3PLR – UNIVERSITY OF ILORIN V. OYALANA

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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UNIVERSITY OF ILORIN

V.

OYALANA

COURT OF APPEAL, [ILORIN DIVISION]

3PLR/2001/302 (CA)

 

 

 

 

OTHER CITATIONS

(2001) 15 NWLR pt 737 pg 684

BEFORE THEIR LORDSHIPS

MURITALA AREMU OKUNOLA, JCA. (Presided)

PATRICK IBE AMAIZU, JCA (Delivered the leading judgment)

WALTER SAMUEL NKANU ONNOGHEN, JCA.

 

BETWEEN

1. UNIVERSITY OF ILORIN
2. THE VICE CHANCELLOR, UNIVERSITY OF ILORIN
3. THE SENATE, UNIVERSITY OF ILORIN
4. THE REGISTRAR, UNIVERSITY OF ILORIN

AND

MISS. V.I. OYALANA

 

REPRESENTATION

OLATUNJI AROSANYIN for the appellants.

I.A. AMOO Esq, for the respondent, with him are Messrs O. S. OGIDIOLU and I. KURANGA

 

MAIN ISSUES

CONSTITUTIONAL LAW – FAIR HEARING – “Fair hearing” as used in section 36 of the Constitution of the Federal Republic of Nigeria – meaning of

GOVERNMENT AND ADMINISTRATIVE LAW – ESTABLISHMENT  STATUTE:– University of Ilorin Act, section 17 – power of the Vice-Chancellor of the University to punish a student for misconduct – Whether it empowers the Vice-Chancellor to punish a student where the alleged misconduct involves a crime against the state – Garba AND Ors. v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 followed.

GOVERNMENT AND ADMINISTRATIVE LAW:- Administrative panel of inquiry – Allegation against a person which is criminal in nature – whether the law does not confer the power on the University much more on the Vice Chancellor to investigate or punish for same

CHILDREN AND WOMEN LAW:- Young people/Girl Child and access to Education/Justice Administration – Tertiary education – Right of a young woman to graduate from a university without being disqualified on ground of a supposed allegation of a criminal nature which was not proven in a court of law – Right of a university student to speedy justice so as not to be frustrated professionally due to the unlawful acts of university administrators – How treated

EDUCATION AND LAW:- University and internal discipline of students – Whether a university has power to investigate or punish a student for an allegation which is criminal in nature – Whether a University’s power to expel a student if the student is guilty of misconduct does not extend to allegation of a criminal nature but is a matter for a court or tribunal vested with judicial power

EDUCATION AND LAW:- Administrators of tertiary education centres – Duty to observe sound recommendations of its own panel of inquiry – Duty to observe level of conduct which does not reflect poorly on stature as leaders of a community of supposed intelligentsia

EDUCATION AND LAW:- Internal disciplinary powers of a University over a student – Need for allegation of supposed wrongdoing to be linked with programme or activities sanctioned by the university or connected with it – Duty of administrator to not act against the interest of a student

ETHICS – LEGAL PRACTITIONER:– Counsel –Absence from court – Whether there is a duty on Counsel to find out what happened to his case

PRACTICE AND PROCEDURE – ACTION:– Accelerated hearing of a suit – need for court to grant same when the interest of justice demands it.

PRACTICE AND PROCEDURE – APPEAL:–  Pleadings and Brief writing – Ground of Appeal and Issues for Determination – Arguing an incompetent ground of appeal alongside  a competent one under the same issue – Effect – Whether appellate court can sift the competent ground from the incompetent

PRACTICE AND PROCEDURE – APPEAL:– Pleadings and Brief writing – Ground of Appeal – Ground drafted as to state error in law and in fact – Whether competent

PRACTICE AND PROCEDURE – APPEAL:– Issues for Determination – Questions of fact – When appeal relates to same – Whether prior leave to appeal – Section 242 of the Constitution of Nigeria considered

PRACTICE AND PROCEDURE – COURT:- Adjournment of cases – Whether at the discretion of a trial Judge – Duty of a trial judge not to exercise discretion in way that considers only one party’s right to justice – Need for discretion to be properly and judiciously exercised

PRACTICE AND PROCEDURE – EVIDENCE:– Affidavit evidence – Effect when not challenged

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER:– Judicial discretion – What court exercising discretion need to take into account – Justice for both parties as a key considerations

PRACTICE AND PROCEDURE –JUDGMENT – COURT – JUDICIAL REVIEW:– Application for judicial review – Whether a trial Judge can refer to documents attached to an affidavit in deciding same.

