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ࡱ> #` bjbj\.\. .>D>D %VVVjNNN8Lj?j("???????$;@hB*?V - - -*?VV?? : : : -VV? : -? : :<VV<^ t7N5<?U?0?<,Cc8<C<CV<4;#V :&=)*?*?9j? - - - -jjjNjjjNjjjVVVVVV RETHINKING THE EXCLUSIVE JURISDICTION OF NIGERIAN UNIVERSITIES IN ACADEMIC MATTERS E.S NWAUCHE Associate Professor of Law Rivers State University of Science and Technology PMB 5080 Nkpolu Port Harcourt Rivers State  HYPERLINK "mailto:nwauche@hotmail.com" nwauche@hotmail.com & Director Centre for African Legal Studies Plot 73 (Andoni Road) Eagles Island P.O Box 7663 Port Harcourt, Rivers State  HYPERLINK "mailto:esnwauche@afrilegstudies.com" esnwauche@afrilegstudies.com INTRODUCTION One of the signposts of judicial power is its unlimited capacity to inquire into all matters no matter how technical or complex even though courts are often assisted in this regard by experts including amici curiae. It is important for the rule of law that courts have such far reaching power to examine all disputes. If it were otherwise there would be loss of confidence in the administration of justice and a slide into self help and anarchy. Even the endowment and exercise of discretionary powers are reviewable by courts to ensure compliance with the tenor of the enablement. It does not mean that courts discharge this duty with the same competence in all areas of human endeavour. Often the learning of judicial officers is relevant. Sometimes the technical context of the area also plays a role. It does seem that the nature of the power to be exercised is also crucial. The more discretionary the power, the more it is difficult to review the exercise of that power. Even at that, there is no discretionary power that is without context or limitation. For this reason the exercise of power can be reviewed by a court on both procedural and substantive grounds. Procedurally there are certain safeguards that are implicit in the exercise of power such as the right to fair hearing and the rule against bias that go to ensure due process. Furthermore public authorities often declare the framework for the exercise of endowed powers by adopting rules and regulations to govern such exercise Thus while a court may not inquire into the substantive exercise of power, it may examine the procedural compliance of the exercise with the internal rules of legitimacy and fundamental human rights. It is therefore possible that to this extent, the concept of exclusive domestic jurisdiction is largely illusory. In this context an exclusive jurisdiction would mean that all questions concerning the exercise of the power end within the hierarchy of the organization. This would for example be the effect of ouster clauses which are the hallmark of dictatorships since judicial review is an incongruent affront to absolute power. In a constitutional democracy, however the endowment of judicial power is meaningless without unlimited competence over disputes. Yet courts often recognize that some issues are best left resolved by domestic arrangements. It is not always clear whether by this, courts decide not to review the substantive decisions taken or they are content to ensure that only the procedural requirements are assessed or both. Thus in stating that a public body or institution is endowed with domestic jurisdiction, it is not clear as stated above what this means and why this should be so. The latter question grapples with the desirability of exclusive jurisdiction. What remains of the rule of law if certain matters are outside the competence of courts? Is the realization that its affairs are outside the competence of courts a recipe for dictatorial tendencies? If courts provide an organized outlet for conflict resolution, it is important that the unlimited jurisdiction of courts is promoted so that society can bring finality to conflicts through the independence and impartiality of judicial officers. On the other hand, are courts capable of reviewing all issues? Are certain issues because of their context difficult and impossible for courts to contend with? Can a court for example review the award of marks in an examination paper? Can a court assess the sufficiency of character needed for graduation? What really is the utility of unlimited judicial competence when access to courts in Nigeria is largely illusory and cases continue interminably? Again, another line of inquiry is the fact that the recognition of excusive jurisdiction is a manifestation of the incomplete development of the legal regime of an institution? Put in another way, if the legal framework of an institution is well developed and elaborated, it becomes easy to review compliance therewith. If the exercise of discretion is guided by clear verifiable conditions, it becomes easy to review the exercise of it. In this context all that must be done is to ensure that the legal framework is well developed. It is within this context that this paper reviews the exclusive jurisdiction of Nigerian universities in academic matters. I contend that the exclusive jurisdiction of Nigerian universities in academic matters until Magit v University of Agriculture Makurdi and Esiaga v University of Calabar recognized a substantive autonomy if there are procedural compliance with internal rules and fundamental human rights. A combination of Esiaga and Magit establish an absolute discretion in universities in academic matters. I will also demonstrate that the tenor of Esiaga and Magit are potentially insidious since they are capable of leading to absolute powers in universities who may be led to believe that their decisions are not subject to judicial review or appeal. I contend further that the nature of fundamental human rights is such that exclusive jurisdictions like ouster clauses are constitutional anathemas. Within the context of my belief in a cheap fast and independent resolution of academic disputes I review a number of options of managing the exclusive jurisdiction of Nigerian universities in academic matters by examining firstly the potentials of visitorial jurisdiction and an independent arbitral body dedicated to resolving academic disputes. II. EXCLUSIVE JURISDICTION OVER ACADEMIC MATTERS To understand the nature of the exclusive jurisdiction of Nigerian universities, my discussions hereafter will center around the decisions of the Supreme Court in Magit Esiaga and Akintemi v Onwumechili. In Akintemi three female students of the Faculty of law of the University of Ife ( now Obafemi Awolowo University) sought inter alia an order of mandamus compelling their university to publish and communicate the result of their part IV final year LL.B degree examinations taken by them in 1981. There had been an earlier application by the appellants against the respondents for an order of certioriari to quash the order of suspension made by 1st respondent against them on the basis of the findings of an enquiry set up by the university to investigate an allegation of malpractices during the Part III LL.B Examinations held in July 1980. The court in response to this application issued an order of certiorari quashing the order of suspension on the ground that the rules of natural justice had been breached in that the appellants had merely been called as witnesses during the enquiry to enable them defend such charges, if need be. Thereafter the students were allowed to take the examination. The action which came before the Supreme Court concerned the release of the result of that examination. The trial court dismissed the application and the appeal to the Court of Appeal was also dismissed. The Supreme Court further dismissed the appeal and held that the action is premature as the Senate of the University and the University Council had not taken any decision on the matter. Irikefe JSC believed that the case belonged to the domestic domain of the university as enshrined in the statute establishing it and are such not justiciable in a court of law Obaseki JSC formulated three issues for the determination of the court that reflect the issues that this article deals with. His Lordship stated these issues as follows: (1) whether or not there is a domestic forum from which an aggrieved student may seek a remedy; (2) whether a case crying for justice has been made in this case; (3) and if so, whether seeking a remedy in court or making use of domestic forum of the university will not be more convenient, beneficial and effective In Esiaga appellant was a final year student in the University of Calabar and Speaker of the Student Union Parliament of the University of Calabar. He instituted an action in Calabar High Court where he sought an order for the enforcement of his fundamental human rights. He contended that the University had illegally suspended him indefinitely when certain materials linking him to a banned secret cult were found in his room. The appellant sought for order nullifying the suspension and for the respondents to release his result along with others when examination is taken. The trial court granted the appellants prayer which was overturned at the Court of Appeal. Dissatisfied the appellant appealed to the Supreme Court which upheld the decision of the Court of Appeal on a number of issues. The request for an order that his result should be released was denied. The Court said: Connected to this is the relief sought to have the appellants results released along with others. This presupposes that he was acting for an order in the future. There was nowhere in his affidavit that he averred that he had sat for an examination. Results of examinations are released when an examination is taken. I believe that where an examination is taken and the institution suspects some unsavoury practices attendant to the behaviour by a student, such results may not be released until the university authority has satisfied itself that it is in a position to release the result of one who is considered