Presenter’s
E-mail address: amudakannikeabiodun@gmail.com
Presenter’s
Tel No. 08033256756
INTRODUCTION
This topic is crucial to our higher
education survival, development and progress because, there are lots of
illegalities taking place in relation to higher education in the 21st
Century which we tend to ignore or we may not be aware of, yet when they are
exposed either by the members of the public, the media or through litigation,
the embarrassment may become a monumental fraud, capable of destroying the main
basis of a society/country.
It should be further appreciated,
that there can be no “higher education” without “higher educational
institutions”. Therefore, there are likely to be cross references of these two
phrases in this discourse as they are like a twin notwithstanding the former is
for learning while the later is for the platform for learning.
It will also enrich our knowledge
to define the two key terms associated with this presentation which terms are;
(i)
Legal Issue/Issues
(ii)
Higher education.
Legal issue is a legal question
which is the foundation of a case. It requires a court decision. It can also be
referred to as point on which the evidence is undisputed, the outcome of which
depends on the court interpretation of the Law.[1]
Furthermore, Legal issueis defined
as a legal question which is usually at the foundation of a case and requiring
a court decision. Legal issue is further defined as a point on which the
evidence is undisputed, the outcome depending on the court’s interpretation of
the Law[2]
We have searched to see whether
there can be a better definition to fit into this paper presentation and
because, we couldn’t find any one, we have decided to define legal issue as the
important aspect of law, and or principle of Law, arising from a given fact,
whether in dispute or not which requires proper analysis of such law to those
facts in series, in order to arrive at a conclusion, decisions or
recommendations. They are the essential aspect of the Law, distilled from a
given fact or set of facts which requires proper analysis, construction,critisms,
and summation.
Higher education is defined as an
optimum final stage of formal learning that occurs after the completion of
secondary education. These educations are often delivered at universities,
academies, Colleges, seminaries, etc.[3]
Furthermore, higher education has
been defined as any of the various types of education given in post secondary
institutions of learning and usually affording, at the end of course of study,
named degree, diploma, and other certificates[4]
A further definition of higher
education is seen as all types of studies, training or training for research at
the post-secondary level, provided by universities or other educational
establishments that are approved as institutions of higher education by the
competent state authorities.[5]
Most people often time thought that
higher education means, post graduate education such as PGD, Master Degree,
Ph.D Degree or even H.N.D. Some see it as being able to be in the university
alone. Those thoughts are not correct and are completely a sign of ignorance.
Accordingly, in this presentation,
the important legal issues out of so many Legal issues in Higher education in
the 21st Century shall be examined constructively, we shall
summarise the presentation, make useful recommendations vis-Ã -vis
conclusion.
THE
LEGAL ISSUE DEALING WITH THE LEGAL STATUS OF HIGHER INSTITUTIONS
It is important to note that, there
are so many higher institutions springing up, here and there in Nigeria,
without legality. This is because in Nigeria today as applicable to most
Nations of the world, a higher institution must be a legal outfit before
carrying on as higher institution. The question is: how do you carry on as a
legal outfit? The simple answer to this is that, for a public higher
institution, be it state or Federal, there must be a Law establishing such
institution properly passed into Law by the state Assembly or National
Assembly, which ought to be assented to by the Governor of the state concerned
or by the president of the country, in the case of a Federal Institution of higher
learning[6]
A good example in this regard is to
look at the University of Port Harcourt Act which states thus;
“There is hereby
established the University of Port Harcourt (in this Act referred to as “the
University” which shall be a body corporate with perpetual succession and a
common seal.”
“The University
may sue or be sued in its corporate name”
For a private higher institution,
their legal status become effective when license to operate is given to them,
otherwise, their operations will be illegal with the licensing of the first private
university about a decade ago, there has been increase in the numberof private
universities and other higher institutions privately own.
It is to be noted that from
available research it is embarrassing but it is true to state that no private
university in Nigeria was established by the Law in accordance with the Education (National Minimum Standards and
Establishment of Institutions) Act2004. It is to be understood that the
various legal implications with respect to this anomalies if taken up., may
affect the issue of ownership, control, autonomy, delivery of quality
education, labour, legal personality, life perpetuity and so many other legal
issues.[7]
It is to be understood that in
Nigeria, the federal Government through the Federal Ministry of Education is
the authority that can grant the License to operate a higher institution privately
own.
We have to state this because; the
position of the Law is that a non-existing person, natural or artificial,
cannot institute an action in court, nor will an action be allowed to be
maintained against a Defendant. Juristic personality can only be donated by the
enabling Law, which can either be through the constitution or an enabling
statute. If the enabling Law provides for a particular name by way of juristic
or legal personality, a party must sue or be sued in that name and not in any
other name as was decided by the supreme court in Reg. Trustees of the Airline Operators of Nigeria Vs Nigeria
Airspace Management Agency and Reptico S.A. VsAfribank[8]
LEGAL
ISSUE DEALING WITH ADMINISTRATION OF AN HIGHER INSTITUTION
The day to day administration of
higher institution is very important because crucial issues ought to be
discussed from time to time. It is to be understood that as far as public
higher institutions are concerned, such power can be seen in the law
establishing the institutions while the Law establishing private higher
institutions will be seen in the constitution of the higher Institutions, vis-Ã -vis
its memorandum and articles of association which ought to be part of the
documents to be submitted before being granted a license to operate.
Now, a close look at the university
of Port Harcourt Act states that the Principal Officers of the university are;
(i) Chancellor (ii) Pro-chancellor (iii) Pro-Chancellor and council (iv) Vice
Chancellor and a senate (v) congregation (vi) convocation (vii) Campuses and
colleges (viii) Faculties, Schools,[9]
institutes and other teaching and research units, etc.[10]
Now, a close scrutiny of the
University Act[11]
shows that the Chancellor is not a member of the University council [12]
and there are many functions the council are to carry out which includes
general control and super intendante of the Policy, finances and property of
the university, including its publications, etc.[13]
Now, a dissection of the Power of
the senate shows that they are equally in charge of the day to day
administration of the institution [14]and
those who ought to be in the senate can be seen in the Act which includes, the
Vice-Chancellors, Deans of Various faculties, Director of various institutes,
Professors, the Librarian and few others.[15]
You will agree with us with all due
respect that the Senate does not have the power to approve your promotion
either as a professor or to any other rank without the approval of the
university council but we have heard where it has been said that “the Senate
hereby confirm your appointment or promotion to the rank of ……”.Infact the
Senate only general function is provided for in section 7 (1) of the university Act which is only to organize and
control teaching, admission of students section
7(2) of the University Act, cannot be said to be the functions of Senate
because of the use of the words; “It
shall in particular be the function of the Senate to make provision for” It
is submitted with all due respect that to make provision for
“something”"is it different from doing something” The appropriate words
ought to be; to make provision for and also to carry out the function of”……”
This will not provide difficulty in interpreting the law, because you can make
provision through regulations without being the one to carry out the
regulations.
