LAW AND UNIVERSITY ADMINISTRATION IN NIGERIA: ISSUES, CHALLENGES AND PERSPECTIVES

Professor Ademola O. Popoola, Ph.D. Department of International Law Faculty of Law Obafemi Awolowo University, Ile-Ife, Nigeria

*Paper Commissioned for Presentation at the Executive Education Programme organised for Vice-Chancellors of Nigerian Universities by the Association of Vice-Chancellors of Nigerian Universities: Le Meredien Hotel Uyo, Akwa Ibom State: 19-20, November 2014

1

LAW AND UNIVERSITY ADMINISTRATION IN NIGERIA: ISSUES, CHALLENGES AND PERSPECTIVES* (a) “The idea of the University is tolerated but not truly accepted in Africa, either by the masses who pay the taxes, or by the political leaders who dispense the taxes. If the Universities succeed in achieving greater relevance, the mass of the people may move from toleration to understanding and acceptance. But even that may be insufficient to prevent increasing confrontation between the state and the university” Professor J. F. Ade Ajayi (1972). (b) “My concern, which possibly many will share related to the creation of governance mechanisms allocating broad discretionary powers over the university to those who may not only be insensitive to its special ethos and needs, but also vulnerable to the temptation to deal with it as only one aspect of the general political and governmental matrix” William Burnett Harvey (1978). I LET ME STATE at once that I feel highly honoured and, indeed, greatly delighted by the invitation kindly extended to me to lead discussion on crucial issues of Law and University Administration at this Executive Education Programme of the Association of Vice-Chancellors of Nigerian Universities (AVCNU). Without the slightest intention to be unduly pedantic, our presentation shall, of necessity, commence with an overview of the University idea and a brief survey of the origins of the modern University. This is because the state of University governance and administration in Nigerian Universities today has been informed by inherited tradition, apart from the historical factors, events and developments in the life of the nation (Ladipo, 2000). It goes without saying that these historical factors, coupled with their influence on, and the nature of, the interactions between the major stakeholders in the University system *

Professor Ademola O. Popoola LLM, PhD (BL), Department of International Law, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria.

2

(Government, the Governing Council, Senate, the Administration, Staff, Students and the Community) have left bold imprint on the present-day practice. The following questions inevitably arise; what, “are the ideas that have led to the founding of universities?” (Thomas, 1968) What sorts of thoughts pass through the minds of their faculty members? Is the conduct of business in a university supposed to be different from the conduct of business in the civil service or ministry where hierarchical relationships and policy directions by politically-elected or appointed Chief Executives play the leading or decisive role? Does an academic need more independence and more individual responsibility than a civil servant or an industrial executive? At the institutional level, is an arrangement which allows for maximum individual freedom and which avoids the normal methods of control in Government or the control in an industrial firm imperative in a university as an organisation? These are some of the questions that will receive some attention in this paper, howbeit, not necessarily in the order in which they have been posed. But first, what is a University? II The University Idea It is difficult to define in detailed universal terms what constitutes a ‘University’. For instance, Cardinal Newman, founder of Dublin University, regarded a University as “the high protecting power of all knowledge and science, of fact and principle, of inquiry and discovery, of experiment and speculation” (Clark Kerr. The Uses of the University (1963:22). But the same Cardinal went on to designate “useful knowledge” as a “deal of trash”. It is not so clear why Newman should call “useful knowledge” trash. We agree with Thomas that Newman’s idea of “useful knowledge” clearly runs against the grain of the academic’s perception of himself as someone that is not only “immersed” in useful knowledge but also one who basks in the public respect which only “useful knowledge” endows, and who feels that it is by “useful knowledge” that s/he is able to serve the community. While it may difficult to define in detailed terms what constitutes a ‘University”, there are a number of important characteristics by which it may be fairly distinguished

3

from similar but not entirely identical institutions. Among these characteristics is the ‘simultaneous presence of senior and junior scholars’. A University has, accordingly, been described as “a society of scholars all of whom are learning, but the more senior scholars, spend part of their time teaching the junior scholars and they also increase their own knowledge by adding to the store of human knowledge. This they do by research”. A University thus evokes in the mind the ideal of A place where those who hate ignorance may strive to know, where those who perceive truth may strive to make others see: where seekers and learners alike, banded together in the search for knowledge, will honour thought in all its finer ways, will welcome thinkers in distress or in exile, will uphold ever the dignity of thought and learning and will exact standard in these things.(cited in Okafor). Remarkably, the African academic tradition has two distinct historical sources (Berghe 1973). The first one, and by far the older, is the Islamic one represented by Al Azhar University in Cairo founded in the 11th century (some 300 years before Oxford and 650 years before Harvard), by Kairouine University in Fez, and by the defunct Sankore University which flourished in 16th Century Timbuctoo, until the Moroccan invasion of 1590. It has been stated that Sankore, unlike the other two great Koranic Universities of North Africa, was not an Arab institution (ibid). Although Arabic was the language of learning (as was Latin in Medieval Europe), Sankore was a product of the black civilization of the Western Sudan which gave rise in succession to the great empires of Ghana, Mali and Songhai. Its importance as a centre of learning may be judged by Leo Africanus’ statement (cited by Berghe) that the book trade in early 16th century Timbuctoo was one of the most profitable lines of business. This is no doubt something remarkable, given the fact that Timbuctoo was then the dominant commercial metropolis of the Western Sudan and one of the main Southern terminals of the trans-Saharan trade. The second historical source of African Universities is the Euro-Christian tradition. The modem Universities, like Cathedrals and parliaments, are indeed a product of the Middle Age. Curiously enough, the Greeks and the Roman had no universities in the sense in which the word has been used since the Middle ages. It was

4

only in the twelfth and thirteenth centuries that there emerged those features of organised education with the accompanying machinery of instruction represented by Faculties and Colleges and courses of study, examinations, and convocation of congregations for the award of academic degrees. Even then, the earliest universities did not have many of the facilities associated with those institutions in modern times. Thus, as Charles Homer Haskins (cited by Odumosu 1973), put it: throughout the period of its origins the medieval university had no libraries, laboratories, or museums, no endowment or buildings of its own. The medieval university was, in the fine old, phrase pasquier, “built of men” — such a university had no board of trustees and published no catalogue; it had no student societies — except so far as the university itself was fundamentally a society of students — no college Journalism, no dramatics, no athletics, none of those “outside activities” which are the chief excuse for inactivity in the American College. It is remarkable that the earliest University, the Studium generale, as it was then called, was established in Medieval Europe under the jurisdiction of the Catholic Church (Eke, 1974). In its relationship with the government of the day and, indeed, the very society in which it existed, the University then was independent, almost an island by itself. Many such Universities later came to life by virtue of Charters granted them by the Pope. They were organised and patterned after the University of Bologna or the University of Paris, their curricula invariably comprising the corpus of knowledge then in existence and which had been approved by the Pope. It has been observed that though essentially autonomous, self-supporting, and comprising scholars and pupils who were devoted to the study and perpetuation of the corpus of theoretical knowledge then available, the medieval Universities looked up to Rome in respect of their studies (Eke, ibid). In other words, academic freedom in the Universities in those days was strictly circumscribed as the universities were not expected to go beyond the boundaries of the approved corpus of knowledge. Indeed, research or the extension of the boundaries of knowledge was in the earliest Universities not a recognised part of academic freedom as we know it today, despite the autonomy of the Universities. Academic freedom in those days meant only:

5

(a) learning power; and (b) teaching power, no more. During the period of the Reformation, the Pope’s authority in Europe diminished. With the rise of naturalism and consequent on the Renaissance, universities began to change more and more in character. They became diversified according to the country in which they existed. While still concerned with the conservation of existing knowledge, each University began to be interested in the new knowledge brought about by the ferment which took place outside the Universities. They also began to adapt themselves, slowly but steadily, to their respective societies - that is to the new nations of Europe, each characterised by its peculiar nationalism. Each University thus began to reflect the traits and the qualities of its immediate society. Thus, the German Universities were essentially research Institutes whilst British Universities, principally Oxford and Cambridge, concentrated on the country’s need for the production of the leaders in the Church and in public life (Eke, ibid.). As a consequence of the emergence of the new nations of Europe, European universities began to be less and less an ivory tower. By the 19th Century, they had in fact become subordinated to the State as distinct from the Catholic Church. In other words, they lost their independence at that stage. They indeed began to be regarded in each of the new nations as an embodiment of the national spirit, mind or will. It is noteworthy that as a result of the scientific revolution, the Universities began to undertake the challenging task of seeking to increase the corpus of knowledge. The industrial revolution also had its own effect on the concept of a University. It made Universities turn increasingly to practical problems instead of the previous singleminded devotion to theoretical knowledge. We can see from the foregoing a shift in relations between the government and the University from total independence to interdependence. The trend in university relations with government since then and over the centuries has been that of interdependence between the government of a country and the Universities of that country. Remarkably, both the older and younger universities in Britain and in countries which follow the British tradition have developed certain common distinctive features over the years. First, they are all self-governing corporations, jealously guarding their

6

autonomy. In this regard, each university is governed by a Council. The Council controls the finance and property of the university and makes formal decisions over most of the university’s business affairs. Effective sovereignty over academic affairs is in the hands of Senate which consists of professors and a few non-professorial members of staff. In the British tradition, it would, in the words of Peter Odumosu (1973), “be little short of scandalous for the Council to issue a directive to Senate or appoint a Professor without advice from Senate or interfere with admissions, examinations and curricula”. Below the Senate are the faculty boards and other committees. It is from these that business originates and flows upwards to Senate and Council. As Sir Eric Ashby (cited by Odumosu) puts it, “in all essentials ... the English university is Professor-run, but its policies are moderated by the presence of a predominantly lay Council, which represents the public interest”. Second, all the universities aspire to grant degrees of similar standard based on curricula of similar contents. There is a marked pre-occupation with uniform and high standards. Every British University wants to be on, what Sir Eric Ashby (ibid) has called “the gold standard of learning”. “In Britain”, says Sir Eric Ashby, “there is an impregnable assumption that university degrees are subject to Gresham’s Law, hence the scrupulous care taken to safeguard standards. The consequences of this assumption permeate many practices in British universities; the insistence on high entry standards, the pre-occupation with honours degrees, the interchange of external examiners’. Third, all British universities make similar assumptions about the social function of higher education in Britain. Until the Robins Report (1963), the assumption was not (as it is in the United States) that higher education should be available to all qualified candidates who want it. Rather, the assumption was that higher education was for a carefully selected elite and, for centuries, it was for an elite that could afford it. In Britain, higher education, or more precisely university education, is much more than professional training. It is this plus “moral education essential for producing men of character suitable to be leaders of the people and custodians of the cultural heritage’. Fourthly, British universities are effectively insulated from the State because their financing is administered by an independent body - the University Grants Committee

7

(UGC). But in spite of the long history of universities in Britain, it was not until 1919 that the UGC was established and state financing of universities on an appreciable scale became a permanent feature of university financing. Before then, State financing had been of an ad hoc nature and at a very small scale. Since 1919, the proportionate share of government in financial grants to universities in Britain, both recurrent and capital expenditure has been rising. The membership of UGC is nearly twenty, a majority of whom are professors or other academic personages actively serving in universities. Other members include heads of schools, local authorities, directors of education and prominent leaders of commerce and industry. The university members are not representatives of the institutions to which they belong and they are appointed in such a way as to ensure that all subjects and disciplines are covered adequately. The terms of reference of the Committee, which were modified in 1946 and 1952, simply enjoined the Committee:- (a) to enquire into the financial needs of university education in the United Kingdom and to advise the government as to the application of any grants that may be made by Parliament towards meeting them, and, (b) to collect, examine and make available information relating to university education throughout the United Kingdom - and to assist, in consultation with the universities and other bodies concerned, the preparation and execution of such plans for the development of the universities as may from time to time be required in order to ensure that they are fully adequate to national needs (see Odumosu, 1973). The second term of reference, which was the result of the 1946 and 1952 amplifications, put planning as one of the functions of the UGC. They also make national needs the touchstone. On the face of these modifications the UGC could legitimately interfere with the autonomy of the Universities. Fortunately, it established and adopted a number of principles for its modus operand! early in its life which has steered it clearly from this course. These principles which are six in all are as follows: (i)

in assessing grants, a five-year period should be envisaged, even though the actual sums are voted each year;

8

(ii)

the grant should be a block grant, earmarking should be kept to the minimum; this ensured as little interference as possible with the financial discretion of universities;

(iii)

favourable note should be taken of local financial support;

(iv)

the committee itself should visit the universities and not delegate that function;

(v)

the committee should publish a report on its activities; and

(vi)

inclusion in the list of grant-aided institutions should depend on standards of work. Thus, by adhering rigidly to these principles, the UGC has succeeded in

guaranteeing the six freedoms of the universities as perceived by the Committee itself. These are: (i)

the selection of students:

(ii)

the appointment of academic staff;

(iii)

the determination of the content of university education and the control of degree standards;

(iv)

the determination of size and rate of growth;

(v)

the establishment of the balance between teaching, research and advanced study, the selection of research projects, and freedom of publication; and

(vi)

the allocation of recurrent income among the various categories of expenditure. In this regard, British Universities are by far more fortunate than European

Universities “which have learnt to live without many of these freedoms” (Odumosu, ibid). For example, in France, the selection of students, the appointment of academic staff and the determination of curricula are taken out of the control of the universities. Thus a school-leaving baccalaureat gives a French student the right to register at a university without much ado; most academic appointments are within the control of the Minister of Education who also approves the curricula; and the budget of universities is subject to detailed supervision. In the old Western Germany, universities were publicly controlled; professors were civil servants and were appointed by the Minister of Education of the State where the university is situated. In the Netherlands, the appointment of professors and lecturers is the prerogative of the Crown which also appoints those who are

9

responsible for the administration of each university. Across the Atlantic in the USA, the state universities are under the control of the state legislature; in some of them budgets are approved in detail by the legislature, items of expenditure are subject to a preaudit check, all purchases are made through state agencies and state officials have a voice in the appointment of academic staff (ibid). All this shows the uniqueness of British universities. There can be no doubt that the liberal treatment of universities in Britain is symptomatic of the liberalism that pervades British political and social life. In Nigeria, a symbiotic relationship has developed between the Government and the universities as a public organisation. First, there is the charter or constitution under which a university itself operates. For a university to have national and international recognition, it requires first and foremost a Charter given it by the government. The Charter sets out the aims and objectives of the institution and the relationship between its component units; as well as of the people functioning therein, and grants it the power to award degrees and other qualifications. The Charter or Constitution has a legal status and any misunderstanding or dispute is resolved within its framework. Second, government funds the public universities. It should also ensure that the public funds invested in the universities are properly utilised in the interest of the nation. It is for that reason that the government provides safeguards at least within the Charter of each University for the accounts of the institution to be audited annually by independent auditors. There is a provision in the Constitution of each public university for a Visitor. In a Federal university, the Visitor is the President. He is not supposed to interfere in the day-to-day administration of the University. Apart from the Visitor, there is the Chancellor, who is the titular head of the University, a sort of constitutional monarch, whose actions are on the recommendations of the Council and the Senate of the University. There is also the Vice- Chancellor who is the Chief Academic and Administrative Officer of the University. Third, and perhaps, the most sensitive area of the Government University relationship is in the academic field. Every University ought to have: (i) hiring power, (ii) research power;

