Nnamdi Azikiwe University & Ors V. Casmir Nwafor (1998)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
In the Federal High Court of Nigeria, in Enugu Judicial Division sitting in Enugu, the applicant applied ex parte for and obtained leave to enforce his fundamental rights against the appellants on 30th day or January, 1995. Consequent upon the order granting respondent leave to enforce his fundamental rights, the respondent filed a motion on notice, statement or grounds of his application supported by an affidavit to which were attached Exhibits A. B, C, D and E. Thereafter the fourth appellant deposed to, on behalf of all the appellants, a counter-affidavit in opposition to the respondent’s affidavit. The learned trial Judge. Kassim, J., took argument of the respective counsel and on 3rd August 1995 in a reserved and considered judgment acceded to the respondent’s reliefs. The suspension order clamped on respondent, suspending him from classes, was set aside and he was reinstated to pursue his academic work in the Faculty of Law of the Nnamdi Azikiwe University.
The respondents to the application in the trial court were thereby aggrieved. And thoroughly dissatisfied with the judgment, they appealed to this court on 7 grounds of appeal.
Notwithstanding the respondent’s returning to the University, he was not wholly happy with the judgment. He therefore sought and obtained extension of time within which to appeal against the decision of the trial court that the respondent failed to prove that 5th-8th appellants sat and served on the examination committee that tried the respondent on allegation of examination malpractices. A proper finding would have enabled the court to grant the respondent’s application
on the ground that the committee was not constituted in such a manner as to ensure its impartiality. The appellant after obtaining the extension of time to appeal filed a notice of appeal containing a ground of appeal carrying five particulars.
In compliance with the practice and procedure of this court, briefs of argument were filed and exchanged in respect of the appeal. The appellants, in their brief or argument, framed three issues for determination in this appeal.
The appellants’ three formulations read as follows –
“(a) Whether the learned trial Judge misconceived the case put before him by the respondent.
(b) Whether the learned trial Judge made out a case different from that presented by the parties.
(c) Whether the learned trial Judge correctly applied the principle that examination malpractice being a crime should be tried by a court of law or tribunal.”
On the other hand, the respondent formulated four issues from the appellants’ seven grounds of appeal. The issues identified as calling for determination in the respondent’s brief read as follows-
“(i) Whether the learned trial Judge misconceived the case put before him by the respondent.
(ii) Whether there is sufficient evidence before the learned trial Judge to justify his findings and conclusions.
(iii) Whether the learned trial Judge made out a case different from that presented by the parties.
(iv) Whether the learned trial Judge correctly applied the principles that examination malpractice being a crime should be tried by a court of law or tribunal.”
Scanning of the two formulations discloses that they are variant of each other except respondent’s issue iii. The said issue iii deals with the appellants’ ground 7 which is the omnibus ground. The appellants, in their own formulation of issues, failed to frame any issue to encompass the omnibus ground. It, therefore, follows that the appellants have by their conduct abandoned that ground of appeal. I do not think that it is competent of the respondent to now turn round in his own formulation to identify an issue based on the abandoned ground of appeal. The appeal belongs to the appellants and not to the respondent who cannot surreptitiously drive them from the driving seat. Ground seven (7) of the grounds of appeal is dead and cannot be revived. It is struck out as well as issue iii in the respondent’s brief which would be left without a foundation to sustain it, with the striking out of ground 7 of the grounds of appeal. It stands to common sense that respondent should not respond to an issue that is abandoned or not advanced.
In respect of the cross-appeal, in accordance with practice and procedure of this court, briefs of argument were filed and exchanged. In the respective briefs, issue for determination in the cross appeal was framed. The only issue identified as calling for determination in the cross-appellants’ brief reads thus-
Whether the learned trial Judge was right to hold that the cross appellant did not prove that the 5th and 8th appellants sat in the committee that tried and found him guilty of examination malpractice.”
Although, the cross-respondents did not expressly adopt cross-appellant’s distillation of issue, his formulation nevertheless isipsissima verba with the cross-respondents’ only issue for determination. It is for that reasons unnecessary to recite the cross-respondent’s issue.
At the hearing of both the appeal and the cross-appeal, learned counsel for the respective parties adopted their respective briefs of argument. In this connection, learned counsel for appellants, on behalf of appellants, adopted and placed reliance on the appellants’ brief, appellants’ reply and their cross-respondents’ briefs of argument. He urged upon the court to allow the appeal and dismiss the cross appeal.