Furthermore, the “council” is with enormous power to
override the decision of the Senate when you look at the opening sentence of both section 7(1) and (2) of the Act which
states that; subject to section 6 of
this Act” and also; without prejudice to the generality of subsection (1) of
this section and subject as herein mentioned ….”
The situation here is unfortunate
because even in the council, the Senate are entitled to only four persons to
sit in council as could be seen in section 5(f) of the act and there are about
21 members of council.
We are not saying here that the “council”
may not always ratify the senate decisions, what we are saying is that the
council is clothed with enormous power which can Jeopardize the interest of the
University Senate, who are the ones who knows where the shoe pinch them and not
necessarily the council members whose majority members are not strictly part of
the University Community.
LEGAL
ISSUE AS TO SCHOOL FEES CONTROL ESPECIALLY FOR PRIVATE HIGHER INSTITUTIONS
In India, the state control fees
tightly, for example the UGC (Institutions Deemed to be Universities)
Regulations 2010, states that the fee structure for various programmes of study
in the deemed to be Universities shall
also be fixed in a accordance with the fee Regulations formed by the Government
or the U.G.C (University Grant Commission) from time to time[16].
The fees must however be reasonable in relation to cost of running the course.
The Underlining notion behind these
regulations is to prevent what is seen as “commercialization” of the higher
education sector. This is because, if the poorer students are left out, then
the whole essence of higher education may be defeated. The India Law as
revealed above have their own problems also because of rising cost of main expenditures
in this regard would still affect the system to be better.[17]
In Nigeria, and most African
countries, the fees charge by private higher institutions are not monitored nor
controlled by Law leaving most private institutions to be called “commercial
higher educational institution” as only the children of the rich or the rich
persons alone can attend such higher institution.
LEGAL
ISSUES DEALING WITH HIGHER INSTITUTION POLICIES (DISCRIMINATION/CURRICULUM)
Before now, issues dealing with
discrimination in appointments of staffs, both teaching and non teaching are
not so pronounced. This problem is not associated with Nigeria alone. Even in
the United States of America, within six years alone, issues associated with
race, ethnicity and gender emerged on a large scale. This led to constitutional
pronouncements to the public perception in various key states. The Supreme
Court of United States of America in the Landmark Judgment of GrutterVs Bollinger [18]after
several years of silence on the issue of “race”, ethnicity and gender, affirmed
that mission drive educational benefits associated with a diverse class of
students could, in appropriate circumstances justify the limited consideration
of race and ethnicity in higher education admission.
The supreme court while recognizing
the academic freedom interests of higher education leader who were implicated
in admission judgments, went further to state clearly that higher educational
institutions have the responsibilities to exercise their discretion
responsibly, with due attention to be paid to actual, mission-driven outcomes
associated with student learning and development (including preparation of
students to fully participate as citizens in the workforce based on evidence
about outcomes.
Flowing from the above and using
University of Port Harcourt as example. Section 1(3) of the Act[19]
stated the objects of the institution among others to include (a) encouragement
of the advancement of learning and to hold out to all persons without
distinction of race, creed, sex or political conviction, the opportunity of
acquiring a higher and liberal education.
Now, the question is; can it can be
correct that there exist compliance with this aspect of the Law and the
persuasive decision of the U.S Supreme court in Grutter’s case?Certainly,
the answer is a capital “No” as at today. This is because, University of Port
Harcourt is dominated by both South-South and South Eastern regions in terms of
students and admission and lectureship position which can be assessed at 80%
while the non-teaching staffs strength from south-south and south east can be
put estimatedly to be 90%. What is happening in University of Port Harcourt may
even be better compared to University of Uyo, or University of Calabar. The
situation in University of Lagos, O.A.U. and Ahmadu Bello University are a
little bit nearer to average, while all other universities are worst for this
type of discriminatory staffs’ strength and admission policies.
Furthermore, most of the state
universities are worst off and tends to be seriously embarrassing without
control uptil date. Even though the 1999 constitution as Amended is clear on
this issue we cannot say there exist compliance, even with Section 19 of the University of Port Harcourt Act Cap U13 LFN 2004
THE
ROLE OF THE LEGAL DEPARTMENT VIS-À-VIS FACULTY OF LAW OF HIGHER
INSTITUTION/AVOIDANCE OF LITIGATION
There are now presently increase
litigation in court of law against most higher educational institutions, may be
because the legal department of most of the institutions sheer away from their
responsibilities on the need to advise the institution legally or they may be
involved in encouraging litigations at the expense of the litigants both in
terms of cost of litigation or the payment of judgment sum including the
embarrassment such higher educational institutions may be placed.
There is the need for all higher
educational institutions to place emphasis on law dealing with the following
circumstances;
(i)
Discipline of staffs and students, the
provision of fair hearing is to be strictly adhered to.
(ii)
Proceedings at the meeting such as
senate, council, Faculty board meetings and other important meetings, the
Law/constitution/Policy(cies) dealing with the establishment of the higher
educational institutions must be complied with, proper quorum must be formed
and minutes should properly be taken, signed and kept in proper custody.
(iii)
In terms of contractual Obligations the
Law establishing the institution should be adhered to or the
constitution/policy of the institution.
The issue of use of computer for
documentation was not so much available earlier before now, but in this 21st
Century, most establishments and individuals are into usage of computer and
higher educational institutions are not out of tune with reality.
LEGAL ISSUE ON COMPUTER
GENERATED EVIDENCE OR DOCUMENTATION
Higher educational institution must
comply with the Law dealing with computer generated evidence assuming a case is
to be filed or defended in court touching on documentary evidence especially,
admissibility of computer generated evidence, and the issue of expert evidence
under the Law of evidence.
