Court Of Appeal Dismisses Suit Seeking To Set Aside Admission Withdrawal Of A Minor Based On Health Ground

The Court of Appeal, Jos Judicial Division in appeal no CA/J/128/2019 has dismissed a suit brought under the Fundamental Rights Enforcement Procedure Rules, 2009 by a minor, Rinret Yusuf Gukas suing through his next friend, Steve Gukas seeking to declare as illegal, the unilateral withdrawal of his admission into Hillcrest School Jos on health grounds.

The Appellant’s admission was withdrawn by the school authorities on the basis that the school is unable to manage “Nut allergy” of the Appellant.

Therefore, the Appellant instituted an action before the Federal High Court presided over by Hon. Justice D.V Agishi J. in suit number: FHC/J/CS/43/2017; in striking out the suit, the learned trial Judge held that “this action as constituted by the Appellant does not fall within the ambit of the Fundamental Rights (Enforcement Procedure) Rules, 2009”, adding that “the Court lacks the jurisdiction to adjudicate over the subject matter of this suit” and same was struck out for being incompetent.

However, the Appellant instituted another suit before the same Federal High Court presided over by Hon. Justice M.H Kurya J. in suit number: FHC/J/43/2017.

Meanwhile, Justice Kurya held that the Court is bereft of the jurisdictional competence to hear the suit because the parties in the case are the same with the one decided in the earlier suit struck out; the prayers and grounds are the same; and ruled that the “Court had already heard and decided upon this case that it has no jurisdiction to sit on a case already decided by my learned Brother”.

Aggrieved with the above decision of the learned trial Judge, the Appellant appealed to the Court of Appeal vide a Notice of Appeal dated and filed on 9th day of February, 2019.

In his Brief of Argument, the Appellant’s Learned Counsel argued that the trial Court was in error to have held that the two suits are one and the same and that it was an undue technicality for the case to have not been heard.

In addition, the Appellant contended that suit number FHC/J/CS/34/2017 was not considered and heard on the merit by the Judge and as such, Justice Kurya was in error to have declined jurisdiction and also, it was argued that the Court’s reliance on Section 173 of the Evidence Act was erroneous and accordingly, he urged the Court to set it aside and order the suit to be heard on merit.

Conversely, the Respondents argued that the two suits are one and the same notwithstanding “the cosmetic amendment to the reliefs sought”. It was argued that to allow the Appellant to reopen the case in the second suit will amount to reopening what has been decided on merit. Thus, it was contended that the trial Court is functus officio adding that, the order striking out the first suit is one on the merit and amounted to a dismissal, adding that the option left to the Appellant was to have appealed and not instituting another suit in the same Court.

Meanwhile, having listened to the pith and substance of the appeal, Hon. Justice M. N Oniyangi JCA who delivered the leading Judgement agreed with the Respondents.

“The Appellant did not challenge the outcome of his first action in suit No. FHC/J/43/2017 in any appellate Court. Rather, he decided to file another suit before the same Court but presided over by another Judge”, Justice Oniyangi JCA, said.

Therefore, the Court ruled that same amounts to an abuse of Court process.

“The Appellant herein did nothing to the decision in the earlier suit No. FHC/J/43/2017. That decision is potent and subsisting against the Appellant and binding on all the parties”, the Court held, adding that what the Appellant did is likened to “surgical operation by removing and amending reliefs and the grounds in his suit before the trial Court does not help matters and neither does it remove his suit which is subject of this appeal from being an abuse of Court process.”

Consequently, the Court held that “the appeal is adjudged unmeritorious and same be and is hereby dismissed”.

In addition, the Ruling of the trial Judge, Justice Kurya J delivered on 8th day of November, 2018 was affirmed but however, the order striking out the suit was set aside and substituted with a dismissal pursuant to Order 20 Rule 11(1) & (2) of the Court of Appeal Rules, 2016 and Section 15 of the Court of Appeal Act, 2004.

Meanwhile, the Appellant was represented by N.C Ayuba, Esq., who held brief for Silas Onu, Esq while the Respondents, Registered Trustees of the Hillcrest School Jos and Mrs. Anne Lucasse were represented by Professor Dakas C.J Dakas SAN, L.T Sule, Esq. and D. Appolos Esq.