worthy and fit in learning. Where no examination has taken place it is idle to ask a court to grant a relief of the release of the result. It is my view that should any court worth its salt lend itself to such persuasion, then it would have succeeded in no small measure in destroying the institution of higher learning. Pats-Acholonu JSC adopted the views of Tobi JCA (as he then was) at the Court of Appeal who said: In so far as examinations are conducted according to the University rules and regulations and duly approved, and ratified by the University Senate, the courts have no jurisdiction in the matter. A court of law which dabbles or flirts into the arena of university examinations, a most important and sensitive aspect of university function should remind itself that it has encroached into the bowels of university authority. Such a court should congratulate itself as being party to the destruction of the university and that will be bad not only for the universities but also for the nation. In Magit the appellant was admitted by the University of Agriculture Makurdi to do a M.Sc degree in Agricultural Economics. He was required as part of the programme to submit an acceptable thesis. His topic for the thesis was approved. The appellant wrote and submitted his thesis to the Board of Examiners comprising of a major supervisor, an associate supervisor who was also the internal examiner, a lecturer with the university and an external examiner from the Ahmadu Bello University, Zaria. He also defended the thesis orally. The result of the defence was to accept the thesis and the degree awarded subject to corrections to be certified as may be determined by the panel. Ultimately the appellant was adjudged to have made corrections to the thesis that were below standard. The thesis was rejected and the respondent advised the student to withdraw from the university on the grounds that he had employed dishonest and unacademic methods of arriving at the result in the thesis. Aggrieved by the respondents decision, appellant sought to enforce his fundamental human rights under the Fundamental Human Rights (Enforcement Procedure) Rules 1979, seeking leave to apply for orders of certoriari, mandamus and prohibition. The trial court dismissed the appellants application. His appeal to the Court of Appeal was also dismissed and he further appealed to the Supreme Court. Even though the Supreme Court was correct in refusing to order the release of a future result as sought by the appellant in Esiaga, the tenor of its wholesome adoption of the principle of exclusive jurisdiction enunciated by Tobi JCA clearly influenced the Court in Magit. Ogbuagu JSC who read the lead judgment of the Magit court also adopted the views of Tobi JCA. The import of the Tobis principle is the conferment of absolute unquestionable discretion on the university in the conduct of examinations and award of degrees. Thus in Magit, appellants conceded that the university had a discretion to award or not to award a degree but that it cannot act maliciously, whimsically and capriciously in refusing to award a degree to a student who fulfills its degree requirement. Responding to this contention, Ogbuagu JSC said: Surely if a university has a discretion and not a mandatory duty to decide who it can/will award its degree and section 7 of the University Act 1992 vests in the second respondent to the exclusion of any body of the university, the sole responsibility for the award of the degrees and such other qualifications as may be prescribed in connection with examinations held, how can/could it be said that it acted maliciously, capriciously or whimsically in its said decision. Pats-Acholonu JSC who read the lead judgment in Esiaga in addition to Ogbuagu JSCs judgment in Magit dealt extensively with the nature of the exclusive jurisdiction of the court. His Lordship was equally emphatic as to the absolute discretion which a university has. It is necessary to quote him in extenso: A university is a degree awarding institution and canneither delegate its degree awarding powers nor be stampeded to make award where it does not see it fit to do so. For a court to use its awesome magisterial powers to compel a university to award a degree would in effect mean that the court has invested itself with necessary powers to fully appreciate the nuances taken into consideration to award university degreesA university is a place of great learning and research. I would view with consternation and trepidation the day the court would immerse itself into the cauldron of academic issue which is an area it is not equipped to handle. It will indeed be alarming for any court worth its salt to enter into the arena of questioning why a university has refused to award a degree to any studentIt is my view that it is the indisputable right of a university to award or withhold the award of a degree and it is no business of the court to question its motives let alone compelling it to award a degree which it has stated a claimant is not qualified forIt alone possess the power to state whether a particular work is below standard or notIs the court going to substitute its standard with that of the university? I think not. Continuing His Lordship remarked: Let us pray that there shall never come a time when the court shall use its powers to constitute itself into a senate of a university or a degree awarding body. When faced with a case of this nature, the court should exercise utmost caution knowing fully that it is not versed in the university method of assessing the intellectual work and is not vested with the power to arrogate itself the function of a university. For a student or research scholar to approach the court to cause a degree to be awarded to him when his university had rejected his work on the ground that there is something unethical bordering on dishonesty, is not only importune but equally petulant and utterly ridiculous. The facts of Magit provide the context for a discussion on the import of the absolute discretion with which universities as presently held by the Supreme Court are endowed with in academic matters. In the first place, it may be contended that because of Esiaga a university in asserting the absolute discretion of a university must comply with its own laws rules and regulations. Thus in Magit, section 6 of the University law is clear that only the Senate is enabled to award degrees. Thus the contention of the appellant that he had earned a degree was wrong as there is no evidence to show that the senate had conferred a degree on him. However a court of law would be right to scrutinize the university laws and regulations to ensure that it had been complied with. To the extent of assessing procedural compliance with internal rules and regulations, the exclusive jurisdiction of a university is circumscribed. In the second place supposing the student alleges that his fundamental human rights have been breached as did the appellant in Magit. In that case the appellant argued that he should have been given fair hearing before the Senate of the university decided that he was guilty of academic dishonesty because of the corrections he made to his thesis in compliance with the views of the oral examination board. Senate held that they were radically different as it had produced a result different from the original one and that he had used unacademic means to achieve the results. The Supreme Court held that there was no denial of fair hearing in this case since the student had been given an opportunity to defend his thesis earlier and make corrections and that consideration of his thesis by senate was like an examiner considering answer scripts which does not require the presence of the student. Since the court held in Magit that there had been no denial of fair hearing, it means that in the exercise of her discretion a university must respect the fundamental human rights of its students and research scholars. Accordingly in appropriate cases where there is breach of fundamental human rights courts would nullify the action of a university for example in refusing to award a degree. In Asein v University of Ibadan, the Court of Appeal said: I agree with the view that the issues raised here are indeed ones relating wholly and solely to the rights of the senate and the university in the conduct of 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 caseAll I need to say on this point is that where the university process relates to examinations, it must be a gross departure from established procedures amounting to no procedure at all. Or a gross violation opf the rules of natural justice that may warrant such interference. In Akintemi Obaseki JSC opined that: If a matter is justiciable in Nigeria the domestic nature of the dispute does not, under the 1979 Constitution oust the jurisdiction of the Court. See section 6(6)b of the 1979 Constitution. It can only mean that until the remedies are exhausted, any resort to court action would be premature The courts cannot and will not usurp the functions of the senate, the Council and the Visitor of the university in the selection of their fit and proper candidates for passing and for the award of certificates degrees and diplomas. If however in the process of performing their functions under the law the civil rights and obligations of any of the students or candidates is breached denied or abridged, it will grant remedies and reliefs for the protection those rights and obligations. In the instant appeal, it has not been established that there was such a breach or denial or abridgment. It is interesting to note that even though Obaseki JSC agreed with the lead judgment of Irikefe JSC there are fundamental differences between their views as to the domestic jurisdiction of a university. While the latter believed it to be complete and removed from the jurisdiction of the court, Obaseki JSC predicates