Professor Folarin Shyllon & Anor. V. University of Ibadan (2006)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

The Appellants are a Professor of Law and a Lecturer respectively in the Respondent’s Faculty of Law. In the action they filed by way of Originating Motion at the Federal High Court, Ibadan, they sought and were granted an Ex-parte Application dated 26th October 2001, for leave to apply by way of judicial review for orders of Certiorari, declaration, and injunction in terms of the Statement filed pursuant to Order 47 Rule 3 (2) of the Federal High Court (Civil Procedure) Rules, wherein they claimed the following reliefs-

(a) A declaration that the decision of the Respondent as contained in the Respondent’s letters dated 14th August 2001, was made without jurisdiction and is null and void and of no legal effect;

(b) An order of Certiorari directed to the Respondent to remove into the Federal High Court for the purpose of being quashed the decision of the Respondent contained in the letters of 14th August 2001;

(c) An order of perpetual injunction restraining the Respondents whether by itself or through its servants, agents, officers or privies whomsoever or howsoever from doing any act or thing in furtherance of the decision of the Respondent contained August 2001.

The Grounds upon which the said Reliefs are sought are as follows –

(a) The decision complained of was made by a Committee set up by the Governing Council of the Defendant called the Senior Staff Disciplinary Committee (SSDC);

(b) Neither the said Committee nor the Governing Council which set it up is empowered under the appropriate legislation to make the decision complained of;

(c) The decision complained of border on the appointment and promotion of Teachers at the University which function is the preserve of the Senate of the Respondent

Other Grounds are as follows-

The decision complained of was made by a Committee – the Senior Staff Disciplinary Committee which did not hear or determine the allegations against the Applicants in that:

(a) The Applicants were made to appear before a special panel of the Senior Staff Disciplinary Committee which took evidence and heard the Applicants;

(b) The decision complained about was not made by the same Special Panel which heard the Applicants but by the Senior Staff Disciplinary Committee itself which is differently constituted in terms of membership.

The Appellants concluded as follows in the last paragraph of the Statement –

“The Applicants fear that unless restrained by Order of injunction as prayed for in this action, the Respondent herein –

Shall enforce and implement the decisions contained in the letters of 14 August 2001 to the detriment of the Applicants”.

After the Respondent was served with the Motion on Notice dated 5th November 2001, it entered a conditional appearance on the 15th November 2001, and later filed a Counter-Affidavit dated 23rd November 2001.

Subsequently, a Reply to the counter-affidavit dated 7th March 2002 was filed the Appellants, to which the respondent filed a further Counter-Affidavit dated 13th March 2002. The Appellants then filed a Reply to the further counter-affidavit dated 26th April 2002 and a further reply to further counter-affidavit with Exhibits dated 21st May 2002, and the Respondent replied with a further and better counter-affidavit. The Appellants filed their “Applicants’ Argument” on the 14th of June 2004; the Respondent’s Argument was filed on the 21st of June 2002; and the “applicants’ reply” was filed on the 15th of July 2002. An Objection to applicants’ reply was filed on the 21st of August 2002 and the Reply to the Objection to Applicant’s Reply was filed on the 3rd of September 2002. Learned counsel adopted their written submissions on the 16th of July 2002, and the learned trial Judge, Hon. Justice S. Yahaya, delivered his Ruling on the 14th of November 2002.

In dismissing the Application, the lower Court held as follows @ p. 271-

“I have perused Exhibits JOI/1 and JOI/2 attached to the Affidavit in support of the Originating Motion. They were not certified as required by Section 111 (1) of the Evidence Act. They are therefore inadmissible and are hereby expunged from the record of the Court. In an application for an order of Certiorari, the applicant bears the burden of establishing sufficient facts justifying the making of the order. This he must do by adducing in evidence records of proceedings sought to be quashed. See the case of Okeke V. Baba (2000) 3 NWLR (pt. 650) 644. In the instant case, the documents sought to be quashed i.e. the decisions of SSDC made in Exhibits JOI/1 and JOI/2 do not form part of the record of this Court as they have been expunged from the record of the Court for non-compliance with the provisions of Section 111 (1) of the Evidence Act. Since I have ruled that the substratum has failed, then I don’t think the examination of the other issues canvassed in the Application will serve any useful purpose. Application failed and is hereby dismissed with costs assessed at N1,000.00 to the Respondent”. (Italics mine)

Dissatisfied, the Appellants have appealed to this Court with a Notice of Appeal containing three Grounds of Appeal, and in the Appellants’ brief of argument prepared by M. O. Akpoyowore (Miss), three Issues were formulated as arising for determination in this appeal as follows –

(i) Whether the lower Court was right in treating Exhibits JOI/1 and JOI/2 as public documents requiring certification in accordance with Section 111 (1) of the evidence Act?

