3PLR – ADEKUNLE V. UNIVERSITY OF PORT HARCOURT

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ADEKUNLE

V.

UNIVERSITY OF PORT HARCOURT

COURT OF APPEAL, (PORT HARCOURT DIVISION)

FRIDAY, 11TH JANUARY, 1991

CA/PH/191/90

3PLR/1991/11 (CA)

 

 

 

BEFORE THEIR LORDSHIPS

MICHAEL EKUNDAYO OGUNDARE, J.C.A. (Presided)

SYLVESTER UMARU ONU, J.C.A.

BRAIMAH AMEN OMOSUN, J.C.A. (Read the Leading Judgment)

 

BETWEEN

1. OLU S. ADEKUNLE
2. TOMA A. UDANDOMA
3. CYRIL O. AGBE-DAVIES
4. DOZIE UFONDU

AND

UNIVERSITY OF PORT HARCOURT

 

REPRESENTATION

Chief Robert Clark – for the Appellants

C.O. Akpamgbo, S.A.N. (with him, C.C. Elechi) – for the Respon­dent

 

ORIGINATING COURT/STATE

High Court of Rivers State (Fiberesima J. Presiding)

 

OTHER ISSUES

GOVERNMENT AND ADMINISTRATIVE LAW:– Certiorari proceedings – Public Universities – Discipline of student in higher institutions – Expulsion of student for membership of banned Associations (Secret Cults) and assault – Application to quash same – How treated

GOVERNMENT AND ADMINISTRATIVE LAW:– Public Universities – Powers and Discretion of the Vice Chancellor – Whether court can grant certiorari against exercise of that discretion – Whether deemed a domestic forum in which the court will not interfere – Whether a court is precluded from granting relief to a success­ful litigant merely because a law gives to the litigant a right of recourse to another person or body

GOVERNMENT AND ADMINISTRATIVE LAW:- Exercise of non-existing power – Onus of proof that power exercise exist – On whom lie – Where exercise affects the rights of any person – Duty of court thereto

GOVERNMENT AND ADMINISTRATIVE LAW:– Discretion and exercise of statutorily conferred authority – Administrative proceedings – Where a competent authority is required to be satisfied as to certain matters before taking a decision – Basis for judicial review of such discretion – Whether competent person is obligated to justify decision through identifiable data or reasons which can be examined objectively according to the rules of natural justice

GOVERNMENT AND ADMINISTRATIVE LAW:– Where a statute prescribes a procedure for assuming certain delegated authorities – Whether court can inquire into evidence that procedure was followed

GOVERNMENT AND ADMINISTRATIVE LAW:- Quasi-judicial functions – Where conferred on any person – Need to exercise same with due regard to the principles of natural justice – Effect of failure thereto

GOVERNMENT AND ADMINISTRATIVE LAW:- Principle of ripening of cases – Where a statute prescribes the exhaustion of administrative process before approaching the court – Duty thereto – Where statute merely provides that option without making it mandatory – Effect

GOVERNMENT AND ADMINISTRATIVE LAW:- Fair hearing and quasi-judicial proceedings – Person who had earlier made adverse representation against an accused person – Where subsequently charged with investigating same person with report arising therefrom forming sole basis for exercise of discretion- Whether an incurable breach of the rules of natural justice

CONSTITUTIONAL LAW:– Right to fair hearing – 33(1) & (4) of the 1979 Constitution.- Consequence of a breach of the rules of natural justice

CONSTITUTIONAL LAW AND JURISPRUDENCE – JUDICIAL POWERS:- Purpose of in a constitutional democracy – Duty of court not to afford a blind implementation to the acts/decisions of the executive arm of government

EDUCATION AND LAW:– Access to tertiary level education – Rights of undergraduates in a university vis a vis powers of the Vice Chancellor and University administration– Membership of banned associations (Secret Cults/Fraternities) – How properly proved – Whether student can be expelled without fair hearing rights being respected – Duty of court thereto

CHILDREN AND WOMEN LAW: Young People and Education/Justice Administration – Access to tertiary level education – Cultism – Expulsion of students for alleged involvement in cult related activities – Whether Vice Chancellor has judicially unquestionable authority to expel undergraduates without affording them the rules of fair hearing – How treated

PRACTICE AND PROCEDURE – APPEAL – JURISDICTION:- When issue of jurisdiction can be raised

PRACTICE AND PROCEDURE – COURT:– Whether a Judge can raise any issue suo motu and determine same without giving parties to address the court thereto

PRACTICE AND PROCEDURE – COURT:- Where judges raise issues suo motu – Applicability of a statute – Duty to afford opposing parties opportunity to address court on same – Justification – When failure would be deemed as denial of fair hearing right

PRACTICE AND PROCEDURE – COURT – JURISDICTION:- Ouster clauses – Where statute oust the challenge of its provisions based on the operation of the Constitution and the principles of fair hearing enshrined therein – Whether court can still assume jurisdiction based on the common law principle of natural justice

INTERPRETATION OF STATUTES:- Section 17 of the University of Port-Harcourt Decree No.84 of 1979 – Interpretation of

INTERPRETATION OF STATUTE:- Decree No.47 of 1989 – Purport of – Conditions precedent that must be satisfied before powers are deemed delegated thereunder – When Statute not applicable

WORDS AND PHRASES:- “Discretion” – “Satisfied” – Meaning of

 

 

MAIN JUDGEMENT

OMOSUN, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the judgment of FIBERESIMA, J., dated 9th August, 1990 sitting at the Port Harcourt High Court of Rivers State. In the said proceedings he re­fused to make orders which prayed for judicial review of the expulsion of the appellants from the University of Port Harcourt contained in identical let­ters to the appellants dated 10th March, 1990 and signed by L.C. Okere, Academic Officer on behalf of the Registrar. The reliefs asked for were:

(1)     An order granting leave to the Applicants to apply for an order of certiorari to remove into this Honourable Court and quash, the decision of the respondent contained in a letter dated 10th March, 1990 and signed by L.C. Okere, Academic Officer, on behalf of the Registrar, by which the Registrar purported to expel the applicant from the University of Port Harcourt.

(2)     A declaration that the applicant is still a student of the Respon­dent University.

(3)     And such further necessary or consequential orders as this Hon­ourable Court may deem fit to make in the circumstances.

 

The learned Judge on the 4th of May, 1990 after listening to the appel­lants’ counsel on the ex-parte application granted leave for the applications to be heard on their merits. Then followed filing and serving of relevant af­fidavits in support of the applications. The respondent filed counter-af­fidavits in opposition. The applications which were consolidated were heard between 15th May, 1990 and 27th July, 1990 on various dates. Counsel on both sides addressed Court. In a reserved judgment delivered on 9th Au­gust. 1990, the learned Judge refused the orders sought. His concluding sen­tence is:

“In conclusion I hold very reluctantly that this Court will not make the order sought for by the applicants.

I’ll rather advise that representation be made to the Presi­dent, Commander-In-Chief of the Armed Forces.

Application refused.”

The matter briefly arose in the following manner. The 4 appellants are students of the University of Port Harcourt at the time this saga unfolds it­self. Their case was that the respondent expelled them from the University of Port Harcourt by a letter dated 5th March, 1990 because they were alleged to be members of banned secret cults and fraternities. They also had committed various criminal offences, e.g. assault. They averred in their various affidavits that some of them were not allowed to be present at the investiga­tion and others were not given the opportunity of cross-examining their ac­cusers. They say they were denied fair hearing and that the rules of natural justice were never adhered to. The appellants denied being members of any banned society operating in the University. The 1st, 2nd and 4th appellants appealed to the respondent to review the expulsion order. These appeals were still pending when they went to court. In sum total the complaint of the appellants is that they were not given fair hearing before their expulsion from the University and that their fundamental right have thereby been in­fringed as guaranteed under Section 33(1) & (4) of the 1979 Constitution.