On the other hand, learned counsel for respondent adopted and relied on the respondent’s as well as cross-appellant’s briefs of argument. He in turn urged the court to dismiss the appeal and allow the cross-appeal. It is apt, at this stage, to state the facts of the case, albeit, briefly. The respondent herein successfully underwent a course of studies in the Faculty of Law of Nnamdi Azikiwe University, Awka. He was required, as pan of the programme leading to award of a degree of Bachelor of Laws, to sit for and pass inter alia a course in Psychology 112, on 13th November, 1992. Whilst sitting for the said examination, the respondent was accused along with the student sitting next to him of cheating. The 5th, 6th, 7th and 8th appellants were alleged to be part of the invigilators who accused the respondent of examination malpractice.
Consequent upon the allegation, the university authorities including first, second and third appellants set up an examination malpractice committee to investigate the accusation levelled against the respondent. The examination malpractice committee according to respondent had amongst its members fifth, sixth, seventh and eighth appellants. It is part of the respondent’s case that these appellants acted as both the prosecutors and as part of the examination malpractice committee. On the other hand, it is the case of the appellants that the gentlemen were mere witnesses and not members of the committee to investigate the allegation against the respondent when the committee eventually concluded its assignment, the fourth appellant in his capacity as the secretary to the council wrote to inform the respondent, that the third appellant, which is the senate of the university, acting on the Examination Malpractice Committee recommendation, found him guilty of the charge of cheating made against him. The institution’s authorities imposed certain sanctions such as warning, apology to be tendered to one of the lecturers and the resit of the examination in psychology.
The respondent was unhappy with the decision of the senate and being dissatisfied, he appealed to the University Council through the Registrar as directed in the students’ Hand Book of the university. The fourth appellant rather than sending the respondent’s appeal to the University Council,he sent it to the senate from which he was appealing. The senate then sent the matter back to its Examination Malpractice Committee which invited the respondent to appear before it on 14th June, 1994 for hearing of his appeal. The respondent appeared on protest at the venue where he informed the committee that it had no right to sit on appeal over its own decision. Notwithstanding the respondent’s protest, the committee went on with its proceedings and came out with a new set of disciplinary measures. Acting on the new regime of punishments, the senate suspended him from the university, a severer punishment than the earlier ones which were merely warning, tendering of apology as well as repeating the examination in Psychology 112.
It was at this point in time that the respondent went to court to seek leave to enforce his fundamental rights against the appellants. The Federal High Court, in granting the leave to enforce the respondent’s fundamental rights, returned the parties to status quo ante bellum. Meanwhile the respondent completed his course of studies and graduated from the faculty. He is presently in the Nigerian Law School studying for his enrollment as a member or the Supreme Court of Nigeria.
In issue 1, learned counsel for appellants contended that respondent did not question the decision or the examination committee on the ground of insufficiency of evidence either in his motion, statement in support of the application or in his affidavit in support. Learned counsel contended further that respondent did not question the decision of the senate on the ground of bias. It was also contended that it was not part of the case of respondent that the recommendations of the Examination Committee or the first appellant as contained in Exhibit D of the counter-affidavit were against the weight of evidence as found by the learned trial Judge.
