Garba v.University of Maiduguri with Disciplinary issues in Tertiary Institutions Introduction
A watershed moment in the landscape of the nation's judicial decisions took place in the last century in the case of Garba v.University of Maiduguri
Where the Supreme Court laid down a marker in respect of disciplinary issues in our tertiary institutions, and the limits and otherwise of the powers of institutions to punish erring students. The decision has been the subject of criticism, and it has been subjected to several scrutinies through several cases which has besieged the courts over the years. This article will attempt to reconcile disciplinary issues in the tertiary institution and the ropes that bind the various bodies that can prescribe the required punishment. Salient points were raised by the Supreme Court in this case on rules of natural justice and the fact that an offence which amounts to a crime punishable by a court was not within the remit of a university disciplinary board to pass punishment, until a court has first done so. The question is would the decision of the Supreme Court be different had the rules of natural justice being observed, and if the proper channel of judicial punishment had be carried out in the first instance. Indeed some commentators
had stated that the Supreme Court decision raises concern as to the proper limit of all University disciplinary functions, the rights of an aggrieved student and the proper nature of judicial intervention in the domestic sphere. Is there a limit to the scope of disciplinary issues a tertiary institution can handle vis-Ã -vis the enormity of the offence? This article will attempt to proffer answers to these questions. The Facts and principles laid down in Garba v.University of Maiduguri
The extant law or enabling statute of most Universities have similar provisions that for the discipline of student. Section 18 of the University of Maiduguri Act
1979 is here reproduced. It provides: (1) 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 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 so 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 subsection (1)
(d) of this section in respect of any student, the student may, within the prescribed period and in the prescribed manner, appeal from the direction to the Council; and where such an appeal is brought, the Council shall, after causing such inquiry to be made in the matter as the Council considers just, either confirm or set aside the direction or modify it in such manner as the Council thinks fit. (3) The fact that an appeal from a direction is brought in pursuance of the last fore- going subsection shall not affect the question of the direction while the appeal is pending. (4) The Vice-Chancellor may delegate his powers under this section to a disciplinary board consisting of such members of the University otherwise than on the ground of misconduct.
The facts of the case were that following a violent student demonstration, the appellants, among other student were expelled by the respondent University for their alleged involvement. The students left on their trail criminal acts such as assault, theft, robbery, house trespass and arson which are serious offences under the penal code. The Deputy Vice Chancellor who was the chairman of the disciplinary investigative board instituted by the Vice Chancellor set up to investigate the matter was a victim of the student rampage. As a result of this irregularity and the issues of lack of jurisdiction on the part of the university and the panel, the appellants sought to quash their expulsion. They were successful in the High Court, but this was reversed on appeal by the respondent university to the Court of Appeal which held that there had been no denial of fair hearing and that the High Court had no jurisdiction â€œto state who should not be expelled from or admitted to the Universityâ€
and the High Court ought to have referred the matter back to the University for necessary action, following the rules of natural justice. On further appeal to the Supreme Court, the main issue was whether the University had jurisdiction to inquire into and impose disciplinary measure for misconduct, which amounted to a crime under the penal code Act. This was answered in the negative. According to Obaseki JSC as he then was, who read the lead judgement, Students in all Universities and institutions of Higher learning are not above the law of the land and where obvious cases of breaches of our criminal and penal laws occur, the authorities of the University are not empowered to treat the matter as an internal affair.
The learned jurist relied on section 33(1) and (4) of the 1979 constitution now sections 36(1) and (4) of the 1999 constitution. Which states thus:
- In the determination of his civil rights and obligations including and question or determination by or against any government or authority or 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 a manner as to secure its independence and impartiality.
is withdrawn, be entitled to a fair hearing within a reasonable time by a court or tribunal.