We also took time to look at the
relationship of sections 85-87 of the evidence Act, 2011, in relation to
electronically generated evidence especially as it has to do with primary and
secondary evidence.
Under section 84
of the evidence Act, 2011, we have seen that when leading a witness, in
evidence, for the document computerly generated to be admissible, the witness
has to state the followings;[20]
(i)
That
I know as fact that the document sought to be tendered was produced by the
computer which said computer has been in operation for about two (2) years and
we regularly store the information retrieved and other information regularly in
our said computer for about two (2) years now.
(ii)
That
over the period of about two years, there was regular supply of information
about the document sought to be tendered, including other informations in our
usual way of receiving supply of information in our computer.[21]
(iii) That within the said period of two
years, I earlier mentioned, My (Lord or Your
Worship), uptil now, the computer through which the document sought to
be tendered was operating properly.[22]
OR
(iii)
(a) That within the said period of two years, I earlier mentioned, My
(Lord) or Your (Worship), it was not
operating properly as we repaired it several times, but that even during the
repair or when it was not operational, the repair was properly carried out, the
repair/non operational period did not affect the production of the document
computerly generated which is being sought to be tendered and the accuracy of
the contents of the document sought to be tendered is not affected at all.[23]
(iv) That we usually use the said
computer to gather various information supplied to the internet from various
information worldwide such as Google, Whatsap, text messages, GSM messages,
video-records, companies and institutional records and our staffs record both
input and output, and the document sought to be tendered is the information
reproduces and generated from this computer of ours, I have mentioned.[24]
In the case of
Computer Network[25]
(iv(a) That
document sought to be tendered was produced through the combination of
computers operating for about two years[26]
(b) That
document sought to be tendered was produced through different computers changed
at different times but each time information in one is transferred to the other
one used in changing the other[27]
That
different computers are use together and are changed at the same time with
other computers but that the same information is contained in each as at the
time they were changed[28]
That
all the computers used from one office to the other and all the departments and
offices are net worked together and with the same information where the
document sought to be tendered is derived from, as all the computers generally
are seen and treated as one single computer and the mention of a particular
computer in this transaction refers to one single computer, as a whole[29]
That
there is electronic signature through which there is a signature, a symbol or
security procedure [30]
For certificate
(v(i) That
I have a certificate produced which identifies the statement and describing the manner in
which the document was produced[31]
(ii) That
the particulars of the devise used showing the devise is computer and appropriate for use and it is;[32]
…Computer
Model, with No …… of 2017 model
(iii) That
I am personally occupying the (responsible) office of where the computer was produced and as Director
of the establishment, my signature is
there on the document[33]
a. That
this information is to the best of my knowledge and belief.[34]
LEGAL
ISSUE OF PUBLIC OFFICERS PROTECTION ACT LFN 2004/CONFIRMATION OF APPOINTMENT
It will not also serve the interest
of justice if we are not aware that the public institutions of higher
education/higher learning are public officer [35]
but those of private institutions are not public officers. Anyone who feels
aggrieved by whatsoever action an higher institution had carried out against
him or her should take up the action within three months when the cause of
action occurred, otherwise, no case can succeed as the suit is likely to be
struck out. The decision of the court in UnijosVsIkegwuoha[36]
though decided the issue of public officers protection Act in favour of Dr.
Ikegwuoha but still serves as a warning on this issue but it is of great
importance to also discuss the legal issues as to confirmation of appointment.
In the above named case, the said
Dr. M.C Ikegwuoha was at all material times a lecturer II in the department of
political science of the University of Jos, having initially been offered
appointment as a temporary lecturer on 22/1/93, a post with respect to which he
assumed duty on 27/1/93. He was interviewed by a full panel of the university,
found appointable and had his appointment regularized with effect from 12/8/94.
He became due for confirmation on 27/1/95 and he applied to be so confirmed.
The H.OD of his department and Dean of his faculty both recommended him for
confirmation in accordance with the rules and regulations of University of Jos.
Instead of confirming his
appointment, UNIJOS, purportedly said they are acting on a protest by a few
students who were instigated to write a petition against him not to be
confirmed. The University wrote a letter dated 2/10/97 stating that they have
no intention of confirming his appointment.
Dr. Ikegwuoha being aggrieved
approached the Federal High Court then (Take notice that if it is today, such
case will go to National Industrial court) claiming an order directing the
University to confirm his appointment “as Lecturer II in the Department of
Political Science at the University of Jos, with effect from the 27/1/95 with
all his promotions, allowance and entitlements, etc.
The parties exchanged pleadings.
Dr. Ikegwuoha gave evidence in support of his pleadings. The University of Jos
did not give evidence to support its defence. The court however dismissed his
case, Dr. Ikegwuoha appealed to the Court of Appeal, which allowed the appeal
and ordered the said Dr. Ikewguoha to be confirmed. The University of Jos felt
dissatisfied and appealed to the Supreme Court and the appeal was allowed in
part but it was a sound victory for Dr. Ikegwuoha when the supreme Court held
that the University of Jos is hereby ordered to confirm the appointment of the
respondent as lecturer II in the department of political science with effect
from the 27/1/95. The other reliefs claimed by the respondent namely for
promotions, allowances and entitlements are not proved.
In this case, the Supreme Court
stated that the cause of action arose on 2/10/97 when Dr. Ikegwuoha got the
letter not confirming him and that there was nothing in 1995 that would have
justified a cause of action. The date of 27th January, 1995 is
therefore, a typographical error.
This case is very important to the
cause of education where the institution was not alife to its responsibilities
under section 22 (vii) of the University of Jos Regulations because the panel
that sat failed to identify the deficiencies of Dr. Ikegwuoha which the 300
Level student petition through Exhibit 3 identified as;
(i)
Lack of effective communication skills
(ii)
Lack of mastery of the supposed field
taught.
(iii)
Failure to deliver intellectual goods
required of a lecturer.
Furthermore, the interpretation of
section 22 of Exhibit 5 (UNIJOS regulations governing the conditions of service
of senior staff) deals with confirmation and appointment. It states that “a
recommendation for non confirming or deferment of confirmation should” be “made
only after the member of staff concerned has been warned” of his or her short
comings and has been given sufficient time to remedy this. If after this. It is
still necessary to recommend non confirmation of appointment; this should be
done atleast three months before the date when confirmation is due.
The Supreme court through Hon.