I agree with the submission of the learned counsel for the appellants that it is a cardinal principle of law that a court is incompetent to re-write a plaintiff’s statement of claim. See Olabanji v. Ajiboye (1992) 1 NWLR (Pt.218) 473. 485; Adeosun v. Adisa (1986) 5 NWLR (Pt.40) 225; Ajayi v. Texaco Nigeria Limited (1987) 3 NWLR (Pt.62) 577 and Akpapulla & Ors. v. Nzeka II (1983) 7 S.C. 1; (1983) 2 SCNLR 1 which were cited in the appellants’ brief. However, in order to render meaningful the provisions of the Constitution dealing with fundamental rights, the court should not be tied to the apron strings of the principle of practice and procedure governing trial of normal civil cases such as parties being bound by their pleadings as enunciated in the cases of Emegokwue v. Okadigbo (1973) 4 S.C. 113 and Olabanji v. Ajiboye (supra). But it seems to me that in the matter of enforcement of the fundamental rights courts are less slavish to the rules of court rather they use them as hand maiden to do substantial justice. The reason is not unconnected with the fact that the issue is fundamental as it involves life and liberty of a citizen. It seems to me that it is the spirit of encouraging the enforcement or human right that informed the relaxation of observance of the rules of practice and procedure by the Supreme Court in the case of Dr. O.G. Sofekun v. N.O.A. Akinyeni & Ors. (1980) 5-7 S.C. 1 at 20-21 and (1980) F.N.R. 184, 194 where Fatayi Williams CJN said –
“There is one other point with which I would like to deal. Learned counsel for the defendants/respondents took the point that the constitutional issue now being raised by the plaintiff appellant was not pleaded by him. This is not so. Not only did the plaintiff/appellant can rend that the action of the commission was ultra vires, the defendants/respondents, for their part, pleaded the constitutionally of this same action in paragraph 6(iii) of their statement of defence. In any case, I take the view that, because it is so fundamental to the life, liberty and well-being of the individual, it should be possible for any person who complains about an alleged infringement of any of his fundamental rights as entrenched in our Constitution) to canvass the issue of such infringement at any stage of any court proceedings, whether in the trial court or on appeal.” (Italics mine)A strict adherence to legality may result in whiling down the substance of the Fundamental rights. The respondent’s learned counsel was under a misconception when he argued that in an action commenced by motions, affidavits take the place of pleadings and it is in the affidavits that issues are joined in the trial. He supported his submission with the case of B. V. Magnusson v. Koiki & Ors. (1993) 9 NWLR (Pt.317) 287; (1993) 12 SCNJ 114, 132-133. His erroneous submission seems to have lost sight of the provisions of the Fundamental Rights (Enforcement Procedure) Rules, Cap. 62 of the Laws of the Federation of Nigeria 1990. The provisions of these Rules take cases of fundamental rights outside the usual application made to deal with interlocutory applications preparatory to the hearing in other suits or matters. Applicant seeking a relief under Fundamental Rights (Enforcement Procedure) Rules is required to set out the relief or order sought and grounds on which they are sought to be made on the statement supported by affidavit setting forth the facts on which the applicant seek to rely to establish his case. Order 1 rule 2(3) and Order 2 rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules, Cap. 62 provides as follows:-
“(3) An application for such leave must be made exparte to the appropriate court and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought and by an affidavit verifying the facts relied on; 2(1) Copies of the statement in support of the application for leave under Order I rule 2(3) must be served with the notice of motion or summons under rule 1(3) of Order 2 and, subject to paragraph (2) of this rule, no grounds shall be relied upon or any relief sought at the hearing of the motion or summons except the grounds and relief set out ill the said statement. “(Italics mine)Notwithstanding these clear and peremptory directives that motion or summons must be accompanied by statement, containing the relief sought and the grounds upon which it is sought, learned counsel for respondent maintained that the statement under the rules cannot by any stretch of imagination or logic be stretched to be a medium in which a party is required to make a case. This assertion is gravely erroneous but it is an honest mistake made by a struggling counsel without verse knowledge of the labrinth of the Fundamental Rights (Enforcement Procedure) Rules (supra). That is why one is of the opinion that insistence on legalism may result in good cases being lost on technical sophism rather than doing substantial justice. The passage recited from Sofekun’s case (supra) seems liberal and would encourage the courts to do substantial justice and it is preferred. Incidentally both the Rules and lead judgment were made by the same person, Fatayi-Williams, CJN. The Fundamental Rights (Enforcement Procedure) Rules were made in 1979 by the Honourable Mr. Justice Atanda Fatayi-Williams on his becoming the Chief Justice of Nigeria. The judgment in Sofekun’s case was not only unanimous it was that of a strong or powerful full court. That decision must have been informed by the hind sight and could form the basis of a new Order I rule 2(3) and Order 2 rule 2(1). Not only am I bound by the decision of the Supreme Court I am impelled by the strong composition of the court to follow it. In the result, I am of the firm view that a court, be it trial or appellate, should allow anyone who alleged that there is infringement of his fundamental right to canvass it without inhibition based on inadequacy or insufficiency of pleadings or ground of appeal.
The learned trial Judge was in order when he considered the evidence adduced by the respondent proving a denial of his fundamental right to fair hearing. The finding of the trial court to the effect that the petition of the respondent marked Exhibit B was sent to the examination committee, the same body which tried the applicant for examination malpractice for consideration and the senate merely assented to the committee’s recommendations on the petition without more is not reproachable. The learned trial Judge rightly, in my view, drew an inference of likelihood of bias from the conduct of the committee which sat on appeal from its own decision. The senate of the university trivialised the matter by delegating its powers to hear appeal to another body particularly, the trial committee. It has by its singular act reduced the whole process from sublime to ridiculous. It shows that it is incapable of exercising the power donated to that august body. The cases of Akintemi and Ors. v. Onwumechili (1985) 1 NWLR (Pt. 1) 68 at 81 and University of Calabar v. Esiaga (1997) 4 NWLR (Pt.502) 719, 742 are not applicable to the circumstance of this case.
