SUG HIGH COURT RULING IN THE MATTER BETWEEN THE SUG PRESIDENT NSUKKA AND THE HOUSE OF REPS
IN THE
HIGH COURT OF THE STUDENTS’ UNION GOVERNMENT
IN THE
UNIVERSITY OF NIGERIA JUDICIAL DIVISION
HOLDEN
AT ENUGU CAMPUS
ON
TUESDAY, 17TH DAY OF JUNE, 2014.
BEFORE
HIS LORDSHIP,
HON.
JUSTICE EMMANUEL ONYEABOR,
THE
CHIEF JUDGE OF THE STUDENTS’ UNION GOVERNMENT,
UNIVERSITY
OF NIGERIA, NSUKKA.
Suit
No.: SUG/HC/UNN/001/06/2014
BETWEEN:
The President of the
Student’ Union Government, Applicant
University of Nigeria,
Nsukka
AND
1.
The Honourable Speaker
of the House of Representatives, 1st Respondent
Students’ Union Government,
University of Nigeria, Nsukka.
2.
The House of Representatives,
Students’ Union Government, 2nd
Respondent
University of Nigeria, Nsukka.
Applicant Represented by:
1.
Rotr. Nwora Ike Obiora Esq.; and
2.
Mazi Nnamdi Nwodo Esq.
RULING
(DELIVERED
BY EMMANUEL ONYEABOR, C. J.)
This is a motion ex-parte brought pursuant to Order 38, Rule 3(1) of the Students’ Union
Government High Court (Civil Procedure) Rules, 2014. In a thirteen (13) paragraph affidavit filed in support of the
motion ex-parte filed by the applicant, the applicant furnished the
following facts in support of the said motion:
The applicant, Mr. Christian Agu, averred that he is a 300 level
student of the Department of Education Economics, Faculty of Education,
University of Nigeria, Nsukka; and that he is the current President of the
Students’ Union Government (hereinafter, the Union), University of Nigeria,
Nsukka (hereinafter, the institution), for the 2013/2014 academic session
having been duly elected and sworn into office on March 25th, 2014.
Applicant averred that the Union, upon inauguration, is entitled to
obtain a proposed special vote from the school authorities through the Dean of
the Students’ Affairs Department of the institution’s administrative system to
cover its expenses pending when the Union budget is presented and passed by the
Union House of Representatives as required by the Union Constitution. It was
further averred that the sharing formula for the said special vote amongst the
four organs of the Union is usually arrived at via a compromise reached amongst
the heads of each organ, namely, the President, the Chief Judge, the Senate
President and the Speaker of the House of Representatives when the said special
vote has been allocated to the Union.
Applicant also averred that in the exercise of his function as the
President of the Union, he sent a proposed special vote of the Union to the
school authorities through the Dean of Students’ Affairs Department on 25th
April, 2014, and it was approved by the Dean who minuted same to the school
authorities. However, the 1st Respondent, in utter disregard for the
other organs of the Union personally formulated a sharing formula which the 2nd
Respondent sat on and approved for onward transmission to the Students’ Affairs
Department for approval. This was done prior to the allocation of the special
vote to the Union.
It was yet the applicant’s averment that the school authorities,
acting on the misrepresentation of the 1st and 2nd
Respondents, allocated a special vote of about N4.1 million to the Union based
on the sharing formula the 2nd Respondent through the 1st
Respondent had supplied it. Applicant further averred that the purported
sharing formula formulated by the 1st Respondent and ratified by the
2nd Respondent was drafted in total disregard for the other organs
of the Union and that it even excluded the Union Judiciary. It was applicant’s
averment that the acts of the 1st and 2nd Respondents
have caused untold tension in the Campus as a fracas might ensue if nothing is
done to stop the anomaly.
The applicant finally averred that on the allocation of the special
vote to the union by the school authorities, the applicant who is a signatory
to the Union’s account has been inundated with threats of impeachment and
suspension from the 1st and 2nd Respondents who are hell
bent on having their way at all cost.
