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(IJEBU-ODE HIGH COURT, ODUNSI, J. 22/6/83 – M/19/82) FACTS

The Ogun State Ministry of Education, Abeokuta published in a national daily the purported expulsion of some students from Ijebu-Ode Grammar School and the disallowance of the students from sitting the G.C.E. (ordinary level) examinations.

HELD

(1) The school authorities were not under any obligation to address invitation to the offending students in writing. The announcement in the school assembly that they should make themselves available was sufficient.

(2) There ought not to be any variation in the offence for which the students were accused and tried (in their absence) and the offences for which the Principal recommended their suspension to the Ministry of Education.

(3) It is against the principle of natural justice that the accusers should take part in the trial of the students.

(4) The decision to expel the three students from school was taken in breach of the rules of natural justice and is null and void and of no effect.

JUDGEMENT

Odunsi, J. – On 17th May, 1982, the applicants filed a motion ex-parte under Order 1 Rule 2 (1) of the Fundamental Rights (Enforcement Procedure) Rules 1979 seeking leave to apply by originating summons for certain reliefs. The application arose out of a decision of the Ogun State Ministry of Education, Abeokuta published in the Nigerian Tribune Newspaper of 13th April, 1982 purporting to expel certain students from Ijebu-Ode Grammar School and disallowing those students from sitting the General Certificate of Education (Ordinary Level) examinations. On 18^th May, I granted the applicants’ leave to apply as prayed and I also ordered a stay of all action relating only to the exclusion of the students affected from the G.C.E. O/Level

129 examinations. Each of the applicants sued as the next friend of the student concerned.

The respondents to the summons as filed are: (1) Mr. Kehinde, Principal, Ijebu-Ode Grammar School, (2) Mr. S.O. Adelaja, Inspector of Education and (3) the Commissioner for Education, Ogun State.

Presenting his case, Mr. Adebayo, Learned Counsel for the applicants stated that the application was brought under Order 1 Rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules 1979. The applicants seek five reliefs in each case and there is an affidavit of 12 paragraphs:

Ground (a)

A declaration that the decision to expel the applicants for the offence alleged, as contained on page 6 of the issue of the Nigerian Tribune of 13/4/82 was made in contravention of the fundamental rights of the applicants as guaranteed under Section 33 of the Nigerian Constitution of 1979.

Mr. Adebayo submitted under this ground that the students were never formally accused of any offence and that they were not allowed to state their case or to call witnesses. There is a counter-affidavit sworn to by Mr. O. Odueko (Vice-Principal, Ijebu-Ode Grammar School) on 2^nd June, 1982; the two averments of the applicants in the said paragraphs 10 and 11 were not controverted in that counter-affidavit or anywhere else. What Mr. Odueko said in paragraph 6 of his counter-affidavit is that the students disappeared from the school after their occasional misconduct.

This, according to Mr. Adebayo, meant that the school authorities knew that the students were not in the school at the time they, (the school authorities) according to paragraph 7 of the affidavits were announcing that the students should come forward. Mr. Adebayo said that the school authorities should have sent written invitations to the students through the addresses of their parents and that since this had not been done, the decision to expel them without hearing their defence is contrary to the rules of natural justice. He cited (1) Stephen O. Adedeji v. Police Service Commission (1968) N.M.L.R. 102 in support of his contention that the students were entitled to know the names of their accusers and the allegations made against them.

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Mr. Bakare’s answer to this submission is that since, as deposed to in Mr. Odueko’s counter-affidavit, announcements were made in the school assembly, the students have themselves to blame if they did not attend the regular assembly and thus put themselves in a position in which they could not hear announcements made there. I accept Mr.

Bakare’s submission and I do not think that the authorities of the school were under an obligation to address invitation to the culprits in writing since it was announced in the school assembly that they should make themselves available.

Ground (b)

The decision was also contrary to the rule of natural justice of “nemo judex in causa sua” in that Mr. A. Kehinde (Principal) who is one of the accusers conducted the alleged investigation and also recommended the punishment.

Mr. Adebayo’s submission on this head however, is that as contained in paragraph 10 of Mr. Odueko’s counter-affidavit, the disciplinary committee set up to investigate alleged students’ indiscipline and insubordination found the students to be persistent truants and members of a terror group formed to molest both staff and students of the institution as contained in Exhibit “B”, that is, the minutes of the disciplinary committee meetings.

