are the amendments to the Regulations by Western State Legal Notice No. 68 of 1972 valid and constitutional,

In this connection, learned counsel pointed out that the effect of the purported amendment to regulations 41, 44, 45 and 50 of the Regulations is to provide that even where a criminal offence is disclosed, the commission can proceed to investigate the alleged offence committed by one of the States’ public officer without waiting for the court’s decision on the issue of criminal culpability and may even still proceed to disciplinary action in spite of an acquittal by the court. The purported effect of the amendment learned counsel contend, is to usurp the function of the court as laid down in section 22(2) of the Constitution of the Federal Republic of Nigeria 1963 (the applicable) and to deny any public officer accused of a crime of the protection offered by section 22 subsections (4) and (9)”

and at page 19, the learned Chief Justice said:

“The jurisdiction and authority of the courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or State Government under any guise or pre whatsoever. That being the case, the amendment made to the Regulations in 1972, the effect of which is to make it unnecessary to take a public officer in the State’s public service who has been accused of a criminal offence to a “court of law,” and in effect, to dispense with the due process of law is clearly ultra vires the provision of section 22 subsection (2) of the Constitution and is therefore, invalid. So also the trial of the plaintiffs/appellant held thereunder by the Investigating Panel and his consequential dismissal.”

The courts under the 1963 Constitution were not expressly vested with judicial powers.

The position is even stronger under the 1979 Constitution which has by section 6 vested judicial powers expressly in the courts of law. See section 6(1), (2), (3), (4) and (5) of the Constitution of the Federal Republic of Nigeria, 1979.

On issue No.5, learned counsel submitted that nowhere in the judgment of the Court of Appeal was the finding of the learned trial judge that the claim of alibi of the appellants was not properly investigated ever impeached. Learned counsel emphasised the requirement of the law that a defence of alibi ought to be investigated by Investigating Panel. He cited Akile Gachi & Ors v. The State (1965) N.M.L.R. 33; Christian Nwosisi v. The State (1976) 6 S.C. 109; and Yanor & Anor. v. The State (1965) N.M.L.R. 337. This is one of the areas where the affidavit and counter-affidavit evidence are in conflict. In any case, the issue does not acquire any importance having regard to the disclaimer in the counter-affidavit that any person was put on trial despite the terms of reference.

On the issue of likelihood of bias, learned counsel submitted that the fact that the Chairman of the Investigating Panel who was the Deputy Vice-Chancellor and a victim of the rampage raises or leads to a real likelihood of bias in his consideration of the appellant’s case. He maintained that the fact that he was a victim of the rampage was never denied. Learned counsel then cited in support:

(1) Gani Fawehinmi v. Legal Practitioners Disciplinary Committee (1982) 3 N.C.L.R. 719

(2) Salawu Oyelade v. Sanusi Araye & Anor. (1968) N.M.L.R. 41

(3) In Re Dr. M. O. Alakija v. The Medical Disciplinary Committee (1959) IV F.S.C. 38

(4) Obadara & Ors. v. The President, Ibadan West District Council Grade ‘B’ Customary Court, IDDO. (1985) N.M.L.R. 39

This submission is incontestible. The Deputy Vice-Chancellor cannot be a witness and a judge all at the same time. The likelihood of bias is a necessary inference from the assumption of the two positions.

