University of Ilorin V. Rasheedat Adesina (2008)

LawGlobal-Hub Lead Judgment Report

IGNATIUS IGWE AGUBE, J.C.A.

This is an appeal against the Judgment of the Ilorin Division of the Federal High Court per Chukwura Nnamani J. which judgment delivered on the 21st day of June, 2006, allowed all the plaintiffs claims except the second claim which deals with religious and political beliefs.

The Plaintiff who was at all times material to the case a student of Industrial Chemistry of the Defendant’s University in both her writ of summons and statement of claim sought for the following reliefs against the Defendants: –

“(a). A Declaration that the Defendant is statutorily obliged to grant degrees to persons who have pursued a course of study approved by it and satisfied such other requirements as it may lay down.

“(b). A Declaration that it is illegal for the defendant, either directly or surreptitiously, to require any person to satisfy any requirement as to religious or political persuasion to be entitled to become or continue to be a student and the holder of any degree of the Defendant – University.

“(c). A Declaration that the plaintiff, having pursued and completed a course of study for the award of a B.SC. Degree in Industrial Chemistry, and also satisfied all other requirements prescribed by the Defendant and made known by it to the plaintiff, is entitled to be awarded the same.

“(d). A declaration that the Defendant is not entitled to keep the plaintiff in communicado as to the reason for the withholding of her academic records and degree.

“(e). A declaration that the withholding of the plaintiff’s academic records since 2001 when she completed the course of study prescribed by the Defendant for the award of a B.SC. Degree in Industrial Chemistry without official explanation is capricious, vindictive, oppressive, illegal, unlawful, and constitutes a gross abuse of the Defendant’s statutory powers and public duties invested on/in the University of Ilorin Act, Cap. 455 of the Laws of the Federation of Nigeria, 1990.

“(f). A Declaration that the withholding of the Plaintiffs academic records since 2001 when she completed the course of study prescribed by the Defendant for the award of a B.SC. Degree in Industrial Chemistry without official explanation is punitive and in breach of the plaintiffs right to a hearing before condemnation and punishment.

“(g). An order of specific performance of the agreement brokered at the instance of the Defendant’s Visitor, the President and Commander-in-chief of the Armed Forces of the Federal Republic of Nigeria, whereby parties agreed that the plaintiff shall apologize for her student Union activities and pay a restitution in the sum of N1,000.00 to the Defendant and the Defendant in consideration thereof shall restore to the plaintiff all the rights reserved for her as a member of the Defendant – University under the University of Ilorin Act, Cap. 455, of the Laws of the Federation of Nigeria, 1990, which agreement was subsequently notified by the parties to and judicially noticed by the Court on the 29th day of October, 2001 in Suit No. EHC/IL/M17/98.

“(h). An order of Mandamus compelling the Defendant to remove forthwith all the administrative (or like) impediments to, and to take all the administrative (or like) steps required for the release of the plaintiffs academic records including the degree to which her completed course of study with the Defendant entitles her, and for the release of all said academic record and Degree forthwith.

“(i). DAMAGES, on a footing of exemplary damages, in the sum of N20,000,000.00”

Issues were joined and after the Defendant was allowed Amendment and Further Amendment of her statement of Defence the plaintiff testified and called no witness while the Defendant called five witnesses in proof of their respective cases. At the close of the cases of the parties written addresses were ordered to be submitted after which the Learned Justice of the Federal High Court Ilorin Division delivered the judgment in question.

Piqued by the judgment, the Defendant (now Appellant), filed a Notice of Appeal with five Grounds on the 6th day of July, 2006 in the lower court.

For purposes of clarity the Grounds of Appeal are hereby reproduced verbatim thus: –

“GROUND ONE

The trial court has no jurisdiction to entertain the suit as it (sic) boarder exclusively on matters which are within the internal jurisdiction of the University as an academic institution.

“GROUND TWO

That the judgment is against the weight of evidence….

GROUND THREE

The trial Judge erred in law by holding that the Respondent has no business in (sic) relating any examination because of her invitation to S.D.P. as her pardon annulled her appearance before the S.D.P.

PARTICULARS OF ERROR

i. The pardon granted the Respondent merely reinstates the studentship and does not cater for (sic) exams or (sic) attendant of the lectures missed during the period of her problem.

ii. Evidence abound that the Respondent did not meet 75% (sic) attendant requirement for some (sic) exams purportedly written by her.

iii. There are some courses outstanding against the Respondent.

“GROUND FOUR

The trial Judge misdirected himself by holding that neither part of the Suit challenged the exercise of the Visitorial power of Chief S. K. Babalola Resolution Committee.

PARTICULARS OF MISDIRECTION

i. A letter denouncing the Chief Babalola’s Visitorial Committee was placed before the Court.

ii. A Court of law is duly bound to consider all (sic) does place before it.

“GROUND FIVE

The learned trial court erred in holding as follows: –

“In Exhibit A2, the Vice-chancellor did not hide (sic) his plan bias against the plaintiff and one Stephen Akinola for taking him and the University of Ilorin (Defendant) to court.”

PARTICULARS OF ERROR

i. There was no evidence before the court that the Vice-chancellor was a party to the suit.

ii. There was nothing in Exhibit A2 to show that the Vice-chancellor personalized this matter to the extent that the plaintiff was practiced (sic). Prejudiced.

iii. The said Vice-chancellor has since left the Defendant University ever before the commencement of this substantive action.”

Briefs were duly exchanged in this court in accordance with the rules and when the Appeal came up for hearing on the 21st day of January, 2008, the learned counsel for the Appellant Chief Olatunji Arosanyin with Miss Salamat Araga and Esther Oguntowole sought leave of the court that the Appellant’s Amended Brief of Argument which was deemed filed on the 4th day of June, 2007 and the Reply Brief dated 5th March, 2007 be adopted as the arguments in support of the appeal. He then urged the Court to allow the Appellant’s Appeal without any further oral adumbration of the written Briefs.

On the part of A. Olumide Fusika Esq. with him O. C. Olagunju Esq. of Counsel for the Respondent, the Respondent’s Brief dated 23/1/07 and filed same day but deemed filed on 8/2/07 by order of court was adopted. He intimated the court that they formulated two issues which they argued extensively in the said Brief.

He further drew the court’s attention to the authority of UNIVERSITY OF ILORIN VS. AKINOLA a decision of this Court in CA/IL/53/2006 and a Ruling granting the Appellant partial amendment of her Brief of Argument by this Court on 4th of June 2007 per Agube J.C.A and urged us to dismiss the Appellant’s Appeal and uphold the judgment of the lower court.

In the Brief settled by the learned counsel for the Appellant, four issues were distilled from the grounds of Appeal which are hereunder reproduced as follows: –

“1. Whether the trial Judge has jurisdiction to entertain the Suit being an internal matter within the jurisdiction of the Appellant (Ground one of the Notice of Appeal dated 4/7/2006).

“2. Whether the evidence of the Respondent and the Appellant’s witnesses were properly evaluated before the learned trial Judge gave judgment in favour of the respondent (Ground Two of the Ground of Appeal, dated 4/7/2006).

“3. Whether the pardon granted the Respondent by the Appellant excused the Respondent not to retake the examination missed during the time she was not in school and not satisfy other requirement for the award of a B.SC. Degree in Industrial Chemistry (Ground THREE of the Notice of Appeal dated 4/7/2006).

“4. Whether the Vice-chancellor was biased by writing Exhibit A2 Ground Five of the Notice of Appeal).

On the other hand, the learned counsel for the Respondent after attacking issues 2 and 3 as being contrary to the rule against proliferation of issues relied on the cases of OSINUBI VS. SAIBU (1982) 7 S.C. 104 at 110-111 and AFRIBANK (NIG.) PLC VS. ONYIMA (2004) 2 NWLR (pt.858) 654 at 669 paras. E-H to submit that the same ground of appeal cannot found more than one issue for determination. He then urged the Court to discountenance both of the issues which the Appellant has confessed were formulated from the same grounds 2 and 3 of the Grounds of Appeal.

The learned counsel for the Respondent further took the view that Issues 2 to 4 are incompetent because according to him, the issues seek answers to questions which can only be considered and determined by a trial Judge at plenary trial.

Citing the case of NJEMANZE VS. SHELL B. P. (1966) 1 ALL NLR 8 and Section 231 of the Constitution of the Federal Republic of Nigeria, 1999 he submitted that in so far as issues 2-4 do not arise from the actual judgment of the learned trial Judge or from any specific finding thereof, this Honourable Court will not allow the arguments on those issues.

Quoting Ground 5 from which Issue NO.4 was formulated, the learned counsel for the Respondent again submitted that it is clear that the learned trial Judge did not say that the Vice-chancellor was biased by writing Exhibit ‘A’ but that all that the Judge said was that the content of Exhibit A2 proved that the Vice-chancellor was biased against the Respondent and one Stephen Akinola. He therefore urged upon us on the authority of NJEMANZE VS. SHELL B. P. Supra that the issues outside those contained in the grounds of appeal ought not to be tolerated by this Honourable Court.

He accordingly submitted that only two issues are capable of being distilled from the five grounds of Appeal which are reproduced hereunder thus: –

‘(a), whether the evidence adduced at the trial supports the findings and the Judgment of the learned trial Judge (Grounds 2, 3, 4, and 5 of the Notice of Appeal); and

“(b). whether the learned trial Judge rightly exercised jurisdiction over the plaintiff’s claims (Ground I of the Notice of Appeal).”

In their argument on ISSUE ONE on whether the trial Judge has jurisdiction to entertain the suit being an internal matter within the jurisdiction of the appellant (Ground one of the Notice Appeal), the learned counsel to the Appellant alluded to paragraphs 3, 13, 14, 15 and 22 of the statement of claim of the plaintiff (now Respondent) and the Defendant (now Appellant’s) Amended Statement of Defence dated 21st February, 2006 as contained in pages 86-91 of the Record of proceedings.

Learned Counsel recalled that the Respondent stated on Oath that he relied on the interrogatories and the answers thereto before the lower court while the Appellant called DW 1, DW 2, DW 3, DW 4 and DW 5 who testified and tendered documentary exhibits to the effect that the Suit was/is about the internal affairs of the Appellant on how the Respondent could qualify to be awarded the Degree of B.Sc. Industrial Chemistry which the trial court had no jurisdiction to adjudicate upon.

It was therefore submitted that the exceptions stated by Obaseki J.S.C. in AKINTEMI & ORS V. PROF. ONWUMECHILI & ORS (1985) 1 NWLR (pt.1) 68 is not applicable to this case as none of the rights of the Respondent was abridged, breached or denied by the Appellant but she was merely called upon to obey the rules.

According to the Learned Counsel to the Appellant, the Respondent was asking for a certificate that she was not yet entitled to be given because there was no result or certificate of the Respondent which the Appellant was withholding as no result has been brought to the Senate. Furthermore, the trial Court was wrong in holding at page 150 lines 1-3, of the Records that the Respondent’s Academic Record was not the issue as she passed all her examination as could be seen from the Interrogatories answer for the following reasons:

(a) DW 1 stated that the Interrogatories were illegal as they were not signed by the Dean.

(b) DW 1 said the Respondent refused to come back to re-register for the courses missed, he further submitted.

The learned counsel to the Appellant also took the view that the learned trial Judge wrongly gave himself jurisdiction having held that the court will not ascribe probative value to the evidence above referred since he had held earlier that he would not intervene in such matters affecting academics and discipline as such matters are within the exclusive jurisdiction of the domestic forum of the Universities and are not justiciable in any court of law.

He again cited section 3 (1) of the University of ILORIN Act, Cap. 455 on the powers of the Appellant, to submit that the evidence of both the Respondent and Appellant coupled with their respective pleadings show that the Respondents’ academic record was the issue as she has not satisfied all other requirements such as attendance of lectures; adding that the Respondent having not complied with the provisions of the above Act, she was not entitled to the result or certificate which only the Senate can award.

Placing reliance on the cases of PATRICK D. MAGIT VS. UNIVERSITY OF AGRIC. MARKURDI (2006) ALL FWLR (pt.287) 1313 at 1343-1344 paras G- C and UNIVERSITY OF CALABAR VS. ESIAGA (1997) 4 NWLR (pt.502) 19; he urged this court to hold that the lower court had no jurisdiction to hear the Suit as it is not its duty to graduate the Respondent and award her a degree in Industrial Chemistry. He then urged the court to set aside the judgment of the lower court including the award of N5,000,000.00 Million damages.

On ISSUE NUMBER 2, it is pertinent to note that this court had in its Ruling of 4th June, 2007 refused the amendment of the original Issue 2 earlier filed on the ground that it tended to over reach the case of the Respondent who had by way of preliminary objection challenged same as being incompetent. It is surprising that the Appellant has incorporated/replaced the amended version which was earlier struck out for the original Issue Number 2. This is in my view is mischievous and a deliberate flouting of this court’s order. Accordingly, this Issue No.2 is again struck out and replaced with the Original Issue 2 which is to the effect as to:

“2. Whether the Respondent had completed her course of study for the award of a B.SC. Degree in industrial Chemistry and had also satisfied all other requirements prescribed by the Appellant and made known by it to the Respondent so as to be entitled to the award of a B.SC. Degree in industrial Chemistry. “Ground 2).