PRACTICE AND PROCEDURE – JUDGMENT:– Default judgment – principles guiding an application to set aside same.

INTERPRETATION OF STATUTE – RULES OF COURT:– Federal High Court Rules, order 37 rule 9 – whether the words “trial” used thereunder means the same thing as judgment.

WORDS AND PHRASES – “Fair hearing” as used in section 36 of the Constitution of the Federal Republic of Nigeria 1999 – Meaning and implications – “Trial” as used in order 37 rule 9 of the Federal High Court Rules – whether connotes the same thing as judgment.

 

CASES REFERRED TO IN THE JUDGMENT.

Agueze v. PAB Ltd. (1992) 4 NWLR (Pt. 233) 76.

Akpagbue v. Ogu (1976) 6 SC 63.

Bankar v. Nigerian Civil Aviation Training Centre (1986) 3 NWLR (Pt. 42) 56.

Chime v. Ude (1996) 7 NWLR (Pt 461) 379.

Geosource (Nig) Ltd. v. Biragbora (1997) 5 NWLR (Pt 506) 607.

Igbaro v. Kasamu Industries Ltd. (1986) 3 NWLR (Pt. 30) 586.

Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139.

National Electoral Commission v. Wodi (1989) 2 NWLR (Pt. 104) 444.

Nwadike v. Ibekwe (1987) 4 NWLR (Pt 67) 718.

Odumesi v. Oyenola (1998) 8 NWLR (Pt. 563) 601.

Olanrewaju v. Ogunleye (1997) 1 SCNJ 144.

Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt 50) 356.

Seepc Nig. Ltd. v. PBN (1992) 7 NWLR (Pt. 252) 231.

Tukur v. Government of Taraba State (1997) 6 NWLR (Pt 510) 549.

Garba v. The University of Maiduguri (1986) 1 NWLR (Pt. 18) 550.

Williams v. Hope Rising (2001) 34 WRN 171; (1982) 1-2 SC 145.

 

STATUTES REFERRED TO IN THE JUDGMENT

Constitution of the Federation of Nigeria, 1999; sections, 36; 242.

University of Ilorin Act Cap. 455; section 17.

 

RULE OF COURT REFERRED TO IN THE JUDGMENT

Federal High Court (Civil Procedure) Rules; order 37 rule 10 and order 46.

Book referred to in the judgment

Stroud’s Judicial Dictionary, 5th edition.

 

 

 

 

MAIN JUDGMENT

PATRICK IBE AMAIZU, JCA. (Delivering the leading judgment):

This is an appeal against the judgment and ruling delivered by Tshoho J, of the Federal High Court. The judgment was delivered on the 3rd day of July, 2000, and the ruling on the 15th day of September, 2000. The facts which led to this appeal, so far as they are material to the questions which call for our determination are:–

 

One Miss V.I. Oyalana completed her Law degree programme in the University of Ilorin in June, 1999. Her name was included among the one hundred graduants of the University to attend Nigerian Law School, Abuja. When the list was received by the Administration, her name was deleted.

 

She heard through rumours that her name was deleted because in 1996, she took WAEC examination for her younger sister. She subsequently received a letter dated 9/9/99 to appear before a sub-committee appointed to look into her case. She honoured the invitation and appeared before the sub-committee on 21/9/99. The sub-committee confronted her with the allegation that she sat WAEC examination for her sister in 1996. She denied the allegation. Her younger sister for whom she allegedly sat the WAEC examination also appeared before the sub-committee. The younger sister showed the sub- committee her original result slip and the authenticated WAEC photocard bearing her passport photograph.

