💎 CASE SUMMARY OF:
Yesufu Amuda Garba & Ors. v. The University Of Maiduguri (1986) – SC
by “PipAr” B.C. Chima
Mr Yesufu Amuda Garba & Ors.
The University Of Maiduguri
(1986) 1 NWLR (Pt.18) 550
💎 LEAD JUDGEMENT DELIVERED BY:
Andrews Otutu Obaseki, JSC.
💎 LAWYERS WHO ADVOCATED
FOR THE APPELLANT
– Chief Gani Fawehinmi
FOR THE RESPONDENT
– Chief FRA Williams
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 9.00pm followed by demonstrations, 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. The students were thus expelled.
Following their expulsion, the appellants initiated in the High Court of Justice of Borno State of Nigeria, Maiduguri Judicial Division at Maduguri, the proceedings which led to the appeal by the Respondent to the Court of Appeal and a further appeal by the now 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 laid down under and by the Fundamental Rights (Enforcement Procedure) Rules, 1979.
1. Whether the appellants established a breach of section 33(1) of the 1979 Constitution?
2. Whether the High Court was competent to entertain the action?
💎 HOLDING & RATIO DECIDENDI
1. On issue 1, the Supreme Court held, “It is therefore my firm view that the fundamental right of the appellants to fair hearing within a reasonable time by a Court has been violated by their being punished for criminal offences without a preceding trial and conviction by a Court.”
RATIO: IN APPELLANT’S FAVOUR.
i. The rules of natural justice must be observed in any adjudication process by any court or tribunal established by law. When the Vice-Chancellor assumed the disciplinary powers under section 17 of the Act, he became not a court but a tribunal established by law acting in a quasi-judicial capacity. See Glynn v. Keele University and Another (1971) 2 All E.R. 89 Ch D. But he was not independent and not impartial. When he delegated his disciplinary powers to the Disciplinary Board, the Disciplinary Board became a tribunal bound to observe all the rules of natural justice. But the Board was not independent and some of the members not impartial. It is my opinion that when they undertook to investigate the crimes, identify those involved and who participated and their roles and apportion blame and recommend suitable disciplinary measures to be taken against them, they were carrying out judicial functions. They were to carry out a trial of the appellants for crimes committed. That was not a matter of internal discipline. The crimes were in respect of the properties of the universities. They were crimes against State.
Having assumed judicial functions, they were bound to pass the qualification test to assume the judicial functions and were bound to act judicially and comply with the constitutional requirements of fair hearing.
2. The Supreme Court granted issue 2 in favour of the Appellant.
i. The competence of the High Court to entertain the claims has constitutional basis in section 42 of the 1979 Constitution.
That section reads:
“Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that State for redress.”
It cannot be disputed that this section confers jurisdiction on the High Court of Borno State to entertain appellants’ complaints of violation of their fundamental right under section 33(1) and (4) of the Constitution and grant redress for such violation.
S.33 of the Constitution Federal Republic of Nigeria 1979;
Section 42 of the Constitution Federal Republic of Nigeria 1979;
Section 17 of the University of Maiduguri Act 1979.
💎 SOME PROVISIONS
💎 NOTABLE DICTA
⦿ THE WORD “CULPRIT” SIGNIFIES GUILT
The use of the term culprits implies a finding of guilt and any finding of guilt without a trial is a breach of all the rules of natural justice. The Investigating panel is therefore turned into prosecutor, witness and judge. – Andrews Otutu Obaseki, JSC.
⦿ ANYONE CHARGED OF A CRIMINAL OFFENCE MUST BE GIVEN FAIR HEARING
Assault is an offence under section 265 of the Penal Code. Stealing or theft is an offence under sections 287 and 288 of the Penal Code. Robbery is an offence under section 298 of the Penal Code. House Trespass is an offence under section 352 of the Penal Code. Arson or mischief by fire is an offence under section 337 of the Penal Code. These are all serious offences, which carry heavy punishment under the Penal Code. Any person found guilty of any of them will have his reputation and name tarnished and stigmatised for life. It is therefore clear why the right to fair hearing within a reasonable time by a court or tribunal is given to any person charged. – Andrews Otutu Obaseki, JSC.