This Ground had been amended on the 4th day of June 2007 on the motion of the Appellant and even though the learned counsel for the Respondent has attacked same along with Grounds 3 and 4 as being incompetent on the ground that they seek answers to questions which ought to be answered not by this Appellate court but the lower court, I hasten to hold as I had held in the interlocutory application for amendment of the Brief that the seeming inelegance of the Issues formulated cannot render them incompetent particularly as they flow from the decision of the court below against which the Appellants are appealing.

See FASORO VS. BEYOKU (1988) 2 NWLR 263 at 270; OKONKWO VS. OKORO (1988) 2 NWLR 634 and OGBUNYINYA VS. OKUDO (NO.2) (1990) 4 NWLR 557 at 568.

Again, I had earlier said that even if we find the issues formulated by the Appellant inappropriate, we can still fall back to the issues formulated by the said Respondent’s counsel provided they arise from the Grounds of Appeal couched by the Appellant’s counsel, but not formulated at large. This court on its own can also formulate the issues which it deems appropriate for the resolution of the appeal once and for all. On the whole, the era of NJEMANZE VS. SHELL B.P where technicality was the order of the day is far gone.

On this score, I shall consider ISSUE Number 2 as argued by the Appellant’s counsel. Here, learned counsel submitted that there is no iota of evidence to prove any of the averments in the plaintiffs statement of claim that she had completed her course and satisfied all requirements placing reliance on the dictum of BA’ ABA J.C.A. in NIGERIA BOTTLING CO. LTD? (2004) ALL FWLR (pt.205) 231 at 251 paras D-E and the cases of NEW NIGERIA BANK PLC VS. DENCLAG LTD. & 1 OTHER (2004) ALL FWLR (pt.228) 606 at 645 paras. G.H. and BUKAR MODU ALI VS. CHAD BASIN DEV. AUTHORITY & 1 OTHER (2004) ALL FWLR (pt.237) 424 at 497 Paras. E-F. He contended that pleadings are not evidence and that the plaintiff must prove all the assertions in her pleading by evidence particularly as in this case where the Defendant did not admit any of the averments in the statement of claim. Moreover, any pleadings on which no evidence has been adduced are deemed abandoned and in the instant case, there was no evidence before the court below that between 1999 and 2001, the Respondent went through and completed fully and successfully the course of study prescribed by the Appellant, he further submitted.

At this juncture the learned counsel for the appellant also referred to paragraph 22 of the statement of claim arguing that none of the allegations made therein was proved and that the Respondent merely dumped series of documents on the trial court which the court admitted as Exhibits without the Respondent referring to any of them in her testimony.

Learned counsel then noted that on the contrary, the Appellant through the DW 1, DW 3 and DW 5 has adequately proved that the Respondent had not completed the course of study for the award of a B.SC. Degree in Industrial Chemistry especially in terms of 75% attendance and outstanding 21 credit loads for her 400 level and 200 level courses.

On the interrogatories which showed that the Respondent passed all the Courses therein, he contended that the DW 1 under Cross-examination revealed that every course taken by the Plaintiff/Respondent was taken illegally and that the said interrogatory was an illegal document because the Respondent did not register those courses as prescribed by the Appellant’s regulations and accordingly the Dean did not sign same.

As for attendance the learned counsel again drew our attention to the evidence of the DW 5 to the effect that he wrote Exhibit H2 and stated that the Plaintiff/Respondent recorded only 17% attendance whereas the University prescribed 75% attendance which facts were pleaded but Respondent did not react to these facts. He therefore urged this Honourable Court to hold that having recorded only 17% attendance only, the Respondent should not be allowed to graduate.

Learned counsel reiterated his earlier submission and his reliance on Section 3(1) (a) of the University of Ilorin Act Cap. 455, the cases of PATRICK D. MAGIT VS. UNIVERSITY OF AGRIC. MARKURDI & 3 ORS Supra that it is the requirement of the University that the Respondent must fulfill all the requirements and for her result to pass through the Senate before she can be awarded a Degree in Industrial Chemistry and that having not done so on the authority of NIGERIA BOTTLING CO. LTD VS. DADA (2004) ALL NWLR (pt.205) 231 at 241 para F.H the burden was on her to prove her case.

Accordingly, he urged this Honourable Court to resolve this issue in favour of the Appellant.

ISSUE NO.3 which is whether the pardon granted the Respondent by the Appellant excused the Respondent from re-taking the examination missed during the time she was not in the University and also excused her not to satisfy other requirements for the award of B. SC. Degree in Industrial Chemistry, it was submitted by the learned counsel for the Appellant that the learned trial Judge misinterpreted Exhibit B2 “REVIEW OF DISCIPLINARY ACTION” quoted by the trial Judge at page 152 of the Record of proceedings which Exhibit was reproduced verbatim to submit that there is no where in that document that the Respondent was pardoned not to satisfy the Rules and Regulations of the Appellant as regards examinations.

According to learned counsel, by paragraph (ii) of the said letter it was only the studentship of the Respondent that was restored and after that restoration; the Respondent was bound to comply with all other rules and regulations of the Appellant. Citing and placing reliance on the case of BAKER MARINE NIG. LTD. V CHENRON NIG. LTD. (2006) 6 S.C.N.J. 124 at 33 he submitted that it is not the duty of the court to write a fresh agreement for the parties.

Learned counsel referred to Exhibit ‘B’ the Letter of Apology reproduced at page 16 of the Record of Proceedings where the Respondent promised to abide by the rules and regulations of the Appellant/University which promise was not kept when she failed to re-sit examinations and have clearance from all the Departments in the University.

It was the learned counsel’s further contention that the clearance referred to by the court at page 137 of the Records was to qualify the Respondent to collect the necessary documents for registration and not the clearance required for graduation. Furthermore, the trial court misplaced the position of Exhibit “B2” and that the issue of fair hearing did not arise again after the understanding that led to the issuance of Exhibit “B2” the letter of pardon which from the evidence of DW1 did not exculpate her from taking the required lectures and practical’s, the Respondent having not attended lectures for the whole semester. According to counsel, the Respondent did not know that some subjects are outstanding against her as can be gleaned from Exhibit G-G1, and G2 where the Respondent said she was told that her examination taken illegally were invalidated by the H.O.D. He then urged the court to hold that the letter of pardon did not exonerate the Respondent from taking examination outstanding against her and Issue number 3 should be resolved in favour of the Appellant.

On ISSUE NUMBER FOUR which is whether the Vice-chancellor was biased against the Respondent which issue is formulated from Ground Five of the Notice of Appeal, the Learned Counsel for the Appellant alluded to Exhibit ‘A2’ written to the Chairman, Resolution Committee on Politically Victimized and Rusticated Students And Staff by the Vice-Chancellor, Prof. S. O. Abdulraheem dated 11th June, 2001 titled:

“SUBMISSION TO THE RESOLUTION COMMITTEE ON POLITICALLY VICTIMIZED AND RUSTICATED STUDENTS AND STAFF RE: LETTER OF APPEAL BY AKINOLA STEPHEN OLARENWAJU”, at pages 13 and 14 of the Records and submitted that the letter speaks for itself that: –

1. The Respondent was involved in violent demonstration.

2. The Respondent was invited together with other students to appear before Students Disciplinary Committee to defend himself in respect of allegation of misconduct.

3. The Respondent did not respond in writing to the allegations nor did he appear before the S.D.C. as directed.

4. The Respondent Instituted Civil Litigation in Court in conjunction with two other students, challenging the competence of the University to discipline them over what they called criminal offence and had injunction against the University, which the University appealed against.

5. Two students who were similarly invited before the S.D.C. at the same time appeared and were expelled but later pardoned.

6. The Respondent was neither rusticated nor expelled.

7. The Respondent was yet to meet the conditions for the award of a Degree of the University of Ilorin – The Appellant.

It was further submitted that there is no where in Exhibit A2 that the Vice-chancellor showed any bias against the Respondent and that all the facts in Exhibit A2 are correct and therefore it was wrong for the court below to conclude as he did at page 164 lines 18-20 that the Vice-chancellor did not hide his bias against the plaintiff and Stephen Akinola for taking the University to court and further in lines 25-28 that from the Exhibit the Vice-chancellor personalized the matter to the extent of being deeply prejudiced against the plaintiff.

Learned counsel also noted that it was not also correct for the court to hold that the Vice-chancellor prevented the matter to be deliberated upon as the Respondent’s case was never brought to the Senate so were the findings of the court at page 165 lines 1-6 not supported by any evidence before the trial court.

He maintained that Fair hearing within the con of Section 36 of the 1999 Constitution is not applicable as there was nothing to be heard by the Senate and even if the matter was brought to the Senate the Respondent would not have been called upon to have a say on whether or not she was entitled to B.SC. Degree in Industrial Chemistry.

Still on Exhibit A2, it was the learned counsel for the Appellant’s further position that the fact that the Vice-Chancellor wrote that document does not make him tainted with bias or likelihood of bias and the court below was therefore wrong in holding at page 165 of the Records to that effect.

He insisted that the rule of audi alteram partem does not arise because the Vice-chancellor stated in Exhibit A2 that the University appealed against the order of the trial court and as a result there was no trial before the Senate. According to him, as argued in Issue two, the trial court was dealing with the issues before the letter of pardon in Exhibit A2 was written on 11/6/01, the letter of Apology from Respondent on 22/6/01 and letter from Chairman, Resolution Committee to the Appellant also on the 22/6/01. Moreover, it was the deliberations and agreement reached between the Resolution Committee and the Appellant that resulted in the Exhibit B2 which was the letter of pardon dated 13/9/01. He finally urged the Court to hold that the Vice-chancellor was not biased against the Respondent, resolve Issue Four in favour of the Appellant and set aside the judgment of the trial court and the damages of N5 million Naira awarded against the Appellant.

In the Respondent’s Brief the learned counsel to the Respondent proceeded by way of preliminary objection to the Issues formulated by the counsel to the Appellants from the Grounds of Appeal which necessitated the filing of a motion for amendment of the Brief and by this Court’s Ruling on the 4th day of June, 2007 the motion was granted in part. I have duly reflected on this ruling while summarizing the arguments of learned counsel to Appellant in the Appellant’s Brief. We shall proceed to deal straight away with the issues formulated by the Respondent’s counsel and the arguments proffered thereon. The Learned Counsel to the Respondent has stated that the only issues capable of being distilled from the Five Grounds of Appeal are as stated hereunder: –

“(a). whether the evidence adduced at the trial supports the findings and ”judgment of the learned trial Judge (Grounds 2, 3, 4, and 5 of the Notice of Appeal)?

“(b). whether the learned trial Judge rightly exercised jurisdiction over the plaintiff’s claims. (Ground 1 of the Notice of Appeal)?”

Learned Counsel gave the background facts/evidence of the case and on ISSUE NUMBER I and alluded to Grounds 2, 3, 4 and 5 and the complaints therein together with the particulars in support thereof and concluded that the said Grounds attack the judgment of the trial court on the bases that the decisions reached were contrary to available evidence.

Citing the case of N.T.A. VS ANIGBO (1972) 5 S.C. 156 and OGBODA VS. ADULUGBA (1971) 1 ALL NLR 68 he submitted that when an Appellant challenges a judgment on the ground that it is against the weight of evidence he is understood to be saying that the findings of the learned trial Judge or the inferences drawn are not supported by evidence and in the circumstance the Appellant is duty bound to show this court how the court below wrongly accepted the evidence he should not legally have accepted or that the decisions or inferences drawn from the evidence so accepted are unjustified.

Furthermore, he noted, the law is that the Appellate court considering an appeal on this ground has the duty to make up its mind on the evidence by weighing and considering the judgment on the basis of the evidence on Record. LION BUILDING VS. SHADIPE (1976) 12 S.C. 135; VICTOR WOLUCHEM VS. GUDI (1981) 5 S.C.. 319 at 326, AKINLOYE VS. EYIYOLA (1968) N.M.L.R. 92 at 95; OBISANYA VS. NWOKO (1974) 6 S.C. 69 at 80; LAWAL VS. DAWODU (1972) 1 ALL NLR 707 at 722; KAKARAH VS. IMONIKHE (1974) 4 S.C. 153; MOGAJI VS. ODOFIN (1978) 4 S.C. 91 and EBBA VS. OGODO per Eso J.S.C. at PP. 388-389 were all cited to submit that this court will not hesitate in affirming the findings of the learned trial Judge on all the issues of facts contended between the parties after relating the complaint of the Appellant as particularized in Grounds 3-5 of the Appeal to the reasonings of the learned trial Judge in arriving at the judgment. This is because an Appeal court will not disturb the findings of a trial court on facts unless the Court is satisfied that such findings are perverse or unsound.

Learned counsel for the Respondent then referred to the complaint in Ground 3 of the Appeal and the passage from which the complaint was extracted in the judgment of the lower court and submitted that what that passage meant was the defence put forward by the Appellant in paragraph 3(a) & (b) of the Statement of Defence at page 86 of the Records that the reason why they did not allow the Respondent to graduate was (partly) because she was not entitled to the result of the examinations she took before the determination of the case against her at the Students Disciplinary Committee, and that such defence cannot avail the Appellants because of the pardon granted the Respondent at the intervention of the Appellant’s Visitor for which offence she cannot be tried again at the said Disciplinary Committee.

