Nigeria Weekly Law Report Braimoh vs University of Ilorin 1

Transcription

1 Braimoh vs University of Ilorin 1 BRAIMOH BABATUNDE AKINOLA V. 1. VICE-CHANCELLOR, UNIVERSITY OF ILORIN 2. THE GOVERNING COUNCIL, UNIVERSITY OF ILORIN 3. UNIVERSITY OF ILORIN COURT OF APPEAL (ILORIN DIVISION) ABOYIJOHNIKONGBEH.J.C.A. (Presided) WALTER SAM UKL N KANU ONNOGHEN, J.C.A. (Read the Leading Judgment) JA'AFARU MIKA'ILU, J.C.A. TUESDAY, L1TH MAY, 2004 ACTION - Abuse of court process - What constitutes. CA/1L/17/2003 ACTION - Action for enforcement of fundamental rights - Claim cognisable hereunder - Jurisdiction of court to entertain -Condition precedent thereto. ACTION-Consolidation of actions - Consolidated suits - Appeal therefrom - Whether multiple notices of appeal required to be filed. ACTION- Consolidation of actions - Purpose of- Judgment in consolidated suits - How delivered. APPEAL Consolidated suits Appeal therefrom- Whether multiple notices of appeal required to be filed. CASE LAW-Egbuonu v. Borno Radio Television Corporation (1997) 12 NWLR (Pt. 531) 29 - What Supreme Court decided therein. CONSTITUTIONAL LAW - Fundamental rights - Action for enforcement of fundamental rights Jurisdiction of court to entertain Condition precedent thereto. CONSTITUTIONAL LAW - Fundamental rights - Action for enforcement of fundamental rights - Claim cognisable hereunder - Jurisdiction of court to entertain - Condition precedent thereto. COURT-Abuse of court process - What constitutes. COURT Judgment of the Supreme Court Bindingness on the Court of Appeal. COURT - Jurisdiction of court - Fundamental rights - Action for enforcement of fundamental rights - Jurisdiction of court to entertain Condition precedent thereto.

2 Braimoh vs University of Ilorin 2 COURT Jurisdiction of court Where court lacks jurisdiction to entertain principal or main claim Effect on subsidiary or ancillary claim falling within court's jurisdiction. CRIMINAL LAW AND PROCEDURE - Offences - Membership by University student of association not registered by University - Whether criminal in nature Whether requires proof beyond reasonable doubt. DOCUMENT Document not tendered as exhibit Whether court can look at it. DOCUMENT - Pleading - Facts in pleaded exhibit- Where not independently averred in pleading - Whether court can rely on. EVIDENCE Documentary evidence Document not tendered as exhibit but in court's file - Whether court has power to look thereat. EVIDENCE - Proof - Evidence led on fact not pleaded - How treated. EVIDENCE - Proof - Facts in pleaded exhibit - Where not independently averred in pleading Whether court can rely on. FAIR HEARING - Right to fair hearing-allegation of breach of-party dragged before panel - When he cannot complain of. FUNDAMENTAL RIGHTS - Action for enforcement of fundamental rights - Claim cognisable hereunder - Jurisdiction of court to entertain Condition precedent thereto. JUDGMENT AND ORDER - Judgment of the Supreme Court -Bindingness on the Court of Appeal. JUDICIAL PRECEDENT- Stare decisis - Judgment of the Supreme Court Bindingness of on Court of Appeal. JURISDICTION - Action for enforcement of fundamental rights -Jurisdiction of court to entertain-condition precedent thereto. JURISDICTION - Jurisdiction of court - Where court lacks jurisdiction to entertain principal or main claim Effect on subsidiary or ancillary claim falling within court's jurisdiction. PRACTICE AND PROCEDURE - Abuse of court process - What constitutes. PRACTICE AND PROCEDURE - Consolidation of actions -Consolidated suits - Appeal therefrom - Whether multiple notices of appeal required to be filed. PRACTICE AND PROCEDURE - Consolidation of actions -Purpose of- Judgment in consolidated suits How delivered. PRACTICE AND PROCEDURE - Pleadings - Bindingness of on parties and court Implication of - Evidence led on fact not pleaded - How treated. PRACTICE AND PROCEDURE - Pleadings - Facts in pleaded exhibit - Where not

3 Braimoh vs University of Ilorin 3 independently averred in pleading -Whether court can rely on. STARE DECISIS - Judgment of the Supreme Court - Bindingness of on Court of Appeal. STATUTE - Students Union Activities (Control and Regulations Purport of - Whether student's membership of unregistered associations a criminal act thereunder. UNIVERSITY-Membership of unregistered association-allegation of by University - Nature of - Whether criminal in nature -Whether requires proof beyond reasonable doubt. UNIVERSITY- Students Union Activities (Control and Regulations) Act - Purport of- Whether student's membership of unregistered association a criminal act thereunder. WORDS AND PHRASES-Abuse of court process-what constitutes. Issues: 1. Whether the trial court was right in dismissing the cross-appellant's objection that the appellant's suits were filed in abuse of court process. 2. Whether the trial court was right in dismissing the appellant's suits. Facts: The appellant was a final-year student of the 3rd respondent in the Department of Linguistics and Nigerian Languages. He was suspected of being a member of an unregistered association known by the letter "X". As a result, the Deputy Chief Security Officer of the 3rd respondent handed him over to the police who searched his private residence and found a "Malcolm X" poster on the wall of his residence. Thereafter, the 3rd respondent wrote a letter to the appellant and invited him to appear before the 3rd respondent's Students Disciplinary Committee to explain why he should not be disciplined for being a member of an unregistered association contrary to the 3rd respondent's regulations and the appellant's matriculation pledge, The letter further stated that the appellant's conduct was punishable as a misconduct under section 17 of the University of Ilorin Act. The appellant appeared before the 3rd respondent's Students Disciplinary Committee without any objection. During the proceedings of the Committee, the Committee found that the appellant had an "X" mark on his back and the Committee recorded its finding in its report. Subsequently, the appellant was expelled from the 3rd respondent for being a member of an unregistered association contrary to the respondent's regulation and the appellant's matriculation pledge. Following his expulsion, the appellant wrote an appeal to the 3rd respondent's authorities to reconsider his case but he got no response. Consequently, the appellant filed a suit against the respondents under the Fundamental Rights (Enforcement Procedure) Rules. He sought declarations that his expulsion from the 3rd respondent was wrongful; that his expulsion from the 3rd respondent on the ground that he was a member of a secret cult that committed criminal acts when he was not indicted by a police report was unconstitutional and void; and that the proceedings of the 3rd respondent's Student's Disciplinary Committee was conducted in breach of his fundamental right to fair hearing and void. He also sought orders setting aside his expulsion from the 3rd respondent and for his reinstatement as a student of the 3rd respondent. Thereafter, the appellant filed a second suit by writ of summons against the respondents. He sought the same reliefs he sought in his application under the Fundamental Rights (Enforcement Procedure) Rules. In addition, he sought an order of perpetual injunction to restrain the

