ABSU et al. v. Orji Uzor Kalu

ABSU et al. v. Orji Uzor Kalu


IN THE COURT OF APPEAL

OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

ON TUESDAY, THE 30th DAY OF NOVEMBER, 2021


APPEAL NO: CA/OW/245/2018

CITATION:

BEFORE THEIR LORDSHIPS:

HON. JUSTICE OLUDOTUN A. ADEFOPE-OKOJIE, JCA (Presiding)

HON. JUSTICE AMINA A. WAMBAI, JCA

HON. JUSTICE I.W. JAURO, JCA

 


BETWEEN:

  1. ABIA STATE UNIVERSITY, UTURU
  2. SENATE OF THE ABIA STATE UNIVERSITY

(APPELLANTS)

AND

CHIEF DR. ORJI UZOR KALU

(RESPONDENT)


PRONOUNCEMENTS


A. ADMINISTRATIVE LAW

1. Access to Court–Whether exhaustion of internal administrative procedures are condition precedents to trigger the jurisdiction of courts; constitutionality thereof

“The Respondent has however cited the case of Kayili v Yilbuk (2015) 7 NWLR Part 1457 Page 1 where the Supreme Court held that any law, other than the Constitution, which tends to limit the unlimited jurisdiction of the State High Court or prevents aggrieved persons from ventilating their grievances in a Court of law is unconstitutional, as the right is guaranteed  and cannot be taken away.

The Supreme Court, in that case, however qualified this statement, holding, per Kekere-Ekun JSC at Page 82-83 Para E-G:

“The position of the law is that where a statute provides a legal line of action for the determination of an issue, the aggrieved party must exhaust all the remedies in the law before going to court…However, unless the statute specifically so provides in clear and unambiguous language, the jurisdiction of the court is not ousted… In the case of: Owoseni v. Faloye (supra) at P. 757, para. B this Court held thus:

‘‘Laws which prescribe that some procedural steps be taken to resolve a dispute before embarking on actual litigation are not and cannot be treated or categorized as ousting the jurisdiction of the court …”

The invocation of the court’s jurisdiction is merely delayed until the steps prescribed by the statute have been complied with. ….By making provision for the resolution of disputes by the prescribed authority a condition precedent to approaching the court for redress, the intention of the lawmakers is to reduce the number of such disputes that eventually find their way into court. It is a means of alternative dispute resolution to reduce congestion of cases before the court.  Underlining Mine

See also Eguamwense v. Amaghizenwem (1993) 9 NWLR Part 315 Page 1 at 25 Para D-E per Belgore JSC (as he then was).

I accordingly hold that while the Respondent had unfettered access to the State High Court, this right was postponed until domestic remedies provided by the statute had been exhausted. The lower Court was accordingly wrong to have assumed jurisdiction to hear and determine the suit. I thus resolve the 1st issue for determination in favour of the Appellants.

It is not in doubt that the Constitution stipulates the unfettered access of every citizen to the Court.

Section 6 (6) (b) of the 1999 Constitution (as amended) provides as follows:

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

(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;
(b) shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;

As has been exhaustively shown under the resolution of issue 1 above, this access of the citizen to Court may be postponed until certain prerequisites have been satisfied.”

2. Internal remedy procedure–Effect where the internal remedy procedure of a university is not exhausted before institution of an action

“In Akintemi v Onwumechili (1985) 1 NWLR Part 1 Page 68, the Appellants, students of law of the University of Ife, were suspended and their results withheld on allegations of examination malpractices. They sought, inter alia, an order of mandamus to compel the University to release their results and for an order of injunction to stop any conferment or award of degrees to any student pending the final determination of the action.

Section 17 (1) of University of Ife Edict 1970, No. 17 of 1970, applicable in that case, similar to the instant statute in the appeal before us, provided:

S.17.(1) “Subject to a right of appeal from the decision of the Senate to the Council, the Senate shall have power to deprive any person of any Degree, Diploma, Certificate, Fellowship, Scholarship, Students, Bursary, Medal, Prize or other academic title, distinction or award whatsoever conferred upon or granted to him by the University, if after such inquiry as the Senate may deem necessary, the Senate is satisfied that he has been guilty of scandalous or other dishonourable conduct in obtaining the same.”

In the unanimous judgement of that Court, the appeal by the students against the judgment of the lower Court dismissing their claim, was similarly dismissed, the Court holding, per Irikefe JSC, reading the lead judgment, as follows:

“On the whole, it seems to be incontestable that the issues with which this appeal is concerned belong to the domestic domain of the University as enshrined in the Statute establishing it and are as such not justiciable in a court of law.”

Obaseki JSC, concurring, held, at Pages 85-86 Para H-B:

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

It can only mean that until the remedies available in the domestic forum are exhausted, any resort to court action would be premature…. The courts cannot and will not usurp the functions of the Senate, the Council and the Visitor of the University in the selection of their fit and proper candidates for passing and for the award of certificates, degrees and diplomas. If however, in the process of performing their functions under the law, the civil rights and obligations of any of the students or candidates is breached, denied or abridged it will grant remedies and reliefs for the protection of those rights and obligations. In the instant appeal, it has not been established that there was such a breach or denial or abridgment. The appeal therefore fails.” 

It is therefore clear from the foregoing that a remedy having been given under the statute for an appeal against the decision of the Senate to the Council of the 1st Appellant, the action of the Respondent in approaching the Court without recourse to this remedy, is premature.”

3. University education–Attitude of court to invitation to interfere in the internal administration of universities

“With regard to the affairs of the University, the Courts, as held above, are wary of interference in its internal affairs. This was said quite explicitly by the Supreme Court, in the case of Magit v University of Agriculture, Makurdi (2005) 19 NWLR Part 959 Page 211 at 245 Para B-E per Ogbuagu JSC, reading the lead judgment, as follows:

“… in so far as the award of a degree or certificate to a student is concerned, in the discretion to award or refuse to award, the courts have no jurisdiction in the matter. The courts, have no business to flirt into the arena of a University deciding whether a thesis has met the standard of which it has set, has been met. Any attempt by any court, including this court, to dabble or encroach into the purely administrative and domestic affairs of a University …that may lead to undue interference, nay, the weakening inadvertently so to speak, of the powers and authority conferred on the Universities by statute as that conferred on the 1st respondent, will not be justifiable or justified.”  Underlining Mine

The same learned jurist earlier on in the judgment, at Page 244 Para E held:

“..that the appellant, did not appeal to the University Council against the said decision of the Senate. Therefore, the application to the trial court, was premature.”