 

The respondent through the Security Officer Mr. S.E. Kiria Igbara de­posed to counter-affidavits to supporting affidavits. He confirmed the expul­sion of the four appellants and levied various charges against them bordering on serious criminal charges. He also alleged they were members of banned fraternities. All the counter-affidavits are fully reproduced in the judgment of the lower court with relevant exhibits on the appellants.

 

The learned Judge in a considered judgment refused the application. The appellants aggrieved by the decision have filed this appeal. The notice and grounds of appeal was filed on 15th August, 1990. Four grounds of ap­peal were filed. They were the ones argued before us.

 

The appellants have listed three issues for determination. I set them out below:

(1)     Is Decree No.47 of 1989 a relevant law to be considered in the adjudication of this case, having regard to the fact that the Respon­dent confirmed that it acted solely in pursuance of the provisions of Section 17 of Decree No. 84 of 1978 in expelling the appellants from the University?

(2)     Was the learned trial Judge correct in law to have suo motu raised the issue of Decree No.47 of 1989, when the necessary prior con­ditions and provisions relating to its implementations were not adhered to during the process of investigation of the alleged exis­tence of fraternities and its membership?

(3)     Even for purposes of argument, if Decree No.47 of 1989 were applicable in the particular case, is there evidence before the court to link the appellants to the existence if any and member­ship of any fraternity especially the Vikings and the Mafia to war­rant the order made by the learned trial Judge supposedly in pur­suance of the provisions of this Decree requiring the students to petition the President?

 

The respondent has set down three issues for determination. They are:­

(a)     Is a Judge not entitled to consider all principles of law appearing to him relevant to a case even if not raised by the parties as apart from the issues of facts which are sacred?

(b)     Does the submission that the respondent acted under Decree No.84 of 1979 disable an adjudicating Judge from considering any other law such as Decree No.47 of 1989 especially as the issue before the Court touched on the appellants’ membership of sec­ret societies, the activities of which are a threat to order and good government in the University as evidenced by the document sought to be quashed?

(c)     If the learned trial Judge in his discretion correctly refused an order for Judicial review in view of the overwhelming evidence of the appellants’ connection with the destabilizing activities of sec­ret confraternities within the University, would a slip in also re­fusing it under wrong law which is denied apart from Section 17 of the University of Port Harcourt Decree No. 84 of 1979 occa­sion such a miscarriage of justice to identify a reversal of his order or in the alternative, have the learned trial Judge jurisdiction to question the action of the Vice-Chancellor vide Decree No. 13 of 1984?

 

Before considering the submissions made to us, it is important to set out the letter of expulsion dated 9th March, 1990. It reads:­

“I am directed to inform you that the Vice-Chancellor, Professor Kesley A. Harrison, has directed that you be expelled from the University of Port Harcourt because of your membership of a banned fraternity (MAFIA) which has been banned by the Fed­eral Government and whose activities have continued to destabilize the peace at the University of Port Harcourt.

You should surrender all University property in your pos­session to the Dean of Students’ Affairs.

You are to leave the University premises immediately and should not be seen to enter the premises of the University of Port Harcourt as this will lead to your being immediately handed over to law enforcement agencies.”

 

In order to appreciate the issues canvassed in this appeal, it is necessary to set out in full the findings of facts made by the learned Judge. They are at pages 146-147 of the printed records beginning at lines 9-34. The learned Judge said:

“In their letters Messrs Adekunle, Agbe Davies and Ufondu were said to be members of the banned fraternity of VIKING, Mr. Ubandoma was said to be a member of the banned fraternity of MAFIA.

Throughout the whole proceedings, there was no evidence before me that any fraternity was banned by the Federal Govern­ment in the University of Port Harcourt. No Gazette or Circular letter was produced to show that VIKING OR MAFIA as frater­nity was banned on the campus of the University of Port Har­court. Mr. S.K. Igbara the Deputy Chief Security Officer of the University of Port Harcourt, who swore to all the Counter Affidavits and Further Counter Affidavits against the applicants was a witness before the Investigation Committee on the ac­tivities of Proscribed Student Association in December, 1989.

He did not tell the Committee that these students were members of a banned fraternity. He did not submit any docu­ment including membership list of members of a banned frater­nity in which the names of these students could be found or ap­peared.

So the allegation that the Applicants were members of any banned fraternity has not been established. The whole thing showed intrigue against the student applicants.

The Vice-Chancellor was not made to depose in an affidavit the way or ways he became satisfied that the students were mem­bers of banned fraternity of VIKING OR MAFIA or any banned fraternity at all. In my view there was no bases at all for the expul­sion of the students. Every Vice-Chancellor, Provost, Rector, ought to appreciate the elementary but fundamental fact that he or she is in a position of parenthood to post graduate, under­graduate, (sic) and students of Universities and Institutions of Higher Learning and should endeavour to bring the children en­trusted to him or her in the proper way they should go in life.”

 

These are beautiful findings nobly made. They are unassailable. Indeed, there has been no appeal against these findings of facts. But there follows at page 148 that:

“in the Administration of a University the Vice-Chancellor is a master in his own house and a law unto himself, it is for him to re­call the Applicants if he so desires or wishes.”

 

It is no surprise that the appellants have come away complaining that in the face of these findings the learned Judge could not refuse to make the or­ders sought.

 

The submissions on behalf of the appellants have been far and wide ranging. Learned counsel for the appellants adopted the brief dated 10th October, 1990 and filed on the same day. He submits that it is not for a trial Judge to make a case of his own or to formulate his own case from the evi­dence and then proceed to give a decision based thereon contrary to the case of the parties before him. His principal submission is that in the case in hand, it was the appellants who sought reliefs in the lower court against their expul­sion from the University of Port Harcourt and the University sought to jus­tify it by relying solely on the powers conferred on the Vice Chancellor by Section 17, University of Port Harcourt Decree No.84 of 1979. It is said that the Respondent never relied on the Students Union Activities (Control and Regulation), Decree No.47 of 1989. It is pointed out that the lower court never invited counsel to address it on the applicability of the said Decree No.47 of 1989. It is submitted that the application of the said Decree was wrong. We are urged to allow the appeal.

 

In his submissions the learned S.A.N. for the respondent in his brief concedes that a Court should never raise any issue for either of the parties and without hearing the parties proceed to base its judgment on it. The case of Ugo v. Obiekwe (1989) 1 N. W.L.R. (Pt. 99) 566 is cited. He submits that the learned Judge did not raise the issue of Decree No.47 of 1989 out of the blues. Reference is made to the letter of expulsion which raised the issue contained in Decree No.47 of 1989 without of course mentioning the ap­propriate Decree and that the finding by the learned Judge called for appli­cation of Decree No.47 of 1989. It is submitted that the learned Judge was right and correctly referred to Section 3 of Decree No.47 of 1989 in the resol­ution of the issues involved in the application.

