➥ CASE SUMMARY OF:
Presentation National High School & Ors. v. Ogbebor (CA/B/105/2012, 17 MAY 2018)
by Branham Chima.
➥ ISSUES RAISED
Power to prevent student from writing NECO exam;
Award of damages.
➥ CASE FACT/HISTORY
The Respondent, a minor of 16 years old at the time of initiation of the action through his next friend, a student of the 1st Appellant, a private school in Benin City. The Respondent enrolled through the 1st Appellant for the National Examinations Council (NECO) Senior Secondary Certificate Examination for 2008 having fully complied with all the requirements and paid the appropriate fees. The NECO examination commenced in June but was disrupted by the National Union of Teachers (NUT) nationwide strike. Upon subsequent continuation of the examinations in August 2008 the Respondent presented herself to the Appellant to continue the examinations but only to be prevented by the Appellants from continuing with the examination on grounds that the Respondent was to subsequently write the post UME (Universities Matriculation Board) screening exercise which coincided with one of the dates for the NECO exams.
Dissatisfied with the Appellants, the Respondent approached the Court for an order of interim injunction to compel the Appellants to allow her conclude the examinations. Before the interim order was granted, he has missed writing some papers of the NECO examination.
She claimed the following reliefs: (a) A declaration that the action of the Defendants are illegal, null and void and unconstitutional. (b) An Order of N5,000, 000.00 (Five Million Naira) to be paid by the Defendants to the Plaintiff as general damages for the inconveniences and emotional trauma suffered by the Plaintiff as a result of the action of the Defendants which made the Plaintiff to miss some of the NECO examinations papers.”
Issues were joined and the suit went through full trial. In the end, judgment was entered in favour of the Respondent and against the Appellant.
The Appellants are not happy with the outcome of the trial and hence this appeal.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED, IN PART]
I. (VIRES) Whether or not the Appellant has the vires to prevent the Respondent from sitting for the NECO examination she registered for through the 1st Appellant after paying the necessary fees for registration?
RESOLUTION: IN RESPONDENT’S FAVOUR. (The Appellants do not have the power to prevent the Respondent from sitting in the NECO exam).
[THE NECO EXAM IS NOT A DOMESTIC ONE; THE SCHOOL IS ONLY TO PRESENT CANDIDATES TO WRITE THE EXAM
‘I take judicial notice of the fact that it is a nationwide examination for all senior secondary school in Nigeria. See the National Examination Council Act No. 1 of 2002. By the foregoing, it would be right to say that the examination is no longer a domestic examination of the school but an external general examination. I also have no hesitation in the circumstance of the fact of this case and also embolded to say that it is no business of the school ( the Appellant) to prevent any student of his school from writing any of the papers she has registered for. Agree, the students of the school were registered for the NECO examination. I am not unmindful of the seeming confusion created by the school in their choice of words in this matter, i.e the word present as against prevent. I have no iota of doubt that it is the responsibility of the school to present the pupil of its school to NECO for registration for NECO examinations and specify the subjects each student would like to be registered for. The act of presentation glued to by the Appellant ends after registering the student for the examination with NECO. Agree the school might have some regulation guiding the conduct of students so presented for the examination. I am of the view that such regulation should not and must not extend to preventing any student from writing any of the papers registered for. The duty of the Appellant is to register a student for the subjects he chooses to offer in NECO examination. It is the sole choice of the student to chose to attend or absent his or herself at the examination. The reason that a student did not present his or herself to write some papers does not attract nor vest the power on the Appellant to prevent or bar such student from attending, sitting and writing other papers. I wonder whether the school would have gone to houses of absenting student at an examination, and drag and or compel such student to attend and write the examination. To set in motion and register a student for examination with NECO is the duty of the school. This is what I understand to mean the act of presentation of a student of the Appellant to NECO for the examination. The school must learn to separate Paul from Barnabars. That reminds me of the Age long adage which goes thus: You can only take a horse to the river but you can not force it to drink water. Where a student fails, refuses and or neglects to attend and write a paper out of those he registered for, the consequence would be his. He would only be recorded as absent from the examination. Even NECO herself has no right in circumstance of the fact of the case at hand to pursue and compel any registered candidate at its examination to write any paper talk less of the school whose duty is only to present her candidate for registration for NECO examinations.’
THE SCHOOL BECOMES FUNCTUS OFFICIO AFTER REGISTERING A STUDENT FOR THE EXAM
‘I hasten to answer this question in the negative. If I may borrow the legal maxim, functus officio, once the school has finished the process of registering a student for the examination, the school has no power to compel the student to write the examination, so also they have no right to prevent any student from writing the examination. It is my view that the NECO rule for the conduct of the examination would start to operate and applicable to any candidate who present himself or herself for the examination. The reference to the 2008 NECO rules have no adverse effect on any of the parties having regard to the fact of this case. Having said this much I have no hesitation in coming to the conclusion that the learned trial judge adequately and properly evaluated the evidence placed before it by both parties. Further to this is that the findings and conclusion reached by the learned trial judge are not product of any misdirection but based on proper consideration and evaluation of the facts placed before the Court both by the pleadings and evidence adduced to establish those facts pleaded.’]