 

After the interview, she did not hear anything from the sub-committee. Meanwhile the results of other students were released. The successful ones went to the Nigerian Law School, Abuja. On the 11th of October, 1999, she formally requested the University authorities to release her result. When she did not hear from them, she brought an application for an order of mandamus to compel –

1. The University of Ilorin
2. The Vice-Chancellor, University of Ilorin.
3. The Senate, University of Ilorin, and
4. The Registrar, University of Ilorin, to release her result and the transcript.

 

The application came up before the lower court for the first time on the 5th of April, 2000. Both parties, and their counsel, were in court. The court was informed by the learned counsel for the University that the respondents could not file their papers because of the strike of the Senior Staff Association of the University. The learned counsel asked for an adjournment “to such a date before which we could prepare our response, file and serve same in this matter”.

 

The learned trial Judge in granting the adjournment to a date mutually agreed by both counsel i.e., 29/5/2000 remarked as follows –

“While the handicap of the respondents for now is appreciated, only a reasonable time will be allowed to them to prepare their response. It will be obviously unreasonable to leave proceedings in suspense even if the strike action embarked upon by the University staff has to last for a year longer.”

 

Unfortunately, the 29/5/2000 was declared a public holiday by the Federal Government of Nigeria. The court did not therefore sit. The case was further adjourned to 9/6/2000. The learned counsel for both parties were informed of the new date. On that date, the learned counsel for the applicant appeared. The learned counsel for the respondent did not appear. The learned trial Judge after hearing the submission of the learned counsel for the applicant adjourned the judgment to the 3rd day of July, 2000. He gave his judgment on that day. Part of the judgment reads as follows:-

“Having considered all the circumstances of this case therefore, I am convinced that the respondents have breached the legal and constitutional rights of the applicant as alleged. It is hence deemed just and convenient to grant this application for judicial review. I accordingly grant reliefs 1 – 6 earlier set out in this judgment.

Bearing all the foregoing in mind, I proceed to assess and award damages as follows-

On relief 7 -… I therefore wholly award the sum of N55,000.00. On relief 8, I consequently award her general damages assessed at N3,000,000.00 (three million naira only). On the whole therefore, apart from the other reliefs earlier granted, judgment is entered in favour of the applicant against the respondent jointly and severally in the total sum of N3,255,000.00 (three million, two hundred and fifty five thousand naira only). This shall be the judgment of this court with respect to the application.”

 

It is pertinent to observe that from the record of proceedings, the respondents and their counsel were absent when the judgment was delivered. By motion on notice dated 6th July 2000, the respondents prayed the lower court for an order setting aside the default judgment. The application was supported by an affidavit. In the affidavit it was averred, inter alia, that on 9th June 2000, there was a serious industrial-action by the public and civil servants throughout the country. Because of the chaotic situation in Ilorin, the respondents and their counsel could not get to the court.

 

The applicant swore to a counter affidavit in which she deposed that the strike undertaken by the Senior Staff Association of Nigerian Universities (SSANU) was called off on Monday 15th May, 2000. The Non-Academic Staff Union of Educational and Associated Institutions on the other hand resumed work on Wednesday, April 19, 2000.

 

The lower court after listening to the submissions of the learned counsel, in a considered ruling held as follows –

“Finally I hold that the conduct of the respondents/applicants is calculated to frustrate the aspiration of the applicant/respondent’s becoming a lawyer. Therefore to grant this application will be to embarrass and prejudice the applicant/respondent and such a cause is inequitable. Seepc Nig. Ltd. v. PBN (1992) 7 NWLR (Pt. 252) 231 at p. 240 (paragraph C – D). The application is consequently refused.”

 

The respondents hereinafter called the appellants were dissatisfied with the above ruling and judgment of the lower court. On the 15th of September 2000, the appellants filed a notice of appeal and grounds of appeal against the judgment delivered on 3rd day of July, 2000. On the 26th of September, the appellants also filed their notice of appeal and grounds of appeal against the ruling delivered on 15th of September, 2000.

 

Briefs of argument were filed and exchanged by the parties through their counsel. Both briefs were adopted and relied upon at the hearing of the appeal by the learned counsel for the parties. In his brief of argument, Arosanyin Esq., of counsel, set out the following issues for determination –

Issue 1.