⦿ CRIMINAL ALLEGATIONS ARE NOT TO BE TREATED AS INTERNAL AFFAIR OF A UNIVERSITY
It should be observed and noted that students in all our universities and institutions of higher learning are not above the law of the land and where obvious cases of breaches of our criminal and penal laws have taken place, the authorities of the university are not empowered to treat the matter as an internal affair. Both the students and the authorities of the universities owe the nation a duty to observe the laws of the land and avoid injustice to anyone. Without subjecting any criminal allegation against any student to the machinery provided by the state for ascertaining the truth of the allegation, a very painful denial of fundamental right is inflicted on the students howbeit laudable or sympathetic the intention of the authorities might be. – Andrews Otutu Obaseki, JSC.
⦿ NON OBSERVANCE WITH RULE OF LAW IS A WASTE OF HUMAN RESOURCES
Ours is not a perfect society but our imperfections can be eradicated by our observance of the rule of law. Our human resources are our greatest asset and unless we use them to advantage, the Nigerian nation will be the loser. We cannot afford to lag behind while other nations march forward and enjoy the full benefit of their developed human resources. – Andrews Otutu Obaseki, JSC.
⦿ ONLY COURT OF LAW CAN PASS GUILT OF AN OFFENCE
A university student is a priceless asset and as he is on the threshold of useful service to the nation, we cannot afford to destroy him by stigmatising him with offences unless proved guilty before a Court. – Andrews Otutu Obaseki, JSC.
⦿ ONE CANNOT BE A WITNESS AND A JUDGE AT THE SAME TIME
This submission is incontestible. The Deputy Vice-Chancellor cannot be a witness and a judge all at the same time. The likelihood of bias is a necessary inference from the assumption of the two positions. – Andrews Otutu Obaseki, JSC.
⦿ AN OFFICE CREATED CANNOT HAVE MORE POWER THAN THAT GIVEN IN THE STATUTE
It is well to remember and bear in mind that the offices are creations of the various founding statutes promulgated by the various legislatures and cannot have more powers than those given and set out in the statutes. – Andrews Otutu Obaseki, JSC.
⦿ LIBERAL CONSTRUCTION SHOULD BE GIVEN TO CONSTITUTIONAL INTERPRETATION
It is that the provisions of the Constitution are to be given liberal construction so as to best carry out the intention of the founding fathers. Their construction is not to be guided by the construction of other constitutions in other common law jurisdictions unless similar provisions in pari materia were in question. This Court will not give to any provision of the Constitution a construction, which will defeat its obvious intention. – Andrews Otutu Obaseki, JSC.
⦿ PRIVATE & STATE PROSECUTION OF CRIMINAL CASES ARE UNKNOWN TO OUR LAWS
I cannot on close examination of the text of the two subsections, discover any limitation of the protection granted to protection of the freedom from unfair hearing against the action of the state unless every person or authority performing quasi-judicial function is regarded as the State. Private prosecutions and state prosecutions of criminal cases are not unknown under our law. Similarly, institution of civil actions are not confined to private persons. Governments and other authorities are known to file civil claims in our courts. Indeed, the judicial powers vested in the courts by section 6 of the Constitution has been defined in subsection 6(b) as extending to all matters between persons, or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto for the determination of any questions as to the civil rights and obligations of that person. – Andrews Otutu Obaseki, JSC.
⦿ RULES OF NATURAL JUSTICE MUST BE OBSERVED
The rules of natural justice must be observed in any adjudication process by any court or tribunal established by law. – Andrews Otutu Obaseki, JSC.
⦿ DISCIPLINARY PANEL CANNOT TRY OFFENCES IN THE CRIMINAL/PENAL CODE
The trial of erring students for criminal offences or breaches of the criminal code and penal code Laws are not within the jurisdiction conferred. Accordingly the purported investigation by the Investigating Panel and Disciplinary Board and the punishment meted out to the appellants cannot stand and are hereby declared a nullity … It is in the interest of the Government and every individual in this country that the guilt of crime should not be tagged on to any individual without a proper trial in courts of law known as such under the Constitution of the Federal Republic of Nigeria. – Andrews Otutu Obaseki, JSC.
⦿ IT IS BETTER TO ERR IN THE SIDE OF LIBERALISM WHEN INTERPRETING CONSTITUTION
It would be safer for the courts in this country to err on the side of liberalism whenever it comes to the interpretation of the fundamental provisions in the Constitution than to import some restrictive interpretation. – Kayode Eso, JSC.