 

It is not in dispute that a Judge should never raise any issue for either of the parties and without hearing them and proceed to base its judgment on it. See Ugo v. Obiekwe (1989) 1 N.W.L.R. (Pt. 99) 566 at 582. It was not so in this case. The learned Judge applied a law which he felt on the evidence be­fore him was applicable. In my opinion, a Judge is entitled to consider all principles of law appearing to him to be relevant to a case even if not raised by the parties as apart from the issues of fact which are sacred. The crucial question is whether the learned Judge was right in his application of either Decree No.84 of 1979 or Decree No.47 of 1989 to the evidence before us. As IDIGBE, J., (as he then was) observed in Inua v. Nta & Anor. (1961) 1 All N.L.R. 576 at 582 – 83 an appellate court will on its own motion consider a substantial point of law arising on the record; even though it is not included as one of the grounds of appeal by the appellant; nor referred to by the ap­pellant at the hearing before the lower Court. The Judge is to hear and deter­mine the points of law arising from the evidence before him. Here a question of law arises which no evidence could alter and arising on the statement of facts. WALL, J.C.A. (as he then was) stated the position in Kanada v. Gov­ernor, Kaduna State (1986) 4 N.W.L.R. (Pt. 35) 361, 363, 373. He said:

“It is very desirable that in a situation like this, the Judge should invite counsel to address him on facts raised by him suo motu but by virtue of a statutory provision he is presumed to take judicial notice of such a fact (See Sections 72 and 73 of the Evidence Act) the fact that no such address was made by counsel would not af­fect the situation. See Section 73 (i) (A)”

 

It is time we examine the laws applied in resolution of the dispute. In the lower Court, the respondent sought to justify the expulsion by virtue of pow­ers conferred on the Vice-Chancellor by Section 17 of University of Port Harcourt Decree No. 84 of 1979. It is said that the respondent never relied on Decree No.47 of 89 – Students Union Activities (Control and Regulation) Decree. Reference is made to the findings of the learned Judge that the in­vestigation of the Security Department of the University which formed the basis upon which the Vice-Chancellor exercised his discretion to expel the students were make belief and that the respondent acted unlawfully. We are urged to grant the reliefs sought in the first instance.

 

Learned S.A.N. for the respondent said that in the Court below, the submission was that the Vice-Chancellor had powers to discipline by virtue of Section 17 of the University of Port-Harcourt Decree No.84 of 1979. The reasons for that submission are that the University is not bound to any limits to satisfy itself under Section 17(I)(d) of Decree No. 84 of 1979 before it dis­ciplines any student, that if the University is not bound to hold any inquiry by law, it is not permitted to a complainant to import the principle of natural justice into Section 17(1)(d) of the said Decree. Also it was stated that the in­vestigation concerns the activities of Secret Societies operating in the Uni­versity sometime under cover of night. The issue of discipline belongs to the domestic forum of the University as enshrined in the statute establishing it and is as such not justiceable in a Court of law and that the learned Judge lacked jurisdiction to entertain the matter in view of Section 1(2)(b)(1) and (11) of Decree No.13 of 1984. Lastly, it was stated that the jurisdiction to make the orders is discretionary. Order 43 Rule 1 of Rivers State High Court (Civil Procedure) Rules, 1988 was relied on. It is submitted therefore that on the above premise that the order refusing the reliefs sought in the cir­cumstances cannot be overturned as the slip (which is not conceded in refer­ring to Decree No.47 of 1989 is not so grave as to occasion a miscarriage of justice.

 

Section 17(1)(d) of Decree No.84 of 1979 provides thus:

“subject to the provisions of this section, where it appears to the Vice-Chancellor that any student of the University has been guilty of misconduct, the Vice-Chancellor may without prejudice to any other disciplinary powers conferred on him by statute di­rect …

(d)     that the student be expelled from the University.”

 

I cannot but help again to refer to the findings of the learned Judge, He said at page 147 of the records:

“In this case the Security and Intelligence Department merely built up a case against the applicants to impress the Vice-Chan­cellor that they knew their job or that they were efficient in the performance of their duties. But in my view they misdirected the Vice-Chancellor to taking wrong decision on the applicants.

It appears that societal judgment is invariably against the students without a pause to consider whether there are any ad­ministrative errors, hastiness and panic on the part of the boss of a University or Institution of Higher Learning.

In summary I find that the expulsion of the applicants from the University of Port Harcourt was wrong in its entirety, I will not say NULL and VOID.”

 

It is observed that the learned Judge in his judgment made no reference whatever to Section 17(1)(d) of Decree No.84 of 1979. This was the basis on which the respondent sought to justify the expulsion of the appellants. He did not as much consider the application of the law to the factual situation he found. Instead he relied on Decree 47 of 1989 to refuse the order sought. It was not on accidental slip that he referred to Decree No.47 of 1989. He dis­cussed it extensively in his judgment and the application of it to the matter in hand. In my opinion it was incumbent on the learned Judge to find out first if Decree No.84 of 1979 – Section 17(1)(d) applied to the situation he had found. If it did not, then he could turn to any other law which he felt applic­able to the case as Decree No.47 of 1989.

 

I will first consider the appeal on Decree No. 84 of 1979 Section 17(1)(d) under which the case was fought. The learned Judge has said there was no basis for the expulsion, he castigated the Security Officer for a bad report meant to impress and held that the expulsion was entirely wrong, though he would not say null and void. In his words “there was no justification to inflict deliberate painful injury to the career of these students.” It is plain to me that in effect the learned Judge found that Section 17(1)(d) of Decree No.84 of 1979 did not justify the expulsion by the respondent of the appellants. That is the purport of the specific and definite finding of facts made by him. It cannot be otherwise. It makes no sense to me to say that the expulsion was entirely wrong and then in another breath it is not null and void.

 

Now Section 17(1)(d) of Decree No.84 of 1979 uses the phrase, “where it appears to the Vice-Chancellor.” It imports a discretion and it means that the Vice-Chancellor has to be satisfied before he can order expulsion of a student. The satisfaction has to be derived from some data. This provision which is the subject of the basis of expulsion has been interpreted in the case of Garba v. University of Maiduguri (1986) 1 N.W.L.R. (Pt. 18) 550, 589­590. Up for interpretation was Section 17(1)(d) of the University of Maiduguri Act No.83 of 1979 which said provision is identical with Section 17(1)(d) of Decree No.84 of 1979 under consideration in this case. Eso, J.S.C. said:

“Even without the influence of the Constitution, what is of im­portance here is whether or not, as in this case once the terms of reference are made public and the manner by which the Vice­-Chancellor became satisfied are known, the discretionary pow­ers would or would not be reviewable by the courts. For it is no longer a case of a person upon whom the discretion is conferred making a blunt, but authoritative statement that he is satisfied. It seems to be a case wherein the data upon which that person has come to his conclusion would have to be examined objectively according to the rules of natural justice and no longer left to sub­jectivity.”

 

The learned Justice concluded like this at pages 590-591:

“It follows therefore that when Section 17 of the University of Maiduguri Act, 1979 No.83, gives a discretion to the Vice-Chan­cellor “where it appears to him that any student of the University has been guilty of misconduct,” and the data of his satisfaction are known, the Vice-Chancellor should under the ordinary rules of natural justice, even under the common law, obey the elemen­tary rules of fairness and fair play before he finds against any such student or as in this case, before he takes a drastic action under Section 17(1)(d) of the Act to expel the students.”

 

The learned Judge said so in many words in the passage of his judgment I quoted earlier. Let us briefly look at the data upon which the Vice-Chan­cellor acted. An Ad-hoc committee was set up to investigate the serious alle­gations against the appellants. Some attended and denied them. Others did not. The Ad-hoc Committee reached inconclusive finding. It recommended that the matter be investigated by the Security Department. The matter was then referred to the Security Dept. of the University to investigate the alle­gations against the appellants. With great agility and much ado about no­thing, one officer sat down and compiled a report finding the allegations against the appellant proved as being members of various confraternities. This officer testified before the Ad-hoc Committee. He made no such allega­tions against them. The learned Judge found the report make belief. It is on this report that the appellants were expelled. He did not hear from the stu­dents. The Ad-hoc Committee did. In my view, the report is completely worthless.