It is certainly not in doubt that, in performing their functions, the University must not breach the civil rights and obligations of the students. See Unilorin v Adesina (2014) 10 NWLR Part 1414 Page 159 at 177 Para A-C per Rhodes-Vivour JSC; Akintemi v Professor C. A. Onwumechili Supra at Page 85.

However, as held above, until the domestic avenues for redress have been exhausted, whether the complaint be for breach of the Constitutional right to fair hearing or otherwise, recourse cannot be made to the Courts, I hold.

This was made clear in the adoption by Ogbuagu JSC in Unilorin v Oluwadare Supra at Page 774 Para E of the dictum of Obaseki JSC in Akintemi v Onwumechili  Supra, where he held:

“… until the remedies available in the domestic forum are exhausted, any resort to court action would be premature …” 

Thus, though the said Statute does not make it mandatory that the Respondent must appeal to the Council from the decision of the Senate, giving the words of this statute their natural meaning, failure to so appeal, renders the decision of the Senate inviolate. Thus, whether the breach is to his fundamental rights or not, it is only and until the domestic channels for appeal have been utilized and his complaint of breach of his rights not still addressed, that recourse can then be made to the Courts to challenge the breach of his rights.

The Appellants’ Counsel has cited  in support of his contentions the decision of this Court per Adefope-Okojie JCA (my humble self) in the case of Kamaludeen Ibrahim Inuwa V. Bayero University Kano & Anor (2016) LPELR-41615(CA) at Pages 32-38, Paras. E-E, where I  held:

“The Courts must be guided by the strong words of caution given by the Apex Court in the case of Magit v University of Agriculture, Makurdi (2005) 19 NWLR Part 959 Page 277 at 245 Para B-E per Ogbuagu JSC reading the lead judgment, where he held: “…that in so far as the award of a degree or certificate to a student is concerned, in the discretion to award or refuse to award, the Courts have no jurisdiction in the matter…, any attempt by any Court, including this Court, to dabble or encroach into the purely administrative and domestic affairs of a University including that of the 1st respondent, that may lead to undue interference, nay, the weakening inadvertently so to speak, of the powers and authority conferred on the Universities by statute as that conferred on the 1st respondent, will not be justifiable or justified.” It is the indisputable right of the University to award or withhold the award of a degree, and which power the Courts cannot usurp or interfere with, let alone compel it to award a degree which it has stated that a claimant is not qualified for.”

 I do stand by this decision. Indeed His Lordship Pats-Acholonu JSC in the judgment referred to by me above of Magit v University of Agriculture, Makurdi Supra put it more forcefully, thus, at Page 257-258 Para D-A:

 “A University is a “Degree awarding institution” and can neither delegate its degree awarding powers nor be stampeded to make award where it does not see it fit to do so. For the Court to use its awesome magisterial powers to compel a University to award a degree would in effect mean that the Court has invested itself with the necessary powers to fully appreciate the nuances taken into consideration to award University degree. Too often nowadays, ever since the case of Garba v. University of Maiduguri (supra), many litigants have tended to inundate the Courts with frivolous claims and have tried to invest the Court with powers to run a University usually described as ivory Tower with their strange claims, A University is a place of great learning and research. I would view with consternation and trepidation the day the Court would immerse itself into the cauldron of academic issue which is an area it is not equipped to handle. It will indeed be alarming for any court worth its salt to enter into the arena of questioning why a University has refused to award a degree to any student. The danger posed by such venture is better imagined than expressed. It is my view that it is the indisputable right of a University to award or withhold the award of a degree and it is no business of the Court to question its motives let alone compelling it to award a degree which it has stated that a claimant is not qualified for. The duty or the power of a University in subjecting the work of any student in its portals of learning to merciless scrutiny is naturally to carefully evaluate the academic quality of his or her work, It alone possesses the power to state whether a particular work is below the standard or not.”  

B. JURISDICTION

4. Determination of Jurisdiction–Factors that determines the jurisdiction of courts

“As held in Madukolu v. Nkemdilim (1962) 1 ANLR Page 581; (1962) 2 SCNLR 341, a Court is competent to adjudicate over a matter before it only when:

    • It is properly constituted with respect to the number and qualification of its members;
    • The subject matter of the action is within its jurisdiction;
    • The action is initiated by due process of the law; and
    • Any condition precedent to the exercise of its jurisdiction has been fulfilled.

See also Ihim v Maduagwu (2021) 5 NWLR Part 1770 Page 584 at 624 Para F-H per Saulawa JSC; Lokpobiri v. Ogola (2016) 3 NWLR Part 1499 Page 328 at 360-361 Para G-C per Onnoghen JSC (as he then was).”

5. Importance of Jurisdiction–Effect of lack of jurisdiction 

“As has been expansively argued by Counsel to the parties, the principles regarding jurisdiction and the competence of the Courts is well settled. Jurisdiction has been held to be the lifeblood of any adjudication, the absence of which renders the Court’s proceedings, no matter how well conducted, liable to be set aside for being a nullity. The issue of jurisdiction is fundamental in any proceeding and consequently raises the question of competence of the court to adjudicate in the matter. See Statoil (Nig.) Ltd. v Inducon (Nig.) Ltd (2021) 7 NWLR Part 1774 Page 1 at 47-48 Para H-F per M.D. Muhammad JSC; Central Bank of Nigeria v Rahamaniyya G.R. Ltd (2020) 8 NWLR Part 1726 Page 314 at 337 Para A-B per Okoro JSC.”

C. STATUTORY INTERPRETATION

6. Words and phrases–Meaning of the word “may” when used in a statute

“The Supreme Court, per Ogbuagu JSC, in the said case, referred to the interpretation given by the lower Court to the word “may”, where Amaizu JCA held:

“I think great misconception is caused by saying that in some cases “may” means “must”. It never can be “must” so long as the English language retains its meaning”.

Disagreeing with this decision, Ogbuagu JSC held:

“It all depends, on the use of the word in any particular statutory provision which one or the court, has to look at.”

7. Words and phrases–Meaning of the phrase “subject to” when used in a statute

“Indeed the interpretation given to the words “subject to”, as stated in Section 9 (5) of the Abia State University Law Supra were held by the Supreme Court in NDIC v Okem Enterprises Ltd (2004) 10 NWLR Part 880 Page 107 at 183 Para A-D per Uwaifo JSC, reading the lead judgment, as follows:

 “The expression “subject to” means liable, subordinate, subservient, or inferior to; governed or affected by; provided that or provided; answerable for: see Black’s Law Dictionary, 6th edition, page 1425.