Justice Nwali Sylvester Ngwuta J.S.C. on page 507 Paras F-G, in his
contribution to the judgment Lambasted UNIJOS when he stated;
“Did the members of the “full
panel” that interviewed the respondent on behalf of the University of Jos
conduct the interview in their sleep? How could they have inflicted on the
University, Lecturer who had no writing and/or communication skill in the
English Language to teach political science?”
The Learned Jurist of the Supreme
Court, while still feeling bad for the future of higher education in the 21st
Century stated further thus;
“This is the bane of the
educational system in the country-Square pegs are put in round holes. And the
Appellant, having woken up to her error, thanks to some 300 level students,
failed to comply with section 22 (vii) of her regulations thereby compounding
the problem for the University with the respondent. Perhaps, the appellant will
resolve that issue in due course. However, the better for the university and
her student, particularly those in social sciences”
POLICY
AND THE LAW
We must understand that often
times, higher education is clothe with so many policies but the truth is that
in as much as we make use of policies, “a policy document is not a Law, but it
will often identify new laws needed to achieve its goals. Laws set out
standards, procedures and principles that must be followed. If a Law is not
followed, those responsible for breaking them can be prosecuted in court. [37] It is however agreed that policy can lead to
creation of new Law. A policy outlines any and all methods and principles that
the government or any entity for that matter will use to achieve its
directive/objective. A policy is not Law, however, it can often identity new
laws that are needed by the government or any entity to achieve its goal.[38]
NEW
METHODS AND CURRICULA
It is so apparent that the changes
in teaching method and curricula brings challenges. By and large, teaching
methods are moving away from the old-fashioned model of lecture aimed at
passive audiences, but a more participatory class.
The students of today are now much
more interested in interactive and self-guided approaches. With so much
information online and available for free higher institutions such as
university and colleges are restricting curricula to stay current and equip
students to work with emerging technologies.
Most of the higher institutions
recognize the facts that higher education requires uniform method of learning
and evolution but those which require uniform methods of learning and
evaluation are no longer Rn-vogue. There are now more student-centered forms of
criteria to evaluate learning and success. Things like individual response
system in the form of clicker are being used to allow students to participate
directly and immediately.
Team teaching and peer-led teaching
models are also emerging as alternatives to the old professor/student dynamic.
For tenured, long established
professor, new curricula and methodologies can be difficult to incorporate into
their long established teaching practice. They can find themselves frustrated
by having to use teaching methods they don’t like and not knowing how to most
effectively implement the new curricula.
In fact, these challenges are
becoming so widespread and important that universities are granting leave time
for faculty to explore and develop new teaching methods. However, we must look
at whether this issue can be found in the Law establishing the higher
institution in order to give same legal backing. Using the University of Port
Harcourt Act, as a good example, we can conveniently say that this is possible
and should be immediately made possible. This situation is covered by section 1
(b) and (c) of the University Act[39].
THE
ROLE OF THE UNIVERSITY, FREE SPEECH AND CAMPUS CIVILITY
As is apparent to anyone who
watches the news, these issues aren’t going away anytime soon. The university
has historically been an oasis of freedom of speech and freedom of expression
for students and faculty alike.
As centres of learning and
research, the university has always been a place where new and potentially
threatening ideas often emerge.
It’s been the mission of higher
education in the United States to ensure that these freedoms are treasured in
institutions of higher learning.
However, recent events have
challenged these ideals [40]The
current political climate and the potential violent threats which have emerged
not only on university campuses but also in cities across the country have put
university administrators in a difficult place.
They must strike a balance between
free speech and maintaining a secured and safe environment on university and
college campuses.
Free speech has always been an
essential part of college life, and we should expect to see universities
working hard to create safe environments for the discussion of various
opinions. Additionally, universities are often on the forefront of new ideas
making them easy targets for opponents of free speech to look for university to
take increasingly strong stand on this issue.
On 17th February, 2016,
police used tear gas to disperse hundreds of university of Abormey-Calavi
students of Benin Republic who had gathered at on hotel in Abomey-Calavi, a
suburb of Cotonou, for a general assembly and press conference and to peacefully
protest against the October, 2016 ban on all student union activities, since
Benin Republic is a member of African Union, the citizens are at liberty to use
the African commission on Human and Peoples Right. [41] In Dubai, United Arab Emirate (U.A.E) Judicial
system is derived from the civil Law system and Sharia Law. The court system consists
of civil courts and Sharia Courts. According to Human right groups, freedom of
expression has been curtailed by enacted Laws in order to water-down the
constitution.[42]
THE
ROLE OF NATIONAL ASSEMBLY IN HIGHER EDUCATION
The National Assembly in Nigeria
are responsible for making Laws in the country and if they are alife to their
responsibilities, they should have acted teimeously to help the survival of
higher education in Nigeria especially. The question is “How many Laws has the
National Assembly amended or passed dealing with the issue of higher education
in the last ten years? Certainly there exist non. The only thing you see them
doing now is for each Honourable member to present a bill seeking to establish
higher institutions in his or her localities and for the members to easily pass
the bill without thinking deeply about;
(i)
The other higher institutions have they
been properly funded?
(ii)
Are the salaries and allowances of
staffs whether teaching or non teaching staffs properly taken care of to
prevent strike and other serious demonstrations or even closure of the higher
educational intuitions?
(iii)
Are there enough lecturers and teaching
staffs in the various institutions.
(iv)
Should the power of national university
commission/other bodies not be curtailed in disaccrediting the university and
whether the body ought not to have been disbanded and the power returned back
to Federal Ministry of Education?
(v)
Should they not have stooped the various
universities from conducting post-jamb examination and allow JAMB to do their
work because when JAMB was in-charge, we don’t have half baked students.
(vi)
Should the National Assembly not have
worked on the legal education consolidationAct LFN 2004 and amend same.
SECTION
36 OF THE 1999 CONSTITUTION AND THE PRINCIPLE OF ADMINISTRATIVE OR DOMESTIC AFFAIRS
OF THE HIGHER INSTITUTION.
The constitution of Nigeria under section 36 states
that in the determination of his civil rights and obligations, including any
question or determination by or against any government or authority, a person
shall be entitled to fair hearing within a reasonable time by a court or other
tribunal established by Law and constituted in such manner as to secure its
independence and impartiality. That means, no matter the case, a person whose
result has been seized or who was not allowed to write his or her examinations
will not be happy.