the jurisdiction of the court on the observance of fundamental human rights. Kazem and Kawu JJSC supported Irikefe JSC. Coker JSC did not allude to the breach of fundamental human rights even though he affirmed that the court has jurisdiction to grant the reliefs sought by the students but stated that: It is inconceivable that it would make the orders sought in the exercise of its discretion in the circumstances of this case Accordingly Obaseki JSC was in the minority in Akintemi. It is not therefore surprising that Magit and Esiaga seem to follow the majority and overlook issues of fundamental human rights. In this vein, Ogbuagu JSC in Magit seemed to imply that fair hearing is not relevant in a university. After listing a number of cases, his Lordship said: Surely, the great pronouncements in the above cases have no relevance to a university system and procedure as in the instant appeal, whereby section 7 of the University Decree/Act 1992 vests in the senate, to the exclusion of any other body or organ of the university, the responsibility of the award of degrees and such other qualifications, as may be prescribed in connection with examinations held. Pats-Acholonu JSC acknowledged the principle of law enunciated in Adeniyi v Governing Council of Yaba College of Technology and University of Nigeria Teaching Hospital Management Board v Nnoli to the effect that absence of fair hearing would vitiate a decision of the court but stated that it was not applicable to Magit because no two cases are the same It seems better to regard the views of Ogbuagu JSC as restricted to the facts of Magit. In any case in previous discussions in the case Ogbuagu JSC seemed to accept that the student had been given fair hearing by his appearance before the oral defence panel. As stated above it cannot be asserted that the meaning of the exclusive jurisdiction of a court is that all fundamental human rights of students are dispensed with. The constitutional superiority of the fundamental human rights provisions mandated by section 1 of the 1999 Constitution is adequate answer to this assertion. If the Constitution is superior to all laws and those laws are null and void to the extent of the inconsistency, it means that the fundamental human rights of students must be respected. Again the nature of the powers of the visitor clearly contemplates the jurisdiction of a court to ensure constitutional compliance. For example the proviso to section 12(1) and (2) of the University of Port Harcourt Act provides that that nothing in this section shall affect any power of a court of competent jurisdiction to determine whether any provision of a statute is wholly or partly void as being ultra vires or as being inconsistent with the Constitution of the Federal Republic of Nigeria. I therefore submit that a university exclusive jurisdiction over academic matters is subject to an observance of the fundamental human rights of a student or research scholar. This is one of the principles of law established by the much maligned case of Garba v University of Maiduigiri. Thirdly, supposing a university acts maliciously capriciously, whimsically, is the absolute discretion principle a bar in a court determining this fact. Thus it is possible that even with the observance of the fundamental human rights including fair hearing and the rules and regulations of a university it can act maliciously capriciously or whimsically. To deny otherwise is to arrogate infallibility to a university. It is to assert that a university can like the King do no wrong. Even the university itself recognises that it can do wrong hence its dispute settlement mechanism. In Magit, for example the appellant contended that he was asked to withdraw from the university because of personality clashes in his department. When a university is said to have acted maliciously, capriciously and whimsically it is said to have acted unreasonably. The concept of reasonableness is not a free standing principle of Nigerian administrative law. It is subsumed under the rubric of substantive ultra vires. Accordingly all public bodies like universities who exercise discretion must ensure that they comply with the four grounds of review that discretionary actions are subjected to. These grounds are: irrelevant considerations; improper purpose of motive, unreasonableness and bad faith. It is conceded that this area of judicial control of administrative action is not well developed in Nigeria, hence its lack of prominence and consideration in Magit and other like cases. The allegation by the appellant that he is being made to suffer from the dust of the encounter of personality clash and not that the thesis is not well written or that the corrections done by the applicant were radically and fundamentally different from what the applicant was asked to correct by the panel of external examiners is a proper basis for a review of the decision of the senate on many of the grounds listed above. A fitting ground of review will be bad faith. It is not my contention that such a review would have been successful. What is important is that this possibility is recognized. At present the combination of Magit and Esiaga make this review untenable. Can it be possible that there are fundamental values why this sort of review is not tenable in academic matters because of the nature of the academic enterprise? Again I refer to the opinion of Pats-Acholonu JSC in Magit for the philosophical undertone of the exclusive jurisdiction of a university in academic matters. His Lordship said: When a suit is instituted, its contents may be considered either from the points of view of its inherent benefits to the proponents of the action or from the benefit derivable jurisprudentially speaking by the society at large such as in a case of constitutional or administrative law. In the context of the case before us, the court would necessarily consider the effects on the university to wit, on how such an ivory tower would be affected by the nature of the suit, regard being had to its statutory and traditional functions. Speaking analytically, it is safe to postulate that the determinants of justice while demonstrating the latitude of individual liberty ought generally to be consistent with the welfare and ethos of the society. A university is the bastion of learning and research, the reservoir of scholarship, and I dare say the think tank of the society, and as such it should be given or allowed the general leeway to operate with its independence unshackled by inanities or such humbugs that might compromise its stature and dignity without necessarily trying to hamstrung its decision that would adversely affect its duties in maintaining excellence in scholarship. Two conflicting principles of law are discernable in the question of the exclusive jurisdiction of a university in academic matters. On one hand is the hallowed principle that no issue should be beyond the competence of courts. The exercise of judicial power is at the heart of the rule of law. Settlement of disputes within a judicial forum amongst other for a enables society to channel its grievances to an organized end. The principle of unlimited competence of superior courts of record recognizes the capacity of courts to inquire into all matters no matter how technical and complex. Courts have an inherent power as courts of justice in cooperation with parties to a case to do all that is necessary to ensure that it does justice to an issue. This will include the invitation of experts to clarify certain points. It will also include amici curiae on certain important principles. Moreover the pleadings of parties and the evidence given in court more often than not assist a court in a resolution of a dispute. In theory therefore no matter is beyond the resolution of a court. Ranged against this principle is the principle that certain matters are better handled by domestic tribunal or institutions since a court may be unsuitable to so do because of the technical nature of the matter, the unwritten traditions of the institutions and the effects of adversarial litigation. It is contended strongly that universities fall within this category. A significant body of opinion believes that bodies such as universities that exercise discretion of an intellectual bent are incapable of review. For example since no answer to a theoretical examination question by students will be the same an examiner is saddled with the task of ensuring that these different answers satisfy a minimum requirement. Perhaps it is because of the recognition of this fact that a range of scores that amount to certain grades are allowed within which an examiner will reflect his assessment. There is some discretion but this cannot be unfettered and without reason. It is this fetter that ensures the integrity of the examination. If it were not so, students would routinely fail on whimsical capricious and malicious grounds. That is why even though there is discretion in the award of marks for an examination there is widespread use of marking schemes that stake out the framework for the exercise of the discretion. Additionally every university allows students the right to apply for a remark of their grades or in some cases allows multiple and supervised marking to ensure that there is a proper exercise of discretion. In addition universities employ the services of external examiners to moderate examination questions and the results. Being a public institution that thrives on records, there is always ample evidence of decisions taken in universities. For example in Magit, a reason was given for the decision of the senate. The senate alleged that the corrections made by the appellant were found to have changed the coefficient in the subject of his M.Sc thesis namely, potatoes, from negative in the original thesis to positive in the corrected thesis. The senate took its drastic decision