Chief Williams, S.A.N. learned counsel for the respondent, dealt in his brief with the issue of jurisdiction in detail. He opined that the argument that the High Court ought not to have entertained the action is based on the fact that essentially the relationship between the University and every student based on contract though no doubt it is also regulated by the University of Maiduguri Act 1979 No. 18. He submitted that it is part of the terms of the contract (as regulated by statute) that dispute of a domestic nature shall be referred to and determined by the Visitor appointed for the University. Accordingly, submitted he, at common law, the court will hold the students to be bound by their contract and will insist that they take their dispute to the Visitor and not the court. He cited the case of Dunlop v. Selfridges (1955) A.C. adopting the views of Sir Frederick Pollock. He also referred to the Notes by Professor H.W.R. Wade in 85 L.Q.R. 46 capitoned “Judicial Control of Universities” and later in 90 L.Q.R. 157158 quoting Lord Devlin’s Report on the sit-in strike of students at Cambridge University which, inter alia, reads “Contract is the foundation of most domestic or internal systems of discipline. The power to discipline should be inferred from the acceptance of it in the contract of matriculation”. He referred to Wad, Administrative Law 5th Edition pp. 502-503 and Herring v. Templeman (1973) 3 All E.R. 569 at 585. Learned counsel then cited.

(1) Akintemi & Ors. v. Professor Onwumechili and Anor (1985) 1 N. W.L.R. 68

(2) Patel v. University of Bradford Senate (1978) 1 W.L.R. 1488 per Sir Robert Megarry V. C.

(3) University of Lagos v. Dada (1971) 1 U.I. L.R. 344

(4) University of Ibadan v. Asein C.A./1/63/84 delivered 22/5/85

He also referred to the article captioned “keeping peace in the Universities: The Role of the Visitor’s by J. W. Bridge Vol. 86 The Law Quarterly Review pages 531-551.

Learned counsel then submitted that in the light of the above, the High Court ought not to have exercised jurisdiction in this matter and the appellants’ action ought to have been struck out for want of jurisdiction.

Before dealing with the historical origin and role of the Visitor in our universities in general and the University of Maiduguri in particular later on in this judgment, it is well to remember and bear in mind that the offices are creations of the various founding statutes promulgated by the various legislatures and cannot have more powers than those given and set out in the statutes. Learned counsel went on to deal with the conflicts in the evidence provided by affidavits and counter affidavit. Learned counsel conceded that if the sole basis of the decision of the Court of Appeal had been that the trial judge determined the facts in issue on conflicting affidavit evidence alone, the contention of the appellants’ counsel that the Court of Appeal had been that the trial judge determined the facts in issue on conflicting affidavit evidence alone, the contention of the appellants’ counsel that the Court of Appeal ought to have remitted the case to the trial court – High Court – so that necessary oral evidence can be taken to resolve the conflict would have been well founded. Learned counsel then submitted that the Court of Appeal had other grounds on which it based its decision. He contended that the Court of Appeal was right in holding that the High Court was not competent to have made the orders relating to the expulsion of the appellants from the university and directing that the university re-admit them.

He submitted that mandamus or declaratory orders cannot be used to enforce rights based on contract and cited Wade: Administrative Law 5th ed. page 634-636 and the cases of

Regina v. Post Office ex Parte Byrnes (1975) 1 C.R. 221

R. v. B.B.C. Ex Parte Lavelle (1983) 1 W.L.R. 23

A body set up by statute and vested with statutory functions is not amenable to the remedy of mandamus or certiorari in respect of rights and duties under the contract. He submitted that fundamental rights protected under section 33 of the Constitution are limitations of legislative, executive or judicial powers. He then contended that they are rights against the abuse of governmental powers and cannot be invoked in aid of contractual rights or duties.

On the competence of the Disciplinary Investigating Board, learned counsel conceded that the Board does not claim for itself power to try anyone for crime but contended that the members of the Board like every other person are entitled under section 36(1) of the Constitution to “freedom to hold opinion and to receive…… ideas and information without interference”. Learned counsel emphasised that it was that right that the Board exercised when investigating matters assigned to them. They were not trying anyone for crime; he emphasised.

That submission is quite a substantial concession. If they, (the appellants) were not tried where does the appearance of guilt come from That, to my mind, is the big question.