10

(iii) teaching power; (iv) learning power and (v) economic power. Lastly, there is the question of Law and Order. Universities and their members should respect the law of the land. In this regard, universities are not an Island unto themselves. They operate within the confines of the sovereign authority of the nation and are bound by its laws. III A. Organisation and Legal Structures of Nigerian Universities The organisation and structure of Nigerian Universities follow more or less the same pattern. They were (except the Private Universities) brought into being by means of Acts of Parliament, Laws of a state House of Assembly or Military Decrees. (The Private Universities have charters).They are all corporate bodies endowed with all the legal attributes of incorporation. The University is normally defined by statute to include the Officers, the Council, the Senate, the faculties and the students. The powers exercisable by each University are specified and these vest in the Senate (or Academic Board) and the Council, the latter being charged with the “overall governance” of the affairs of the University. There is a traditional hierarchy of the Chancellor (the ceremonial head), Pro-Chancellor (who is also the Chairman of the Council), ViceChancellor (who is also the Principal of the Institution), Deans, Provosts, heads of Faculties or Colleges and Professors. Structurally, the constituent bodies are, in order of superior authority: Senate, Colleges/Faculties/Departments and Institutes. A number of Departments of cognate disciplines may be grouped into “schools” or “colleges” for purposes of optimum utilisation of staff, space and materials. There is, in addition, a body known as congregation (called ‘Convocation’ in some Universities), comprising all graduates of the University, which may make recommendations to Senate or Council on issues of a general nature (Adamolekun 1979). It is remarkable that the Udoji Commission (1974) expressed satisfaction with the organisation and structure of Nigerian Universities. As the Commission states:

11

Our visits to all the Universities and our own personal experiences suggest that the present system of organisation has worked effectively in most of the Nigerian Universities and should therefore be retained. The commission, however, raised a number of issues, details of which need not detain us. Among these are (i) the need for decentralisation of power by Senate and Council. (as they said, however the University is organised, there appears to be a very strong case for allowing professional schools, institutes and colleges a larger degree of autonomy than they had at the time) (2) Delegation of power by the Vice-Chancellor (3) Autonomy and freedom versus Accountability (the two principles need to be balanced) (4) Internal management and (5) modern management techniques. B.

The Universities (Miscellaneous Provisions) Act (as amended) This is a law of general application that applies to all federal universities. It

provides in Section 2 for the composition of the Council with the important qualification that “(2) persons to be appointed to the council shall be of proven integrity, knowledgeable and familiar with the affairs and tradition of the University”. The Council so constituted shall have a tenure of four years from the date of its inauguration, provided that where a Council is found to be incompetent and corrupt, it shall be dissolved by the Visitor and a new Council shall be immediately constituted, for the effective functioning of the University (S. 2A). The powers of the Council are required to be exercised as in the Laws and Statutes of each University, and to that extent, establishment circulars that are inconsistent with the Laws and Statutes of the University shall not apply to Universities (S. 2AA). The Governing Council of a University shall be free in the discharge of its functions and exercise of its responsibilities for the good management, and development of the University. (S. 2AAA) Council shall, in the discharge of its functions, ensure that disbursement of funds of the University complies with the approved budgetary ratio for — (a) Personnel cost; (b) Overhead cost; (c) Research and development;

12

(d) Library developments, and (e) The balance in expenditure between academic vis a-vis on-academic activities. Section 3 of the Principal Act as amended provides for the office of a ViceChancellor (who shall be appointed by the Governing Council), the method of selection, appointment and removal from office “after due process”. The Act in Section 7A, provides for the Composition and Powers of a University Senate. Senate, according to it, shall have powers in all academic matters including the organisation and control of: (a) teaching and research; (b) admission of students; (c) award of degrees including Honoris causa, Certificates and Diplomas; (d) promotion of research, and (e) the exercise of other functions in accordance with the Laws and statutes of its University. The Act in Section 7AA provides that there shall be a Visitor for each of the Universities. The Visitor shall cause a visitation to each University when necessary, at least every five years. The Visitor shall make the report of such visitations and White Paper thereon available to the Council which shall implement same. The Act, in Section 7AAA, provides that students shall — (a)

be represented in the University’s Students Welfare Board and other Committees that deal with the affairs of students;

(b)

participate in various aspects of curriculum development;

(c)

participate in the process of assessing academic staff in respect of teaching; and

(d)

be encouraged to be more self-assured as part of the national development process.

C. The Ife University Laws: Prototype of the University Laws The Ife University Laws basically consist of 1.

The Obafemi Awolowo University (Transitional) Act

2.

The Statutes

3.

The Ordinances, and

13

4.

Regulations It should be importantly noted that the Common Law of England, the Doctrines of

Equity and International legal obligations binding on Nigeria are also legally relevant sources of our University Laws. The Obafemi Awolowo University (Transitional) Act contains the following provisions: (i) Establishment and incorporation of the University 3. (1) As from the appointed day, the university for which the Provisional Council was established by the University of Ife (Provisional Council) Law, 1961, shall be deemed to have been established in accordance with the provisions of this Law, as a university which shall continue to be known as “Obafemi Awolowo University, Ife”. (2) The University shall be a body corporate with perpetual succession and a common seal and shall have power to sue and be sued in its corporate name and to acquire, hold and dispose of movable and immovable property for the purposes of its functions under this Law. (ii) The Objects of the University The objects of the University shall be (a)

to provide facilities for learning, and to give instruction and training in such branches of knowledge as the University may desire to foster and in doing so to enable students to obtain the advantage of a liberal education;

(b)

to promote by research and other means the advancement of knowledge and its practical application to social, cultural, economic, scientific and technological problems;

(c)

to stimulate, particularly through teaching and research, interest in and

appreciation of African culture and heritage; (d)

to undertake any other activities appropriate for a university.

(iii) Functions of the University 5(1) The University shall be both a teaching arid examining body and, subject to the provisions of the Law, shall have the following functions:

14

(a)

to establish such faculties, institutes, schools, extra-mural departments, and other units of learning and research within the University as the University may from time to time deem necessary or desirable;

(b)

to institute professorships, readerships, and lectureships and any other office of any kind and whether academic or not as may be required by the University; to prescribe conditions of service for and appoint persons to such offices and to exercise disciplinary control over them;

(c)

to institute and award fellowships, scholarships, studentships, bursaries, medals, prizes and other academic titles, distinctions, awards and forms of assistance;

(d)

to prescribe from time to time the conditions under which persons shall be admitted to the University or to any particular course of study therein or be allowed to continue in such course of study;

(e)

to grant and confer, under conditions prescribed by the University, degrees, diplomas, certificates and other academic distinctions, to and on persons who have pursued a course of study approved by the University and have passed such examination or other tests and satisfied” such other requirements as the University may prescribe;

(f)

to confer honorary degrees, fellowships and other academic distinctions;

(g)

on what the University shall deem to be good cause, to deprive any person of any degree, diploma, certificate, fellowship, scholarship, studentship, bursary, medal, prize or other academic title, distinction or award whatsoever granted to or conferred on him by the University;

(h)

to provide such lectures and instructions for persons not being members of the University as the University may determine and to grant to any such person such diplomas, certificates or other academic distinctions as the University may deem necessary;

(i)

to accept the examinations passed and periods of study spent by students of the University at other universities or places of learning as equivalent to

15

such examinations and periods of study in the University as the University may determine and to withdraw such acceptance at any time; (j)

to affiliate with other institutions or branches or departments thereof and to recognise selected members of the staff thereof as teachers of the University, and to admit the members thereof to any of the privileges of the University, and to accept attendance at courses of study in such institutions or branches or departments thereof in place of such part of the attendance at courses of study in the University and upon such terms and conditions as may, from time to time, be determined by the University;

(k)

to make provision for research and advisory services and with these objects in view to enter into such arrangements with other institutions or with public bodies as the University may deem desirable;

(i)

to undertake printing, publishing and book-selling;

(m)

to provide for the residence, discipline and welfare of the members of the University and its employees;

(n)

to demand and receive such fees as may, from time to time, be prescribed by the University;

(o)

to act as trustees or managers of any property, legacy, endowment, bequest or gift for purposes of education or research or otherwise in furtherance of the work and welfare of the University, and to invest any funds representing such property, legacy, bequest, endowment, or gift, if not immediately required, on such security as the University may deem fit;

(p)

to acquire, hold, grant, charge or otherwise deal with or dispose of movable and immovable property wherever situate;

(q)

to accept gifts, legacies and donations, but without obligation to accept the same for a particular purpose unless the University approves the terms and conditions attaching thereto;

(r)

to enter into contracts, establish trusts, solely or jointly with any other authority or institution and to employ and act through agents;

(s)

to erect, provide, equip and maintain libraries, laboratories, lecture halls, refectories, sports grounds, playing fields and other buildings or things

16

(whether in Nigeria or elsewhere) necessary or suitable or convenient for any of the objects of the University; (t)

subject to any limitation or conditions imposed by or in accordance with this Law, to invest any moneys appertaining to the University by way of endowment and whether for general or special purposes, and such other moneys as may not be immediately required for current expenditure, in any approved investments or securities or in the purchase or improvement of land, with power from time to time to vary any such investments and to deposit any moneys for the time being uninvested with any bank on deposit or current account;

(u)

to take such steps as may, from time to time, be deemed expedient for the purpose of procuring contributions to the funds of the University;

(v)

to borrow, whether at interest or not and if need be upon the security of any or all the property, movable or immovable, of the University, such moneys as the University may, from time to time, in its discretion find it necessary or expedient to borrow;

(w)

to make gifts for any charitable purpose;

(x)

to do anything which it is authorised or required by this Law, or by statutes, ordinances or regulations to do;

(y)

to do all such acts and things, whether incidental to the powers aforesaid or not, as may be require in order to further the objects of the University as a place of education and of learning and research.

(2) The powers conferred upon the University by subsection (1) aforestated shall not necessarily have to be exercised by the officers, authorities and person mentioned in Statute 2 of the University as comprising the University’ acting together on anyone occasion, and any such powers may be exercised by any of those officers, authorities, persons or others where provision enabling any of them so to do is made in or by virtue of this Law. (iv) The Visitor and his functions 6. (1) The Visitor may from time to time conduct a visitation of the University in person, or after consultation with the Chancellor, direct that the same shall be

17

conducted by such person or persons as he may appoint in that behalf, for the purpose of advising on the effective fulfilment of the objects and the due exercise of the, functions of the University as prescribed by law. (2) It shall be the duty of all officers, members, authorities, employees of and persons otherwise connected with the University to make available to the Visitor, and to any other person or persons conducting a visitation in pursuance of this section, such facilities and assistance as he or they may reasonably require for the visitation. (v) Prohibition of discrimination on grounds of race, creed, class, religion, etc. 7.

(1) Membership of the University shall be open to all persons of either sex and of whatever race, ethnic group or place of origin, religion, political or other opinion, nationality or class; and no test of religious or other belief or profession shall be adopted or imposed in order to entitle any person to be admitted to such membership or to be awarded any degree, certificate or other academic distinction of the University. (2) No fellowship, scholarship, studentship, medal, prize or other academic distinction or award of the University shall be limited to persons of any particular race or ethnic group or place or origin, political or other opinion, religion, nationality, or class if the cost of the same is met from the general funds of the University. (3) Nothing in this section shall preclude the appointment of a member of a particular religious body to be minister of religion to members of that body who are employees or students of or otherwise connected with the University.

(vi) Common seal 8.

(1) The common seal of the University shall be kept in such custody as the Council may direct and shall not be used except by resolution of the Council or in such other manner as may be prescribed by statute. (2) The common seal of the University shall be officially and judicially noticed.

(vii) The offices, constituent bodies and other authorities of the University

18

(a) Chancellor 9. There shall be a Chancellor of the University who shall be the head of the University and shall in relation to the University take precedence before all other members thereof; and when he is present, he shall preside at all meetings of Convocation and other assemblies of the University. (b) Pro-Chancellor 10. There shall be a Pro-Chancellor of the University who shall, in relation to the University, take precedence before all other members of the University except the Chancellor and except the Vice-Chancellor when acting as Chairman of Convocation or the Deputy Vice-Chancellor when so acting, and the ProChancellor shall, when he is present, be the chairman of all meetings of the Council. (c) Vice-Chancellor 11. There shall be a Vice-Chancellor of the University, who shall be the principal academic and executive officer of the University and ex-officio chairman of the Senate, and who shall in the absence of the Chancellor confer degrees and other academic titles and distinctions of the University. (d) Deputy Vice-Chancellor 12. There shall be. a Deputy Vice-Chancellor of the University who shall assist the Vice-Chancellor in the discharge of his functions as prescribed by law and shall, subject to the Statutes, in the absence of the Vice-Chancellor exercise and perform such of the functions of the Vice-Chancellor as the Vice-Chancellor or if the Vice-Chancellor should be incapacitated, the Council, may delegate to him. There are now two (2) Deputy Vice-Chancellors in the University. (e) Other officers 13. There shall be such other officers of the University as the Council may, from time to time, desire fit to appoint. (ix) Establishment and functions of the Council 15 (1) There is established for the University a council to be known as the Council of the Obafemi Awolowo University, the constitution and procedure of

19

which shall, subject to the provisions of this Law, be in accordance with such provisions as may be made by statute in that behalf. (2) The Council shall be the governing authority of the University and shall have the custody, control and disposition of all the property and finances of the University and, except as may otherwise be provided in the Law and the Statutes, shall manage and superintend generally the affairs of the University and, in any matter concerning the University not provided for by or under the Law, the Council may act in such manner as appears to it best calculated to promote

the

interests,

objects

and

purposes

of

the

University.