It must therefore be understood that “subject to” introduces a condition, a restriction, a limitation, a proviso.. It subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended not to be diminished by the subject section….. The expression generally implies that what the section is subject to shall govern, control and prevail over what follows in that subject section of the enactment, so that it renders the provision to which it is subject to conditional upon compliance with or adherence to what is prescribed in the provision referred to”. See also Oloruntoba-Oju v Abdul-Raheem (2009) 13 NWLR Part 1157 Page 138-139 Para G-B per Adekeye JSC; Shell Petroleum Development Company of Nigeria Ltd v Donatus Ezeukwu (2010 LPELR – 4911 (CA) per Ogunwumiju JCA (as he then was).

It is thus clear that the words “subject to” in Section 9 (5) of the Abia State University Law means that the decision of the Senate is subordinate to that of the Council and that an aggrieved party, should he wish to appeal to the Council against the decision of the Senate is at liberty to do so. In the absence of any appeal, the Senate is at liberty to deprive any person of the privilege of the award of a degree/diploma/award or cancel and withdraw any such award conferred, if the person is shown not to be qualified to be admitted as a student or is guilty of dishonourable conduct in gaining admission to the University.

The natural consequence of failure to appeal to the Council is that the decision of the Senate remains inviolate I hold.

Where, however, the student has exhausted all avenues and entreaties or believes that the Council has failed to address the breach of his rights, the student is entitled to approach the Court for redress, I further hold. See Unilorin v Adesina (2014) 10 NWLR Part 1414 Page 159 at 178 Para A-E per Okoro JSC.”

 


LEAD JUDGMENT DELIVERED BY ADEFOPE-OKOJIE, JCA


This is an appeal against the judgment of the High Court of Abia State sitting at Isukwuato (hereinafter referred to as “the lower Court”), delivered on the 7th day of February 2018 by A.U. Kalu J granting the claims of the Respondent, as Claimant therein. The Defendants, dissatisfied, filed a Notice of Appeal at the lower Court on 22/03/2018.

FACTS OF THE CASE:

The Respondent, the Executive Governor of Abia State from 1999-2003, initiated this action by a Writ of Summons filed contemporaneously with his Statement of Claim on the 31st day of May 2013.

His claim emanated from the resolution of the 2nd Appellant in its’ 169th Extra-Ordinary Meeting of Friday 1st March 2013 approving the cancellation and withdrawal of the degree result and certificate awarded to him about 11 years prior and the subsequent publication in the Daily Independent Newspaper on the 4th day of March, 2013 stating that his degree result and certificate had been cancelled and withdrawn (Exhibit A). He contended that neither the Ad-hoc Panel of Investigations nor the Senate heard from him prior to taking the decision, which was adverse to him, and they also failed to inform him of the existence of any allegations made against him or the identities of those making the allegations. He was also not afforded any opportunity to make representations in respect of the allegations.

He thereupon sought the following reliefs:

  1. A declaration that the report of the Adhoc Senate Investigation panel on allegations of Fraud and Breach of regulations concerning the admission of and graduation of Claimant (Kalu, Orji U. 00/42226- GPD) and the decision of the senate of Abia State University of 1st March, 2013 which cancelled and withdrew the degree result of the Claimant (Kalu, Orji U. 00/42226-GPD) without affording him an opportunity to defend the grave allegations against him amounts to a breach of the claimants right to a fair hearing guaranteed under the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

 

  1. An Order of court removing into this court for the purpose of its being quashed, the proceedings, decisions, findings and or report to the Abia State University Senate’s Adhoc Senate Investigation panel on Allegations of Fraud and Breach of Regulations concerning the admission of and graduation of Claimant (Kalu, Orji U. 00/42226-) for breach of the claimant’s right to a fair hearing guaranteed under the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

 

  1. An order of court removing into this court, for the purpose of it being quashed, the decision of the Senate of Abia State University on 1st March, 2013 on the Report of the Abia State University Senate’s Adhoc Senate Investigation Panel on allegations of Fraud and Breach of regulations concerning the admission and graduation of the claimant (Kalu, Orji U. 00/42226- GPD) for breach of the claimant’s right to fair hearing guaranteed under the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

 

  1. An order of this Honourable Court directing and or mandating the Senate of the Abia State University Uturu to restore the degree result and Certificate of the claimant (Kalu, Orji U. 00/42226- GPD).

The Respondent testified as the sole witness in proof of his claim and tendered four exhibits, to wit:

  • Certified copy of Daily Independent News Paper 4/3/2013 (Exhibit A);
  • “Report of the Panel of Investigation into Allegations of Fraud and Breach of the Admission Studentship and Graduation of Kalu Orji U – 00/42226, GDP (Exhibit B);
  • Revised Academic Regulations of Abia State University, Uturu (Exhibit C); and
  • Receipt from DHL Courier of service of the Pre-Action Notice on the Appellants.

Evidence in the case was the adoption of written statements on oath followed by cross examination from opposing Counsel.

The case of the Appellants, as Defendants at the lower court, was similarly presented by a sole witness, Ernest Ozoemenam Onuoha, the Registrar of the 1st Appellant and Secretary of the 2nd Appellant from 2003 to 2013 and currently a lecturer at the 1st Appellant. His evidence is that a petition was written to Chief T.A. Orji, the then Governor of Abia State, titled “Need to investigate allegations of fraud and breach of regulation that, if confirmed true, can destroy the credibility of certificates awarded by Abia State University, Uturu”, which said petition was forwarded to the Vice-Chancellor of the 1st Appellant for immediate action. The Adhoc Senate Investigation Panel then carried out an investigation and, based on the Panel’s findings and conclusions, it recommended that the University Senate should cancel and withdraw the degree result of Kalu Orji U. (00/42226) GPD, which recommendation was approved at its 113th Regular meeting of Wednesday, 30th October, 2002. All the documents required by the Panel were as contained in the Respondent’s file before them, with no requirement for oral representation.

The witness tendered three exhibits, to wit:

  • Petition addressed to Chief T.A. Orji, Governor of Abia State, Umuahia (Exhibit E);
  • ABSU (Abia State University) Matriculation Oath (Exhibit F); and
  • Revised Academic Regulations of the 1st Appellant (Exhibit G)

ISSUES FOR DETERMINATION:

The Appellants in their Brief of Arguments settled by Nwaenyo, Ugochukwu Jesse Esq of Dr. Paul C Ananaba, SAN & Co and filed on 03/07/2018 formulated the following issues for the court’s determination:

“1. Whether the lower Court rightly assumed jurisdiction to hear and determine the suit in favor of the Respondent. 

 

  1. Whether the Appellants in setting up its’ academic investigation panel breach the right of the Respondent to fair hearing.

