University of Ilorin V. Stephen Akinola (2007)

LawGlobal-Hub Lead Judgment Report

TIJJANI ABDULLAHI, J. C. A.

This is an appeal against the decision of the Ilorin Division of the Federal High Court, Coram C. Nnamani J., delivered on the 21st day of June 2006. The present Respondent as Plaintiff at the lower court instituted an action against the present appellant seeking for:

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 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 Statistics, 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 Plaintiff is entitled to be given the full particulars of, and afforded an opportunity to defend himself on any “administrative .. , case” alleged to be pending against him or claimed by the Defendant to be responsible for the withholding of his academic records.

e) A DECLARATION that the withholding of the Plaintiff’s academic records since 1999 when he completed the course of study prescribed by the Defendant for the award of a B. Sc. Degree in Statistics for reason of an alleged “administrative … case” stated in the Defendant’s letter Ref. No. UI/RO/D. 14 dated 13th May, 2002 is capricious, oppressive, illegal, unlawful, and constitutes a gross abuse of the Defendant’s statutory powers as contained 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 Plaintiff’s academic records since 1999 when he completed the course of study prescribed by the Defendant for the award of a B. SC. Degree in Statistics for reason of an alleged “administrative … case” stated in the Defendant’s letter Ref. No. UI/RO/D.14 dated the 13th May, 2002 is punitive and in breach of the Plaintiff’s 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 the parties agreed that the Plaintiff shall apologize for his 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 him 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. FHC/lL/M17/98.

h) AN ORDER of mandamus compelling the Defendant to remove forthwith all the administrative (or like) impediments alleged by it to have prevented, and to take all the administrative (or like) steps required for the release of the Plaintiff’s academic records including the Degree to which his completed course of study with the Defendant entitles him, and for the release of all said academic record and Degree forthwith.

i) DAMAGES, on a footing of exemplary damages, in the sum of N30,000,000.00.

The case proceeded to trial before the lower court at the end of which all the reliefs save (i) in which the sum of N7,000,000.00 instead of N30,000,000.00 was awarded to the Respondent, were granted, dissatisfied with the judgment of the learned trial Judge, the Appellant appealed to this court on Notice of Appeal which carries nine Grounds of Appeal.

Devoid of their particulars the grounds of appeal are:

i) That the Judgment is against the weight of Evidence.

ii) The Learned Trial Judge misdirected himself when he held as follows:

“I have only brought out the testimonies of defence witnesses to show that Plaintiff’s academic record was not the issue as he passed his examination.”

iii) The Learned Trial Judge erred in law when he held as follows:

“I think and rightly too that the Plaintiff result is being withheld especially after the wading in or intervention of presidential committee on politically victimized and rusticated students and students and staff.”

iv) The Learned Trial Judge erred in law in misinterpreting the true meaning of the letter of pardon Exhibit “B2” to mean that the Respondent/Plaintiff was pardoned from taken (sic) all examinations and satisfying other requirements of the Appellant/Defendant.

v) The Learned Trial Judge erred in law when he held as follows:-

“To further rubbish the piece meal internal memos of the Defendant’s departments which was not in any way communicated to the Plaintiff, the reply to the interrogatories sent to the Defendant by the Plaintiff clearly showed the Plaintiff passed his examinations … It is very regrettable that any contrasting reasons adduced by the Defendant warranted the court to see that Defendant as dishonest and its witnesses as untruthful.”

vi). The Learned Trial Judge misdirected himself when he held that:-

“I must confess there are no documents directly conferring visitorial rights on the Resolution Committee, but PW1 (Plaintiff) in his statement of claim and testimony said the Resolution Committee was appointed by the president. But neither party challenge the exercise of these visitorial powers of the Resolution Committee. ”

vii) The Learned Trial Judge Court has no jurisdiction to entertain the suit because it is internal matter within the jurisdiction of the University only.

viii) The Learned Trial Judge erred in law in holing a follows:-

“In other words, he has no business in retaking any exams because of his invitation to (SDP) annulled his appearance before Student Disciplinary Panel (SDP). Accordingly DW2’s testimony that there is a standing policy to the effect that if a student is invited to the Student Disciplinary Panel (SDP) the result of examinations taken before the determination of his case should be withheld is of no effect and is unwarranted in this circumstances.”

ix) The Learned Trial Judge Court erred in law in holding as follows:-

“In Exhibit A2, the Vice Chancellor did not hide his bias against the Plaintiff and one Adesina Rasheedat (Miss) for taking him and the University of lIorin (Defendant) to court.”

The facts of the case as can be gathered from the record of proceedings are that: The Plaintiff is a student of the University of Ilorin. He was admitted into the University in 1995 to study Statistics. His Matriculation No is 95/043061.

The Defendant is a University created and funded at public expense by the Federal Government of Nigeria and incorporated by and in the University of Ilorin Act. Cap. 455 of the Laws of the Federation of Nigeria, 1990.

The Plaintiff/Respondent undertook a course of study for the award of a B. Sc. Degree in Statistics with the Defendant/Appellant between the year 1995 and the first quarter of the year, 1999. In the course of his studentship with the Defendant/Appellant, he also partook of student unionism as a result of which he had a problem with the Appellant which led to a legal dispute In an earlier Suit No. FHC/IL/M.17/98 which ended in his favour.

The Defendant/Appellant refused to obey the judgment in the said suit for which reason the Plaintiff/Respondent commenced contempt proceedings against the Defendant/Appellant who then lodged an appeal against the said judgment. Both contempt proceedings and the appeal were still pending when the Defendant’s visitor, the President of the Federal Republic of Nigeria set up a committee known as the “Resolution Committee on Politically Victimized and Rusticated Students” headed by a Special Adviser to the President on education, Chief S. K. Bakola, to mediate and conciliate the parties.