(3) Without limiting the generality of the provisions of subsection the Council, subject to the provisions of the Law and the Statutes, shall have the following functions: (a)

to participate in the making, amendment or revocation of statutes pursuant to the provisions of the Law;

(b)

to make, amend or revoke ordinances pursuant to the provisions of the Law;

(c)

to govern, manage and regulate the finances, accounts, investments, property, business and all other similar affairs whatsoever of the University, and for that purpose to appoint bankers, solicitors and any other persons or agents as the Council .may deem expedient, and to cause proper books of accounts to be kept of all sums of money received and expended by the University and of the as sets and liabilities of the University in such manner as shall give a true and fair view of the state of the University and explain its transactions from time to time;

(d)

to borrow money on behalf of the University;

(e)

to invest any moneys belonging or appertaining to the University and not for the time being required to be expended for any of its purposes;

(f)

behalf, faculties, institutes, schools, boards, departments, and other units of learning and research; to prescribe their organisation, constitution and functions and to modify or revise the same;

20

(I)

to authorise, after considering the recommendation of the Senate in that behalf, the establishments for the academic staff in the University, and, with the approval of the Senate, to suspend or abolish any academic post except a post created by the Law or the Statutes;

(m)

to authorise the establishments for the administrative staff and other staff in the University and to suspend or abolish any such posts other than posts created by the Law or the Statutes;

(n)

to make the appointments authorised by the Law and the Statutes;

(o)

to regulate the salaries and to determine the conditions of service of all staff employed by the University; provided that the salaries and conditions of service of the academic staff shall be regulated and determined in accordance with the recommendation of the Senate;

(p)

to exercise powers of removal from office and other disciplinary control over the academic staff, the administrative staff and all other staff in the University;

(q)

to institute, in consultation with the Senate, and subject to any such conditions as may be specified by the Council or the founders, as the case may be, fellowships, studentships, scholarships, bursaries, prizes, medals and other endowments and aids to study and research;

(r)

to promote and to make provision for research within the University;

(s)

to call for reports from the Senate on any matter relating to instruction or teaching or any other academic matter within the University;

(t)

to award honorary degrees and other distinctions in accordance with such provisions as may be made by statute in that behalf,

(u)

to supervise and control the residence and discipline of students of the University and to make arrangements for their health and general welfare;

(v)

to provide for the welfare of all persons employed by the University and the wives, widows and dependants of such persons, including the payment to them of money, pension or other retirement benefits and to subscribe to benevolent, superannuation or other similar funds for the benefit of such persons, their wives, widows and dependants;

21

(w)

to perform all such other functions as are or may be conferred or imposed on the Council by the Law, or by the Statutes, Ordinances and Regulations and to carry the Law, the Statutes, Ordinances and Regulations into effect so far as they may concern the Council.

(4) The Council may constitute boards, committees or other bodies for the purpose of making recommendations to the Council in respect of any of its functions

conferred

or

imposed

under

or

by

virtue

of

the

Law.

(5) The Council may delegate any of its functions conferred or imposed under or by virtue of the Law to the chairman or any other member or members thereof or to any body comprising such member or members and such other persons as the Council may appoint: Provided that(a)

any such delegation shall be revocable at will and shall not preclude the Council from exercising any of its functions under or by virtue of the Law;

(b)

the Council shall not so delegate its powers to participate in the making, amending or revocation of statutes or to make, amend or revoke ordinances.

(x) Composition of the Council 16. The Council of the University shall consist of [1993 No. 11.] (a)

the Pro-Chancellor;

(b)

the Vice-Chancellor;

(c)

the Deputy Vice-Chancellors;

(d)

one person from the Ministry responsible for education;

(e)

nine persons representing a variety of interests and broadly representative of the whole Federation to be appointed by the President; [1996 No. 25.]

(f)

four persons appointed by the Senate from among its members;

(g)

two persons appointed by the Congregation from among its members;

(h)

one person appointed by Convocation from among its members

The composition of Council has been modified by reducing the number in (e) to four (4).

22

(xi) Establishment and functions of the Senate 17.

(1) There is established for the University a Senate, the constitution and procedure of which shall, subject to the provisions of this Law, be in accordance with

such

provisions

as

may

be

made

by

statute

in

that

behalf.

(2) The Senate shall, subject to the provisions of the Law and subject also to the powers reserved to the Council in all matters affecting the University, be the supreme academic authority of the University and be responsible for all academic matters in the University, and shall organise, control and direct the academic work of the University, both in teaching and research, and shall take such measures and act in such a manner as it thinks proper for the advancement of the University as a place of education, learning and research. (3) Without limiting the generality of the provisions of subsection (2) hereof, the Senate, subject to the provisions of the Law and the Statutes, shall have the following functions (a)

to formulate and establish the academic policy of the University and to advise the Council on the provision of facilities to carry out that policy;

(b)

to appoint the Deans of the faculties in accordance with such provisions as may be made by statute in that behalf;

(c)

to direct and regulate, after considering the views of the boards of the faculties concerned respectively, the instruction, teaching and courses of study within the University;

(d)

to regulate all University examinations, and after considering the recommendations of the boards of the faculties concerned respectively, to appoint University and external examiners;

(e)

to regulate the admission of persons to the University and to courses of study in the University and their continuance or discontinuance in such courses and the conditions qualifying for matriculation and for admission to the various titles, degrees, distinctions and other awards offered by the University;

(j)

to award degrees (other than honorary degrees) diplomas, certificates and other academic titles and distinctions to persons who shall have pursued

23

in the University such courses of study as may be approved by the Senate and shall have passed such examinations of the University and satisfied such other conditions as may be prescribed by Regulations of the University; (g)

to recommend to the Council, subject to the procedure prescribed by statute, the names of persons for the award of honorary degrees or other University distinctions;

(h)

to determine what formalities shall attach to the conferment of degrees and other distinctions;

(i)

to determine, after considering the views of the boards of the faculties concerned respectively, what examinations and courses of study in other universities or places of learning shall be deemed equivalent to examinations and courses of study in the University;

(j)

to formulate, modify or revise schemes for the organisation of the existing faculties, institutes, schools, boards, departments or other units of learning and research in the University and to assign to them their respective subjects of study and also to make recommendations to the Council as to the expediency of the establishment at any time of other faculties, institutes, schools, boards, departments or other units of learning and research or of abolishing, combining or sub-dividing any of them;

(k)

to review, refer back, control, amend or disallow any act of any faculty, institute, school, board, department or other academic body of the University and to give directions to any such body;

(l)

to recommend to the Council, subject to any such conditions as the Senate may wish to specify, or as may be laid down by the founders, as the case may be, the institution of fellowships, scholarships, studentships, bursaries, prizes, medals and other awards and to prescribe the mode of competition for, and to award the same;

(m)

to promote research within the University and to require reports from time to time on such research;

24

(n)

to prepare estimates of expenditure required to carry out the academic work of the University and to submit them to the Council for approval;

(o)

to make recommendations to the Council on the establishments for the academic staff in the University and on the suspension or abolition of any posts in such establishment other than posts created by the Law and the Statutes;

(p)

to review from time to time the duties of all members of the academic staff and to make recommendations to the Council on their terms and conditions of service;

(q)

to be generally responsible for the administration of the University library;

(r)

to promote and administer the extra-mural work of the University;

(s)

to make recommendations to the Council concerning all University fees;

(t)

to require a student on academic grounds to withdraw from the University;

(u)

to prescribe the academic dress to be worn by the various officers or members of the University, and the occasions on which it shall be worn;

(v)

except as otherwise provided, to appoint representatives of the University on other bodies;

(w)

to discuss and to declare an opinion on any matter whatsoever relating to the University and to report to the Council on any matter referred to it by the Council;

(x)

to make, amend or revoke regulations, and to participate in the making amendment or revocation of statutes and ordinances;

(y)

to exercise all such other functions as are or may be conferred or imposed on the Senate by the Law or by the Statutes, Ordinances or Regulations and to carry the Law, the Statutes, Ordinances and Regulations into effect so far as they may concern the Senate.

(4) The Senate may constitute boards, committees or other bodies for the purpose of making recommendations to the Senate in respect of any of its functions conferred or imposed under or by virtue of the Law. (5) The Senate may delegate any of its functions conferred or imposed under or by virtue of the Law to any member or members thereof or to any body

25

comprising such member or members and such other persons as the Senate may appoint: Provided that(a)

any such delegation shall be revocable at will and shall not preclude the Senate from exercising any of its functions under or by virtue of the Law;

(b)

the Senate shall not delegate its powers to participate in the making, amendment or revocation of statutes or ordinances or to make, amend or revoke

regulations,

or

to

award

degrees,

diplomas,

certificates,

fellowships, scholarships, studentships, exhibitions, bursaries medals, prizes, and other similar titles or distinctions. (xii)

Deprivation of degrees, diplomas, etc., and withdrawal of fellowships, studentships, etc. 18. (1) Subject to a right of appeal from the decision of the Senate to the Council, the Senate shall have power to deprive any person of any degree, diplomas, certificate, fellowship, scholarship, studentship, bursary, medal, prize or other academic title, distinction or award whatsoever conferred upon or granted to him by the University, if after such inquiry as the Senate may deem necessary, the Senate is satisfied that he has been guilty of scandalous or other dishonourable conduct in obtaining the same. (2) Where the Senate is satisfied that on academic grounds, it is necessary so to do, the Senate may, as the circumstances may require, withdraw or direct the withdrawal of any fellowship, scholarship, studentship, bursary or other academic award whatsoever granted to any student or other person by the University.

(xiii) Faculties 19. (1) There shall be in the University such faculties as may be established by or under the provisions of the Law and each faculty shall be constituted in such

manner

as

may

be

prescribed

by

statute.

(2) The functions of such faculties shall be such as may be prescribed by statutes, ordinances or regulations.

26

(xiv) Institutes 20. (1) There shall be in the University such institutes and other units of learning and research as are deemed desirable for the organisation and carrying out of the academic work of the University. (c) any regulation being inconsistent with the provisions of the Law or any other Law or any statute or ordinance, then in respect of paragraph (a), the provisions of the law; in respect of paragraph (b), the provisions of the law or the statute; and in respect of paragraph (c), the provisions of the Law, the statute or the ordinance, as the case may be, shall prevail and such statute, ordinance or regulation as mentioned respectively in those paragraph, shall, to the extent of the inconsistency, be void. (xxiv) Residence and discipline 30. General powers of the Council in relation to discipline and order Subject to the provisions of this Law, the Statutes, Ordinances and Regulations, the Council shall have power to deal with all matters relating to the maintenance of discipline and order in the University in such manner as the Council may deem appropriate and whether or not such matters are referred to the Council by the Vice- Chancellor. (xxiv) Removal of officers and staff 3 . (1) The Council may remove from office the Vice-Chancellor, the Deputy ViceChancellor, and other officer, of the University (excluding the Chancellor and the Pro-Chancellor), any member of the academic staff or any member of the administrative staff, subject to any such provisions as may be made by statutes or ordinances in that behalf (2) Notwithstanding the provisions of subsection (1) hereof any member of the staff or any member of the administrative staff(a)

who is appointed after or allowed to continue in employment beyond any retiring age prescribed by the Council; or

(b)

whose employment is temporary, part-time or probationary; or

(c)

whose appointment is not intended to continue until retiring age, may be removed from office in accordance with the terms of his contract

27

of service or in exercise of powers of disciplinary control conferred in that behalf in or by virtue of the Law. (3)

Any other staff may be removed from office in accordance with the terms of his contract of service or in exercise of powers of disciplinary control conferred in that behalf or by virtue of this Law.

(xxv) Functions of Vice-Chancellor 32. The Vice-Chancellor shall exercise such functions as may be conferred or imposed upon him by the Law, the Statutes, Ordinances and Regulations, and shall, subject to the provisions of the Law, exercise general supervision over discipline in the University (including in particular the exercise of disciplinary control over students) in such manner as the Vice-Chancellor may deem appropriate. (xxvi) Discipline of students 33. (1) Subject to the provisions of section (33), where it appears to the ViceChancellor that any student of the University has been guilty of misbehaviour, the Vice-Chancellor may, without prejudice to the exercise of any other disciplinary powers conferred on him by the Law, the Statutes, Ordinances or Regulations, direct(a)

that the student shall not, during such period as may be specified in the direction, participate in such activities of the University or make use of such facilities of the University, as may be so specified; or

(b)

that the activities of the student shall, during such period as may be specified in the direction, be restricted in such manner as may be specified; or

(c)

that the student be rusticated for such period as may be specified in the direction; or

(d)

that the student be expelled from the University.

(2) Where a direction is given under paragraph (c) or (d) of subsection (I) of the section, the student concerned may appeal against the direction to the Council which may, after causing such inquiry to be made into the matter as it may

28

consider appropriate, either confirm or set aside the direction or alter it in such manner as it may think fit. (3) The fact that an appeal against a direction has been brought in pursuance of section (2) of this section shall not affect the operation of the direction pending the termination of the appeal. (4) The Vice-Chancellor may delegate any of his powers to discipline students under section to a disciplinary board consisting of such members of the University as he may nominate. (5) The Vice-Chancellor may empower the head of a hall of residence or other similar institution of the University to discipline students, other than by way of rustication or expulsion from the University, for any breach of hail rules. (6) Nothing in the section shall be construed as precluding the restriction or termination of a student’s activities in or attendance at the University other than on the grounds of misbehaviour. (7)

The Council, acting in accordance with the advice of the Vice-Chancellor and the Senate, may make ordinances governing the discipline of students ‘and may prescribe in such ordinances what acts or omissions on the part of students shall for the purpose of this section constitute “misbehaviour” and until such ordinances are made, the expression ‘misbehaviour” shall mean any such act or omission as the Vice-Chancellor may from time to time so designate.

(xxviii) Powers of Council to suspend students, University activities, etc. 34. Notwithstanding anything contained in section 31 or 32, the Council shall have power to discipline any student, class of students, or all students of the University in such manner, whether by way of rustication, expulsion or otherwise, and to suspend the academic and other activities of the University or any part thereof for such period as the Council may deem appropriate, where in the opinion of the Council good order and discipline in the University has been or is likely to be prejudiced by any act or omission on the part of such student or students and the Council is satisfied that the situation so created has not been or

29

cannot be dealt with effectively or at all by the exercise of any other powers to discipline students conferred by the provisions of the Law. Provided that the Council may suspend the academic and other activities of the University or any part thereof only where the Council, after considering a report in that behalf from the Senate, is satisfied that in the circumstances prevailing at the material time the same cannot continue to be carried on effectively or in the overall interest of the University. (xxix) Residence of staff and students 35. (1) The Council may require that any member of the academic staff or the administrative staff shall live within the University precincts in accommodation provided for the purpose. (2) The Vice-Chancellor may require that any student shall live in a hall of residence provided for the purpose and under such conditions of residence as may

from

time

to

time

be

prescribed

by

statute

or

ordinance.

(3) The Vice-Chancellor may require that any student shall live outside the University within such radius from the University as shall from time to time be prescribed by ordinance or regulation.