The resolution of issue 1 seems to have adequately covered argument contained in issue 2 which is also pegged on sufficiency of pleadings or otherwise. Issues 1 and 2 are answered in the negative. The grounds of appeal related to the two issues fail and are dismissed.
On issue 3 which concerns criminality of the nature of examination malpractice and how to treat it, learned counsel for appellants in the appellants’ brief prefaced his submission with excerpts from the judgment of the learned trial Judge. He thereafter read section 392 of the Criminal Procedure Code and submitted that the provisions of the enactment recited had nothing to do with examination malpractice. Learned counsel further contended that learned trial Judge also relied on the provisions of Special Tribunal (Miscellaneous Offences) Act. Cap. 410 of the Laws or the Federation of Nigeria 1990. Counsel then summarised the facts of the case and submitted that the case does not come within the contemplation or section 3(16) of the enactment. But before the application of the facts to the law certain aspect of learned counsel for appellants’ submission deserve comments.
The learned trial Judge in his judgment found as follows-
“There is no doubt the allegation of examination malpractice is a crime – see section 392 of the Criminal Procedure Code of Anambra State and Decree No. 20 of 1984. That being so I am of the view that the applicant should have been tried by the regular court of law for examination malpractice of cheating instead of his being tried by the examination committee of the 1st respondent. Consequently, I declare as null and void, the findings and recommendations of the Examination Committee that tried the applicant for an alleged examination malpractice in connection with Psychology 112, and the decision based thereon.”
It seems to me that there have been lapsus calami in respect of the enactment referred to in the judgment. What the learned trial Judge probably had in mind is section 192 of the Criminal Code and not Criminal Procedure Code since the provisions of the former legislation, and not those of the latter, create offences.
Section, 392 of the Criminal Code. Cap. 36 of the Laws of Anambra State of Nigeria, 1986 when read together with section 385 of the same enactment creates the offence of examination malpractice by cheating. The two sections provide thus –
“392. Any person who willfully procures or attempts to procure for himself or any person any registration, licence, or certificate under any Law or Act or the Constitution of the Federal Republic of Nigeria by any false pretence is guilty of a misdemeanour, and is liable to imprisonment for one year.”
- Any representation made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false or docs not believe to be true, is a false pretence.”
Section 3(2)(1) of the Special Tribunal (Miscellaneous Offences) Decree No. 20 of 1984 now section 3(16) of the Special Tribunal (Miscellaneous Offences) Act Cap. 410 provides for cheating at examinations. It reads thus:-
“(2)(1) Any person who before, at, during or in anticipation of any examination-
(i) by any fraudulent trick or device or in abuse of his office or with intent to unjustly enrich himself or any other person procures any question paper produced or intended for use at any examination of persons; so however that in any charge for an offence under this paragraph, it is immaterial that the question paper concerned is proved to be false, not genuine or not related to the examination in question;
(ii) by any false pretence or with intent to cheat or secure an unfair advantage for himself or any other person procures
from any other person or induces any other person to deliver to himself or another person any question paper intended for use at any examination;
(iii) by any false pretence, with intent to cheat or unjustly enrich himself or any other person or for any other purpose whatsoever buys, sells procures or otherwise deals with any question paper intended for use or represented as genuine question paper in respect of any particular examination.”Section 3(16) of Special Tribunal (Miscellaneous Offences) Act is not applicable. It creates offences for people dealing with examination papers which is not the offence the respondent herein is accused of. He is accused of cheating by copying answered script.
There is no substance in the submission of the learned counsel for the appellants that since the conduct of the respondent, at the examination, as set out in paragraph 49 of the appellants’ brief did not constitute an offence decision of the learned trial Judge was gravely in error. To comprehend the appellants’ submission, it is appropriate to recite the relevant paragraph from the appellants’ brief –
“49. The respondent was caught writing on his question paper during the examination contrary to instructions. Respondent was found liable for talking with another student during the examination contrary to the university’s instruction. When the invigilator who caught him wanted to deduct 15 marks from his answer sheet he abused the invigilator because, according to him, he lost his temper when the invigilator took his answer sheet away.”
