ABSTRACT

The requirement of the principles of natural justice in the Universities disciplinary action has received much attention from the Courts in the recent time. The Court interventionin the administrative determination of the Universities hascreated a lot of uncertainties and confusion. In fact, the extent, scope and limit of the Universities‟ power to punish student for misconduct is mostly unclear. This problem is so far-reaching that the University decision-makers are often confused as to practical steps to follow or what standard of natural justice they should observe in their disciplinary process.Objectives of the work include theappraisal of the University disciplinary jurisdiction vis-à-vis court of competent jurisdiction in trying University students for misconduct. This work is motivated by the unusual raise in the student-university litigations in Nigeria. The study focused on the importance of University disciplinary system and remedies as a much better way of resolving University disciplinary matters. It employed the doctrinal method of research to critically examine the application of the principles of natural justice in disciplinary action in Nigerian Universities and its effect on the institutional administrative expediency and efficiency. This research produced a number of findings:the application of the principles of natural justice to the University disciplinary actions are too demanding for the University Disciplinary Authorities;students and staff, despite the internal redress mechanism in the University forum, still resort to the court of law for redress. Based on the findings, it is recommended that the observation of the basic principles of natural justice should be sine qua non to discipline of student in Nigerian Universities. It is no longer sufficient for a University to discipline a student where it appears to the Vice-chancellor that such a student has been guilty of misconduct. Any student facing a disciplinary penalty, must know the case against him/her, the student must be given an opportunity to correct or contradict the evidence that have been made in support of the case, the University authority must make its decision without a reasonable apprehension of bias. In order to avoid the cost and minimize the number of lawsuits mushrooming in our Universities, it is crucial that University administrators understand the law, disciplinary             due                          process              and                         follow  it.

 

CHAPTER ONE

GENERAL INTRODUCTION

            Background to the Study

 

Disciplinary action of whatever nature must be carried out according to the dictate of law. This is one of the pillars of the rule of law. Statutes always provide procedures to be followed before a person is disciplined. These procedural requirements are provided in the statutes to enable the authority exercising the power under such statutereach a conclusion that is fair, justand reasonable. Where these procedures are ignored, irrespective of the fairness of the power exercised, the court will hold that the law has not been obeyed andthe power exercised, is a nullity.¹

One of the legal requirements for a valid exercise of disciplinary action is the observation of natural justice principles. The doctrine of Natural justice has, over the years, crystalized into two maxims: Audi alteram partem meaning that nobody should be condemned unheard. Nemo judex in causa sua which means that a man should not be a judge in his own cause. The most frequent cause of judicial interference with the exercise of administrative powers is a disregard of these principles of natural justice. Many of the cases of disciplinary actions in Nigerian Universities were often reviewed against the Universities by the courts, consequently nullified as a result of their failure to recognise and observe the principles of natural justice.

 

Natural justice, apart from being the “law of GOD”², has alsofound expression in the Constitution of the Federal Republic of Nigeria (1999 Constitution).Section 36 (1) provides:

In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled

to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

The effect of this provision is that, even where there is no statutory provision allowing a person, who is under „trial‟ to be heard in an institution‟s law, such person must nonetheless, be given the opportunity to present his case and be heard in accordance with the provision of the Constitution. It has long been established that administrative authorities/tribunals are bound to observe the principle of natural justice and right to fair hearing in the discharge of their judicial and quasi- judicial functions.³ The guiding principle is that as long as an individual‟s right and obligation stand to be affected by decision, action or inaction of any authority or tribunal, the action of such authority or tribunal is amenable to judicial scrutiny to see that the authority or tribunal observe  the principles of natural justice.

Universities world over are vested with the power to instil, inculcate discipline and good moral in their students. This power usually stems from statutory provisions, which are normally contained in the enabling laws of the institutions. Nigerian Universities (particularly the Federal Universities) have theirs contained in the Acts establishing them. The various Acts, which are similar in content, give the Universities the authority to set up disciplinary panels and to determine their procedures with a view to ensuring that such conform to the dictate of fair hearing and right reasoning.⁴

The University is a meeting point for various academic competitions and pursuits, a very large body of students from different backgrounds and cultures converge there to pursue their individual intellectual interests.Essentially, the University‟s students must be subject to its disciplinary powers so as to ensure an orderly academic community where the University‟s objectives could be achieved. Preservation of law and order is, therefore,crucialfor peace and stability in the University without which serious academics pursuit can hardly take place. In other words, the students,

lecturers and other supporting staff in the University community must be disciplined and subject themselves to the laws establishing the University, its rules and regulations.

If a University is to run successfully, the University authority must be able to exercise its disciplinary powers to punish students for the breach of its rules. Theemphasis here is that the University disciplinary process is used to maintain law and order in the university community. This is because, if any reasonable degree of academic progress is to be attained, a peaceful environment must be secured. The University has the inherent power to formulate and enforce rules of student conduct that are „appropriate and necessary‟ to the maintenance of order reasonably necessary to further the institution‟s educational goals. The power to discipline erring members of staff and students is extant, the fundamental requirement is that such an institution must act in accordance with the principles of natural justice.