(xxix) Protection of the University’s estate 36. (1) The Vice-Chancellor shall have responsibility for ensuring that peace and order are maintained within the precincts of the University’s estate and it shall be lawful for the Vice-Chancellor to take such action at all times as he may deem necessary or expedient to maintain peace, protect property and promote and protect the safety and welfare of the students and staff resident within the estate. (2) Provision may be made by ordinance for the purpose of any of the matters mentioned in subsection (1) hereof IV A. The Visitor in the Nigerian University The statutes of Nigerian universities, in line with the British University tradition provide for the office of a Visitor. This feature of the Nigerian University governance has

30

established its distinctive character today. The institution of the Visitor itself was developed at common law to provide oversight for ecclesiastical and eleemosynary corporations. The principal function of the Visitor was to ensure that the corporation adhered to its proper purposes and to settle internal disputes so as to avoid the delay, expense and unseemliness of litigation in the Courts. Thus, the essence of visitation was expressed in Halsburys Laws of England in the following terms. A visitorial power attaches as a necessary incident to all elemosynary corporations, and may be exercisable in respect of all corporations. It enables the persons exercising it, who is called the visitor to settle disputes between the members of the corporation, to inspect and regulate their actions and behaviour, and generally to correct all abuses and irregularities in the administration of the charity. The tribunal of the visitor is forum domesticum, in other words, the court of the founder its jurisdiction being derived from the right of the founder to determine concerning his own creator. The common law of visitors has been so well developed and has been applied in Nigeria, subject to statutory modification as provided in the various Reception Laws. It is specifically embedded in the law by the decision of the Supreme Court in University of Lagos et al. v. Dada. Now, the visitor was a pioneer figure in the University of Ibadan. There, the Visitor in the Ordinance of 1954 had, in addition to the general power to direct a visitation at such time and in such manner as he deemed fit, in order to assure the colleges effective fulfillment of its objects, the power to appoint the chairman of the Council and the Chancellor, to give or withhold his approval of the Council’s appointment and dismissal of the Principal, to make final and dispositive interpretation of the basic college constitution and statutes and to appoint to the Council one member in addition to his other appointees who served on the Council, ex officio. In the exercise of all his powers, the visitor was authorised to act in his sole and absolute discretion, although in some instances, he was enjoined to consult the Council, the Senate, or both.

31

While the relevant statutes in respect of other Nigerian Universities do not all couch the powers of the visitor in the terms stated above, there can be little doubt that the array of visitorial powers articulated above certainly pose serious threats to the autonomy of these institutions. The office of the visitor had indeed attracted a wide collection of governance powers. He exercised legislative powers in respect of the University statutes, wielded executive powers over key appointments and dismissals and served and still serves in judicial or quasi-judicial powers in interpreting the law of the University and resolving disputes. These are wide powers vested in those who have successively exercised general political and governmental powers as well. Now, the position has been established in England for more than three centuries that in matters relating to the internal affairs of a University the Visitor and not the courts have the powers to adjudicate or grant a redress. The rule has been stated thus in the case of Thorne v. University of London. The principle is that at common law the Court had no jurisdiction to deal with the internal affairs or government of the University, for those have been confided by the law to the exclusive province of the visitor. Besides, Holt, C.J. had in a dissenting judgment in Phillips v. Bray, while discussing the power of the visitor under the common law stated thus: the office of the visitor by the common law is to judge according to the statutes of the college, and to expel and deprive upon just occasions, and to hear appeals of course. And from him, and him only, the party grieved ought to have redress; and to him the founder hath reposed to entire confidence that he will administer justice impartially that his determinations are final, and examinable in no other court whatsoever. The Visitor is thus given extensive power to hear complaints and grievances arising within the University Community. Historically, the English Courts have deferred in substantial measure to his jurisdiction and have refused to intervene in what are regarded as domestic matters. Thus, in a case which occurred in 1747, wherein a law suit was brought to challenge an election to a fellowship at Clare College, Cambridge, the Court found that the Chancellor of the University was also the visitor of the college and refused to entertain the suit.

32

The Court went further to state: if the Chancellor of this University then is the Visitor, the general powers of a Visitor are well known: no court of law or equity can anticipate their judgement, or take away their jurisdiction, but their determinations are final and conclusive. And it is a more convenient method of determination of controversies of this nature, it is at home, forum domesticum, and final in the first instance, and they should be adjudged in a short way second arbitriuni boni yin, it is true this power may be abused; but if it is exercised in a discreet manner, it is much less expensive than suits at law or in equity, and in general, I believe, such appeals have been equitably determined. It is thus clearly established that the powers of the visitor to intervene are exclusive and the courts will not interfere to grant redress. Any member of the University who is aggrieved is entitled to take his case to the visitor for redress and the latter is obliged to look into the complaint and adjudicate upon it as may be just. The reluctance of the courts to interfere in matters regarded as the internal affairs of a University is well illustrated by the following cases. In Thorne v. University of London, the plaintiff had complained against his examination, most especially, the mode of ascertaining candidates’ marks by the examiners. The examiners had followed the Registrar’s interpretation and placed the plaintiff first in the examination and awarded him a field medal. Two years later, it was discovered that the Registrar’s interpretation was wrong and that the plaintiff should have been placed second and the candidate placed second would have been placed first, were the right regulations to be used. But instead of withdrawing the gold medal earlier awarded, it was decided to award the man who could have come first another medal. He challenged the decision on the ground that the interpretation of the Registrar had formed the basis of a contract from which the University authorities cannot now rescind. The court. however, held that the relationship between the plaintiff and the University was not contractual and that matters relating to the holding of examinations and the granting of degrees and distinctions were issues that related to the management of the University. The court accordingly declined jurisdiction.

33

In R. V. Dunsheath ex P. Meredith, the Chairman of convocation refused to summon a meeting of convocation to discuss the refusal of Council of the School of Slavonic Studies to reappoint a member of staff. In an action on this case, Lord Goddard held that whether a particular person is a fit and proper person to be appointed or retained as a teacher in a University was within the domestic jurisdiction of the visitor. In Simon Fraser University v. Juliani, the President of the University had immediately accepted the resignation of the defendant from the University on the condition that he was prepared to leave the University campus about seven months before resignation became effective. The defendant accepted the President’s terms and endorsed the President letter to that effect, but contrary to his undertaking he continued to visit the campus after the stated date, where-upon the University sued for an injunction to restrain him. It was held that the exchanges had created a contractual relationship between the defendant and the University, a breach of which was actionable. Nigerian Case Law on The Visitorial Jurisdiction The first point of reference is the now famous case of the University of Lagos V Dada which, as stated earlier on, specifically assimilated into Nigerian law the doctrine. The case has since become authority for the broad proposition that the courts will not interfere in matters within the jurisdiction of the Visitor or which may conveniently be said to be of a ‘domestic nature’. The Supreme Court was in that case, dealing mainly with powers vested in the Visitor by virtue of Sections 15 and 16 of the University of Lagos Decree No. 3 of 1967. Section 14 Subsection (1) and (2) of the Decree not only gives the Visitor the power to decide the meaning of the University statutes, but also in addition that the visitation power, conferred on him by section 16 thereof, makes the decision of the Visitor on any matter referred to him as binding upon “the authorities, staff and students of the University”. Perhaps the case which has brought out most clearly the judicial attitude of the matter is O. A. Akintemi & Ors v. Professor C. A. Onwumechili. Here, three female students of the University of Ife brought in the High Court, Ibadan a joint application against the Vice-Chancellor and the Registrar of the University of Ife as well as the University itself praying for an order of mandamus to compel the respondents to publish

34

and communicate to the Applicants the result of the Part IV final LL.B degree examinations taken by them in June, 1981 at the Faculty of Law, University of Ife, among other remedies. During the 1980 June examinations the University got wind of allegation of leakages of examinations and examination malpractices involving some students in the Faculty of Law of the University. The Vice-chancellor, thereupon set up an investigation panel to inquire into the matter. The applicants were among the students who were invited to testify before the panel. At the end of the fact finding exercise, “it was found that the applicants, along with others, and ‘pre-knowledge of the examination questions in the Law of Evidence”. Consequently, the applicants were suspended forthwith for the rest of the session and they were not to return to the University until the beginning of the 1981/82 session. Whereupon, they commenced certiorari proceedings in the High Court to have the suspension order quashed. The High Court granted the application, quashed the order of suspension, and made an order of injunction against the Vice-Chancellor. The Court also directed him to issue within seven days of the date of the ruling a ‘counter-manding’ letter ‘to restore’ to each applicant her ‘rights and privileges’. The University compiled with the orders made. The applicants were allowed to participate fully in the University activities and they sat for the LL.B final examinations. But the University did not communicate, release or publish their results. In a reserved ruling, Fakayode, Ci (Oyo State), dismissed the claims of the applicants. In arriving at this decision, the learned Chief Judge noted that the “domestic disputes of University are for the settlement by the domestic tribunal University like the Faculty Board, Senate, Council and finally the Visitor”. He said this position applied to the application for mandamus and injunction against a University. After reviewing the position with regard to that constitutes “domestic disputes” within a University he stated further: For all that I have said above and having regard to the authorities I have already cited, I come to the irresistible conclusion that the two legs of the plaintiff claim must fail because the issues of setting, sitting and marking of examination papers and publishing the results of such examinations are matters of the domestic dispute within a University and such matters can be looked into by the Visitor. If the Visitor, on the

35

demand of the applicants, fails to look into the dispute he can be compelled to do so by an order of mandamus. But no Court in the land can compel the visitor to decide the dispute one way or the other. His decision on the dispute cannot be looked into by the court. The courts cannot perform visitorial duties. In the Court of Appeal, Akanbi J CA stated: I approach the matter from the premise that it is the primary aim, the statutory, duty of the University to grant, confer and award degrees to the students and not the court. That duty is essentially of a domestic nature, to be carried out by the Senate of the University, see section 16 of the University Law. Where, however, the Senate fails, neglects or deprives a student, of his or her degree, and I suppose without good cause, the student has right of appeal to the council see section 17(1) of the Laws. His Lordship went further: The clear point that was made was that domestic dispute such as publication, or non-publication of results of arrangement for sitting of examination and the marking of examination papers and many more are all within the competence of the visitor of the University to look into and if as the learned judge further observed, the visitor on the demand of the applicants failed, to look into the dispute he can be compelled to do so by order of mandamus. His Lordship then concluded From all I have said above, I regret to say that the applicants in this case have jumped the gun and cannot therefore be heard to talk of the rule of natural justice in this case — not at least until the Senate has had a chance to deliberate on their case. In his own judgment Dosumu JCA stated: The complaint of the applicants that the University has refused or declined to publish their examination results is such matter that can be

36

looked into by the visitor. The applicants have not availed the visitor the opportunity to look into it for no reason whatever. In the Supreme Court, Irekefe JSC (as he then was) said: On the whole, it seems to be incontestable that the issues with which this appeal is concerned belong to the domestic domain of the University as enshrined in the statute establishing it and are as such not justiciable in a Court of Law. On the totality of the facts prescribed in this appeal I am in no doubt that the respondents were justified in law to have, as it were, staged a pre-emptive environmental stroke, against those students suspected of examination malpractices in order to preserve from being polluted the University’s channel of academic excellence. Afterall, a University is all about academic excellence. In Judith E. Asien v. The University of Ibadan the applicant filed an action as a motion exparte. She had enrolled as a student of the University of Ibadan to read law and qualified to sit for the Bachelor of Laws examination in July 1984 as a full-time student. Sometime after she had finished her final examination, an anonymous letter was written and circulated in the University alleging that she was involved in examination misconduct, namely cheating, On the recommendation of the Faculty Head, the processes provided for under the University Law were set in motion. The applicant felt outraged by the investigation process which she believed was motivated by previous disagreements between the Faculty Head and herself she refused to cooperate with the investigation process. Instead she filed an application in the High Court of Oyo State seeking (a) a declaration that the order made by the senate of the University to the effect that her final result be withheld pending the result of the investigation processes then pending in so far as it affected her, be declared illegal, unconstitutional and void, and (b) an order of mandamus compelling the University to release forthwith her final LL.B examination results. On the basis of the affidavit evidence before him and the argument of counsel, the trial judge, Ibidapo J Obe granted the order of mandamus sought and ordered the University to release his result, mainly on two grounds. Firstly, that the University and/or its investigation bodies were totally

37

tainted with bias against the applicant and therefore, ought not to sit in judgement over her, and secondly, that in view of the provisions of the Special Tribunal (Miscellaneous Offences) Decree No.20 of 1984, which made cheating in examinations an offence punishable on conviction with twenty years imprisonment with hard labour, the allegation of examination cheating against the respondent was no longer a matter within the domestic purview of the University, its jurisdiction having become ousted by the Special Tribunal. The appeal to the Court of Appeal raised, among others, the following issues. First, that the court’s intervention cannot appropriately be sought and/or to be permitted in this case. Second, that the remedy of mandamus sought is not available to compel the release of a student’s result. On the pertinent issue of the domestic jurisdiction of the University, Uche Omo JCA (as he then was), after reviewing counsel arguments on both sides and relevant cases cited stated: I agree with the view that issues here raised are indeed ones relating wholly and solely to the rights of the Senate and the University in the conduct of its examinations and the conferment of its degrees. Whilst I do not with respect take the view that the Courts jurisdiction is ousted in all such cases. I find nothing in the conduct of the senate or the University per se to warrant proceedings under Order 53 for judicial review. This appeal would therefore succeed on this ground alone. Dosumu JCA, in his judgement, stated that “The Court cannot intervene in the domestic disputes between the University and its students until all processes in the University regulations for resolving such disputes have been exhausted. That seems to be the law”. He went further to state, most pertinently that. In this matter the University was about to conduct an investigation into allegations of malpractice made against the respondent; but before this was done; she instituted an action in court against the university to compel it to release the result of her examination. The respondent did not seek to prohibit the University from conducting the investigation on the ground of likelihood of bias which she put forward. She assumed that

38

the university was already guilty of bias and should be compelled to release the result. This is not correct. If the respondent had exercised some restraint and allowed the investigation to hold, she may well come out of it unscathed in that event the action brought by her would be unnecessary. This further emphasises the wisdom in the judgement of the courts in Nigeria that all avenues in the university should be explored before recourse to the court of law.

