Reprieve came the way of all students in Nigeria, from the Court of Appeal, Akure Division, on July 11, 2016, when the court, in a unanimous decision, held that students can properly challenge unlawful expulsion or rustication from their respective institutions in court, through the fundamental rights procedure, if such expulsion or rustication also violates any right granted under the Constitution.
Before now, the view of the courts has been to the effect that students who are victims of unlawful expulsion, especially students’ union leaders, can only challenge such expulsion by filing a normal writ of summons in court and not through the faster and more convenient procedure of fundamental rights actions.
In this case, the appellant, Mrs. Morayo Bayo-Philip, enrolled as a student of the Adekunle Ajasin University, Akungba Akoko, in 2008, to undertake a postgraduate diploma program in public administration, following her admission. She paid all the necessary fees for her studentship and course work and she took lectures at the University’s campus situate at Iju, Ita-Ogbolu, in Akure. She wrote her 1st semester examinations in 2008 and the second semester examinations in 2009.
In or about June 2012, she received several calls from friends, family members and colleagues about a publication in the Punch newspaper said to have been authored by the University. The said publication was dated 13th of June 2012, and it purportedly expelled her from the 1st respondent on grounds of examination malpractice. She was never informed by the University and was not invited to appear before any panel at all.
Consequently, the appellant through her counsel, Ebun-Olu Adegboruwa, filed an action at the Federal High Court, Akure, to which the University filed a preliminary objection, contending that the action could not be maintained under the fundamental rights procedure, since it relates to her expulsion as a student.
On March 13, 2014, the Federal High Court upheld the preliminary objection of the University and struck out the suit, consequent upon which the appellant appealed to Court of Appeal. In a unanimous decision, the Court of Appeal allowed the appeal and directed that the case be transferred back to the Federal High Court, for hearing de novo.
In the main case, the appellant contended that she was entitled to be heard by the University in the determination of her rights and obligations as a student of the University and that any failure to hear her constitutes a flagrant violation of her fundamental rights.
She then asked the court to set aside all decisions taken in violation of her right to fair hearing. On the other hand, the respondent University maintained the position that as long as the claims of the appellant relate to her studentship, the procedure stipulated under the Fundamental Rights (Enforcement Procedure) Rules could not avail her.
In disagreeing with the University, the Court of Appeal held that by no means will a court seised with jurisdiction decline such jurisdiction, as that will be akin to the court abdicating its powers. The court, in its lead judgment delivered by the Hon Justice Mohammed A. Danjuma, JCA, held further that it is for the party to ask of the court such reliefs that are beneficial to it and lawful to extract from the court and that the right or jurisdiction to hear a matter is not defeated by the non compliance with the rules of procedure or practice.
“The principal relief or claim was the infringement of the right of fair hearing and it must take precedence over the right subject, whether land or studentship, if the claim is not in the main raised on the list. The gate of justice cannot be closed or shut in the beckoning face of the appellant who has an uncanalysed license by the fact of the phrase in Section 46 of the 1999 Constitution.
The learned respondent’s counsel is of the view that the court would only have jurisdiction where the application strictly complies with the enforcement procedure rules and also that declaratory reliefs are not enforceable and so not principal reliefs.
That is not with due respect, any longer the current trend in the administration of justice .... The appellant alleges ‘non service’ of any process or notice on her before the sessions and decision by the respondents rusticating her on the grave criminal allegation of examination malpractices. It is that violation of the right of fair hearing that offends the principle of audi alteram partem. A threat to her freedom or liberty from arrest and prosecution and detention.
A threat to a reputation from violation. It is a constitutional requirement that such rights be protected.”
The Court of Appeal concluded that “where the infringement amounts also to a tort and the facts are such that can independently sustain a claim for damages resulting from such injury, it will be depriving the citizens of the right of action legitimately due to him if the only remedy he gets is the quashing of the illegal order constituting the infringement.”
This judgment has opened the frontiers for students to challenge their unlawful rustication or expulsion from the university, where there is manifest violation with any of the rights guaranteed under Chapter 4 of the Constitution.