Garba vs University of Maiduguri.docx

Go to page contentGo to main menuGo to search NigeriaLII Home Judgments Supreme Court of Nigeria MR YESUFU AMUDA GARBA & OTHERS v THE UNIVERSITY OF MAIDUGURI (SC. 24/1985) \[1986\] NGSC 12 (14 February 1986) Document detail Citation MR YESUFU AMUDA GARBA & OTHERS v THE UNIVERSITY OF MAIDUGURI (SC. 24/1985) \[1986\] NGSC 12 (14 February 1986) Media Neutral Citation \[1986\] NGSC 12 Court Supreme Court of Nigeria Case number SC. 24/1985 Judges Coker, JSC, Nnamani, JSC, Oputa, JSC, Kawu, JSC, Uwais, JSC, Obaseki, JSC, Eso, JSC Judgment date 14 February 1986 Language English Type Judgment MR YESUFU AMUDA GARBA & OTHERS (APPELLANT) v. THE UNIVERSITY OF MAIDUGURI (RESPONDENT) \(1986) All N.L.R. 149 Division: Supreme Court Of Nigeria Date of Judgment: 14th February, 1986 Case Number: (SC. 24/1985) Before: Obaseki, Eso, Nnamani, Uwais, Coker, Kawu, Oputa JJ.S.C The appellants were students of the University of Maiduguri, they were expelled from the institution sequel to the riotous behaviour of about 500 students which amounted to wilful destruction, arson, looting and assaults. Their expulsion was not till an investigation panel was appointed by the Vice-Chancellor with the approval of the senate to investigate the student rampage. Each of the appellants deposed to an affidavit denying any participation in the rampage. They also contended that they were not given a fair hearing before the respondent expelled them from the University of Maiduguri. Four issues for determination were identified at the Supreme Court. They are:- \(1) Whether the high court was competent to entertain the action. \(2) Whether in the exercise of the powers conferred by section 17(a) of the University of Maiduguri Act 1979, the Vice-Chancellor and his appointees ought to have applied the rules of natural justice. \(3) Whether the appellants established a breach of S.33(11) of the 1979 constitution and \(4) Whether the trial court was competent to grant the relief which it granted. HELD: \(1) A fundamental right of all is a legal right which the law protects and which can be enforced in a Court of Law. These rights are not only protected but are also guaranteed under the constitution, Government functionaries be they legislative, executive, or judicial, cannot act in contravention of such rights an if the rights are to be taken away, it is the constitution itself which has to be amended. \(2) The Disciplinary Board into which the Senate at its meeting was constituted did not investigate the matter or conduct any inquiry of its own. The Board merely considered the report of the Investigating Panel and proceeded to advise the Vice-Chancellor to take appropriate actions. It never satisfied itself that the appellants were guilty of the offences charged before proceeding to impose the punishment. \(3) Guilt in criminal matters is left for the ascertainment of Courts of law or other tribunals before it is accepted and acted upon by Administrative Tribunals. \(4) Fair hearing is not only a common law requirement. By the emphasis on fair hearing in the provisions of subsections (1) and (4) of S. 33 of the constitution the necessity for compliance with all the rules of natural justice audi alteram partem and nemo judex in causa sua, the twin pillars of natural justice, have been adequately indicated. \(5) It is clear from authorities that over the years the university visitor lacked jurisdiction an indeed never exercised jurisdiction over offences against the laws of the land. Except under and express power, a visitor cannot be judge in his own cause. The tribunal of the visitor is forum domesticum, its jurisdiction being derived from the founder\'s right to determine matters concerning its own creation. It follows that he who gives something may also direct how it is to be used. The complainant against the appellants being basically and essentially an allegation of destruction of University property, properties in the charge of the Vice-Chancellor and other officers of the University. Having regard to this fact, the vice-chancellor and other officers are vital witnesses and cannot be a judge in their own cause. It is also the law that a visitor cannot be a judge in his own cause. Appeal allowed Obaseki, J.S.C.