because it felt that this was fundamental and that he had employed non-academic means to arrive at the result and that he was academically dishonest. The appellant contended that it was not. Would it have been impossible for the court to objectively review what these unacademic means and academic dishonesty really mean given the fact that what the appellant had done to his thesis was known? Could the court not have invited independent testimony to clarify the issues alleged by the senate? There is no doubt that this review may have found the university right. In any case the tenor of the decision of the court was that it believed the senate of the university. For example Mohammed JSC after reviewing the decision of the senate stated that The senate of the university, the 2nd respondent was therefore right in rejecting the appellants M.Sc thesis If the court decided that the university is right, it means that it believed the account of the facts as stated by the senate. Perhaps it would have been better to have investigated the allegations of the appellant. It is difficult to understand how this would diminish the mission of a university, which itself allows external involvement in its academic affairs to strengthen its legitimacy. The issue is not a clash of the individual search for justice and societys welfare. It is that through satisfying the individual that societys welfare is enhanced. Involving a court enables a students grievance to be dealt with. To decline jurisdiction in a case because it involves an academic matter reinforces an injustice if it does exist. Assuming for the sake of argument that the student was right, where does he turn to for redress? This is a point we return to later. I recognize that public policy must accommodate some institutions that are to be left largely to their device. In this category would fall spiritual bodies whose activities are of a metaphysical dimension. Universities certainly do not operate in the spiritual realm. A related question is whether a court is bound to award a degree to a student who has come before it and is successful. To answer this question would entail a discourse as to the difference and merits between judicial review and appeal. The difference which is often tenuous is that judicial review in a technical sense enables a court to ensure that an administrative agency like a university has acted within its endowment, while an appeal which may include a review subjects the merits of the decision to scrutiny. This is why Pats-Acholonu JSC wondered whether the courts would replace its standard with that of the university. The court can either send the matter back to a university or ask it to review the matter = it can proceed to accede to the students request. Even when it does the latter, it is arguable that it may not be imposing its own standard. III MANAGING THE EXCLUSIVE JURISDICTION OF A UNIVERSITY IN ACADEMIC MATTERS What is the best way to manage the academic conflicts? There is the possibility as is the case now and judicially recognized that these conflicts are settled within the university. The other option is for the conflict to be settled outside the university. This could be through the courts which we have discussed above or through an independent arbitral body. III.A. Resolving Academic Disputes within the Domestic Jurisdiction: Exhaustion of Internal Remedies As we saw earlier Nigerian courts acdemic matters amongst others are better settled within the university. In Magit Ogbuagu JSC who read the read the lead judgment of the Court said: the appellant did not appeal to the university council against the said decision of the senate. Therefore the application to the trial court was premature. In Fetuga v University of Ibadanthe court said: The principle in Akintemi v Onwumechili & ors (supra) is quite clear. It is that disputes involving the setting, sitting, marking of examination papers and publishing the results as well as the conferment and award of degrees, diplomas and certificates to deserving students are maters within the domestic forum of a university any resort to a court action would be premature. There is the implied hint that the courts will intervene when the internal remedies have been complied with. Our analysis above has shown that this is not the case. In deed it seems the courts use the principle of exhaustion of internal remedies as a booby trap designed to foster the exclusive domestic jurisdiction of a university. In appropriate circumstances it will be sued to deny jurisdiction. Presently it can be stated that the courts emphatically hold that academic matters are better dealt with in the university. In Akintemi, Coker JSC stated that the remedy provided by the university is more convenient, cheaper and more expeditious than the proceedings in court. In effect it can be stated that the exclusive domestic jurisdiction of a university is the norm. This domestic jurisdiction constitutes of the senate, the governing council of the university and the visitor in that order of hierarchy. At this juncture it is important to set out the functions of governing council and the visitor. The visitor of a university has original, interpretative and supervisory jurisdiction in a university. The original jurisdiction of a visitor is to decide the meaning of a statute. Thus section 12(1) and (2) of the University of Port Harcourt Act provides that (1) In the event of any doubt or dispute arising at anty time as to the meaning of any provision of a statute, the matter may be referred to the visitor, who shall take such advice and make such decision thereon as he shall think fit. (2) The decision of the visitor on any matter referred to him under this section shall be binding upon the authorities, staff and students of the university, and where any question as to the meaning of any provision of a statute has been decided by the visitor under this section, no question as to the meaning of the provision shall be entertained by any court of law in Nigeria Provided that nothing in this section shall affect any power of a court of competent jurisdiction to determine whether any provision of a statute is wholly or partly void as being ultra vires or as being inconsistent with the Constitution of the Federal Republic of Nigeria. The inquisitorial power of the visitor stems from the power given to the visitor to conduct visitations by any persons that the visitor may seem fit and into any affairs. The disciplinary powers of the visitor allow him to remove the chancellor and members of the governing council. These powers of a visitor especially the interpretative powers enable the visitor to entertain academic disputes since the exercise of academic powers by senate is dependant on statutes made by senate in this regard. The governing council of a university is governing body of the university and is charged with the general control and supritendence of the policy, finances and property of the university. Akintemi extensively examines the role of the senate the council and the visitor in academic matters and it is safe to say that their role is now recognized as a matter of law. The key question is whether the structures of the university are adequate to resolve academic conflicts. A number of questions are pertinent here? Is the structure known to the students and is it constituted in such a way to ensure its independence and impartiality? A number of observations are also pertinent. If the sole authority for the award of degrees lies with senate what then would appeal from the senate to the governing councils and the visitor achieve? Can the visitor and/or the Governing Councils override senate and award a degree in the name of senate? The tenor of Magit and other cases seems to suggest that this is possible. Unfortunately there is hardly any evidence as to the practice and procedure of the visitor and the governing council in this regard. Even though the powers of the visitor have been judicially recognized, I am not aware that there is any university where the practice and procedure of a visitorial jurisdiction on academic matters is operational. It seems that it is the governing councils that are most likely to be engaged in resolving academic disputes. Yet it may well be possible to doubt the impartiality of the councils. Again there is not much evidence of the involvement of governing councils in this regard. IIIB The Use of an Independent Arbitral Body in Resolving Academic Disputes In the event that the domestic jurisdiction of a court is asserted, it is submitted that this jurisdiction should be subject to the review of an independent body of academic arbitrators. This body of arbitrators should be fast cheap and reasonable. At leat it will perform better than the courts. Magit was filed in the Supreme Court in 2001 and judgment was delivered in December 2005. Esiaga also took five years from the date of filing of the case to judgment in the Supreme Court. To wait for five years before a student knows the outcome of his complaint is certainly unacceptable and is in some sense a denial of justice. Many other cases have suffered the same delay making the jurisdiction of the court over academic disputes an unattractive option. As stated above it may be feasible to use an independent body of academic arbitrators whose job will be to receive complaints from students and reach a decision that is fair quick and reasonable within six months of the filing of the complaint.. These body of arbitrators can be organized on a regional basis with the power to co opt experts in whatever field they are investigating. Their decision could be appealed to the Court of Appeal whose decision would be final. The Court of Appeal would ensure that the body of arbitrators adhere to the university rules and regulations and the fundamental human rights of the students. IV CONCLUDING REMARKS Perhaps the Magit Court is a reaction against the decision of the Court in Garba v University of Maiduigiri by rolling back the jurisdiction of courts over different aspects of university administration. Consider what Pats Acholonu JSC said in Magit: Too often nowadays ever since the case of Garba v University of Maiduigiri many litigants have tended to inundate courts with frivolous claims and have tried to invest courts with the powers to run a university usually described as an ivory tower with their strange claims. It is submitted that the way to deal with the harshness of Garba is not to go to the other extreme and declare that the universities are in a sense a law unto themselves. Compliance with internal rules and regulations, breach of fundamental human rights and the need to conform to substantive ultra vires should be a basis of judicial review of decisions of the domestic forum of universities. This review should as much as possible result in a matter, being sent back to a university. Alternatively if a domestic jurisdiction of a court is preferred, a body should be established to review academic complaints of universities. In this regard, the different structures of the domestic jurisdiction of a university must be elaborated so that their practice and procedure are known to all. Ultimately it is important to emphasise the unlimited jurisdiction of courts. Care must be taken that institutions do not routinely assert an exclusive domestic jurisdiction.  [2006] All FWLR (Pt 298) 1313. Hereafter referred to as Magit.  (2004) All FWLR (Pt 206) 381. Hereafter Esiaga.  1985 All NLR 94. Hereafter Akintemi.  Ibid at p. 108. See the opinion of Fakayode J at the High Court. He said: 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 plaintiffs claim must fail because the issues of setting, sitting and marking examination papers and publishing the results of such examination are matters of domestic dispute within a university and such matters can only be looked into by the visitor. If the Visitor, on demand of the applicants fail to look into the dispute, he can be compelled to do so by order of mandamus. But no court in the land can compel the university to decide the dispute one way or te other. His decision on the dispute cannot be looked into by the court. The court cannot perform visitorial duties. See Akintemi, note 3 p. 110.  Ibid at. p. 110.  Note 2.  Ibid at p. 404  See University of Calabar v Esiaga (1997) 4 NWLR (Pt. 502) 719, 724-725.  Ibid.  Note 2, p. 1333.  Ibid, at p. 1337  Note 2 p. 1344.  Ibid at p.1345.  Unreported CA/I/63/84.  Ibid.  Note 3 , p. 114. See also WAPMC v Okojie [2003] FWLR (Pt 150) 1761.  Ibid, p. 120.  Note 2 p. 1332.  (1993) 7 SCNJ (Pt. 11) 304.  (1994) 10 SCNJ 98.  Note 2, p. 1343.  [1986] 1 NWLR (Pt. 18) 550.  See B.U Eka Judicial Review of Administrative Process in Nigeria (Obafemi Awolowo University Press 2001) 83.  See Banko v Abeokuta U.D.C (1965) NMLR 295; Stitch v Federal Attorney General (1986) 5 NWLR (Pt 46) 941; Iwuji v Federal Commissioner of Establishments (1985) 1 NWLR (Pt 3) 497.  See Shugaba v Federal Minister of Internal Affairs (1981) 2 NCLR 41.  See Kruse v Johnson [1898] 2 QB 91; Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 K.B 223- A local authority is not to come to a conclusion so unreasonable that no unreasonable authority could ever have come to it Lord Greene MR at p. 233. See also Trustees of Nigerian Railway Corporation v Holloway (1965) NMLR 237. See also A. Emiola Remedies in Administrative Law (Emiola Publishers, Ogbomosho Nigeria 2000) p. 19: that the exercise of discretion must be reasonable.  See Awolowo v Minister of Internal Affairs (1962) LLR 177; Shugaba v Minister of Internal Affairs, note 18.  Note 2 at p. 1326.  Note 2, p. 1347. Emphasis supplied.  Note 2 p. 1333. See also University of Ilorin v Oluwadare [2003] All FWLR (Pt 338) 747 where in an obiter Ogbuagu and Tabai JJSC dwelt on the need to exhaust internal remedies before a student approaches the court.  (2000) 3 NWLR (Pt. 683) 118.  Ibid at 131.  Note 3, p. 120.  See section 5 of the University of Port Harcourt Act.  See section 12(1) and (2) of the University of Port Harcourt Act  See section 13(2) of the University of Port Harcourt Act.  See section 9(1) and (2) of the Act.  Note . See C.O Okonkwo My quarrel with Garba and its descendants in Irukwu & Umezuluike (ed) Judicial Excellence: Essays In Honour of Hon Justice Anthony I Iguh (Snaap Press Enugu 2004) 367.  Note 2 p. 1344.     PAGE  PAGE 1  >RSYdef    p }   # Q f αΦΙαΎΊ΂zvrvrvjvffhhFhL6h6ohLhLhu5hLh e`5h}tvjhuUh e`hdaPhu0JjhuUjhuUh e`h e`5 hu5h e`hu5huh*\hKL5CJ aJ h*\hA5CJ aJ h*\hu5CJ aJ h6o5CJ aJ (STUVWXYef  ! 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ࡱ> #` bjbj\.\. .>D>D %VVVjNNN8Lj?j("???????$;@hB*?V - - -*?VV?? : : : -VV? : -? : :<VV<^ t7N5<?U?0?<,Cc8<C<CV<4;#V :&=)*?*?9j? - - - -jjjNjjjNjjjVVVVVV RETHINKING THE EXCLUSIVE JURISDICTION OF NIGERIAN UNIVERSITIES IN ACADEMIC MATTERS E.S NWAUCHE Associate Professor of Law Rivers State University of Science and Technology PMB 5080 Nkpolu Port Harcourt Rivers State  HYPERLINK "mailto:nwauche@hotmail.com" nwauche@hotmail.com & Director Centre for African Legal Studies Plot 73 (Andoni Road) Eagles Island P.O Box 7663 Port Harcourt, Rivers State  HYPERLINK "mailto:esnwauche@afrilegstudies.com" esnwauche@afrilegstudies.com INTRODUCTION One of the signposts of judicial power is its unlimited capacity to inquire into all matters no matter how technical or complex even though courts are often assisted in this regard by experts including amici curiae. It is important for the rule of law that courts have such far reaching power to examine all disputes. If it were otherwise there would be loss of confidence in the administration of justice and a slide into self help and anarchy. Even the endowment and exercise of discretionary powers are reviewable by courts to ensure compliance with the tenor of the enablement. It does not mean that courts discharge this duty with the same competence in all areas of human endeavour. Often the learning of judicial officers is relevant. Sometimes the technical context of the area also plays a role. It does seem that the nature of the power to be exercised is also crucial. The more discretionary the power, the more it is difficult to review the exercise of that power. Even at that, there is no discretionary power that is without context or limitation. For this reason the exercise of power can be reviewed by a court on both procedural and substantive grounds. Procedurally there are certain safeguards that are implicit in the exercise of power such as the right to fair hearing and the rule against bias that go to ensure due process. Furthermore public authorities often declare the framework for the exercise of endowed powers by adopting rules and regulations to govern such exercise Thus while a court may not inquire into the substantive exercise of power, it may examine the procedural compliance of the exercise with the internal rules of legitimacy and fundamental human rights. It is therefore possible that to this extent, the concept of exclusive domestic jurisdiction is largely illusory. In this context an exclusive jurisdiction would mean that all questions concerning the exercise of the power end within the hierarchy of the organization. This would for example be the effect of ouster clauses which are the hallmark of dictatorships since judicial review is an incongruent affront to absolute power. In a constitutional democracy, however the endowment of judicial power is meaningless without unlimited competence over disputes. Yet courts often recognize that some issues are best left resolved by domestic arrangements. It is not always clear whether by this, courts decide not to review the substantive decisions taken or they are content to ensure that only the procedural requirements are assessed or both. Thus in stating that a public body or institution is endowed with domestic jurisdiction, it is not clear as stated above what this means and why this should be so. The latter question grapples with the desirability of exclusive jurisdiction. What remains of the rule of law if certain matters are outside the competence of courts? Is the realization that its affairs are outside the competence of courts a recipe for dictatorial tendencies? If courts provide an organized outlet for conflict resolution, it is important that the unlimited jurisdiction of courts is promoted so that society can bring finality to conflicts through the independence and impartiality of judicial officers. On the other hand, are courts capable of reviewing all issues? Are certain issues because of their context difficult and impossible for courts to contend with? Can a court for example review the award of marks in an examination paper? Can a court assess the sufficiency of character needed for graduation? What really is the utility of unlimited judicial competence when access to courts in Nigeria is largely illusory and cases continue interminably? Again, another line of inquiry is the fact that the recognition of excusive jurisdiction is a manifestation of the incomplete development of the legal regime of an institution? Put in another way, if the legal framework of an institution is well developed and elaborated, it becomes easy to review compliance therewith. If the exercise of discretion is guided by clear verifiable conditions, it becomes easy to review the exercise of it. In this context all that must be done is to ensure that the legal framework is well developed. It is within this context that this paper reviews the exclusive jurisdiction of Nigerian universities in academic matters. I contend that the exclusive jurisdiction of Nigerian universities in academic matters until Magit v University of Agriculture Makurdi and Esiaga v University of Calabar recognized a substantive autonomy if there are procedural compliance with internal rules and fundamental