Learned counsel then concluded his submission by stating that:

“Whilst the provisions of section 33(2) of the Constitution may possibly apply to the regulation of the powers of the Vice-Chancellor under section 17 of the Act, those of section 33(1) cannot possibly apply to him. The question of bias is thus irrelevant in the con of the exercise of the statutory powers concerned. There is nothing more calculated to frustrate the smooth administration of the law than to suppose that the provisions of section 33(1) must be applied at every stage of an administrative process. It is enough if, in the entire statutory con, and at the end of the day, it is permissible for a person affected by an administrative order (sic) is (to be) entitled to

‘a fair hearing within a reasonable time by a court or other tribunal.”

In support of his contention, he finally cited the case of Falomo v. Lagos State Public Service Commission (1977) 5 S. C. 51

The submissions of both counsel in this matter, formidable as they are, in the main, revolve round the true construction of

(1) The constitutional provision in section 33(1) and (4) of the Constitution of the Federal Republic of Nigeria (1979); and (2) Section 17 of the University of Maiduguri Act 1979.

The historical origin and powers of the Visitor in a University in England and elsewhere, instructive as they are, can only be of assistance if the historical powers have been incorporated into the University of Maiduguri Act and are not in conflict with the Act and the Constitution. If they are in conflict with the Constitution, their exercise is totally void and of no effect. What are the provisions of subsections (1) and (4) of section 33 of the Constitution

I have referred to them earlier on in this judgment but their repetition here will better focus our attention on the issues being discussed. They read:

“33(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.

(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a court or tribunal. ”

It is also necessary to set out in full the provisions of section 17 of the University of Maiduguri Act. It contains 6 subsections and they read:

“17(1) Subject to the provisions of this subsection, where it appears to the vice-Chancellor that any student of the University has been guilty of misconduct, the Vice-Chancellor may without prejudice to any other disciplinary powers conferred on him by statute or regulations, direct

(a) that the student shall not, during such period as may be specified in the direction participate in such activities of the University, or make use of such activities of the University, as may be so specified; or

(b) that the activities of the student shall, during such period as may be specified in the direction, be restricted in such manners as may be so specified; or

(c) that the student be rusticated for such period as may be specified in the direction; or

(d) that the student be expelled from the University.

(2) Where a direction is given under subsection (1)( c) or within the prescribed period and in the prescribed manner, appeal from the direction to the council, and where such an appeal is brought, the council shall after causing such inquiry to be made in the matter as the council consider just, either confirm or set aside the direction or modify it in such a manner as the council thinks fit.

(3) The fact that an appeal from a direction is brought in pursuance of the last foregoing subsection shall not affect the question of the direction while the appeal is pending.

(4) The Vice-Chancellor may delegate his powers under this section to a disciplinary board consisting of such members of the University as he may nominate.

(5) Nothing in this section shall be construed as preventing the restriction or termination of a student’s activities at the University otherwise than on the ground of misconduct.

(6) It is hereby declared that a direction under subsection (1)(a) above may be combined with a direction under subsection (1)(b) above. ”

Misconduct under this section has not been defined in the act but misconduct for removal by council of a member of academic or administrative staff has been classified to include;

“(1) Conviction for any offence which the council considers to be such as to render the person concerned unfit for the discharge of the functions of his office; and

(2) Conduct of a scandalous or other disgraceful nature which the council considers to be such as to render the person concerned unfit to continue to hold his office.”

See section 15(1), (2) and (3) of the University of Maiduguri Act. It does appear to me that misconduct for which a student can be expelled by the Vice-Chancellor must necessarily include the two classes of misconduct. The specific provision for conviction of any offence is a recognition and an expression of the intention of the legislature that an offence must be prosecuted in the courts before any pronouncement of guilt as has been definitely laid down by this court in Denloye’s case (supra).

The dictionaries have not been of much assistance in defining and classifying mis-conduct in the con of our law. The Pocket Oxford Dictionary 6th Edition edited by Sykes defines misconduct simply as “improper conduct especially adultery”. Webster’s New Twentieth Century Dictionary Unabridge defines misconduct “improper behaviour; specifically adultery and fornication”. There is however no doubt that in the con in which the term is used in section 17 of the Act, the complaints, to wit arson, wilful destruction to properties, looting and assault, made against the appellants fall within the definition.