 

I think that the respondent has a duty to act fairly. It must give the ap­pellants an opportunity of satisfying it of the allegations which are grave and serious so that they can disabuse them. I do not question the right of the Vice-Chancellor to receive a report on the appellants from anywhere. The allegations involve commission of offences. But I say they must be given a chance of answering it. The report had wide repercussions. As the learned Judge said, the expulsion may lead to a ruin of careers and hopes dashed. I am clearly of the view that the Vice-Chancellor has a duty to act fairly. I have said that the words used are “where it appears to the Vice-Chancellor.” These words we are told put it entirely in the Vice-Chancellor’s discretion whether or not to take administrative decision i.e. of expelling the appel­lants. It is claimed that these words exempt his decision from judicial review. It does not mean that the Vice-Chancellor’s decision is put beyond chal­lenge. In this case, I would think that, if the Vice-Chancellor does not act in good faith or if he acts on extraneous considerations which ought not to in­fluence him or if he plainly misdirects himself in fact or law, the court ought to interfere. I say that when a Vice-Chancellor is given a discretion and exer­cises it for reasons which are bad, the court can interfere to get him back on to the’ right road. If Decree No.84 of 1979, Section 17(1)(d) gives the Vice-­Chancellor power to expel where it appears or is satisfied, then he should obey all the elementary rules of fairness before he finds the appellants guilty or before he takes drastic action in expelling them. He should have given the appellants notice of the impropriety and a fair opportunity of dealing with the allegation. The learned Judge has said there was no basis for the expul­sion. He said the expulsions were unlawful. In the circumstances it seems to me that the Vice-Chancellor’s discretion was not validly made in accordance with Decree No.84 of 1979 – Section 17(1)(d).

 

It is submitted that the issue of discipline of students belong to the domestic forum of the University as enshrined in the Statute establishing it and as such not justiceable in a Court of law. The case of Akintemi & 2 Ors. v. Onwumechili & 2 Ors. (1985) 1 S.C. 156,132 at 160 (1985) 1 N.W.L.R. (Pt. 1) 68 is relied upon. It is also submitted that the court lacks jurisdiction to entertain the action. Reliance is placed upon Section 1(2)(b)(i)(ii) of De­cree No. 13 of 1984.

 

The answers to these submissions are found in the case of Garba v. Uni­versity of Maiduguri (supra). In the Garba case (supra) there were weighty submissions that the discipline of students is a domestic affair which the courts should not wade into. Obaseki J.S.C. at page 548 answered the sub­mission thus:

“when the Vice-Chancellor assumed the disciplinary powers under Section 17 of the Act, he became not a court but a tribunal established by law acting in a quasi-judicial capacity – See Glynn v. Keele University & Anor. (1971) 2 All E.R. 89 CH.D. But he was not independent and not impartial . …”

 

Having assumed judicial functions they were bound to pass the qualification test to assume the judicial functions and were bound to act judicially and comply with the constitutional re­quirements of fair hearing.”

 

The learned Justice further at page 586 said:

“The competence of the High Court to entertain-the claims has constitutional basis in Section 42 of the Constitution. That sec­tion reads:

“Any person who alleges that any of the provisions of this chapter has been, is being OR likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

“It cannot be disputed that this Section confers jurisdiction on the High Court of Borno State to entertain appellants’ complaint of violation of their fundamental human rights under Section 33(1) & (4) of the Constitution and grant redress for such viola­tion.”

 

In this connection, I would refer to the supporting judgment of Eso, J.S.C. about what is a domestic forum in which the court will not interfere. See pages 593 – 597. In the case of Glynn v. Keele University (1971) 1 W.L.R. 487 PENNYCUICK, V.C. said at page 495:

I have found considerable difficulty in making up my mind as to which side of the line, the power falls. When the Vice-Chancellor exercises those powers should he be regarded as acting in a quasi-­judicial capacity, or should he be regarded as acting merely in what I have called a magisterial capacity? Or the best considera­tion I can give it, but let me say at once it is by no means the end of the matter. I have come to the conclusion that those powers are so fundamental to the position of a student in the University that the Vice-Chancellor must be considered as acting in a quasi-­judicial capacity when he exercise them. I do not think it would be right to treat those powers as mere matters of internal discipline.”

 

In my view therefore, the powers given to the Vice-Chancellor by Sec­tion 17 of the relevant Act are quasi-judicial and have to be exercised with due regard to the principles of natural justice. That is not within the realm of domestic forum as contended by the learned counsel for the respondent. Section 33(1) and (4) of the 1979 Constitution provide:

(1)     In the determination of his civil right and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted by law and constituted in such manner as to sec­ure its independence and impartiality.

(4)     Where any person is charged with a criminal offence, he shall un­less the charge is withdrawn be entitled to a fair hearing within a reasonable time by a court or tribunal.”

 

The Vice-Chancellor cannot be said to be impartial in this matter.

 

In his judgment, the learned Judge applied Decree No.47 of 1989 – Stu­dent’s Union Activities (Control and Regulation). The learned Judge relied on Section 2 & 3 of the Decree to hold that the proper authority to make rep­resentation to is the President, Commander-in-Chief of the Armed Forces – Sections 2 and 3 of the Decree provides as follows:­

2(1)   Where any society by whatever name called or known operating within the campus of the University or any Institution of Higher Learning in Nigeria is pursuing activities which are:

(a)     not in the interest of National Security, Public Safety, Pub­lic Order, Public Morality or Public Health or

(b)     illegal, inimical, destructive or unlawful.

the Governing Council, Vice-Chancellor or any Authority or person in charge OR in control of the University or Institution of Higher Learning shall after conducting investigations with re­spect thereto may proscribe any such society.

(2)     It shall constitute an offence punishable under this Decree for any student to engage himself or organise other students to participate in the activities of any society proscribed pur­suant to sub-section 1 of this section.

3(1)   The Minister may, as from the commencement of this Decree, when he is of the opinion that public interest or public safety so demands, suspend for any specified period of time, remove, withdraw or expel any student whether undergraduate, post graduate or otherwise) from any University, Institution of Higher Learning or similar institution.

(2)     The powers conferred on the Minister by sub-section (1) shall be exercised by:­

(a)     Any person or authority authorised by the Minister to do so on his behalf or

(b)     the Governing Council, Vice-Chancellor or any authority or person in charge of or in control of that institution.

 

It seems to me that these sections of Decree No.47 of 1989 are inapplic­able to the instant case. These provisions must be interpreted according to their grammatical sense which depends both on the words used and on the places they occupy. The meaning of these sections are dear and unambigu­ous. On the evidence before the learned Judge, there was nothing estab­lished that any fraternity was banned by the Federal Government in the Uni­versity of Port Harcourt. There was no Gazette or Circular letter to show that the Viking or Mafia was banned. In effect, it comes to this that no such society has been proscribed or banned in the University of Port Harcourt. So there is no such society as envisaged in Section 2(1)(b). The learned Judge also held that “so the allegation that the appellants were members of any banned fraternity has not been established. The whole thing showed intrigue against the student applicants.” It is clear therefore that the appellant have not committed any offence stipulated by Section 2(2) of the said Decree No.47 of 1989. There has been no proscription or offence committed. In my judgment therefore, Section 2 of the said Decree is inapplicable to the case in hand.

 

I turn next to Section 3 of the Decree. It gives the Minister powers to suspend, remove, withdraw or expel any student if he is of the opinion that public interest or public morality so demands. He cannot form his opinion in vacuum. It has to be based on some information no matter how he gets it. And there is no evidence that the report of the Security Dept. which the learned Judge described as make belief ever got to the Minister. Sub-section 3(2) deals with the delegation of the Minister’s powers to various persons and bodies. There is no evidence that any such delegation was made to the Vice-Chancellor.