(ii) Whether the lower Court was right to have dismissed the Appellants’ case on the basis that there is no evidence of the decision sought to be quashed?

(iii) What is the appropriate order for this Honourable Court to make in the circumstances?

The respondent however submitted in its Brief prepared by A. S. Ajayi, Esq., that the following 5 Issues are the real issues for determination in this appeal-

(1) Whether the lower Court was justified in treating Exhibits JOI/1 and JOI/2 as public documents and therefore requiring certification.

(2) Whether Exhibits JOI/1 and JOI/2, the originals being in the possession of the appellants and photocopies of same tendered must necessarily be certified in accordance with Section 111 (1) of the Evidence Act.

(3) Whether an Application for Certiorari, brought by a Motion of Originating Summons supported by affidavit evidence, the Appellants have fully discharged the onus placed on them in failing to certify Exhibits JOI/1 and JOI/2.

(4) Whether the Appellants having failed to certify the documents, that is Exhibits JOI/1 and JOI/2 containing the decision sought to be quashed could then rely on the documents presented by the respondent that is Exhibit DD/4.

(5) Whether the lower Court was wrong in dismissing the Application of the appellants upon its finding that the decision sought to be quashed having been expunged do not form part of the record of the Court.

In view of the fact that the Respondent formulated five Issues from the three Grounds of Appeal filed by the Appellants, I will adopt the Appellants’ Issues in dealing with this Appeal. It is well settled that issues for determination should not exceed the grounds of appeal, but rather, should be fewer or equal in number with the Grounds of Appeal – see Afribank (Nig.) Ltd. V. Onyima (2004) 2 NWLR (pt 858) 654. The 1st Issue for determination is whether the lower Court was right to hold that Exhibits JOI/1 & JOI/2 are public documents. Section 109 of the Evidence Act provides as follows –

‘The following documents are public documents –

(a) Documents forming the acts or records of the acts –

(i) Of the sovereign authority;

(ii) Of official bodies and tribunals; and

(iii) Of the public officers, legislative, judicial and executive, whether of Nigeria or elsewhere;

(b) Public records kept in Nigeria of private documents”.

In a nutshell, the attributes of a public document is that it is created over a public matter, preserved for the good of the public and open for public inspection and use – Law & Practice of Documentary Evidence: by Ike D. Uzo. The Appellants submitted that the question that arises in this appeal is whether a letter addressed to a person informing the person of the decision or acts of an official body or public officer amounts to a public document? The Court was referred to the definitions of public documents is Stroud’s Judicial Dictionary: 4th Ed. @ p. 2182; Sturia V. Preccia (1880) 5 App. Cases 623 @ 643, & R. V. Halpin (1975) 1 Q.B. 907, and the comment of Fidelis Nwadialo in Modern Nigerian Law of Evidence: 2nd Ed. @ p. 308, as follows –

“Any other documents made by a public officer in the course of his duties which does not fall into within the definition of a public document may be described as an official document. Examples are letters exchanged between two Ministries or written by a Ministry to individual persons on official matters”. (Emphasis theirs)

The Appellants therefore argued that a letter written by a public officer on official matters does not make it a public document, and Exhibits JOI/1 & JOI/2 were not intended to be inspected by the public, but were merely correspondence between the parties, and citing State V. Innocent Mbagwu (1972) 2 ELSLR 462, that the following three criteria must be satisfied before a document can be deemed public-

(i) That the document is made under a strict duty to inquire into all the circumstances it recorded;

(ii) It was concerned with a public matter; and

(iii) It was meant to be retained and meant for public inspection.

Furthermore, that a look at Section 111 (1) of the Evidence Act referred to by the lower Court further buttresses this fact. The Section provides as follows-

“Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies”.