The next question is whether the fundamental rights of the appellants have been violated by their expulsion without trial and conviction in a court of tribunal from the university and whether the fundamental rights violated come within the provisions of section 33(1) and (4) of the Constitution. It appears to me that the complaint of the appellants is that they were found guilty of criminal offences enumerated above without a trial by the Disciplinary Board to whom the Vice-Chancellor delegated his powers and on that finding they were expelled from the university.

It is clear from Exhibit A that the Disciplinary Board into which the Senate at its meeting on the 28-29 March, 1983 was constituted did not investigate the matter or conduct any inquiry of its own. The Board merely considered the report of the Investigating Panel and proceeded to advise the Vice-Chancellor to take appropriate actions. The question that readily comes to mind at this junction is:

What were the powers delegated to the Disciplinary Board The provisions of section 17(1)(a), (b), (c) and (d) are clear and unambiguous. The Board has, like the Vice-Chancellor, to satisfy itself that the appellants were guilty of the offences charged as misconduct before proceeding to impose the punishment. There is under our law no sliding scale of elements of satisfaction as to the guilt of a person of an offence. The appearance of guilt is not a delusory appearance of guilt. The appearance of guilt which can satisfy this section is measured by the quantum of proof as laid down by law. It is the reason that guilt in criminal matters is left for the ascertainment of courts of law or other tribunals before it is accepted and acted upon by Administrative Tribunals. See Denloye’s case. Basically, the right entrenched in section 33(1) is a right to:

(a) fair hearing

(b) within a reasonable time

(c) by a court or other tribunal established by law; and

(d) constituted in such manner as to secure its independence and impartiality.

and in subsection (4) the right entrenched is a right, if charged with a criminal offence (unless the charge is withdrawn), to

(a) fair hearing

(b) within a reasonable time

(c) by a court of tribunal

This subsection must be seen as laying emphasis on the right of those charged with criminal offences to trial by a court or tribunal.

Learned counsel for the respondent has submitted that the protection afforded by this section only avails against the state to limit the powers of the judiciary the legislature and the executive and not to provide protection against private conduct. In support, he cited the case of P.D. Shamdasani v. The Central Bank of India Ltd. A.I.R. (39) 1952 Supreme Court 59. In that case, Patanjali Sastri, C.J. clearly pointed out that the language of the constitution deserved such construction when he said at p. 59 2nd column

“The language and structure of Art 19 and its setting clearly show that the article was intended to protect those freedoms against state action other than in the legitimate exercise of its power to regulate private rights in the public interest. Violation of rights of property by individual is not within the purview of the article.”

The attitude of this Court to the construction of our Constitution has been stated by this Court in Nafiu Rabiu v. The State (1981) 2 N.C.L.R. 293; The Attorney-General of Bendel State v. The Attorney-General of the Federation and Others (1983) 3 N.C.L.R. 1; Senator Adesanya v. The President of the Federal Republic & Another (1981) 5 S.C. 112. It is that the provisions of the Constitution are to be given liberal construction so as to best carry out the intention of the founding fathers. Their construction is not to be guided by the construction of other constitutions in other common law jurisdictions unless similar provisions in pari materia were in question. This Court will not give to any provision of the Constitution a construction, which will defeat its obvious intention.

It therefore appears to me that the provisions of section 33(1) and (4) of the Constitution have to be construed as they stand in our statute book and in the con of or their objective which is to ensure that justice is available to all and sundry in our courts or other tribunals.

I cannot on close examination of the of the two subsections, discover any limitation of the protection granted to protection of the freedom from unfair hearing against the action of the state unless every person or authority performing quasi-judicial function is regarded as the State. Private prosecutions and state prosecutions of criminal cases are not unknown under our law. Similarly, institution of civil actions are not confined to private persons. Governments and other authorities are known to file civil claims in our courts. Indeed, the judicial powers vested in the courts by section 6 of the Constitution has been defined in subsection 6(b) as extending to all matters between persons, or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto for the determination of any questions as to the civil rights and obligations of that person.