It was submitted that the Appellant is not appealing against any findings, inferences and conclusions of law or fact made in the passage by the trial court but that their other contentions in particulars ii and iii of the Ground are that the Respondent was deficient in the 75% attendance requirement and that there are some courses outstanding against the Respondent.

He drew the court’s attention to the pleadings filed and the evidence both oral and documentary elicited by the parties on the issue in order to see whether the findings of the lower court were against the weight of evidence and after an extensive analysis thereof submitted that in the light of the pleadings and the evidence, the trial court could not have concluded otherwise than he did at page 153 paragraph 5 of the Record of proceedings.

Ground (4) where the Appellant alleged a misdirection by the court by holding that neither party to the suit challenged the exercise of the Visitorial power of Chief S. K. Babalola Resolution Committee, the learned counsel referred to the two particulars in support of the Ground and reproduced the findings of the court from line 7 page 157 to the last paragraph of page 164 of the Record of proceedings and submitted that the above conclusions were drawn from available evidence and inferences drawn from paragraph 4 of page 150 to the end of the third paragraph of page 153 which was also reproduced and that the Appellant did not appeal against any of such inference and conclusions. He noted that Ground 4 is entirely founded on the inability of the lower court to reckon with a document tendered by the Defendant who did not submit to the jurisdiction of the Visitorial Committee.

He further referred to exhibit H which was tendered by the plaintiff to the effect that after repeated demands by the plaintiff for her result, the Defendant wrote to explain away their reason for withholding the plaintiff’s result but that the letter merely stated that the plaintiff could not benefit from the intervention of Chief S. K. Babalola Committee since she was never rusticated, suspended or expelled by the University and not that the Defendant did not submit to the said Committee’s jurisdiction.

Learned Counsel then submitted that contrary to the contention of the Appellant, the trial court gave consideration to the document in question or the so-called denunciation of the Babalola Committee contained in Exhibit H. Accordingly, he urged us to hold that the Appellant has failed to show in which respect the court below misdirected itself or how its findings were against the weight of evidence.

In respect of Ground 5 of the Notice of Appeal which complained against the comment by the learned trial Judge that the Vice-chancellor did not hide his bias against the Respondent and one Stephen Akinola in Exhibit A2, learned counsel to the Respondent referred us to page 164 lines 18-20 of the Records where this comment appears and noted that of the three reasons given for the complaint the third should out rightly be expunged as the learned trial Judge never said that the maker of the said Exhibit A2 still holds office as Vice-chancellor.

On the remaining two which are that:

(a) There is no evidence that the Vice-chancellor was taken to court by the Respondent and

(b) There was nothing In Exhibit A2 to show that the Vice-chancellor personalized the matter to the extent that the Respondent was punished and prejudiced, learned counsel referred to excerpts of the Judgment where the court made remarks concerning Exhibit A2 which should read Exhibit B and submitted that it is clear from those excerpts why the court made those comments on the former Vice-chancellor’s conduct.

On the strength of the arguments he urged the court to resolve the first issue in favour of the Respondent because all the findings, inferences and conclusions drawn by the court below are clearly supported by available evidence. The appeal he further urged must fail for want of merit and all the declarations made, mandamus ordered, and the exemplary and aggravated damages awarded by the learned trial Judge left undisturbed.

On ISSUE NUMBER 2: WHETHER THE LEARNED TRIAL JUDGE RIGHTLY EXERCISED JURISDICTION OVER THE PLAINTIFF’S CLAIMS, the learned Counsel to the Respondent cited and placed reliance on Section 2 of the University of Ilorin Act Cap. 455 Laws of the Federation, 1990 which empowers the Defendant to sue or be sued in its corporate name submitting that as a statutory creation the Institution/Defendant is/was never to be beyond the adjudicatory power of the court.

He posited that the above does not preclude Defendant from raising an objection in this ease as to the jurisdiction of the trial Judge on any other relevant grounds as enumerated in the ease of EJIOFODOMI VS. OKONKWO (1982) 11 S.C 74 per Aniagolu J.S.C. at 114-117.

Learned Counsel argued that an objection to jurisdiction can be raised cither in the pleadings and/or by motion supported by affidavit giving full facts on which the defendant relies. See NATIONAL BANK VS. SHOYOYE (1997) 5 S.C. 181 per Obaseki J.S.C. at 194 -195. He however pointed out that the records show that the statement of Defence neither contained any objection nor was there any motion to that effect but that the Defendant in his final address before the trial court raised the issue of the University Senate being the only authority to say whether the plaintiff is entitled to be awarded a degree of its University, having cited PATRICK D. MAGIT VS. UNIVERSITY OF AGRIC. MARKURDI (2005) 19 NWLR (pt.959) 211 which by implication means that the court had no jurisdiction.

He further posited that they are not unaware of the position of the law that an objection to jurisdiction may be raised at anytime (see EJOFODOMI VS. OKONKWO (1982) 11 S.C. 74 at 94-95 and BRONIKS MOTORS VS WEMA BANK (1983) 1 S.C. NLR 296 per Nnamani J.S.C. at page 310) but that this cannot be taken as a license for the objection to be raised any how and contrary to the stipulation that it should be by pleading or by motion.

Learned Counsel to the Respondent however conceded that the contention of the Appellant is meant only that the Plaintiffs Claims were above the justiciable power of the trial court. On this score, he then submitted that this court will discover that the Trial Court did thoroughly consider in the judgment the objection of the Plaintiff by relating it to the claim of the plaintiff and the evidence in support before coming to the conclusion to exercise jurisdiction in the matter.

To buttress the above submission he referred to pages 146 to 147 of the Record of proceedings where the learned trial Judge directed himself as to the applicable law relating to the court’s jurisdiction submitting that there is no ground of appeal as to whether the learned trial Judge misdirected himself as to the laws.

He maintained that he learned trial Judge evaluated the claims and defence of the parties and made his conclusion at page 150 lines 10-18 wherein he distinguished the plaintiff’s case from the facts in MAGIT VS. UNIVERSITY OF AGRIC MARKURDI Supra cited by the Defendant and situated same within the exceptional circumstance where the court must intervene in what may seem the domestic jurisdiction of the University in the case of AKINTEMI & ORS. VS. PROF. ONWUMECHILI & ORS (1985) 1 NWLR (pt. 1) 68.

The learned counsel to the Respondent also contended that the learned trial Judge having assumed that the Respondent had a good cause to complain and seek redress from the court rather than the Appellant the learned Judge proceeded to find out whether the Respondent had exhausted all the Defendant’s internal mechanisms for grievance resolution before resorting to court, and resolved from the Exhibits tendered that the Respondent had done everything necessary but that it was the Appellant who left her with no other option than to bring in an external authority in a last ditch effort to obtain redress. This, learned Counsel submitted can be gleaned from the findings of the court below at page 150 to the second paragraph of page 151 of the Record of proceedings and at pages 157-163 where the learned trial Judge also found that the Plaintiff/Appellant took her ease to the Visitor of the University who set up a committee that looked into it, the resolution which the Appellant also defied.

Thus, the court found out that the case was different from AKINTEMI VS. PROF. ONWKMECHILI & ORS Supra and UNIVERSITY OF ILORIN VS. OLUWADARE (2006) 14 NWLR (pt.1000) 751 per Ogbuagwu J.S.C. at 774 where the plaintiffs were found to have taken their grievances before a court prematurely without exhausting the internal mechanisms for redressing domestic disputes within the University, learned counsel submitted.

Finally learned counsel noted that the court below found out that under the guise of carrying out its functions, the Appellant breached the Constitutional rights of the plaintiff to fair hearing which created a situation where the court could dabble into the internal affairs of the appellant to secure the Respondent’s enjoyment of those rights.

From the foregoing, and upon placing reliance on the cases of BARCLAYS BANK VS. CENTRAL BANK (1976) 6 S.C. 175 per Fatayi -Williams J.S.C. at 193; ADEYEMI VS. OPEYORI (1976) 9-10 S.C. 31 Per Idigbe J.S.C. at 51-54 and CHIEKWE VS. OBI ORA (1960) 5 F.S.C. 258 per Bairamian F.J. at 261, he urged this Honourable Court to examine critically the claims of the Respondent in order to determine whether the court below had jurisdiction to adjudicate on the case.

Still on the claims of the plaintiff in the court below, it was submitted on the authority of NDAEYO VS.OGUNNAYA (1977) 1 S.C. 11 per Idigbe J.S.C. at 23-36 that there is a distinction between a judgment which a court is not competent to make and one which even if the court is wrong in law or in fact it is within its competence (jurisdiction).

According to Counsel, the first six claims in this suit were for declarations seeking to test the propriety of the defendant’s performance of its duty and the legality of its conducts against the Plaintiff. Thus he maintained, Section 2 of the University of Ilorin Act is clearly the subject of the jurisdiction of the Federal High Court and the Appellant has a right to appeal against the declaratory orders made by the court if aggrieved but not to say that the court has no jurisdiction to entertain the Suit.

On the seventh claim which is/was for specific performance of an agreement between the parties which the plaintiff claimed was breached by the Appellant, it was submitted that the Federal High Court is both a court of law and equity with jurisdiction to entertain such claim and if the Appellant was aggrieved against the decision of the court in this respect she had a right of Appeal.

As for the 8th and 9th claims which were for mandamus and damages respectively it was also contended by the learned counsel that the court had the jurisdiction to compel the Appellant to discharge its statutory responsibility to the plaintiff after looking at the law setting up the Appellant and that even if the learned trial Judge erred in fact and in law this does not translate to the court not having jurisdiction to grant the Orders.

Moreover, if the Defendant in the cause of discharging her statutory functions caused damage to the interest of its member, be she student or staff, she can be made to pay compensation in damages which the Defendant/Appellant is entitled to appeal against but not on the ground that such a decision is within her domestic scope and beyond the jurisdiction of a court constituted under the Constitution of the Federal Republic of Nigeria to resolve disputes between citizens and between citizens and government including public institutions.

On the whole he urged this Honourable Court on the strength of their arguments to resolve the second issue in favour of the Respondent by affirming the decision of the learned trial Judge finally placing reliance on the dictum of Pats-Acholonu J.S.C. in MAGIT VS. UNIVERSITY OF AGRIC. MARKURDI at pp. 258-260 (supra).

I have taken a critical look at the issues formulated by Counsel on both sides of the divide and as I had earlier on held, not withstanding the inelegance of the issues formulated by the Learned Counsel for the Appellant I am guided by the principles enunciated in CORNELIUS ANJORIN VS. THE REGISTERED TRUSTEES OF CHERUBIM & SERAPHIM CHURCH OF ZION OF NIGERIA (2003) 1 S.C.N.J. 463 where the emeritus Uwaifo J.S.C. eruditely stated the essence of issues for determination in an appeal thus: –

“It must be realized and made clear that the true and ultimate purpose for which Appellant ought to raise issues for determination in an appeal should be for him to assist the Court to decide the appeal in his favour. Such issues ought therefore to be on vital aspects of the judgment where errors are perceived to lead to a miscarriage of justice have been carefully identified from complaints made in relevant grounds of Appeal and espoused in the arguments reflecting those issues.

In the instant appeal a look at the issues formulated would reveal that Issue Number 2 which the Learned Counsel had condemned as not being fit for determination by this Court as it did not arise from the decision of the Court below, questions the finding by the lower court that the Respondent had exhausted all avenues for dispute resolution as far as the withholding of her Degree/Certificate in Industrial Chemistry was concerned yet the Appellant has refused to release same. The Court also held that there was a breach of the Statutory duty imposed on the Appellants by the University of Ilorin Act which breach resulted in damage to the Respondent to whom the court awarded N5,000,000.00 (Five Million Naira) out of the Twenty Million Naira (N20,000,000.00) claimed by her. Thus, there can be no justification for the position taken by the learned counsel for the Appellant as Issue 2 is appropriately formulated from Ground 2 of the Notice of Appeal which is to the effect that the Judgment is against the weight of evidence.

As for Issue 4 (Four) which posed the question as to whether the Vice-chancellor was biased by writing Exhibit ‘A2’ this issue is distilled from Ground Five (5) of the Notice of Appeal which complains of an error of judgment committed by the Learned trial Judge when he held that the Vice-Chancellor did not hide his plain bias against the Plaintiff/Respondent and one Stephen Akinola for taking him and the University of Ilorin (Defendant) to Court. Particulars of the complaint have been supplied and arguments proffered thereon to which the learned counsel for the Respondent has copiously replied. Issue 3 also emanates from Ground 3 which complains against one of the findings of the lower court as to whether the pardon granted the Respondent excused her from re-taking examinations missed during her absence from school.

I therefore agree with the learned counsel to the Appellant and authorities of IKHILE VS. FEDERAL AIRPORT AUTHORITY OF NIGERIA (2003) F.W.L.R (pt.181) 1726 at 1737 paragraphs E-F and ANJORIN LEBILE VS. REGISTERED TRUSTEES C & S CHURCH OF ZION NIGERIA Supra that the appellant’s issues as formulated and the arguments are propositions of fact so cogent weighty and compelling that a decision on any of them in favour of the Appellant will entitle the Appellant either to the judgment of this court or the setting aside of the judgment of the lower court. This preliminary issue will therefore be resolved in favour of the appellant.