It is the Appellants’ submission therefore that the public document must of necessity be in the possession of the public officer who does the certification; that in this case, the original document is in the possession and custody of the Appellants, and there was no evidence before the Court that any public officer has custody of a copy thereof; and that being the case, the question was posed – how is the document to be certified? The Respondent however submitted that the said Exhibits did not satisfy the provisions of Section 111 (1) of the Evidence Act, and the lower Court was right to reject and expunge same, and to consequently dismiss the Application, citing the following cases- Fawehinmi V. I.G.P. (2000) 7 NWLR (pt 665) 481, Yero V. N.B.N. Ltd. (2000) 5 NWLR (pt 657) 470; C.R.P.D.&.I. Co. Ltd. V. E.I. Obongha (2000) 8 NWLR (pt. 670) 751 A. G. Kwara State V. Alao (2000) 9 NWLR (pt. 671) 84; Shanu V. Afribank Nig. Plc. (2002) 17 NWLR (pt. 795) 182 SC, C.C. & Ind. Ltd. V. O. S. W. C. (2002) 9 NWLR (pt. 773) 629 SC; Araka V. Egbue (2003) 17 NWLR (pt 848) 1 @ 4 SC.

The decisions in the above cases border mainly on the principle that only certified copies of public documents are admissible in evidence, but the issue under consideration in this appeal is whether the lower Court was right to hold that Exhibits JOI/1 & JOI/2 are public documents. Exhibit JOI/1 signed by the Registrar of the Respondent is addressed to the 1st Appellant, it reads-

Dear Professor Shyllon,

Re: Allegation(s) of (I) Gross Misconduct to the Scandal of the University and to the Prejudice of Discipline and Proper Administration of the Business of the University and (II) Proceeding on Unapproved Sabbatical Leave

The SSDC before which you appeared on Wednesday, 1 August 2001 considered the report of its Special Panel which investigated the above stated allegations that were leveled against you…

In view of the foregoing i.e. (i), (ii), (iii), (iv) & (v) above, the SSDC decided that for the rest of your career in the University you should not hold any headship or other administrative position of honour and responsibility within the University. Should you be dissatisfied with the above decision, you may, in accordance with the guidelines of the SSDC appeal to the University Council within twenty-one (21) days of the receipt of this letter”. (Italics mine)

Exhibit JOI/2 addressed to the 2nd Appellant reads as follows –

“Dear Mr. Akintayo,

Allegation of Gross Misconduct to the Scandal of the University and to the Prejudice of Discipline and Proper Administration of the Business of the University

…Having considered the recommendation of the panel and your oral defence when you appeared before it, the SSDC agreed that your action in not reporting the discovery of missing sheets was an infraction of University procedure and that you were negligent to the point of misconduct in subverting the examination process of the university. The SSDC therefore decided that your promotion should be delayed by one year. Should you be dissatisfied with the above decision you may, in accordance with the guidelines of the SSDC appeal to the University Council within twenty-one (21) days of the receipt of this letter”. (Italics mine)

Obviously, these are not public documents. A public document must be brought into existence and preserved for public use on a public matter and must be open to public inspection – see Modern Nigerian Law of Evidence by Nwadialo (supra). In other words, for a document to be admissible as a public document, it should not only be available for public inspection, but should also have been brought into existence for that purpose.

See also the following commentary in Stroud’s Judicial Dictionary: 4th Ed.

“The principle upon which a public document is admissible is that there “should be a public inquiry, a public document, and made by a public officer. I do not think that ‘PUBLIC, there is to be taken in the sense of meaning the whole world. I think an entry in the books of a manor is ‘public,’ in the sense that it concerns all the people interested in the manor. And an entry, probably, in a corporation book concerning a corporate matter or something in which all the corporation is concerned, would be ‘public’ within that sense. But it must be a public document, and it must be made by a public officer. I understand a ‘public document’ there to mean a document that is made for the purpose of the public making use of it, and being able to refer to it. It is meant to be where there is a judicial, or quasi judicial duty to inquire as might be said to be the case with the ‘bishop acting under the writs issued by the Crown; that may be said to be quasi judicial. He is acting for the public when that is done; but I think the very object of it must be that it should be made for the purpose of being kept public, so that the persons concerned in it may have access to it afterwards”. (Italics mine)

What, may I ask, is public or brought into existence for the purpose of the public about a Professor of Law being told that for the rest of his career he would never “hold any headship or other administrative position of honour and responsibility within the University”, or, a University Lecturer being told that his promotion will be delayed by one year? The answer is – Nothing.