Judicial powers are not vested in private persons, administrative tribunals or other authorities. By the purported exercise of judicial powers, the person injured is denied the right to fair hearing under section 33(1) and (4) by the action of those persons or authorities.

If a person is accused of committing or having committed a criminal offence, his civil obligation not to commit the offence is called into question. Similarly, his civil right to freedom from arrest, prosecution and punishment is called into question.

I agree that “court or other tribunal” can be guilty of a denial of the right to fair hearing but persons and authorities who assume jurisdiction where they have none are equally guilty. By the emphasis on fair hearing in the provisions of subsections (1) and (4) of section 33 of the Constitution, it is my view that the necessity for compliance with all the rules of natural justice, audi alteram partem and nemo judex in causa sua, i.e. the twin rules or pillars of natural justice, have been adequately indicated, emphasised and expressly stated. Fair hearing is therefore not only a common law requirement in Nigeria but also a statutory and a constitutional requirement. The rules of natural justice must be observed in any adjudication process by any court or tribunal established by law. When the Vice-Chancellor assumed the disciplinary powers under section 17 of the Act, he became not a court but a tribunal established by law acting in a quasi-judicial capacity. See Glynn v. Keele University and Another (1971) 2 All E.R. 89 Ch D. But he was not independent and not impartial. When he delegated his disciplinary powers to the Disciplinary Board, the Disciplinary Board became a tribunal bound to observe all the rules of natural justice. But the Board was not independent and some of the members not impartial. It is my opinion that when they undertook to investigate the crimes, identify those involved and who participated and their roles and apportion blame and recommend suitable disciplinary measures to be taken against them, they were carrying out judicial functions. They were to carry out a trial of the appellants for crimes committed. That was not a matter of internal discipline. The crimes were in respect of the properties of the universities. They were crimes against State.

Having assumed judicial functions, they were bound to pass the qualification test to assume the judicial functions and were bound to act judicially and comply with the constitutional requirements of fair hearing. See Legal practitioners Disciplinary Board v. Gani Fawehinmi (supra).

The validity of the University of Maiduguri Act 1979 has not been called into question and as such subsection (2) of section 33 of the Constitution affords no defence to the respondents. It should be emphasised that the provisions of the subsection were without prejudice to the provisions of subsection (1).

It may, at this juncture, be useful to direct our minds to the provisions of subsection (5) of section 33 which reads:

“Every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty;

Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon such person the burden of proving particular facts.”

The question “where is the person charged to be proved guilty” naturally follows from that constitutional presumption. To this question, subsection (4) of section 33 supplies the answer. It is that the person is to be proved guilty before a court or tribunal. The case of Dr. O.E. Sofekun v. N.O.A. Akinyemi and Others (supra) fully supports my view. I pause to observe that the decision in that case was given by the Supreme Court sitting as a full court or court of 7 Justices. It is therefore my firm view that the fundamental right of the appellants to fair hearing within a reasonable time by a court has been violated by their being punished for criminal offences without a preceding trial and conviction by a court. This view also finds support in R. and R. v. St. John’s College, Cambridge (1693) 4 Mod 233 K.B. In that case, the court said: “But where the law of the land is disobeyed, this court will take notice thereof notwithstanding the Visitor”.