The parties presented t heir cases to the Presidential Committee and terms of settlement were agreed upon by which the Defendant agreed to pardon the Plaintiff/Respondent for whatever wrongs he was alleged to have committed subject to his fulfilling certain spelt out conditions. T he Plaintiff/Respondent fulfilled the conditions set for h is pardon, withdrew his contempt proceedings in Suit No. FHC/IL/M.17/98; and the Defendant/Appellant on the other hand notified the Plaintiff/Respondent of his pardon which was announced to the University Community, and abandoned his appeal against the judgment in that suit.

The Defendant/Appellant despite repeated demands and pleas had since then continued to withhold the Plaintiff/Respondent’s result without any official explanation other than it was for “administrative and not disciplinary case. The Defendant had since that time continued to withhold the Plaintiff/Respondent’s academic records.

Distilled from the nine grounds of appeal and set out in the Appellant’s amended brief of argument are four issues for determination as follows:

“(1) Whether the trial judge has jurisdiction to entertain the suit being an internal matter within the jurisdiction of the Appellant. (Ground vii of the Notice of Appeal).

(2) Whether the Respondent had completed his course of study for the ward of B.Sc. Degree in statistics and had also satisfied all other requirements prescribed by the Defendant and make known by it to the Respondent so as to be entitled to the award of a B.Sc. Degree in Statistics (ground (ii), (iii), (v), (viii).

(3) Whether the pardon granted to the Respondent (Exhibit B2′) give the Respondent permission not to comply with other requirements necessary for graduation (Ground (iv), (vi), (viii).

(4) Whether the Vice-Chancellor was bias against the Respondent Ground (ix).”

For their part, the Respondent has raised two issues for determination which as gathered from his amended brief are as stated hereunder:

“(1) Whether the evidence adduced at the trial supports the findings in the judgment of the learned trial judge. (grounds (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), and (ix) of the Notice of Appeal.

(2) Whether the learned trial judge rightly exercised jurisdiction over the Plaintiff’s Claim (Ground (vii) of the Notice of Appeal.)”

When this appeal came before us for hearing on the 13/03/07, Learned Counsel for the parties in accordance with the rules of this court adopted their respective briefs and did not proffer any oral argument in amplification of the said briefs.

The Appellant’s amended brief was deemed filed by the order of this court on 13/03/07 while the reply-brief was deemed filed on the same date also by the order of the court.

The parties, needless to say, filed and exchanged their briefs. Learned Counsel for the Respondent however attacked issues two and four as formulated by Appellant’s Counsel. Learned Counsel submitted that they (issues) are incompetent because they concern matters which are for the consideration and determination at a plenary trial. He further submitted that an appellate court cannot under the guise of an appeal be dragged into usurping what properly is within the exclusive province of a trial court as the issues tend to do.

It is the submission of the Learned Counsel that the grounds of appeal from which they purport to have been distilled clearly show that none of the issues can be said to a rise from those grounds. Learned Counsel further argued that, many of the grounds are said to be errors in law. Under our laws, and as has been held in several cases, a ground of appeal alleging an error in law is an allegation by the appellant that there is a failure of the lower court to apply the correct principles of law or legal principles to establish and dispute facts, or that the court has come to a conclusion on admitted or proved facts which no reasonable tribunal would have come to. He relied on the cases of George Osahon and Ors. vs. Federal Republic of Nigeria and Anor. (2003) 16 NWLR (Pt. 845) P. 89 at pp. 115 – 116, Adeina vs. Arowolo (2002) 6 NWLR (Pt. 870) 601 at 614 vs. Nwabueze. Nipost (2006) 8 NWLR (Pt. 983) at 480 at 512.

On the other hand, learned counsel for the Appellant in his reply – brief urged us to discountenance the Respondent’s submission on the said two issues (2 – 4) and allow arguments already made on the issues in the Appellant’s brief. Learned Counsel further submitted that issues 2 – 4 in the Appellant’s brief of argument are propositions of fact so cogent, weighty and compelling that a decision on any of them in favour of the Appellant will entitle it to the judgment of the court. See the case of Jimoh Ikhile vs. Federal Airport Authority of Nigeria (2003) FNLR (Part 181) P. 1726 at 1737 paragraphs E – F.

It is also the submission of the Learned Counsel that, contrary to the Respondent’s argument, the issues formulated perfectly relate to the grounds of appeal and they arose there from. Learned Counsel urged us to discountenance the Respondent’s argument that it was almost impossible for him to distill any issue from the Appellant’s Grounds of Appeal. Learned Counsel is of the view that an issue can be distilled from several Grounds of Appeal but that two issues cannot be formulated from a Ground of Appeal. He relied on the case of Jimoh Ikhile vs. Federal Airport Authority of Nigeria (Supra).

Now, from the onset, the questions that must be asked and answered are:

(i) Are issues 2 and 4 incompetent?

(ii) Are the issues formulated by the Appellant distillable from the Grounds of Appeal contained in the Notice of Appeal reproduced (Supra)?

In the case of Cornelius Anjorin Lebile vs. the Registered Trustees of Cherubim and Seraphim Church of Zion of Nigeria (2003) 1 SCNJ 463 at 481 the apex court, per our erudite jurist, Uwaifo JSC, held 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 perceived to lead to a miscarriage of Justice have been carefully identified from complaints made in the relevant grounds of appeal and exposed in the arguments reflecting those issues. ”

A cursory look at the issues formulated by the Appellant would reveal the fact that they were based on identified errors in the opinion of the Learned Counsel in the judgment of the lower court and he proffered arguments to expose the alleged errors. To be candid, I find it very difficult to comprehend the argument of the Learned Counsel for the Respondent on this point. After all, as the Learned Jurist has expounded in his erudite judgment (Supra), the most important purpose for which an Appellant should raise issues for determination in an appeal should be for him to assist the court to decide the appeal in his favour (under lining supplied for emphasis).