It is remarkable that the learned trial judge had taken the view that with the promulgation of Decree No. 20 of 1984, all cases of cheating at examinations where there isprimafacie evidence shall fall within the jurisdiction of the special Tribunal under the Decree. Such cases, according to him, will be out of the ‘Domestic disputes’ of the Institute concerned. He took judicial notice of the publication in a national daily in respect of an alleged cheating in the University Law Examination and concluded that where the facts are so clear that an examination result has been released and the student who was alleged to have cheated at that examination has been interrogated by the Law Enforcement Agencies, the matter has ceased to be a domestic dispute of the University. This becomes all the more relevant in view of the decision of the Supreme Court in the now famous case of Mr. Yesufu Aniuda Garba & Ors v. the University of Maiduguri. There, following a students’ uprising in which properties belonging to the University of Maiduguri, were destroyed, the Senate of the University ordered the University to be closed down and all the students to be sent home. The ViceChancellor, with the approval of the Senate of the University, set up a Disciplinary Investigation Board. The applicants were identified as participating in the rampage and consequently expelled by the Vice-Chancellor on the advice of Senate disciplinary board for misconduct. The applicants challenged their expulsion in court on the grounds that they were not informed of charges against them and were not given the opportunity of seeing or cross examining witnesses against them. Besides, the Chairman and Vice-

39

Chairman of the investigating panel were themselves victims of property destruction and arson committed during the disturbances. It was held by the Supreme Court, inter alia that the applicants, being accused of misconduct amounting to wanton destruction of property, looting, arson, stealing and indecent assault, were entitled to a court trial. The Disciplinary Investigation Panel and Senate Disciplinary Board were incompetent to adjudicate on allegations of criminal offences made against the applicants. The expulsion of the applicants was also a violation of the rules of natural justice and of their constitutionally guaranteed fundamental rights. They were, therefore, entitled to institute proceedings under the Fundamental Rights (Enforcement Procedure) Rules 1979 for enforcement of their rights. As Obaseki JSC put it: Students in all our universities and facilities of higher learning are not above the law of the land and where obvious cases of breach of our criminal and penal laws have taken place the authorities of the University are not empowered to treat the matter as an internal affairs. In a similar view, Nnamani JSC stated: The offences for which the appellants were undoubtedly held liable by the board and the penal included hooting, arson, destruction of property and indecent assault. These are offences under the Panel Code and therefore triable only by the regular courts of law. What the case has settled beyond doubt is that matters of a criminal nature are not within the domestic jurisdiction of the University. Thus, a University does not have the competence to hear and determine a criminal charge against the students of a university, the judicial powers of the federation being vested in the courts of law under the 1999 Constitution. The university, where the subject of the charge has been committed, must refrain from dealing with it administratively but should hand over the erring member to the police for investigation and possible prosecution. From the host of cases considered above, it would thus appear clear that with the visitorial jurisdiction

40

still in place domestic disputes and grievances within the Nigerian Universities will make their way only with difficulty to the courts. Fortunately, access to the court even in the presence of visitorial jurisdiction is not completely blocked. For one thing, since the jurisdiction is limited to domestic disputes — disputes between a member and other members or the University itself-it is logical to assume that a disciplinary process which results in dismissal for instance, would no longer be a domestic matter shielded from judicial review. Besides, the primary jurisdiction of the Courts to determine whether the matter in question properly falls within the jurisdiction of the visitor is preserved; where the jurisdiction is exceeded the court may issue a prohibition. What is more, when violation of the principles of natural justice has been alleged the courts could, and indeed, have felt able to consider the dispute on its merits. The Visitor must respect the principle of fair hearing. He must also comply with any procedures laid down by the charter or statutes of the University. It would appear that if the Visitor refuses to act at all or fails to perform any duty imposed by the law, he may be compelled by mandamus to do so. Matters which are contractual, a breach of trust which does not fall within the internal affairs of University, and relationship between a University and those who are not members of the University, do not also fall within the internal affairs of a University. The Rationale for the Visitorial Jurisdiction The familiar argument in support of the visitorial jurisdiction is that matters to which they relate “are matters in which, by and large, the University is the better judge”. Underlining what he perceived as the uniqueness of the University systems, Bridge had stated that: Those who seek to import the legal paraphernalia of the Courts into the Universities mistakenly regard a University as a microcosm of society at large. The fallacy has been thoroughly exposed by Professor HLA Hart and his colleagues who point out that a University has special purpose and functions and has special problems to confront which differentiate the academic decision making processes from those of society at large.

41

He then suggested that the government of these distinctively academic activities, subject to adequate safeguards, should remain where it has traditionally been, within the domestic jurisdiction of the universities. Even those who would appear to have some reservations about the concept still readily concede that “any procedure that had the effect of transferring to the Courts significant decisional powers in assessing the quality, the teaching and scholarship of a faculty member, his honesty, objectivity, and competence — the only qualities (regarded as germane to his faculty status)— could be disastrous to both University quality and academic freedom. It is considered that only an academic tribunal holds “promise of the necessary discriminating judgements, and that promise will be best realised through internal procedures to assure that all relevant factors are properly considered and weighed. Other arguments are that the Courts should be avoided entirely since, it is felt, litigation corrodes the spirit of community and any dispute within the University is best resolved by an individual or body that is specially sensitive to the values of a University. If the courts would then be involved at all, they should restrict their roles to enquiries into powers and procedures. These are no doubt weighty arguments in support of the exclusive jurisdiction of the visitor on matters considered internal to the University. But can they stand in the face of apparently positive constitutional provision? Does the reality of the Nigerian situation sustain the exercise of such jurisdiction without becoming vindictive? Can the Nigerian Visitorship, as now constituted, sustain that justification? Certainly these are also worthy of deeper reflections in any discussion on the powers of the Nigerian University Visitor. The residual issue which deserves deep reflection is with regard to the creation within the University system of a governance mechanism personified by the Visitor allocated broad discretionary powers over the University in a setting such as ours bereft of the conventions that guide and restrain holders of such office in England from where the idea is imported and who, in the Nigerian case, may not only be insensitive to the special ethos and needs, but may also be vulnerable to the temptation to deal with it.

42

As already noted, for the Federal Universities the President is the Visitor and for the State Universities the Governors, political functionaries sensitive to the interplay of political forces, and distracted by the pressing affairs of state. It is significant that he operates without the assistance of specialist support staff. These have great implications for University autonomy and academic freedom. As we have already witnessed, the visitorial powers can be used to the detriment of the University. Thus, in 1973 following a protest over conditions of service, the then Head of State and Visitor to the Universities ordered that all the members of staff living within the University campuses should pack out within a certain time or else they would be chased out, or in the alternative resume duties. And in November, 1980, following a prolonged students’ uprising at the University of Lagos, the Visitor instituted a visitation. Seven top members of the University were compulsory retired. This turn of events shocked those who had followed the whole crisis. It is thus clear that the constitutional arrangement in the Universities is such that could readily facilitate the deprivation of University autonomy and academic freedom if the political circumstances make this attractive. The Cookey Commission had recommended that The office of the visitor should remain as at present. We consider a statement on this issue necessary in view of the strong emotions evoked by the recent events in the University system relative to the use of visitoria] powers, which threatened the good government! university relationship. There can be no doubt that if the import of the office of the visitor is well appreciated there is much to be gained by University members from it in terms of the lawful remedies open to those of them who complain of unjust treatment within the University. Any member of the University is entitled to appeal to the visitor to redress a wrong and the visitor is under a duty to look into the complaint and adjudicate upon it as may be just. It has indeed been suggested that the legal powers of the visitor in this sense are not as yet sufficiently appreciated in academic circles in this country and that in the interest of the security of University staff that they should realise that these powers

43

exist. This becomes relevant since members of the University are by operation of the domestic jurisdiction concept precluded from obtaining redress from the ordinary courts of the land in respect of grievances which fall into that category. While this may well be so, it is our view that constant resort to the visitor will ultimately do more violence to the integrity of the University system. The opportunity of such appeal to the Visitor may on its face facilitate justice and fairplay within the system. But in our view the “ultimate guarantee of these qualities lie in the sense of moral rectitude and integrity of the academic community on the campus in general and, particularly, among the ranks of these senior members of that community “charge of the decision making process”. As the visitation Panel to the University of Ife 1974 observed: It is hardly possible to overemphasise the fact that in the long run, the reputation of any University and its ability to attain the objectives of its founders depend to a very great extent on its capacity to recruit and retain high quality staff from time to time. In turn, recruitment and retention of high quality staff at all levels of the academic and administrative sectors of the University depend upon the adequacy and effectiveness of a system of ensuring that appointments promotions and disciplinary actions are made upon principles of justice, equity, fairplay and good conscience. Where the Visitor, however, has to intervene, and only where there is clear departure from established standards or a defiance of applicable regulations, the visitor, should take care to see that the facts are not only thoroughly investigated but also that the highest principles of justice and fairplay are observed. Where he seeks the advice he should ensure that only people of unimpeachable integrity and independence of mind are consulted. Besides, the option of divesting the President/Governor of his power as Visitor and vesting same in persons other than these political functionaries should be looked into. As already stated, these functionaries are sensitive to the interplay of political forces and are often distracted by the pressing affairs of the state. The alternative is to delegate the functions to the Chancellor, and arm him with the necessary wherewithal as would facilitate the discharge of his visitorial functions.

44

Finally the decision in Garba v. University of Maiduguri has far reaching implications for the disciplinary process of the Universities. The Vice-Chancellors would now appear to be operating bereft of the full amplitude of their power to discipline students. This has grave repercussions for discipline in the Universities. One cannot but agree with Ibidapo Obe that in the context in which the students concerned (in the Garba’s case) committed “(the) so called crimes, the limiting of the investigative and disciplinary role of the University over their legal “wards” (the students) is unduly restrictive, wrong in principle and is likely to precipitate a total breakdown of discipline in our universities”. V Miscellaneous Issues in University Administration (a)

Personnel Matters In most Universities, there is an Appointments and Promotions Committee (A &

P) which acts on behalf of Senate and Council to consider and make, among other matters, all appointments to and promotions within the University. The composition of the Committee varies from University to University while their areas of jurisdiction also differ from University to University. All Universities, however, endeavour to appoint prominent men into their Appointments and Promotions Committees. It must be emphasised, however, that having such a powerful team does not in itself guarantee standards, if the people elected or appointed (as the case may be) into such positions are not principled. In case of promotion, there are more hurdles to cross than in an ordinary appointment within the same academic area of the University. Heads of Department therefore, owe it a duty to examine critically the contribution of the candidate through his research and publications and base part of their recommendations on these. The Faculty Review must then take another look at the totality of the candidate’s contributions judging principally from his research and publications. After this, the recommendations from the Head of Department and the Faculty panel are then forwarded to the main body of the Appointments and Promotions Committee, where these various recommendations and publications are again subjected to a critical analysis and scrutiny. Only those who are adjudged to have satisfied the criteria for

45

promotion to the grades recommended are promoted. Even here, most Universities in Nigeria still send for external assessment, the publications of those who are recommended for promotion to the grades of ‘Professor’ and ‘Reader’ and such people can only be promoted in most Universities, if two out of three external assessors? reports are favourable. There is a strong feeling Universities that abuses do occur within the system. It is alleged, for instance, that some members of staff pay nocturnal visits to the homes and residential quarters of many of the members of the Board for appointments and promotions. They stop at nothing to curry favour and ingratiate themselves to those in authority. A Lecturer, Dr. Amawkwah (cited by Ojo) is reported to have claimed that: Some have gained quick advancement and promotion through connections - family, tribal and social, others through seniority. Others by staying clear off controversial issues in a tacit refusal to step on other peoples toes and others by simply being ‘good boys’. This is not to say that merit is no longer recognised in the University system. Promotions in the University System are still the fairest in the country, since it is not as susceptible to external pressures. Even when there could be occasional miscarriage of justice due to prejudice or pressures, by and large, promotions are generally fair since there are definite yardsticks like sending publications for external assessment and internal checks like faculty assessment in some cases. All these make manipulations more difficult, though not impossible. The abuses are less here than in the other sectors. In the non-teaching sector, abuses are alleged to be also pronounced. It is felt that scholarship is given low priority, professional experience and expertise are given low weighting while godfatherism, which should not exist within a University Community, is encouraged (Ojo). The abuses here appear so rampant that in some cases, appointments and promotions are said to be settled over bottles of beer at some staff clubs and Senior Common Rooms.

46

(b)

Staff Information handbooks Most university staff information handbooks contain the conditions of service and

the procedure for appointment of all the staff. Moreover, the letters of appointment and the Memorandum of Appointment spell out the conditions under which an appointment is made. Most appointments in the University system in Nigeria are meant to be full-time and members of staff are not expected to engage in any other forms of gainful occupation without the consent of the University Council previously obtained. This kind of provision is necessary if the Universities are to retain their high standards, for, if members of staff are allowed to get involved in uncontrolled private practice or consultancy service, their work as teachers, researchers, technologists, administrators, etc. would suffer. In J. K. Randle and anor. v. M T 0. Nottidge, the respondent, the proprietor of a firm of printers and manufacturers of stationery employed B. under a written contract of service, which stipulated that during employment, he would not do any work for reward except for or on behalf of his employers. While this contract was in force, the appellant employed B. for reward. B. did not cease his work with the respondent but as a result was absent during a part of the stipulated hours for work. About 9 months later, B. left the respondent’s service entirely. The respondent brought this action claiming damages against the appellant for wrongfully enticing away B. from his service, from the date of first employment by appellant and also against B. for a breach of contract when he left the respondent’s service entirely. The trial judge found that the appellant had employed B. for reward, knowing that this was in breach of his contract with the respondent and he awarded damages to the respondent, but, in doing so, took into consideration the second breach of contract by B. when he finally left the respondent’s service. On appeal to the Federal Supreme Court, the Court held that the appellant was liable to the respondent for damages for inducing B. to commit a breach of contract and the judgement distinguished between this cause of action and that of enticing away a servant. The Court also reduced the amount of damages awarded, as the Court below was wrong in taking into account when assessing damages, the second breach of contract by B. when he left the respondent’s service.

47

In Kaufnann v. Board of Trustees, Community College, some teachers challenged a collective bargaining agreement reached by the Board of Trustees of the City College of Chicago and the Cook County College Teachers Union, Local 1600, that: A full-time position in the Colleges is accepted with the understanding that the faculty member will not continue, or at a future date accept, a concurrent full-time position or positions equal to a full-time position with any other employer or employers while he is teaching full-time in the College. They contended that ‘concurrent full-time’ employment rule was unconstitutional under the ‘Due Process’ and ‘Equal Protection’ clauses of the 14th Amendment to the United States Constitution. They wanted the Board barred from enforcing the rule and requested for monetary damages for teachers who were dismissed for infringing the rule. The Court held that: While it may be true that a faculty member who works just under the number of hours required of an outside full-time job is not appreciably better prepared for his or her teaching responsibilities than a faculty member who works just over the full-time limit, the rule is not necessarily invalid merely because the line it draws is imperfect ... The line must be drawn at some points, and it is both reasonable and convenient to draw it between the commonly accepted notions of full- time and part-time employment as the Board has done in the instant case. The Court then found that the rule banning concurrent employment did not infringe any constitutional rights of the teachers; hence, the action was dismissed. It is supposed that the Courts might take a more lenient approach if it is a mere parttime appointment that did not disturb the efficient and effective performance of duties. For, in the case of professionals, there is no other way of keeping up with practical aspects of their profession unless they are permitted to practise their profession in some way outside the University, e.g. doctors, certified engineers, architects, lawyers, etc.