The above notwithstanding, I must however agree with the learned counsel to the Respondent that the four issues formulated by the Appellants counsel can be encapsulated in the two issues raised by the Respondent’s counsel. Accordingly, I shall determine this appeal on the said Respondent’s issues which I hereby adopt. I must however, consider the issues raised in reverse order in view of the importance of jurisdiction in the adjudicatory process.

Now learned counsel to the Respondent had argued and conceded to the fact that objection to jurisdiction can be taken at any stage of proceedings including on appeal but his quarrel is the way and manner the present Appellant raised same in the lower court during his final address without incorporating it either in his pleadings or by Motion. An objection or attack on the jurisdiction of a court is not only a question of law but much more a question of competence. It is the live-blood and ‘font et origo’ of adjudication without which a court is devoid of the power and authority to proceed to hear and determine the particular case before it. See the dictum of Obaseki J.S.C. in A.G. LAGOS STATE VS. HON. JUSTICE DOSUNMU (1989) 6 S.C.N.J (Pt. 11) 134 at 172 to 173; where he stated inter alia:

“If a court has no jurisdiction it cannot exercise the powers granted it by the Constitution or law to enable it exercises the jurisdiction. If a court lacks jurisdiction to entertain a matter whatever merit the matter may have under other laws cannot be enquired into. Indeed a Court that has no jurisdiction to entertain such a matter has no jurisdiction to inquire into it. The only jurisdiction it can exercise is jurisdiction to enquire into the question whether it has jurisdiction to hear the case.” See BARCLAYS BANK OF NIG. LTD. VS. CENTRAL BANK OF NIGERIA (1976) 1 ALL NWLR 409. Per Oputa J.S.C.

Against this background we shall now consider issue number 2 (two) of the Respondents brief which is the same with issue one of the appellant’s brief that is:

1. “WHETHER THE LEARNED TRIAL JUDGE RIGHTLY EXERCISED JURISDICTION OVER THE PLAINTIFF’S CLAIMS?” Put differently, had the learned trial Judge the jurisdiction to entertain the suit which arose from a supposed internal matter within the exclusive jurisdiction of the Appellant?

In UTUEDOR UTIH & ORS VS. JACOB ONOYIVWE & ORS (1990) 1 S.C.N.J. 25 at 63 the learned Karbi-whyte J.S.C. had given us a compass with which to navigate the stormy waters of jurisdiction when he directed: –

“First, the question whether the court can exercise jurisdiction in an action would depend on the endorsement of the claim on the writ of summons and the reliefs in the statement of claim. Thus where the endorsement on the writ of summons and statement of claim discloses a cause of action, the court unless precluded by other statutory provisions can exercise jurisdiction.”

See further ARIYO VS. OGELE (1968) 1 ALL NLR 1; TIMITIMI VS. AMABEBE XIV W.A.C.A 374 and ATTORNEY-GENERAL OF THE FEDERATION VS. SODE (1990) 1 NWLR (pt.128) 500 503-505.

My Lord Karibi-Whyte in so holding re-echoed the dicta of the Supreme Court in

A.G. LAGOS STATE VS. HON. JUSTICE DOSUNMU Supra and the Locus classicus of MADUKOLU VS. NKEMDILIM that Jurisdiction exists: –

(a) When the court takes cognizance of the class of cases involved

(b) Proper parties are before it, and

(c) The point to be decided is within the powers of the court;

(d) The court is properly constituted as regard numbers and qualification of members of the bench with none of the members being disqualified and

(e) The case comes before the court initiated by due process of law and upon fulfillment of a condition precedent to the exercise of jurisdiction.

In the appeal at hand, it would appear that the contention of the appellants is that upon a perusal of the endorsement on the writ of Summons, the statement of claim, and the reliefs sought by the Plaintiff, the court cannot take cognizance of the class of the claims or reliefs sought and that the point to be decided was not within the powers of the court; the said court having been precluded by statute (in this case the University of Ilorin Act Cap. 455, Laws of the Federation 1990).

On the contrary the learned counsel to the Respondent has contended that the learned trial Judge took into cognizance and critically analyzed the statute in question and having not misdirected himself held before the evaluation of the evidence of the witnesses that the court cannot usurp the functions of senate, council and visitor of the University in the selection of fit and proper candidates to award its degrees, certificate and Diplomas. It was further submitted that the court distinguished the case cited by the Appellant and came to the conclusion that this is a proper case for the intervention of the courts since the Respondent had exhausted all available internal grievance resolution mechanisms and in a last ditch effort found solace in the court for redress.

Now following what the apex court has said on the grounds for exercise of jurisdiction we shall take a look at the endorsement in the writ of summons and the statement of claim.

The summary of the facts pleaded by the Plaintiff/Respondent in the lower court are as follows: –

1. That she is a student of the University of Ilorin who was admitted in the 1995/96 session to study Industrial Chemistry with Matriculation Number 95/043589.

2. Between 1995 and 2001, the plaintiff undertook and completed successfully the prescribed courses of study leading to award of B.SC. Degree in Industrial Chemistry.

3. Between that periods the plaintiff having not been previously notified that avoidance of participation in students Unionism was a condition for award of a Degree of the University took active part in students Union politics and assumed leadership roles in the University of Ilorin students Union.

4. In the 1997/98 Academic Session the Plaintiff was elected Assistant Secretary of the Union in the course of which she and some of her colleagues in the Union leadership got involved in students protests on the Nigerian polity and the local welfare of students within the campus.

5. This generated a face-off between the Plaintiff and the Defendant culminating in two suits Numbers FHC/IL/M17/98 and FHC/IL/M30/99 both of which were in favour of the Plaintiff/Respondent.

6. The Defendant was about challenging the out come of the above proceedings in the Court of Appeal after the plaintiff had initiated contempt proceeding when the President and then Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria as the visitor of the Defendant, set up a “Resolution Committee on Politically Victimized And Rusticated Students” under the Chairmanship of the then Special Adviser on Education, Chief S. K. Babalola, to mediate and resolve the impasse in the Defendant and similar cases in other Universities across the country;

7. The parties made representations to the Committee as contained in the Visitor’s Letter with Reference No. VCO/131.S.1 dated 11th June, 2001, setting up the panel which the plaintiff pleaded.

8. The Committee resolved that at the instance of the Defendant that the Plaintiff in spite of the favourable court judgment shall tender unreserved apology through the Committee to the Defendant and pay a restitution of N1, 000.00 as atonement for her students Union activities considered offensive by the Defendant, and that the Defendant as quid pro quo thereof forgive the Plaintiff. The Defendant conveyed this decision to the plaintiff by a letter dated 13th September, 2001.

9. The Plaintiff agreed to abide by the advise of the Presidential Committee and tendered the unreserved apology together with the payment of the N1,000.00 restitution the undertaking signed by the Plaintiff as demanded, and clearance certificate subsequently issued by the Defendant’s department of chemistry clearing the plaintiff which were all pleaded and notice given the defendant to produce same.

10. Subsequently, the Defendant at page 4 of its official Publication called the “Unilorin Bulletin” (Vo1.5 No. 27 of Friday, September, 2001) under the caption “RASHEEDAT, ONE Other Pardoned,” announced that the Plaintiff had been pardoned. The Plaintiff also pleaded the Bulletin.

11. On the 29th day of October, 2001 parties informed the Court of Appeal that the issue in the aforesaid Suit Nos. FCH/IL/M17/98 had been settled out of Court and by consent of the parties the Court of Appeal struck out the Suit pending post judgment application in the proceedings of the suit.

12. The Plaintiff then returned to school in the 1999/2000 academic session to make for the semester she lost whilst serving suspension in the 1998/99 academic session, and completed the course of study for the award of a B.SC. Degree in Industrial Chemistry in the 2000/2001 academic session.

13. Despite repeated demands, the Defendant, for no apparent reason and without official explanation refused and/or neglected to release the Plaintiffs results and Degree Certificate which resulted in the Plaintiff and one Mr. Lame Akinola visiting the then Vice-Chancellor, Prof. S. O. Abdul Raheem, in his office to thank him for pardoning their alleged transgressions and also to find out why their results and certificates were being withheld.

14. The said Vice-Chancellor told the plaintiff to become more serious with her Islam by abandoning her socialist beliefs as a condition for the release of her academic records which the plaintiff took as a joke at the time the said Vice-Chancellor made the statement.

15. However, the Defendant has continued to withhold the plaintiffs academic records and prevented her from proceeding on N.Y.S.C. or getting a job neither can she pursue her ambition of embarking on part time post graduate studies for which she would have become qualified after her National Youth Service in 2002.

If we go by the averments in the highlighted paragraphs of the statement of claim and reliefs sought particularly in paragraph 22 (a) – (i) the argument of the learned counsel for the Appellant that the lower court had no jurisdiction to adjudicate on an internal affair of the Appellant (the award of a degree to the Respondent), may sound very plausible particularly as Section 3(1) (e) of University of Ilorin Act Cap. 455, Vol. XXIII, Laws of the Federation of Nigeria 1990 which spells out the power of the University and the mode of exercising same, provides thus: –

“3(1). For the carrying out of its objects as specified in section 1 of the Act, the University shall have power -(e) To hold examinations and grant degrees, diplomas, certificates and other distinctions to persons who have pursued a course of study approved by the University and have satisfied such other requirements as the University may lie down.”

Thus, in the celebrated case of AKINTEMI VS. ONWUMECHILI (1985) 1 N.W.L.R. (pt.1) 68; Irikefe, Kazeem and Kawu J.J.S.C. took the view that it is incontestable that the issues with which the appeal was concerned of which one of them was the award of law degree to a law student accused of examination malpractice and who sought by way of the prerogative order of mandamus to compel the Senate of the University of Ife to publish her result of the part IV final LLB. Degree examinations which she took in June, 1981 at the Faculty of Law and allegedly passed with flying colours, belonged to the domestic domain of the University as established in the statutes establishing it and as such not justiciable in a court of law.

Per Coker J.S.C. on his part felt that: “The remedy provided in the statutory provisions governing the University in this matter is more convenient, cheaper and more expeditious than proceedings in a court and further the statutory forum is better equipped in dealing with the matter than the court. The court as guided by a long line of decisions will refuse, in principle and justice, to entertain them although it is not for want of jurisdiction but more on ground of public policy and discretion.”

In the recent case of MAGIT V UNIVERSITY OF AGRIC. MARKURDI (2005) 19 NWLR (pt. 959) 211 (a decision which has now become a mantra at the mere mention of matters of this sort before the courts), the Supreme Court while restating the time honoured principle enunciated in both English and Nigerian cases decided earlier held that in so far as the award of a degree or certificate is concerned, the courts have no jurisdiction in the matter and any attempt by any court including the Supreme Court to dabble into the arena of purely administrative and domestic affairs of a University may lead to undue interference and weakening of the powers and authority conferred on the Universities by statute and will not be justifiable or justified, see UNIVERSITY OF CALABAR VS. ESIAGA (1997) 4 NWLR (pt. 502) 719.

Indeed Ogbuagu J.S.C. who wrote the lead judgment of the apex court had however cautioned that: – “It need be stressed, that every case must be determined or decided on its own peculiar circumstances.” The pertinent question now is, under which peculiar circumstances can a court (including the Supreme Court) dabble into the arena of purely administrative and domestic affairs of a University?

This is where the dictum of Obaseki J.S.C. in AKINTEMI VS. PROF. ONWUMECHILI Supra at pages 85-86 comes in handy to illumine the dark crevices of this vexed issue of the jurisdiction of Courts established by the Supreme law of the land (the Constitution of the Federal Republic of Nigeria 1999). It would appear with due reverence that MAGIT VS. UNIVERSITY OF AGRIC. MARKURDI went too far in the ascription of power to the Universities including that of exclusivity of adjudication which has been vested on Courts by section 6 subsection (6) (a) and (b) of the Constitution.

Hear the Learned and eminent jurist in his characteristic frankness and erudition: –

“If a matter is justiciable in Nigeria, the domestic nature of the dispute does not, under the 1979 Constitution oust the jurisdiction of the Court. See Section 6 (6) (b) of the 1979 Constitution (now 1999 Constitution).

It can only mean that until the remedies available in the domestic forum are exhausted, any resort to court action would be premature. The main question set above however requires an examination of the affidavit evidence filed by parties together with consideration of all the submissions on the matter by counsel.”

Subsequently, the Learned Law Lord entered the caveat thus:-

“The courts cannot and will not usurp the functions of the Senate, the Council and the Visitor of the University in the selection of their fit and proper candidates for passing and for the award of certificates, degrees and diplomas. If however, in the process of performing their functions under the law, the civil rights and obligations of any of the students or candidates is breached, denied or abridged it will grant remedies and reliefs for the protection of those rights and obligations” (underlining mine).