The courts unfortunately dampened the hope of most
students when they tend to be supportive of higher institutions by stating that
in so far as the award of a degree or certificate is concerned, the courts have
no jurisdiction in the matter as it is purely administrative and domestic
affair of a university as was decided
in MagitVs University of Agriculture, Makurdi[43]
The same decision was reached in University of CalabarVsEsiaga[44] and AkintemiVsOnwumechili[45]. This are not too
good news to Justice and it is like allowing the University to do anything they
so like by refusing to give out degree results to any student or allow the
authority to refuse the student to sit for examination even when not justified.
We are of the view that the university regulations
of statutes ought not to be allowed to override the provision of the
constitution and if it does to, it shall become null and void and such ought,
to be the position of the courts in the above named cases by virtue of section
1 (3) of the 1999 Constitution as Amended.
No wonder in 2010, the court decided to do justice
in similar situation by accepting that the students having exhausted the
remedies available to complain that his certificate be released, cannot be
denied access to court. This was decided in the case of University of Ilorin VsResheedatAdesina[46]
It is not out of place to discuss the relationship
between an higher institution and a student and it is better to point out that
the students have contractual right and duties based on their contract of
membership which the matriculation formalities symbolize. Where an Higher
Institution made Law, the statute view develops its strength from the enabling
Law, since the higher institution is a creation of the statute.[47] Then the contract automatically becomes
statutory and no longer contractual. This is important as was determined in GarbaVs University of Maiduguri.[48] With respect to
private higher institutions, it is however, contractual obligation. The Major
decisions in Garba’s Case, was perfectly captured by Hon. Justice Nnamani J.SC as he then was and of blessed
memory when he stated [49] thus;
“It
is pertinent to mention that by section 17(2) of Act No. 83 of 1979 (Now LFN
2004) it is to the University council that appellants could have lodged an
appeal if the issues were such as could be dealt with within the statutes of
the University. It seems to me fair to conclude that if, as indeed they felt,
the appellants fundamental rights had been breached it was to the high court,
and not to the visitor that they had to go for relief”
In Garba’s case, part of the reason why the
University lost the cases are as follows;
(i)
That you cannot be a judge in your own cause; The
deputy Vice-Chancellor cannot be a witness and a Judge all at the same time.
The likeyhood of bias is a necessary inference from the assumption of the two
positions. The Disciplinary investigation panel set up by the Vice-Chancellor
as the chairman, and he is also a victim of the disturbance.
(ii)
That a person must be heard to state his own side of
the story. In Garba’s case, can it be said that the Appellants were heard. What
does it mean in this context to be heard? Yes truly, they were summoned, they
gave evidence but fundamentally, there was no such opportunity of
cross-examination and knowing the witnesses in order to comply with the
principle of natural Justice as to fair hearing[50]
The erudite Jurist, and scholar of repute, Hon
Justice Oputa J.SC as he then was (May his soul rest in perfect peace) added
more heart touching statement thus[51];
“Another
but related view is that fair hearing (even in an Administrative Board or a
Disciplinary Investigation Panel as the one set up by the Vice-Chancellor in
this case) implies the right in the appellants to know what and what were being
alleged against them; what evidence has been given; and what statement had been
made affecting them; and they must be given a fair opportunity to correct and
contradict such evidence. It follows that the panel must not hear evidence, or
receive representation behind their backs. The case that brings out these
points very clearly is the case of Kanda V Government (1962) AC 332”
CORRUPTION
DEALING WITH HIGHER EDUCATION
The present situation is that as a result of
corruption, there exists decadence in the situation of higher education. The
money meant for the development of infrastructures are embezzled and usually no
one may be saying anything about this. There is need for search lights as far
as financial activities in this area is concerned [52]
The more those who embezzled money in this sector
are investigated, prosecuted and sentenced to terms of imprisonment, the more
everyone would be scared of being involved in all forms of financial
irregularities and mismanagement because the educational sector is usually seen
as a place where financial impropriety can’t take place.
THE
ROLE OF EDUCATIONAL COMMISSION/FEDERAL MINISTRY OF EDUCATION
There are lots of oversight functions the education
commissions, bodies and Federal Ministry of education can perform by making
sure as it use to happen earlier before now, where secret service Agencies such
as C.I.D are given admission in Higher Institution and because they are
sponsored by the government, they always give information to the bodies
mentioned above who can even approach the National or state Assemblies as to how to bring additional Laws or amend the Laws to
fit into reality in development of the higher education sector.
LEGAL
EDUCATION ISSUE
The council of legal education deprivation of
National Open University Students of the opportunity of going to the Law school
is rather unfortunate because how can students be allowed to go to university
accredited and recognized by National Universities Commission and at the same
time being deprived of completing the course? This is rather unfortunate as the
same universities in Nigeria who have faculty of Law are allowed to go to Law
school. This act is bad for the development of higher education.
The case that was filed at the Federal High Court
Port Harcourt would have made Hon. Justice Oshomah who handled the case to go
down in history lane as one of the Judges who have contributed to the development
of higher education in Nigeria but with due respect to him he failed to see the
better side of the case by agreeing with technicalities rather than the law to
decided the case. [53]
The Judge wrongly with all due respect stated that
the Nigeria Law school through council of Legal education ought not to have
been sued because according to him, it is the domestic affairs of the
institution.
We are aware that under section 4 of the council of
Legal education Act and National Universities Act, the Attorney-general can
override the decision of the council.
The Hon. Attorney-General however refused to use his
power uptil now under section 4 but there are pressures on him to do so.
Now coming back to the United States
of America, Education Counsel’s Washington, D.C.-, Atlanta-and Greenville,
S.C.- based multidisciplinary team seeks creative, research-based solutions to
the complex challenges facing the education community in the 21st
century.
The firm includes a former U.S.
secretary of education and governor, including individuals who have held major
positions in the White House, the U.S. Department of Education, governors’
offices, state boards and departments of education, foundations involved in
education, Congress, and the classroom (elementary school to postgraduate
education). [54]The
American Council on Education (ACE) is the major coordinating body for all the
nation’s higher education institutions. ACE seeks to provide leadership and
a unifying voice on key higher education issues and to influence public policy
through advocacy, research and program initiatives. Counted among its members
are approximately 1,800 accredited, degree-granting colleges and universities
and higher[55]
education-related associations, organizations including corporations.