A look at Exhibit “B” shows the column "Role played by the boys", that Rasidi Bakare was accused of smoking and abusing V. P. II as well as the games master, Mr. Odesanya. Monsuru Otitoju was accused of

“fighting an R.S.S. student” whilst Fatai Awojobi’s name does not appear at all in that portion of Exhibit “B” dealing with the role played by the boys. However, in the same Exhibit “B” where the letter of the Principal of the School, Mr. A. Kehinde appears, he recommended to the Ministry of Education the indefinite suspension of 21 boys including the three involved in this application and their withdrawal from taking the June 1982 G.C.E. examination through the school. The names of the boys and their offences as stated by the Principal are as follows:

(1) Rasidi Bakare: persistent truancy, forming a terror group, destruction of school properties, rioting against R.S.S. students and smashing their school vans. Refusal to take punishment from the school principal.

(2) Monsuru Otitoju: rioting against R.S.S. students, smashing their school vans and refusal to take punishment from the Principal

131 (3) Fatai Awojobi: ganging to fight and riot after football match,

persistent truancy and refusal to take punishment.

The last named is the student whose name does not appear in the minutes of the disciplinary committee meeting, as already stated. Mr.

Adebayo submitted that the obvious differences in the role the disciplinary committee said that the boys played and what the Principal conveyed to the Ministry of Education are enough to render the decisions null and void.

Mr. Bakare said that the role alleged to have been played by the students as contained in the minutes of the disciplinary committee meeting differs from what would appear to be the offences for which the principal recommended their suspension but he added that the incessant student troubles in the school as contained in Exhibit "C" formed the basis of the principal's recommendation. I do not see how incessant troubles into which it does not appear any enquiries were held could justify the variations between the offences for which the students were accused and tried (in their absence, rightly in my view), and the offences for which the Principal recommended their suspension to the Ministry of Education.

A more serious irregularity was the fact that the Vice Principal II and Mr. Odesanya whom Rasidi Bakare was accused of abusing were Chairman and member respectively of the disciplinary committee. Mr.

Oyekan, a member of the committee also testified for what may loosely be called “the prosecution.” Mr. Bakare agreed that this was irregular but he submitted that a Court of law should be able to vary the ambit of the rules of natural justice according to circumstances.

I am of the view that the maxim “nemo judex in causa sua” has been breached and that for this reason, the decisions of the Ministry of Education complained against cannot stand. The applicants also complained in Ground D that although the names of three other students – Segun Adeusi, Egbus Moses and Kolawole Oduwole were recommended for suspension in the Principal’s letter (Exhibit C) these names do not appear in the press notice of the Ogun State Ministry of Education in which the names of the expelled students were published;

the applicants therefore alleged bias. Mr. Odueko’s counter-affidavit is completely silent about this allegation.

It seems to me that the decision to withdraw the students from taking the G.C.E. O/L examination through the school (which is the complaint in Ground C) followed as a corollary to the recommendation for their indefinite suspension. The Ministry of Education decided instead to expel the students. Since as I have found, some of the complainants sat

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on the disciplinary committee, which investigated the complaints against the students and at least two of these “judges” also gave evidence against the students, it is my view that the students are entitled to the reliefs which the applicants seek on their behalf.

I therefore hold that the decision to expel the three students affected by this application (Monsuru, Otitoju, Rasidi Bakare and Fatai Awojobi) from Ijebu-Ode Grammar School as contained in the publication on page 6 of the Nigerian Tribune of 13th April, 1982 aforesaid was taken in breach of the rules of natural justice and it is accordingly declared null and void, and of no effect.

The said order is hereby set aside.

The other decision to disallow the three students from sitting for or taking part in the June, 1982 G.C.E. O/L examination announced on the 13th May, 1982 is also hereby set aside.

All servants, agents or representatives of the Ijebu-Ode Grammar School and/or the Ministry of Education, Ogun State are hereby restrained from carrying out or otherwise giving effect to the said decision.

Constitutional Law – Expulsion of Students – Right to Fair Hearing. In exercising administrative powers and discipline, enforcement of fundamental rights and approved procedures must be observed

OLAJIDEODUTOLA ODUSI (Master) Applicant (Suing by his friend Madam Modupe Odusi)

v.