Going by this authority it is clear that where, as in this case, the Plaintiff seeks for declarations that in the determination of whether she is entitled to be awarded the Degree for which she has completed her course of study since the year 2001, and even where she has fulfilled all other conditions as spelt out by the Defendant’s Visitor the President of the Federal Republic of Nigeria’s brokered agreement, Appellant without any explanation or hearing has refused to release her result or award her the said degree, the lower court was seised with jurisdiction to question the act of the University. The Respondent alleges that she has suffered and wasted the productive years of her life, lost as at then three years of seniority in any employment she would have been engaged as compared to her academic contemporaries. She has also lost her ambition of embarking on part-time post-graduate studies which she should have become qualified for after completing her National service.

She therefore seeks an order of mandamus compelling the Defendants to remove all administrative impediments for the release of her academic records and Degree. Finally, having suffered the damages afore stated the Respondent seeks for an Order of specific performance of the agreement brokered by the President’s Visitorial Committee on Politically Victimized And Rusticated Students and monetary compensation in the sum of N20,000,000.00. These facts definitely situate the Plaintiff/Respondent’s case in the peculiar exception highghted by my Lord Obaseki J .S.C. in the Akintemi vs. Onwumechili case.

Apart from exhausting the internal mechanisms for conflict resolution by making representations to the Vice-chancellor through the Head of Department and the Dean Faculty of Science by Exhibits E, E1, E2, the Respondent in conjunction with Stephen Akinola as one of the politically victimized and Rusticated students, had made representations to the Special Adviser on Education Chief S. K. Babalola who chaired the Resolution Committee on Politically Victimized and Rusticated Students And Staff, thus exhausting all avenues for conflict resolution within the Defendant/Institution yet the Defendant/Appellant has refused to release the Respondent’s results and Degree.

I agree therefore with the submissions of learned counsel for the Respondent that the Respondent in a last ditch effort had to seek redress in court having done everything to no avail to have the dispute between her and the Defendant/Appellant resolved.

I have also looked at Exhibits H and H1 as against the answers to the interrogatories filed by the Learned Counsel to the Defendant/Appellant and the evidence of the DW1 – DW5 which confirm the assertion and findings of the learned trial Judge at pages 150 to 151, that the Appellant and witnesses are insincere, vague, evasive, confusing and contradicting in their statements regarding the real offence or reason why the Respondent’s result is not released till date. I agree with my Lord Nnamani J. and I could not have put it better that the Appellant ought to be direct, frontal and positive in letting the Plaintiff know the case against her (why her result is being withheld) rather than toy with her constitutional right to be informed of the offence or transgression against the law of the Defendant after she had apologized and paid the restitution as directed by the Visitor of the University who is superior even to the Vice Chancellor and Council or Senate, See Section 13 of the University of Ilorin Act.

From the foregoing it is not correct to allege as the learned counsel for the Appellant has done that the trial Judge wrongly gave himself jurisdiction. I am not oblivious of the awesome powers conferred either on the University, the Senate, Council or Visitor as far as conferment of Degrees and exercise of disciplinary powers against errant members of University are concerned, But let it be repeated here as it was done in GARBA VS UNIVERSITY OF MAIDUGURI (1986) NWLR (Pt. 18) 550 where Kayode Eso J.S.C. placed reliance on the dictum of Lord Denning M.R. in EDUCATION SECRETARY VS TAMESIDE B.C. (C.A) (1977) A.C. 1014:- that if a statute gives a Minister power to take drastic action if he is ‘satisfied that a local authority has acted unreasonably, then the Minister should obey the elementary rules of fairness before he finds that the local authority is guilty or before he takes drastic action over ruling them. He should give the party affected notice of the charge of impropriety or unreasonableness and a fair opportunity of dealing with it’.

My Lord Eso .J.S.C. then re-echoed this noble and admirable dictum of the Learned Master of the Rolls when he charged that to give a blind implementation to the decision of the executive and without regard to the elementary rules of fairness is an abdication by the judiciary of its powers to the executive especially in our Country where the powers of each of the organs of government are distinct. See Sections 4, 5 and 6 of the 1999 Constitution.

Section 6 (6) (a) and (b) of the Constitution for instance categorically and mandatorily provides as follows:-

“(6) The judicial powers vested In accordance with the foregoing provisions of this section –

(a) Shall extend, not withstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law.

(b) Shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

To the best of my knowledge, the constitution of Federal Republic of Nigeria 1999 only divests the courts of their adjudicatory powers on any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy as set out in Chapter II of the Constitution; and shall not extend to any action or proceedings relating to any exiting law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law. See Section 6 (6) (c) and (d) of the 1999 Constitution.

Why then are the courts still timid in exercising the powers which have been constitutionally conferred exclusively on them to adjudicate between government and government and between persons and authorities, by drawing a line of demarcation between the ‘forum domesticum’ of the University and the Courts? With due respect, I am of the candid opinion that cases like MAGIT VS. UNIVERSITY OF AGRICULTURE MARKURDI Supra and AKENTEMI VS. ONWUMECHILI Supra ought be revisited in view of the tendency of authorities of the ilk of the University of Ilorin to abuse the powers conferred on them by the statutes creating them thereby causing their members untold hardships.

We run a constitutional Government where the powers of each organ is spelt out and where the wordings of the constitution are clear and unambiguous, those words should and must be given their ordinary meanings without resort to any rules of interpretation which would rather do violence to the spirit and letters of the constitution. See AWOLOWO V. SHAGARI (1979) N.S.C.C. 87; A.G. BENDEL STATE VS. A.G. FEDERATION & 22 ORS. (1982) 3 N.C.L.R. 1; DIN VS. A.G. OF THE FEDERATION (1988) N.W.L.R. (pt. 87) 147.

The wordings of section 6 (6) (a) and (b) are clear and unambiguous that it is within the exclusive realm of the Courts established by the Constitution “not withstanding any thing to the contrary in this constitution” to exercise all inherent powers and sanctions of a Court of law and such powers shall extend to all matters including a dispute between a student (a person) and government or Authority like the Senate of the University of Ilorin which has for no just cause refused and / or neglected to publish the result of the respondent who according to her has fulfilled all academic and other requirements for the award of a degree in Industrial Chemistry since 2001. The Respondent is in Court to question the breach of her right to earn a certificate or degree after fulfilling the school’s obligations as stipulated by its regulations concerning examinations and attendance and the elusive, disjointed and equivocating evidence of the DW1 – DW5 together with documentary evidence tendered have shown that she deserves not to be shut out from ventilating her grievances in the lower Court or this Court.

One of the laughable points made by the learned Counsel in his submission at page 18 of the Appellant’s Brief is that fair hearing within Section 36 of the 1999 Constitution is not applicable because there was nothing to be heard before the Senate and that even if the matter went to the Senate the Respondent would not have a say in the Senate’s deliberations on her result whether or not her right had been breached in the process.

If this is the intendment of Section 3 (1) (e) and 6 (2) (c) and (b) of the University of Ilorin Act Cap. 445 Laws of the Federation 1990, then the Learned Counsel for the Appellant is mistaken. In the first place subsection (6) of the Section provides for a right of appeal to the University Council from the decision of the Senate under the subsection if the Senate deprives any person of any Degree, Diploma or award conferred on him. Secondly, there is no provision in the law that where a student is so deprived of his degree he or she shall not go to court as the Council shall be the final arbiter in such a case. Even if such provisions were made it is unconstitutional by virtue of Section 4 (8) of the 1999 Constitution which provides that the exercise of the Legislative powers of the National Assembly or the House of Assembly shall be subject to the jurisdiction of courts of law and that neither the National Assembly nor the State Assembly shall make any law that ousts or purports to oust the jurisdiction of a court of law.

Again the purport of the submission of the Learned Counsel for the Appellant is that the breach of Section 36 of the Constitution which deals with fair hearing does not arise in this case. Specifically, apart from the provisions of Section 36 (1) thereof, which states that 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 Constituted in such a manner as to ensure its impartiality; subsection (2) of the section which has always been glossed over particularly in matters of this nature where the Senate or Council is clothed with absolute powers of determining the fate of whom to award a degree stipulates that:

“(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers any government or authority power to determine questions arising in the administration of a law that may affect the civil rights and obligations of any person if such law –

(a) Provides for an opportunity for the person whose rights and obligations may he affected to make representations to the administering authority before that authority makes the decision affecting that person; and

(b) Contains no provision making the determination of the administering authority final and conclusive.”

The corollary of the above subsection is that if the University of Ilorin Act purports to vest the Senate or Council with the final authority to decide on the award of Degree to the Respondent who feels her right has been breached then such on Act or indeed that provision imbuing those organs of the University with such absolute powers are invalid and unconstitutional.

It is submitted that this subsection was inserted into the constitution to curb the excesses of draconian legislation or to stem the tide of arbitrariness inherent in the submission of the learned counsel for the appellant on non-observance of the rules of fair hearing and non-intervention of Courts in Ministerial or executive or administrative decisions.

Again, that subsection was included in the Constitution to give persons (like Rasheedat) who might be subject to executive absolutism, a lee-way to make representations before being condemned. In other words, the rule of natural justice and fair hearing which are encapsulated in the Latin maxims ‘audi alteram partem’ and ‘nemo judex in causa sua’ are further given constitutional flavour under this section.

From the foregoing, I hold that the learned trial judge rightly exercised jurisdiction over the Plaintiff’s case and Issue Number 2 of the Respondent which is the same with Issue Number I of the Appellant’s brief is hereby resolved in favour of the Respondent. Ground ONE (1) of the Ground of Appeal shall fail.

ISSUE NO I: WHETHER THE EVIDENCE ADDUCED AT THE TRIAL SUPPORTS THE JUDGMENT OF THE LEARNED TRIAL JUDGE (GROUNDS 2, 3, 4 AND 5 OF THE NOTICE OF APPEAL).

In answering this question, we must not loose sight of the oft-quoted dictum of Fatayi – Williams J.S.C. (as he then was) in MOGAJI & ORS VS. ODOFIN & ANOR (1978) 4 S.C. 91 and 94 that a Judge before whom evidence is adduced by parties in a civil case comes to a decision as to which of the evidence he believes or accepts and which evidence he rejects he should first put the totality of the testimony adduced by both sides on the imaginary scale of Justice in order to find out which evidence outweighs the other, by the quality of the probative value of the testimony of the witnesses and the documents tendered.

Taking a cue from the above decision, it would be recalled that the gravamen of the Plaintiff/Respondent’s claim in the lower Court is that she was rusticated for partaking in violent protests in the Defendant/University which ended up in a Court case in the 1998/1999 Academic session.

By reason of this impasse between the Plaintiff and Defendant, the Defendant could not complete her course of study. Subsequently, the President in his capacity as the visitor of the Defendant appointed the Resolution Committee of Politically Victimized Students” which was headed by no less a person than the Special Adviser on Education Chief S.K. Babalola. Upon the intervention of the Committee, the Plaintiff/Respondent was pardoned having apologized in writing and paid N1,000.00 restitution as in Exhibit C dated 18/8/98 She was then a 400 level student. She also entered into and undertaking to be of good conduct. See the document dated 19/8/98 attached to the said Exhibit C.

To buttress the fact that she had been pardoned by the Defendant which impliedly vested her with all the privileges appurtenant to membership of the Defendant, the Appellant in its “UNILORIN BULLETIN” of Friday September 21, 2001 Vol. 5 No. 27 which is published “by information unit, Vice – Chancellor’s Office, University of Ilorin, Nigeria, P.M.B. 1515, E-mail ve @unilorinedu.ng “(See page 2 there of) at page 4 reported thus:-

“RASHEED AT, ONE OTHER PARDONED”

“Following the intervention of the Resolution Committee of politically victimized and Rusticated students who visited the University, and an appeal made to the University with regards to the disciplinary action meted out to some students as a result of their participation in the students’ rampage of 1998, the cases of Miss Aderike Rasheedat Adesina of Chemistry Department and Mr. Akinola Stephen Olarenwaju of Statistics Department have been reviewed having written letters of apology.

In the letters signed by the Registrar Mr. T.A. Balogun, it was stated that the University Administration has decided that:

.:. Your apology contained in your letter written through the Chairman of the Resolution Committee to the Vice Chancellor of the University of Ilorin dated 22nd June, 2001 is accepted;

.:. Your studentship be restored after payment of the N1,000.00 restitution fees paid by your colleagues and

.:. The Director, Legal Services affects the withdrawal of the court case against you/as a concession to the Resolution Committee’s appeal.

………………..

” In a similar development, the Administration has acknowledged receipt of a letter No. RC/OC/22/6/1 dated 22nd June, 2001, on the visit of the Resolution Committee to the University.

“The letter addressed to the Chairman, Resolution Committee of Politically Victimized and Rusticated Students’, stated that upon consideration of letters of apology by the two concerned students it (Administration) had accepted their apologies.”See paragraph 11 of the statement of claim.

Subsequently, she returned to school in the 1999/2000 academic session to make up for the semester she lost while being rusticated for partaking in the students demonstration in the 1998/1999 academic session, and completed the course of study for the award of the B. Sc. Degree in Industrial Chemistry in the 2000/2001 academic session. See paragraph 13 of the statement of claim. To prove that she returned to school the Plaintiff tendered her

“Departmental Clearance Form for Returning Students” which was duly signed by the Departmental Class Adviser and the Head of Department.