human rights. A combination of Esiaga and Magit establish an absolute discretion in universities in academic matters. I will also demonstrate that the tenor of Esiaga and Magit are potentially insidious since they are capable of leading to absolute powers in universities who may be led to believe that their decisions are not subject to judicial review or appeal. I contend further that the nature of fundamental human rights is such that exclusive jurisdictions like ouster clauses are constitutional anathemas. Within the context of my belief in a cheap fast and independent resolution of academic disputes I review a number of options of managing the exclusive jurisdiction of Nigerian universities in academic matters by examining firstly the potentials of visitorial jurisdiction and an independent arbitral body dedicated to resolving academic disputes. II. EXCLUSIVE JURISDICTION OVER ACADEMIC MATTERS To understand the nature of the exclusive jurisdiction of Nigerian universities, my discussions hereafter will center around the decisions of the Supreme Court in Magit Esiaga and Akintemi v Onwumechili. In Akintemi three female students of the Faculty of law of the University of Ife ( now Obafemi Awolowo University) sought inter alia an order of mandamus compelling their university to publish and communicate the result of their part IV final year LL.B degree examinations taken by them in 1981. There had been an earlier application by the appellants against the respondents for an order of certioriari to quash the order of suspension made by 1st respondent against them on the basis of the findings of an enquiry set up by the university to investigate an allegation of malpractices during the Part III LL.B Examinations held in July 1980. The court in response to this application issued an order of certiorari quashing the order of suspension on the ground that the rules of natural justice had been breached in that the appellants had merely been called as witnesses during the enquiry to enable them defend such charges, if need be. Thereafter the students were allowed to take the examination. The action which came before the Supreme Court concerned the release of the result of that examination. The trial court dismissed the application and the appeal to the Court of Appeal was also dismissed. The Supreme Court further dismissed the appeal and held that the action is premature as the Senate of the University and the University Council had not taken any decision on the matter. Irikefe JSC believed that the case belonged to the domestic domain of the university as enshrined in the statute establishing it and are such not justiciable in a court of law Obaseki JSC formulated three issues for the determination of the court that reflect the issues that this article deals with. His Lordship stated these issues as follows: (1) whether or not there is a domestic forum from which an aggrieved student may seek a remedy; (2) whether a case crying for justice has been made in this case; (3) and if so, whether seeking a remedy in court or making use of domestic forum of the university will not be more convenient, beneficial and effective In Esiaga appellant was a final year student in the University of Calabar and Speaker of the Student Union Parliament of the University of Calabar. He instituted an action in Calabar High Court where he sought an order for the enforcement of his fundamental human rights. He contended that the University had illegally suspended him indefinitely when certain materials linking him to a banned secret cult were found in his room. The appellant sought for order nullifying the suspension and for the respondents to release his result along with others when examination is taken. The trial court granted the appellants prayer which was overturned at the Court of Appeal. Dissatisfied the appellant appealed to the Supreme Court which upheld the decision of the Court of Appeal on a number of issues. The request for an order that his result should be released was denied. The Court said: Connected to this is the relief sought to have the appellants results released along with others. This presupposes that he was acting for an order in the future. There was nowhere in his affidavit that he averred that he had sat for an examination. Results of examinations are released when an examination is taken. I believe that where an examination is taken and the institution suspects some unsavoury practices attendant to the behaviour by a student, such results may not be released until the university authority has satisfied itself that it is in a position to release the result of one who is considered worthy and fit in learning. Where no examination has taken place it is idle to ask a court to grant a relief of the release of the result. It is my view that should any court worth its salt lend itself to such persuasion, then it would have succeeded in no small measure in destroying the institution of higher learning. Pats-Acholonu JSC adopted the views of Tobi JCA (as he then was) at the Court of Appeal who said: In so far as examinations are conducted according to the University rules and regulations and duly approved, and ratified by the University Senate, the courts have no jurisdiction in the matter. A court of law which dabbles or flirts into the arena of university examinations, a most important and sensitive aspect of university function should remind itself that it has encroached into the bowels of university authority. Such a court should congratulate itself as being party to the destruction of the university and that will be bad not only for the universities but also for the nation. In Magit the appellant was admitted by the University of Agriculture Makurdi to do a M.Sc degree in Agricultural Economics. He was required as part of the programme to submit an acceptable thesis. His topic for the thesis was approved. The appellant wrote and submitted his thesis to the Board of Examiners comprising of a major supervisor, an associate supervisor who was also the internal examiner, a lecturer with the university and an external examiner from the Ahmadu Bello University, Zaria. He also defended the thesis orally. The result of the defence was to accept the thesis and the degree awarded subject to corrections to be certified as may be determined by the panel. Ultimately the appellant was adjudged to have made corrections to the thesis that were below standard. The thesis was rejected and the respondent advised the student to withdraw from the university on the grounds that he had employed dishonest and unacademic methods of arriving at the result in the thesis. Aggrieved by the respondents decision, appellant sought to enforce his fundamental human rights under the Fundamental Human Rights (Enforcement Procedure) Rules 1979, seeking leave to apply for orders of certoriari, mandamus and prohibition. The trial court dismissed the appellants application. His appeal to the Court of Appeal was also dismissed and he further appealed to the Supreme Court. Even though the Supreme Court was correct in refusing to order the release of a future result as sought by the appellant in Esiaga, the tenor of its wholesome adoption of the principle of exclusive jurisdiction enunciated by Tobi JCA clearly influenced the Court in Magit. Ogbuagu JSC who read the lead judgment of the Magit court also adopted the views of Tobi JCA. The import of the Tobis principle is the conferment of absolute unquestionable discretion on the university in the conduct of examinations and award of degrees. Thus in Magit, appellants conceded that the university had a discretion to award or not to award a degree but that it cannot act maliciously, whimsically and capriciously in refusing to award a degree to a student who fulfills its degree requirement. Responding to this contention, Ogbuagu JSC said: Surely if a university has a discretion and not a mandatory duty to decide who it can/will award its degree and section 7 of the University Act 1992 vests in the second respondent to the exclusion of any body of the university, the sole responsibility for the award of the degrees and such other qualifications as may be prescribed in connection with examinations held, how can/could it be said that it acted maliciously, capriciously or whimsically in its said decision. Pats-Acholonu JSC who read the lead judgment in Esiaga in addition to Ogbuagu JSCs judgment in Magit dealt extensively with the nature of the exclusive jurisdiction of the court. His Lordship was equally emphatic as to the absolute discretion which a university has. It is necessary to quote him in extenso: A university is a degree awarding institution and canneither delegate its degree awarding powers nor be stampeded to make award where it does not see it fit to do so. For a court to use its awesome magisterial powers to compel a university to award a degree would in effect mean that the court has invested itself with necessary powers to fully appreciate the nuances taken into consideration to award university degreesA university is a place of great learning and research. I would view with consternation and trepidation the day the court would immerse itself into the cauldron of academic issue which is an area it is not equipped to handle. It will indeed be alarming for any court worth its salt to enter into the arena of questioning why a university has refused to award a degree to any studentIt is my view that it is the indisputable right of a university to award or withhold the award of a degree and it is no business of the court to question its motives let alone compelling it to award a degree which it has stated a claimant is not qualified forIt alone possess the power to state whether a particular work is below standard or notIs the court going to substitute its standard with that of the university? I think not. Continuing His Lordship remarked: Let us pray that there shall