4 Braimoh vs University of Ilorin 4 respondents from taking any step concerning the subject of his suit, which would have the effect of adversely affecting his completion of his degree programme. The appellant's suits were later consolidated by an order of court. The respondents raised preliminary objections to the suits on the ground that the second suit was an abuse of court process in view of the subsistence of the first suit and that the first suit ought not to be filed under the Fundamental Right (Enforcement Procedure) Rules because the main relief therein challenged the dismissal, expulsion and termination of the appellant's studentship while the issue of fair hearing was ancillary. The respondents also pleaded that they would rely on the record of proceedings of the 3rd respondent's disciplinary committee and did tender it without any objection as exhibit "E"' at the trial of the suit. In its judgment on one of the suits, the trial court overruled the respondents' preliminary objection. It also raised and considered the fact that an "X" mark was found on the body of the appellant as stated in exhibit "E" although the appellant was not cross-examined directly on the matter in the course of the trial. The trial court made findings on the issue and dismissed the appellant's suits. The appellant was dissatisfied, and he filed a notice of appeal against the judgment of the trial court. The respondents, on their part, also filed a notice of cross-appeal against the aspect of the judgment overruling their preliminary objections to the appellant's suits. In the Court of Appeal, the respondents raised a preliminary objection to the appeal, contending that the appeal being against decisions in consolidated suits ought to have been initiated by two separate notices of appeal instead of one, as was done, thereby rendering the appeal incompetent. They contended that it was wrong for the single notice of appeal to contain complaints against the two cases. Held (Unanimously dismissing the appeal and allowing the cross-appeal): 1. On Competence of court to decide ancillary claim where it lacks jurisdiction to entertain the principal claim -Where an ancillary or incidental or accessory claim or claims are so inextricably tied to or bound up with the main claim before the court in a suit, a court cannot adjudicate over them where it has no jurisdiction to entertain the main claim or where the determination of such incidental or ancillary claims must necessarily involve a consideration or determination of the main claims. In the instant case, there was no way the appellant's claim relating to breach of his fundamental right to fair hearing could be determined without a determination of his main claim for wrongful expulsion from the 3rd respondent and the related claims which he also included in his application for enforcement of his fundamental right. In the circumstance, the application under the under the Fundamental Rights (Enforcement Procedure) Rules was incompetent and ought to be struck out. [Tukur v. Govt. of Gongola Slate (1989) 4 NWLR (Pt. 117) 517; Tukur v. Govt of Taraba State (1997) 6 NWLR (Pt. 510) 549; Egbuomi v. BRTC (1997) 12 NWLR (Pt. 531) 29 referred to.] (Pp paras. F-A) 2. A condition precedent to the exercise of the court's jurisdiction in an action filed under the Fundamental Rights (Enforcement Procedure) Rules is that the enforcement of a fundamental right or the securing of the enforcement of the right should be the main claim and not an accessory claim. Consequently, where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the court cannot be properly exercised because the action is

5 Braimoh vs University of Ilorin 5 incompetent. In the instant case, the main complaint of the appellant in his application under the Fundamental Rights (Enforcement Procedure) Rules was against his expulsion from the 3rd respondent. In the circumstance, the application was incompetent. (Pp , paras. H-B; D-E) 3. On When party can initiate two suits against same defendant - What the Supreme Court decided in Egbuonu v. B.R.T.C. (1997) 12 NWLR (Pt. 531) 29 is that where certain facts in a cause of action can support an action under the Fundamental Rights (Enforcement Procedure) Rules while others can support an action by a writ of summons, then the plaintiff can bring two actions depending on the supporting facts; the one under the Fundamental Rights (Enforcement Procedure) Rules and the other by writ of summons and then the two actions may be consolidated by the court. It did not by that decision hold that a party whose cause of action constitutes both a breach of a fundamental right and an ordinary wrong must institute two actions. (P. 642, pann, A-E) 4. On When person dragged before Disciplinary Panel cannot complain of denial of right to fair hearing - A party cannot complain of a breach of his right to fair hearing where he was given an opportunity to defend himself against allegations which were reduced into writing before a panel whose members' integrity he did not challenge during the proceedings. In the instant case, the appellant was given an opportunity to be heard by the disciplinary panel in respect of the allegations which were made against him. He did not challenge the impartiality of the panel's members and no other person was heard in the course of the proceedings. In the circumstance, the appellant could not complain assert that his right to fair hearing was breached by the respondents. (P. 647, paras. A-E) 5. On Whether membership of unregistered association is criminal under Students Union Activities (Control and Regulations) Act - The Students Union Activities (Control and Regulations) Act deals with the powers of University authorities in Nigeria to regulate the activities of students' unions and associations; and empowers the governing councils of the Universities to proscribe unlawful societies in Universities. The Act does not provide that it is a criminal offence for a student of a University to belong to an unregistered association. (P. 648, paras. E-F) 6. Nature of allegation of student's membership of association not registered by University An allegation of a University student's membership of an association not registered by the University contrary to the University's regulations and the student's matriculation pledge is not an allegation which borders on criminality. Consequently, it need not be proved beyond reasonable doubt. In the instant case, the allegation against the appellant was that he was a member of an association not registered by the 3rd respondent contrary to the 3rd respondent's regulations and the appellant's matriculation pledge. In the circumstance, the appellant was not accused of any criminal offence, Consequently, the trial court was right when it held that the standard of proof of the allegation against the appellant was on the balance of probability and not beyond reasonable doubt as contended by the appellant. (P. 648, paras. A-D; H) 7. On what constitutes abuse of court process