She also tendered University of Ilorin Bursary Department Students Receipts dated 8/6/99, 3/8/2000 and 3/12/2001 respectively as a 400 level student.

However, as pleaded in paragraph 14 of the statement of claim the Defendant for no apparent reason and without official explanation refused and 1 or neglected to release the Plaintiff’s final result and Degree/Certificate. The Plaintiff visited the then Vice Chancellor in company of one Mr. Akinola to thank the Vice Chancellor of the Defendant for forgiving the Respondent supposed transgressions and to find out why the release of her result and certificate were being delayed but the Vice Chancellor in what the Respondent thought was a joke told them that he would be pleased to hear that the Respondent had abandoned her socialist political belief and for her colleague Stephen Akinola who was a Christian to convert to Islam. See paragraph 15 of the statement of claim.

However, the Defendant had continued in its neglect to release the results and Degree certificate despite repeated demands and appeals. The Respondent in the course of trial tendered Exhibits ‘E’, E1 and E2 which were letters written by the Respondent and her counsel the CITIPOINT CHAMBERS of 234 Murtala Mohammed way, Yaba Lagos.

The Respondent has pleaded how she has lost her productive years because of the capricious withholding of her certificate. She has also suffered loss of seniority to her academic contemporaries hence her claims in paragraph 22 (a) to (i) of the statement of claim.

To debunk the claim of the Plaintiff/Respondent, the Appellant as Defendant pleaded in paragraphs 3, 3(a), 3(b) 4, 16, 17, 1822 and 25 of her Further Amended Statement of Defence in sum:-

3. That the Plaintiff did not fully and successfully complete the course of study prescribed by the Defendant’s Regulations approved by the Senate of the Defendant for the award of B. SC. Degree in statistics (read Industrial Chemistry) and put the Plaintiff to the strictest proof of paragraph 3 of the statement of claim.

“3 (a) In further answer to paragraph 3 of the statement of claim, the Defendant avers that the second semester 1997/98 academic session examination was invalidated and the Plaintiff was accordingly informed by the H.O.D.

“3 (b) The Defendant avers that the Plaintiff failed to re-sit the invalidated examination.

“4 In further answer to paragraph 3, the Defendant avers that after the intervention of the so called presidential team called “Resolution Committee of POLITICALLY VICTIMIZED AND RUSTICATED STUDENTS” and which was not authorized by the President of the Ministry of Education which does not even apply to the Plaintiff because she was not politically victimized, the Plaintiff arrogantly refused to take necessary steps to satisfy the requirements prescribed by the Defendant for awarding B. Sc. Degree such as mandatory attendance of lectures, laboratory workshop, maximum period of study prescribed for the award of B. Sc. Statistics (read Industrial Chemistry).

“17. The Defendant denies paragraph 13 of the Statement of Claim and avers that the Plaintiff did not complete the course of study prescribed by the Defendants for the award of B. Sc. Degree in Industrial Chemistry. The Plaintiff failed to have the required mandatory attendance of lectures, laboratory workshops, maximum period of study and etc.

“18 In further answer to paragraph 13 the Defendant avers that the Plaintiff was not and is not entitled to any results and certificate as she has not satisfied the conditions prescribed by the Defendant for the results and certificate requested for. The Plaintiff must also be worthy of character and learning. ”

Then in paragraph 19 the Defendant turned summersault to aver that the Defendant will contend at the trial of the suit that the real issues arising from the suit concerns Plaintiff s refusal to comply with the matriculation oath sworn to by Plaintiff.

In paragraph 22, the averment above was repeated and it was contended that the Plaintiff/Respondent was not entitled to her results as the refusal to release same was in accordance with the regulations governing the conduct of academic activities of the Defendant.

In response to paragraph 22 of the Plaintiff/Respondent’s Claim, the Defendant stated that the Plaintiff voluntarily wasted her time by refusing to satisfy the conditions laid down by the Defendant and by her breaking the matriculation oath and as such she should not complain of not graduating and proceeding on National Youth Service as at when due.

Consequent upon the defence that the Respondent did not meet the requisite requirements for the award of the Defendant’s Degree, and that she had a deficit of 21 credit loads to pass before graduation, did not meet clear outstanding courses like ICH 425 (2), ICH 427 (1), CHM 316 (2), ICH 320 (3) ICH 345 (1) and CSC 201 (2) as she did not come back to register for those outstanding courses; and that she did not complete the required practical’s and continuous assignments. Furthermore, since she was also alleged to have completed only 17% of the 75% maximum attendance of lectures for ICH 2001 in which case she has not met the necessary requirements for the award of the degree she has studied for, according to the Defendants evidence, the Learned Counsel to the Plaintiff/Respondent filed interrogatories and served same on the Defendant /Appellant.

At page 53 of the Record of proceedings the Answers to the Interrogatories were given by the H.O.D Chemistry to the Deputy Registrar Academics. For instance Question 3 (1) which was, “How many courses are still outstanding against the Plaintiff and what course.

“Answer: None.

“Question 3 (d) when and by what means was the Plaintiff notified of the alleged outstanding courses by the Defendant?

“Answer: Not applicable.”

At page 54 of the Record of Proceedings the Interrogatories continue:-

“Question 4 (a) what is the mandatory number of lectures required to be attended by a student to quality for the award of a B. Sc. Degree in Industrial Chemistry from the Defendant?

“Answer: A student must attend at least 75% lecture hour.

“Question 5 (a): What is the laboratory workshops prescribed for award of a B. Sc.

Degree in Industrial Chemistry.

“Answer: See Appendix I.

“Question 5 (b): Which did the Plaintiff attend.

“Answer: All necessary required courses.

“Question 5 (c):- Which did the Plaintiff fail to attend?

“Answer: None.

At page 55 – 60 the Details of under Graduate Courses for B. Sc. Industrial Chemistry and the total number of credit hours have been given.

It would be recalled that the interrogatories were made by internal memorandum from the Head of Department of Chemistry to the Deputy Registrar. The Head of Department Professor Obaleye signed and dated the document on the 25th of July, 2005. It is however pertinent to note that the Academic Record of the Respondent duly signed by the Head of Department on the 20th November, 2001 has it that the Respondent offered 151 credits and passed 131 credit with only the course ICH 209 outstanding with 20 credit loads.

The Plaintiff testified under cross-examination that she was not informed by the Head of Department that his 1997/98 academic sessional examination result was in invalidated.

It would also be recalled that apart from the interrogatories which the Respondent relied upon in proof of her case, she tendered the following documents from the Bar which were admitted without objection.

I) C.T.C. of the enrolled order of the Federal High Court in suit No FHC/IL/M17/98 -Exhibit A.

2) C. T.C. of the enrolled order in suit No. FHC/IL/M30/99 – Exhibit A1

3) Letter from the Defendant dated 11 – 6 – 01 to Chairman Committee on Politically Victimized Students and Staff – Exhibit B

4) Letter from the Committee on Politically Victimized Students to the Vice Chancellor of the Defendant dated 22/6/2001 – Exhibit B1

5) Clearance Form for payment of restitution levy issued by HOD Chemistry –

Exhibit C.

6) Certified True Copy of Order of withdrawal of contempt proceedings – Exhibit D.

7) A Copy of Bulletin of University pardoning the Plaintiff Exhibit D1.

8) Letter of Plaintiff to Vice Chancellor Unilorin dated 15/7/03- Exhibit E.

9) Letter from Plaintiffs Solicitor dated 14 – 4 – 04 to Registrar University of Ilorin

– Exhibit E1.

10) Letter from Plaintiffs Solicitor dated 24/6/04 – Exhibit E2.

11) Defendant’s clearance from HOD to Plaintiff – Exhibit F.

12) Letter of pardon – Exhibit G.

The Plaintiff testified on oath and stated that after the exchange of pleadings she remembered filing interrogatories which he urged the Court to take judicial notice of it. She stated further that she has not been given her degree result by the Defendant and she wanted the Court to grant all her claims as per her statement of claim and that she wanted the Court below to order damages to be paid in her favour as the Defendants had unnecessarily frustrated her for no just cause. She intimated the Court also that she was unable to secure work and could not get on with her education but is now forced to marry.

Under cross-examination as to whether she was informed by her Head of Department that her HOD’S 97/98 academic session’s examinations were invalidated she replied in the negative. She further disclosed that even after she was pardoned she took ICH 209 which she passed. Under further cross-examination, she replied that she was elected Assistant Secretary General of the Students’ Union in 1997/98 academic session while Femi Adetola was President of the Students Union. Finally she stated that Wasiu Raji and Femi Adetola were not expelled from the University but she would not know whether they have graduated. The witness was not re-examined.

At the close of the Plaintiffs case the Defendant on her part called five witnesses here in to be referred as DW1 – DW5.

In his evidence-in-chief, DW1 Suleiman Age Abdulkareen a lecturer in the Chemistry /Department told the Court that he knew the Plaintiff/Respondent from one hundred levels to her 400 level when last she was seen in her semester examinations but that the Plaintiff/Respondent had not graduated as she was not in school throughout the 1999/2000 academic session. Prof. S.O Akande was at that time the Dean of Faculty of Science. He was the examination officer in 1999 – 2000 sessions for the Department of Chemistry and kept records. He related how he saw the Respondent being led away by Security men during the student’s protests that occurred early that session as a result of increase in school fees. After the protests other student’s leaders in his DW1’s Department returned to school but Respondent did not come back that 1999/2000 session but when second semester started the Respondent briefly came in 2000 but later disappeared. She came back in March, 2000 and reported in is (DW1’s) office with a letter from a lawyer telling him that she was taken back and for the whole session the Respondent was not in school.

The witness remembered advising the Respondent to go and re-register for the courses some of which were 200 level courses standing against her like GNS. When asked about the Respondent’s status the witness said he told the school that she had to complete the 200 level courses for her to progress to 400 level courses and that was the last time he saw the Respondent at the 2nd semester 1999 – 2000 sessions. 21 credit load courses for 1999 – 2000 sessions are outstanding against the Plaintiff/Respondent, he stated. The Plaintiff also did not secure 75% attendance and there was no way she could do that. He spoke with Wasiu Raji and other colleagues of the Respondent who heeded his advice to re-register and they have graduated having done their outstanding courses. When cross-examined by Counsel for the Respondent however the witnesses stated thus:-

“Courses outstanding in paragraph 2 of Further Amended Statement of Defence are not written by me but the courses mentioned herein are ICN 425, ICN 427, CHM 316, ICH 320, ICH 345 and CSC 201. The Statement of Defence is not my case. The Statement of Defence should not be relied upon. The other courses the Plaintiff did not do apart from the one in the Statement of Defence paragraph 2 are ICH 446, CHM 414, ICH 209 and CHM 308. I did not answer the interrogatories. Interrogatory reveals that the courses are not all outstanding against the Plaintiff and this was filed by Defendant’s Counsel Olatunji Arosanyin Chief. I did not consult attendance register before coming to court to say Plaintiff did not attain 75% attendance. The attendance register must be in the Departmental records. In answer to the interrogatories filed by the Defendant, the HOD signed while the Dean did not sign “.

DW2:- Murtala Tunde Balogun (Alhaji) the then Registrar of the University/Defendant when called denied ever advising the Plaintiff and another to go and beg the Vice – Chancellor because he and the Vice – Chancellor left the Defendant almost at the same time. He also denied making any statement touching on the fact that if the Respondent went to court he would be falling into the trap of the Defendant in wasting the Respondent’s and her colleague’s time.

Under cross-examination, he disclosed to the Court that he left office in 2002 and confirmed on further cross-examination that:

“I pardoned the Plaintiff based on Babalola Committee for her to come back to continue her academics. I rely on the contents of the letter of pardon tendered as Exhibit G which is very clear. The result of the Plaintiff was never sent to the defendant Senate. No letter written to me that the Plaintiff is not qualified or that he is qualified.” The witness was not re-examined.

DW3 George Oluwafemi Adediran on his part testified that he was a lecturer who taught the Respondent in the Department of Industrial Chemistry. He was asked to write on the academic status of the Respondent sometime in August, 2001 and he obliged same to the Dean of Science of the Defendant. He identified the signed Academic status which was tendered as Exhibit and added that the record is based on the returns made to him. He admitted signing the answers to the interrogatory (that is the result sheet at the last page thereof) and that the interrogatories replied to ICH 425 – 622 (B) ICB 427 – 609 (B), ICH 316 – 622 (B). ICH 320 – 742 (A); ICH 345 – 567 (C) CST 201 – 452 (D) as the scores of the Respondent whom he admitted was a brilliant student but added a rider that the constitution of result is not only based on academic performance alone, According to him a result can be outstanding even where respondent passes her examinations and her Department and faculty approve same but the Senate does not. He explained what he meant by outstanding result in his words:

“What I mean in this instance of Plaintiff’s result not considered by Senate is that it is outstanding even though site passed the exams by the approval of her Department.

“I could not remember whether CHEM 414 was presented to Senate in 1999/2000 even though it is not listed as outstanding. The Senate does not consider every result singly, it considers results of each particular student of all his result annually.

“I cannot remember whether the Senate rejected the results of the Plaintiff or did not act on it or simply kept it in view without taking an action on it”.