 

I agree with the learned counsel for the appellants that the basis of the application of Decree No.47 of 1989 is non-existent. The reason given for the expulsion is membership of Federal Government banned fraternities. In my opinion, Section 3 is inapplicable to the case in hand.

 

Even though the proviso gives the affected student 28 days within which to make representation to the President, Commander-in-Chief of the Armed Forces, there is no compulsion about it. It is a choice he has to make. In any case it does not stop the affected student from seeking redress in Court: Garba’s case (supra).

 

In section 4 of the said Decree, the president can by an order published in the Gazette proscribe any student union not in the interest of Defence, Public Safety, Order, Public Morality or Public Health. This section deals with the proscription of students Union or Association as distinct from Sec­tion 3 which deals with the power of the Minister to expel a student. The learned Judge found that there was no banned fraternity or society. It is plain to me that Section 4 is not applicable to the case in hand. It is my judg­ment that the learned Judge was in error in applying Decree No.47 of 1989 to this case. The conditions precedent to its application were just not there.

 

It is submitted by the learned S.A.N. for the respondent that the con­struction put on the powers of the Vice-Chancellor to expel a student under Section 3 of the Decree is wrong. The Minister does not have to be satisfied before the Vice-Chancellor acts under sub-section 2(b) of the Decree. The submission is that the Vice-Chancellor should be substituted for the Minister in Section 3(1) in view of the clear wordings of sub-section 2. The answer is that there is no evidence that the Minister has authorized the Vice-Chancel­lor to exercise the powers. The report was a make belief and so the opinion was formed on a wrong premise.

 

It is well settled that the consequence of a breach of the rules of natural justice is that the decision reached thereby will be set aside. See Adigun v. A. G. of Oyo State (1987) 1 N.W.L.R. (Pt. 53) 678; Olatunbosun v. NISER (1988) 3 N.W.L. R. (Pt. 80) 25; Buzugbe v. Civil Service Commission (1984) 7 S.C. 19; F. CS. C. v. Laoye (1989) 2 N.W.L.R. (Pt. 106) 652.

 

It is submitted that the jurisdiction to make any available order for jud­icial review is discretionary and what orders the court will make under Order 43 Rule 1 of the High Court Rules of Rivers State is subject to:

“all the circumstances of the case, it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.”

 

The answer to it is to be found in findings of the lower Court. I think it would be unjust to refuse the orders sought based on those findings. Lastly, for good measure, it is submitted that the court lacks jurisdiction to entertain the action questioning the right of the Vice-Chancellor under Section 17 of Decree No.84 of 1979. Section 1(2)(b)(i) and (ii) of Decree No. 13 of 1984 is relied on. It is also contended that the action cannot be questioned even if he acted under Decree No.47 of 1989. It is said that the appeal is all about the fundamental human rights which is protected under Chapter IV of the 1979 Constitution which is alleged breached by the Vice­-Chancellor when he made Exhibit “A.” The case of In Mohammed v. Com­missioner of Police (1987) 4 N. W.L.R. (Pt. 65) 420 is relied on.

 

Now Section 1(2)(b)(i) and (ii) read as follows:-

(a)     No civil proceedings shall lie or be instituted in any court for or on account or in respect of any act, matter or thing done or pur­ported to be done under or pursuant to any Decree or Edict and if any such proceedings are instituted before or after commence­ment of this Decree shall abate, be discharged and made void.”

(b)     The question whether any provision of chapter IV of the Con­stitution has been, is being or would be contravened by anything done or proposed to be done in pursuance of any Decree or an Edict shall not be inquired into by any Court of Law, and accord­ingly no provision of the Constitution shall apply in respect of any such question.”

 

I have in this judgment held that Decree No.47 of 1989 is not applicable to this case. It follows therefore that there cannot be any protection for ac­tions not done under Decree No. 47 of 1989. It is said that Decree No. 13 of 1984 was not considered in Garba’s case (supra) and other related cases. The argument is that they are of little assistance in this case. I have in this judg­ment set out the reliefs asked for by the appellants namely an order of cer­tiorari to quash the letter of expulsion dated 10th March, 1990 and a declara­tion that they are still students of the University of Port Harcourt. Natural Justice is not only a common law requirement guaranteed the appellants by Section 33(1) & (4) of the 1979 Constitution. The submission of learned counsel for the respondent is no doubt based on this.

 

In the Garba’s case (supra) the High Court granted the appellant’s claim in its entirety. The Court of Appeal dismissed it in its entirety. The Supreme Court restored the High Court’s decision. The effect of Decree No. 13 of 1984 was not considered. It was not raised in the submissions of counsel to the Supreme Court. In the case of Legal Practitioners Disciplinary Committee v. Chief Gani Fawehinmi (1985) 2 N.W.L.R. (Pt.7) 300 at page 307 the Supreme Court dismissed the appeal of the Legal Practitioners Dis­ciplinary Committee affirming the judgment and order of the Court of Ap­peal. It excluded members of the Committee who might reasonably be tainted with bias from sitting on the Committee. In Olaniyan & Ors. v. Uni­versity of Lagos (1985) 2 N. W. L. R. (Pt. 9) 599 at 632 the appellants were re­stored to their posts in the University of Lagos because they claimed that re­lief in the first instance.

 

The issue of jurisdiction was not raised in the lower court. It is a new point of law. Leave of Court was not sought to argue it. Issue of jurisdiction can be raised at any time. In any case if the respondent wanted us to affirm the judgment for other reasons, it should have filed a respondent’s notice. See Order 3 Rule 14 of the Court of Appeal Rules, 1981. The Vice-Chancel­lor did not act under any law. He acted arbitrarily. Neither Decree No.84 of 1979 nor Decree No.47 of 1989 is applicable to this case. The Vice-Chancel­lor did not act in pursuance of any Decree or Edict. There is no ouster clause in Decrees No.84 of 1979 and 47 of 1989.

 

In the event, this appeal succeeds and is hereby allowed. I make the fol­lowing orders:

(1)     That the decision contained in letter dated 10th March, 1990 and signed by L.C. Okere, Academic Officer on behalf of the Regis­trar, by which the respondent purported to expel the appellants from the University of Port Harcourt is hereby quashed.

(2)     That the applicants/appellants are still students of the University of Port Harcourt.

(3)     This will be the judgment of the lower court. I award costs of N500.00 to the appellants.

 

 

OGUNDARE, J.C.A.:

I have had the privilege of a preview of the judg­ment of my learned brother, Omosun, J.C.A. just delivered. I agree with the conclusion reached by him that this appeal be allowed. In view, how­ever, of the issues of law raised by learned counsel for the parties I intend to add a few words of my own.

 

The facts are not in dispute. The appellants were, until the letters lead­ing to these proceedings, students of the University of Port Harcourt (the re­spondent herein). Some of the appellants, among other students, were in January/February 1990 invited to a meeting of a Committee set up by the Vice-Chancellor of the respondent University to “look into some of the problems of the students of (this) University.” As shown by the report of the investigation committee tendered as an exhibit in these proceedings, its terms of reference were:

(a)     To determine the membership of the proscribed Students’ As­sociations and their activities within the University of Port Har­court.

(b)     To ascertain any incidents which have taken place as a result of the existence of these Associations.

(c)     To make any recommendations as the Committee might deem necessary.”

 

The Committee made no findings adverse to the appellants and other stu­dents. It recommended thus:

“From the above, the Committee is of the considered opinion that the proper and correct identification of the membership of the proscribed Students Associations should better be handled by the Security Department of the University since these are sec­ret organization that operate occasionally openly and at times under the cover of the night. Since no member will admit his membership, then secret strategies would be the best method to uncover their identity.”