It is therefore clear that offences against the laws of the land fall outside the jurisdiction of the Visitor and the Vice-Chancellor. See also Casson and Another v. University of Aston in Birmingham (1983) 1 All E.R. 88. See also the article titled The Exclusive Jurisdiction of the University Visitor by Peter M. Smith Oct. 1981 Law Quarterly Review Vol. 97 pages 610-647. I therefore hold that neither the Vice-Chancellor nor the Disciplinary Board nor the Investigating Panel has any competence, power or jurisdiction over the complaints against the appellants. Having disposed of the issue of the nature of the right violated, I will now proceed to deal with the competence of the High Court to entertain the claim. Much has been said in counsel’s argument about the exclusive jurisdiction of the Visitor and the classification of the action of the Chancellor as a matter of internal discipline, a domestic matter within the competence of the domestic forum. Very learned arguments were addressed to this Court by learned counsel on both sides and before bringing this judgment to a close it is apt that a statement on the current opinion on the limit of the Visitor’s exclusive jurisdiction relevant to this case be made.

Almost without exception, the Visitors to all the Federal Universities in this country including the University of Maiduguri are named in the enabling Acts. Indeed, it should be noted that all the universities be they state-owned or Federal Government owned, are creatures of statutes and whatever common law powers they have will depend to the extent to which the particular common law is part of the general law of the land.

The article of Peter M. Smith on the Exclusive Jurisdiction of the University Visitor is very instructive on the issue. It is clear from the authorities that over the years the University Visitor lacked jurisdiction and indeed never exercised jurisdiction over offences against the laws of the realm (land). There have been numerous judicial pronouncements of eminent judges to that effect. See R. v. Dr. Bland (1740) 7 Mod 355, 356; R. I R. v. St. John’s College Cambridge (1693) 4 Mod 233.

He has no jurisdiction in any matter governed by the common law, e.g. contract. See R. v. Windham (1776) 1 Cow p. 377, 378. Thomson v. The University of London (1864) 33 L.J. Ch 625, 634; Casson & Another v. University of Aston in Birmingham (1983) 1 All E.R. 88; 91, 92. Thomas v. University of Bradford (1985) 3 W.L.R. 248.

Except under an express power, a Visitor cannot be judge in his own cause, R. v. Bishop of Ely (1788) 2 Term Rep 290; Attorney-General v. Middleton (1751) 2 Yes Sen 327 at 329; R. v. Hertford College (1878) 3 Q.E.D. 693 at 703 CA. See Vol. 5 Halsbury’s Laws of England (4th Edition) paragraphs 872-884: The tribunal of the Visitor is forum domesticum its jurisdictin being derived from the founder’s right to determine matters concerning his own creation. See Green v. Rutherforth (1750) 1 Ves Sen 462 at 472. The maxim is cujus est dare, ejus est dispenere, i.e. He who gives something may also direct how it is to be used. The University is by law entitled to own properties. See section 8(1) of the University of Maiduguri Act, 1979.

The complaint against the appellants is basically and essentially an allegation of destruction of university property. These are properties in the charge of the Vice-Chancellor and other officers of the University. Having regard to that fact and the serious nature of the offences, I would say that the Vice-Chancellor, Deputy Vice-Chancellor, the Registrar, Deputy Registrar and other officers of the University are vital witnesses and cannot be judges in their own cause34

The Head of State is the Visitor of the University of Maiduguri. See section 13(1) of the University of Maiduguri Act. Beside duty to conduct a visitation or direct the conduct of a visitation in the University at least once every 5 years, the Act confers no other specific function on the Visitor. His jurisdiction in matters of discipline has been vested in the Federal Executive Council, now Council of Ministers, Council of the University, Vice-Chancellor and Disciplinary Boards. See sections 14, 15, 16 and 17 of the University of Maiduguri Act.

The trial of erring students for criminal offences or breaches of the criminal code and penal code Laws are not within the jurisdiction conferred. Accordingly the purported investigation by the Investigating Panel and Disciplinary Board and the punishment meted out to the appellants cannot stand and are hereby declared a nullity.

I would, in conclusion, repeat what I said in Dr. Sofekun’s case (supra) at page 23 to wit:

“It is in the interest of the Government and every individual in this country that the guilt of crime should not be tagged on to any individual without a proper trial in courts of law known as such under the Constitution of the Federal Republic of Nigeria.”.