He related the mode of transmission of results to the Senate through the Faculty. He also stated that as Head of Department in 1999/2000 academic year he was automatically a member of Senate.

Finally, the witness admitted that the Respondent’s result has been listed but not taken to Senate meeting usually chaired by the Vice – Chancellor. He could not tell the reason why the Plaintiff / Respondent’s result was not taken to the Senate. He disclosed that the result of the Plaintiff was a peeler (sic) (read peculiar) case and her result was brought separately and not together with final year students.

DW4 Samuel Olusegun Akande also called by the Defendant he was the Head of Department of Geology University of Ilorin. In 2001 he was the Dean Faculty of Science. He knew the name of the Respondent by file and letters and never met her physically. He remembered that in 2001 a letter from the Registrar requested for her academic status and based on the request he followed due process and requested the Department of Chemistry to forward the Respondent’s Academic records to him. What the Head of Department forwarded to him was forwarded by a covering letter to the Registrar by a cover memo signed by the witness. The witness identified the said memo which was tendered admitted and marked Exhibit H1. When cross-examined he replied: “I do not know where the document covered by the cover memo is. The documents I am talking about is the academic record of the Plaintiff. I never presented the Plaintiff’s case to the Senate.” He was also not reexamined.

The last witness for the Defendant was David Sunday Oguniyi then a Professor of Industrial Chemistry. In the year 2000 according to him, he was a Senior Lecturer in the Department of Chemistry. He knew the Respondent whom he taught some courses at the University of Ilorin. In 2000, he received a memo from his Head of Department then, to confirm her attendance in his lectures and her continuous Assessment. Be replied to the memo which was identified tendered and admitted as Exhibit H2.

Under cross-examination he admitted that he kept attendance Register even though he did not have it with him in Court. Asked whether he was told that he was coming to give evidence in Court regarding the Plaintiffs attendance record he replied in the affirmative. He disclosed that the lecture for ICH 209 was for 3 hours at a stretch for fifteen (15) weeks and that he gave assignments in every class. He admitted that the Respondent’s Form for ICH 209 contains 3rd December, 2001 while Exhibit H is dated 2000. He further explained that Exhibit H2 is not in respect of year 2001 but year 2000 and that the Plaintiff contacted him that she would not be able to come to all his classes because of clashes with other courses and he told her to make sure she did all her assignments. He admitted not writing in the memo that the Respondent took permission not to attend classes because of clashes with other courses because he knew that the Respondent submitted all her continuous assignments and he thought that was implied.

Against the background of the testimonies of the parties and their witnesses including documents tendered as exhibits we shall now precede to the resolution of the issue as to whether the evidence elicited support the findings of the lower Court. Section 137 (1) of the Evidence Act provides that:

“In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced Oil either side, regard being hard to any presumption that may arise on the pleadings.”

By subsection (2) thereof:

“If such a party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and on successively, until the issues in the pleadings have been dealt with.”

In this case the burden lay squarely on the Plaintiff to prove the allegations made in her pleadings because she is the one who asserts that she is entitled to have her result released and that having fulfilled all the conditions like returning to school and re-registering, attending lectures in accordance with the rules and regulations of the Appellant for the award of a Degree in Industrial Chemistry the Appellants have no justification to withhold the same result and Degree.

On the other hand, having elicited this evidence the burden will shift to Defendant to prove the contrary and so on and if the Court believes her evidence, will dismiss the Plaintiff’s claim. See JOHNSON VS. MAJA & ORS (1951) 13 WACA 290; OGUGUA V ARMEL’S TRANSPORT LTD (1974) 3 S.C. 139; OLOGUNLEKO V IKUEMOLA (1993) 2 NWLR 17 C.A; DAWODU V SOLANKE 1959 L.L. R 15 and FADDALLAH V AREWA TEXITLES MILLS (1997) 51 LRCN 1939.

In the case at hand can the Learned Counsel for the Defendant be serious in his contention in the face of the over whelming evidence even from his clients, that there is no iota of evidence to prove any of the averments in the Plaintiff’s Statement of Claim? I think not.

I am not oblivious of the dictum of my Lord BA’ ABA J.C.A. in NIGERIA BOTTLING CO. LTD VS.? (2004) ALL FWLR (pt. 205) 231 at 251 paras D – E and it is a settled principle of law that no matter how impressive a party’s pleadings may be it is of no consequence if not supported by concrete and credible evidence in proof thereof particularly where as in this case the Defendant did not admit any of the averments or reliefs in the Statement of Claim.

J also agree with the Learned Counsel for the Appellant on the authorities cited – NEW NIGERIA BANK PLC VS. DENCLAG LTD & 1 OTHER Supra, ALI VS. CHAD BASIN DEVELOPMENT AUTHORITY & ANOR (2004) ALL F.W.L.R (Pt. 237) 424 at 429 that where no evidence is adduced in support of averments in pleadings such averments are deemed abandoned. However, the Learned Counsel to the Defendant/Appellant cannot with all honesty contend that there is no evidence before the Court that between 1999 and 2001 the Respondent went through and completed fully and successfully the course prescribed by the Appellant for the award of a B. Sc. Degree in Industrial Chemistry.

In the first place apart from the evidence of the Defence witnesses being master pieces in equivocation the DW3 was quite clear that what he meant in the instance of the Plaintiffs Claim is that her result is outstanding even though she passed the exams by the approval of her Department and Faculty. He admitted that one of the subjects which are alleged to be outstanding against the Respondent that is CHEM 414 is not listed as outstanding. He could not remember whether the Senate did reject the Respondents results or did not act on it because as the Head of Department and an automatic member of the Senate then he shirked his responsibility to the Respondent. It is worthy of note that he had projected this Respondent as a brilliant student and confirmed from the interrogatories filed by the Learned Counsel (the Chief himself) that the interrogatories bore outstanding marks.

For the DW1 when he discovered that the game was up he denied the Further Amended Statement of Defence as not being his case as it was not written by him. However, on further cross-examination, he admitted that the interrogatories reveal that the courses are not at all outstanding against the Plaintiff and this was filled by the Learned Counsel Olatunji Arosanyin (Chief). Thus, it was the Learned Chief who gave the Defendant’s witnesses a noose to hang themselves. Then there is this other angle of 75% percent attendance which the Plaintiff/Respondent did not meet but when pinned to the wall, the DW1 admitted not consulting attendance register before coming to Court to buttress his assertion even though the Register must always be in the Departmental records.

DW4 had forwarded the Respondent’s Academic Records to the Registrar through a memo Exhibit H1 but under cross-examination he would not know where the documents covered by the memo (the said Academic Records of the Plaintiff) are.

DW5 also confirmed that the Course ICH 209 which the Respondent purportedly did not re-register and re-write is contained in the registration form dated 3rd December, 2001 but that Exhibit H2 is dated the year 2000.

He also admitted keeping the attendance Register but did not have it there with him even though he was apprised of the need to come and testify regarding the Respondents attendance. He alleged that the Respondent could not attend classes regularly because there were clashes with the other subjects she had, registered for. However, he told her to do all her assignments but he did not write that he told the Respondent not to attend classes on account of the clashes with other courses because he knew she submitted all her continuous assignments.

What then are the legal implications demonstrated by the witnesses to the Defendant when they more or less supported the case of the Plaintiff/Respondent? By admitting that the Respondent actually passed her examination having registered for the years 2000/2001, the Appellant is bound by the provisions of Sections 20 (1) and 23 of the Evidence Act. See MORIARTY VS. LONDON, CHARLTON & DENVER RAILWAY (1870) L.R. 5 Q.B. 314; BAMNURO VS. S.C.O.A. (1941) 7 WACA 150.

The law is that what is admitted needs no further proof. Oputa J.S.C. had held in ALIYU BALOG UN VS. SHITTU LABIRAN (1988) 6 S.C.N.J. 71 at 85 thus:

“There is no doubt that the primary onus of proving his case lies on the Plaintiff. But that onus may even be discharged in his pleadings as by the Rules of pleading there is no onus to prove that which had been admitted. See ONYEKAONWU VS. EKWURUBIRI & ORS (1966) 1 ALL WLR 34.”

On the refusal of the Defendant to tender the Attendance Registers and the complete academic Records covered by the memo tendered and marked as Exhibit H1, Section 149 (d) of the Evidence Act is very clear on the attitude of the witnesses for the Defendant that the Court may presume that evidence which could and is not produced, would if produced, be unfavourable to the person who withholds it. For this proposition of the law see EPHRAIM & ORS VS. OKON (1996) 2 NWLR 595; FOX VS. POLICE (1947) 12 W.A.C.A 215; TEWOGBADE V ARASI AKANDE (1968) N.M.L.R. 404 and BELLO VS. KASSIM (1969) NWLR 148. In this case, the Defendants knew that if they produced the Academic

Records of the Plaintiff /Respondent and Attendance Registers these would have been detrimental to their case.

Again, where witnesses called by a party give conflicting evidence in support of their case, the Court is thrown into a quandary as to which of them to believe or disbelieve. See AWOPEJO VS. STATE (2001) 92 LRCN 3385.

The Plaintiff on the other hand had by Exhibit B dated 11/6/2001 shown that the Vice Chancellor of the Defendant submitted to the Resolution Committee on Politically Victimized and Rusticated Students which committee was headed by Chief S.K. Babalola the Special Adviser to the Visitor then President Olusegun Obasanjo G.C.F.R.

By Exhibit BI dated 22nd June, 2001 also tendered by the Respondent, the Chairman of the Visitation Panel wrote to the Vice Chancellor expressing his appreciation for the cooperation and cordial reception accorded him during the committees visit to the Defendant. As agreed by parties the Committee invited the Respondent to Abuja and admonished her to be of good conduct and she voluntarily wrote a letter of Apology which was routed through the letter from the Committee Chairman to the Vice Chancellor. See the attached letter of apology dated 22/6/2001. Also the Respondent tendered the clearance form Exhibit C dated 18/8/98 and signed by the Head of Department of Chemistry evidencing that she had resumed as a student of the Defendant with all the privileges attendant thereto. This clearance has not been discredited by any of the witnesses for the Appellant.

There is also an undertaking entered into by the Respondent to be of good conduct after the students rampage. That document dated 18/8/98 has also not been discredited. Exhibit D tendered also by the Respondent proved that parties had amicably resolved their differences and she withdrew the Suit No. FHC/IL/M17/98 then instituted against the University. The Respondent also tendered the Unilorin Bulletin of Friday September 21, 2001 where it was clearly reported at page 4 thereof as earlier reproduced verbatim that the Defendant had accepted the letter from the Resolution Committee and Apology from the Respondent and that the University will restore the Respondent’s Studentship after payment of the N1,000.00 restitution fee paid by her colleagues. Throughout the gamut of the Defendant’s disjointed and contradictory evidence, it was not stated that they did not accept the apology nor did they deny the payment of the restitution fee by the Respondent so as to deny her the results as concocted in the statement of Defence.

Thereafter, when the Defendants could not release the Respondent’s result she wrote Exhibits E, E1 and E2 to Defendant who has refused to release the said results till date.

To prove that the Respondent went back to school she tendered Exhibits F1 and the students Receipt from the Bursary Department dated 8/6/99, 3/8/2000 and 3/12/2001 respectively. The Appellant has not shown that these documents were not made by her agents nor have they discredited them in any material particular.

To seal the doom of the Defendant, the DW1 – DW5 called by Defendant and the Interrogatories, upon which the Respondent anchored her case, have shown that the Defendant has nothing by way of defence against the claim of the Plaintiff/Respondent.

In SOSANYA V. ONADEKO & ORS (2000) 21 WRN 43 ONALAJA J.C.A. brilliantly espoused the law as to whom the burden of proof lies in a claim for a declaratory relief like the Respondent has done, when he posited inter alia.

“A party claiming declaratory relief has the burden of proof under sections 135, 136 and 137 of the Evidence Act; Cap. 112 Laws of the Federation 1990, judicially interpreted that the Plaintiff must succeed on the strength of his own case and not the weakness of the Defendant’s case, as the burden on a Defendant who has not set up a counter claim, is just to defend the action no more no less. Gankon V. Ugochukwu Chemical /Industries (1993) 6 NWLR (pt. 297) 55 S.C.; Adelaja v. Fanoiki (1990) 2 NWRL (pt 131) 137 S.C. Ayoola V. Odofin (1984) 11 S.C. 120;

Woluchem V. Gudi (1981) 5 S.C. 291 all followed and adopted in Lawrence Elendu & Ors. V. Felix Ekwuoba & 4 Ors for themselves and representing the Ezihe formerly UMUOPUKARA) DEVELOPMENT UNION) (1995) 3 NWLR (pt. 386) 704 at 745 C.A.”

However, the exception to the rule that a Plaintiff must succeed on the strength of his case and not the weakness of the defence in a declaratory action occurs where the facts of the defendant’s case supports the Plaintiffs case. The Plaintiff can capitalize on the facts in the defendant’s case that supports her case to establish or prove her case. AKINOLA V. OLUWO (1962) 1 SCNLR 352; EDOKPOLO VS. ASEMOTA (1994) 7 NWLR (PT. 356) 314 AT 327. Based on these authorities there is no rational basis for any of the contentions in the particulars of error stated in support of Grounds 2 – 4 of the Grounds of Appeal filed by the Appellant. We shall take each of them seriatim.