- Whenever a person is charged with a criminal offence he shall, unless the charge
In the opinion of it Lordship, since these provisions above were not followed. He concluded that the fundamental right of the appellants has been violated by their being punished for criminal offence without a preceding trial and a conviction by a court. Disciplinary Issues and present state of affairs
The opinion of the Supreme Court is that offences against the laws of the land fall outside the jurisdiction of the visitor and Vice Chancellor. Juxtaposing this position with several disciplinary issues within the tertiary institution, is that majority of the disciplinary issues which could includes cultism
, examination malpractice
, and so on are crimes against the law of the land and punishable by a court. It therefore means that tertiary institutions would embark on unending court cases before they could punish an erring student should the internal mechanism of punishment outlined in their enabling statute not adhered to. On this Ukhuegbe
states that the: The exclusion of criminal matters from the disciplinary jurisdiction is very injurious to the administrative process. Ultimately, it will render the system completely ineffective since many varieties of misconduct fall within the spectrum of the criminal law The decision of the Supreme Court have given room for student to proceed to the courts at the sight of any issues with their parent school which in some instances has resulted in needless judicial exercise. In University of Ilorin v. Oluwadare
the respondent was involved in examination malpractice, and he was subsequently expelled in pursuance to the enabling laws that established the University to set up a Student Disciplinary Committee (SDC) to try such offences. The respondent had the option of appealing to the University Governing Council. However he did not await the outcome of the internal appeal, but instead proceeded to the Federal High Court for the enforcement of his fundamental rights. The respondent contended that the SDC lacked the power to deal with examination misconduct which is criminal in nature and that the respondent was not afforded adequate opportunity to defend himself. On the other hand, the Appellants contended at the trial that an act of examination misconduct is a misconduct that can be dealt with by the Appellants under the University of Ilorin Act, Cap. 455 Laws of the Federation 1990 and that the Respondent was given a fair hearing while the steps taken by the Respondent in rushing to Court, after he had appealed to the Governing Council, was indeed premature and constituted an abuse of judicial process and also runs counter to the relevant provisions of Unilorin Act, Cap. 455, which allows appeal from the decision of the SDC. The court of first instance and the Court of Appeal upheld the argument of the respondent student. On further appeal to the Supreme Court, Umaru Kalgo JSC who delivered the lead judgement by dismissing the appeal on the grounds that the case was wrongly commenced at the trial court which therefore robbed it of jurisdiction to entertain the case. He stated thus:
- In this appeal the claims are partly for wrongful dismissal or termination of appointment and partly for breach of fundamental right. . .the principal claim being wrongful termination of appointment, which ought to have been commenced by a writ of summons, which was not then all the claims, principal and subsidiary which flow directly from it, are incompetent and therefore ought to be struck out.
- The Respondent was thereby jumping the gun, as his case being a challenge to his expulsion as a student from the 1st Appellantâ€™s institution, is not one of those claims/reliefs envisaged by the Fundamental Rights Enforcement Procedure Rules.
- The right to studentship not being among the rights guaranteed by the 1999 Constitution, the only appropriate method by which the Respondent could have challenged his expulsion was for him to have commenced the action with a Writ of Summons.
- When an application is brought under the Fundamental Rights (Enforcement Procedure) Rules 1979, a condition precedent to the exercise of the Courtâ€™s jurisdiction is that the enforcement of fundamental rights or the security of the enforcement thereof should be the main claim and not an accessory claim.
This case was a needless judicial exercise which ought not to have gotten to the courts in the first instance if the internal resolution mechanism of the school has been observed by the erring student. The Shortcomings of the Doctrine
Apart from the known fact that frivolous cases have besieged the court as a result of the doctrine, like the case above, it has been submitted that the doctrine is difficult to reconcile with the administrative process of the University and it has in fact created more problems that it sets to solve.
The first problem it creates is that the University authority can only discipline student after a courtâ€™s pronouncement where the issue touches and concerns crime. This will in turn create an unnecessary legalism into the administrative process of the University.