In the light of the above, I cannot but agree with the Learned Counsel for the Appellant that the issues under attack by the Learned Counsel for the Respondents are quite competent.

Last but not the least, the question to be answered is whether the issues were all distilled from the Grounds of Appeal. A closer look at the said issues would leave no one in any doubt that they were all distilled from the Appellant’s Grounds of Appeal, which complained against the findings of t he lower court and its decision in the case. Issue 1 was distilled from ground (vii), issue 2 from ground (ii), (iii), (v) and (viii). Issue 3 from ground (ix) of the Grounds of Appeal.

However, that is not the end of the matter on the issues formulated by the parties in this appeal. After scrutinizing them, I am of the opinion that t his appeal can be disposed of by considering the two issues as formulated by the Respondent and I adopt them as the issues calling for determination in this appeal.

1st Issue:

The first issue for determination is:

1. Whether the evidence adduced at the trial supports the findings in the judgment of the learned trial judge. (Grounds (i), (ii), (iii), (iv), (v), (vi), (viii) and (Ix) of the Notice of Appeal. Learned Counsel for the Appellant in a brief settled by Chief Folatunji Arosanyin, started his submission by quoting the decision of the Learned Trial Judge on page 148 paragraph 5 wherein the Learned Trial Judge held thus:

“The court is of the firm view that the issue of academics or discipline sought to be introduced through the back door is an after thought aimed at ousting the jurisdiction of the court.”

Learned Counsel submitted that the issue of academics or discipline against the Respondent is not an after thought aimed at ousting the jurisdiction of the court. The issue, Learned Counsel went on, is the central issue of this appeal. Learned Counsel copiously quoted from the evidence of the Respondent and the defence witnesses (DW1 – 4) and submitted that from the evidence of the witnesses and that of the Respondent himself, it is clear that the issue is that of academics and discipline of the Respondent. That being so, Learned Counsel further submitted, it is internal affairs of the Appellant (University) and the trial court has no jurisdiction to try the case.

Learned Counsel submitted that it was because t he Respondent was asked to go before the students’ Disciplinary Committee that he went to court in the first instance. It was also because the Respondent was not given his results and degree that he went to court the second time. Learned Counsel further submitted that it is therefore an error on the side of the trial judge to say that the case of the Respondent is neither academics nor discipline.

Learned Counsel urged us to hold that the issue is both academics and discipline and therefore an internal matter of the Appellant and as such the trial court has no jurisdiction to entertain same. He relied on the cases of Akintemi and Ors. vs. Prof. Onwumechili and others (1985) 1 NWLR (Pt. 1) 68; Patrick D. Magit vs. University of Makurdi (2000) All FWLR (Pt. 289) 1313 at 1343 Paras A – C and Nigerian Bottling vs. O. A. Dada (2004) All FWLR (Pt. 206) 241 at Paras F – H.

Learned counsel urged us to resolve this issue in favour of the Appellant and uphold this appeal.

On the 2nd issue for determination, that is whether the Plaintiff had completed his course of studies for the award of B.Sc. Degree in Statistics and had also satisfied all the requirements prescribed by the Defendant and made known by it to the Plaintiff so as to be entitled to the award of B.Sc. Degree in Statistics, Learned Counsel argued that the evidence of the Plaintiff before the trial court was that he was expecting to get a B.Sc. Degree in Statistics. In support of his claim, Learned Counsel contended that the Plaintiff tendered several documents as exhibits, i.e. Exhibits “B” “B2” and “A2” amongst others. He called only one witness who according to the Learned Counsel did not testify to the effect that the Respondent completed his studies to entitle him the award of Degree in B. Sc. Statistics.

Learned Counsel further argued that on the other hand, the Appellant called witnesses who testified to the effect that the Respondent did not qualify for the award of the B.Sc. Degree in Statistics. Learned Counsel quoted from the evidence of DW1 – 4 and submitted that the evidence adduced by both sides established the fact that the Respondent had not completed his course of studies and had not satisfied all other requirements prescribed by the Defendant and made known by it to the Respondent for the award of B.Sc. Degree in Statistics. The letter of pardon, (Exhibit B2) did not pardon him not to satisfy all the requirements.

Learned Counsel argued that the Respondent failed to have 75% attendance of Classes and all practicals taken; his result was never before the Senate who has the authority to award degrees because the Respondent failed to satisfy all the conditions; Learned Counsel further argued that, from the evidence adduced by both parties, it is only the Senate of the University that has the authority and duty to issue the result and Certificate to the Respondent. He called in aid of his contention section 3(1) (e) of the University of Ilorin Act, Cap. 455 and the case of Patrick D. Magit vs. University of Makurdi (Supra).

Learned Counsel urged us to resolve this issue in favour of the Appellant and hold that the Respondent had not completed his course of study for the award of a B.Sc. in Statistics and not entitled to N7 Million Naira damages awarded in his favour.

On the 3rd issue for determination that is whether the pardon granted to the Respondent (Exhibit “B2” gives the Respondent permission not to comply with the requirement necessary for graduation (Ground) (iv), (vi), (viii), Learned Counsel reproduced Exhibit “B2” contained at P. 15 of the record and submitted that there is no where in the said letter of pardon that the Respondent was pardoned not to satisfy the rules and regulations of the Appellant in regard to the examinations and other requirements leading to the award of degree. Learned Counsel argued that it was only studentship of the Respondent that was restored. And in Exhibit B, the Respondent “Promised to abide by the rules and regulations of the University.” Learned Counsel submitted that it was wrong for the court to have held otherwise as can be seen on page 147 lines 17 – 28 of the records.