 

  1. Whether in the peculiar circumstances of this case the lower Court in refusing to consider the issues raised by the Appellants breached their right to fair hearing.

 

  1. Whether the lower Court rightly held that the Appellants were in ‘an indecent haste to arrive at a predetermined answer’ in the absence of evidence”.

The Respondent in his Brief of Arguments settled by O. A. Obianwu SAN and filed on 06/09/2018 but deemed properly filed on 01/04/2019, raised the following issues for the court’s determination:

“1.    Whether the trial court was right in its conclusion that Section 9(5) of the Abia state University Law No. 5 of 1995 did not oust its jurisdiction to entertain the suit before it.

 

  1. Whether the trial court was correct in its conclusion that the Respondent was not given a fair hearing by the Appellants before his certificate was cancelled and withdrawn.

 

  1. Whether the trial court failed to consider the issues raised by the Appellants and thereby breached their right to a fair hearing.

 

  1. Whether the trial court was right to hold that the Appellants were in an indecent haste to arrive at a pre-determined answer.”

 

The Appellant’s Reply Brief of Arguments was filed on 18/01/2019.

The issues for determination raised by both parties are identical and shall be adopted by me, with slight variations for succinctness, namely:

  1. Whether the lower Court rightly assumed jurisdiction to hear and determine the suit in favor of the Respondent.

 

  1. Whether the trial court was correct in its conclusion that the Respondent was not given a fair hearing by the Appellants before his certificate was cancelled and withdrawn.

 

  1. Whether the trial court failed to consider the issues raised by the Appellants and thereby breached their right to a fair hearing.

 

  1. Whether the trial court was right to hold that the Appellants were in an indecent haste to arrive at a pre-determined answer.

 

The 1st issue for determination, is:

“Whether the lower Court rightly assumed jurisdiction to hear and determine the suit in favor of the Respondent”.

Appellants’ Submissions:

Learned Counsel prefaced his submissions on this issue by defining jurisdiction, competence of the Court and the meaning of condition precedent. He cited Section 9(5) of the Abia State University Law 1995, contending that the import of this section is that where a party is aggrieved by the resolution of the Senate, such a party has an unfettered right of appeal to the Council of the University to challenge the decision of the Senate against him, and that this laid down dispute resolution procedure must be exhausted before a party can approach the Court for any relief. Where a party fails or ignores to consummate these procedures in totality, the law regards the cause of action as premature, unripe and consequently liable to be struck out as being bereft of jurisdiction.

Citing the case of Madukolu V Nkemdilim 1962 ALL NLR (PART 4) 587, (2001) 46 WRN 1, he submitted that it is trite that the issue of jurisdiction strikes at the root of any cause or matter. The willful refusal of the Respondent to satisfy the condition precedent as provided in Section 9(5) of the Abia State University Law robbed the lower Court of the competence and jurisdiction to hear the suit. He also cited Adesanoye V. Adewole (2006) LPELR-143(SC) Pages 22-23, Para E-A Per TOBI, JSC; Hamza  Lawal v Kafar Oke (2001) 7 NWLR Part 711 Page 88; Adhekegba v Hon Minister of Defence (2013) 17 NWLR Part 1328 Page 126; Akintemi v Onwumechili (1985) 1 NWLR 68 (sic) on the importance of jurisdiction.

Respondent’s Submissions

Arguing this issue, the learned Silk for the Respondent cited the cases of Military Government of Ondo State Vs. Adewunmi (1988) 3 NWLR PT.82 P.280; Balogun Vs. Ode (2007) 4 NWLR PT.1023 P.1; Kanyili Vs. Yilbuk (2015) 7 NWLR (PT.1457) P.26, submitting that no cause or matter is deemed to be beyond the jurisdiction of a superior court of record unless it is expressly shown to be so. In view of the supremacy of the Constitution, any law which tends to limit the jurisdiction of the State High Court is null and void. In consequence, the provision of Section 9(5) of the Abia State University Law 1995 cannot be said to limit the jurisdiction of the lower court to hear this matter. There is also nothing in the stated provision which remotely suggests an ouster or suspension of the jurisdiction conferred on the High Court by Section 272 (1) of the 1999 Constitution. The provision does not show with clarity and unambiguity that a decision of the Senate cannot be the subject of an action in court. That section merely provides for an additional remedy by way of appeal to the Council of the University.

There is nothing in the provision, the learned Silk contended, which shows that such remedy is exclusive, mandatory and extinguishes the jurisdiction conferred by the constitution on the courts. He submitted further that it is a legal impossibility for the law in question, which is a state law, to legislate away the jurisdiction conferred by the 1999 constitution.

 

Resolution

The facts leading to the suit before the lower Court are not in dispute and have been stated above. The Appellants alleged that consequent upon the petition received by them and the setting up of the Adhoc Senate Investigation Panel, it was found that an “unheaded” and “unsigned” document, regarded as an academic ‘transcript’, was found in the Respondent’s personal file, which neither bore the name and matriculation number of the candidate nor the name of any University and issuing officer. They also noted that the Respondent did not spend the mandatory six (6) semesters (three academic years of study), before he was adjudged qualified to take a degree of the 1st Appellant, Abia State University. It further noted that the Respondent spent one semester in each of the two sessions he was in the 1st Appellant and was therefore graduated prematurely. He thus has four (4) additional semesters outstanding before graduation.

The Panel also noted that from the ‘Transcript’, on the basis of which his admission was processed, he was in his former University, the University of Maiduguri, between 1980 and 1984 and that as at the date that he sought admission into the Abia State University, he had been out of the University for over fifteen (15) years, which was in conflict with the Academic Regulations of the 1st Appellant, rendering him unqualified for admission by transfer into the 1st Appellant University, in the first instance. Based on the Panel’s findings and conclusions, it recommended that the 2nd Appellant, the University Senate, cancel and withdraw the Respondent’s degree result.

The contention of the Respondent is three-fold. He complained that neither the Ad-hoc Panel investigating the allegation of fraud and breach of admission and his consequent graduation, nor the Senate, heard from him prior to taking the decision which was adverse to him. Secondly, he was not informed by the Appellants of the existence of any allegations concerning him or the identities of those making the allegations, with no opportunity given to him to confront his accusers. Thirdly, he was not afforded an opportunity to make representations in respect of the allegations leveled against him, thereby breaching his right to fair hearing.

The question that thus comes up for resolution is whether the Respondent was obliged to have sought recourse to the appeal procedure provided or whether he was within his rights to have proceeded straight to Court.