6 Braimoh vs University of Ilorin 6 What amounts to an abuse of court process cannot be clearly defined because it involves circumstances and situations of infinite variety and conditions. However, it has a common feature in the improper use of judicial process by a party in litigation to the irritation and annoyance of his opponent and the efficient and effective administration of justice. (P. 640, paras. C-D) 8. On What constitutes abuse of court process - An abuse of process of court is constituted when more than one suit is instituted by a plaintiff against a defendant in respect of the same subject matter, notwithstanding the fact that the plaintiff has the right to bring the actions or that the actions were brought on different grounds. The abuse is said to consist in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice. In the instant case, the appellant's second suit which was instituted while his application for enforcement of his fundamental right was pending on the same subject matter was instituted in abuse of court process and ought to have been struck out by the court. [Tukur v. Govt. of Gongofa State (1989) 4 NWLR (Pt. 117)517; Tukur v. Govt. of Taraba Stale (1997) 6 NWLR (Pt. 510) 549; Egbuonu v. BRTC (1997) 12 NWLR (Pt. 531) 29 referred to.] (Pp paras. E-/7; 641. para. G) 9. On Purpose of consolidation of suits and how judgment delivered in consolidated suits - Consolidation of suits is for the convenience of trial of the suits. In other words, the suits still retain their individuality. That is why at the end of the trial, two or more judgments or decisions are handed down depending on the number of suits consolidated. In the instant case, the trial court erred when it fused the cases into one and delivered judgment in only one of the two cases leaving out the other. \Nasr v. Complete Home Ent. (Nig.) Ltd. (1997) 5 SC 1; Kulse v. Bakfur (1994) 4 NWLR (Pt. 337) 196; Ahiribc v. Nwankpa (1999) 4 NWLR (Pt. 600) 551; Atanda v. Ajani (1989) 3 NWLR (Pt. Ill) 511; Snwiita v. Ngah (1998) 13 NWLR (Pt. 580) 39 referred to.] (Pp , paras. H-A; 642, paras. D-G) 10. On Whether multiple notice of appeal required against judgment in consolidated suits - A party who is dissatisfied with the judgments of a trial court in consolidated suits can file a single notice of appeal because there is no rule of law or practice requiring an aggrieved party appealing from a decision in consolidated suits to file two notices of appeal. In the instant case, the appellant acted properly by filing a single notice of appeal against the judgment of the trial court in the consolidated suits. [Igwe v. Kalu (1993) 4 NWLR (Pt. 285) 1 referred to.] (Pp , paras. G-G; 637, para. E) 11. On Bindingness of pleadings on parties and court and implication thereof - Parties to a suit, and the court, are bound by the pleadings; and evidence on facts not pleaded goes to no issue. (P. 649, paras. G-H) 12. On Whether court can rely on facts in pleaded exhibit when those facts not independently averred in pleading - A court can rely on facts contained in an exhibit which was pleaded in making findings of fact notwithstanding that the facts in the exhibits were not independently pleaded. In the instant case, exhibit "E" was pleaded and admitted in evidence without objection by the appellant. In the circumstance, it was evidence before the trial court and it could make a finding based on it. [Ekpe v. Oke (2001) 10 NWLR (Pt. 721) 341 referred to.] (Pp , paras. II-E)