never come a time when the court shall use its powers to constitute itself into a senate of a university or a degree awarding body. When faced with a case of this nature, the court should exercise utmost caution knowing fully that it is not versed in the university method of assessing the intellectual work and is not vested with the power to arrogate itself the function of a university. For a student or research scholar to approach the court to cause a degree to be awarded to him when his university had rejected his work on the ground that there is something unethical bordering on dishonesty, is not only importune but equally petulant and utterly ridiculous. The facts of Magit provide the context for a discussion on the import of the absolute discretion with which universities as presently held by the Supreme Court are endowed with in academic matters. In the first place, it may be contended that because of Esiaga a university in asserting the absolute discretion of a university must comply with its own laws rules and regulations. Thus in Magit, section 6 of the University law is clear that only the Senate is enabled to award degrees. Thus the contention of the appellant that he had earned a degree was wrong as there is no evidence to show that the senate had conferred a degree on him. However a court of law would be right to scrutinize the university laws and regulations to ensure that it had been complied with. To the extent of assessing procedural compliance with internal rules and regulations, the exclusive jurisdiction of a university is circumscribed. In the second place supposing the student alleges that his fundamental human rights have been breached as did the appellant in Magit. In that case the appellant argued that he should have been given fair hearing before the Senate of the university decided that he was guilty of academic dishonesty because of the corrections he made to his thesis in compliance with the views of the oral examination board. Senate held that they were radically different as it had produced a result different from the original one and that he had used unacademic means to achieve the results. The Supreme Court held that there was no denial of fair hearing in this case since the student had been given an opportunity to defend his thesis earlier and make corrections and that consideration of his thesis by senate was like an examiner considering answer scripts which does not require the presence of the student. Since the court held in Magit that there had been no denial of fair hearing, it means that in the exercise of her discretion a university must respect the fundamental human rights of its students and research scholars. Accordingly in appropriate cases where there is breach of fundamental human rights courts would nullify the action of a university for example in refusing to award a degree. In Asein v University of Ibadan, the Court of Appeal said: I agree with the view that the issues raised here are indeed ones relating wholly and solely to the rights of the senate and the university in the conduct of 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 caseAll I need to say on this point is that where the university process relates to examinations, it must be a gross departure from established procedures amounting to no procedure at all. Or a gross violation opf the rules of natural justice that may warrant such interference. In Akintemi Obaseki JSC opined that: If a matter is justiciable in Nigeria the domestic nature of the dispute does not, under the 1979 Constitution oust the jurisdiction of the Court. See section 6(6)b of the 1979 Constitution. It can only mean that until the remedies are exhausted, any resort to court action would be premature The courts cannot and will not usurp the functions of the senate, the Council and the Visitor of the university in the selection of their fit and proper candidates for passing and for the award of certificates degrees and diplomas. If however in the process of performing their functions under the law the civil rights and obligations of any of the students or candidates is breached denied or abridged, it will grant remedies and reliefs for the protection those rights and obligations. In the instant appeal, it has not been established that there was such a breach or denial or abridgment. It is interesting to note that even though Obaseki JSC agreed with the lead judgment of Irikefe JSC there are fundamental differences between their views as to the domestic jurisdiction of a university. While the latter believed it to be complete and removed from the jurisdiction of the court, Obaseki JSC predicates the jurisdiction of the court on the observance of fundamental human rights. Kazem and Kawu JJSC supported Irikefe JSC. Coker JSC did not allude to the breach of fundamental human rights even though he affirmed that the court has jurisdiction to grant the reliefs sought by the students but stated that: It is inconceivable that it would make the orders sought in the exercise of its discretion in the circumstances of this case Accordingly Obaseki JSC was in the minority in Akintemi. It is not therefore surprising that Magit and Esiaga seem to follow the majority and overlook issues of fundamental human rights. In this vein, Ogbuagu JSC in Magit seemed to imply that fair hearing is not relevant in a university. After listing a number of cases, his Lordship said: Surely, the great pronouncements in the above cases have no relevance to a university system and procedure as in the instant appeal, whereby section 7 of the University Decree/Act 1992 vests in the senate, to the exclusion of any other body or organ of the university, the responsibility of the award of degrees and such other qualifications, as may be prescribed in connection with examinations held. Pats-Acholonu JSC acknowledged the principle of law enunciated in Adeniyi v Governing Council of Yaba College of Technology and University of Nigeria Teaching Hospital Management Board v Nnoli to the effect that absence of fair hearing would vitiate a decision of the court but stated that it was not applicable to Magit because no two cases are the same It seems better to regard the views of Ogbuagu JSC as restricted to the facts of Magit. In any case in previous discussions in the case Ogbuagu JSC seemed to accept that the student had been given fair hearing by his appearance before the oral defence panel. As stated above it cannot be asserted that the meaning of the exclusive jurisdiction of a court is that all fundamental human rights of students are dispensed with. The constitutional superiority of the fundamental human rights provisions mandated by section 1 of the 1999 Constitution is adequate answer to this assertion. If the Constitution is superior to all laws and those laws are null and void to the extent of the inconsistency, it means that the fundamental human rights of students must be respected. Again the nature of the powers of the visitor clearly contemplates the jurisdiction of a court to ensure constitutional compliance. For example the proviso to section 12(1) and (2) of the University of Port Harcourt Act provides that that nothing in this section shall affect any power of a court of competent jurisdiction to determine whether any provision of a statute is wholly or partly void as being ultra vires or as being inconsistent with the Constitution of the Federal Republic of Nigeria. I therefore submit that a university exclusive jurisdiction over academic matters is subject to an observance of the fundamental human rights of a student or research scholar. This is one of the principles of law established by the much maligned case of Garba v University of Maiduigiri. Thirdly, supposing a university acts maliciously capriciously, whimsically, is the absolute discretion principle a bar in a court determining this fact. Thus it is possible that even with the observance of the fundamental human rights including fair hearing and the rules and regulations of a university it can act maliciously capriciously or whimsically. To deny otherwise is to arrogate infallibility to a university. It is to assert that a university can like the King do no wrong. Even the university itself recognises that it can do wrong hence its dispute settlement mechanism. In Magit, for example the appellant contended that he was asked to withdraw from the university because of personality clashes in his department. When a university is said to have acted maliciously, capriciously and whimsically it is said to have acted unreasonably. The concept of reasonableness is not a free standing principle of Nigerian administrative law. It is subsumed under the rubric of substantive ultra vires. Accordingly all public bodies like universities who exercise discretion must ensure that they comply with the four grounds of review that discretionary actions are subjected to. These grounds are: irrelevant considerations; improper purpose of motive, unreasonableness and bad faith. It is conceded that this area of judicial control of administrative action is not well developed in Nigeria, hence its lack of prominence and consideration in Magit and other like cases. The allegation by the appellant that he is being made to suffer from the dust of the encounter of personality clash and not that the thesis is not well written or that the corrections done by the applicant were radically and fundamentally different from what the applicant was asked to correct by the panel of external examiners is a proper basis for a review of the decision of the senate on many of the grounds listed above. A fitting ground of review will be bad faith. It is not my contention that such a review would have been successful. What is important is that this possibility is recognized. At present the combination of Magit and Esiaga make this review untenable. Can it be possible that there are fundamental values why this