But is this the test of whether a person is accused of doing a thing tainted with criminality? I do not think so. All that is being canvassed on behalf of the appellants is the explanation proffered by the respondent to the accusation levelled against him. This is not sufficient reason to say that the matter is not of criminal nature and the domestic tribunal should be vested with jurisdiction. The proper test is the charge or accusation levelled against the respondent which elicited his explanation. The appellants have adroitly refrained from canvassing that accusation before this court. This can, however, be gathered from Exhibit D1 attached to the affidavit deposed to by fourth appellant on behalf of all the appellants. Paragraph thereof inter alia reads thus –
“Nwafor Cassmir (91/80136) Reported TO be in the Faculty of Law This student, who uses the same registration number as Oghoo Felix or Economics Department was alleged to have been caught copying and exchanging answer scripts with Uche Kennedy 91/40053 during exams in Psy.112 taken on 13/11/92. In his oral evidence..”
It is clear from this passage that the respondent is accused of conspiracy with one Uche Kennedy Chidi another student of Faculty of Law and cheating notwithstanding that he might eventually be exonerated. The respondent was accused at an examination for a certificate established under the law establishing Nnamdi Azikiwe University of copying from answer script or scripts of another student with intent of presenting the copied scripts as his own mainly to pass the examination for awarding a degree in law. The accusation constitutes an offence under section 392 of the Criminal Code and a charge could have been properly laid under the Criminal Code Cap. 86 notwithstanding the slip that docs not affect the substance of reasoning or conclusion of the learned trial Judge. The clerical error can be corrected: The Ministry of Lagos Affairs, Mines and Power and Anor v. Chief O.B. Akin-Olugbade (1974) 11 S.C. 11.
This case seems to be on all fours with the case of Dr. E.O.A. Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR .106. where a medical practitioner was charged with four counts before a Medical and Dental Practitioners Disciplinary Committee, the subject matter of which, are covered by the provisions of sections 82 and 89 of the Criminal Code of the Western Region, the trial of which is reserved for the courts exclusively. The Supreme Court stated at page 312 of the report per Ademola C.J.N, that –
“We are however satisfied that the substance of the facts in each of counts 2, 3, 4 and 5 is covered by various sections of the Criminal Code and the charges could have been laid under the Code. Under the English Medical Act, 1956 charges of this nature which are covered by the criminal law are not dealt with under the Act in the first instance but are left to the courts. After convictions have been obtained in the courts disciplinary actions would follow. We have no doubt in our mind that this is the intention in this country as well…
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.”
(Italics mine)
The Supreme Court in Denloye’s case decided the matter on grounds other than its constitutionality: it therefore did not consider the provisions of section 22(2) of the 1963Constitution of Nigeria which reads as follows –
“2. Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing within reasonable time by a court.”
(Italics mine)
Section 33(4) of the 1979 Constitution is in pari materia with the provisions of section 22(2) of the 1963 Constitution but for the insertion of the words “of tribunal” immediately after the word “court”.
Although the Denloye’s case was determined on grounds other than the effect of section 22(2) of the Constitution, nevertheless in the case of Dr. O.G. Sofekun v. N.O.A. Akinyemi & Ors.(1980) F.N.R. 184; (1980) 5-7 S.C. 1 the constitutional issue was strenuously contested and decided. In this connection the Supreme Court stated per Fatayi- Williams, CJN, at page 193 of the report as follows –
“Learned counsel. however, conceded that all charges in the four counts which the Panel investigated are criminal offences. He also agreed that the offences should have been stated in charges tried before a court. Learned counsel finally conceded, after a number of searching questions had been put to him by the court, that the amendments to regulations 41,44,45 and 50 affect the provisions of section 22 subsections (2), (4) to(9) of the 1963 Federal Constitution.
He also indicated that he would not oppose the expurgation of that part of the judgment dealing with the order not asked for.
To my mind, this appeal revolves round the interpretation of the provisions of section 22 subsections (2), (4) to (10) of the Constitution of the Federal Republic of Nigeria, 1963. The section is part of the Chapter in the Constitution dealing with fundamental rights. Section 22 subsection (2) in particular reads:-
‘(2) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to fair hearing within a reasonable time by a court.’
…Furthermore, the word ‘court’ is defined in section 33 of the same Chapter as-
‘any court of law in Nigeria, but, except in relation to a member of the armed forces of the Federation, does not include a court martial.’