The lower Court, in assuming jurisdiction over the Respondent’s claim held as follows, at Pages 268-270 of the Record:

“…….it is beyond dispute that the 1999 Constitution of the Federal Republic of Nigeria (as amended) is the ground norm. It has overriding legal force and any legislative or administrative act that is in conflict with it will be held to be without legal force …any person’s recourse to the Courts is a constitutional right guaranteed by Section 36 of the 1999 Constitution….. the Abia  State University Law they are relying on derives its validity from the 1999 Constitution of Nigeria [as amended] and, therefore, cannot be in conflict with it.  The Abia State University Law cannot seek to deny the Claimant his unfettered access to this Court which was granted him by the 1999 Constitution of Nigeria [as amended].  Secondly, assuming the Abia State University Law attempted to do the impossible, there is nothing expressly in that Law that stops the Claimant from approaching this Court to ventilate his grievance instead of approaching the Council of the 1st Defendant.  What the Section 9(5) of the Abia State University Law did was only to provide a person aggrieved by a decision of the 2nd Defendant  another remedy.  It did not seek to stop a person aggrieved by the  decision of the 2nd Defendant from exercising his inalienable remedy of seeking redress in the  Courts established under the 1999 Constitution of the Federal Republic of Nigeria [as amended].  I rely also on Kanyili v. Yilbuk (2015) 7 NWLR (Pt. 1457) 26 to hold that by the provisions of Section 272(1) of the 1999 Constitution, supra, the Abia State University Law cannot seek to limit the unlimited jurisdiction of this Court and to interpret the provisions of Section 9(5) of the Abia State University Law as to mean that it is a condition precedent to be fulfilled by the Claimant before the exercise of his right to file an action in this Court  seems also to circumscribe  the powers of the High Court under Section 236(1) of the Constitution (sic).

In conclusion, it is my view and I so hold that Section 9(5) of the Abia State University Law is not a condition precedent to the filing of this suit by the Claimant.  The Claimant has the constitutional right, which he has exercised, to come to this Court to ventilate his grievance, without first appealing to the Council of the Abia State University, if he is not satisfied by a decision taken by the 2nd Defendant”

The resolution of the issue in question, to wit whether the lower Court rightly assumed jurisdiction to hear and determine the suit in favor of the Respondent is therefore contingent upon the interpretation given to Section 9(5) of the Abia State University Law.

As has been expansively argued by Counsel to the parties, the principles regarding jurisdiction and the competence of the Courts is well settled. Jurisdiction has been held to be the lifeblood of any adjudication, the absence of which renders the Court’s proceedings, no matter how well conducted, liable to be set aside for being a nullity. The issue of jurisdiction is fundamental in any proceeding and consequently raises the question of competence of the court to adjudicate in the matter. See Statoil (Nig.) Ltd. v Inducon (Nig.) Ltd (2021) 7 NWLR Part 1774 Page 1 at 47-48 Para H-F per M.D. Muhammad JSC; Central Bank of Nigeria v Rahamaniyya G.R. Ltd (2020) 8 NWLR Part 1726 Page 314 at 337 Para A-B per Okoro JSC.

As held in Madukolu v. Nkemdilim (1962) 1 ANLR Page 581; (1962) 2 SCNLR 341, a Court is competent to adjudicate over a matter before it only when:

  • It is properly constituted with respect to the number and qualification of its members;
  • The subject matter of the action is within its jurisdiction;
  • The action is initiated by due process of the law; and
  • Any condition precedent to the exercise of its jurisdiction has been fulfilled.

See also Ihim v Maduagwu (2021) 5 NWLR Part 1770 Page 584 at 624 Para F-H per Saulawa JSC; Lokpobiri v. Ogola (2016) 3 NWLR Part 1499 Page 328 at 360-361 Para G-C per Onnoghen JSC (as he then was).

The question thus is whether the terms of the statute in question deprived the lower Court of jurisdiction to have entertained the action.

The statute in question, Section 9(5) of the Abia State University Law No. 5 of 1995 stipulates:

“Subject to a right of appeal to the Council from a decision of the Senate under this subsection, the Senate may deprive any person the privilege to be awarded any degree, diploma, or other award of the University, and may cancel and withdraw any such award which has been conferred on him, if after due enquiry he is shown to be a person who is not qualified to be admitted as a student of the University or is found guilty of dishonourable conduct in gaining admission into the University or that he is or was guilty of examination malpractice at any examinations of the University”  Underlining Mine

The qualifying words in this statute are here emphasized, being “subject to a right of appeal to the Council from a decision of the Senate under this subsection, the Senate may deprive any person the privilege to be awarded any degree, diploma, or other award of the University, and may cancel and withdraw any such award ….”

In deciding this question, reference is made to some decisions of the apex Court. In the case of Unilorin v Oluwadare (2006) 14 NWLR Part 1000 Page 751, the facts were that the Respondent was invited to appear before the 1st Appellant’s Student Disciplinary Committee (SDC) to defend himself on allegations of examination misconduct. The SDC, following an investigation, found the Respondent to have committed examination misconduct and recommended his expulsion from the University. Under the law establishing the University was a provision for appeal to the University Governing Council against the decision of the SDC. The Respondent appealed to the Governing Council but did not await the outcome of his appeal before instituting an action in the Court.

The relevant statute was Section 17(2) of the University of Ilorin Act, Cap. 455, Laws of the Federation of Nigeria, 1990 which states:

“(2)     Where a direction is given under subsection (l)(c) or (d) of this section in respect of any student, the student may, within the prescribed period and in the prescribed manner, appeal from the direction to the council; and where such an appeal is brought, the council shall, after causing such inquiry to be made in the matter as the council considers just, either confirm or set aside the direction or modify it in such manner as the council thinks fit.” Underlining Mine

The Supreme Court, per Ogbuagu JSC, in the said case, referred to the interpretation given by the lower Court to the word “may”, where Amaizu JCA held:

“I think great misconception is caused by saying that in some cases “may” means “must”. It never can be “must” so long as the English language retains its meaning”.

Disagreeing with this decision, Ogbuagu JSC held:

“It all depends, on the use of the word in any particular statutory provision which one or the court, has to look at.”

The Court held the decision of the Respondent, in the appeal before them, to have proceeded to Court, to be rather precipitate.

Ogbuagu JSC,  at Page 776 Para C-E stated as follows:

“From the said decision of this court, I repeat, that since the Respondent’s said appeal, have/had not been heard and determined by the Council, it seems to me as in Akintemi v. Prof. Onwumecliili’s case (supra), that the Respondent, who should have remained an undergraduate of the 1st Appellant, until his said appeal is heard and determined, he woefully but regrettably, failed/neglected/refused, to take advantage of the opportunity or provision in the 1st appellant’s Law or Act including the Students’ handbook of Information and Regulations (which was made available to the court, by the appellants). Rather, he “foolishly” or in “panic”, rushed to the court where his action is certainly not justiciable and, in the result, got himself, completely worsted by losing in this appeal.”