-The appellants were students in various disciplines in the University of Maiduguri, the respondent, before their expulsion from the said institution with effect from the 30th day of March, 1983. Their expulsion was sequel to the riotous behaviour of about 500 students in the University on the 2nd day of February, 1983 at about 9.00 p.m. followed by demonstration rampage, wanton destruction of properties in the University and assaults on persons. Their expulsion was not till after the Senate had considered the reports of the Disciplinary Board and Panels set up on the 9th day of February, 1983 by the Vice-Chancellor to investigate the said students\' rampage of the 2nd February, 1983. The Senate noted that out of a total of four thousand students, only about five hundred students\' went to the residential area and only less than one hundred students took part in the destruction, arson and the looting. Senate also observed that from the pattern of arson and destruction, the intention of the perpetrators of the ghastly incident was far more sinister than the atrocities they were able to actually commit. It concluded that it was a carefully planned but hurriedly executed insurrection. Following their expulsion, the appellants initiated in the High Court of Justice of Borno State of Nigeria, Maiduguri Judicial Division at Maiduguri, the proceedings which led to the appeal by respondent to the Court of Appeal and a further appeal by appellants against the decision of the Court of Appeal to this Court. The proceedings initiated were for the enforcement of their fundamental rights and the procedure adopted was that laid down under and by the Fundamental Rights (Enforcement Procedure) Rules, 1979. Following the grant of leave to apply for an order for enforcing and securing the enforcement of their fundamental rights, each of the appellants filed his statement setting out the reliefs sought as: \"(1) A declaration that the applicants\' expulsion with effect from 30th march, 1983 from the University of Maiduguri constitutes a violation of his fundamental right to fair hearing; \(2) A declaration that the applicants be re-admitted into the University of Maiduguri to continue with their studies with immediate effect. \(3) A declaration that the respondent acted with bias in purporting to expel the applicants. \(4) A declaration that the applicants cannot be deprived of their fundamental rights.\" The main ground on which the application was founded was that: \"the applicants were not given a fair hearing, before the respondent expelled the applicants from the University of Maiduguri with effect from 30th March, 1983.\" Each of the applications was also supported by affidavit evidence. The respondent filed a counter-affidavit in reply. There was no oral testimony taken by the learned trial Judge and after hearing the submissions of counsel on both sides, the learned trial Judge, Adagun, J. delivered his considered ruling granting all the reliefs. This is brought out vividly in the concluding paragraph of the Ruling of Adagun, J. which reads: \"In the totality of affidavit evidence adduced in this matter, I am convinced that the fundamental rights of the applicants entrenched under section 33(11) of the Constitution of the Federal Republic of Nigeria 1979 have been contravened by (sic) not affording them their right to cross-examine the witnesses who gave evidence against them before the investigation panel. Secondly, the defences of alibi put up by the applicants in the affidavit were not properly investigated. A fundamental right of all is a legal right which the law protects and which can be enforced in a court of law. These rights are not only protected but are also guaranteed under the Constitution, Government functionary be they (sic) legislative, executive, judicial, cannot act in contravention of such rights and if the rights are to be taken away, it is the Constitution itself which has to be amended (see section 9 of the 1979 Nigerian Constitution). The applicants complained of the infringements of their fundamental rights of fair hearing, it has been proved before this Court beyond reasonable doubt, that their fundamental rights have been in fact fractionalised and infringed. Accordingly, it is hereby declared that the expulsion of the applicants with effect from the 30th March, 1983 from the University of Maiduguri constitutes a violation of their fundamental rights to fair hearing. It is also declared that the applicants be re-admitted into the University of Maiduguri and treated like other students in the University of Maiduguri who were compelled to pay N160.00 for reparation of the properties damaged in the University during the students rampage. Finally, it is also declared that the applicants cannot be deprived of their fundamental rights.