Whether the default judgment given in favour of the respondent is a judicious exercise of discretion or

Whether the case was heard and decided on merit and the rule of fair hearing was adhered to when the applicants were completely shut out from presenting their case before the lower court.

 

Issue 2.

Whether a court of law is competent to pronounce on issues that are not placed before it.

 

Issue 3.

Whether upon affidavit evidence before the lower court and the peculiar circumstances of this case, the appellants satisfied the condition for setting aside a default judgment.

 

The applicant before the lower court now the respondent formulated four issues which but for the framing and the language used boil down to the three issues formulated by the appellants. In addition to the four issues, the learned counsel for the respondent filed a notice of intention to raise a preliminary objection. The appellants also filed a reply brief. The notice of preliminary objection reads –

 

“Take notice that the respondent shall at the hearing of this appeal rely on the following preliminary objection –

Ground one of appellants’ notice of appeal against the ruling of the lower court refusing to set aside its decision delivered on 15th September, 2000 dated 26/9/2000 and filed 27/9/2000 alleges error in law and in fact.”

 

I consider it appropriate and neater to deal with the preliminary objection first, before dealing with the substantive appeal.

 

It is the submission of the learned counsel for the respondent that a ground of appeal which alleges an error in law and in fact is an incompetent ground of appeal. He cited the case of Geosource (Nig) Ltd. v. Biragbora (1997) 5 NWLR (Pt. 506) p. 607 at 616. It is the view of the learned counsel that as issue 3 is predicated on that ground of appeal, if the ground is struck out the issue goes with it. He cited Tukur v. Government of Taraba State (1997) 6 NWLR (Pt. 510) p. 549 and Odumesi v. Oyenola (1998) 8 NWLR (Pt. 563) p.601 at 616.

 

In his reply, the learned counsel for the appellants reminded the court that the ground in question complained of an error in law and in fact. It is his view that the complaint is distinct from a ground that complains of an error and a misdirection in law. He contended that what is not allowed is that a ground of appeal cannot be an error in law and at the same time a misdirection. He cited –

 

Nwadike v. lbekwe (1987) 4 NWLR (Pt 67) 718 at 721 to 722; Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139; Olarenwaju v. Ogunleye AND Ors. (1997) 1 SCNJ 144. He urged the court to discountenance the objection.

 

I observe that ground one of the grounds of appeal in respect of the ruling reads as follows –

“Ground One

The learned trial Judge erred in law and in fact in holding that the conduct of the applicants/appellants did not prove that their application to set aside the default judgment be granted.

PARTICULARS:

1. There is evidence before the court that the failure of the appellants and or their counsel to be in court when the argument of the respondents’ counsel was heard was not deliberate, but was as a result of nationwide industrial action embarked upon by both public and private sector of Nigerian business activities due largely to petroleum crisis.
2. After the proceedings of 9th day of June, 2000 at which the appellants were absent because of fuel crisis the appellants were not on notice of subsequent proceedings if any, before judgment was given in favour of the respondent.”

 

This court, (Port Harcourt Division) held in the case of Geosource (Nig) Ltd. AND Ors. v. Chief Anthony Biragbora AND Ors., that a ground of appeal which alleges an error in law and in fact is an incompetent ground of appeal and should be struck out. The reason is obvious. A ground of appeal cannot at the same time involve an error in law and also in fact. It can only be one or the other. In any case, if the appeal involves a question of fact, under section 242 of the 1999 Constitution of the Federal Republic of Nigeria, the appeal shall be lodged with the leave of the lower court or this court. There is no evidence from the record before us that any leave was sought or obtained.

 

Issue 3 of the appellants’ brief of argument was formulated on the above ground 1 and also on ground 2 of the notice of appeal dated 26th day of September, 2000. I agree with the submission of the learned counsel for the respondent that as ground one which is incompetent is argued in issue 3 with ground 2 which is competent, it is not possible for this court to sift that which is competent from that which is incompetent. In the light of this, issue 3 is struck out.