7 Braimoh vs University of Ilorin On Power of court to look at document in its file not tendered as exhibit - A court is entitled to look at a document in its file while writing its judgment or ruling despite the fact that the document was not tendered and admitted as an exhibit at the trial. [Agbaisi v. Ebikerefe (1997) 4 NWLR (Pt. 502) 630; Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt. 594) 170 referred to.] (P. 650, paras. B-C) 14. On Bindingness of judgment of the Supreme Court on Court of Appeal - By the principles of stare dicisis and judicial precedent, the Court of Appeal is bound by decisions of the Supreme Court. (P. 635, para H) Nigerian Cases Referred to in the Judgment: Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325 Aiyetan v. NIFOR (1987) 3 NWLR (Pt. 59) 48 Alaribe v. Nwankpa (1999) 4 NWLR (Pt. 600) 551 Animashaun v. Osuma (1972) 4 SC 47 Alanda v. Ajani (1989) 3 NWLR (Pt. 111)511 Badejo v. Fed. Min. of Education (1996) 8 NWLR (Pt. 464) 15 Benaplastic v. Vasilyev (1990) 10 NWLR (Pt. 624) 620 Denloye v. Medical & Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306 Doma v. Adamu (1999) 4 NWLR (Pt. 598) 311 Egbuonu v. BRTC (1997) 12 NWLR (Pt. 531) 29 Egonu v. Egonu (1978) SC 111 Ekpe v. Oke (2001) 10 NWLR 2 (Pt. 721) 341 Garbav. University ofmaiditguri (1986) 1 NWLR (Pt. 18)550 Igwe v. Kalu (1993) 4 NWLR (Pt. 285) 1 Igwilo v. C.B.N. (2000) 9 NWLR (Pt. 672) 302 Ikine v. Edjerode (1996) 2 NWLR (Pt. 431) '161 Kutse v. Bakfur (1994) 4 NWLR (Pt. 33 7) 1 % N.S.I.T.F.M.B. v. Adebiyi (\990) 13 NWLR (Pt. 6) 16 N.V. Scheep v. M.V. "S. Aral" (2000) 15 NWLR (Pt. 691) 622 Naxrv. Complete Home Ents. (Nig.) Ltd. (1977) 5 SC I Nwaeze v. Eze (1999) 3 NWLR (Pt. 595) 410 Ogiamen v. Ogiamen (1967) NMLR 245 Ogundiran v. Commissioner of Police (Appeal No. CA/1L/28/2002) Ojengbede v. Esan (2001) 18 NWLR (Pt. 746) 771 Oko v. Igweshi (1997) 4 NWLR (Pt. 497) 48 Okomdiidu v. Okoromadu (1977) 3 SC 21 Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 Sawuta v. Ngah (1998) 13 NWLR (Pt.580) 39 Shell Trustees (Nig.) Ltd. v. Imanni & Sons Ltd. (2000) 6 NWLR (Pt.662) 639 Shitta-Bayv. F.P.S.C. (1981) 1 SC 40 Tukurv. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517 Turkur v. Govt. of Taraba Slate (1997) 6 NWLR (Pt. 510) 549 UBNv. Ozigi (1994) 3 NWLR (Pt. 333) 385 WAEC v. Akinkunmi (2002) 7 NWLR (Pt. 766) 327 WAEC v. Mbamalu (1992) 3 NWLR (Pt. 230) 481 Woluchem v. Gudi (1981) 5 SC. 291 Nigerian Statute Referred to in the Judgment:

8 Braimoh vs University of Ilorin 8 University of llorin Act, S. 17 Nigerian Rules of Court Referred to in the Judgment: Fundamental Rights (Enforcement Procedure) Rules Appeal and Cross-appeal: This was an appeal against the judgment of the Federal High Court, llorin, dismissing the appellant's suits. The respondents cross-appealed against the decision overruling its preliminary objection by the trial court. The Court of Appeal, in a unanimous decision, dismissed the appeal and allowed the cross-appeal. History of the Case: Court of Appeal: Division of the Court of Appeal to which the appeal was brought: Court of Appeal, llorin Names of Justices that sat on the appeal: Aboyi John Ikongbch, J.C.A. (Presided); Walter Samuel Nkanu Onnoghen, J.C.A. (Read the Leading Judgment); Ja'afaru Mika'ilu, J.C.A. Appeal No.: CA/IL/17/2003 Date of Judgment: Tuesday, llth May, 2004 Names of Counsel: Roland Otaru, Esq. (with him, V. 0. Awomolo [Mrs.]) -for the Appellant/Cross-Respondent K. K. Eleja, Esq. (with him, Tafa Ahmed, Esq., Yakub Dada, Esq. and M. O. Ekundayo [Mrs.]) -for therespondents/cross-respondents High Court: Name of the High Court: Federal High Court, llorin Name of the Judge: Olayiwola, J. SuitNos.: FHC/IL/M. 1/2002 and FHC/1L/CS/10/2002 Date of the Judgment: Friday. 7th February, 2003 Counsel: Roland Otaru, Esq. (willi him. V. O. Awomolo [Mrs.]) -for the Appellant/Cross-Respondent K. K. Eleja, Esq. (with turn, Tafa Ahmed. Esq., Yakub Dada. Esq. and M. O. Ekundayo [Mrs.]) -for the Responden/s/Cross-Respondents ONNOGHEN, J.C.A. (Delivering tin- Loading Judgment): This is an appeal against the judgment of the Federal High Court sitting at llorin in the consolidated suit Nos. FHC/IL/M. 1/2002 and IL/CS/10/2002 delivered by Hon. Justice P. F. Olayiwola on 7ih February 2003 dismissing the case of the appellant. The facts of the case include the following. The appellant was a final year student of the University of llorin in the department of Linguistics and Nigerian Languages of the Faculty of Arts until his expulsion from the said University vide a letter dated 27th September, 2001 and tendered in the proceedings as exhibit C. Before the expulsion, the appellant was invited to appear and did appear before a Students Disciplinary Committee of the University on allegation of membership of an unregistered association etc. in the University on 26th September Following the expulsion, the appellant wrote an appeal to the University authorities to reconsider his case but had no response before instituting his first action under the Fundamental Rights