⦿ IN HIGHER INSTITUTION, IF PUNISHMENT TO BE IMPOSED IS SEVERE, THERE MUST BE NATURAL JUSTICE
It seems fairly settled now that the exercise of disciplinary powers may import a power to act judicially in accordance with natural justice. In higher educational institutions, if the penalty imposed or liable to be imposed is severe, the disciplinary proceedings have to be in accordance with the principles of natural justice. – Nnamani, JSC.
⦿ NATURE OF AUDI ALTERAM PARTEM
The audi alteram partem rule stipulates that each party must be given an opportunity of stating his case and answering if he can any arguments put forward against it. See Cooper v. Wandsworth Board of Works 14 C.B. (N.S.) 180. The rule requires that a person liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so as to give him an opportunity to make representations, and effectively prepare his own case and to answer the case he has to meet. It is therefore essential that the person involved be given prior notice of the case against him so that he can prepare to meet that case. – Nnamani, JSC.
⦿ ONE MUST BE GIVEN THE CHANCE TO EXCULPATE HIMSELF
It is my considered view that after the Disciplinary Investigation Panel had completed its investigation, each of such students against who disciplinary action was contemplated must be informed of the available evidence against him and in addition given reasonable opportunity of exculpating himself. It is essential that in the exercise, the Vice Chancellor must observe the principles of impartiality and fairness. – Coker, J.S.C.
⦿ STUDENTS SHOULD USE LEGAL MEANS TO SECURE REDRESS
This is a sorry catalogue of very serious criminal offences with which University students – our future leaders – should not be involved at all. No word from this Court will be too strong to condemn and deprecate this misconduct and lawlessness. They run counter to the letter and spirit of our current war against indiscipline. Students may have their grievances and it is part of the discipline of their University training to use only legal means to secure redress. This they failed to do. The students were wrong, very wrong, to have gone on a rampage. – Oputa, J.S.C.
TWO WRONGS DO NOT MAKE A RIGHT – GARBA’S CASE
As the students were wrong in going on a rampage, the University Authorities will on their own part be wrong in using means other than those allowed them by law in dealing with the disturbance. Two wrongs, they say, do not make one right. – Oputa, J.S.C.
⦿ A TRIAL IS A TEST OF FACT IN ISSUE
A trial is merely the finding out by due examination of witnesses or documents or both, the truth of a point in issue of a question in dispute whereupon a finding is made or judgment is given … A trial is a step in an action, prosecution or other judicial proceeding by which the questions of fact in issue are decided. – Oputa, J.S.C.
⦿ NATURE OF FAIR HEARING
It is my humble view that fair hearing implies much more than hearing the Appellants testifying before the Disciplinary Investigation panel; it implies much more than other Staff or Students testifying before the Panel behind the backs of the Appellants, it implies much more than the Appellants being “given a chance to explain their own side of the story.” To constitute a fair hearing whether it be before the regular Courts or before Tribunals and Boards of Inquiry, the person accused would know what is alleged against him; he should be present when any evidence against him is tendered; and he should be given a fair opportunity to correct or contradict such evidence. How else is this done, it be not by cross-examination? If these Tribunal or Boards, or Panels know that they cannot do all these, then, they should leave these trials to the law courts. – Oputa, J.S.C.
⦿ LACK OF FAIR HEARING AND JURISDICTION VITIATES PROCEEDINGS
The proceedings before the Disciplinary Investigation Panel in this case are vitiated from two angles. Firstly the Panel lacked the constitutional and legal competence to undertake the inquiry and arrive at a conclusion that the Appellants were the culprits in serious criminal offences of Arson, Malicious Damage and Indecent Assault. Secondly, the incompetent inquiry which it conducted was further vitiated by its failure to accord the appellants fair hearing either under the rules of natural justice or under the provisions of Section 33 of the 1979 Constitution. – Oputa, J.S.C.
In paragraph 11 of his Counter Affidavit quoted above, the Principal Assistant Registrar (Student Affairs) University of Maiduguri deposed that “the procedure adopted by the Panel in carrying out its investigation aimed at justice and fair play.” It is one thing to “aim at” but it is an entirely different thing to succeed in hitting the target. With the best intentions in the world, the Panel missed the target of each of the twin pillars of natural justice which in our special circumstance is not only a common law requirement but also a constitutional right guaranteed to the Appellants by Section 33 (1) and (4) of the 1979 Constitution. – Oputa, J.S.C.