48

In Lahuskv v. Board of Higher Education of New York, a State appellate court held that the dismissal of a non-tenured faculty member at a community college for engaging in outside employment was an excessive penalty where there was no evidence that the teacher had neglected his classes or his students. The Courts accepted in Goss v. University of Tennessee, that University authorities can limit the outside income of their members in order to ensure that they devote maximum energy to their teaching duties, and that the income limiting agreements did not violate the ‘Due Process’ clause of the 14th Amendments. Under the Ife University Law, a staff member on full-time employment is not allowed to take up another paid employment except with the permission of the University. As for security of tenure, once a member of the University is confirmed in his appointment, the law was that he had tenure till retirement unless such a person is convicted of a criminal offence- involving moral turpitude or by reason of gross misconduct renders it impracticable for the Council to continue to employ him; under such a case, the period of notice necessary to terminate the appointment is at the discretion of Council. Judges have generally maintained that Courts are ill-suited to determine cases of University appointments and promotions since they have no machinery for evaluating such staff; hence, they hold that there can be no substitute for an evaluation by peers. They would, however, intervene where an Institution deliberately flouts its own rule and regulations and appoints or promotes on a different criterion. In Liniversity of Lagos and Ors. v. Dr. T. 0. Dada, the plaintiff respondent wanted the lower court to declare the decision of the A & P Board of the University of Lagos appointing the 3rd defendant as Professor and Head of Department of Medicine as irregular and invalid. He further asked for an injunction to restrain the defendant from implementing this decision. On appeal to the Supreme Court, the court held that the dispute was of a domestic nature which should properly be settled by the Visitor and not by the Court. In Goolsbv v. Regents of the University of Georgia a University teacher whose application for promotion was supported by all the full professors in his Department and the Chairman of his Department but was turned down by the College Dean and the

49

University President, brought an action to challenge this. The Court refused to intervene on the ground that it could not substitute its own Judgment for Judgment by peers. Hollander, however, maintained that Quite a different situation would exist if an institution had not followed its own rules in considering the promotion. Similarly, if an institution acted arbitrarily or maliciously, a Court very probably would be willing to intervene. In Keys v. Cenoir Rhyne College, in an action by a College Faculty for alleged employment discrimination, the Court refused to require a private College to produce confidential evaluations of each faculty member on the grounds that confidentiality of such evaluation records is necessary to enable the College to receive honest and candid appraisal of faculty members by their peers. However in re Dinnan, the Court held that a University of Georgia Professor who served on a promotion committee did not have the privilege of an academic freedom or a common-law secret ballot privilege, regarding information concerning how he voted on an applicant for promotion. This decision might work hardship in certain areas and destroy confidentiality. For instance, a member of a committee should be free to vote according to his conscience, based on available facts. To force such a person to disclose how he voted in such meetings might be embarrassing. The cure against malpractice is to vote into committees men of integrity who would not exercise their votes capriciously or maliciously. As for appointments, the termination of an appointment would be upheld if carried out according to University rules and regulations. In Toups v. Authernent, Toups, a tenured teacher was dismissed from her job. She instituted an action immediately under S.1983 of the Civil Rights Acts alleging that her dismissal was based upon consideration of her sex or race or was, otherwise, arbitrary and unreasonable. A District Court in the United States dismissed her suit and held that her dismissal was as a result of substantive deficiencies in her teaching ability and attitude during her employment. She appealed. The U.S. States Court of Appeals dismissed the appeal, since the record showed that the school board had acted fairly and impartially.

50

Again in Limus Silva v. University Council of the Vidyodaya, Limus Silva was Professor and Head of the Department of Economics at Vidyodaya University. On 4 July 1961, it was unanimously resolved by the University Council to terminate his appointment from the University from that day. He was not informed of the reasons for the sack nor was he given an opportunity to defend himself. At the lower Court, it was held that The Council is required to act not administratively but judicially’, and since the rule of natural justice had been infringed, the writ of certiorari was issued. On appeal to the Privy Council, Silva lost. Lord Morris of BorthyGest, delivering the opinion of the Privy Council said that: If the master rightfully ends the contract there can be no complaint: If the master wrongfully ends the contract, then the servant can pursue a claim for damages. One would have felt that a Professor who holds an appointment under a University statute ought to have been treated differently from a servant who is probably working for a

private

businessman

where

he

can

be

hired

and

fired

any

time.

In fact the House of Lords in Ridge v. Baldwin in a similar way held that the Chief Constable of Brighton, the holder of a public office from which he was removable for cause could not be validly dismissed by the local police authority without being afforded an opportunity of being notified of a charge and an opportunity to defend himself. From the above, it can be seen that once a promotion or an appointment is made or an appointment or promotion is turned down according to the laid down rules and regulations, and the correct procedure is followed, the Courts would not interfere with such appointment or promotions. If, however, there is a breach or the University has not complied with the rules of natural justice, the Courts might be forced to quash such decisions. (c)

Discipline Discipline is resorted to by University authorities to punish a breach of University

rules and regulations by a member of staff. For minor offences, a member of staff can be warned or reprimanded, or suspended, but for serious offences, his appointment could be terminated or he could he dismissed. In Caleb Isaac Olawole Olaniyan & 2 ors

51

v. University of Lagos & ors. the plaintiffs were by letters, offered appointment as Professors at various times at the University of Lagos. The offers were accepted and the memorandum of appointment was prepared in respect of each appointment, following the Report of the Visitation Panel and the Visitor’s views on the said Report; these were submitted to and were fully considered by the University of Lagos Council on 16, 29 and 30 December 1980. The recommendations of the visitation panel contained certain acts of misconduct against the plaintiffs and, as a result of this, the Council at its meeting of 30 December 1980, after considering the visitation panel’s report, decided to terminate the appointments of the appellants with immediate effect contrary to S.17 of the University of Lagos Act, 1967 and -clause 7 of the Memorandum of Appointment of each plaintiff. That same day, letters were written to the plaintiffs terminating their appointments and giving them 6 months salary each in lieu of notice. The appellants rejected the purported termination of their appointment and returned the 6 months salary in lieu of notice to the University. They immediately sued the University to challenge the University Council that there was no evidence, let alone a finding, that the Council, before removing them communicated to any of them the grounds of misconduct alleged against them to enable each Appellant reply to such grounds as required by Clause 7 of the Agreement or S.17 (1) of the Lagos University Act, 1967. At the High Court, the purported termination of appointment was declared ultra vires of the defendants since it was contrary to S.17 of the University of Lagos Act, 1967, as amended. The University, aggrieved by the judgement, appealed to the Court of Appeal and the decision of the High Court was reversed and the appeal was allowed on the ground that the contracts of the appellants were validly determined. However, on appeal to the Supreme Court, the Court held that ‘there was no evidence, let alone a finding, that the Council of the University of Lagos before removing the appellants on 30/12/80 per Exs. PA, P.19 and P.16 communicated to any of them the grounds of misconduct alleged against him to enable each appellant to reply to such grounds as required by Clause 7 of the Agreement or Section 17(1) of the Lagos University Act 1967’. Oputa, J.S.C., commenting on the visitation panel’s finding that each appellant ‘has rendered himself unfit for any position of leadership or responsibility in the University,

52

held that this amounted to misconduct as contained in Clause 7 of the Agreement’. Oputa J.S.C. then held that ‘every act of the Respondents like engagement or removal of staff must be done within the statute - Act No.3 of 1967 to render such acts intra vires and right. The relationship that existed between the University and the appellants was not the simple common law relationship of master and servant’. In conclusion, the Court held per Oputa J.S.C. that ‘I have no difficulty at all in holding that the removal of the appellants without recourse to the procedure outlined in Section 17(1) of the 1967 Act and Clause 7 of their Agreement was ultra vires the powers of the Respondents and therefore null and void, and their purported dismissal invalid’. This is how the Supreme Court nullified the purported termination of the appointments of the appellants for noncompliance with the statutory conditions. It thus seems from Anyah v. AG of Borno State that ‘misconduct’ has to be established by judicial process. In fact, the Supreme Court in Olaniyan’s Case inferred misconduct from the Visitation panel’s report which castigated the people affected as ‘unfit

for

any

position

of

leadership

or

responsibility

in

the

University’.

In Garba & Ors v. University of Maiduguri, the Supreme Court interpreting the power conferred on the Vice-Chancellor under S.17 (1) University of Maiduguri Act, 1979 gave judgment: That sect ion S. 17 (1) says that ‘subject to the provisions of this section, where it appears to the Vice - Chancellor that any student of the University has been guilty of misconduct, the Vice-Chancellor may, without prejudice to any other disciplinary powers conferred on him by statute or regulation, direct: (a) ... (d) that the student be expelled from the University. The Court thus only conferred a discretion which could only be exercised according to the principle of natural justice of fair-hearing, since the power is a quasi-judicial one. Eso J.S.C. delivering his judgment in this case examined the powers of the Vice-Chancellor under S.17 of the University of Maiduguri Act. lie said that it gives a discretion to the Vice-Chancellor where it appears to him that any student of the University has been guilty of misconduct and the data of his satisfaction are known, the Vice-Chancellor should under the ordinary rules of fairness and fair-play, before he finds against any such student, or as in this case, before he takes such a drastic action under section 17(1) (d) of the Act to expel the student.

53

Nnamani J.S.C. also maintained that the function imposed on the ViceChancellor by S. 17 of the relevant Act was quasi-judicial and ‘have to be exercised with due regard to the principles of natural justice’. Coker J.S.C., also commenting on the powers vested in the Vice-Chancellor under S.17 (1) University of Maiduguri Act. 1979 to appoint investigating panels said that these powers are necessary for the maintenance of discipline within the student members of the University, He continued: ‘But in exercise of the powers conferred on him, in so far as they affect the rights of any student member, the Disciplinary Investigating Board must scrupulously ensure that the affected students have a fair hearing of the offence alleged and that in its deliberation, no reasonable trace of bias is shown’. It has been shown by this decision, that University Vice-Chancellors could not be allowed to exercise wide and arbitrary ‘powers of life and death” over the students in their care by insisting that the power conferred on the Vice-Chancellor under S.17 can only be upheld, if the principle of fair-hearing under The Nigerian Constitution, is strictly adhered to. In Friday Olabanjo Iwarere v. University of Ilorin Teaching Hospital Management Board. the Acting Head of an Accounts Department was dismissed on, among others, the grounds of professional incompetence resulting in a muddle up of the books of accounts in disobedience of lawful instructions, and through his negligence, causing the respondent a loss of N528. His counsel complained that he was not given a fair hearing in that the applicant was merely asked to give assistance to the panel as a witness to product some documents in his possession which he did as a witness and not as an accused, confronted with any allegation or charge of wrong-doing or called upon to defend himself. He argued that the panel was a fact-finding one and not a disciplinary one, as provided for by S.9 of Decree 10 of 1985 which laid down an elaborate procedure for the discipline of officers of the status of the applicant. He staled that one of the ingredients is a formal charge brought to the notice of the officer. He must then be afforded an opportunity to defend himself before any action was taken. The Counsel contended that the power of discipline had been abused and submitted that there was a violent disregard of the principles of fair-hearing.

54

In his reply, the counsel for the respondent held that S.3, Public Officers (Special Provisions) Decree, No. 17, 1984 had ousted the jurisdiction of the Courts, and that under S.3 (4) of Decree 17, 1984 that since, in respect of the matter under discussion, the Constitution was suspended, the right to fair-hearing under S.33 (1) Nigerian Constitution, 1979 was not available. The Court held that the ouster of the Court’s jurisdiction is operative only when the named authorities act within the confines of the statute providing the ouster of jurisdiction’. Gbadeyan J. in his judgment held that ‘The failure of the Board to comply with the provisions of Section 9(i) (a) (b) and (c) of the Decree 10 of 1985 is fatal. “I, therefore, hold that the applicant’s fundamental human right to fair-hearing guaranteed by S.33 (i) of the Constitution and Section 9 of the Decree 10 of 1985 has been flagrantly infringed. I hold as illegal the failure to comply with the law setting down the procedure for discipline. From the above, one would have thought that a provision which deals with the removal of key functionaries in a University, ought to contain detailed grounds that could amount to misconduct. To leave this to the whim or the caprice of officials is to toy with the reputation of some important members of the society. This is inconvenient and should be rectified”. Again, for the removal of members of Council, it is stipulated that the recommendation for such removal should emanate from Council to the Head of State, who might by an instrument in writing signed by him, remove the person in question from office. However, one feels that this provision should only apply to those members of the University Council who are appointed by the Head of State or those officials representing some Federal Ministries. However, if the person concerned is a Senate or Convocation or Congregation representative, the best bodies to remove such people should be the bodies responsible for their appointment. As for other members of staff, of the University, if it appears to Council that there are reasons for believing that any of such people should be removed from his employment on the ground of misconduct or of inability to perform the functions of his office, the Council shall (a)

give notice of those reasons to the person in question;

55

(b)

afford him an opportunity of making representations, in person on the matter to the Council; and

(c)

if he or any three members of the Council so request within the period of one

month

beginning

with

the

date

of

the

notice,

make

arrangements:

(i) for a joint committee of the Council and the Senate to investigate the matter and to report on it to the Council, and (ii) for the person in question to be afforded opportunity of appearing before and being heard by the Committee with respect to the matter. If the Council after considering any representations and the report made in pursuance of this subsection, finds the person guilty of mis-conduct, the person affected may be removed by an instrument in writing, signed on the directions of Council. In Sapara v. University College Hospital Board of Management, the plaintiff, a kitchen supervisor, in the employment of the defendant Board, was found in possession of certain food items believed to belong to the defendant Board. She was queried and although she claimed ownership of the food items and called witnesses to that effect. The defendant Board after some investigation held that the plaintiff stole the food items from the store and thereupon dismissed her. The defendant Board seemed to have based its decision on the secret information supplied by certain witnesses, who the plaintiff did not have an opportunity to confront. The plaintiff then instituted action claiming: 1.

a declaration that. the purported dismissal and the procedure adopted by the defendant in connection therewith were irregular, null and void, and were contrary to the procedure laid down in the conditions of service drawn up by the defendant for their employees and were also contrary to the rules of natural justice;

2.

an order that the plaintiff be reinstated in her post, or

3. alternatively, that the plaintiff be awarded damages. The Court held that, where an employee is suspended from work, without any intention by the employer to stop his salary, where his remuneration is limited only to salary and or other benefits which the employer does not intend to stop during the period of suspension, that cannot amount to wrongful suspension, (2) If there is no

56

legally enforceable rights and no contract between the parties then there cannot be a duty, which has to conform to the rules of natural justice. The Court, having considered the above, upheld the action for wrongful dismissal. Again in, R. O. Seweje v. University College Board of Management, the plaintiff claimed that his dismissal from the employment of the defendant Board on the 19 June, 1974 was an exercise of quasi-judicial power and accordingly must have regard to the rules of natural Justice. The Court held that the failure of the House Governor, to bring to the knowledge of the plaintiff, the comments of the officers asked to investigate the reply of the plaintiff to the query issued to her, with a view to contradicting these, if necessary before dismissing her, was clearly a departure from procedure 61 (iv) of the conditions of service. It, therefore, held that the House Governor had acted in breach of the rules of natural justice in dismissing the plaintiff. After considering this and other issues raised, the Court gave judgment against the defendant Board for wrongful dismissal. These two cases have shown that the courts would reject any attempt by any employer to violate the principles of natural justice when exercising its quasi-judicial powers. Under S.9 (5) University of Ibadan Act, it is the duty of whoever signs the instrument of removal, to cause a copy of the instrument of removal served on the affected person as soon as is reasonably practice-able. The Vice-Chancellor can also, exercising the powers conferred on him under S.9 (6) suspend any person facing disciplinary measures either at the authorisation of the Councilor in absolute discretion; but if the latter course is resorted to, the Vice-Chancellor must immediately refer the case to Council for necessary directions. Nevertheless, such suspension must be with full pay since S, 9 (7), University of Ibadan Act says that nothing in S.9 (6) ‘shall be construed as affecting a person’s entitlement to the emoluments of his employment during the period of any prohibition imposed in pursuance of that subsection’. In G. O. Olaofe v. University of Ibadan, the Council accused Dr. Olaofe of insubordination and wanted him to apologise within a stipulated period to Council for his behaviour. He refused since he believed that what he wrote could not by any stretch of