 

As disclosed by affidavit evidence at the trial of the applications of the appel­lants, the Vice-Chancellor referred the matter to the Security department of the-respondent University. In consequence, the appellants by letters dated 10th March, 1990 were expelled from the University. Paragraph I of the let­ter reads:

“I am directed to inform you that the Vice-Chancellor, Professor Kelsey A. Harrison, has directed that you be expelled from the University of Port Harcourt because of your membership of a banned Fraternity (MAFIA/VIKING) which has been banned by the Federal Government and whose activities have continued to destabilize the peace at the University of Port Harcourt.”

 

Some of them appealed to Senate but they all brought separate applications for certiorari to quash the letter of expulsion and for a declaration that each of them was still a student of the University.

 

The learned trial Judge, in a considered judgment, found as follows: “In their letters, Messrs Adekunle, Agbe-Davies and Ufondu were said to be members of the banned fraternity of VIKING, Mr. Ubandema was said to be a member of the banned fraternity of MAFIA.

 

Throughout the whole proceedings there was no evidence before me that any fraternity was banned by the Federal Government in the University of Port Harcourt. No Gazette or Circular letter was produced to show that VIKING OR MAFIA as fraternity was banned on the campus of the University of Port Harcourt. Mr. S. K. Igbara the Deputy Chief Security Officer of the Uni­versity of Port Harcourt, who swore to all the counter-affidavits and further counter-affidavits against the applicants was a witness before the Investigation Committee on the activities of the proscribed Students’ Association in December, 1980. He did not tell the Committee that these students were members of a ban­ned fraternity. He did not submit any document including mem­bers of a banned fraternity in which the names of these students could be found or appeared. So the allegation that the applicants were members of any banned fraternity has not been published. The whole thing showed intrigue against the students applicants. The Vice-Chancellor was not made to depose in an affidavit the way or ways he became satisfied that the students were members of banned fraternity of VIKING OR MAFIA or banned frater­nity at all. In my view there was no basis at all for the expulsion of the students. There was no justification to inflict deliberate pain­ful injury to the career of these students.”

 

After arriving at the above findings, against which there has been no appeal, the learned Judge went on to consider suo motu the provisions of the Stu­dents Union Activities (Control and Regulation) Decree No.47 of 1989 hereinafter is referred to as Decree No.47 of 1989. I say suo motu because both sides did not address the learned Judge on the Decree. After setting out the Decree the learned Judge proceeded thus:

“In the light of this Decree, I think the proper authority to make representatives (sic) in this matter is the President, Commander­-in-Chief of the Armed Forces for consideration. It is not for this court to make the order sought for, it is the President, Comman­der-in-Chief of the Armed Forces who can make the Order under Decree 47, 1989.

The period of 28 days for the applicants to make their representa­tions might have long expired but there is the undisputed fact that the applicants made representations within five days on receiving notification of their expulsion from the University of Port Har­court to the Vice-Chancellor instead of the President, Comman­der-in-Chief of the Armed Forces; I deem that a technical error of procedure and not an ignorance of the law, therefore that lapse of time may be waived on proper approach by the Presi­dent, Commander-in-Chief of the Armed Forces.

 

In conclusion I hold very reluctantly that this court will not make the order sought for by the applicants.

I’ll rather advise that representation be made to the President, Commander-in-Chief of the Armed Forces.”

 

In effect, the learned Judge declined to grant the remedies sought by the ap­pellants in their applications, notwithstanding the findings of fact made by him and which findings are very damaging to the cause of the respondent and entitle the appellants to have judgment decreed in their favour. The reason for this attitude is amplified in the underlined portion of the passage of the judgment just quoted above. The appellants appealed to this court upon four grounds of appeal which read as follows:

“(i)     That the learned trial Judge erred in law and thereby came to a wrong conclusion occasioning serious miscarriage of justice when he held that Decree No. 47 of 1989 (Students Union Ac­tivities) (Control and Regulations) was applicable to proceedings before him.

(ii)     That the learned trial Judge erred in law and misdirected himself on the facts when he held that “in the administration of a Univer­sity, the Vice-Chancellor is a master of his house and a law unto himself, it is for him to recall the applicants if he so desires or wishes.”

(iii)    The learned Judge erred in law and entirely misconceived the is­sues before him when he held that “I think the proper authcafty to make representations in this matter is the President, Comman­der-in-Chief of the Armed Forces who can make the order under Decree 47, 1989.”

(iv)    The judgment is against the weight of evidence.”

 

In the appellants’ brief of argument, their learned counsel, Chief Clarke, set out the following issues as arising for determination, that is to say:

“(1)   Is Decree No. 47 of 1989 a relevant law to be considered in the adjudication of this case,’ having regard to the fact that the re­spondent confirmed that it acted solely in pursuance of the provi­sions of section 17 of Decree No. 84 of 1978, in expelling the ap­pellants from the University?

(2)     Was the learned trial Judge correct in law to have suo motu raised the issue of Decree No.47 of 1987, when the necessary prior conditions and provisions relating to its implementations were not adhered to during the process of investigation of the al­leged existence of fraternities and its membership?

(3)     Even for purposes of argument, if Decree No. 47 of 1989 were applicable in the particular case, is there evidence before the court to link the appellants to the existence, if any and member­ship of any fraternity especially the Vikings and the Mafia to war­rant the order made by the learned trial Judge supposedly in pursuance of the provisions of this Decree requiring the students to A petition the President?”

 

Mr. Akpamgbo, S.A.N. for the respondent set out the issues in his brief thus:

“(a)    Is a Judge not entitled to consider all principles of law appearing to him relevant to a case even if not raised by the parties as apart from the issues of fact which are sacred?

(b)     Does the submission that the respondent acted under Decree No. 84 of 1979 disable an adjudicating Judge from considering any other law such as Decree No. 47 of 1989 especially as the issue before the court touched on the appellants membership of secret societies the activities of which are a threat to order and good government in the University as evidenced by the document sought to be quashed?

(c)     If the learned trial Judge in his discretion correctly refused an order for Judicial review in view of the overwhelming evidence of the appellants’ connection with the destabilizing activities of sec ret confraternities within the University, would a slip in also re­fusing it under a wrong law which is denied apart from Section 17 of the University of Port Harcourt Decree No. 84 of 1979 occa­sion such a miscarriage of justice to justify a reversal of his order or in the alternative, has the learned trial Judge jurisdiction to question the action of the Vice-Chancellor vide Decree No. 13 of 1984?”

 

In my respectful view, having regard to the grounds of appeal and the judgment appealed against the only issue arising for determination in this appeal is as to whether a court is precluded from granting relief to a success­ful litigant merely because a law gives to the litigant a right of recourse to another person or body. I say this because this is the only reason the learned trial Judge gave for declining to grant relief to the appellants and this reason is being challenged in ground 3 of the ground of appeal. I shall, therefore, proceed to consider that issue presently.

 

It is not in dispute that the only reason given by the respondent for the expulsion of the appellants from the University was their alleged member­ship of banned fraternities or organizations. This reason was debunked in the findings of the learned trial Judge and those findings have not been chal­lenged in this appeal by the respondent. Furthermore, the learned Judge’s findings also show conclusively that there had been a breach of the rule of natural justice to fair hearing before the decision to expel the appellants was taken. The assistant Chief Security Officer in the Security Department of the University, Mr. Samuel Kina Igbara, swore to counter-affidavits in these proceedings wherein he made serious allegations of criminal acts against the appellants. Mr Igbara testified before the investigation committee set up by the Vice-Chancellor. And yet it was to his department that the allegations against the appellants and other students were referred. The department be­came the accuser, the investigator and the judge! And even in performing the last role, it did not see it fit to hear the other side! I cannot imagine a worse breach of the rules of natural justice as perpetrated in this case. If the findings of the learned trial Judge are correct – and they must rightly or wrongly be taken as correct as there has not been any appeal let alone a suc­cessful appeal against those findings – then there is no basis for the Vice­ Chancellor acting under Decree No. 47 of 1989.