       Statement of the Problem

 

Maintaining peace and order in any of our University has now become a herculean task.The University on one hand,is often saddled on how to use the big stick on students adjudged to have fouled the institution rules and regulations without drawing the ire of the law, while on the other hand, the student is often embroiled with the quandary of determine where to seek relief from the often perceived high-handed and oppressive decisions of the University in meting out discipline  for the breach of its rules and regulations. The unnatural consequences of the above is the spate of law-suits instituted against the Universities by their staff and students‟ alike when disciplinary actionswere taken against them.Unfortunately, most of these suits ended against the University concerned, most often, on the ground of non-observance of the cardinal principles of natural justice.

 

Theproblem is more complex in the face of issues like the place of natural justice in the administrative law sphere, the extent, scope and desirability of theapplication of the principles of

 

natural justice in administrative / disciplinary action of the University; the effect of the Supreme Court‟s decision of Garba vs University of Maiduguri which prohibit the University from entertaining students‟ misconduct tainted with crime; the provisions of the Examination Malpractice Offences Act which regulate, define and prescribe penalty for examination malpractice misconducts in public Universities, and in addition vest jurisdiction in examination malpractice cases on the Federal High Court; the question of exclusiveness or otherwise of academic decisions as distinct from University administrative / disciplinary action; the adequacy and relevance of forum domesticum for settlement of issue or dispute in the University  community. These issues are extant and called for a serious attention and thinking.

This research work shall attempt to find answers to the following questions-

 

1. In exercising disciplinary powers, must the University decision-makers take into consideration the principles of natural justice or just discretionbeforemeting out punishment to student adjudged misconducted?
2. What amount to misconduct which a University can legitimately assume jurisdiction and punish its student for and which degree of misconduct that the University is prohibited from entertaining?
3. Is examination malpractice a minor misconduct amenable to the University disciplinary jurisdiction or a serious misconduct triable only by a court of competent jurisdiction?
4. Is the University jurisdiction in all academic decisions exclusive and not subject to judicial review as declared often by the courts or is it a theory?
5. Must a student exhaust the internal remedies in the forum domesticum of the University before approaching the Court of law for redress?

       Aim and Objectives of the Research

 

Themain aim of this research is to critically assess the application of the principles of natural justice in disciplinary action in Nigerian Universities. The specific objectives of the research are:

 

1. To find out whether the University decision-makers exercising their disciplinary powers under the University Act must observe the principles of natural justice when discipline student for
2. To appraise the University disciplinaryjurisdiction vis-à-vis that of Court of competent jurisdiction or Tribunal established by law in trying University student for misconduct tinted with
3. To examine whether examination malpractice is a minor misconduct subject to the University disciplinary jurisdiction or a serious misconduct within the competent of the High Court
4. To find out whether University academic decisions are subject to supervisory and reviewing power of the
5. To appraise the doctrine of forum domesticum in the University context, especially as it relates to disciplinary actions and internal

1. 5 Scope of the Research

 

The territorial scope of the research essentially covers Tertiary Institutions in Nigeria. There are more than 100 Universities⁵ in Nigeria today established by statutes whose provisions are strikingly similar (particularly the Federal Universities). The provisions of these statutes will be examined in the light of the prevailing circumstances in our campuses to demonstrate their adequacy or otherwise.

The substantive scope is administrative law.

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ETHNO-RELIGIOUS CONFLICTS AND THE INTERNALLY DISPLACED PERSONS: AN AGITATION FOR LEGAL FRAMEWORK A CASE STUDY OF KADUNA STATE

ABSTRACT

 

Nigeria as an Independent state with different ethnic and religious groups over the years experienced a number of ethno-religious conflicts which have claimed lives and properties. The consequence of this is the displacement of many inhabitants which are referred to as Internally Displaced Persons (IDP’s). The affected persons are denied certain constitutional rights as enshrined in the Constitution of the Federal republic of Nigeria 1999 (as amended) and other international legal instruments which are aim at protecting their rights. It is to this extent that this work examined the causes of ethno- religious conflicts vis-à-vis the laws that seeks to protect the rights of victims of such conflicts. The study also examined the role of Government and Non-governmental agencies in the protection of the rights of victims of ethno-religious conflict whether such role is moral or legal? Data were collected through questionnaire and interviews and later the data were analyzed. The findings are that in Nigeria today there is no certained law dealing with the problem of internally displaced persons. Our recommendation is  that with the foundation laid down by the Kampala convention and the general principles of issues relating to IDP’s, the stage is set for Nigeria to hasten the process of enacting its laws or adopting the kampala convention as a national law

CHAPTER ONE GENERAL INTRODUCTION

Background to the Research

 

Ethnicity and religion have become powerful factors of mobilization for violence leading up to the destruction of lives and properties, displacement of whole communities and especially in Kaduna State and Nigeria as a whole.