In Akintemi v Onwumechili (1985) 1 NWLR Part 1 Page 68, the Appellants, students of law of the University of Ife, were suspended and their results withheld on allegations of examination malpractices. They sought, inter alia, an order of mandamus to compel the University to release their results and for an order of injunction to stop any conferment or award of degrees to any student pending the final determination of the action.

Section 17 (1) of University of Ife Edict 1970, No. 17 of 1970, applicable in that case, similar to the instant statute in the appeal before us, provided:

S.17.(1) “Subject to a right of appeal from the decision of the Senate to the Council, the Senate shall have power to deprive any person of any Degree, Diploma, Certificate, Fellowship, Scholarship, Students, Bursary, Medal, Prize or other academic title, distinction or award whatsoever conferred upon or granted to him by the University, if after such inquiry as the Senate may deem necessary, the Senate is satisfied that he has been guilty of scandalous or other dishonourable conduct in obtaining the same.”

In the unanimous judgement of that Court, the appeal by the students against the judgment of the lower Court dismissing their claim, was similarly dismissed, the Court holding, per Irikefe JSC, reading the lead judgment, as follows:

“On the whole, it seems to be incontestable that the issues with which this appeal is concerned belong to the domestic domain of the University as enshrined in the Statute establishing it and are as such not justiciable in a court of law.”

Obaseki JSC, concurring, held, at Pages 85-86 Para H-B:

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

It can only mean that until the remedies available in the domestic forum are exhausted, any resort to court action would be premature…. The courts cannot and will not usurp the functions of the Senate, the Council and the Visitor of the University in the selection of their fit and proper candidates for passing and for the award of certificates, degrees and diplomas. If however, in the process of performing their functions under the law, the civil rights and obligations of any of the students or candidates is breached, denied or abridged it will grant remedies and reliefs for the protection of those rights and obligations. In the instant appeal, it has not been established that there was such a breach or denial or abridgment. The appeal therefore fails.” Underlining Mine

It is therefore clear from the foregoing that a remedy having been given under the statute for an appeal against the decision of the Senate to the Council of the 1st Appellant, the action of the Respondent in approaching the Court without recourse to this remedy, is premature.

Indeed the interpretation given to the words “subject to”, as stated in Section 9 (5) of the Abia State University Law Supra were held by the Supreme Court in NDIC v Okem Enterprises Ltd (2004) 10 NWLR Part 880 Page 107 at 183 Para A-D per Uwaifo JSC, reading the lead judgment, as follows:

 “The expression “subject to” means liable, subordinate, subservient, or inferior to; governed or affected by; provided that or provided; answerable for: see Black’s Law Dictionary, 6th edition, page 1425.

It must therefore be understood that “subject to” introduces a condition, a restriction, a limitation, a proviso.. It subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended not to be diminished by the subject section….. The expression generally implies that what the section is subject to shall govern, control and prevail over what follows in that subject section of the enactment, so that it renders the provision to which it is subject to conditional upon compliance with or adherence to what is prescribed in the provision referred to”. See also Oloruntoba-Oju v Abdul-Raheem (2009) 13 NWLR Part 1157 Page 138-139 Para G-B per Adekeye JSC; Shell Petroleum Development Company of Nigeria Ltd v Donatus Ezeukwu (2010 LPELR – 4911 (CA) per Ogunwumiju JCA (as he then was).

It is thus clear that the words “subject to” in Section 9 (5) of the Abia State University Law means that the decision of the Senate is subordinate to that of the Council and that an aggrieved party, should he wish to appeal to the Council against the decision of the Senate is at liberty to do so. In the absence of any appeal, the Senate is at liberty to deprive any person of the privilege of the award of a degree/diploma/award or cancel and withdraw any such award conferred, if the person is shown not to be qualified to be admitted as a student or is guilty of dishonourable conduct in gaining admission to the University.

The natural consequence of failure to appeal to the Council is that the decision of the Senate remains inviolate I hold.

Where, however, the student has exhausted all avenues and entreaties or believes that the Council has failed to address the breach of his rights, the student is entitled to approach the Court for redress, I further hold. See Unilorin v Adesina (2014) 10 NWLR Part 1414 Page 159 at 178 Para A-E per Okoro JSC.

The Respondent has however cited the case of Kayili v Yilbuk (2015) 7 NWLR Part 1457 Page 1 where the Supreme Court held that any law, other than the Constitution, which tends to limit the unlimited jurisdiction of the State High Court or prevents aggrieved persons from ventilating their grievances in a Court of law is unconstitutional, as the right is guaranteed  and cannot be taken away.

The Supreme Court, in that case, however qualified this statement, holding, per Kekere-Ekun JSC at Page 82-83 Para E-G:

“The position of the law is that where a statute provides a legal line of action for the determination of an issue, the aggrieved party must exhaust all the remedies in the law before going to court…However, unless the statute specifically so provides in clear and unambiguous language, the jurisdiction of the court is not ousted… In the case of: Owoseni v. Faloye (supra) at P. 757, para. B this Court held thus:

‘‘Laws which prescribe that some procedural steps be taken to resolve a dispute before embarking on actual litigation are not and cannot be treated or categorized as ousting the jurisdiction of the court …”

The invocation of the court’s jurisdiction is merely delayed until the steps prescribed by the statute have been complied with. ….By making provision for the resolution of disputes by the prescribed authority a condition precedent to approaching the court for redress, the intention of the lawmakers is to reduce the number of such disputes that eventually find their way into court. It is a means of alternative dispute resolution to reduce congestion of cases before the court.  Underlining Mine

See also Eguamwense v. Amaghizenwem (1993) 9 NWLR Part 315 Page 1 at 25 Para D-E per Belgore JSC (as he then was).

I accordingly hold that while the Respondent had unfettered access to the State High Court, this right was postponed until domestic remedies provided by the statute had been exhausted. The lower Court was accordingly wrong to have assumed jurisdiction to hear and determine the suit. I thus resolve the 1st issue for determination in favour of the Appellants.

The 2nd issue for determination is:

“Whether the trial court was correct in its conclusion that the Respondent was not given a fair hearing by the Appellants before his certificate was cancelled and withdrawn”.