 

I am not prepared to accept the contention of learned counsel for the appellants that the learned trial Judge was wrong in referring to Decree No.47 of 1989. In view of the reason given for the expulsion of the appellants the University of Port Harcourt Act, No.84 of 1978 can only apply to the pre­sent proceedings subject to Decree No. 47 of 1989 which deals with the sub­ject of unlawful societies in a university. Section 6 of that Decree provides:

“6.     The provisions of any enactment, law or instrument (including the Constitution of the Federal Republic of Nigeria, 1979, as amended) relating to any matter to which this Decree applies or relating to the admission or disciplinary control of a student in any educational institution affected by this Decree shall have ef­fect subject to this Decree.”

 

Prudence, however, dictates that the learned Judge should have invited counsel for the parties’ to address him on the effect on the appellants’ case of the proviso to section 2 of the Decree which provides for representation being made to the President, Commander-in-Chief of the Armed Forces in the event of the Governing Council or Vice-Chancellor of a University exer­cising the powers conferred on the Minister of Education by section 3(i) of the Decree. Had the learned trial Judge taken this course in this case, coun­sel for the appellants might have been able to convince him that failure to make representation to the President would not vitiate the application brought by the appellants.

 

Sub-section (1) and (2) of Section 42 of the 1979 Constitution (as mod­ified) read thus:

“42.- (1) Subject to the provision of this Constitution, as amended, modified or otherwise affected by the Constitution (Sus­pension and Modification) Decree 1984 or any other De­cree, any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.”

(2)     Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the pur­pose of enforcing or securing the enforcement within that State of any rights to which the person who makes the appli­cation may be entitled under this Chapter.”

 

It was not a ground for the decision of the court below and no respondent’s Notice has been filed and served to contend that the judgment of the court below be affirmed on grounds other than those relied upon by that court as required by Order 3 rule 14(2) and (3) of the Court of Appeal Rules.

 

The same consideration applies to attacks on the respondent’s brief on some of the findings of fact made by the court below; there has been no ap­peal against these findings and it does not therefore, lie in the mouth of the respondent to attack any or all of them.

 

Even if the respondent can raise at this stage the Decree No. 13 of 1984 as ousting the jurisdiction of the courts, it is my respectful view that learned Senior Advocate’s contention that where the civil rights and obligations of any of the students or candidates are breached, denied or abridged (as in the case of the appellants in the appeal on hand) the court will grant remedies and reliefs for the protection of these rights and obligations. See also Garba v. University of Maiduguri (supra).

3. The court lacks jurisdiction to entertain this action questioning the ac­tion of the Vice-Chancellor done under section 17 of Act No. 84 of 1979 as was pressed on the learned trial Judge. Mr. Akpamgbo, S.A.N. relies on Section 1(2) (b) (i) and (ii) of Decree No. 13 of 1988 entitled The Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1984. With respect to the learned Senior Advocate, I don’t think this point is available to the respondent in this appeal.

 

First, this point was never raised in the court below and no leave of this court has been sought nor obtained to raise it on appeal. Secondly, it is my view that having regard to the provisions of section 2 of Decree No. 47 of 1989, persons and authorities invested with powers to suspend, expel etc in section 3 of the Decree would be acting in a quasi-judicial capacity when exercising those powers and, therefore, obliged to observe the rules of natural justice. And where they failed to do so, certiorari will lie to quash, their decisions. I am strengthened in this view by the dictum of Lord Denning M. R. in Educa­tion Secretary v. Tameside BC (1977) AC 1014, 1024 – 1025 cited by Eso, J.S.C. in Garba v. University of Maiduguri (supra)

2. The issue of discipline of students belong to the domestic forum of the University as enshrined in the statute establishing it and as such not justici­able in a court of law. Akintemi & 2 Ors. v. Professor Onwumechili & 2 Ors. (1985) 1 S.C. 132, 1611, (1985) 3 NWLR (Pt. 1) 68 is relied on by the learned Senior Advocate. Again, the learned counsel seems to overlook the facts in that case where the issue was the release of results of some students. The Supreme Court held in that case that the issue of results of a student of a uni­versity is a domestic issue for the University, and the Senate is the supreme academic authority of the University. The courts cannot and will not usurp the functions of the Senate, the Council and the Visitor of the University in the selection of their fit and proper candidates for passing and for the award of certificates, degrees and diplomas. The court, however, added that if in the process of performing their functions under the law the civil rights and obligations of any of the students or candidates are breached, denied or abused, the court will grant remedies and reliefs for the protection of these rights and obligations. With respect to learned counsel, that case is not on all fours with the present case. The provision that came for consideration in that case was section 61(5) of the Mid Western Nigeria Constitution which read:

“A member of the Public Service Commission may be removed from office by the Military Governor for inability to discharge the functions of his office (whether arising from infirmity of mind or body or any other cause or for misbehaviour.”

 

The Supreme court, where a member of the Public Service Commission was removed from office, held at page 40 of the Report that “as the Governor had to consider the matter of the appellant’s dismissal from the point of view of Government policy or expediency, he was not under any duty to act jud­icially…” In Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550, the Sup­reme Court in considering section 17 of the University of Maiduguri Act, 1979 (which is in pari materia with section 17 of the University of Port Har­court Act) held that when the Vice-Chancellor assumed the disciplinary powers under section 17 of the Act he became not a court but a tribunal es­tablished by law acting in a quasi-judicial capacity and was, therefore, bound to act judicially. See also Legal Practitioners Disciplinary Committee v. Gani Fawehinmi (1985) 2 NWLR (Pt.7) 300. It is my respectful view that there is nothing in Decree No.47 of 1989 ousting the jurisdiction of the courts in respect of matters covered by the Decree. Nor is there anything in the Decree which makes a representation to the President, Commander-in­ Chief of the Armed Forces a condition precedent to the exercise of the right conferred on an aggrieved student by section 42(1) of the Constitution or of a High Court granting any of the reliefs mentioned in Section 42(2). With profound respect to the learned trial Judge, therefore, due cognizance has not been taken of the provisions of Section 42(1) and (2). As was clearly de­monstrated in his judgment, there had been serious violations of the funda­mental rights of the appellants and the respondent failed to bring its case within the provisions of Decree No.47 of 1989. With profound respect to the learned trial Judge, he was in error to have declined to grant relief to the ap­pellants having regard to his findings of fact. See Akintemi & Ors. v. On­wumechili & 2 Ors. (1985) 1 NWLR 68 (Pt. 1).

 

Before I end this judgment 1 need to consider some issues raised in the respondent’s brief. Mr. Akpamgbo, S.A.N. had argued in his brief thus:

1. That if the University is not required by statute to hold an inquiry, it is not permitted to a complainant to import the principle of natural justice or audi alteram partem into Section 17(1) of Act No.84 of 1979.