There is nothing public about Exhibits JOI/1 & JOI/2; they were not made for the purpose of the public making use of it, or for the purpose of being able to be referred to by the public. They were merely official letters addressed to the two Appellants, communicating the decision of the University to them after they had appeared before a Disciplinary Committee, which looked into allegations of gross misconduct leveled against them. There is no question that the decision of the Respondent to sanction the Appellants applied to them personally; it did not concern or touch on other members of the Respondent’s Faculty of Law, not to mention other members of the University Community, who might constitute the public in the circumstances of this case. The Special Panel that investigated the allegations against the Appellants and made its report to the SSDC, who decided on the various sanctions meted out to the Appellants, was not a Public Inquiry. The letters communicating the decision of the SSDC to the Appellants cannot therefore be Public Documents.

The lower Court clearly erred when it held that Exhibits JOI/1 & JOI/2 were public documents. This brings us to Issue 2 – whether the lower Court was right to hold that there is no evidence of the decision sought to be quashed. The Appellants submitted that the Respondent admitted in paragraphs 24, 25, & 26 of it’s Counter-Affidavit that the decision complained of was made by the SSDC and was communicated through the Exhibits. The paragraphs read-

24. That after reviewing the available evidence before it the S.P.D.C. found that the Applicants were negligent in the performance of their duties, and so were guilty of gross misconduct. And the S.P.D.C. verbally communicated their findings and decision to the Applicants after it has heard from them and reviewed their defence. A copy of the Proceedings/Minutes of the S.S.D.C showing this fact is attached and marked as EXHIBIT 004. (Italics mine)
25. That the S.S.D.C. also gave the Applicants the option of appealing to the Council if they were dissatisfied with its decision.
26. That the facts contained in paragraphs 24 & 25 above were stated in the Respondent’s letter dated 14/8/2001 to the Applicants.

It is their contention that in treating Exhibits JOI/1 & JOI/2 as inadmissible, expunging them from the record, and proceeding to dismiss the Appellants’ case without considering its merit, the lower Court mistook the decision which is contained in the record of proceedings of the Respondent with the communication of that decision by Exhibits JOI/1 & JOI/2, which it argued is clear from the following portion of the Judgment appealed against –

“In an application for an order of Certiorari, the Applicant bears the burden of establishing sufficient facts justifying the making of the order. This he must do by adducing in evidence records of proceedings sought to be quashed. See the case of Okeke V. Baba (2000) 3 NWLR (Part 650) 644”. (Italics mine)

In the case of Okeke V. Baba relied on by the lower Court, it was held that-

“In an application for a writ of certiorari the Applicant bears the burden of establishing sufficient facts justifying the making of the order, in other words, sufficient materials must be made available on the Application to show that the Tribunal whose decision is sought to be quashed had acted without jurisdiction on the face of the record”.

It was further submitted that what is sought to be quashed is not the letters themselves but the decision of the SSDC, which is also contained in Exhibit DD/4; duly certified and in evidence; and that by leaving the decision and attacking the means through which that decision was communicated, the lower Court denied the Appellants a hearing on the merits.

Furthermore, that it was unjustifiable for the lower Court to make the order of dismissal without looking into the contents of Exhibits JOI/1 & JOI/2 as well as other evidence before it; and that the attitude of present day superior Courts of records is to decide all issues in controversy by doing substantial justice thus avoiding multiplicity of action and technicalities which invariably result in injustice, citing Ejiwumi V. Costain W.A. Plc (1988) 12 NWLR (pt. 576) 149 & Nduka V. Ezenwaku (2002) 6 NWLR (pt. 709) 494.

Stated simply, the appellants’ contention is that the lower Court was wrong not to have considered Exhibit DD/4, which was certified and attached to the Respondent’s Counter-Affidavit. The Respondent on the other hand submitted that it is erroneous for them to argue in this vein; that what they are saying, in effect, is that the lower Court should have found their case on that of the Respondent, which Courts have warned against in several judicial authorities, citing Akaniwon V. Nsirim (1997) 9 NWLR (pt. 520) 255. Furthermore, that Rules of Court are not cosmetic but are to be strictly adhered to, referring to Order 47 Rule 9 (2) of the Federal High Court (Civil Procedure) Rules, and citing, Babayagi V. Bida (1998) 2 NWLR (pt. 538) SC, 7up Bottling Co. V. Abiola (1995) 3 NWLR (pt. 383) 275, & Adehi V. Alega (1995) 5 NWLR (pt. 398) 656. In reply, the Appellants submitted that it would be erroneous on the part of the Respondent to state that they hinged the proof of their case on the Respondent when the Respondent had even admitted what the Application sought to prove, so the Court should not close its eyes to facts before it that have been admitted, citing Sabru Motors Ltd. V. Rajab Ent. Ltd. (2002) 7 NWLR (pt. 766) 243, wherein it was held that –

“The admission of a fact in issue in the pleadings by the Defendant/Respondent renders such a fact as established and such an admission may be accepted as one of the agreed facts of the case, and thus requiring no further proof”.