\" The University of Maiduguri was dissatisfied with the judgment and in the desire to obtain a reversal of the decision, it took the matter on appeal to the Court of Appeal on 8 grounds. The grounds were extensively argued before five Justices of the Court of Appeal (Nasir, P.; Akanbi, Agbaje, Ogundare and Abdullahi, JJ.C.A.) and in a considered judgment, the Court unanimously allowed the appeal. In the penultimate paragraph of his judgment with which the other four Justices concurred, Nasir, P. said: \"It is not surprising, therefore, that the only complaint in this case is failure to comply with the constitutional provisions of fair hearing. I entirely agree that this is always within the jurisdiction of the High Court particularly as section 42 of the Constitution has specifically so provided. The only question for consideration is what will be the court\'s direction or order after it has found that in the course of exercising a valid statutory function the adjudicating authority has infringed the principle of fair hearing. I have to some extent dealt with this already. I am in no doubt that the only valid order a High Court can make is to refer back the matter to the body authorised by law to deal with it with the necessary guidelines for such body to comply with the rules of natural justices which were formerly offended. In this case, I am of the opinion that the High Court was not seized with the jurisdiction to state who should not be expelled from or admitted to one University. The only issue before the High Court was whether there was fair hearing by the Disciplinary Investigation Board or whether there was likelihood of bias. To take over the jurisdiction of the Vice-Chancellor or of the University Council is, in my opinion, wrong. The students, including the respondents, must abide by the law establishing the University and any lawful conditions created in running the University. I am of the opinion that mere likelihood of bias will not be sufficient to disqualify the Vice-Chancellor or his deputy when they are in fact performing statutory functions. I am in fact satisfied that to establish bias in this case, one must look at all the surrounding circumstances of the case. In the light of the terms of reference of the Disciplinary Investigation Board and the consultations undertaken by the Vice-Chancellor and the fact that the respondents were given opportunity to present their side of the story, I am of the opinion that the learned trial Judge was in error to hold that there was no fair hearing and that there was likelihood of bias. To sum up, I am of the opinion that this appeal succeeds and the orders made by the learned trial Judge including any order as to costs are hereby set aside.\" The success of the appeal of the University of Maiduguri did not go well with the students-the plaintiffs/appellants herein. They decided to take the matter on appeal to this Court and accordingly filed their notice of appeal. Three grounds of appeal were filed along with the notice of appeal and for the purposes of this judgment, it is desirable to set them out in detail. They read: \"1. The learned Justices of the Court of Appeal erred in law in allowing the appeal after holding in the judgment of Mamman Nasir, J.C.A. (sic read p.) \'On the other hand each of the respondents had sworn in his affidavit that \"the said period of rampage, I was in my room in the University campus\", except the 5th who said he was in Haruna Abdul Rashidi\'s room on the campus and the 9th who said he was at the College of Arabic Studies with one Ibrahim M. Basir. On the University\'s side it was stated that each of the respondents took part in the disturbances. Each of the respondents also stated that he was not allowed to cross-examine witnesses and was not allowed to call witnesses. These allegations were also denied and it was sworn that each of the respondents were given opportunity of being heard and that none of the respondents requested to call any witness. In short, there were issues which were in conflict between the affidavits and court-affidavits.)\' PARTICULARS OF ERROR \(a) when there is any conflict in affidavit evidence on crucial issues to be determined, oral evidence must be adduced. \(b) The only valid order the Court of Appeal ought to have made was to have remitted the case back to the High Court for a rehearing on the crucial issues in conflict joined by the parties on their affidavit evidence, especially after expressing the opinion at page 30 that \'\...\..... the only valid order a High Court can make is to refer back the matter to the body authorised by law to deal with it with necessary guidelines for such body to comply with the rules of natural justice which were formerly offended.\' \(c) The Court of Appeal ought not to have interfered with the findings of fact made by the trial Judge and substitute its own findings. 