1. The PRINCIPAL (A. KEHINDE, IJEBU-ODE GRAMMAR SCHOOL)

2. S. O. ADELAJA, CHIEF INSPECTOR OR EDU., Respondents OGUN STATE

(IJEBU-ODE HIGH COURT, SOGBETUN, J. 7/782)

FACTS

The applicants in the consolidated actions misbehaved and they were expelled and barred from taking the 1982 GCE 'O' Level. The panel that tried them consisted of two people who testified as witnesses. The applicants were never formally accused of any offence nor were they allowed to state their case.

133 HELD

(1) The right to fair hearing cannot be brushed aside in the determination of the civil rights of a citizen, except it is so specifically provided for by the law.

(2) It is contrary to the principles of natural justice for a witness in a matter to sit as a member of the investigation panel sitting in judgement over the applicants.

(3) The school is only conduit pipe used by the students to register for the examination.

(4) There is privity of contract between the students and WAEC.

JUDGEMENT

Sogbetun, J. – The learned counsel for the applicants in the above-mentioned cases under Order 1 Rule 2(1) Fundamental. Rights (Enforcement Procedure) Rules 1979 requested for leave to apply by originating summons for the following reliefs:

• “(a) A declaration that the decision or purported decision to expel the applicants as students of Ijebu-Ode Grammar School as contained on page 6 of the issue of the Nigerian Tribune of April.

13, 1982 is unconstitutional, null and void and of no effect.

• “(b) An order setting aside the said decision.

• “(c) An order setting aside the further decision of disallowing the applicants from sitting for or taking part in the June 1982 GCE

"O" Level Examination commencing on the 13th day of May, 1982.

• “(d) An order restraining all servants, agents or representatives of Ijebu-Ode Grammar School or Ministry of Education, Ogun State or any other person or persons acting on the said decision from giving effect to or otherwise implementing the decision aforesaid.

• “(e) An interim order under Section 20 High Court Law and Inherent Powers of the High Court restraining the functionaries, servants or agents of Ijebu-Ode Grammar School or Ministry of Education, Ogun State or any other person or persons acting on the said decision from giving effect to or otherwise implementing the decision complained about pending the final determination of the substantive application in this matter.”

After a formal argument before me the application was duly considered and an interim order was accordingly made in the first instance against Ijebu-Ode Grammar School. Subsequently an application was brought

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by learned counsel to the respondents urging me to rescind my former order because Ijebu-Ode Grammar School is a non-juristic person. Due consideration was given to this argument and I found legally that Ijebu-Ode Grammar School is a non-juristic person. My former order was therefore rescinded.

But in the interest of justice, I felt an interim order must be granted against the respondents as disclosed above to enable the Court to consider the substantive issues involved in the originating summons.

This interim order was therefore granted on the 24th June, 1982 restraining the respondents or any other person or persons acting on the decision complained of by the applicants pending the final determination of the substantive action.

The learned counsel for the applicants said that the decision to expel the applicants for the alleged offences as contained on page 6 of the issue of the Nigerian Tribune on 13th April, 1982 was made in contravention of the Fundamental Rights of the applicants as guaranteed under Section 33 of the Nigerian Constitution of 1979. He explained further that the applicants were never formally accused of any offence and they were never allowed to state their cases or call witness if any. He argued further that the expulsion preceded a trial of the applicants for the offences allegedly committed which, according to him, is wrong in law and contrary to principles of natural justice. From the documents exhibited by the respondents, there is no proof that this procedure was followed and the actual offences were not stated. Furthermore, the evidence was not stated. All these according to him are contrary to the rule of natural justice. The names of eight persons were mentioned as members of Investigating Panel and five witnesses were named. There it was mentioned that seven boys and one boy from Adeola Odutola College were involved in vandalistic act. He stressed that there is no evidence that the students were present at the panel to defend themselves.

According to him the minutes were signed by the chairman and not by the secretary, and this in his view is irregular. See Ridge v. Baldwin (1964) A.C. 40 at 125. He argued that in exercising administrative powers roles governing Fundamental Rights must be observed, but he regretted that in these cases the rules have not been observed.