According to Professor Hart To turn every hearing of every disciplinary charge into a formal public trial would be, at best, time wasting and at worst, might damage young menâ€™s careers, and might sharpened and harden what has been a generally mild and even friendly attitude to those faced with disciplinary charges
Another inherent issues with the doctrine is that there was no distinction of cases in respect of the nature and severity of a crime neither did it answer the question as to what happens if the charge was struck out for nolle prosequi
especially where there is an unwillingness on the part of the State to prosecute.
Another issue that was not clarified was that what happens to a student when a case is in court. Can such a student retain its studentship? To avoid a situation where the status of such student is elevated to realms that will result to internal disturbance, he cannot remain a student of that institution pending the determination of such case. It is advisable that he is suspended not as a punishment for his offence, but as a holding operation. Possible Exceptions to the Doctrine
Section 6 of the Studentsâ€™ Union Activities (Control and Regulation) Act
provides that The provisions of any enactment, law or instrument relating to any matter to which this Act applies or relating to the admission or disciplinary control of a student in any educational institution affected by this Act, shall have effect subject to this Act.
According to Okonkwo
any determination of the courts to make an incursion in light of the Garbaâ€™s case will be dampened by section 6 above. The Supreme Court also went further rather persuasively in the dictum of Oputa JSC as he then was in Garbaâ€™s case that in extreme cases, there will an exception to this rule, where a student were to slap the Vice Chancellor, the effect of Section 36 of the 1999 constitution may give way. This position was supported in the cases of R. v. Senate of University of Ashton ex. Roffey
and Gylnn v. Keele University
where because of their peculiar circumstances, fair hearing or the principles of natural justice were dispensed with. Conclusions
The Garbaâ€™s case creates a divide in disciplinary issues in the tertiary institutions. Where would the line be drawn in respect of all disciplinary cases especially when it is clear that most if not all the misconduct are offences within the Criminal Code and Penal Code Act? And the courts in such instances must first pass judgement. The proper way to move away from the logjam created by this situation is for the Supreme Court to revisit the case according to Coker JSC
Also, according to Uwais JSC
Universities should be permitted to deal domestically with minor criminal matters. Ultimately, the last remit lies with the National Assembly through the National Universities Commission to see to it that a law is enacted that will confer full powers on the Vice Chancellor or Rector as the case may be to deal with all categories of disciplinary issues which might occur within an institution.
(1986) 1 NWLR (pt. 18) 500 
A. Akinrele, â€œThe Domestic Forum of a University- An Inviolable Sanctuary?â€ (1986) 1 LPR 28  
At p. 576 
Supra Note 5 
Section 63 of the Criminal Code Act provides for seven years in imprisonment for any person who manages or assist in the management of an unlawful society. 
Section 1 of the Examination Malpractices Act provides for punishment ranging from fines and three years imprisonment for offenders 
Section 3 of the same Act punishes impersonation by fines and prison terms between three to four years. 
S. O. Ukhuegbe, â€œPublic Law and the Disciplinary Powers of Universities in Nigeriaâ€ (1993)4 UBSLJ 16 
January, 2014 
F. I. Oshodin, â€œGarba v. University of Maiduguri revisitedâ€ (1998) LAWSA J. UNIBEN Vol. 7, 14 
Supra Note 11 
J.W. Bridge â€œKeeping Peace in Universitiesâ€ (1970) 86 LQR at p. 500 quoted in Supra Note 11 pg. 14 
C O. Okonkwo â€œDiscipline, Nigerian Universities and the Lawâ€ Nigeria Institute of Advanced Legal Studies, (1996) 21 
Dictum of Lord Denning, MR in Lewis v. Haffer (1978) 1 WLR 1073 
LFN, 1990 
Supra Note 14, pg 35 
(1969) 2 AER 964 
(1971) 2 AER 89 
Supra Note 1 at p.611 
Supra Note 1 at p.608-609