The competence of the High Court to entertain the claims has constitutional basis in section 42 of the 1979 Constitution. That section reads:

“Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that State for redress.”

It cannot be disputed that this section confers jurisdiction on the High Court of Borno State to entertain appellants’ complaints of violation of their fundamental right under section 33(1) and (4) of the Constitution and grant redress for such violation. I will allow the appeal and it is hereby allowed. The decision of the Court of Appeal is hereby set aside and in its place the decision of the trial court in respect of the four declarations prayed for are hereby restored.

For the avoidance of doubt, it is hereby declared:

(1) that the expulsion of each of the appellants with effect from 30th March, 1983 from the University of Maiduguri on the ground that they were guilty of arson, wilful damage, looting and assault which amount to criminal offences under the Criminal Code or Northern Nigerial Penal Code without trial and conviction by a court or tribunal is a violation of his fundamental right under section 33(1) and (4) of the Constitution of the Federal Republic of Nigeria 1979;

(2) that the expulsion of each of the appellants from the University of Maiduguri based on the said violation of the fundamental right of each of the appellants under section 33(1) and (4) of the Constitution of the Federal Republic of Nigeria 1979 is null and void and of no effect; and

(3) that each of the appellants is entitled to the fundamental right of fair hearing entrenched in section 33(1) and (4) of the Federal Republic of Nigeria Constitution 1979 and cannot be deprived of the said right by the respondent.

The appellants are entitled to costs in this appeal which is fixed at N300.00 in this Court and N200 in the Court of Appeal.

KAYODE ESO, J.S.C. – The facts of this case have been well stated in the judgment of the learned President of the Court of Appeal, Mamman Nasir P., and also well recapitulated in the lead judgment of my learned brother, Obaseki J.S.C. a preview of which I have had, and with which I fully agree. However, I will state some of the facts in so far as they are material to this concurring judgment.

On the 2nd of February 1983, a student uprising, which became very violent, took place in the University Campus in Maiduguri. About 500 of the 4,000 students took part in the uprising. It was so violent that the Senate of the University ordered a closure of the University and sent all the students home.

Following this disturbance, the Vice-Chancellor, acting with the approval of the Senate, set up 5-man-panel to investigate different aspects of the uprising. The Panel which is material to this appeal was the Disciplinary Investigation Board which was giving the following terms of reference

“(a) To investigate the remote and immediate causes of the recent grave student disturbances on the night of Wednesday the 2nd of February, 1983 in the University campus.

(b) To identify the principal organisers and perpetrators of the disturbances and in particular to investigate the activities of the executive members of the students union before during and after the disturbances.

(c) To identify all those who in any way at all participated in the disturbances.

(d) To determine the role of persons or organizations inside or outside the University of Maiduguri who are not members of the student body of the University of Maiduguri in influencing, planning, organising or executing the disturbance and what factors might motivate such interest.

(e) To assess and report on the extent of the damages inflicted upon public and private property and to give competent costing of such damages and losses using the services of appropriate appointed University professional (sic).

(f) To examine the performance and effectiveness of the University Security Information and communication system in anticipating, monitoring and apprehending the disturbances as well as reducing dangers to those involved and minimising the damages caused. (g) To comment on the role of law enforcement agencies in controlling the disturbances.

(h) To apportion blame or give credit, as the case may be, to all individuals concerned and in the former case, to recommend suitable disciplinary measures to be taken against the culprits.

(i) To recommend measures to be taken by the University to forestall any such disturbances and to make such other recommendations as the committee may consider fit.”

At this stage, I would like to refer to s.17 of the University of Maiduguri Act. 1979, No. 83 which provides-

“17 (1) Subject to the provisions of this section, where it appears to the Vice-Chancellor that any student of the University has been guilty of misconduct, the Vice-Chancellor may, without prejudice to any other disciplinary powers conferred on him by statutes or regulations, direct-

(a) that the student shall not, during such period as may be specified in the direction, participate in such activities of the University, or make use of such facilities of the University, as may be so specified; or

(b) that the activities of the student shall during such period as may be specified in the direction, be restricted in such manner as may be so specified; or

(c) that the student be rusticated for such period as may be specified in the direction; or

(d) that the student be expelled from the University.