The lower Court, in resolution of this question in the Respondent’s favour, noted the allegation of the Respondent that he was not informed by the Investigative panel of the allegations against him or the identity of those who made the allegations. It referred to the fact that the Appellants admitted that the investigations carried out by them were based on the documents available in the Respondent’s personal file, with regard to the process of his admission. While agreeing with the inherent power of the 1st Appellant to cancel or withdraw any improperly awarded degree certificate, it held that the Appellants should have afforded the holder a fair hearing at which it can present evidence and protect his interest.

Giving the principles of fair hearing from decided cases, the Court held that the Appellants, having not informed the Respondent and shown him the Petition written against him or invited him to the sitting of the Ad-hoc panel to present his defence before arriving at its decision, had breached the Constitutional rights of the Respondent. Holding his suit to be meritorious, it issued an order “removing to be quashed the proceedings, decisions, findings and or report of the Abia State University Ad-hoc Senate Investigation Panel on Allegations of Fraud and Breach of Regulations concerning the admission of and graduation” of the Respondent for “breach of his right to fair hearing guaranteed under the Constitution of the Federal Republic of Nigeria, 1999 (as amended)”.

It also removed into the Court for the purpose of being quashed, the decision of the 2nd Appellant’s Ad-hoc Investigation Panel concerning the admission and graduation of the Respondent for breach of his rights to fair hearing guaranteed under the Constitution. It made an order “mandating and/or directing” the 2nd Appellant to “immediately restore the degree result and certificate” of the” Respondent.

Appellants’ Submissions

The Appellant’s Counsel has contended that there was no breach of the Respondent’s right to fair hearing. He argued that his claims at the lower Court were not only frivolous but also imaginary, because at the time the Respondent instituted his claim, his rights to complain and/or challenge the 2nd Appellant’s decision had not been foreclosed as he had a window to vent his misgivings about the cancellation and withdrawal of his certificate by means of an appeal to the University Council.

Counsel further submitted that the Ad-hoc panel constituted by the 2nd Appellant acted within its powers because the law, as held by the Supreme  Court in the case of Patrick D. Magit V. University Of Agriculture, Makurdi & Ors. (2005) LPELR-1816 (SC) Page 35, Para F-G Per OGBUAGU, J.S.C, is that the Senate has the duty and responsibility to award or refuse to award  degrees, certificates and such other qualification, as it considers fit, to any student or students of the University. The University, being the bastion of learning and research and the reservoir of scholarship, should be given the leeway to operate, with its independence unshackled in any manner that might compromise its stature and dignity. The lower Court thus went outside the parameters of its primary duty by issuing orders mandating the restoration of the degree result and certificate of the Respondent when it is not the domestic responsibility of the Court to award or confer degree certificates.

The Appellants, Counsel submitted, adopted the most conventional practice and procedure in exercising their powers under Section 9(5) of the Abia State University Law to cancel and withdraw the award given to the Respondent. In exercising this prerogative, the Appellants assembled the files of the Respondent and other important documents to determine the veracity of the petition. No oral evidence was taken for or against the Respondent. In admitting a student, the institution, he said, only considers the qualifying documents presented by the prospective student. The presence of the Respondent was thus unnecessary, as it was the documents which influenced his admission into the 1st Appellant. The petition merely invited the Degree awarding institution to retrospectively re-evaluate the steps it took in awarding the Respondent the degree certificate in the first place. The petition was not accusing the Respondent of any crime, which would have necessitated the audi alteram partem doctrine.

Respondent’s Submissions

The learned Silk for the Respondent maintained that the Appellants and their agents did not inform the Respondent of the existence of any allegation concerning him, the identities of those making the allegations, nor was he afforded an opportunity to make representations in respect of the allegations leveled against him, thereby breaching his right to fair hearing, contrary to the laid down principle of audi alterem partem  which is applicable in all cases in which a decision is to be taken in any matter whether in a judicial, quasi-judicial or even in purely administrative proceedings involving a person’s interest in a property, right or personal liberty. He cited Deduwa V Okorodudu (1976) 10 SC 329 AT 347; Adigun V. A.G Oyo State (1987) 1 NWLR PT. 53 P. 678; Oyeyemi V Commissioner for Local Government Kwara State (1992) 2 NWLR Part 226 Page 661 at 678 Para C- F.

The learned Silk further submitted that the Appellants have misconstrued the import of the provision of Section 9(5) of the Abia State University Law |No. 5 of 1995 in that a right to appeal against a decision is not the same thing as a right to be heard before a decision is made in the first place. Also, that the right given to the 2nd Appellant in the said section to cancel and withdraw a degree certificate “after due enquiry” is subject to the Constitutional right to fair hearing of the person whose interest will be affected by the decision of the 2nd Appellant. A one-sided enquiry cannot constitute “due enquiry” envisaged by the law.

Counsel further submitted that the extensive arguments of the Appellants predicated on domestic matters of the University, are misconceived, as the Respondent is not asking the court to take over any of the functions of the University such as deciding who to award a degree to, releasing results or other statutory functions of the University but to determine the validity of the Appellants act of unconstitutionally depriving him of a degree certificate which vested in 2002, more than eleven (11) years before the acts complained of. Counsel cited the cases of Magit v University Of Agriculture Makurdi (2005) 19 NWLR Part 959 Page 211; University Of Ilorin Vs. Adeshina (2014) LPELR 23019 (SC)  which decided that although the Courts are loath to meddle in the functions of the Senate and Council of a University,  if in the process of performing their functions under the law, the civil rights and obligations of the students and or candidates is breached denied or abridged, the court will grant remedies and reliefs for the protection of those rights and obligations.

Counsel concluded by submitting that the fact that the capricious action of the Appellants was coming more than eleven (11) years after the Respondent’s degree certificate had become vested made it even more compelling to have heard from him before the rights and privileges which he had been enjoying were unceremoniously snatched away from him.

Resolution

It is not in doubt that the Constitution stipulates the unfettered access of every citizen to the Court.

Section 6 (6) (b) of the 1999 Constitution (as amended) provides as follows:

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

(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;
(b) shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;

As has been exhaustively shown under the resolution of issue 1 above, this access of the citizen to Court may be postponed until certain prerequisites have been satisfied.

With regard to the affairs of the University, the Courts, as held above, are wary of interference in its internal affairs. This was said quite explicitly by the Supreme Court, in the case of Magit v University of Agriculture, Makurdi (2005) 19 NWLR Part 959 Page 211 at 245 Para B-E per Ogbuagu JSC, reading the lead judgment, as follows:

“… in so far as the award of a degree or certificate to a student is concerned, in the discretion to award or refuse to award, the courts have no jurisdiction in the matter. The courts, have no business to flirt into the arena of a University deciding whether a thesis has met the standard of which it has set, has been met. Any attempt by any court, including this court, to dabble or encroach into the purely administrative and domestic affairs of a University …that may lead to undue interference, nay, the weakening inadvertently so to speak, of the powers and authority conferred on the Universities by statute as that conferred on the 1st respondent, will not be justifiable or justified.”  Underlining Mine

The same learned jurist earlier on in the judgment, at Page 244 Para E held:

“..that the appellant, did not appeal to the University Council against the said decision of the Senate. Therefore, the application to the trial court, was premature.”