II. (DAMAGES) Whether the amount in damages granted by the Court to the Respondent is justifiable?
RESOLUTION: IN RESPONDENT’S FAVOUR, in part.
[THE RESPONDENT IS ENTITLED TO AN AWARD OF GENERAL DAMAGES
‘In the light of the foregoing and considering the evidence of the Respondent before the trial Court, as to how the Respondent was prevented from writing three practicals papers in the NECO examination and which led to her filing a suit in the Court for an injunctive relief after all efforts to convince the school authority to allow her write the examination failed, it become obvious that the Respondent went through shock, pain an trauma which entitled her to a compensation in damages. I accordingly so hold. Accordingly I agree with the finding of the trial Court that the Respondent is entitled to an award of general damages.’
HOWEVER THE AWARD GRANTED IS TOO EXCESSIVE
‘Considering the circumstance of this appeal at hand, even though I agree that the Respondent is entitled to damages having been prevented from writing three papers in the NECO examination, I am not unmindful of the evidence disclosing that the Respondent despite being prevented from writing three practical subjects still pass five subject in credit grade. The situation would have been different if assuming she failed those papers. There is also that evidence that the Respondent has gained admission to Edo State University. For all the foregoing, I am of the fervent view that the award N5,000,000.00 (Five Million Naira) is excessive and outrageous in the circumstance of this case. While exercising the power conferred on this court under S. 15 of the Court of Appeal Act 2004 and Order 20 Rules 11 (1) and (2) of the Court of Appeal Rule 2016, vary the award of N5,000,000.00 (Five Million Naira) as damages by the trial Court in favour of the Respondent. In its place, I substitute an award of N2,000,000.00 (Two Million Naira) as general damages in favour of the Respondent and against the Appellants jointly and severally.’
‘As to whether the Respondent is entitled to damages my answer is in the affirmative and resolved against the Appellant. While my answer to the question whether or not the award of N5,000,000.00 (Five Million Naira) is excessive is also in the affirmative and resolved in favour of the Appellants.’]
‘The Judgment of the High Court of Edo State, Auchi Judicial Division in Suit No. B/541/2008 delivered on the 14th day of October, 2011, is affirmed except for the award of N5,000,000.00 (Five Million Naira) as damages, varied and assessed as N2,000,000.00 (Two million Naira). A token cost of N100,000.00 (One Hundred Thousand Naira) is awarded against the Appellants and in favour of the Respondent.’
➥ FURTHER DICTA:
⦿ ERROR IN LAW IS MISTAKEN APPLICATION OF THE LAW TO FACTS
What is error and misdirection or put in another way what constitute or amount to error and misdirection in law. An error in law is defined as a mistaken judgment incorrect as to the existence or effect of matters of fact or a false misconception or application of law. A mistake of law or fact or irregular application of the law, such as to vitiate the proceedings and warrants the reversal of the judgments appealed against. See the case of NWADIKE V. IBEKWE (1987) 4 NWLR 718 at 744. Misdirection in law is when the judge misconceives the issues whether of fact, law or summarises the evidence inadequately or incorrectly. Misdirection may come to be by positive act of the trial judge or by non direction see the old case of CHIDIAK V. LAGUDA (1964) 1 N.M.L.R 123 at 125. Let me add that where the mistake is substantial to the extent that it affects or the decision appealed against, the appeal would be allowed in that such mistakes would amount to miscarriage of justice. See the case of ONAKOYA V. FEDERAL REPUBLIC OF NIGERA (2002) 11 NWLR (part. 779) 595, where it was held that it is not in every slip of the lower Court that will result in an appeal being allowed. — M.N. Oniyangi JCA.
⦿ IT IS THE PLAINTIFF THAT DICTATES TO THE COURT WHAT RELIEF HE WANTS, AND THE COURT DETERMINES
I have always believed that it is the prerogative of a Plaintiff to dictate the reliefs he or she is seeking from the Court. It is the Court that also has the power to award to a Plaintiff what he believed is justifiable based on the evidence before it and the law. Why I am saying this is based on the submission of the learned counsel representing the Appellant where in he seriously argued that the claim of the Respondent should come under special damages. This I believe does not lie in his mouth. The Court and the Court alone has the vires to determine what a litigant is entitle to. All the litigant need do is to ask. In this case the Respondent asked for general damages and adduced evidence on the pleaded facts in that direction. The Court in his wisdom awarded the relief sought. — M.N. Oniyangi JCA.
⦿ TWO CLASSES OF GENERAL DAMAGES
For purposes of proof, general damages are classified into two i.e (a) Where general damages may be inferred as in defamation cases or presumed as in personal injury matters of pain and suffering (b) Where general damages have to be proved. In the instance case, what is in issue is personal injury. The moment there is evidence of injury, pain, discomfort and permanent scarring, the Plaintiff will be entitled to damages. See ESEIGBE V. AGHOLOR (1993) 9 NWLR (Pt. 316) 128. — M.N. Oniyangi JCA.
Presentation National High School & Ors.
➥ LEAD JUDGEMENT DELIVERED BY:
Mudashiru Nasiru Oniyangi, J.C.A.
⦿ FOR THE APPELLANT(S)
Peace Folorunsho Esq.
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)