2. Where a direction is given under subsection (1)(c) or (d) above in respect of any student, the student may, within the prescribed period and in the prescribed manner, appeal from the direction to the council and where such an appeal is brought, the council shall, after causing such inquiry to be made in the matter as the council considers just, either confirm or set aside the direction or modify it in such manner as the council thinks fit.
3. The fact that an appeal from a direction is brought in pursuance of the last foregoing subsection shall not affect the question of the direction while the appeal is pending.
4. The Vice-Chancellor may delegate his powers under this section to a disciplinary board consisting of such members of the University as he may nominate.
5. Nothing in this section shall be construed as preventing the restriction or termination of a student’s activities at the University otherwise than on the ground of misconduct.

No doubt, it is within the purview of the Vice-Chancellor to be satisfied that a “student of the University has been guilty of misconduct.” And under the ordinary Administrative Law for it to appear to the Vice-Chancellor that the student is so guilty, is left to the Vice-Chancellor’s own assessment and there would be no limitation as to the material upon which he could base such judgment. It is to this extent that the reasoning of Viscount Radcliffe in Adegbenro v. Akintola 1963 A. C. 614 would be relevant for when in construing the words “it appears to him” in section 33(10) of the Western Nigerian (Nigeria Constitution) Order in Council, 1960 (S.I. 1960 No. 1652) Sche. IV) the Law Lord said in the Privy Council

“When one turns to s.33 itself, the same kind of phrase “appears to him likely to command the support of the majority of the members of the House…” “appears to him that the Premier no longer commands the support of a majority of the members” with regard to the Governor’s power of removal and yet no one has suggested in the course of argument that a Governor exercising the power of selection is under any legal restriction as to the persons he may consult or the material to which he may turn in aid of his decision”

How this has been modified by the Constitution of the Federal Republic 1979, hereinafter referred to as the Constitution, would be discussed later.

However, with the Vice-Chancellor having such full liberty to form his own opinion that, a student has been guilty of misconduct under the Act, it was proper for him to have set up the Disciplinary Investigation Board with the terms of reference aforesaid. Even without the influence of the Constitution, what is of importance here, is, whether or not, as in this case, once the terms of reference are made public and the manner by which the Vice-Chancellor became satisfied are known, the discretionary powers would or would not be reviewable by the Court. For, it is no longer a case of a person upon whom the discretion is conferred making a blunt, but authoritative statement, that he is satisfied. It seems to me to be a case wherein the data upon which that person has come to his conclusion would have to be examined objectively, according to the rules of natural justice, and no longer left to his subjectivity. Lord Denning. M.R., put it admirably in Education Secretary v. Tameside B. C. (C.A.) (1977) A. C. 1014 when he said

‘The governing words which we have to consider here are, first, “If the Secretary of State is satisfied … So much depends on the interpretation of those words that I must say something upon them.

So far as “satisfied” is concerned, it is suggested – and was suggested by the Chief officers of the local authority… that once the Secretary of State said that he was “satisfied” his decision could not be challenged in the courts unless it was shown to have been made in bad faith: We were referred by Mr. Bingham to Liverside v. Anderson (1942) A. C. 206, where Lord Atkin drew attention to cases where the Defence Regulations required the Secretary of State to be “satisfied” of something or other. Lord Atkin said, at p.233. “In all these cases it is plain that unlimited discretion is given to the Secretary of State, assuming as everyone does that he acts in good faith’ to which I would add a similar passage by Somervell L.J. in re City of Plymouth (City Centre) Declaration Order 1946. Robinson v. Minister of Town and Country Planning (1947) K. B. 702, 721. Those statements were made, however in relation to regulations arising in war time or immediately after the war when