It is the submission of the Learned Counsel that the trial court, on the pre of the pardon in said Exhibit “B2”, wrongly usurped the function of Senate on the selection of their fit and proper candidates for passing and for the award of certificates, degrees and diploma. The trial court, he went on, was wrong to have done so. He relied on the cases of Akintemi and others vs. Onwumechi and others (1985) 1 NWLR (Pt. 1) 68 at 85 and Patrick D. Magit vs. University of Makurdi (Supra).

Learned Counsel urged us to hold that the pardon in Exhibit “B2” did not give the Respondent the permission not to satisfy all the requirements necessary to obtain the Appellant’s degree and further urged us to resolve this issue in their favour.

On the fourth issue for determination, that is, whether the Vice-Chancellor was biased against the Respondent (Ground ix) Learned Counsel referred to Exhibit A2 written to the Chairman, Resolution Committee on Politically Victimized and Rusticated students by the Vice-Chancellor dated 11th June, 2001 and contended that the letter speaks for itself as follows:

1. That the Respondent was involved in violent demonstration.

2. That respondent was invited together with other students to appear before students Disciplinary Committee with some other students to defend himself in respect of allegation of misconduct.

3. That the Respondent did not respond in writing to the allegation nor did he appear before the SDC as directed.

4. That the Respondent instituted a 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 got injunction against the University which the University appealed against.

5. That two students were similarly invited before the SDC at the same time appeared, were expelled, but later pardoned. 6. That the Respondent was neither rusticated nor expelled.

7. That the Respondent was yet to meet the conditions for the award of a degree of the University of Ilorin- the Appellant. Learned Counsel submitted that there is nowhere in Exhibit A2 that the Vice-Chancellor showed any bias against the Respondent. All the facts stated in Exhibit A2 were correct. It is therefore not correct for the trial judge to aver as he did on page 157 that “the Vice-Chancellor’s personal bias against the Respondent can be garnered from the Plaintiff’s accusation of the Vice-Chancellor as a person in his way.”

Learned Counsel further submitted that fair hearing within the meaning of section 36 of the 1999 Constitution is not applicable to this issue because there was nothing to be heard before the Senate. Even if the matter was brought before the Senate, the Respondent would never have been called upon by the Senate to have a say in the Senate’s deliberations.

Learned Counsel submitted that, the fact that the Vice-Chancellor wrote Exhibit “A2”, (a duty that he must perform), does not make him to be to be tainted by likelihood of actual bias as the trial Judge stated on page 157 of the records. Learned Counsel urged us to resolve issue No. 4 in favour of the Appellant. He further urged us to allow the appeal and set aside t he Judgment of the trial Court and the award of N7 Million Naira as damages to the Respondent.

For his part, Learned Counsel for the Respondent began his arguments on the first issue for determination by submitting that an Appellate Court will not disturb a finding of fact unless that Court is satisfied that such finding is unsound. He relied on the cases of Victor Woluchem and Ors. vs. Chief Simeon Gudi and Ors. (1981) 5 SC. 319 at 326; Akinloye vs. Nwoko (1974) 6 S. C. 69 at 69 and Ebba vs. Ogodo (1984) 1 SCNLR 372.

In the 2nd Ground of its Notice of Appeal, the Appellant complained against the inference drawn by the learned trial Judge, wherein he stated thus:

“I have only brought out the testimonies of defence witnesses to show that Plaintiff’s academic record was not the issue as he passed his examination.”

It is instructive to note that the inference was wrong according to the Appellant because:

(i) DW1, DW3 gave evidence to the fact that the Respondent/Plaintiff did not attend 75% of his lectures .

(ii) DW2 affirmed that the Respondent/Plaintiff’s result was not posted to the faculty and the Senate.

(iii) There was evidence of the DW2 that there is a standing policy to the effect that if a student is invited to the student disciplinary committee, the result of examination taken before the determination should be withheld.

(iv) The Respondent did not have the required clearance from all his lecturers.

The question to be asked and answered from the onset is what was the actual evidence before the Court and how did this inform the inference drawn by the Learned Trial Judge as quoted in the said Ground of Appeal? Let us start with the statement of defence filed by the Appellant itself. In paragraph 28 of the said statement, they averred thus:

“The Defendant will contend at the hearing of this suit that the real issue arising from this suit concerns issue of misconduct and when the Plaintiff was given an opportunity to defend himself before the students’ Disciplinary Committee over the allegation, the Plaintiff refused and rushed to Court.”

Learned Counsel for the Respondent submitted that apart from the fact that the defendant had pleaded tot his effect, the evidence fits own witnesses at the trial also supported the finding of the learned trial Judge.

The question to be asked at the risk of repeating myself is, what was the evidence adduced by the Appellant in this regard. It is as follows:

“DW2, Prof. Benjamin Oyejola testified inter alia under cross-examination thus ‘I did not release plaintiff’s result after letter of Plaintiff’s pardon was shown to me because I can’t remember. Plaintiff passed the exam withheld. (Underlining Supplied for emphasis). See page 93 lines 19 – 21.”

DW1 Prof. Suleiman Age Abdulkareem testified under cross-examination that:

“I became a member of Senate since 1996 and the Plaintiff’s matter came up to Senate more than 12 times … All the matters pertaining to the Plaintiff is about disciplinary and not academic. There is no time his matter came up and Senate cancelled the result of the Plaintiff ‘(See page a1, last two lines of the records).

“DW4 in the same vein testified as follows:

“At the time I wrote Exh. H, the issue of academics has not come up. What came up is purely administrative reasons. If it were issue of academics I will not even communicate with Plaintiff” (See p. 96, lines 24 – 27).”