Bearing in mind that the words ‘by a court’ is only used once and at the tail end of subsection (2) of section 22, the word ‘charged’ in the first line thereof can only be synonymous with the word ‘accused’.
No other construction is, in my view, possible. Moreover, because or the mandatory provisions of the subsection, it seems to me that once a person is accused of a criminal offence, he must be tried in a ‘court of law’ where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing as set out in subsections(4) to (10) of section 22 of the Constitution of the Federal Republic of Nigeria. No other tribunal, investigating panel or committee will do.”Section 392 read together with section 385 of the Criminal Code Cap. 86 creates the offence punishing obtaining a certificate established under a law through deceit. The respondent was accused of copying the script of another student with a view of presenting the same to the authorities of Nnamdi Azikiwe University as his own work to obtain a degree in law from the said University. If the respondent is arraigned before a court and charged with the offence of cheating in examination under sections 385 and 392 of the Criminal Code and the elements of the offence is proved he could be convicted of the offence created by section 392 of the Criminal Code Cap.86. The accusation constitutes an offence under the Criminal Code, the respondent should have been arraigned before a court. To accuse him before an examination committee is in violation of the express provisions of section 33(4) of the 1979 Constitution which I have observed earlier in this judgment to be in pari material with the provisions of section 22(2) of the Constitution of the Federal Republic of Nigeria. The case of Sofekun v. Akinyemi (supra) is a decision of the Supreme Court which is binding on this court. I have no discretion in the matter and therefore follow it.
Issue 3 in the appellants’ brief is answered positive. The ground of appeal from which it is formulated fails and it is dismissed.
Having dismissed the remaining grounds of appeal filed by the appellants the appeal fails and it is dismissed.
The crux of the cross-appellant’s complaint in the cross-appeal is that he was denied his fundamental right to fair hearing in determination of his civil right and obligation. His grouse was that some of the cross-respondents viz fifth, sixth, seventh and eighth acted both as witnesses and as members of the body established to try the allegation of examination malpractice, made against the cross-appellant along with another student, Royson Ngadi Onyekwere. To ground the alleged breath of the principle of nemo judex in causa sua meaning no one should be a judge in his own cause, the respondent deposed to several averments in the affidavit in support of his application to enforce his fundamental right to fair hearing. But there is not a single paragraph of the affidavit showing that the fifth, sixth, seventh and eighth cross-respondents sat in the disciplinary committee, set up to look into the allegation of examination malpractice made against the cross-appellant, as members in addition to being part of the group of persons that accused him of examination malpractice. However, paragraph 12 of the affidavit in support of the affidavit, the arrowhead of the cross-appellant’s case reads as follows-
“12. The said Committee known as Examination Committee has among its members the 5th, 6th, 7th and 8th respondents. That the 5th – 8th respondents acted as my prosecutors and judges at the same time during the proceedings of the Committee.”
The cross-respondents refuted the allegation of the accusers sitting in judgment over the cross-appellant to vindicate the accusation made against him in paragraphs 8 and 9 of their joint counter-affidavit. The two paragraphs read thus –
“That the membership of the Senate Examination Committee consists of –
(1) Prof. I.O.C. Ekejuba Chairman
(2) Deans of Faculties Member
(3) Heads of Department Member
(4) Registrar of the University – Secretary
- That 5th to 8th respondents were not members of the Committee but only appeared before the Committee as witnesses.”
The averment contained in paragraph 9 of the counter-affidavit is no where controverted by the cross-appellant. It is not shown that the four cross-respondents were by appointment members of the examination committee set out above nor did the cross-appellant produce the relevant proceedings of the body. The learned counsel for the cross-appellant has not, in his ten page cross-appellant’s brief, directed me to any other iota of evidence showing that fifth, sixth, seventh and eighth cross-respondents played a role other than that of witnesses.