 

On issue one, the main argument canvassed on behalf of the appellants by their counsel was the issue of fair hearing. The learned counsel submitted that it is a fundamental rule of fair hearing that the two parties in a suit must be heard before their case can be said to be decided on merit. The learned counsel referred to section 36 of the 1999 Constitution of the Federal Republic of Nigeria

 

He traced the history of the suit before the lower court. The learned counsel reminded the court that the parties and their counsel were in court on the 5th of April, 2000, when the case was called up. It was adjourned to 29th May, 2000 for hearing. That day was later declared a public holiday by the Federal Government. The court did not therefore sit on that day. Fresh hearing notice was served on the parties indicating the new date for the hearing of the case. The learned counsel observed that the hearing of the case was fixed for the 9th of June, 2000. That day, the learned counsel further observed turned out to be “a crisis day” because of the nation wide strike embarked upon by workers and the business sector. The lower court notwithstanding the crisis sat on that day and heard the case. Thereafter it adjourned the judgment to the 3rd of July, 2000. The respondents and their counsel were not in court when the case was heard and when the judgment was delivered on the 3rd of July.

 

The learned counsel submitted that in the spirit of fair hearing, the learned trial Judge should have adjourned the case for further hearing to enable the appellants present their case. It is the view of the learned counsel for the appellant that it was by sheer luck that the respondent and her learned counsel were in court on that day. The learned counsel however conceded that at the time the application was heard he did not file any counter affidavit. He attributed his not filing a counter affidavit to the internal strike on the appellants’ institution. The learned counsel contended that he would have opposed the application in points of law if he was present when the motion was heard. He referred to the case of Royal Exchange v. Aswani (1992) 2 SCNJ (Pt. 2).

 

The learned counsel observed that the hearing notice by which the suit was adjourned to 9/6/2000 was served on one Comfort Aremu, a typist in their chambers. He submitted that in that case, there was the likelihood that they would not have received the hearing notice. In his view, the learned trial Judge would have given the appellants that benefit of doubt. He urged the court to hold that the learned trial Judge did not exercise his discretion judiciously and judicially in the light of the above facts. He urged the court to set aside the judgment. He relied on the cases of – Continental Sea Ways Ltd. v. Nigerian Dredging Roads AND General Works Ltd. (1977) 323; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 170.

 

In his reply, the learned counsel for the respondent reminded the court that the appellants were served with all the processes relating to the suit by 5/4/2000 when the case was called up for mention. He observed that the case was adjourned at the instance of the appellants to 29/5/2000 for hearing, to enable them react to the processes served on them. When the case was not heard on 29/5/2000, fresh hearing notice was served on the appellants indicating the new date for hearing which was 9/6/2000. The learned counsel further observed that between 29th March 2000 when the processes in the suit were served on the appellants and the 9th June, 2000, when the suit was heard was over 60 days. The learned counsel contended that applications for judicial review in accordance with provisions of order 46 of the Federal High Court Civil Procedure Rules are to be heard expeditiously.

 

The learned counsel observed that the strike action relied upon by the appellants for not filling their counter affidavit were called off on the 19th of April, 2000 and 15th of May, 2000 respectively. He contended that the requirement of natural justice does not necessarily invoke the oral hearing of a case, especially where the parties, as in this case have made their representations in the form of affidavit evidence. He referred to the case of Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt 50) 356, where the Supreme Court held that an affidavit evidence is enough material needed by a court to decide on an application to dismiss an appeal. He contended that the issue in the present case is not simply a question of failure to observe the rules of natural justice but the failure of the appellants to utilize the generous opportunities given to them by the rule of the lower court to present their case. He referred to the case of Chime v. Ude (1996) 7 NWLR (Pt 461) 379 at 422 and contended that although the right to be heard is of wide application and great importance it must be confined within proper limits and not allowed to run wide. It is the learned counsel’s view that the appellants waived their right to be heard when they failed to file their counter affidavit for over 60 days from the time they were served. He cited the case of Agueze v. PAB Ltd. (1992) 4 NWLR (Pt 233) p. 76 at 89. He submitted that the appellants having admitted the respondents’ case by not filing a counter affidavit cannot insist on oral hearing. He cited the case of Agueze v. PAB Ltd. (supra) and urged the court to resolve the issue in the respondents’ favour.

 

Order 37 rule 9 of the Federal High Court Rules, provides –

“Any judgment obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown.”

 

It does seem to me that an application brought under the above provision to set aside a default judgment must satisfy two conditions.