9 Braimoh vs University of Ilorin 9 (Enforcement Procedure) Rules. The action is suit No. FHC71L/M. Appellant followed suit with another action, this time under a writ of summons in suit No. FHC7IL/CS/10/2002. The two actions were later consolidated by order of court and tried accordingly. The reliefs in the two separate actions are very much the same. They are as follows: In FHC/IL/M. 1/ A declaration that the trial, conviction and expulsion of the appellant on the allegation that he was a member of a secret cult (an unregistered association) who allegedly killed fellow students, raped female students and committed various criminal acts, when the police investigation did not establish such allegation is unlawful, unconstitutional, null and void and of no effect. 2. A declaration that the purported dismissal, expulsion and determination of the applicant's studentship of the University in the department of linguistics, on the ground that he was one of the members of a secret cult, who committed murder, rape and such criminal acts, when the plaintiff was not incriminated by the Nigeria Police report issued on the applicant, is unlawful, unconstitutional null and void. 3. A declaration that the trial of the applicant whereby the respondents' committee was the accuser, investigator, witnesses, prosecutors and adjudicators of the offence of he being a member of an unregistered secret cult is against his right to fair hearing, unconstitutional, null and void. 4. An order setting aside the decision and the order of the respondent's to expel, terminate and bring to an end the appellant's studentship of the University. An order directing the respondent's to withdraw forthwith the letter dated 27th September, 2001, which conveyed the expulsion of the plaintiff and reinstate him as a student of Department of Linguistics, University of Ilorin. And in FHC/IL/CS/10/2002 as follows: "Whereof the plaintiff claim from the defendants the following: 1. A declaration that the purported dismissal, expulsion, and termination of the plaintiffs studentship of the University of Ilorin, in the Department of Linguistics, on the ground that he was one of the members of a secret cult unregistered body who committed murder, rape and such criminal acts when the plaintiff was not in criminated by the Nigeria police report the appellant on the allegation that he was a member of a secret cult (an unregistered association) who allegedly killed fellow students, raped female students and committed various criminal acts, when the police investigation did not establish such allegation is unlawful, unconstitutional, null and void and of no effect. 2. A declaration that the purported dismissal, expulsion and determination of the applicant's studentship of the University in the department of linguistics, on the ground that he was one of the members of a secret cult, who committed murder, rape and such criminal acts, when the plaintiff was not incriminated by the Nigeria Police report issued on the applicant, is unlawful, unconstitutional null and void. 3. A declaration that the trial of the applicant whereby the respondents' committee was the accuser, investigator, witnesses, prosecutors and adjudicators of the offence of he being a member of an unregistered secret cult is against his right to fair hearing, unconstitutional, null and void. 4. An order setting aside the decision and the order of the respondent's to expel, terminate and bring to an end the appellant's studentship of the University. 5. An order directing the respondent's to withdraw forthwith the letter dated 27th September, 2001, which conveyed the expulsion of the plaintiff and reinstate him as a student of Department of Linguistics, University of Ilorin. Whereof the plaintiff claim from the defendants the following:

10 Braimoh vs University of Ilorin A declaration that the purported dismissal, expulsion, and termination of the plaintiffs studentship of the University of Ilorin, in the Department of Linguistics, on the ground that he was one of the members of a secret cult unregistered body who committed murder, rape and such criminal acts when the plaintiff was not in criminated by the Nigeria police report unlawful unconstitutional null and void. 2. A declaration that the trial of the plaintiff whereby the defendants committee was the accuser, investigator, prosecutor, witnesses and adjudicators of the offence of bring a member of an unregistered and unrecognized secret cult is against his right to fair hearing unconstitutional null and void. 3. A declaration that the trial, conviction and expulsion of the plaintiff on the allegation that he was a member of a secret cult, an unregistered association, which allegedly killed fellow students, rape female students and committed various criminal acts, when the police investigation did not establish such allegation is unlawful, unconstitutional, null and void and of no effect. 4. An order setting aside, nullifying and make void the decision and the order of the defendants to expel, terminate and bring to an end the educational career of the p l a i n t i f f in the University of Ilorin. 5. An order directing the defendants to withdraw forthwith the letter dated 27th September, 2001 and reinstate the plaintiff to conclude his degree programme in the Department of Linguistics and Nigerian Languages. 6. An order of perpetual injunction restraining the defendants from taking any step or doing anything however relating to or concerning the cause of action in this suit which has the effect of adversely affecting the study and conclusion of the plaintiff's degree programme. It is very clear from the above that apart from relief No. 6 in FHC/IL/CS/10/2002 which is not part of FHC/1L/M. I /2002, the rest are the same though their numbering was changed - reliefs 1. 2 and 3 in FHC/IL/M. 1/2002 are renumbered as 2, 3 and 1 respectively in FHCAL/CS/10/2002 while reliefs 4 and 5 retained their numbers and are also the same. The respondents raised preliminary objections to the suits including the ground that the subsequent suit No. FHC/IL/CS/10/ 2002 constitutes an abuse of court process in view of the subsistence of suit No. FHC/IL/M. 1/2002 and that suit No. FHC/IL/M. 1/2002 has the main relief of challenging the dismissal, expulsion and termination of the appellant's studentship while the issue of fair hearing is ancillary. At the conclusion of trial, the preliminary objection was overruled and the suits dismissed. Parties are dissatisfied with the judgment and while the appellant has appealed against the judgment in the substantive suits, the respondent has cross-appealed against the aspect of the judgment overruling the preliminary objections after grant of leave to do so by this court. Learned counsel for the appellant, Roland Otaru, Esq., in the appellant's brief of argument filed on 8/5/2003 and adopted in argument at the hearing of this appeal has formulated three issues for determination. These are as follows: 1. Whether the learned trial Judge was right in dismissing the appellant's claims despite failure on the part of the respondents to observe the principles of fair hearing at the sitting of the students' Disciplinary Committee. 2. Whether the learned trial Judge was right in holding that proof of the allegation against the appellant was on the balance of probability and not beyond reasonable doubt. 3. Whether the learned trial Judge was right in basing his decision on a point on which issues were not joined by the parties." The above issues are the same as those formulated by learned counsel for the respondents K. K. Eleja, Esq. in the respondents' brief filed on 19/11/2003. The respondent's issues are as follows:

11 Braimoh vs University of Ilorin 11 Whether the trial court was not right in dismissing the appellant's claims before her and whether that court based its decision on unpleaded fact. Whether the appellant proved the breach of his fair hearing before the trial court. Whether the trial court was not right in holding that the allegation levied against the appellant was not criminal in nature and in further holding that proof beyond case-was an abuse of court process and in holding that 'he fundamental rights case was properly initiated?" Before proceeding to consider the appeals it must be noted that there is a preliminary objection raised by the respondents/cross-appellants in their brief of argument on which issues had been joined in the appellant's reply brief filed on 26/11/03. Learned counsel for the respondent has called upon this court to either dismiss or strike out the appeal on the ground that the appeal being against decisions in consolidated suits ought to have been initiated by two separate notices of appeal instead of one thereby rendering the appeal incompetent. Learned counsel submitted that it was wrong for the single notice of appeal to contain complaints against the two cases. That the notice of appeal is defective thereby rendering the appeal incompetent and liable to be struck out. Learned counsel cited and relied on the case of Nww.-f v. Eze (1999) 3 NWLR (Pt.595)410at418. I have gone through the reply brief filed by learned counsel for the appellant and I am unable to see any direct answer to the preliminary objection as raised by learned counsel for the respondents/cross-appellants. Learned counsel however tried to distinguish the decision of this court in Nwaeze v. Eze supra cited and relied upon by learned counsel for the respondents by saying that that case "cannot be used as a carte blanche or a flood gate because: i. The case arose from the filing of different election petitions. ii. iii. Different parties with different reliefs were claimed by the petitioners therein. For the purpose of expeditious hearing of the petitions, the petitions were consolidated in accordance with the provisions of the prevailing Electoral Act." He however concluded thus: "It is, therefore, humbly submitted that the notice of appeal filed by the appellant based on the judgment of the trial court was competent. There was no need to file several notices of appeal by the appellant... This Honourable Court is therefore urged to discountenance the preliminary objection and a fortiori dismissed (sic) same." Both parties agreed that the actions giving rise to this appeal were consolidated by an order of the lower court and judgment delivered accordingly. Also not in dispute is the fact that the appellant who is dissatisfied with that judgment has appealed to this court by filing a notice of appeal against the judgment in the consolidated suits. What is however in dispute is whether a party who is dissatisfied with a judgment in consolidated suits must file a notice of appeal or notices of appeal depending on the number of cases so consolidated. Learned counsel for the respondents/objectors has referred the court to and relied on the decision of this court in the case of Nwaeze v. Eze supra particularly at page 418 where this court held thus: "Moreover the appellant is supposed to file 2 separate notices, one for each decision on each petition... I am afraid the appellants in this case have failed to comply with the fundamental requirements of the law by filing incompetent and defective notice of appeal hence this constitutional court cannot determine the appeals as they are presently filed." It must however be noted that the filing of one notice of appeal instead of two as held above was not the only ground for the court finding that the notice of appeal was defective and therefore the appeal incompetent. In that case the notice of appeal did not exhibit all the names of the parties involved in the two petitions which were consolidated and heard by the tribunal. The persons directly affected by the appeal were also not named in the notice of appeal, whereas the orders made by the

12 Braimoh vs University of Ilorin 12 tribunal in respect of each petition directly affected all parties to the petitions. However, if Nwaeze's case supra were the only decision on the matter, it would have laid the matter to rest at this stage particularly as learned counsel for the appellant has produced no authority to the contrary. As it turns out, Nwaeze's case is not the only decision on j g the matter. The Supreme Court, in the case of Igwe v. Kalu (1993)4 NWLR (Pt.285) 1, was faced with a similar situation. In that case, the appellants who were plaintiffs in one of the consolidated suits Nos. HU/24/74 and HU/43/74 but defendant in the other, lost their claim for title, damages for trespass and injunction, while the respondents in the appeal won theirs. The appellants were aggrieved and appealed to the Court of Appeal. Meanwhile they filed a motion on notice praying the court for stay of execution of the judgment and injunction to restrain the respondents from alienating the land, the subject-matter of the consolidated suit or otherwise tampering with the same pending the determination of the appeal. The Court of Appeal granted the stay of execution but found no special or exceptional circumstances to warrant the interim order of injunction. The court went on to hold that the appellants had not appealed against the dismissal of the suit in which they were plaintiffs, so even if their appeal was allowed, they would not have a declaration of title in their favour. The appellants were dissatisfied with that ruling and appealed to the Supreme Court where one of the two issues decided is whether the Court of Appeal was right in holding that the appellants did not appeal against the dismissal of their suit (suit No. HU.J/24/ 74) and consequently would not have a declaration of title in their favour even if their appeal was allowed. In deciding the issue, the Supreme Court held at page 9 of the report, per Ogwuegbu, J.S.C. as follows: "The Court of Appeal misdirected itself when it held that the appellant did not appeal against the dismissal of suit No. HU/24/74 brought by them. It was the whole decision in the consolidated suits given by the learned trial Judge that the plaintiffs appeal against which if allowed would decree judgment in their favour and the decision in suit No. HU/43/74 will be set aside. There is no rule of law or practice requiring an aggrieved party in consolidated suits to file two notices of appeal if that is what the Court of Appeal meant in their ruling. The Court of Appeal was therefore clearly in error when it held that the appellants did not appeal against the dismissal of suit No. HU/24/74 in which they were plaintiffs." It must be noted that by the principles of stare decisis and judicial precedent, the Court of Appeal is bound by decisions of the Supreme Court. However, it is clear that the decision of the Supreme Court in Igwe's case was not cited nor referred So in Nwaeze's case decided by the Court of Appeal even though the Court of Appeal's decision is subsequent to that of the Supreme Court. It is therefore clear that the law on the issue is as decided by the Supreme Court in Igwe's case. However in the case of Ogundiran & Ors. v. Commissioner of Police & Ors. appeal No. CA/IL/28/2002 decided by the llorin Division of this court on Wednesday, llth June, 2003 I commented on Igwe 's case at pages 8 and 9 of the judgment, which comments I consider relevant and is reproduced hereunder as follows: "It has already been stated that the law requires individual judgments to be given in respect of each of the consolidated suits for such a judgment to be valid. It is also the law that appeals are normally against judgments or decisions of the court and are usually initiated by the filing of a notice of appeal - see Order 3 rule 2(1) of the Court of Appeal Rules. Now sections 241 and 242 of the Constitution of the Federal Republic of Nigeria, 1999 which are in pari materia with sections 220 and 221 of the 1979 Constitution provide that an appeal lies from the decisions of a High Court to the Court of Appeal while section 318 of the 1999 Constitution defines the word "decision" as: "decision" means in relation to a court any determination, decrees. Order, conviction, sentence or recommendation."