The learned trial Judge faced with the ipse dixit of the cross-appellant and the resistance of the cross-respondents reasoned as follows –
“It is the law that the plaintiff, in order to succeed, must adduce sufficient evidence to convince the court that he is entitled to reliefs he seeks. He has to prove his case on the balance of probability and the onus of proof shifts from one party to the other and it is never static. The defendant is not obliged to provide material for the plaintiff to prove his case. Essentially, it is the duty of the plaintiff to prove his case, and where he is unable to provide sufficient evidence, he is bound to fail, in which case, his claim will be dismissed. In the same vein, he who asserts must prove. The applicant alleged that 5th-8th respondents sat as members of the committee that tried him. To succeed in this allegation, it is not enough for the applicant to depose that fact as he did in paragraph 12 of his affidavit of 25th February. 1995. The more so, when the averment in that paragraph had been contradicted by the respondents in paragraph 9 of their counter-affidavit. At that point in time, the onus shifted on the applicant to prove that 5th-8th respondents served as members of the committee. It is not the duty of the respondents to exhibit a copy of the relevant proceedings of the committee (if any) to prove the allegation of the applicant. To invoke the provisions of section 148(d) [now 149(d)] of the Evidence Act there must be some duty or responsibility on the respondents to produce the relevant proceedings of the committee (if any) such as failure to produce same after a ‘Notice to produce’ has been served on them. In the absence of any concrete evidence before the court, other than averments in paragraph 12 of the affidavit of the applicant dated 25th January, 1995 which has been effectively countered, I hold that the applicant has failed to prove that the 5th – 8th respondents served as members of examination committee that tried him on the allegation of examination malpractice.”
The reasoning of the learned trial Judge, Kassim, J., is unassailable. On the state of the affidavit evidence already set out in this judgment, the burden of proof shifts fairly and squarely on the cross-appellant whose claim would fail if he did not produce further evidence. The cross-appellant is to establish his case on preponderance of evidence and not on the failure or default of the cross-respondents to call or produce evidence: Board of Customs and Excise v. Barau (1982) 10 S.C. 48; Elias v. Omobare (1982) 5 S.C. 25, 49. The cross-appellant is to succeed on the strength of his own case and not on the weakness of the case or the cross respondents who had no claim before the trial court and therefore had no burden of proof placed on them. See Woluchem v. Gudi (1981) 5 S.C. 291; Kodilinye v. Odu 2 WACA 336; Obisanya v. Nwoko & Ors. (1974) 6 S.C. 69.The contention of the learned counsel for cross-appellant to the effect that the failure of fifth, sixth, seventh and eighth respondents to individually and personally depose to affidavit is prejudicial to the cross-respondents’ defence is not only misconceived but also preposterous. The submission is based on presumption that because a case is not defended the trial Judge must close his eyes to the need to ascertain if the facts adduced before him establishes or proves the claim or not. The learned trial Judge is at no time released of the burden of ensuring that the evidence adduced in support of a case sustains it irrespective of the posture of the defendant or defendants. It is, therefore, immaterial whether or not these cross-respondents who are competent but not compellable witnesses, testify, the burden on the cross appellant, the claimant in the trial court, proving his case on balance of probability does not shift. See Atilade v. Atilade (1968) 1 All NLR 27, 29. The failure of the fifth, sixth, seventh and eighth respondents to testify or depose to affidavit is not fatal to the cross-respondents’ case. A party is not bound to give evidence on his own behalf. The duty in a civil proceeding is for a party to call sufficient and relevant witness or witnesses to prove his case and it is unnecessary to call a particular witness if he can otherwise establish his case: Lawal Osula v. Lawal (1993) 2 NWLR (Pt.274) 158 and Onwujuba v. Obienu(1991) 4 NWLR (Pt.183) 16.
The cross-appellant asserted that four of the appellants or cross-respondents sat as members of the examination committee, in addition to testifying for the cross-respondents against the cross-appellant. It is settled law that the party asserting has the onus of proving his assertion. The cross-appellant should have substantiated his case by either producing a documentary evidence such as the minutes of the sitting of the examination committee. The cross-appellant failed to do so. He is thereby not relieved of the burden by seeking refuge under the provisions of section 149(d) of Evidence Act, Cap 112 of the Laws of the Federation of Nigeria, 1990. The presumption cannot he invoked against the cross respondents who had a duty to prove his claim on balance of probability. To succeed he ought to have tendered the minutes of the meeting which he failed to produce. In the circumstance, the presumption is that there was no minutes and if there were the content was against the cross-appellant’s claim hence his failure to produce it.
The cross-appellant might and could have shifted the burden on the cross-respondents if he had served them with a notice to produce the document and they failed to produce it. Even then that would not have entitled the cross-appellant to take benefit of the presumption under section 149(d) of the Evidence Act, Cap 112.
The benefit that would probably have accrued to the cross-appellant in such circumstance is to adduce secondary evidence of the contents of the document.