Founded in 1918, ACE aims to foster
greater collaboration and new partnerships within and outside the higher
education community to help colleges and universities anticipate and address
the challenges of the 21st century and contribute to a stronger
nation vis-a-vis a better world. Three key strategic priorities drive ACE’s
activities: representation as advocate and voice for all higher education,
leadership development to enhance the diversity and capacity American higher
education and adult learner organizations. ACE’s areas of focus include access,
equity, and diversity; institutional effectiveness; lifelong learning; and
internationalization.[56]
SUMMARY
We have been able to show in this
presentation the definitions of the Key words which are “Legal Issues”
and “Higher Education”. We specifically mentioned that though Legal issues have
been variously defined but that those definitions are not all en-compassing as
they do not completely fit into this presentation. We accordingly gave working
definitions which we are of the opinion that it fit into the present
presentation. We equally define the term higher education which is confusing to
some people who believe that it has to do with any degree higher than a
university degree but by our definition, it becomes clearer that it be seen, as
being all types of studies, training or training for research at the
post-secondary level, provided by universities or other educational
establishments, that are approved as institutions of higher education by the
competent state authorities.
We also in this presentation
brought out substantial number of legal issues which we are of the view require
adequate examination in order to know whether higher education is on the right
lane or working lane in the 21st Century, because the constructive
evaluation of those Legal issues, will enable the educationist and the
authorities to re-direct and direct the course of higher education towards the
right path in order to meet up with challenges of globalization and academic
excellence.
Among the legal issues that were
carefully scrutinized are; Legal Issues dealing with the legal status of a
higher institution, section 36 of the 1999 constitution, etc.
We have equally seen that, the
topic did not restrict us to Nigeria but it is general, though we placed more
emphasis on the legal issues of Higher Education in Nigeria, including using
more of the statues establishing University of Port Harcourt, but the
fundamental aspect of this presentation are;
(i)
Charity
begins at home, it is the University of Port Harcourt that is hosting this
event and we need to use it as a case study.
(ii)
The
world is a global village bow, and we are not surprised that most legal issues
affecting higher education in Nigeria, higher education institutions and other
countries are substantially the same, except, the differences in the
implementation of the various laws and policies.
(iii)
We
took time to look at the activities dealing with some legal issues in a few
other countries such as, (Benin republic, United Arab Emirate/Dubai), Ghana
Britain including the United States of America among other countries.
(iv)
It
is seen that majority of the lecturers since they have been employed to teach
including staffs of various higher educational institutions do not even know
the statutes which established their institutions, nor the components of such
Laws and they often time put themselves into expensive litigation or they put
the institutions into expensive litigation.
This presentation is clothed with
recommendations to legally improve higher educational activities in the 21st
Century, thereafter, as expected we concluded the presentation.
RECOMMENDATIONS
(1)
It is recommended that the statutes of
most higher institutions in order to move higher education forward should
incorporate that “on no account should an higher institution fail to promote
lecturers and staffs who are due for promotion immediately” we have seen
situation where some are due for professionship, their papers have been
positively assessed and the next the senate and council would do is to say,
they don’t have vacancy for more than one or two professors in a particular
faculty. No wonder, some best brains have retired or move to other part of the
world. The National Assembly can make such law, the state assemblies can make
such Law also.
(2)
There exist no doubt that
discriminatorily, the women are still behind compared to the men in acquisition
of higher education and the constitution of most nations says there should be
no discrimination on ground of “sex” among other grounds recognized, it is
therefore recommended that states must as a matter of urgency, (both federal
and states) enact laws to ensure equality of access to education and to equally
strengthen the role of women in higher education and in the society.
(3)
It is recommended that both the teaching
staffs and non teaching staffs of higher educational institutions should be
made compulsorily to have and go through a copy of the statute or constitution
which set-up or establish such institution. It has been discovered that without
being use to this important books/laws, there exist the tendency of breaching
the laws always thereby undermining the objectives of higher education in the
21st century.
(4)
The issue of fair hearing is a
constitutional right and all issue dealing with higher education need to ensure
strict compliance with this right because no matter how the institution
beautifully handle such matter dealing with fair hearing, once there exist lack
of compliance, such as adequate notice, opportunity to defend or state ones
side of the case and before an impartial judge, there is the likelihood of
declaring such decision null and void and of no effect. It is therefore
recommended that fair hearing be applied in all ramifications once higher
education is involved.
(5)
It is recommended that on no account
should the institution fail to comply with its laws in assessing the issue of
discipline, control and promotion of teaching and non-teaching staff to avoid
the embarrassment in the case of UNIJOS
VS DR EKWOUGHA [57]
(6)
The various institutions should
envisaged litigation and therefore seminars on computer generated evidence
should be sponsored. This will protect the institution from embarrassing
themselves. Furthermore, it is recommended that the opinion of the legal department
of most higher educational institutions should always be sought on most crucial
matters especially legal issues involving the institution.
(7)
It is recommended that National
University Commission, Council of Legal Education should immediately be proscribed.
This is because as far as Nigeria is concerned, the enormous powers given to
them to disaccredit some courses with respect to higher education seems to
portray the education of Nigeria as being worse. Before, the 21st
century, when higher education was majorly part of a department of the Federal
or State Ministry, the higher educational system in Nigeria was better. The
other thing which can be done is to make them a department of the Federal or
State Ministry of Education inorder to even save costs of running such
parasatal. When a student is almost graduating or has graduated and you
disaccredit the course in his faculty, he cannot even graduate or use his
certificate either within or outside the country. He or she is looked down upon
as not having a legal degree but an illegal degree. He or she can also be seen
as studying an illegal course in the higher institution. The same thing with
other African Countries but the situation is much more disastrous in Nigeria.
(8)
The law should be amended to strictly
comply with Federal Character commission Act in appointment of
vice-chancellors, Deputy vice chancellors and other key appointment in several
higher institutions. University of Port Harcourt is doing well as far as this
issue is concerned but there should be room for improvement. In NDU throughout
my stay as a lecturer, my appointment was not even confirmed and it was linked
to ethnicity. Our application to UNIPORT till now has not been responded to,
even though we put pressure for the establishment of this faculty of law.