2\. The learned Justices of the Court of Appeal misdirected themselves in law (Mamman Nasir, J.C.A. (sic)p.) in holding: \'To sum up, I am of the opinion that the learned trial Judge was in error and have over-played the principle of fair-hearing and this had clouded his approach as a result of which he missed the issue involved. It was not the case of the respondents/applicants that they had a fundamental right to be students in the University. Their case was that they did not have a fair hearing. In my opinion, the only order open to the trial court was to make a declaration that there was a breach of the fundamental right of fair hearing and on the basis the trial court must quash the alleged hearing and order the appropriate authority to comply with the said fundamental right. Having quashed the said hearing, there is nothing left upon which the High Court order or declarations can be based.\' PARTICULARS OF ERROR \(a) The appellants claim in the High Court \'A Declaration that the applicants\' expulsion with effect from the 30th of March, 1983 from the University of Maiduguri constitutes a violation of their fundamental rights to fair hearing.\' On the ground that the applicants were not given a fair hearing before the respondents expelled the applicants from the University of Maiduguri with effect from 30th March, 1983. \(b) The High Court by virtue of section 42 of the Constitution of the Federal Republic of Nigeria, 1979, is given special jurisdiction and it enjoins any person who alleges that any of the provisions of Chapter 4 of the Constitution has been, is being or likely to be contravened in any State to apply to the High Court for redress. \(c) By virtue of section 42(2) of the Constitution of the Federal Republic of Nigeria 1979, the High Court is enjoined to make such orders \"and\" issue such writs, these therefore supplement, or are in addition to the existing remedies for securing the enforcement of fundamental rights. \(b) In granting a declaratory order as to the rights of the parties before it, the court can exercise the ancillary power which it has to grant consequential reliefs whether the consequential reliefs are claimed or not. 3\. The learned Justices of the Court of Appeal erred in law per Mamman Nasir, J.S.C. (sic p.) in holding that: \'I am of the opinion that mere likelihood of bias will not be sufficient to disqualify the Vice-Chancellor or his Deputy when they are in fact performing statutory function. I am in fact satisfied that to establish bias in this case one must look at all the surrounding circumstances of the case. In the light of the terms of reference of the Disciplinary Investigation Board and the consultations undertaken by the Vice-Chancellor and the fact that the respondents were given opportunity to present their side of the story, I am of the opinion that the learned trial Judge was in error to hold that there was no fair hearing and that there was likelihood of bias.\' PARTICULAR OF ERROR \(a) The defence of alibi put up by the applicants were neither considered nor investigated by the Investigating Panel set up by the respondent. \(b) The Chairman of the Investigating Panel and the vice Chancellor on the affidavit evidence where personal victims of the students rampage, hence, there was likelihood of bias. \(c) The appellants neither knew their accusers and were not given an opportunity of cross-examining them to test the veracity and accuracy of the evidence against them, when moreso before the Panel they pleaded alibi. \(d) The witnesses who testified against the appellants did so in their absence.\" The respondents filed subsequently a notice of intention to contend that judgment should be affirmed on grounds other than those relied on by the Court of Appeal, i.e. the court below. The grounds on which the Respondent intended to rely on as contained in the said notice read: \"1. The High Court ought not to have entertained the plaintiff\'s action since the proper authority which ought to have adjudicated on their complaints was the Visitor to the University. 2\. Since the power of the Vice-Chancellor to discipline the plaintiffs, though regulated by section 17 of the University of Maiduguri Act, derived essentially from contract, the High Court ought not to have entertained a claim by the plaintiffs for a declaratory relief in the nature of an order of mandamus. In any event, it is irregular for the plaintiffs to have invoked the special jurisdiction conferred on the High Court under section 42 of the Constitution for the enforcement of what is no more than a contractual right. 3\. The High Court fell into error of thinking that the provisions of section 33(1) of the Constitution apply to the exercise by the Vice-Chancellor of his disciplinary powers under section 17 of the University of Maiduguri Act when those provisions do not in fact apply. It is the provisions of subsection (2) of section 33 of the Constitution which apply.