To enable the cross-appellant give secondary evidence of the contents of the cross-respondents’ minutes, he ought to lay foundation for making secondary evidence of the minutes admissible. In laying the foundation, cross-appellant ought to have shown that the minutes of the Examination Malpractice Committee was in possession of the appellants or cross-respondents who are incidentally the makers as required under section 97(1)(a) of the Evidence Act Cap 112. In addition to showing that the adverse party is in custody of the document being sought to be tendered, he ought to show that his opponent was given notice to produce and failed to produce the document after receiving such notice under section 98 of the same Evidence Act. Sections 97(1)(a) and 98 of the Act provide as follows –
“97(1) Secondary evidence may be given of the existence, condition or contents of a document in the following cases –
(a) when the original is shown or appears to be in the possession or power.
(i) of the person against whom the document is sought to be proved; or
(ii) of any person legally bound to produce it; and when, after the notice mentioned in section 98 of this Act, such person docs not produce it…
- Secondary evidence of the contents of the documents referred to in paragraph (a) of subsection (1) of section 97 of this Act, shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to a legal practitioner employed by such party, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the court considers reasonable in the circumstance of the case…”
The proviso to section 98 are not particularly relevant to the determination of this point. The cross- respondents are the makers of the minutes. It is, therefore, presumed that they are in custody or possession of the document. The plaintiff, the cross-appellant herein, has not led evidence to establish that notice such as prescribed under section 98 of the Evidence Act was issued and served on the defendants, the cross-respondents, and failed to produce the document. In the absence of such evidence, 1cannot hold that section 98 had been complied with.
This is the procedure the cross-appellant could have adopted and relied upon if he had been mindful of tendering the document in evidence: See J. O. Iphie v. Plateau Auditing Company (1957) NRNLR 212.
The cross-appellant also contended that the fifth, sixth, seventh and eighth cross-respondents were served the affidavit of cross-appellant nevertheless none of them deposed to a counter-affidavit to refute the accusation made against them.
Counsel argued that it was the conduct of these cross-respondents that was called into question and they should be the person to proffer explanation as to what actually happened. He then argued relying on the case Jallco Limited and Anor. v. Owoniboys Technical Services Limited (1995) 3 SCNJ 256 at 269 that in the absence of such explanation the court ought to have presumed that the “evidence which ought to be produced and was not produced will if produced be unfavourable to them.” I do not know the source of the statement of law relied upon by the cross appellant in his brief. But if learned counsel probably had in mind section 149(d) of the Evidence Act which permits the court to presume that evidence which could be and is not produced would, if produced, be un favourable to the person who withholds it, I cannot find the authority in the report cited. The case can however be found in (1995) 4 NWLR (Pt.391) 534, 546. The Supreme Court decision which is set out immediately hereunder does not seem to assist the cross-appellant. “Learned counsel for the respondent submitted, on this issue, that where the conduct and the affairs of a particular manager and accountant in respect of specific transaction is in dispute it is that manager, accountant or officer who would explain documents made by them in support of company’s position in the dispute that would testify on behalf of the company and not officers who never had anything to do with the transaction. I agree with this submission because what the Court of Appeal did was mere presumption of law which it is justified to do by drawing certain inferences from the facts of the case. Under s. 148(d) of the Evidence Act, the court is entitled to presume that any evidence which could be and is not produced, would if produced be unfavourable to the person who withholds it.”
(Italics mine)
Clearly the dictum set out above only demands of a manager, accountant or officer whose act or conduct is in dispute to explain the contents of a document made by such manager or accountant and not officer who never dealt with the transaction. In the present appeal there is no document made by fifth, sixth, seventh and eighth cross-respondents not to talk of a document calling for their explanation. The Supreme Court was also of the view that application of section 149(d) of the Evidence Act was not appropriate in the circumstance of that appeal.
Paragraphs 22 and 23 of the affidavit deposed to by cross-appellant in support of his application as well as paragraph 17 of the counter- affidavit deposed to by fourth cross-respondent on behalf of himself and all other cross-respondents are not relevant to the determination of the only issue calling for determination in the cross-appeal. The only issue in controversy in the cross-appeal is whether the cross-appellant adduced sufficient evidence to show that the cross-respondents, particularly, fifth, sixth, seventh and eighth were judges in their own cause. The answer is negative. The only ground of appeal in the cross-appeal fails and it is dismissed. The cross-appeal equally fails and it is dismissed by me.
The appeal and the cross-appeal are dismissed. There is therefore no order as to costs in these proceedings. For avoidance of doubt there is no order as to costs and each party to bear his or its own costs.
Other Citations: (1998)LCN/0366(CA)