Applicant deposed in his affidavit in support of the motion ex-parte that a grant of the motion is necessary
for the preservation of the subject matter of this suit and that if it is not
granted, then any decision of this Honourable Court on the merits of the motion
on notice will be rendered nugatory.
The applicant accordingly prayed this Honourable Court for the
following reliefs:
An Order of interim injunction restraining the
1st and 2nd Respondents, its organs and privies from
taking any further steps whatsoever in respect of the said special vote.
An Order of interim injunction restraining the
1st and 2nd Respondents, its organs and privies from
taking further resolutions whatsoever in respect of the said special vote.
An Order of interim injunction restraining the
1st and 2nd Respondents from taking any action whatsoever
in respect of the said special vote.
Any other order(s) as this Honourable Court may
deem fit in the circumstances of the case for the interest of justice.
In applicant’s written address filed in support of the motion ex-parte, Counsel for the applicant posited that
the crux of the application is anchored on section 128(c) of the Union Constitution which
provides as follows: “Branch
Union expenses between the period of the inauguration of the new Branch
executives and the approval of the Union’s budget by the House of
Representatives in the new session shall be covered by a special vote
authorized by the Dean of Students’ Affairs”. It was argued in the
applicant’s written address that the applicant is desirous of preserving the
subject matter of the suit so that the outcome of the motion on notice may not
be rendered nugatory; as the applicant in his opinion has reasonable grounds to
believe that if the order of interim injunction is not granted, it will likely (emphasis, mine) render
useless any decision of this Honourable Court based on the motion on notice as
the acts of the respondents is capable of extinguishing the res of the suit.
At the hearing of the motion ex-parte, Lead Counsel for the applicant, Rotr. Nwora Ike Obiora Esq.,
adopted the above argument in his oral address of this Honourable Court.
Counsel’s argument, with respect, is flowery but unconvincing to this
Honourable Court. Section 129 (i) of the Union Constitution provides that the authorized signatories to the Branch Union
account shall be the President, the Financial Secretary and the Treasurer. Section
50 of the Union Constitution, on
the other hand, provides that the officers of the Executive Council shall
consist of, inter alia, the
President, the Financial Secretary and the Treasurer. The office of the Speaker
of the House of Representatives is conspicuously missing from that list. This
Honourable Court disagrees with the argument of Lead Counsel for the applicant
that if the ex-parte injunction
is not granted, the res of this suit,
being the said special vote, is likely
(emphasis, mine) to be extinguished via the activities of the 1st
and 2nd Respondents thereby rendering any decision of this
Honourable Court on the substantive suit nugatory. This Honourable Court is
unconvinced by Counsel’s argument as cited above on the grounds that the 1st
Respondent is not a signatory to the Union account and in fact is not even a
member of the Union’s Executive Council headed by the applicant. The
implication of the foregoing is that the 1st Respondent cannot
access the said special vote which is right now lodged in the Union’s account
without the connivance or otherwise complicity of the applicant and relevant
members of his Executive Council who are signatories to the Union’s account. It
has long been the policy of the law that the Court is not a Court of
speculation and accordingly should not be moved by speculatory submissions. The
Court is a court of justice which acts on sound and well reasoned principles of
law as applicable to established facts, whether proved by evidence or
established by common knowledge.
However, support Counsel for the applicant, Mazi Nwodo Nnamdi Esq,
in his oral address of this Honourable Court towed a different path from that
towed by his learned colleague. He argued that the Union as presently
constituted is a pioneer Union as student unionism had been banned in the
applicant’s Campus for close to five years (counting from late 2009 to early
2014) by the school authorities due to anarchy which ensued within the Union
then as a result of internal fracas such as the fracas building up within the
Union in the instant case. Counsel expressed the firm view that the act of the
respondents in the instant case is probable
(emphasis, mine) to create anarchy within the Union even before they will be
put on notice. He argued that the respondents threats of impeachment and
suspension issued against the applicant in order to secure a disbursing of the
said special vote according to their wishes and demands, if acted on at this
early stage of the Union’s re-emergence in the Nsukka Campus of the
institution, is probable
(emphasis, mine) to create such disintegration of the Union which might
necessitate another administrative shut down of the Union for
God-knows-how-long. Counsel cited the case of Kotoye v. CBN (1989) 1 NWLR (Pt.