 

First, the application must be brought within six days after the trial or such longer period as a court may allow. Secondly, the applicant must show good cause why the default judgment should be set aside. I observe that it is common ground that the learned trial Judge heard the case on the 9th of July, 2000. The application to set aside the judgment was filed on 6th of July, 2000. It is the submission of the learned counsel for the appellants that his application was brought within the prescribed period. It does seem to me that the submission would be correct if the words “trial” “judgment” mean the same thing. The question is, do they mean the same thing?

 

Stroud’s Judicial Dictionary, fifth edition defines trial as –

“A “trial” is the conclusion by a competent tribunal of questions in issue in legal proceedings, whether civil or criminal.”

 

On the other hand, the dictionary defines judgment as –

“A “judgment” is the sentence of the law pronounced by a court upon the matter contained in the record.”

 

From the above two definitions, it is my view that the two words do not mean the same thing. It follows, also in my view, that “six days after trial” does not mean

“six days after the judgment.”

 

Be that as it may, I observe that the gist of the complaint of the appellants is that they were not heard before the judgment was delivered and this is contrary to the principle of fair hearing. The word “fair hearing” as used in section 36 of the 1999 Constitution of the Federal Republic of Nigeria has been employed to express all the requirements at common law for the observation of the rules of natural justice in the determination of the civil rights and obligations of the citizen. However what constitutes fair hearing depends on the circumstances of each case. The real test is an objective one. Bankar v. Nigerian Civil Aviation Training Centre (1986) 3 NWLR (Pt. 42) p. 56. The respondent in her affidavit averred as follows:-

“9.     That on 9th June, 2000, I was in court together with my counsel I.A. Amoo Esq and O.S. Ogidiolu Esq.

10. That I also noticed that the staff of the Federal High Court, Ilorin reported for work on that day.
11. That I also saw Chief M.A. Sanni (SAN) and Lawal Rabana Esq. in the Federal High Court premises on same 9/6/2000 both of which counsel appeared in a case that was first mentioned before this suit was heard.
12. That I also know as a fact that myself and my aforesaid two counsel reside in different parts of Ilorin.
13. That I also know as a fact that the staff of the Federal High Court Ilorin reside in different parts of Ilorin.”

 

It is trite that averments not denied or challenged in an affidavit by filing a counter affidavit are treated by the court as established or admitted.

 

One may ask what is the reaction of the appellants to the above averments. As I have mentioned earlier, the appellants did not file any counter-affidavit. Their counsel however made the following submission before the lower court-

“….the fact that the plaintiff/respondent and her counsel were able to come to court on 9/6/2000 does not mean that everybody else could be as lucky, as luck should not be stretched too far.”

 

It does not seem to me that it is out of luck that –

(1)    the learned trial Judge was able to be in court on 9/6/2000.

(2)     the staffers of the Federal High Court were able to come from their different places of abode to court on that day and

(3)     other counsel were able to be in court on that day.

 

I take judicial notice that 9th of June, 2000, was a Friday. If it is true (which I do not hold it is) that movements in Ilorin were impossible on that day, was the situation the same on Monday the 12th of June, 2000 which is the next working day after the day fixed for the hearing of the case? If the answer is No, why did the appellants and their counsel not go to court to find out what happened to their case? In my view, a diligent counsel would have done that. It is to be remembered that when the learned trial Judge adjourned the case on 5/4/2000 to 29/5/2000 he remarked as follows:-

“While the handicap of the respondents for now is appreciated, only a reasonable time will be allowed to them to prepare their response. It will be obviously unreasonable to leave proceedings in suspense even if the strike action embarked upon by the University staff has to last for a year or longer.”

 

The above shows in no uncertain term the urgency attached by the learned trial Judge to the hearing of the case. This is justified by the special circumstances of the case.

 

Under the provisions of order 37 rule 10 of the Federal High Court Rules –

“The Judge may, if he thinks it expedient for the interest of justice, postpone or adjourn a trial for such time, and upon such terms, if any, as he may think fit.”

 

It is my considered view that from the facts of this case, the interest of justice demands that it would be given an accelerated hearing so that the academic pursuit of the respondent should not be further delayed. The golden rule is that justice delayed is justice denied.