13 Braimoh vs University of Ilorin 13 When one considers the provisions of the law, it becomes very clear that the Supreme Court's decision in Igwe v. Kalu, supra, provides an exception to the general rule; particularly Order 3 rule 2(1) of the Court of Appeal Rules; to the effect that all appeals shall be brought by notice of appeal against the decision of the lower court. To say that since the appeal is against the "whole decision" in a consolidated case and as such a single notice of appeal is sufficient is to lose sight of the fact that separate decisions must be given in respect of each of the consolidated suits. So when you talk of the whole decision you are talking of the decision in respect of the case or suit on appeal not the two decisions in the consolidated suit. I am of the view that when an opportunity presents itself, the Supreme Court ought to revisit the decision in Igwe v. Kalu supra particularly as the foundation of all appeals is the filing of the notice of appeal. Or in the alternative we take it that the, decision in Igwe v. Kalu supra established an exception to Order 3 rule 2(1) of the Court of Appeal Rules where the case on appeal is a consolidated suit." Having regards to the law on the issue as handed down by the Supreme Court in Igwe v. Kalu supra, I find no merit in the preliminary objection which I accordingly overrule. The next question to be determined is: which is to be determined first, the cross-appeal or the main appeal? When one looks at the cross-appeal, it arose from preliminary objections touching and concerning the competence of the action as constituted and by extension the jurisdiction of the court to entertain them. The main appeal on the other hand concerns the judgment on the merits of the consolidated suits. It is my view that having regards to the nature of the appeals and the substance of their complaints the cross appeal be treated first and I hereby proceed accordingly. As stated earlier in this judgment; there is a single issue for determination in the crossappeal, which had been reproduced. In arguing the cross-appeal, learned counsel for the respondent/ cross-appellants stated that the cross-respondent filed two separate actions against the cross-appellants seeking the same reliefs- That while one was under the Fundamental Rights (Enforcement Procedure) Rules, the other was by writ of summons. That writ of summons was issued while the action for enforcement of fundamental rights subsisted. Counsel then submitted that the lower com wrongly overruled the objection of the cross-appellants. As regards the fundamental rights action learned counsel submitted that the main or principal reliefs sought therein was a restoration of the cross-respondent's studentship in the 3rd cross-appellant's institution. That the action was directed at his expulsion from the 3rd respondent and that the issue of fair hearing was therefore ancillary. Learned counsel then cited and relied on Turkur r. Government of Taraba State (1997) 6 NWLR (Pt. 53) 549 at : Egbuonu v. BRTC(1991) 12 NWLR (Pt. 510) 29 at 10-41; Nigerian Social Insurance Trust Fund Management Board v Adeniyi (1990) 13 NWLR (Pt. 633) 16 at 26. Turning to the case instituted by writ of summons leaned counsel submitted that that case was instituted in abuse of court process having regards to the parties and reliefs endorsed thereon. Counsel then referred the court to Suniki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at ; Shell Trustees (Nig.) Ltd. v. Imani & Sons (2000) 6 NWLR (Pt.662) 639 at Learned counsel further submitted that the order of court consolidating the two cases does not cure the fundamental defect of the subsequent case filed in abuse of court process. That the lower court misunderstood the decision of the Supreme Court in the case of Egbuonu v. BRTC supra because it is no authority for replication of reliefs in cases stemming from the same background learned counsel further submitted. That what the court decided in that case is that complaint bothering on breach of fundamental human rights should be the focus of the case filed on fundamental human rights while the case initiated by writ of summons should have as its focus, the other complaints outside the fundamental human rights breach. Counsel then urged the court to set aside the decision of the lower court on the preliminary objection and hold that the subsequent action was filed in abuse of court process and strike same out. He urged the court to allow the cross-appeal. On his part, learned counsel for the cross-respondent submitted that the lower court is right in