It is appropriate at this juncture to pause and say that in the light of the evidence highlighted supra, I cannot but agree entirely with the submission of the Learned Counsel for the Respondent when he submitted thus:

“It is therefore something of a wonder that the Appellant can in the light of the testimonies of his own witnesses still be heard complaining that the inference drawn by the learned trial was incorrect. ”

On the issue of whether the Respondent had attended 75% of his lectures, the Appellant alleged that DW1 gave evidence to that effect. Learned Counsel for the Respondent argued that DW1 did not in fact give any such evidence because, as he confessed, he had no connection with the Plaintiff and was therefore not in a position to know what his lecture attendance was. The question to be asked and answered on this point is, whether or not DW1 had in fact testified as to the Respondent’s lecture attendance as canvassed by the Appellant. Needless to say, to answer the question, recourse had to be made to the Record of Proceedings of the Learned Trial Judge.

DW1 testified on pages 90, 91 and 92 of the Record of proceedings. A cursory look at the testimony of this witness on this score would clearly show that the witness had not in fact given evidence pertaining to whether or not the Respondent had 75% lecture attendance. DW1 testified on this score as follows:-

“For the student to qualify for a degree he has to attend at least 75% of the classes, all the practical and must have taken all the continuous assessment.”

The evidence of DW3 on this score can be found on pages 94 to 95 beginning from line 26 of page 94 wherein he testified as follows:

“I know the Plaintiff through the file when I assumed as H.O.D. Department of Statistics last February, 2005. I saw him for the 1st time at the last adjourned date and I saw him again this morning. As H.O.D. my duty includes replying letters like interrogatories. The Plaintiff did not attend at least 75% of his lecture …. ”

That is not the end of his testimony. Under cross-examination, DW3 further testified thus:

“I can only talk for myself in matter of attendance of lectures by Plaintiff. I can’t talk for other lecturers … I do not have statistical evidence of Plaintiff’s attendance of lecture.” (Underlining supplied for emphasis).

In the judgment of the Learned Trial Judge, the evidence of DW1 and DW3 was assessed from lines 6 -12 of page 143 and he discountenanced same as unreliable. The Learned Lord held thus:-

“DW1, Suleman Age Abdukareem who never taught the Plaintiff nor was the Plaintiff in his department testified on qualifications of a student for a degree … DW3 stated that … the Plaintiff did not attend 75% of his lecture, he does not have the statistical evidence of lectures as register of attendance of Plaintiff is unavailable.”

I am of the opinion that in the light of the evidence outlined (supra), the Appellant has failed to show in which respect the inference of the Learned Trial Judge ant his point is faulty vis-a-vis the evidence from which it was drawn.

On the non-posting of Plaintiff’s result to the faculty and the Senate, (particular No.2 in support of ground ii), Learned Counsel for the Respondent submitted that it is true that the Plaintiff’s result has not been posted to the faculty and Senate as can be seen on page 92, from lines 16 – 19 of the Record. But in any event, the Plaintiff never claimed that his result has been processed to the faculty and the Senate. He further submitted.

DW2 testified at page 92 of the Record as follows:

“To my knowledge he (Plaintiff) has not graduated … I am not aware that the Department has posted his result to the Faculty and to the Senate of the University.”

The Learned Trial Judge on page 143 of the Record concerning this point held thus:

“The, DW2, a Professor of Statistics, the Plaintiff’s Department testified to the following: … (3) Plaintiff has not graduated because Department has not posted result to Faculty and Senate. ”

It is pertinent at this stage to point out that the Plaintiff never claimed that his result has been processed to the degree awarding authorities of the University (faculty and the Senate). Indeed, as can be seen, his penultimate claim reads thus:

“AN ORDER of mandamus compelling the Defendant to remove forthwith all the administrative (or like) impediments alleged by it to have prevented, and to take all the administrative (or like) steps required for the release of the Plaintiff’s academic records including the Degree to which his completed course of study with the Defendant entitles him, and for the release of all said academic record and Degree forthwith).”

I am therefore of the view that the Learned Trial Judge granted the claim of the Respondent above in order to remedy this particular situation.

On the Standing Policy of withholding results of students invited to student Disciplinary Committee (SDC) (particular No. iii of Ground ii), Learned Counsel submitted that it is true that DW2 testified that when a student is invited to the SDC, his result will be withheld. Learned Counsel however submitted that the impression that this was part of the fact on which the Learned Trial Judge misdirected himself is mischievous.

The Learned Trial Judge in his well considered judgment stated concerning this that:

“He DW2, a professor of statistics, the Plaintiff’s Department testified to the following: … (4) Plaintiff’s result being withheld because of standing policy that if a student is invited to (SDC) students Disciplinary Committee, the results of examinations taken before the outcome should be withheld but he could not send the result to faculty and Senate after letter of Plaintiff’s pardon was shown to him for reasons he cannot remember.” (Underlining supplied for emphasis).

I am of the considered opinion that based on the evidence adumbrated above, the Learned Trial Judge cannot be said to have misdirected himself on this issue, and I so hold.

On Plaintiff’s alleged want of clearance “from all his lecturers” – Particular No. (iv) of Appeal which states that “the Respondent did not have the required clearance from all his lecturers” Learned Counsel submitted that they have severally and painstakingly searched through the pleadings of the parties and the testimonies of their witnesses as contained in the record and they did not see anywhere this was alleged or testified by any witness, hence the Learned Trial Judge could not have considered, and did not in fact consider it in his judgment.

My Lords, permit me to say that, in addition to the efforts of the Learned Counsel for the Respondent in searching painstakingly for the allegation or evidence in support of this particular, I too meticulously searched through the length and breadth of the record of the trial court but could not come across where such allegation or evidence was given in support of this particular.

It is therefore my view, and I so hold, that from all the foregoing the misdirection which the Appellant claimed in his ground (ii) of the grounds of appeal never occurred and that the inference which the learned trial Judge drew in his judgment was well founded on the evidence adduced before him at the trial.

In Ground (iii) of the Notice of Appeal, the Appellant complained against the inference of the trial Judge that:-

“I think and rightly too that the Plaintiff (sic) result is being withheld especially after the wading in or intervention of presidential committee on politically victimized and rusticated students and staff.”