 

The learned counsel for the appellants submitted that the learned trial Judge should have in the interest of justice adjourned the case for the appellants to present their case instead of for judgment. It is obvious from the above provision that the adjournment of cases is at the discretion of a trial Judge. It is trite that a discretion that considers only one party’s right to justice is a discretion that is improperly and unjudiciously exercised. A discretion properly exercised is one that takes account of both parties claim to justice. It cannot be otherwise without being one sided. In the light of this, the plight of the respondent should be taken into account in adjourning the case.

 

The principle enunciated in Williams v. Hope Rising (2001) 34 WRN 171; (1982) 1 – 2 SC 145 are that a court in dealing with an application to set aside a judgment obtained in default of appearance must be satisfied on the following-

(a)     The hearing or trial of the case in which judgment was given in his absence.

 

(b)     whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists.

 

(c)     whether the party in whose favour the judgment subsists would be prejudiced or embarrassed upon an order for rehearing of the suit being made, so as to render such a course inequitable.

 

(d)     Whether the applicant’s case is manifestly insupportable, and

 

(e)     That the applicant’s conduct throughout the proceedings i.e., “from the service of the writ upon him to the date of the judgment” has been such as to make his application worthy of sympathetic consideration.

 

One may ask, what is the appellants’ case? Their case is that although they did not file a counter affidavit to rebut the affidavit filed by the respondent in the court below, the interest of substantial justice demands that they be given the opportunity to reply on point of law to the address of the respondent’s counsel on 9/6/2000. The learned counsel for the appellants referred to the provisions of section 17 of University of Ilorin Act, Cap. 455 which is claimed empowers the Vice Chancellor of the University to punish any student that is guilty of misconduct. Presumably, the learned counsel would have brought that provision to the notice of the lower court.

 

I am afraid that the provision is not helpful to the appellants’ case. This is because the allegation against the respondent being criminal in nature, the law does not confer the power on the University much more on the Vice Chancellor to investigate or punish the respondent. This is clearly settled in the case of Yesufu Amuda Garba AND Ors. v. The University of Maiduguri (1986) 1 NWLR (Pt. 18) 550. In that case it was held that a University may expel a student if the student is guilty of misconduct. But where the alleged misconduct involves a crime against the state, it is no longer a matter for internal discipline but a matter for a court or tribunal vested with judicial power. In the light of the foregoing, one is bound to come to the conclusion that there was no material whatsoever on which the learned trial Judge could have exercised his discretion in favour of the appellants.

 

On issue 2, Arosanyin Esq, of counsel submitted that the court erred when it took into account extraneous matters in reaching its decision. He identified the extraneous matter as the following passage from the judgment.

“It is strange that the sound recommendation contained in exhibit VIOC earlier referred to, were ignored in order to satisfy the whims of some petty and evil minded persons to the detriment of the University, despite the fact that the consequences of doing so are clearly spelt out therein. The voice of reason was thus discarded leading to this sorry state of affairs. This is a very sad commentary on the supposed intelligensia”

 

It is the view of the learned counsel that there is no evidence before the lower court to support the above opinion that the appellants ignored the so called “sound recommendation” in order to satisfy the whims of some petty and evil minded persons to the detriment of the University”. It is further the learned counsel’s view that the learned trial Judge went outside the evidence before him to pronounce on things that are entirely extraneous to the issue that court is called upon to determine. He cited the case of Igbaro v. Kasamu Industries Ltd. (1986) 3 NWLR (Pt. 30) 586 at 589 where it is held that –

“It is improper, unreasonable and perverse for a trial Judge to draw inference founded on wrong premises outside the issue raised on pleadings and unsupported by evidence adduced by the parties”.

 

He urged the court to resolve the issue in favour of the appellants. In his reply, learned counsel for the respondent contended that the above remark of the learned trial Judge is copiously supported by evidence before the lower court. In the learned counsel’s view, this court should not interfere in this circumstance. He relied on the case of Akpagbue v. Ogu (1976) 6 SC 63. He referred to exhibit VIOC which, is attached to the affidavit of the respondents and submitted that the contents support the learned trial Judge’s remark. It is his view however that the judgment of the lower court was not based on the said comment and consequently did not occasion a miscarriage of justice.