14 Braimoh vs University of Ilorin 14 overruling the objections of the cross-appellants. That the plank of the action under fundamental rights is the denial of the cross-respondent's right to fair hearing in the action leading to his expulsion from the University and therefore not an ancillary relief as claimed by the cross-appellant. That in any event the right of an individual to enforce his fundamental rights does not depend on a consideration as to whether the right breached is the main or principal cause of action or fundamental issue before the court, relying on the Court of Appeal decision in the case ofadeyanju v. WAEC (2002) 13 NWLR (Pt.785) 479 at ; WAEC v. Akinkunmi (2002) 7 NWLR (Pt.766) 327 at I had earlier in this judgment reproduced the five reliefs sought by the appellant under the Fundamental Rights (Enforcement Procedure) Rules. It is the law, as held by the supreme court in a long time of cases dealing with actions for enforcement of fundamental rights under the Fundamental Rights (Enforcement procedure) Rules that when an application is brought under that rule [condition precedent to the exercise of the court's jurisdiction is at the enforcement of fundamental right or the securing of the enforcement thereof should be the main claim and not an accessory claim. That where the main or principal claim is not the enforcement [[[securing the enforcement of a fundamental right, the jurisdiction 'the court cannot be properly exercised as it will be incompetent Turkurv. Govt. of Taraba State (1997) 6 NWLR (Pt.510) 549; Egbuonu v. BRTC (1997) 12 NWLR (Pt.531) 29. Thus where the court found that the main complaint of an applicant under the Fundamental Rights (Enforcement Procedure) tales was his deposition as the Emir or termination of his appointments, the alleged breaches of his fundamental rights to fair hearing, liberty and freedom of movement were merely ancillary to [primary complaint and therefore the adopted procedure declared inappropriate - see Turkur v. Govt. oftaraba State, supra and Egbnonu BRTC also supra. A close look at the reliefs claimed in the application under consideration reveals that the main complaint of the appellant in the application under the Fundamental Rights (Enforcement Procedure) rules is against his expulsion from the University of llorin. It is very clear that reliefs 1 and 2 have nothing to complain about breach fair hearing or enforcement of such. The same thing applies to reliefs 4 and 5. The only relief complaining of breach of fair hearing is relief No. 3. It is the law that where ancillary or incidental or accessory claim or claims are so inextricably tied to or bound up with the main claims before the court in a suit, a court cannot adjudicate over them there it has no jurisdiction to entertain the main claims if such incidental or ancillary claims cannot be determined without a termination at the same time of the main claims or where the determination of such incidental or ancillary claims must necessarily involve a consideration or determination of the main claims - see Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517; Tukur v. Govt.of Taraba State (1997) 6 NWLR (Pt. 510) 549; Egbuonu v. BRTC (1997) 12 NWLR (Pt.531) 29. In the present action, there is no way relief No.3 can be determined without a determination if claims 1, 2, 4 and 5 in the application. I therefore agree with the submission of learned counsel for the cross-appellant that the application under the Fundamental Rights (Enforcement Procedure)' Rules for the reliefs claimed is incompetent and liable to be struck out. I hold accordingly. On the issue of abuse of process regarding the filing of the second action during the pendency of the application under the Fundamental Rights (Enforcement Procedure) Rules, there is no' dispute as to the parties in the two cases being the same. Also not disputed is the fact that the subject-matter or issue between the parties in the two cases are the same. The question then is, what is an abuse of court process? It has been held by the courts that the concept of abuse of court process is imprecise. That it involves circumstances and situations of infinite variety and conditions. However it has a common

15 Braimoh vs University of Ilorin 15 feature in improper use of the judicial process by a party in litigation to interfere with the due administration of justice. The abuse may, however lie in both proper or improper use of the judicial process in litigation. However, the employment of judicial process is only regarded as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. For instance, where a party institutes multiple actions on the same matter between the same parties even where there exists a right to bring the action. The abuse is not in the exercise of the right per se but in the multiplicity and manner of its exercise. The abuse is said to consist in the intention, purpose and aim of the person exercising the right to harass irritate and annoy the adversary, and interfere with the administration of justice, such as institution of different actions between the same parties simultaneously in different courts, even though on different grounds - see Okorodudu v. Okommadii (1977) 3 SC 21; Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156. In all relevant cases the general rule or principle is that an abuse of the process of the court is constituted when more than one suit is instituted by a plaintiff against a defendant in respect of the same subject-matter. Therefore for an action to be declared frivolous, vexatious, oppressive and an abuse of process of court, it must be shown there are two or more actions between the same parties in respect of the same subject-matter in either one or more courts at the same time. See N.V. Scheep v. M.V. "S. Araz" (2000) 15 NWLR (Pt.691) 622; Ikine v. Edjerode (2001) 18 NWLR (Pt.745) 446; A.-G, Ondo State v. A.-G., Ekiti State (2001) 17 NWLR (Pt.743) 706; Doma (1999) 4 NWLR (Pt.598) 311; Bcmtplaslic v. Vasilycv (1990) 10 NWLR (Pt.624) 620. Learned counsel for the cross-respondent has referred the court to the case of Egbuonu v. BRTC supra particularly the comment of Uwais, CJN at page 41 of the report as his authority for instituting the two actions. The learned CJN staled as follows: "It would appear that where a set of facts or cause of action gives rise to multiple causes of action including a breach or threatened contravention of a fundament right under the Constitution, the party so affected, as plaintiff would have to bring two different actions at the same time. One of such action by a writ of summons according to the provisions of the High Court (Civil Procedure) Rules and the other by a motion c\ parte in accordance with the provisions of the Fundamental Rights (Enforcement Procedure) Rules, Cap. 62. If it is done in the same High Court, it would perhaps be possible to have the case consolidated. It is my considered view that the situation envisaged by the learned CJN is different from the facts of this case. In the first place what the learned CJN said is clearly obiter the ratio in that case being that an action for wrongful dismissal from employment cannot be brought under the Fundamental Rights (Enforcement Procedure) Rules and that where an ancillary claim is so inextricably tied to or bound up with the main claim before the court, the court cannot adjudicate over them where it has no jurisdiction to entertain the main claim. It is therefore my view that Egbuomt 's case is no authority for the proposition that instituting two or more actions between the same parties on the same subject-matter and facts is no longer an abuse of court process. Therefore looking at the facts of this case as relevant to the issue under consideration which have not been disputed, and considering the law on the matter, I am of the firm view that suit No. HC/IL/CS/10/2002 which was instituted by the cross-respondent during the pendency of suit No. FHC/II./M. 1/2002 against the cross-appellants on the same subject-matter and which were