Learned Senior Advocate reliance on Head of the Fed. Military Govt. v. Military Gov. of Mid-Western State (1973) 12 S.C.23, 40. with respect, is untenable. I can find nothing in the present proceedings to justify the application of that Decree. As earlier pointed out, there is nothing in Decree No. 47 of 1989 that ousts the jurisdiction of the courts. Nor is the competence of the making of that Decree being challenged here. On the contrary, it is the appellants’ conten­tion (and as found by the learned trial Judge) that it has not been shown by the respondent that the appellants belonged to societies or organizations proscribed by the President, Commander-in-Chief of the Armed Forces or the Governing Council or Vice-Chancellor of the University of Port Har­court nor that there was such societies or organization proscribed. In the ab­sence of such evidence, it cannot properly be said that the expulsion of the appellants from the University was effected pursuant to the Decree No. 47 of 1989 or any other Decree. What has happened in this case was a naked exercise of a non-existing power. The expulsion of the appellants cannot be said to have been effected under the Decree. In any event, the right to fair hearing is not only a constitutional right coming under Chapter IV of the 1979 Constitution but also a common law right; and the common law is still part of the law of this country. The case of Kanada v. Governor of Kaduna State (1986) 4 NWLR (Pt.35) 361, 373 cited to us by learned Senior Advo­cate in his letter of 27th November, 1990, is of no assistance to the respon­dent in this appeal.

 

In conclusion, it is my view and I so hold that this appeal must succeed and it is hereby allowed. The allegations against the appellants are grave and criminal in nature each carrying with it either a penalty of N50,000 or im­prisonment for a term of not exceeding 5 years or to both such fine and im­prisonment and triable by a tribunal set up under the Special Tribunal (Mis­cellaneous Offences) Decree 1984, as amended (see section 5 of Decree No. 47 of 1989) or some other penalty under the Criminal Code. Such allegations cannot by any stretch of imagination be described as trivial as contended by learned Senior Advocate in his brief. Even though, the Vice-Chancellor might rely on facts gathered by him to come to his decision to expel, but once it was shown that the method applied breached the rules of natural justice his decision to expel must fail with the defective method adopted in reaching that decision. As Eso, J.S.C. put it in Garba v. University of Maiduguri (supra) at pages 589 – 591 of the Report:

“No doubt, it is within the purview of the Vice-Chancellor to be satisfied that a “student of the University has been guilty of mis­conduct.” And under the ordinary Administrative Law, for it to appear to the Vice-Chancellor that the student is so guilty, is left to the Vice-Chancellor’s own assessment and there would be no limitation as to the material upon which he could base such judg­ment. It is to this extent that the reasoning of Viscount Radcliffe in Adegbenro v. Akintola (1963) A.C. 614 would be relevant, for when in construing the words “it appears to him” in section 33(10) of the Western Nigeria (Nigeria (Constitution) Order in Council, 1960 (S. l. 1960 No. 1652) Sche. IV) the Law Lord said in the Privy Council –

“When one turns to S.33 itself, the same kind of phrase “ap­pears to him likely to command the support of the majority of the members of the House …“appears to him that the Premier no longer commands the support of a majority of the “members” with regard to the Governor’s power of removal; and yet no one has suggested in the course of argument that a Governor exer­cising the power of selection is under any legal restriction as to the persons he may consult or the material to which he may turn in aid of his decision.”

 

How this has been modified by the constitution of the Federal Republic 1979, hereinafter referred to as the Constitution would be discussed later.

 

However, with the Vice-Chancellor having such full liberty to form his own opinion that a student has been guilty of miscon­duct under the Act, it was proper for him to have set up the Dis­ciplinary Investigations Board with the terms of reference aforesaid. Even without the influence of the Constitution, what is of importance here, is whether or not, as in this case, once the terms of reference are made public and the manner by which the Vice-Chancellor became satisfied are known, the discretionary powers would or would not be reviewable by the court. For, it is no longer a case of a person upon whom the discretion is confer­red making a blunt, but authoritative statement, that he is satis­fied, it seems to be a case wherein the data upon which that per­son has come to his conclusion would have to be examined objec­tively, according to the rules of natural justice and no longer left to his subjectivity. Lord Denning, M.R., put it admirably in Edu­cation Secretary v. Tameside B. C. (C.A.) (1977) A.C. 1014 when he said:

“The governing words which we have to consider here are, first, “If the Secretary of State is satisfied … So much depends on the interpretation of those words that I must say something upon them.

So far as “satisfied” is concerned, it is suggested – and was suggested by the Chief Officers of the local authority … that once the Secretary of State said that he was “satisfied” his decision could not be challenged in the courts unless it was shown to have been made in bad faith. We were refer­red by Mr. Bingham to Liversidge v. Anderson (1942) A.C. 206, where Lord Atkin drew attention to cases where the Defence Regulations required the Secretary of State. to be “satisfied” of something or other. Lord Atkin said, at p.233: “In all these cases it is plain that unlimited discretion is given to the Secretary of State, assuming as everyone does that he acts in good faith “to which I would add a simi­lar passage by Somervell L.J. in In re City of Plymouth (City Centre) Declaration Order (1946; Robinson v. Minister of Town and Country Planning (1947) K.B. 702, 721.

Those statements were made, however, in relation to regularizing in wartime or immediately after the war when the decision of the executive had to be implemented speedily and without question. That was pointed out by Lord Radcliffe in Nakkuda Ali v. Jayame (1951) A. C. 66, 77, and by Lord Reid in Ridge v. Baldwin (1964) A.C. 40, 73. Those statements do not apply today. Much depends on the matter about which the Secretary of State has to be satis­fied. If he is to be satisfied on a matter of opinion, that is one thing. But if he has to be satisfied that someone has been guilty of some discreditable or unworthy or unreason­able conduct; that is another. To my mind if a statute gives a Minister power to take drastic action if he is “satisfied” that a local authority has acted unreasonably, then the Minister should obey all the elementary rules of fairness be­fore he finds that the local authority is guilty or before he takes drastic action overruling them. He should give the party affected notice of the charge of impropriety or un­reasonableness and a fair opportunity of dealing with it,”

 

I would add to this admirable statement by Lord Denning that to give a blind implementation to the decision of the executive, and without reference to the elementary rules of fairness is an abdica­tion by the Judiciary of its powers to the executive especially in a country like ours where the powers of each of the organs of gov­ernment – Executive, Legislature and the Judiciary are distinct under the Constitution – see Sections 4, 5 and 6 of the Constitu­tion.

 

It follows therefore, that when Section 17 of the University of Maiduguri Act, 1979, No.83, gives a discretion to the Vice-­Chancellor “where it appears to him that any student of the Uni­versity has been guilty of misconduct” and the data of his satisfac­tion are known, the Vice-Chancellor should under the ordinary rules of natural justice, even under the common law, obey the elementary rules of fairness and fairplay before he finds against any such student or, as in this case, before he takes such a drastic action under Section 17(1)(d) of the Act to expel the students.” Oputa, J.S.C. for his part concluded thus at page 619:

“The next question that naturally arises is – Can the expulsion of the Appellants in the surrounding circumstances of this case be allowed to stand? The Vice-Chancellor acted principally on the recommendations of the Disciplinary Investigation Panel which identified the appellants not only as “the principal organizers and perpetrators of the Students uprising of 2nd February, 1983” but also certified them as “the culprits” and recommended discipli­nary measures against them in the form of expulsion. Now the Disciplinary Investigation Panel has been successfully attacked and vanquished on all the three counts, namely:

(i)      that it had no constitutional and legal competence to try criminal cases;

(ii)     that even if it had the competence (which it had not) it did not give the appellants any fair hearing;

(iii)    that its findings (of the D.P.P.) must of necessity be voided on the ground of the possibility of bias on the part of the Chairman and Vice-Chairman.

 

The discretion of the Vice-Chancellor that the appellants be expelled based on the recommendations of the Discipli­nary Investigation Panel which have now collapsed has no longer any legs of its own on which to stand. It too, is there­fore bound to fail. The expulsion order against the appel­lants will have to be revoked and it is hereby revoked.”

 

I subscribe to the orders made by my learned brother, Omosun, J.C.A. in his judgment.