(9)
Of recent three graduates of the
University who were mobilized for youth service could not read nor write their
names, well, could not answer very simple questions primary 4 -6 would answer,
yet they found themselves performing the mandatory NYSC scheme. It was just
discovered and NUC is setting up panel of enquiry. We don’t need NUC
involvement as they are not police officers. It is recommended that the three
(3) students be handed over to police for thorough investigation, the lecturers
who marked the students’ scripts should equally be arrested and if found
culpable they should be tried immediately in court to serve as determent to
others. It is further recommended
(10)
With regards to discipline of the
students, the higher educational institution authorities should know their
limits as where such offences includes crimes such as looting, arson,
destruction of property and indecent assault, this are offences under criminal
laws and it is recommended that the institutions should only allow regular
courts of law to try.[58]
Crimes committed even within the walls of the campuses are crimes against the
public at large. No citizen is above the law, students should understand that,
where such occurs, he must be taken to a court of law for trial and not merely
dealt with by a tribunal. [59]
This must be done once the offence or offences is or are grave ones. It is
therefore suggested that “suspension of
the student” is better than outright “expulsion” without fair hearing or
determination of the matter by a court of law, depending on the magnitude of
the offence. The supreme court said that it took notice of the catastrophic and
destructive incidence of cultism which has spread through the nation
universities and colleges and held that the appropriate authority must not
hesitate to make an effort temporarily to arrest a perceived evil that is seen
rearing its head which if not nipped in the bud, might be destructive[60]
(11)
It is recommended that all the
proprietors of private universities especially in Nigeria should be
investigated beginning with Chief OlusegunObasanjo, of Bells University of
Technology, Otuogun State, AbubakarAtiku of American University of Nigeria Yola, Adamawa State, Bishop Oyedepo Landmark
University, OmuarenKwara State, University, Ota, among others because they
ought not to make profit but they are making profits against part C
registration under companies and Allied matters Act LFN 2004. Before this 21st
Century, we have missionary schools built which are not for profit including
individual schools though no private higher institution then.
Finally any Higher Educations which
do not stand on the four pillars of (1) international outlook of staffs and
students (2) quality of research. (3) quality of teaching and (4) Global
Graduate employability, should be call” failed higher education and whoever is
involved in such are all part of the failures.
CONCLUSION
The issues affecting higher
education in the 21st Century are very important to the whole world
but without looking at it from the area of legal issues involved, it will just
be like going to the stream/river with a basket without fetching water. There
is therefore no doubt that to avoid illegality, to avoid unnecessary litigation
and to move our higher education to world class standard, important areas of
the Law and policies must be identified, improved upon and must be known to education
administrators without necessarily being Lawyers or judges.
BIBLIOGRAPHY
BOOKS/INTERNET MATERIALS
1.
LEGAL
ISSUE LAW AND LEGAL DEFINITION. HTTPS//DEFINITIONS.USLEGAL.COM : LEGAL ISSUE;
ACCESSED THROUGH THE INTERNET ON 7/5/2018 AT ABOUT 11:39PM
2.
BLACKS
LAW DICTIONARY; 8TH EDITION BY BRAIN GRANER PAGE 849
3.
EDUCATION;
WWW.INFO.COM;HTTPS//EN.M.WIKIPEDIA.ORG ACCESSED
THROUGH THE INTERNET ON 6/5/2018 AT 2:AM
4.
HIGHER
EDUCATION; WWW.INFO.COM;HTTPS//EN.M.WIKIPEDIA.ORG ACCESSED THROUGH
THE INTERNET ON 6/5/2018 AT 3:AM
5.
HIGHER
EDUCATION; BRITANICA.COM; HTTPS//WWW.BRITANICA.COM ACCESSED THROUGH INTERNET ON
7/5/2018 AT 11.40PM
6.
OVER
VIEW OF HIGHER EDUCATION; HTTPS//WWW.JICA.GO.JP (PDF) HIGHER-02 ACCESSED
THROUGH THE INTERNET ON THE 8/5/2018 AT 1.30PM
7.
ADEDIRAN
.O. & GBADAMOSI .O.A. LEGAL STATUS OF PRIVATE UNIVERSITY IN NIGERIA,
PUBLISHED BY COMMON WEALTH LAW BULLETIN
VOL. 4, 2015 ISSUE 3 PAGE 466-484
8.
AMLANJIYALI
GASWAMI; HIGHER EDUCATION LAW AND PRIVATE UNIVERSITY EDUCATION IN INDIA; TOWARDS
A VISION; SEE WWW.IDPC.COM ACCESSED
THROUGH THE INTERNET ON 31/5/2018 AT 1:AM
CASE LAWS
1.
REGD TRUSTEES OF THE AIRLINE OPERATORS
OF NIGERIA VS NIGERIA AIRSPACE MANAGEMENT AGENCY.(2014) 57 (PT 2) NSCQR PG 659
ESP AT PG 687 PER J.I. OKORO J.S.C
2. REPTICO
S.A. VS AFRIBANK (2013) 54 (PT I) NSCQR PG 600 ESP AT PG 642 PER ARIWOOLA
J.S.C.
3. GUTTER
VS BOLLINGER 539 U.S 306 (2003)
4. UNIJOS
VS IKEGWOUOHA (2013) 9 NWLR (PART 1360) PG 478 AT 481-482
5. UNIVERSITY OF CALABAR VS ESIAGA (1997) 4 NWLR (PT
502) AT 719
6. AKINTEMI VS ONWUMECHILI (1985) NWLR (PT 1) PG 68
7. MAGIT VS UNIVERSITY OF AGRICULTURE, MAKURDI (1986) 1
NWLR (PART 18) PG 550 AT 552
8. AARON
CHITURU & ORS VS THE COUNCIL ESTABLISHMENT & OF LEGAL EDUCATION & 3
ORS
9. UNIVERSITY OF ILORIN VS RESHEEDAT ADESINA(2010)
9 NWLR (PT 502) AT 719 343 RATIO 12 ESP AT PAGES 386-387:
STATUTES
1.