The Appellant in his brief of argument stated that the inference was wrong for three reasons which are that: (a) the “result of the Respondent was invalidated before the coming of the Presidential Committee”, (b) the Presidential Committee did not ask the Respondent (not) to retake the examinations invalidated, and (c) the trial judge misconstrued the involvement of the Presidential (Committee).

Now, the questions that must be asked and answered are: what was the actual evidence before the court and how did this inform the inference drawn by the Learned Trial Judge as quoted in the Ground of Appeal.

On alleged invalidation of Plaintiff’s result – particular No. 1 of Ground III of Appeal. Learned Counsel submitted that there is no evidence before the court that the Plaintiff’s result was invalidated whether before or after “the coming of the Presidential Committee.”

DW2 said under examination-In-chief (P. 92 lines 20 to page 93 lines 1 and 2) that:

“Sometimes in April, 2002, I wrote a memo to Vice Chancellor a bout Plaintiff’s graduation … It is not to my knowledge that Plaintiff had sat for the exams that was said to be invalidated by Exh. 1.” Then under cross-examination (P. 93 from lines 4 – 18) he clarified that “I don’t know the result that was invalidated, but it may be exam of his rd Semester of his final year. As HOD did not personally recommend any of the Plaintiff’s result to be invalidated. I am not aware of any Senate decision invalidating the Plaintiff’s result … If a result is invalidated it is the registrar that will inform the affected student. I will not be surprised that Registrar wrote that he did not pass instruction to invalidate results because results were not invalidated but merely withheld – probably for disciplinary action.” (Underlining supplied for emphasis).

On the pleadings itself, in paragraph 4(b) of its amended statement of Defence, the Defendant had pleaded thus:

“In further answer to paragraph 3 of the statement of claim, the defendant avers that the second semester 1997/98 academic session’s examination was invalidated and the Plaintiff was accordingly informed by the Plaintiff’s H.O.D. The letter of the Plaintiff dated 2ih March, 2002 is hereby pleaded and shall be relied upon at the trial. ”

I have painstakingly searched the Record of proceedings and cannot find where the Defendant adduced any credible evidence in proof of this allegation at the trial. In fact the evidence available to the court on the point showed the contrary of what was alleged. I am of the opinion that the learned trial Judge had no option than to resolve it against the Defendant. The Plaintiff’s letter admitted as Exhibit G, speaks for itself. It reads thus:

“With due respect, I write to correct the most recent misconception about my studentship status as a final year student in 1997/98 academic session. This becomes very urgent and important in view of the information given me on Monday 25th March, 2002, by my Head of Department (Statistics), Professor B. A. Oyejola (DW2) on the latest development as regards my withheld final statement of result. According to the H.O.D., the University Administration recently directed that all examinations I took after my invitation to the University’s Student Disciplinary Committee (S.D.C.) over the May/June 1998 student protest should b e invalidated. By inference, the examination in contention was that of second semester 1997/98 academic session which incidentally was the only examination I took after my invitation to the S.D.C. via a letter dated 21st October, 1998, with reference number UI/SAO/SP/93/043061.”

That aside, the Defendant in its response to the Plaintiff’s letter (Exhibit G) emphatically denied that it ever cancelled the said result. Exhibit H, their response reads thus:

“I refer to your letter dated 27th March, 2002 on the above subject matter. After due consideration of the subject matter of your letter, I wish to inform you as follows:

a) That contrary to your claims, Administration had never given any directive on the subject of your petition;

b) that the act of withholding of any academic record is an administrative and not a disciplinary case as it is being misconstrued by you; … ”

On whether the Presidential Committee gave any directive that the Plaintiff should not retake examinations of invalidated results (Particulars No. 11 of Ground III of Appeal, after careful perusal of the Record of the trial Judge, I must agree with the Learned Counsel for the Respondent that this particular is an expression of the fertile imagination of the Appellant and its counsel. The evidence from Defendant’s own witnesses, (as explicit on the Record of Appeal), shows that the Plaintiff’s results were never invalidated, only withheld. So the Presidential Committee could not have deliberated upon or made any decision on a situation (“invalidation of result”) that never existed.

On the alleged misconstruing by the trial court of the involvement of the Presidential Committee, Particular No. III of Ground III, the Learned Trial Judge made a detailed and a very comprehensive finding which in my opinion cannot be faulted in any way.