GROUND 3 contends that the trial Judge erred in law by holding that the Respondent has no business in retaking the examination because of her invitation by the student’s disciplinary panel as the panel annulled her appearance before the said panel. The particulars stated therein (i) – (iii) have all been proved even by the DW1 – DW5 not to be the true position of things rather by their own showing in both their answers to the interrogatories and under cross-examination, the Respondent had passed all her examinations except that they (Defendants) have failed to present her results to Senate for reasons best known to them. This is no more a matter of internal or domestic domain of the Defendant as the Respondent is challenging the deprivation of her right in a Court of law which is a public domain and since the Defendant is charged with the performance of a public duty it behoves on the Appellant to tell the public why Respondent’s result should not be released or sent to Senate.

On the issue of evidence abounding that Defendant did not meet the 75% percent attendance requirement for some purported exams written by her, this allegation has also been debunked by the Defendants who refused to tender the Attendance Registers even though they have always been in their custody and they were aware that they were to give evidence touching on same. As I had earlier said the Defendant is caught by section 149 (d) of the Evidence Act.

On the allegation of outstanding courses, the Interrogatories, DW1, DW3, – DW5 have all shown by their own admission that there are no outstanding courses against the Respondent. Section 20 (1) and 23 of the Evidence Act and the dictum of ANIAGOLU J.S.C. in OJUKWU VS ONWUDIWE & ORS (1984) 2 S.C. 15 at 88 where he intoned that: “Another principle deeply enshrined in our jurisprudence is that admissions made do not require to be proved for the simple reason, among others, that “out of the abundance of the heart the mouth speaketh”, is very instructive. Thus the findings of the Court below at pages 151 – 153 of the records cannot be faulted at all.

GROUND FOUR complains of misdirection by the Court below in holding that neither party challenged the exercise of the Visitorial Power of Chief S.K. Babalola Resolution Committee. Particulars of the misdirection are furnished to the effect that a letter denouncing Chief Babalola’s Visitorial Power was placed before the Court and that a Court of law is bound to consider all documents place before it.

There is no doubt that a Court of law is bound to consider all documents placed before it which the Court in its wisdom did with a commendable sense of responsibility. In the first place there is no where in the evidence of the DW1 – DW5 that they challenged the Resolution Committee rather by Exhibits B, D1 and G, they had submitted themselves to the Committee set up by the Visitor to the University. They accepted their Arbitral Award even if the Committee was a peace settlement Committee which indeed it was in exercise of its statutory oversight power as representative of the Commander in Chief of the Armed Forces of the Federal Republic of Nigeria. Perhaps the Defendants were basking in the euphoria of their presumed awesome and mighty powers to the extent that they could challenge in the words of Achebe their ‘Personal Chi’ in this case the President of the Federal Republic of Nigeria who delegated his powers to his special Adviser.

For the avoidance of doubt, Section 13 (1) of the University of Ilorin Act Cap. 455 Laws of the Federation vests the Supervisory and disciplinary powers over the Defendant and its organs on the Visitor who shall be the President and by virtue of subsections (2) and (3) (a) and (b) of the Act, the visitor shall often as circumstances may require, not being less than once every five years, conduct a visitation of the University to be conducted by “such persons as the visitor may deem fit and in respect of any affairs of the University and it shall be the duty of the bodies and persons comprising the University to make available such facilities and assistance as he or they may reasonably require for the purpose of a visitation.”

Furthermore, the said bodies and person comprising the University shall “give effect to any instructions consistent with the provisions of this Act which may he given by the visitor in consequence of a visitation.”

The Defendant gave effect to the visitor’s instructions by cooperating and accepting his recommendation and the apology of the Respondent. The question which is very pertinent here to ask is whether the University can turn round to resile from the agreement reached with her visitor? In the first place the Defendant would be acting at its peril by taking such an unreasonable step. Secondly, if Defendant/Appellant reneges, as she is doing, Section 151 of the Evidence Act will estop the Appellant from so doing. In IGA & ORS VS. AMAKIRI & ORS (1976) 11 S.C. 1 at 12 – 13 it was held that if a man by words or conduct willfully causes another to believe in a certain state of things which the first knows to be false and the second believes in such a state of things and acts upon the belief; he who knowingly made the false statement is estopped from averring after wards that such a state of things does not exist at the time.

Secondly if a man either in express terms or by conduct, makes representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts.

Thirdly, if a man whatever his real intention may be, so conducts himself that a reasonable man would take his conduct to mean certain representation of facts and that it was a true representation, and that latter was intended to act upon it in a particular way, and he with such belief, does act in that way to his damage, the first is estopped from denying the facts represented. See BANK OF THE NORTH VS. BATURE (1994) 1 NWLR 235.

Even from the angle of Arbitration see KANO STATE URBAN DEVELOPMENT VS. FANZ CONSTRUCTION CO. LTD (1990) 6 S.C.N.J. 77 at 109 – 110 where the grounds for setting aside an award were stated, the Appellants cannot resile from such peaceful resolution which she has accepted. See ASSAMPONG VS. KWEKU & ORS (1932) 1 WACA 192 and MGBAGBU VS. AGOCHUKWU (1973) 3 E.C.S.LR. (Pt. 1) at 90.

Again I must reiterate here that the findings of the trial Judge were not a product of misdirection but of facts borne out of the totality of the evidence before him. He was right to have held that the Plaintiff can profit from the intervention of the Chief Babalola Committee since she appealed to the said Chief as the visitor of the University following her rustication and having paid the fee for restitution and the Defendant accepted her apology.

I am afraid; I have searched through the entire judgment but cannot find where the learned trial Judge misdirected himself as purported by the Learned Counsel for Appellant.

On GROUND FIVE which complains of error on the part of the trial Judge when he held that in Exhibit A2, the Vice Chancellor did not hide his plain bias against the Plaintiff and one Stephen Akinola for taking him and the University of Ilorin to Court, particular (i) to my mind is laughable because by section 7 (2) of the University of Ilorin Act, he the Vice Chancellor to the exclusion of any other person or authority shall be the Chief executive and academic officer of the University. Besides, the letter was written in his own hands and signed with his letterhead and paragraphs 3 – 5 thereof amply demonstrate why he has refused to forgive the Respondent. Even if from Exhibit B an inference of bias cannot be drawn, why is it that the Vice Chancellor who is Chairman of the Senate has refused to revisit the case of Rasheedat Adesina? Bias can be reasonably inferred from the intransigence of the Defendant.

As for particular II, there is evidence in Exhibit AI that Respondent and her colleagues sued the Vice Chancellor in person which must have incensed him even though he has left the University as averred in particular III. On the whole the Appellants have not alleged that the error of the Learned Trial Judge in so holding has occasioned a miscarriage of justice.

On the authorities of NTA VS. ANIGBO (1972) 5, S.C. 156, OGBODA VS. ADELUGBA. Supra, LION BUILDING VS. SHADIPE (1976) 12 S.C. 135; I have seen that there are ample evidence which the Court below accepted and drew the appropriate inferences there from in giving judgment to the Plaintiff/Respondent.

I am particularly guided by the Principles enunciated in the case of EBBA VS. OGODO per Eso J.S.C. (1984) 1 S.C.N.L.R. 372 on when an appellate court can intervene on the findings and inferences drawn by a trial court which had the singular opportunity of watching the demeanour of witnesses and having satisfied myself that the Judgment of Nnamani J. is not tainted with any perversity but a product of sound and analytical mind, I am loathe to disturb same. I therefore affirm the judgment in its totality.

This issue (No. I) shall also be resolved against the Appellant and Grounds 2, 3, 4 and 5 of the Appellant’s Ground of Appeal shall also fail. The entire appeal lacks merit and is accordingly dismissed with N30,000.00 costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother IGNATIUS IGWE AGUBE, J.CA. I am of the view that he has comprehensively and knowledgeably dealt with all the issues in controversy with his usual incisiveness and learning. I agree with his reasoning and conclusion. I dismiss this appeal and abide by the order as to costs.

JUMMAI HANNATU SANKEY, J.C.A.: I have had the opportunity of reading before now the in depth judgment just delivered by my learned brother, Agube, J.C.A. He has exhaustively dealt with all the live issues in the Appeal. I will only add a few words in agreement.

As amply demonstrated by his Lordship in the lead judgment, much as the Courts are reticent in interfering in the domestic dealings of a citadel of learning and excellence such as a University, in situations where the University, in the process of performing its functions under the law, is found to have breached the civil rights and obligations of its students, the Court will not hesitate to step in to remedy the grievances and grant reliefs for the protection of those rights and obligations. See Akintemi & others V Onwumechili & others (1985) 1 NWLR (Pt. 1) 68.

In the circumstances of this case, it cannot be within the domestic affairs of the Appellant to deny the Respondent her constitutional right to a fair hearing. The record of the lower Court reveals that the Respondent went to great lengths to seek redress through the University’s own internal apparatus for redressing domestic disputes within the University community. Even in the face of the intervention by the ‘Visitor’ to the University who gave directives all in a bid to amicably resolve the dispute out of Court, the Appellant spurned these efforts and effectively reneged on the pardon granted the Respondent. I am unable to fault the analysis of the learned trial Judge in his Judgment at pages 157-163 of the transcribed record as to the status and eminence of the Visitor to the University hierarchy, in line with the law setting up the University. He said inter alia thus:

“It is not in doubt that the President of the Federal Republic of Nigeria is the VISITOR to the University of Ilorin. It is also not in doubt that the Resolution Committee is a creation of the Presidency. The Chairman of the Resolution Committee, Chief S. K. Babalola is the Special Adviser on Education to the President…. The status of the Resolution Committee as agent of the Visitor is very paramount when viewed from a list of decided cases involving the domestic jurisdiction of the University… the University is bound by the decision of the Visitor. The Statute establishing the University of Ilorin spelt out the functions and powers of the Visitor… of great interest is that both S. 6 & 7 of the University of Ilorin Act dealing with the functions of the Council of the University and functions of the Senate respectively did subject those functions to the overall power and jurisdiction of the VISITOR…The plaintiff claimed that the Resolution Committee was appointed by the President to do the visitation on the University on his behalf and the Chairman of the Committee being a special Adviser on Education to the President seems to lend weight to this assertion and I do believe it in the absence of any contrary evidence.

The power and jurisdiction of the VISITOR in respect of any of the affairs of the University forecloses any doubt as to the binding effect of any decision by the VISITOR or any such persons appointed by him. Thus the pardon granted the Plaintiff by the University authorities after full discussions and understanding with the Resolution Committee is conclusive and of finality.

The matter therefore having gone before the highest body in the University system, it cannot be denied that the Respondent exhausted all avenues within the system for redress, without avail, before approaching the lower Court. By virtue of Section 6 (6)(a) and (b) of the 1999 Constitution in conjunction with Section 36 thereof, the right to so approach the court was available to her. The principle of law is that where there is a wrong, there must be a remedy, ubi jus ubi remedium. This case is easily distinguishable from the cases of Akintemi V Onwumechili (Supra) and Unilorin V Oluwadare (2006) 14 NWLR (Pt. 1000) 751 where the Plaintiffs therein failed to exhaust the University’s internal mechanism for redressing internal disputes but proceeded to Court with their grievances prematurely and hastily.

Secondly, I quite agree my learned Lord Agube, that the facts of this case can equally be visibly distinguished from the facts of the case of Magit V University of Agric. Makurdi (2005) 19 NWLR Pt. 959) 211. The situation in the present case is not one in which the Respondent sought an order of Court directing the University to declare her successful in her exams or to award her a degree by all means, irrespective of what her results may have been to the contrary. The entire Respondent sought for at the lower Court was for the release of her results, which the Appellant had held onto for no apparent or justified cause, to be released. Even if it could be argued that the University possesses the right to withhold her results, is it not in consonance with the tenets of fair hearing that the Respondent be informed as to the reason why the results were being withheld? In other words, was the Respondent not entitled to know the charge against her for which she was being so sanctioned or penalized? The answers to these questions constitute the very reasons why the Respondent had a right to approach a Court of law to seek redress against an institution which had condemned her to a life less than what she had aspired to, without informing her overtly of the precise allegation against her and the reason why, even in the face of the pardon granted her at the intervention of the Visitor to the University, her result was still being withheld very many years after she was supposed to have graduated. It is this feature which has distinguished this case from the facts of the case in Magit V University of Agric. Makurdi (Supra) and brings it safely within the realm of the exception to the rule set out in the Magit case (Supra) and which would warrant interference by a Court in what could otherwise be referred to as the domestic jurisdiction of the University. See Akintemi V Onwumechili (Supra). As a consequence of my conviction as to the power of the Court to intervene in this circumstance, I find no reason to disturb the finding of the learned trial Judge in this regard. It is impregnable.

For the foregoing reasons and the fuller ones given in the insightful Judgment just delivered by my learned brother, Agube, J.C.A., I too dismiss the Appeal. I adopt the order as to costs contained therein.

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Other Citations: (2008)LCN/2695(CA)