This issue is easily resolved; my answer may have been different if Exhibits JOI/1 & JOI/2 were actually public documents, but they are not, and it is not my place in this appeal to give any answers to what may or may not be the outcome of what would have been if they were actually public documents.

It is sufficient for me to say that Exhibits JOI/1 & JOI/2 are not public documents and the lower Court was wrong to have expunged them from the record of the Court. The outcome of this appeal is that the reverse will be the case, and Exhibits JOI/1 & JOI/2 will form part of the record of the Court. No doubt, the Proceedings/Minutes of the SSDC attached to the Respondent’s Counter-Affidavit as Exhibit DD/4 will be of tremendous value and is essential in the determination of the question whether the decision of the SSDC contained in Exhibits JOI/1 & JOI/2 “was made without jurisdiction and is null and void and of no legal effect” – the declaration sought by the Appellants. Nonetheless, I agree with the Appellants that in the particular circumstances of this case, it will amount to an undue reliance on technicalities to order that they produce it themselves before their Application is heard on the merits. Exhibit 00/4 was made by the Respondent; it is in their possession and custody; it has been duly certified; and it is in evidence before the Court.

The 3rd and final Issue for determination is the question of what order to make in the circumstances. The Appellants referred the Court to Katto V. C.B.N. (1991) 9 NWLR (pt. 214) 126, where the Supreme Court held @ 149-

“While the Supreme Court, being the final Court of appeal, can afford not to pronounce on other issues placed before it where it finds that the trial Court lacked jurisdiction, the Court of Appeal whose stance on jurisdiction may be faulted by the Supreme Court should not ignore other issues raised in the appeal. It should pronounce on them. The position now is that issues which ought to have been resolved by the Court of Appeal in its Judgment dated 30th January 1989 will now have to be sent back to it for hearing and determination”.

The Appellants submitted that if the lower Court had made pronouncements on the merit of this case, then in the event of this Court holding as I have now done, it will simply affirm or set aside the decision on the merit instead of sending it back to the lower Court for hearing on the merit. They however argued that having regard to the nature of this case where the evidence is documentary and by Affidavit without oral arguments, and in which written briefs had been submitted, then this Court is in as good a position of the lower Court to evaluate the evidence and determine the case on it’s merit.

The Appellants referred the Court to the cases of Agwarangbo V. Nakande (2000) 9 NWLR (pt. 672) 341; Shell B.P. Petroleum Dev. Co. Ltd. V. Pere Cole (1978) 3 SC 183, Hayes V. Hayes (2000) 3 NWLR (pt. 648) 276, which dealt with a dispute over compensation money; a claim for special damages; and a divorce proceedings, respectively. The Appellants’ Application at the lower Court is not in respect of an ordinary proceeding. It is an Application by way of judicial review for orders of Certiorari, declaration and injunctions. The High Court has inherent supervisory jurisdiction over the proceedings and decisions of inferior Courts and tribunals, and acts of governmental bodies, which is exercised by judicial review of such proceedings, decisions and acts. See Governor, Oyo State V. Folayan (1995) 8 NWLR (pt. 413) 292, where the Supreme Court held that judicial review of an administrative act is not an “appellate jurisdiction but rather a supervisory one”. Ogundare, JSC said –

“In a judicial review the Court must not stray into the realms of appellate jurisdiction for that would involve the Court in a wrongful usurpation of power”.

In judicial review, the Court is concerned with the legality and NOT with the merits of the proceedings, decisions, or acts of the affected inferior Court, tribunal, or governmental body. Consideration of the merits falls within the appellate jurisdiction of the Court – see Nwadialo’s Civil Procedure in Nigeria. This Application will have to be remitted back to the lower Court for hearing on the merits. Much as it will entail extra time and expense for the parties, it is my view that it is better to err on the side of caution than to stray into usurping the supervisory jurisdiction of the Federal High Court. In the final analysis, the appeal is hereby allowed. The Application is hereby sent back to the lower Court for hearing on the merits.

There will be no order as to costs.

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Other Citations: (2006)LCN/1944(CA)