Furthermore, he argued that some of the people who served as members of the Investigating Panel such as Mrs. S. O. Oyekan and T. A.

Odesanya were also witnesses. Therefore he added they acted in two capacities: firstly as judges and secondly as witnesses. This, according to him, is contrary to the principles of natural justice.

135 Learned counsel also argued that the school authorities have no right to terminate the contract between WAEC and the students because the students paid personally to sit for the examination and the school is just an agent or servant in respect of the transaction. He argued that it is only WAEC that can terminate the contract between it and the students if the students are found guilty of malpractices.

Furthermore, the Ijebu-Ode Grammar School and/or Ministry of Education unilaterally withdrew certain names from the list of candidates suspended and some of those suspended, now were never on the original 1ist. That as a matter of fact gave rise to doubt as to the sincerity of the whole exercise. He stressed that the likelihood of abuse vitiates the exercise of expulsion and makes it null and void.

Learned counsel also said that Exhibit “C” attached by the respondents to the counter-affidavit says the Principal has the right to discipline. He argued that this right must be exercised within the limit of the law.

Section 32 of the exhibit states the details of the power. He maintained that the slightest defect or irregularity in the exercise of the power will vitiate the whole exercise of dismissal or suspension. He argued that the Principal did not do what he ought to do according to law and regulation. He therefore asked me to quash the suspension and dismissal. In support of this contention he also directed my attention to the case of Adeigbe v. Salami Kusimo (1965) N.M.L.R. 284.

Learned counsel for the respondents on the other hand says that the totality of the argument and submission of learned counsel to the applicants is not that offences have not been committed but that such offences have not been properly tried.

In his own opinion, the school authorities not being judicial officers have done their best in the circumstances. He argued that if the Court feels that the school authorities have done their best in the circumstances the Court can refuse to interfere especially where the outcome could have been different if natural justice has been fully observed.

The principle of audi alteram partemis subject to complexity. Even though the procedure has not been followed, the students should still be punished in a way so as not to defeat the end of justice. In his opinion, law and morality must go pari passu and the school must be given the residual power to punish so as to serve as a deterrent to other students.

He urged that variation of punishment could be ordered by the Court.

The whole of the argument of learned counsel to the applicants revolves round Fundamental rights relating in particular to right to fair hearing. It can not be over-emphasised that the Court of Law is established to guard

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jealously against the civil rights of every citizen and to enforce at all times the inalienable right to fair hearing. Section 33 of the Constitution of the Federal Republic of Nigeria 1979 states very clearly that this right to fair hearing cannot be brushed aside in the determination of the civil rights of a citizen except it is so specifically provided for by the law.

It is in compliance with this provision of the Constitution that Section 32(1) (i) of Exhibit “C” attached to this affidavit of the Principal, provides in part that “the governors may expel a student provided: the student is allowed to state his case in writing to the governors.” There is no evidence that this procedure was ever followed in these cases.

I agree entirely with the submission of learned counsel to the applicants that the students were not given fair hearing as provided by the law and the principles of audi alteram partem were never observed. It is my view that these principles can never and must never be released in order to ensure that justice is done at all times.

It has been established without any contradiction that some of those who were witnesses in this matter also sat as members of the Investigating Panel sitting in judgement over the applicants. This as a matter of fact is contrary to the principles of natural justice. This situation cannot by any imagination be regarded as fair trial especially when one considers that the punishment meted out to the students is a grave one.

Even though the school authorities might have done their best in the circumstances, this being a Court of Law and not Court of Moralist, the principles of law cannot be compromised or administered half way. Not only must justice be done it must be manifestly seen to have been done.

Exhibit “B” attached to the counter-affidavit of the first respondent showed that the Investigating Panel finished its work on 4th November 1981, but the Ministry of Education did not do anything about this report until about four months thereafter – 30th March, 1982. This in my view is not in keeping with the spirit of the provisions of Section 32(1) of Exhibit “C” which deplore delay.

If prompt action had been taken by the Ministry of Education as expected that might have given the applicants (the students) the opportunity to register for their examination with WAEC as private students. Perhaps the authorities concerned in future would guard against such delay. There is no doubt about it that the students simply used the school as a conduit pipe to register for the examination and there is privity of contract between the students and WAEC only.