98) 419, where the Supreme
Court of the Federal Republic of Nigeria aptly adumbrated on the feature of an ex-parte injunction, viz: “… is to preserve the status quo until a named date or until further
order or until an application on notice can be heard. They are also for cases
of real urgency. Also, it can be made to avoid such an irretrievable mischief
or damage when due to the pressure or business of the court of through no fault
of the applicant, it is impossible to hear and determine the application on
notice…”: see also Besse v. Woodhouse (1970) 1 WLR 586 at 590.
This Honourable Court finds the argument of support Counsel for the
applicant as represented above acceptable. This Honourable Court cannot fold
its arms and watch the Nsukka Branch Union descend into such anarchy which is probable to necessitate yet
another administrative proscription of the Union for such length of time as to
effectively deny the Nsukka Campus students the availability of an organized
and nationally recognized body via which they can express their grievances to
the school administration and indeed the nation at large in a civilized and
diplomatic manner. The primary function of the courts is to maintain order in
society via the state resolution of disputes between persons with a view to
averting the anarchy that could arise from self-help.
In determining this application, this Honourable Court deems it
necessary to draw a distinction between the effects of the words “likely” and “probable” where used in reference to the consequences of an act at
law. The consequence of an act may be said to be likely if a reasonable man would NOT consider its occurrence to be the natural and normal effect of
the act: see Bello JSC in Yakubu Mohammed v. State (1980) 3 SC 84.
A probable consequence is that which a person of average
competence and knowledge might be expected to foresee as likely to follow upon the particular act; though it may be
that the particular consequence is not intended or foreseen by the actor. This
is not a definition but merely a guide to the exercise of common sense: see the
dictum of Starke J. in Brennan v. R (1935) 55 CLR at 266. Thus,
whereas the act of a person is probable
to cause a particular consequence if that particular consequence is something
which he, as a reasonable man, knew might well happen: see Reed, Ag. SPJ in Lamba
Kumbi v. Bauchi N. A. (1963) NNLR 49 at 51 and 52; the act of a person
is likely, on the other hand,
to cause a particular consequence if that particular consequence is something
which he, as a reasonable man, did NOT foresee.
This Honourable Court, in order to grant this application, must be
convinced that the acts of the 1st and 2nd Respondents is
probable and not just likely to cause anarchy within
the Union even before the filing of the motion on notice; and which anarchy is probable to necessitate an
administrative proscription of the Union in Nsukka Campus while the motion on
notice is still pending. Support Counsel for the applicant has argued that the
acts of the 1st and 2nd Respondents is probable to cause anarchy within
the Union even before the filing of the motion on notice; and which anarchy is probable to necessitate an
administrative proscription of the Union in Nsukka Campus while the motion on
notice is still pending. He drew this Honourable Court’s attention to the fact
that there has been about a five (5)-year long administrative proscription of
the Union in the institution’s Nsukka Campus which arose from internal fracas
within the Union and which erupted into a campus-wide mayhem, thereby
necessitating the said proscription of the Union.
Though Counsel did not furnish any evidence to prove these facts,
this Honourable Court elects to take judicial notice of the said facts as
matters of common knowledge. Judicial notice of a fact means the acceptance by
a court of the truth of a fact without proof, on the ground that such a fact is
within the Court’s own knowledge. In Commonwealth Shipping Representative v. P.
O. Branch Services (1923) AC 191 at 212, the Court stated that: “…
judicial notice refers to facts, which a judge can be called upon to receive
and to get upon, either from his general knowledge of them, or from enquiries
to be made by himself for his own information from sources to which it is
proper for him to refer.” Taking judicial notice of a fact by a court
may be mandatory or judicially discretionary. Judicial discretionary notice of
facts is exercised with regards to facts of common knowledge or notorious
facts. Section 124(1)(a) of the Evidence Act, 2011, provides that: “Proof
shall not be required of a fact the knowledge of which is not reasonably open
to question and which is common knowledge in the locality in which the
proceeding is been held.” Such facts are so notorious that they are
assumed to be within the knowledge of the courts.