57

imagination be termed derogatory. He was thereupon suspended by Council without pay. He challenged this in Court as being ultra vires and void since Council has no power to suspend without pay according to S.9 (6) of the University of Ibadan Act. When the University realised how messy the matter was, it agreed to settle the matter out of Court and to refund the withheld part of Dr. Olaofe’s salary. However, if a member of the University is interdicted for a criminal offence, he is immediately put on half-pay. This is probably the difference between a civil and a criminal offence, but if the terms of appointment incorporate terms which are different from regular appointments, then such appointments could not be bound by the conditions stipulated under S.9(3) and 9(6). In Dr. Adesegun Banjo v. University of Ibadan, Dr. Banjo amended the terms of the offer of appointment he was given by the University of Ibadan by inserting new terms. This constituted important modifications to the original offer. This shows that there was no acceptance of the offer but a counter offer. But despite this, the ‘defendant went ahead with arrangements for Dr. Banjo to take up the job. This modification was later discovered and the defendant, on discovering this, attempted to terminate the contract ‘of appointment ‘and offer the proper contract. Dr. Banjo rejected this and decided to contest the University’s action in court. The Court held that since the University accepted the counter offer, there was a valid contract in existence, since a party that signs a document without reading it is bound by the terms of the document in the absence of fraud or misrepresentation. However, the Court finally decided that the defendant could terminate the plaintiffs appointment under the terms of appointment with 3 months salaries in lieu of notice. Consequently, Dr. Banjo was held entitled to 3 months salary with effect from 21 March 1977, the date he was expected to sign a new contract. The newer University Acts have more detailed provisions on the removal and discipline of academic, administrative and professional staff.38 Take S.15 (1) University of Sokoto Act, for example, there is specific mention of any person employed as a ‘member of the academic or administrative or professional staff, indicating that other members of staff who do not belong to the above category can only be disciplined under S.15 (6) University of Sokoto Act. The Vice- chancellor is given power under S.15(2)

58

University of Sokoto Act 1979 to suspend staff, if in the opinion of the Vice-Chancellor the member of staff concerned is being probed for an offence which is prejudicial to the interests of the University. The power vested here in the Vice- Chancellor of Sokoto University is wider than that of University of Ibadan Act. S.15 (3) University of Sokoto Act, 1979 also says that, for good cause, any member of staff may he suspended from his duties or his appointment may be terminated by Council. The University of Sokoto Act defines ‘good cause’ as (a)

conviction for any offence which the Council considers to be such as to render the person concerned unfit for the discharge of the functions of his office, or

(b)

any physical or mental incapacity which the Council, after obtaining medical advice considers to be such as to render the person concerned unfit to hold office; or

(c)

conduct of a scandalous or other disgraceful nature which the Council considers to be such as to render the person concerned unfit to continue to hold his office; or

(d)

conduct which the Council considers to be such as to constitute failure or inability of the person concerned to discharge the functions of his office or to comply with the terms and conditions of his service.

Section 15 (4) University of Sokoto Act, 1979 says that any person suspended pursuant to S.15 (2) & (3) shall be on half pay. Secondly, the Council is expected before the expiration of 3 months after the date of such suspension, to consider the case against that person and come to a decision as to: (a)

whether to continue such person’s suspension and if so, on what terms (including the proportion of his emoluments to be paid to him);

(b)

whether to reinstate such person in which case the Council shall restore his full emoluments to him with effect from the date of the suspension;

(c)

whether to terminate the appointment of the person concerned in which case such a person will not be entitled to the proportion of his emoluments withheld during the period of suspension; or

59

(d)

whether to take such lesser disciplinary action against such person (including the restoration of such proportion of his emoluments that might have been withheld) as the Council may determine. Where Council pursuant to S.15 (4) of the University of Sokoto Act, 1979 decides

to continue a person’s suspension or to take further disciplinary action against him the Council is expected to come to a final determination of the person’s case, before the expiration of three months from such a decision. The above has shown that the power to discipline members of staff is recognised by the Founding Fathers of the various Universities. All of them seem to deny legal representation before such disciplinary panels since this is not expressly granted in any of the University Acts. It is suggested that if University authorities have University Counsel or Solicitor to advise them on such panels, the affected stuff should be given the opportunity to bring his own lawyer to advise him before such panels. This is to ensure that justice is done to both parties since invariably a University Solicitor would be more sympathetic to the official angle. The following cases will show some of the problems that a University Council has to face in a disciplinary issue. In Gailord v. Tacoma School District No: 10, a public high school teacher was dismissed because of avowed homosexuality. Evidence showed that his teaching performance was excellent and there was no evidence that he was engaged in sodomy or other illegal acts. The State of Washington Supreme Court found that the teacher was properly dismissed from his teaching position since his avowed sexual preference, constituted immorality, impaired his teaching efficiency and also injured the school. A teacher could also be disciplined for sexually exploitive statements made to the students. In Piyse v. Yakinia School District, a teacher was discharged for alleged improper, immoral and unprofessional conduct. The conduct consisted of a number of sexually suggestive remarks to several female students as well as improper physical contact with female students. When he was notified of his discharge, the teacher requested a hearing. This was granted and his discharge was upheld. This was later affirmed by a superior Court. The Court held that ‘His contention has no merit. We are faced here with conduct involving a teacher’s private life unrelated to school activities ... Nor did the conduct have any positive educational aspect of legitimate professional

60

purpose. Instead, it was sexually exploitive and occurred during school hours. Such conduct with minor students is inherently harmful to the student-teacher relationship and impairs he teacher’s efficiency’. This sort of punishment ought to be inflicted on a University teacher who decides to exploit his position as a teacher to engage in sexual affairs with his students. As Aihaji Shehu Musa, a former Secretary to the Federal Government, once said: Stories also are told of pervasive indiscipline arising out of the undue advantage which some students with special relations with erring University dons are said to enjoy. He however agreed that only a negligible minority of the dons get involved in this despicable act, when he further observed that: While, admittedly, the dons involved may be no more than a microscopic fraction

of

University

staff,

these

are

nonetheless

disturbing

developments that require urgent attention in order for Universities to regain and maintain better public image. The Cookey Commission made a similar observation in its report when it said that: There are factual stories about dons whose indecent behaviour within the University and in public places undermine the prestige and reputation of Nigerian Universities at home and abroad. After all, if such conduct is not punished, discipline might be weakened and academic standards destroyed. Again in Rose v. Robb, a female student brought charges of sexual harassment against a male shop-teacher. The Board held a public hearing and dismissed the teacher. He then brought this action to challenge that decision. The Court dismissed his action and affirmed the decision of the Board and its order of dismissal of the teacher. In Dr. Sainnel Ekpe Akpabot v. College of Education, Uyo a following a petition by some of the students of Dr. Akpabot, the students allege that (i) he was demanding sexual favours from the girls in class, such demand being accompanied with threats of dire consequences at examinations if denied; (ii) juggled examination scores of students in order to fail students unfairly (iii) compelled his students to go with him to consult necromancer alleging that his typewriter had been stolen by them; (iv) used them every

61

week in his T.V. shows which took a lot of time to rehearse, and while receiving pay for these shows, he paid them nothing. The students described the act as exploitation. Council of the College set up a panel to investigate the allegations and the panel, on the completion of its assignment submitted its report to Council. The Governing Council of the College then considered this report and the recommendations in an emergency meeting on 11 August, 1 978. It then held Dr. Akpabot to be guilty of conduct unbecoming of a teacher in the College. It, therefore, decided to relieve him of his post with 3 month’s salary in lieu of notice. He then challenged this by instituting an action against the College Akpabio J. delivering judgment of the court held that: I have carefully considered all the pre-conditions and procedure laid down for terminating the appointment of an academic staff of the College of Education, both as contained in the contract of employment Exhibit ‘Q’ and as set out under Section 13 of Edict No. 22 of 1974, and find that they have all been fully complied with. I cannot therefore declare the said termination to be null and void and of no effect, even if I believe that some of the allegations made against plaintiff by the Music students, could not possibly amount to misconduct. Hence, the action was dismissed. Members of staff can also be penalised for insubordination committed against Universities. In Adams v. Lake City Community College,48 the Court held that an instructor who responded to a suggestion by his Dean with ‘Hell, no, I won’t do it, and I ‘II fight you all the way if you try to make me .... ‘was guilty of insubordination. Again in Chippe v. State Personnel Board,49 the service of the plaintiffs were in this case terminated as food service workers at the University of Colorado because of their refusal to shave their beards in violation of a “no beard rule”, implemented prior to their employment. The plaintiffs appealed against their dismissal and were afforded a hearing before a Personnel Officer who concluded that the no-beard policy ‘was directly concerned with the promotion of clean and sanitary food service activities in the dining facilities ... and as such is directly related to the food service employees’.

62

The dismissal was affirmed by the State Personnel Board. The plaintiffs then challenged the rule by asking for judicial review. The decision of the State Personnel Board was upheld. On appeal, the plaintiffs’ case was dismissed, since the regulations did not infringe a constitutionally protected liberty interest nor did it violate the procedural due process protection of the 14th Amendment to the U.S. Constitution. The next case demonstrates that the Courts would not enforce any discipline which violates the constitutionally protected rights. In Pickeriiig v. Board of Education, a high school teacher was discharged for writing a letter to the newspaper, criticising the way the School Board and the school superintendent had handled some bond issues. The United States Supreme Courts held that the Board’s action violated the teacher’s right of free speech. The Court held that for the Court to uphold the criticism of the teacher, it must (i)

be of public importance, and

(ii)

not cause a disruptive impact between the employer and the proximate supervisor. In Perry v. Sindermann, Sindermain was a teacher in the Texas State College

System for 10 years, the last 4 of which was as a Junior College Teacher under a series of one year contracts. As a result of his Presidency of the Junior College Teachers Association, he was critical of the Regents and favoured a particular policy which the Regents opposed. The Board of Regents then decided not to offer him a new contract for the next academic year and issued a press release alleging that Sindermann had been insubordinate. Sinderrnann then challenged this in a Federal Court on the grounds that (1) his freedom of speech was violated in that the reason they chose not to rehire him, was because of his public criticism of the college administration and (2) the failure to provide him a hearing violated his 14th Amendment procedural due process. The Court, giving judgment for Sindermann, held that Sinderrnann was not given an opportunity in the trial court to show that the decision not to renew his contract was in retaliation for the exercise of a constitutional right. Secondly, that Sinderrnann ought to have been given an opportunity to show through various items the existence of tenure.

63

Also in S. O Adedeji v. Police Service Commission, the applicant a police officer was dismissed on the grounds of misconduct on an allegation to which he was not given a full opportunity to defend himself. He then sought an order of certiorari to quash the police service commission’s decision to dismiss him on the grounds that the procedure adopted by the Commission was irregular and contrary to the principle of natural justice. Held on appeal that the proper course was for the Commission to supply the applicant with a copy of the written complaint made against him since he was entitled to know all that was said about him and by whom before he could be said that he was given a full opportunity to know and defend himself on the allegations made against him, Because this was not the case, the appeal was allowed and order of certiorari granted. In Jacob B, Fadttpin v. University of Ibadan and anor, the plaintiff, who was an Engineer at the University of Ibadan, served the University from 1977 till July 3, 1985 when he was purportedly summarily dismissed in the public interest on the order of the Federal Government. The plaintiff claimed that, at the time of his dismissal, he was the Chief Engineer. (Electrical) of the University of Ibadan, He then challenged his dismissal on the grounds that, in dismissing him, the University of Ibadan did not inform him of any allegation of wrong-doing thereby violating his right of fair-hearing contrary to the principle of natural justice. He then asked the court for (i) an order restraining the defendant, its agents/servants and or privies or whosoever from taking any steps or action based on or pursuant to or in recognition of the directives and or decisions contained in the letter of 3 July 1985. (ii) a declaration that the plaintiff is still in the service of the defendant. The defendant, however, based its defence on the fact that the plaintiff was dismissed under a Decree where there was the ouster of the jurisdiction of the Court 54 on matters such as the plaintiffs case and the Decrees did not restore the fundamental right of the plaintiff. Sometimes, before 1985 there was an instance of fire outbreak in the Department which led to some burning of drums and cables. The scrapped cables were sold without the authority of the University. The matter was referred to the Board of Survey of the University which looked into the issue of the burnt cables. Before the report of the Board of Survey came, the cables had been sold. Upon further enquiry by the Board of Survey, it was discovered that the Bursar authorised the sale instead of the Board of

64

Survey. Prof. Udo, the Chairman of the Board of Survey, as witness said that he expressed surprise that the cables had been sold and therefore queried the plaintiff. The report of the Board of Survey was never shown to the plaintiff neither did he make any representation before the Board on it. The Board made its findings known to the Vice- Chancellor. During the 1985 retrenchment exercise, the University set up a Screening Committee under Dr. Cookey, the Pro-Chancellor, as Chairman for the purposes of the retrenchment of officers, in accordance with a directive from the Federal Military Government. The plaintiffs matter was brought before the Committee. Dr. Cookey admitted in Court that ‘neither the Council nor myself asked the plaintiff to make representation over the allegations made against him’, Dr. Cookey said that the Screening Committee found the plaintiff guilty of ‘selling cables without authority. He was not charged with stealing; yet, the Screening Committee came to the erroneous conclusion that the plaintiff was guilty of stealing and recommended the Federal Government that he should be dismissed. Prof. Udo in his evidence said that, at the Board of Survey, no one made any allegation of theft of cables against the plaintiff neither did the Board find the plaintiff guilty of stealing. He also said that his Board never invited the plaintiff to come before the Board neither did his Board serve a copy of their report on the plaintiff. The Registrar of the University, Chief Ekanem-Ita, who was in attendance during the sittings of the Screening Committee, also maintained that the Screening Committee did not hear the plaintiff on the allegation of stealing neither was the disciplinary procedure under the Act followed. In her judgment, Atinuke Ige J. said, when discussing the question of the ouster of court’s jurisdiction, that the jurisdiction of the Courts could only be excluded by clear provisions of the constitution or by the clear words of a Decree.57 She said that “I cannot but agree with the dicta of Karibi Whyte J.S.C. in the case of Adigun v.A. G, of 0yo State (1987). In W.L.R. 678 when he said thus ‘Access to the Courts is such a fundamental requirement of our democracy that the Constitution has provided in its section 4(8) that the National Assembly or a House of Assembly shall not enact any law