The Learned Trial Judge held thus:-

“I think and rightly too that the Plaintiff is entitled to know why his result is being withheld especially after the wading in or intervention of Presidential Committee on politically victimized and rusticated students. A very close look at EXHIBIT B … EXHIBIT B2 .. EXHIBIT A2 .. EXH. H … reveals an incoherent, insincere, vague, evasive, confusing and contradicting statements regarding what the true offence or reason for the withholding of the Plaintiff’s result is …. Certain relevant portions of the aforementioned exhibits buttresses these points. For instance in Exhibit B, part of it states – As agreed during our discussion with your management (underlining mine) my Committee invited the two students (one of them, the Plaintiff in this case) to Abuja and counseled them on the need to behave responsibly in all their dealings. (Underlining mine) similarly, they voluntarily wrote apology letters through my committee in line with our procedural rules. I therefore wish to forward to you the letters of Apology of (1) Akinola Stephen Olarewaju – 95/043061 (2) Adesina Aderike Rasheedat – 95/043569. As earlier on discussed (Underlining mine) you would be duly informed as soon as the date for the proposed seminar for all recalled students is fixed.” From the above excerpts from EXH. B written by Resolution Committee on politically victimized and rusticated students and signed by its Chairman, Chief S. K. Babalola, Special Adviser on Education to the president, addressed to the Vice Chancellor University of lIorin (defendant) it can be deciphered that the Committee and the University (defendant) had had common fruitful discussions that led to mutual understanding of the resolution. It is also not in doubt that the theme on the agenda of the discussion was … the Plaintiff and one other student … Again, EXH. 82 being acceptance letter of Apology by the defendant dated 13/9/01 buttresses the point that Plaintiff’s travails may have resulted from his indiscipline. Excerpts from EXH. B2 states thus: ‘Following the intervention of the Resolution Committee of Politically Victimized and Rusticated Students who visited the University and made an appeal to the university on your behalf, with regards to the disciplinary action (underlining mine) meted to you as a result of your participation in the students rampage (underlining mine) of 1998, I am please to inform you that the University Administration has decided that: “(1) Your apology … be accepted.” However EXH. a2 being memo submission of (defendant) to the Resolution Committee on Politically rusticated students in respect of the Plaintiff admitted the Plaintiff was referred to students Disciplinary Committee (SDC) and had not taken any action before the Plaintiff obtained relief from the Federal High Court IIorin. The defendant’s reason for the withholding of the Plaintiff’s result could be found in page 2 of the said Exhibit A2. It stated thus: “Meanwhile, Mr. Akinola has applied for the release of his final examination results to enable him proceed on NYSC programme. This could not be entertained as Senate cannot consider his result until the Appeal pending against his case is decided one way or the other by the Court of Appeal, Ilorin.” (underlining mine). EXH. A2 also denies any disciplinary measures meted out to the Plaintiff as he was never suspended, rusticated or expelled. It is pertinent to note here that EXH. A2 is contrasting to EXH. B2. EXH. B2 stated in clear terms that the disciplinary action meted to the Plaintiff as a result of his participation in the student’s rampage of 1998 is being waived because of the intervention of the Resolution Committee and Plaintiff’s apology being accepted by defendant. The question now becomes what was the disciplinary measure meted out to the Plaintiff under EXH. B2 before the intervention of Resolution Committee since by Exh. A2 and even EXH. H, the Plaintiff was never suspended, rusticated or expelled. I presume, logically and rightly too that the disciplinary measure meted out to the Plaintiff in the absence of suspension, rustication or expulsion was the withholding of his result which the Resolution Committee by its intervention ordered the release to the Plaintiff…”

It is instructive to note that based on the detailed and comprehensive assessment of the facts, the learned trial Judge applied the law and held that the said Committee can be treated either as agent of the Visitor of the Defendant who by statute has overriding authority over the affairs of the defendant, or as an arbitral body whose decision is binding on both parties in so far as they have voluntarily submitted to its jurisdiction. This was how the learned trial Judge put it from p. 151 – 158 of the Record.

On Ground No. 4 of the Notice of Appeal, the Appellant Complained that the trial Judge drew the wrong inference from Exhibit 2 by interpreting it to mean that the Respondent/Plaintiff was pardoned from taking all examinations and satisfying other requirements of the Appellant/Defendant.

Learned Counsel submitted that there is nowhere in the Exhibits tendered at the trial and considered in the judgment of the learned trial Judge was any “letter of invitation to appear before the SDC” mentioned as basis of the first particular in support of this ground (iv) of the Appeal under consideration.

A careful perusal of the Exhibits tendered and considered in the judgment tends to support the submission of the Learned Counsel on this point. I am of the opinion that if the document was never in evidence, then it could not have contributed to the weight of evidence against which the Appellant has alleged the judgment of the learned trial Judge went.

That aside, there is nowhere in the judgment where the learned trial Judge inferred from Exhibit B2 “that the Respondent/Plaintiff was pardoned from taking all examinations and satisfying other requirements of the Appellant/Defendant. This I agree with the Learned Counsel for the respondent when he submitted thus:

“This is another invention from the Appellant’s unbridled imagination. ”

In Ground V of the Notice of Appeal the Appellant complained against the finding of the learned trial judge that:

“To further rubbish the piece meal internal memos of the Defendant’s departments which was not in any way communicated to the Plaintiff, the reply to the interrogatories sent to the Defendant by the Plaintiff clearly showed the Plaintiff passed his examinations … It is very regrettable that any contrasting reasons adduced by the defendant warranted the court to see that defendant as dishonest, and its witnesses as untruthful”

The Appellant argues that the finding was wrong for two reasons which are that:

(a) “the internal memos of the Defendant’s department were internal business of the defendant and not the concern of the Plaintiff” (b) “the examination taken illegally after he refused to appear before the SDC were invalidated and the Respondent was informed of the invalidation.” Now, what was the actual evidence before the court and how did this inform the finding of the learned trial Judge quoted in the Ground of Appeal (Supra). Firstly, it was the Plaintiff’s case that the reason for the continued withholding of this result after the dispute with the Defendant had been resolved by the presidential Committee had not been disclosed to him, despite repeated demands, beyond the bland assertion (in Exhibit H) that the reason was administrative and not disciplinary.

Secondly, the Defendant in their defence called DW2 who tendered Exh. 1 (see P. 92 of the Record) which is an internal memo he claimed he wrote to the defendant’s Vice Chancellor in April, 2002 “about Plaintiff’s graduation.”