\" Arising from the grounds of appeal, the issues for determination as set out in the brief of appellants are: \"1. whether the learned Justices of the Court of Appeal were right in allowing the appeal and not remitting the case back to the High Court for a re-hearing after expressing the opinion that there were issues which were in conflict between the affidavits and counter-affidavits of the appellants and the respondents 2\. whether having regard to No. 1 above the Court of Appeal was right in interfering with the findings of fact made by the trial Judge and substituting its own findings thereof. 3\. whether in view of the combined effect of the provisions of section 42 of the Constitution of the Federal Republic of Nigeria, 1979, Order 24 Rule 1 of the Borno State High Court (Civil Procedure) Rules and the appellants\' claims at the lower court, the learned Justices of the Court of Appeal misdirected themselves in law when they held that the only order to open to the trial court was to make a declaration that there was a breach of the appellants\' fundamental right to fair hearing and nothing more. 4\. whether the Disciplinary Investigation Board had jurisdiction to look into the matters referred to it by the Vice-Chancellor in respect of the appellants. 5\. whether in view of all the surrounding circumstances of the case there was fair hearing contrary to the findings of the trial Judge.\" The respondent in the brief filed by its counsel formulated only four issues for determination in this appeal. These four issues read: \"1. whether the High Court ought to have entertained the action; 2\. whether the Court of Appeal ought to have remitted the case to the High Court for re-hearing; 3\. whether it was right for the High Court to have granted reliefs which it granted to the appellants; 4\. were the Disciplinary Investigation Board competent to perform the duties assigned to them?\" The important feature of this matter is that there was no oral hearing besides the address of counsel. All the evidence on which the learned trial Judge acted was contained in the affidavit of each of the applicants and the counter-affidavit deposed to by Abubakar S. Chide. He, Abubakar S. Chide was the Principal Assistant Registrar (Students Affairs) in the University of Maiduguri and was a member and secretary of the Investigation Panel appointed by the Vice-Chancellor with the approval of the Senate to investigate the Student\'s rampage of 2nd February, 1983. Each of the appellants deposed to an affidavit almost identical in terms except for a few paragraphs. Common to all the affidavits was the denial of any participation or involvement in the rampage and the fact that their expulsion was based on their involvement and their participation in the rampage and their being guilty of wilful destruction of property, arson, looting and assault in the University. Exhibit A issued by Mr Dahiru Bobbo the Registrar on the 30th day of March, 1983 clearly shows that the disciplinary action was taken against those who took part in the rampage. The statement at page 8 inter alia reads: DISCIPLINARY ACTIONS ON STUDENTS \"Having regard to the provisions of section 17 of the University of Maiduguri Act 1979, Senate at its meeting of 28th-29th March, 1983, was constituted into a Disciplinary Board to consider the report of the Disciplinary Investigation Panel that investigated the students\' rampage and advised the Vice-Chancellor to take appropriate disciplinary actions against those students who took part in the rampage of 2nd February, 1983. After a careful consideration of the role played by each student identified to have participated in the rampage, the Disciplinary Board of Senate advised the Vice-Chancellor and the Vice Chancellor decided to take action as follows: \(1) That the following students should be expelled from the University with immediate effect.\" The names of all the 9 appellants appeared on that list of students expelled with immediate effect. The statement Exhibit A giving detail of what the students did reads: \"At about 9.00 p.m. Mr Zadok and a small group of his supporters who were fore-armed with inflammable materials such as petrol and matches, and dangerous weapons led a crowd of about 500 students to the residential area of the University, attacked the Vice-Chancellor\'s lodge where they set fire to the Guest lodge, the main lodge and the mosque and burnt and destroyed six cars and a bicycle belonging to his five year old child. Many of the students who accompanied Mr Zadok to the Vice-Chancellor\'s lodge ran back in panic when they saw the Vice-Chancellor\'s house set on fire. At the Registrar\'s house, the students burnt three cars, destroying another one. There was an attempt to set the house on fire. At the staff club, the demonstrating students looted 33 cartons of beer and some