In Kaduna State, there have been conflicts leading to loss of lives and destruction of properties at KasuwanMagani in 1980, Kaduna metropolis in 1982, Gure/Kahugu in 1986, Kafanchan in 1987, Kaduna City again in 1992, Kafanchan in 1999 and Kaduna, KachiaandBirninGwari in February 2000. Also, in 2007 at ZangonKataf Local Government and lastly the election violence of 2011in many parts of Kaduna State which have 3 religious and ethno-centric colorations. The causative factors that culminated into ethno-religious crises in Kaduna State include struggle for power, religious differences, political party disputes and economic imbalance.¹

Other Factors Include:

• • High level of poverty and unemployment,
  • Government reliance on repressive measures which later erupt on a more serious scale.
  • Government failure to promote social welfare, social security, social justice and equity.
  • Government structure is    anchored   on    patronage    and   social    exclusionthrough discriminatory policies and actions resulting in mistrust and

1International Crisis Group, African Report No 168- at page 10, 20^t,h December, 2010

• • • Poor threat analysis, ineffective and inefficient intelligence information by security agencies and relevant government
    • Lack of seriousness in the implementation of the report of panels and commission of enquiries‟ recommendations and their manipulation‟s.

 

In Northern Nigeria, we are faced with a more devastating situation, some communities, ethnic and religious group that have enjoyed peaceful coexistence have been pitched against one another as enemies. This enmity hasoften times degenerated to a situation where whole communities are sacked, burnt down, and property worth billions of Naira have been lost or destroyed in the process.

 

In Kaduna State alone, during the 1987 crisis, hundreds of lives were lost, while police assessed damage to properties at seventy-eight million, five hundred and thirty- seven thousand thirty- eight naira (N78,537,038).²

On 6^th February, 1992, more clashes occurred which according to official report resulted in the death of 95 persons and 252 others injured, while 133 houses and 26 farmlands were destroyed.³ Also in May, 2000 ethno-religious crisis eventually engulfed, Kaduna, Zaria, Ikara and ZangonKataf local governments. According to official report 471 persons were killed, 518 persons were injured and 229 houses and 218 vehicles were destroyed.⁴

In 1999 and 2000 violence erupted as a result of introduction of Sharia in ZamfaraState. Followed by Kaduna State, fighting lasted for four days in the State with death of about

2 Okoye F., “The Impact of Religious and Ethnic Conflicts on Women and Children in Northern Nigeria”.

:             Publication Human Rights monitor (2000)

3New Nigeria news paper 20^th July, 1992 at page 10

• • 1. R. I. Doi, Lslam in Nigeria (Zaira, Nigeria: Gaskiya Corporation, 1964), 210

4Police investigation Report on Kaduna Sharia Religious Crisis of February 2000

 

1,800 people and about 5,100 people were injured.⁵

 

Recurrent incidences in ethno-religious violence have taken a severe toll in the region especially in Kaduna State. All the conflicts have led to significant population displacement affecting children, women and the aged. Also, properties worth more than N40b(forty billionnaira) were destroyed.

 

Furthermore, in 2011, there was incidence of ethno-religious violence which permeates the political scene in Nigeria; this resulted in the loss of lives which mostly affected children, women and the aged. Similarly, places of worship, homes, schools and even hospitals were destroyed.⁶

Also the incessant insurgency by the group called Jama‟ataulSunnahWal- Jama‟aa.k.aBoko Haram (Western Education is illegal or prohibited) devastated the Northeastern part of the country i.eBorno, Yobe, Adamawa, Gombe and Bauchi States. Many more other states such as Kaduna, Kano, and Abuja were not left out in the attacks which had claimed the lives of many people and their properties.

 

This research work, intends to confront the monumental task of ensuring protection for persons forcibly uprooted from their homes by violent conflicts, gross violation of their rights and other traumatic events, but who,however,remain within the borders of their own countries. Often, they suffer from severe deprivation, hardship and discrimination

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DETERMINING THE PROPER LAW OF CONTRACT UNDER PRIVATE INTERNATIONAL LAW

Abstract:

Where a dispute arises from the breach of a term or terms of a contract between ‘A’ a Nigerian and ‘B’ an Italian, the court which entertains the action will employ an objective test in order to determine the law to govern the resolution of this dispute. Before arriving at this law, the court considers the intention of the parties regarding their choice of law. The parties’ intention could be expressed where they provide that “Nigerian law shall govern the construction of this contract”, or their intention could be implied where, from the terms of the contract, the court could hold that the parties’ intention is that Italian law should govern the contract. Where their intention is neither expressed nor to be inferred from the terms of the contract, the court could hold that the system of law with which the transaction has its closest and most real connection shall be the proper law of the contract and this is arrived at by looking at the surrounding circumstances of the case. The above explanation is what “Determining the Proper Law of Contract under Private International Law” is all about and it is that proper law so determined that 13 is applied in all issues or matters arising from international contract disputes brought before the court for resolution.

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