(ii) The learned trial Judge considered this defence of the defendant and the evidence adduced in proof thereof, especially from the last paragraph of P. 148 to the first paragraph of P. 150 of the record as follows: “As earlier stated, if there are conditions for the award of Degrees of the University of Ilorin, which the Plaintiff has not met, he is entitled to know. The constitution of the Federal Republic of Nigeria 1999 in S.36(2) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person. The opportunity was not provided to the Plaintiff by the defendant The documents tendered by the defence counsel concerning the Plaintiff’s result are mostly internal memos between the Plaintiff’s department and office of Registrar. It is most unfortunate that only one letter, prompted at the instance of Plaintiff was written by defendant to Plaintiff explaining the status of his result and that is EXH., which this court held (to be) ridiculous and travesty of justice. This in my candid opinion buttresses the point that the Plaintiff was not made to know why his result is being withheld. I see nothing wrong in the University (defendant) sending the Plaintiff’s result or academic record directly to the Plaintiff himself with details of courses he passed and failed. This piece meal release of internal memos between Departments of the defendant is very detestable and greatly falls short of the requirement of Fair Hearing … To further rubbish to piece meal internal memos of the Defendant’s department which was not in any way communicated to the Plaintiff, the reply to the interrogatories sent to the Defendant by the Plaintiff clearly showed the Plaintiff passed his examinations … It is very regrettable that any contrasting reasons adduced by the defendant warranted the court to see that defendant as dishonest, and its witnesses as untruthful … It is only in the course of proceedings in this present suit that the Plaintiff know about some of these internal memos when they were sought to be tendered in court. This is definitely outside the contemplation of the rule of Fair Hearing. ”

I am of the opinion that the first of the two particulars supplied by the Appellant in support of this ground supports the factual finding of the trial Judge by affirming that the “internal memos of the Defendant’s department were internal business of the Defendant and not the concern of the Plaintiff.” It is difficult to comprehend and in fact one wonders what the Appellant is actually complaining of regarding the decision of Learned Trial Judge to the same effect.

In addition, the Defendant’s own witnesses denied that the Plaintiff’s result was ever invalidated. The Appellant went on to say that the Plaintiff was informed of the invalidation of his result. Since no result was invalidated, could the Plaintiff ever have been informed of an event that never occurred?

It is my considered view that a piece of evidence that was never adduced at the trial cannot possibly impact on the weight of evidence which the Appellant claimed the Judgment of the Court went against.

In Ground (vi) of the Notice of Appeal, the Appellant complained against the finding of the lower court and averred that the learned trial Judge misdirected himself when he held that:

“I must confess there are no documents directly conferring visitorial rights on the Resolution Committee, but PW1 (Plaintiff) in his statement of claim and testimony said the Resolution Committee was appointed by the President. But neither party challenged the exercise of the visitorial powers of the Resolution Committee.”

The finding stated (supra) is attacked on two grounds: (a) the letter denouncing the Chief Babalola’s Committee was placed before the court and (b) the court was bound to consider all documents placed before it.

Learned Counsel for the Respondent submitted that the so called denouncing letter referred to in the first particular in support of the ground was tendered by the Plaintiff and admitted into evidence as Exhibit H and that the Learned Trial Judge in his judgment did identify, consider and make a finding on Defendant’s so called denunciation of the Babalola Committee contained in the said Exhibit H as can be seen on page 157 of the Judgment wherein the Learned Trial Judge held thus:

“The relevance of Exhibit H. can now be exposed to ridicule. Exh. H is the University of Ilorin (defendant) letter to the Plaintiff clarifying the withholding of Plaintiff’s final statement of result. Part of Exh. H reads thus – ‘That you cannot justifiably profit from the intervention of Chief Babalola Committee since you were never placed on suspension, rustication or expulsion by the University.’ It is instructive to note that it is the same University of Ilorin (defendant) that submitted a memo to the same Chief Babalola Committee … in respect of the Plaintiff as shown in Exh. A2. It is the same University of lIorin that had mutual discussion and mutual understanding with the same Chief Babalola Committee regarding the Plaintiff’s case as shown by Exh. B. Thirdly, It is the same university of lIorin (defendant) that accepted the Plaintiff’s letter of Apology and Plaintiff’s N1,000.00 restitution fee based on the same Chief Babalola Committee recommendation. I have no doubt in my mind that Exh. H leaves much to be desired and must be treated with caution and suspicion. The Plaintiff for sure can justifiably profit from the intervention of Chief Babalola Committee as the Plaintiff ab initio was not even complaining of suspension, rustication or expulsion but the withholding of his results, which was the main subject of his Appeal to Chief Babalola Committee standing in the stead of VISITOR to the University of lIorin (defendant) see EXH A1.”

I am of the opinion that in the light of the above finding, the Appellant has failed to show in which respect the finding of the Court is against the weight 0 f evidence the allegation of misdirection is wrong because the Learned Trial Judge did consider every piece of evidence before arriving at its final judgment and decisions.

In Ground (viii) of the Notice of Appeal the Appellant complained that the Learned Trial Judge erred when he held thus:

“In other words, he has no business in retaking any exams because of his invitation to SDP as his pardon annulled his appearance before Students Disciplinary Panel (SDP). Accordingly DW2’s testimony that there is a standing policy to the effect that if a student is invited to the Students Disciplinary Panel (SDP), the results of examinations taken before the determination of his case should be withheld is of no effect and is unwarranted in this circumstance.”

In the particulars in support of the ground, the Appellant says that the above finding was erroneous for six reasons which are that: (a) the “pardon granted the Respondent was only to restore his studentship” (b) the pardon” … did not give him the permission not to comply with other requirements for graduation” (c) the Plaintiff “was not cleared by all the departments as directed by the Appellant” (d) the “N1,000 restitution paid is not applicable to the Respondent/Plaintiff alone but the generality of the Appellant’s students and it was not conclusive for awarding Certificate”, (e) the “award of an arbitrator should be limited to what was agreed upon by both parties to the arbitration” and (f) the “contempt proceeding and the withdrawal of the appeal by both parties is to enable the Respondent/Plaintiff from resuming (sic) as student of the defendant’s only.”

I am of the opinion that a closer look at the decision of the Learned Trial Judge on this point will show that the 6 reasons set out in the particulars in support of this ground have no bearing on the reason why the court said what it said. The court had only reasoned that:

“Blacks law Dictionary defines pardon as the act or an instance of officially nullifying punishment or other legal consequences of a crime. Blacks Law Dictionary als