It is certainly not in doubt that, in performing their functions, the University must not breach the civil rights and obligations of the students. See Unilorin v Adesina (2014) 10 NWLR Part 1414 Page 159 at 177 Para A-C per Rhodes-Vivour JSC; Akintemi v Professor C. A. Onwumechili Supra at Page 85.

However, as held above, until the domestic avenues for redress have been exhausted, whether the complaint be for breach of the Constitutional right to fair hearing or otherwise, recourse cannot be made to the Courts, I hold.

This was made clear in the adoption by Ogbuagu JSC in Unilorin v Oluwadare Supra at Page 774 Para E of the dictum of Obaseki JSC in Akintemi v Onwumechili  Supra, where he held:

“… until the remedies available in the domestic forum are exhausted, any resort to court action would be premature …” 

His Lordship Ogbuagu JSC thence posed the question in Unilorin v Oluwadare Supra, as follows:

“So was the remedy or remedies available at the domestic forum of the appellant, not exhausted, before the respondent initiated/ commenced his said application/action in court?”

He answered this question in the negative. I must also answer this question in the negative. The Respondent, not having utilized the avenue provided in Section 9 (5) of the Abia State University Law Supra to redress the breach of his rights by the 2nd Respondent’s Ad hoc Investigation Panel in recommending the withdrawal and cancellation of his result, cannot seek redress in the Courts. He must follow the procedure provided by the Statute.

Thus, though the said Statute does not make it mandatory that the Respondent must appeal to the Council from the decision of the Senate, giving the words of this statute their natural meaning, failure to so appeal, renders the decision of the Senate inviolate. Thus, whether the breach is to his fundamental rights or not, it is only and until the domestic channels for appeal have been utilized and his complaint of breach of his rights not still addressed, that recourse can then be made to the Courts to challenge the breach of his rights.

The Appellants’ Counsel has cited  in support of his contentions the decision of this Court per Adefope-Okojie JCA (my humble self) in the case of Kamaludeen Ibrahim Inuwa V. Bayero University Kano & Anor (2016) LPELR-41615(CA) at Pages 32-38, Paras. E-E, where I  held:

“The Courts must be guided by the strong words of caution given by the Apex Court in the case of Magit v University of Agriculture, Makurdi (2005) 19 NWLR Part 959 Page 277 at 245 Para B-E per Ogbuagu JSC reading the lead judgment, where he held: “…that in so far as the award of a degree or certificate to a student is concerned, in the discretion to award or refuse to award, the Courts have no jurisdiction in the matter…, any attempt by any Court, including this Court, to dabble or encroach into the purely administrative and domestic affairs of a University including that of the 1st respondent, that may lead to undue interference, nay, the weakening inadvertently so to speak, of the powers and authority conferred on the Universities by statute as that conferred on the 1st respondent, will not be justifiable or justified.” It is the indisputable right of the University to award or withhold the award of a degree, and which power the Courts cannot usurp or interfere with, let alone compel it to award a degree which it has stated that a claimant is not qualified for.”

 

I do stand by this decision. Indeed His Lordship Pats-Acholonu JSC in the judgment referred to by me above of Magit v University of Agriculture, Makurdi Supra put it more forcefully, thus, at Page 257-258 Para D-A:

 “A University is a “Degree awarding institution” and can neither delegate its degree awarding powers nor be stampeded to make award where it does not see it fit to do so. For the Court to use its awesome magisterial powers to compel a University to award a degree would in effect mean that the Court has invested itself with the necessary powers to fully appreciate the nuances taken into consideration to award University degree. Too often nowadays, ever since the case of Garba v. University of Maiduguri (supra), many litigants have tended to inundate the Courts with frivolous claims and have tried to invest the Court with powers to run a University usually described as ivory Tower with their strange claims, A University is a place of great learning and research. I would view with consternation and trepidation the day the Court would immerse itself into the cauldron of academic issue which is an area it is not equipped to handle. It will indeed be alarming for any court worth its salt to enter into the arena of questioning why a University has refused to award a degree to any student. The danger posed by such venture is better imagined than expressed. It is my view that it is the indisputable right of a University to award or withhold the award of a degree and it is no business of the Court to question its motives let alone compelling it to award a degree which it has stated that a claimant is not qualified for. The duty or the power of a University in subjecting the work of any student in its portals of learning to merciless scrutiny is naturally to carefully evaluate the academic quality of his or her work, It alone possesses the power to state whether a particular work is below the standard or not.”  Underlining mine

Much as I feel the pains of the Respondent, having enjoyed the award of the degree and certificate for almost 13 years, before its withdrawal and cancellation, the position of the law, however, is that until the domestic channels to ventilate his grievance have been undertaken, the Courts will not dabble or encroach into the purely administrative and domestic affairs of the Appellants. Any such intervention would be premature. To hold otherwise would be to open the floodgate to litigation by students, who rather than take advantage of appellate processes provided, inundate the Courts with grievances that may very well be addressed by the dispute resolution processes available. I again resolve the 2nd issue for determination in favour of the Appellant.

The 3rd and 4th issues for determination are the following:

  1. Whether the trial court failed to consider the issues raised by the Appellants and thereby breached their right to a fair hearing.

 

  1. Whether the trial court was right to hold that the Appellants were in an indecent haste to arrive at a pre-determined answer.

 

Having resolved the 1st and 2nd above issues in favour of the Appellants, it would serve no utilitarian value to deliberate on the 3rd and 4th issues above. Courts do not engage in mere academic exercises but determine live issues. See Anyanwu v Peoples Democratic Party (2020) 3 NWLR Part 1710 Page 134 at 176 Para G per Eko JSC; – Dahiru v APC (2017) 4 NWLR Part 1555 Page 218 at 244 Para E-G per Rhodes-Vivour JSC.

 

 

CONCLUSION

In view of the resolution of issues 1 and 2 above in favour of the Appellants, this appeal succeeds. The judgment of the lower Court delivered on 7th day of February 2018 by Agwu Umah Kalu J of the High Court of Abia State is set aside. Each party shall bear its own Costs.

 

 

 

APPEARANCES

Jesse Nwaenyo, Esq., for Appellants

C.A. Obianwu, Esq., for Respondent.