opinionBy Pat Anyadubalu
Lagos — "A University student is a priceless asset and as he is on the threshold of world of useful service to the nation, we cannot afford to destroy him by stigmatizing him with guilt of offences unless proved guilty before a court" (italics mine) per Obaseki J.S.C. as he then was in GARBA V University of Maiduguri).
"The celebrated case of GARBA V University of Maiduguri is not intended to be a court given licence and judicial umbrella to provide students of unbridled, recalcitrant and impetuous behaviour in the university system who have no sense of ethics and society to cause ruination to the education institution by their uncouth and display of primitive characterizations..." (Italics mine) per Pats-Acholonu JSC in ESIAGA V University of Calabar.
THE menace of cultism in our various tertiary institutions has become a worrisome development to any decent person. Each campus has avalanche of gory stories on the activities of these clandestine societies. The Federal Government thoroughly embarrassed by this ugly incident ordered the vice-chancellors and other heads of tertiary institutions to eradicate cultism in their institutions or be relieved of their exalted positions. This order generated a fire-brigade approach to eradicate cultism. We consequently witnessed a much-publicised repudiation of cultism by self-confessed cultists in various campuses.
The judiciary has also received its fair share of blame by opinion writers as one of the contributory agents to sustenance of cultism in our higher institution. They argued that the refusal/failure of the judiciary to convict alleged cultists has failed to deter others from such nefarious activities. Some quickly point at the Supreme Court decision in GARBA V University of Maiduguri (1986) 1 N.W.L.R PART 18 at page 669 to buttress their point.
The appellants in the above case were students in the University of Maiduguri who were expelled sequel to the riotous behaviour of about five hundred students of the University exhibited in demonstration, rampage, wanton destruction of property, arson and assaults on person. Their expulsion was not until after the senate of the University had considered the reports of the disciplinary board set up by the Vice Chancellor to investigate the said rampage. The Chairman of the disciplinary board was the Deputy Vice Chancellor of the university whose house had been looted by the rioters and who gave evidence in that respect during the panel's hearing. Following their expulsion, the appellants initiated an action in the court.
The Supreme Court, the court in setting aside the expulsion of the students, held, inter alia: That neither an investigating panel, disciplinary board nor Vice Chancellor of University had the power to determine a criminal charge, only a court or judicial tribunal was competent to hear and determine the criminal charge brought against the appellants; that where the misconduct for which a Vice-Chancellor could expel a student involved crime, it was no longer a matter of internal but a matter for a court or tribunal vested with judicial powers to try such offences; and that the expulsion was null and void because it violated their fundamental right by being punished for a criminal offences without a preceding trial and conviction by a court.
Finally, that since the allegation was destruction of University properties, the Vice-Chancellor and other officers of the University were in charge of the properties. And having regard to the fact and serious nature of the offences, the Vice-Chancellor and other officers were vital witnesses and could not be judge in their own cause. They were therefore in breach of the rules of natural justice.
Bearing in mind that there is hardly any allegation against the nefarious activities of these cultists that has no iota of criminal element, the argument that previous judicial decisions have not helped in eradication of cultism is not misplaced. Pats-Acholonu J.S.C. made a veiled reference to this when he stated in ESIAGA V University of Calabar supra "the celebrated case of GARBA V University of Maiduguri is not a court given licence and judicial umbrella..." (see above).
The Supreme Court recently distinguished its earlier decision in GARBA V University of Maiduguri Supra in Esiaga V University of Calabar (2004) 21 W.R.N 28. In the latter case, the appellant was a final year student in the department of political science in the University of Calabar as well as being the speaker of the students union parliament of the University and at one time the president of the political science students association of the university. The grouse of the appellant was that the university authority had illegally suspended him indefinitely on the ground that they discovered certain incriminating materials in his possession to wit - Vikings confraternity insignia, a shot gun cartridge and a history text book. The appellant share the room with other students and denied being the owner of those incriminating items. The University authority suspended him 'indefinitely' and as the appellant stated the University authority felt that the stated items constituted ex-facie evidence of cult membership. The appellant stated that the action of the authority was borne out of malice more especially as the security people who searched the room did not allow themselves to be searched. The matter went to the Supreme Court.
The Supreme Court distinguished the two cases, while re-affirming that in GARBA's case it was outright expulsion of the student while in the Esiaga's case it was suspension of the student. "In the present case an investigation body was to be set up to enable the appellant put his own side of the case."
While one submits to the finality and infallibility of the Supreme Court, it is pertinent to state with respect to the learned Justices of the Supreme Court that the decision of the court in Esiaga Vs University of Calabar supra was influenced by the menace of cultism on our campuses rather than facts before the learned Justices. This position was betrayed by the statement of Pats-Acholonu in his lead judgement where he stated thus:
"It is important to emphasise that the cult system which pervades the University campus is now an evil phenomenon that is threatening to tear the University system apart and I strongly believe it will be remiss of the University authority to wring its hands in desperation and frustration on the erroneous or misguided view of interpretation of the judgement of GARBA's case. That case did not and cannot be said to be construed that in all circumstances when the atmosphere in a university is threatened and there is a reasonable possibility that if the rampaging act of a student or students is not nipped in the bud by the act of suspending the perpetrators of the seeming ignoble act, the University authority should do nothing... In a hypothetical case, if the Vice Chancellor becomes apprehensive that his house might be consumed by flames, it will be irresponsible for him not to attempt to first begin putting out the fire before calling the fire brigade fighters. I must warn in unmistakable terms that in our attempts to preserve or protect what we conceive as the civil liberties or fundamental rights of students of nowadays where the cult system like gorgons with hydra head is seeking to bestride and threaten the very existence of these institutions we do not wittingly help in destroying the University system and enthrone anarchy in the name of the protection of questionable rights of scoundrel masquerading as a student...."
While one appreciates the need to eradicate cultism in our university, there is need to ensure that due process is followed and only the guilt are punished. To suspend a student without hearing from the student should be seen as being a fundamental breach of fair hearing. This is because suspension of a student especially indefinite suspension has not much difference from expulsion. In GLYNN V KEELE University (1971) 2 All E.R. 89, the court held that the powers of the Vice Chancellor under the statutes to suspend the student were so fundamental to the position of a student in the university, that they could not be regarded merely as a matter of internal discipline accordingly, the Vice-Chancellor was acting in a quasi judicial capacity when he exercised them, so acting he has not complied with the rules of natural justice in that he did not give the student a chance of being heard before he reached his decision on the infliction of penalty.
The above notwithstanding, the decision in Esiaga's case stands as the Supreme Court is the final court in Nigeria. It is one's humble opinion that in view of the present Supreme Court decision above the University authority should apply tact in exercise of their power of suspension of students for alleged misconduct and where a student is suspended, effort should be made to institute a disciplinary panel to determine the matter as soon as possible. This is to avoid a situation where suspension of a student will be an euphemism for expulsion without fair hearing. With this decision, the judiciary is no longer to be blamed for any nefarious activities of student(s) as the authorities have been given the legal power to suspend such erring student pending when appropriate panel will be set up to try such student or determination of same by the court. The students are undoubtedly in for a tougher time.
Mr. Anyadubalu, a lawyer and executive director, Back to School Foundation, lives in Lagos.