roast meat worth forty Naira. At the residence of the Deputy Vice-Chancellor, (Central Administration) there was an attempt to set the house on fire. The students broke into the house carrying away with them television sets, books, cooked and raw food, live chicken and destroyed children\'s lunch boxes and toys. At the residence of the Deputy Vice-Chancellor (Academic Services), the demonstrating students burnt two cars, and destroyed window glasses. From the residential area, the demonstrating students proceed to the bookshop and they burnt the bookstore. From the bookshop, the students broke into the Aisha Hall (the Female Hostel) where they manhandled some female students in their rooms and left many of them in utter disgrace and humiliation.\" The counter-affidavit specifically denied the facts deposed to in paragraphs 1, 3, 4, 5, 9, 10, 16 and 17 of the affidavit of the 8th and 9th appellants, Abdul Abubakar Aliyu and Mohammed Bapetrel Yahaya. There is no evidence that the other facts deposed to in the affidavit of the other appellants were ever challenged. Paragraphs 1, 3, 4, 5, 9, 10, 16 and 17 of the affidavit of the 8th appellant, Abdul Abubakar Aliyu reads: \" \(1) That I am a part II Law student at the University of Maiduguri and one of the applicants in this suit; \(3) that at the said period of the rampage, I was in my room in the University campus. \(4) that I learnt of the said rampage and destruction of properties a few hours after the incident was brought under control; \(5) that I never participated in any demonstration, rampage, or wanton destruction of properties in the University on the said date and time nor at any other period; \(9) that I orally applied to the Panel to call my own witnesses to testify in support of my absence from the demonstrating students and innocence to the allegations levelled against me but the panel refused my applications without reasons; \(10) that the Panel did not investigate the claim of my alibi I put up before the Panel; \(16) that if the order of expulsion on me is not quashed, I might not benefit from further university education in my life; \(17) that great mischief and life hardship will result if the said order of expulsion is not quashed on the basis of a Disciplinary Investigating Panel which lacked the principles of \"audi alteram partem.\" What facts did the counter-affidavit contain relevant to the incident? The answer to this question can best be provided by a reproduction of paragraphs 1 to 12 of the counter-affidavit which is all it contains. It reads: \"I Abubakar S. Chide, Nigerian, Male, Moslem of the Students Affairs Department, University of Maiduguri do hereby make oath and say as follows: 1\. That I am a Principal Assistant Registrar (Students Affairs) in the University of Maiduguri. 2\. That I was a member of and Secretary of the Investigation Panel that was appointed by the Vice-Chancellor with the approval of the Senate to investigate the student rampage of 2nd February, 1983 which led to the closure of the University of Maiduguri from 3rd February-10th April, 1983. 3\. That from my membership of and position in the Investigation Panel, I know the applicants in this case and I am familiar with the facts of this case. 4\. That I have the authority of my employers to dispose to this counter-affidavit; 5\. That I have seen the affidavit of both applicants in this suit, i.e. Abdul Aliyu and Mohammed Bapetrel Yahaya and also the statements annexed to the notice of motion and I am aware that the averments in both are not true. 6\. That paragraphs, 1, 3, 4, and 5 of the affidavit of the 1st applicant are not true because the applicant who until his expulsion from the University was the Secretary-General of the University of Maiduguri Students Union was one of those who summoned the congress on the fateful day and it was from the congress that the students proceeded to destroy both the university property and property belonging to some staff of the university and also threatened the safety and security of the university community. 7\. That in the same vein the averments contained in paragraph 1, 3, 4 and 5 of the affidavit of Mohammed Bapetrel Yahaya are not true as the student had been expelled from the University after the Investigation Panel had so recomme About NigeriaLII Terms of Use About us Contact us Our partners AfricanLII Laws.Africa Lesotho Judiciary Other African Legal Information Institutions AfricanLII GhaLII Kenya Law LawLibrary ZA LesothoLII LiberLII MalawiLII MauritiusLII NamibLII NigeriaLII OpenbyLaws ZA RwandaLII SeyLII SieraLII eSwatiniLII TanzLII UgandaLII ZambiaLII ZanzibarLII ZimLII AfricanLII Laws.Africa

Garba vs University of Maiduguri.docx

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