65

that ousts or purports to oust the jurisdiction of a court of law or of Judicial Tribunal established by law 58. After examining the relevant Decrees, she then held that the dismissal of the plaintiff did not come under Decree No. 17 of 1984. On the dismissal, Atinuke Ige J. held that, apart from the fact that the dismissal was in breach of S.9 (3) University of Ibadan Act, 1962, 60 stealing was an offence under the Criminal Code triable only by the regular Courts of law and that “neither the Board of Survey nor the Screening Committee of which the first defendant witness was Chairman is a Court of Law, Both are not competent to adjudicate on matters connected with the rights of the plaintiff once the allegations included crimes”. The judge went on that “The Chairman of the Screening Committee which made final recommendations to the Federal Government did not only mislead the authorities on the facts before his committee by turning an allegation of selling the property of the University without the authority of the University into an allegation of stealing the property of the University. He went to compound the issues by denying the plaintiff his rights to fair-hearing and also committed a flagrant breach of the rules of natural justice”. Atinuke Ige J. then concluded that the Screening Committee found the plaintiff guilty on a trumped up charge of stealing and sentenced him to dismissal without a fair trial and that Dr. Cookey was both Judge and Accuser in the case of the plaintiff when it was before him’. The Court, therefore, revoked the act of dismissal and reinstated the plaintiff as Chief Engineer (Electrical) in the service of the University with all his entitlements from July 3, 1985 to date paid up. But in Roseman v. Indiana University, an Associate Professor at a University was discharged for criticising the acting Chairman of her department at a faculty meeting. The court held that the statement made was an attack on the integrity of the Chairman in a faculty meeting and that such could interfere with the human relationship between the employee and her superior officers and co-workers. The Court then held that the statements were not protected by the 1st Amendment to the United States Constitution. From the above, it would be seen that even though the Courts would not condone any form of indiscipline, they have refused to be drawn into purely internal affairs of Universities, most especially where rules and regulations have been strictly

66

adhered to, and contractual rights of members respected and enforced. Where the punishment inflicted is in breach of the regulation, or, there is non-conformity with laid down procedural rights or there is a breach of the principle of natural justice, the courts would intervene to enforce justice. In conclusion, the discussion here has shown the difficulties surrounding the issues of appointments, promotions and discipline within the University System. The issues are compounded by University members of panels who pervert justice and turn University affairs into a jig-saw puzzle (Ojo). Such conduct creates uncertainty within the system. This is why it is recommended that for such sensitive matters, only seasoned scholars with several years of experience and with unassailable integrity, should be appointed to serve on the Disciplinary Committee. (d)

University Management: Which way, Law OR Discretion? There are people in society who believe that it is not really necessary to apply law to management. Rather, the emphasis, according to them, should be on “discretion” – a term which refers to the authority granted to a manager to exercise his personal initiative in decision-making (Iredia, 2005). The argument is that to apply law to management could hinder the proper exercise of his discretion because legal technicalities may turn a manager to a Robot, making him a victim of rules and procedures by which he sees rules not as a means to an end but an end itself. Besides, all managers do not necessarily have to be lawyers, the argument goes. They may not, therefore, in their operations, conform to the appropriate legal standard. Indeed, a manager, (it is contended) may not correctly exercise his discretion, if all his acts are subjected to legal scrutiny or if he has to have in his sub-consciousness, the legal implication of each decision he makes (Iredia, ibid: 3). To be sure, every manager does not have to be a lawyer. It is however also beyond question that all human activities take place within a legal framework. A manager must, therefore, know the basic legal issues involved in his managerial actions. He has to appreciate the limitation of his power; the processes of staff discipline; the rights of workers, the full implications of dismissals and retirements as well as the numerous relevant circulars of

67

government. Knowledge of these issues no doubt, has a legal dimension that cannot be dispensed with. As Iredia (ibid) rightly put it: “the knowledge acts as a stimulus to stir the manager into critical analysis and examination of the prevailing socio-economic and political systems of the environment. Secondly, the knowledge of law illuminates the efficacy of the various rules and regulations of an organization” (ibid): Besides, the argument in favour of discretion does not take cognizance of the possibility of abuse of discretion or an improper exercise of it. It is quite easy for managers/ administrators to exceed their limits or operate outside their mandates because of the discretion granted to them. This can pose a serious danger in a University setting. For us in the Universities the Legal Unit (in some cases, in the ViceChancellor’s Office) should be upgraded to the level of Directorate with the panoply of professional and supporting staff in place. This is without prejudice to the need for an External Solicitor who will normally represent the University in Court, and also handle more complicated cases. The in house Legal Directorate should be manned by a lawyer who will have the learning, courage and strength of character to guide the Administration and the University right in routine matters which may otherwise blossom into big crises. VI Conclusion In concluding this presentation, one cannot but recall again the “imperatives” of the University idea. As Unah perceptively put it, the university is an “open community” where the culture of teaching, learning and research under a master professor result in the cultivation of the intellect, the liquidation of ignorance and the dispelling of illusions. What defines the character of a university professor professionally is not that he is a husband of one wife or that he is a good father of children or that he hails from a dominant ethnic nationality. What defines the character of a university professor professionally is that he is a principal expositor of a system whose intellectual outputs

68

result in the liquidation of ignorance and in the dispelling of illusions (cf. Fahm, L. A., 1978, pp. 3-4). Jacques Barzum and Robert Oppenheiner have been quoted to have characterised the university as the institution of scholars and students from everywhere for the fostering of a tradition of explicitness, of clear expression and articulate precision, of inquiry and debate - a place to develop the ability to judge experience wisely, with a capacity to weigh the implication of actions and utterances of others; a place to develop matured convictions and gaity of mind, intellectual passion and search for essence”. It is ... a place where the individual man can form new synthesis, where the accidence of friendship and association can open a man’s eyes to a part of human life remote and perhaps superficially incompatible, which can form in men their harmony and their synthesis” (cf Fahm, L. A., 1978, p. 4 Cited by Unah). Fahm sums up the matter thus: ‘the primary responsibility of the university to itself is the fostering of a true tradition of intellect. The foundation of this tradition is understanding: understanding in its widest dimensions: understanding nature, understanding human nature, understanding the material nature and understanding what is the essence of life. The quest for understanding requires systematic explorations, which are necessarily centralised where, learned men are together - that is, in colleges and universities, which are, by virtue of their tradition, open communities” (Ibid. p. 6). Furthermore, the university has been conceived as a place for the cultivation of” minds eager and able to test claims and theories against observed facts and just beliefs to the evidence, minds capable of logical analysis and fully aware of the nature and virtue of exact measurement” (cf. Oladipo, O. 2007, p. 11, cited by Unah). The need for University autonomy cannot be overstated. As the Commission on Post-School Certificate and Higher Education in Nigeria (Ashby Commission) recommended: a university has to be insulated from the hot and cold winds of politics. Responsibility for its management must be vested in an autonomous council. The council must include representatives of the

69

public, but these representatives must attend as individuals and not as agents for some sectional interest or party line. (2.1) As Ike (1971) recalls, the theme of university/state relationships had been discussed at length as far back as 1961; this was at the international seminar on InterUniversity Co-operation in West Africa held in Freetown (Sierra Leone) from December 11 to 16, (1961) under the joint auspices of Fourah Bay College (then the University College of Sierra Leone) and the Congress for Cultural Freedom. The seminar had declared that West African universities cannot maintain their dual loyalty to ‘the standards and traditions of universities all over the world’ and also to ‘the intellectual and cultural aspirations of their on countries’ unless they are given ‘autonomy within the framework of the State’. This autonomy in academic affairs should be acknowledged by the state, especially in view of the dependence of these universities on the state for financial support. It accordingly recommended that to ensure this autonomy the existing constitutions of West African universities should be interpreted in such a way that the academic body is responsible for: (1)

the admission, teaching and examination of students;

(2)

the appointment, promotion and tenure of academic staff;

(3)

the

allocation

of

funds

to

the

different

categories

of

their

budgets;

and that where universities are controlled by governing bodies which are not composed exclusively of university teachers, these bodies should be responsible for the interpretation to governments of the needs of the university, and for the interpretation to the university of the demands which the nation is making upon it, but should leave to the academic body the functions specified above. The Seminar believed that these conditions are essential if higher learning is to flourish in the nations of West Africa. It is hardly surprising that a seminar comprising largely university teachers should adopt such a recommendation. In a ‘republic of scholars’, it is only logical that the major decisions should be taken by the scholars. Where lay members happen to be included in the governing boards, their role should be severely restricted to public relations or liaison between the ‘inner city’ or the ‘republic’ and the outer city or ‘society’. What is surprising is that the seminar did not appear to recognise that it was advocating a set

70

interpretation to existing constitutions, regardless of the legal provisions of those constitutions, and that it was giving the erroneous impression that universities elsewhere are generally controlled by governing boards composed exclusively of university teachers. As a result of this kind of advice, starting with the University College, Ibadan, the Nigerian governments had granted autonomy to each of their universities. As the National Universities Commission pointed out in its report, the independence of Nigerian universities to teach what they will, to whom they wish, without any discrimination on grounds of race, tribe, religion or colour has not only been widely accepted, but it is enshrined in the laws under which everyone of them is established. Dr. Mellanby in his memoir (cited by Ike) indeed records that the first meeting of the provisional council of University College, Ibadan (held on April 22, 1948) was held in a room in Lagos lent by the British Council for the occasion. ‘We decided to meet there rather than in a Government office, to emphasise the fact that we were an independent organisation’. In its reaction to the report of the Commission on Post-Secondary and Higher Education in Nigeria, the Nigerian Federal Government announced its support for university autonomy: ‘Universities should have autonomy in the management of their affairs The university is established by a statute which gives it freedom and autonomy’. This support was affirmed in 965 during the crisis in the University of Lagos when some members of the Nigerian Parliament urged the Federal Government to intervene in the dispute between the Council and the Senate of the University. The Federal Minister of Education replied: This Parliament, in its wisdom, passed the Lagos University Act 1962, and under that Act the Provisional Council (of the university), acting within its powers, takes certain decisions. No matter what one may fee1 about the decision of this Council on the Lagos University, the Provisional Council which is a statutory body, acting within its powers and having every right to do what it did, cannot be challenged validly. The law establishing each Nigerian university provides thus for a university council which acts as the supreme governing body of the

71

university, and is responsible for the general management of the property and the affairs of the university. The majority of members of the council were appointed by the government and are generally lay (i.e. non-university) people. The Vice- Chancellor is by law a member of the council, and some representation is granted the academic staff through the Senate and the congregation. The university is in no way part of the civil service and, once the council acts within the powers conferred upon it by the university law, it is not answerable to the government for its decisions, neither can the government nullify any of those decisions. The case of the University of Lagos has been cited; the Federal Government considered itself without any legal power to intervene in a situation in which an attempt had allegedly been made on the life of the new vice-chancellor and the university was on the verge of collapse a few months before it was due to turn out its first crop of graduates. As further illustration of the Nigerian Federal Governments proclaimed reverence for university autonomy, the Federal Government rejected a recommendation by the National Universities Commission (in 1963) that the Federal Government should be represented on the council of each Nigerian university, in view of its financial contribution to the capital and recurrent expenditures of each of these universities. Does the foregoing mean that the Nigerian university is completely free from government control? It is easy to, especially since 1962, conclude from the foregoing paragraphs that each Nigerian university enjoys complete autonomy and freedom from governmental intervention of any kind. Compared with some universities elsewhere, the Nigerian university enjoys a good measure of autonomy. Events have, however, shown that the establishment by law of autonomous governing bodies is not necessarily a guarantee that the universities will be ‘insulated from the hot and cold winds of politics’ (or of military rule, one would hasten to add)! The fact that the government appoints both the chairman and the lay members who constitute the majority of each governing council may be a potent weapon in the hands of politicians. In summing up, the prayer of an Indian philosopher, Rabindranathe is apposite.

72

“Where the mind is without fear and the head is held high; Where knowledge is free; Where the world has not been broken up into fragments by narrow domestic walls. Where

tireless

striving

stretches

its

arms

towards

perfection;

Where the clear stream of reason has not lost its way into the dreary desert sand of dead habit; Where the mind is led forwarded by thee into ever-widening thought and action, into that heaven of freedom, my Father, let my country awake.

73

References Adamolekun N.K. (1979) “Universities and Polytechnics” Chapter VII in Ladipo Adamolekun and Alex Gboyega (Eds) Leading Issues in Nigerian Public Services Proceedings of a National Symposium. Ile-Ife: University of Ife Press Ile Ife. Ajayi. J.F. Ade (1983). “The University as an Integrated System” in J.D Ojo & J. B., Fadupin (eds) Senior Staff Association Industrial Relations Lectures 1982- 83 Series, University of Ibadan. Berghe, Pierre L. Van den (1973) Power and Privilege at an African University. London: Routledge and Kegan Paul. Eke A.Y. (1976) ‘Government and University Relationships in Nigeria “The Quarterly Journal of Administration. Vol. VIII No. 4, July 1972. Fafunwa A. Dabs (1971) History of Nigerian Higher Education (]827 — I969).Ibadan: Macmillan. Harvey, William Burnett (1978) Freedom, University and the Law: The Legal Status of Academic Freedom in the University of Black Africa. Lagos: University of Lagos Press Monograph Series. Ike V. Chukwuemeka (1976) University Development in Africa The Nigerian Experience. Ibadan: University Press. ______ (1976) University Development in Africa. The Nigerian Experience (Ibadan: Oxford University Press). lnegbed ion, N.A (1994) “Government Control of Universities and University Autonomy” Nigerian Current Law Review (The Journal of the NIALS). Kwapong, Alex A (1973) “Problems of University Administration in a Developing Society”. A Public Lecture delivered during the Tenth University Celebrations of the University of Ife, October 1973. Ladipo Mojisola (2000) “University Governance and Administration 1948 — 1998” In B. A. Mojuetan (ed.) Ibadan at 50 (1948 — 1998) Nigeria’s Premier University in Perspective. Ibadan: Ibadan University Press. Odumosu, Peter T. (1973) Government and University in a Developing Society. A Public Lecture delivered during the Second Phase of the University of Ife’s Tenth Anniversary Celebrations. Ojo J. D. “Law and Administration of Universities in Nigeria” (Mimeo). (2001)

74

_________“Democracy Within and Outside the Ivory Tower” An Inaugural Lecture delivered at the University of Ibadan. Okafor Nduka (1971) The Development of Universities in Nigeria. Longman. Okonkwo CO., SAN (1996) Discipline, Nigerian Universities and the Law (NIALS) Annual Lecture Series 14, Nigerian Institute of Advanced Legal Studies Lagos. Iredia, Tonnie O. (2005) Bridging the Gap between Law and Management. A Key Note Address at the 1st Advanced Course on Legal Aspects of Human Resources Management in Abuja.

75