 

An application for judicial review under order 46 of the Federal High Court Rules, is heard on affidavit evidence. In consequence therefore, the respondent filed an affidavit in support of her application. She attached to her affidavit all the documents she relied on to prove her case. One of such document exhibited in the affidavit is a report of a committee set up by the Faculty of Law to look into her case. It is trite that a document exhibited by an affidavit is part of that affidavit. National Electoral Commission AND Ors. v. Sunday Ogundi Wodi (1989) 2 NWLR (Pt. 104) 444 in that case, the learned trial Judge was right in looking at the document.

 

It does seem to me however that the comment of the learned trial Judge referred to above by the learned counsel for the appellants was taken out of context to give the impression that the learned trial Judge based on it. The relevant passage of the judgment reads-

“In any case, it seems absurd and indeed ridiculous for the respondents to have held the appellant to ransom over an allegation of wrong doing that was neither linked with her degree programme nor directly connected with the law degree examination taken by her. It is strange that the sound recommendations contained in exhibit “VIOC” earlier referred to, were ignored in order to satisfy the whims of some petty and evil minded persons, to the detriment of the University, despite that the consequence of doing so are clearly spelt out therein”.

 

The opening paragraph of the above passage of the judgment shows clearly that the learned trial Judge had reached his conclusion before referring to what the learned counsel described as “an extraneous matter”. It is necessary to remind ourselves that the appellant’s did not file any counter affidavit to rebut the averments in the respondent’s affidavit. The learned trial Judge was therefore right in acting on the facts contained therein. One of such facts is the statement contained in exhibit “VIOC”. It reads-

“From the comments made by the committee members on my father who is a lecturer on sabbatical, which are slanderous and which will be made public at the appropriate place and time, it is very clear that some members of the committee and some other highly placed persons within the University system have a personal vendetta on my father Dr. A. S. Oyalana.”

 

In the light of the foregoing, it is my considered view that the learned trial Judge’s comment is in line with the evidence before him. In his ruling dated 15/9/2000, the learned trial Judge remarked as follows-

“I must say that the conduct of the respondents in this case is not worthy of eliciting sympathy from this court. In the judgment, I was of the opinion that they exhibited undiluted arrogance and gross indifference in this case.”

 

It is obvious from the above that the alleged “extraneous matter” did not influence the learned trial Judge in reaching his decision. Consequently it did not occasion a miscarriage of justice.

 

In the final analysis, since all the issues have been resolved against the appellants, the appeal fails. It is accordingly dismissed. The judgment of the lower court is hereby affirmed. The respondent is entitled to costs which I assess at N10,000.00.

 

 

 

 

MURITALA AREMU OKUNOLA JCA:

I have had the benefit of reading in draft the leading judgment just delivered by my learned brother Amaizu JCA I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed. I also dismiss the appeal. I abide by the consequential orders made in the leading judgment including the order as to costs.

 

 

 

 

WALTER SAMUEL NKANU ONNOGHEN, JCA:

I have had the advantage of reading in draft the lead judgment of my learned brother Amaizu JCA, just delivered. I agree with his reasoning and conclusion that there are no merits in this appeal. The facts of the case have been stated extensively in the lead judgment so I do not intend to repeat them here.

 

It is my considered view that the conduct of the appellants throughout the proceedings in the lower court i.e. from the service of the process on them to the delivery of judgment is one that is very undeserving of a sympathetic consideration. The appellants were given the opportunity to be heard on the matter but they failed to utilize same. The appellant were clearly very indifferent to the application of the respondent and to her right as a law student who needed to proceed to the law school so as to be called to the bar in a profession where seniority is very important. They only sprang into action after judgment had been delivered by the lower court.

 

The conduct of the appellants, if encouraged will result in the frustration of the aspiration of the respondent to become a legal practitioner which will be very oppressive on her having regards to the peculiar facts of the case. For these and other reasons assigned in the said lead judgment of Amaizu JCA I also dismiss the appeal and abide by the consequential orders made therein including the order on costs.

 

Appeal dismissed.