UNIVERSITY
OF PORT HARCOURT ACT CAP U13 LFN 2004
2. FEDERAL
UNIVERSITY OF OTUOKE (ESTABLISHMENT ACT
2015)
3. THE
EVIDENCE ACT 2011 AS AMENDED
4. THE
PUBLIC OFFICERS PROTECTION ACT LFN 2004
5. THE
1999 CONSTITUTION OF NIGERIA AS AMENDED
[1]Legal
Issue Law and legal definition. https//definitions.uslegal.com : Legal Issue;
accessed through the internet on 7/5/ 2018 at about 11:39Pm
[2]
Black Law Dictionary; 8th Edition by Brain Garner page 849
[3]
Higher education; www.info.com;https//en.m.wikipedia.org
accessed through the internet on 6/5/2018 at 2:am
[4]
Higher education; Britanica.com; https//www.britanica.com accessed through
internet on 7/5/2018 at 11.40pm
[5]
Over view of higher education; https//www.Jica.go.jp (Pdf) higher-02 accessed
through the internet on the 8/5/2018 at 1.30pm
[6]
See section 1(1) of the University of Port Harcourt Act Cap U13 LFN 2004.
See also Federal University of Otuoke (Establishment
Act, 2015
[7]Adeniran
.O. &Gbadamosi .O.A; Legal status of private Universities in Nigeria;
Published by commonwealth Law Bulletin Vol. 41, 2015 issue 3 page 460-484. The
private University (ies) are registered as a not for private outfit just like
an organization. They are doing the wrong thing by making profit. The EFCC
should arrest all the proprietors and charge them to court. They are registered
as an association by corporate Affairs Commission. They can sue or be sued in
that name and not under the license name granted to them. However, having made
profits, they have gone against the Law. Therefore, it is the board of trustees
that should be sued or who can sue. The
board members should also be arrested.
[8]
(2014) 57 (Pt 2) NSCQR Pg 659 esp at Pg 687 and (2013) 54 (Pt 1) NSCQR Pg 600
esp at Pg 642
[9]
Section 2 of the University of Port Harcourt Act Cap U13 LFN 2004
[10]
Ibid
[11]
Ibid section 4 (1) of the Act
[14]
Ibid
[15]
Article 3 of the Third Schedule to section 10 (3)
[16]
. UGC 2010; 71
[17]AmlanjiyaliGaswami;
Higher Education Law and Private University Education in India; toward a
vision; see www.idpc.com accessed through the
internet on 11/5/2018 at 1:am.
[18]
539 U.S 306 (2003)
[19]
Section 1(3) of the University of Port Harcourt Act
[20]The video evidence of the notorious Kidnapper
Evans Confessional statement was played in court and the channel TV relayed/played same in court at 2.56pm. the case was
subsequently adjourned to the 23rd and 27th days of
April, 2018 for continuation
[21] Section 84(2)(a)
[22] Section 84(2)(b)
[23] Section 84(2)(c)
[24] Section 84(2)(c)
[25] Section 84(2)(d)
[26] Section 84(3)(a)
[27] Section 84(3)(b)
[28] Section 84(3)(c)
[29] Section 84(3)(d)
[30] Section 93(1),(2) and (3) where there is the
need to prove a person sign a document.
[31] Section 84(4)(a)
[32] Section 84(4)(b)
[34] Section 84(4)(c) last two lines. See also a
paper presented by Prof. Amuda-KannikeAbiodun (SAN) on “Admissibility of
Evidence as it relates to electronic devises, social media and forensic
science, at the magistrate Association of Nigeria conference, Bayelsa State
Branch, on 12/4/2018.
[35]
Section 2 of the public officer protection Act LFN 2004
[36]
(2013) 9 NWLR (part 1360) Pg 478 at 481-482 Esp at PP: 493 Para C-F, 494 Paras
G-H
[37]
The policy and Laws making process www.etu.org.za
accessed through the internet on 20/5/2018 at 2am.
[38]
Different between law and policy; www.differencebetween.info
accessed through the internet on 20/5/2018 at 3 a.m
[39]Section
1 (b) and (c) of the Act.See also section 3 (r) of the Act.
[40]
Section 39 of the 1999 constitution of Nigeria as amended, see the first
Amendment of the United States of America constitution U.K doesn’t have a
specific part of the Law but incorporated the European convention on human
rights into Law in 1998 and thus guarantee freedom of expression but with
exception as to violence, incitement, religious hatred, terrorism, treason,
defamation, indecency etc. See Article of the Universal Declaration of human
rights and Article 19 of the international covenant on civil and political
Right. See chapter 5 of the constitution
of the Federal Republic of Ghana
(Amendment Act, 1996) especially section 21(1) (a)
[41]
Information through Benin Republic Office of Radio and Teleis
[42]
Article 25 of U.A.E Constitution
[43]
(2005) 19 NWLR (Pt 959) pg 211
[44]
(1997) 4 NWLR (Pt 502) at 719
[45]
(1985) NWLR (Pt 1) Pg 68
[46]
(2010) 9 NWLR (Pt 502) at 719 343 ratio 12 esp at pages 386-387
[47]Amatonjie.
S.T.O.: No fair hearing for Garba; in chapter three of the topic; Nigerian
Universities and their disciplinary powers; published in the book titled; No
fair Hearing for Garba; 2012, published by Dee-Joe printers Port Harcourt,
pages 144-152, espPg 149
[48](1986)
1 NWLR (Part 18) Pg 550 at 552.
[49]
Ibid: pages 550 605
[50]Hon.
Justice Obaseki JSC as he then was Pg 578
[51]
Ibid; Pg 617
[52]
Section 6 of the Economic and financial crimes commission Establishment Act LFN
2004. See also section 6 of the corrupt practices Act LFN 2004.
[53]
AARON CHITURU & ORS VS THE COUNCIL ESTABLISHMENT & OF LEGAL EDUCATION
& 3 ORS, SUIT NO: FHC/PH/CS/111/2015. There were lots of Nigerians who
reacted in favour of National Open University of Nigeria Law students. See the
Nation Newspaper of Tuesday 11/6/2015, 18/8/2015 respectively.
[54] Education Counsel;
www.educationcounsel.comaccessed on 21/5/2018 at 2:15am
[56] Ibid
[57] Ibid
[58] Hon. Justice Nnamani J.S.C as he was in the
case of AmudaGarbaVs University of Maiduguri (supra) at pg. 603
[59] Hon. Justice Uwais, J.S.C as he then was, in
the case of AmudaGarbaVs University of Maiduguri (supra) at pg. 609
[60] Hon. Justice Acholou J.S.C as he then was in
the Lead Judgment of ESIAGA Vs UNIVERSITY
of CALABAR (2004) 21 WRN pg 28
No comments:
Post a Comment