The fact that there has been about a five (5)-year long
administrative proscription of the Union in the institution’s Nsukka Campus
which arose from internal fracas within the Union and which erupted into a
campus-wide mayhem, thereby necessitating the said proscription of the Union is
a matter of common knowledge in the locality in which this proceeding is being
held; and this Honourable Court can rightly be presumed to have knowledge of
that fact. Counsel for the applicant, by conduct, has presumed this Honourable
Court’s knowledge of the said facts and this Honourable Court, though finding
the presumption rather insipid, is in the interest of justice and stability
within the Union reluctant to rebut that presumption.
This Honourable Court acknowledges the fact that the Court’s power
to grant an interim injunction ex-parte is an extraordinary jurisdiction which the courts are usually
reluctant to exercise in the interest of justice and fair hearing. In Emecheta Chinemezu (Mr. UNEC) v. Students in
Free Enterprise (SIFE) Glitz and Glamour (2012) SUG HCLR Vol. 1, p.1 at
p.7, this Honourable Court, per Jideobi Ag. C.J., cited Griffith C. J. and
observed that: “There is a primary precept governing the administration of justice:
that no man is to be condemned unheard; and therefore, as a general rule, no
order should be made to the prejudice of a party unless he has the opportunity
of being heard in defence. But instances occur where justice could not be done
unless the subject matter of the suit were preserved … or if irremediable or
serious damage be imminent, the other [party] may come to court, and ask for
interposition even in the absence of his opponent, on the ground that delay
would involve greater injustice than instant action. But when he does so, and
the court is asked to disregard the usual requirement of hearing the other side,
the party moving incurs the most serious responsibility.”
In line with the above, the applicant has deposed in paragraph 12
of the affidavit filed in support of his motion ex- parte that he is bringing this application in
uttermost good faith without prejudice and shall bear any cost the Court may
deem fit if this Honourable Court finds this action to be frivolous.
Based on the reasons adduced above, the application is accordingly
granted and this Honourable Court makes the following orders:
An ORDER of interim injunction restraining the
1st and 2nd Respondents, its organs and privies from
taking any further steps whatsoever in respect of the said special vote.
An ORDER of interim injunction restraining the
1st and 2nd Respondents, its organs and privies from
taking further resolutions whatsoever in respect of the said special vote.
That the orders of interim injunction made by
this Honourable Court in (i) and (ii) above shall last for only seven (7)
working days counting from the date of the grant of this application.
That “working days” as referred to in (iii)
above is exclusive of Saturdays and Sundays but inclusive of every other day of
the week. It however does not include national public holidays or lecture-free
days declared by the University administration.
That the applicant shall file the motion on
notice on or before the date of the expiration of this interim order.
That this interim order shall expire and cease
to have binding effect on the 1st and 2nd Respondents as
from 11:59 PM on Thursday of next week being the 26th day of June,
2014.
That the applicant shall duly serve and put the
1st and 2nd Respondents on notice with respect to the motion on notice
regarding this suit on or before the date of the expiration of this interim order.
That on failure of applicant to file the motion
on notice and duly put the respondents on notice on or before the date of the
expiration of this interim order, this Honourable Court shall strike out this
suit with costs awarded against the applicant and in favour of the respondents.
That this Honourable Court shall not tolerate
any disobedience to or any flouting of its orders as contained in this ruling;
as any such disobedience to or flouting of its orders shall be construed as
amounting to contempt of court with its attendant consequences.
Application granted.
SIGNED
UNDER THE HAND AND SEAL OF:
_____________________________
Hon.
Justice Emmanuel Onyeabor
The Chief Judge,
Students’ Union Government,
University of Nigeria, Nsukka.
Cc:
The Dean, Students’ Affairs Department,
University of Nigeria, Nsukka.
The Chief Security Officer,
University of Nigeria, Nsukka.
The President, Students’ Union Government,
University of Nigeria, Nsukka.
The Honourable Speaker of the House of Representatives,
Students’ Union Government,
University of Nigeria, Nsukka.
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