sort of review is not tenable in academic matters because of the nature of the academic enterprise? Again I refer to the opinion of Pats-Acholonu JSC in Magit for the philosophical undertone of the exclusive jurisdiction of a university in academic matters. His Lordship said: When a suit is instituted, its contents may be considered either from the points of view of its inherent benefits to the proponents of the action or from the benefit derivable jurisprudentially speaking by the society at large such as in a case of constitutional or administrative law. In the context of the case before us, the court would necessarily consider the effects on the university to wit, on how such an ivory tower would be affected by the nature of the suit, regard being had to its statutory and traditional functions. Speaking analytically, it is safe to postulate that the determinants of justice while demonstrating the latitude of individual liberty ought generally to be consistent with the welfare and ethos of the society. A university is the bastion of learning and research, the reservoir of scholarship, and I dare say the think tank of the society, and as such it should be given or allowed the general leeway to operate with its independence unshackled by inanities or such humbugs that might compromise its stature and dignity without necessarily trying to hamstrung its decision that would adversely affect its duties in maintaining excellence in scholarship. Two conflicting principles of law are discernable in the question of the exclusive jurisdiction of a university in academic matters. On one hand is the hallowed principle that no issue should be beyond the competence of courts. The exercise of judicial power is at the heart of the rule of law. Settlement of disputes within a judicial forum amongst other for a enables society to channel its grievances to an organized end. The principle of unlimited competence of superior courts of record recognizes the capacity of courts to inquire into all matters no matter how technical and complex. Courts have an inherent power as courts of justice in cooperation with parties to a case to do all that is necessary to ensure that it does justice to an issue. This will include the invitation of experts to clarify certain points. It will also include amici curiae on certain important principles. Moreover the pleadings of parties and the evidence given in court more often than not assist a court in a resolution of a dispute. In theory therefore no matter is beyond the resolution of a court. Ranged against this principle is the principle that certain matters are better handled by domestic tribunal or institutions since a court may be unsuitable to so do because of the technical nature of the matter, the unwritten traditions of the institutions and the effects of adversarial litigation. It is contended strongly that universities fall within this category. A significant body of opinion believes that bodies such as universities that exercise discretion of an intellectual bent are incapable of review. For example since no answer to a theoretical examination question by students will be the same an examiner is saddled with the task of ensuring that these different answers satisfy a minimum requirement. Perhaps it is because of the recognition of this fact that a range of scores that amount to certain grades are allowed within which an examiner will reflect his assessment. There is some discretion but this cannot be unfettered and without reason. It is this fetter that ensures the integrity of the examination. If it were not so, students would routinely fail on whimsical capricious and malicious grounds. That is why even though there is discretion in the award of marks for an examination there is widespread use of marking schemes that stake out the framework for the exercise of the discretion. Additionally every university allows students the right to apply for a remark of their grades or in some cases allows multiple and supervised marking to ensure that there is a proper exercise of discretion. In addition universities employ the services of external examiners to moderate examination questions and the results. Being a public institution that thrives on records, there is always ample evidence of decisions taken in universities. For example in Magit, a reason was given for the decision of the senate. The senate alleged that the corrections made by the appellant were found to have changed the coefficient in the subject of his M.Sc thesis namely, potatoes, from negative in the original thesis to positive in the corrected thesis. The senate took its drastic decision because it felt that this was fundamental and that he had employed non-academic means to arrive at the result and that he was academically dishonest. The appellant contended that it was not. Would it have been impossible for the court to objectively review what these unacademic means and academic dishonesty really mean given the fact that what the appellant had done to his thesis was known? Could the court not have invited independent testimony to clarify the issues alleged by the senate? There is no doubt that this review may have found the university right. In any case the tenor of the decision of the court was that it believed the senate of the university. For example Mohammed JSC after reviewing the decision of the senate stated that The senate of the university, the 2nd respondent was therefore right in rejecting the appellants M.Sc thesis If the court decided that the university is right, it means that it believed the account of the facts as stated by the senate. Perhaps it would have been better to have investigated the allegations of the appellant. It is difficult to understand how this would diminish the mission of a university, which itself allows external involvement in its academic affairs to strengthen its legitimacy. The issue is not a clash of the individual search for justice and societys welfare. It is that through satisfying the individual that societys welfare is enhanced. Involving a court enables a students grievance to be dealt with. To decline jurisdiction in a case because it involves an academic matter reinforces an injustice if it does exist. Assuming for the sake of argument that the student was right, where does he turn to for redress? This is a point we return to later. I recognize that public policy must accommodate some institutions that are to be left largely to their device. In this category would fall spiritual bodies whose activities are of a metaphysical dimension. Universities certainly do not operate in the spiritual realm. A related question is whether a court is bound to award a degree to a student who has come before it and is successful. To answer this question would entail a discourse as to the difference and merits between judicial review and appeal. The difference which is often tenuous is that judicial review in a technical sense enables a court to ensure that an administrative agency like a university has acted within its endowment, while an appeal which may include a review subjects the merits of the decision to scrutiny. This is why Pats-Acholonu JSC wondered whether the courts would replace its standard with that of the university. The court can either send the matter back to a university or ask it to review the matter = it can proceed to accede to the students request. Even when it does the latter, it is arguable that it may not be imposing its own standard. III MANAGING THE EXCLUSIVE JURISDICTION OF A UNIVERSITY IN ACADEMIC MATTERS What is the best way to manage the academic conflicts? There is the possibility as is the case now and judicially recognized that these conflicts are settled within the university. The other option is for the conflict to be settled outside the university. This could be through the courts which we have discussed above or through an independent arbitral body. III.A. Resolving Academic Disputes within the Domestic Jurisdiction: Exhaustion of Internal Remedies As we saw earlier Nigerian courts acdemic matters amongst others are better settled within the university. In Magit Ogbuagu JSC who read the read the lead judgment of the Court said: the appellant did not appeal to the university council against the said decision of the senate. Therefore the application to the trial court was premature. In Fetuga v University of Ibadanthe court said: The principle in Akintemi v Onwumechili & ors (supra) is quite clear. It is that disputes involving the setting, sitting, marking of examination papers and publishing the results as well as the conferment and award of degrees, diplomas and certificates to deserving students are maters within the domestic forum of a university any resort to a court action would be premature. There is the implied hint that the courts will intervene when the internal remedies have been complied with. Our analysis above has shown that this is not the case. In deed it seems the courts use the principle of exhaustion of internal remedies as a booby trap designed to foster the exclusive domestic jurisdiction of a university. In appropriate circumstances it will be sued to deny jurisdiction. Presently it can be stated that the courts emphatically hold that academic matters are better dealt with in the university. In Akintemi, Coker JSC stated that the remedy provided by the university is more convenient, cheaper and more expeditious than the proceedings in court. In effect it can be stated that the exclusive domestic jurisdiction of a university is the norm. This domestic jurisdiction constitutes of the senate, the governing council of the university and the visitor in that order of hierarchy. At this juncture it is important to set out the functions of governing council and the visitor. The visitor of a university has original, interpretative and supervisory jurisdiction in a university. The original jurisdiction of a visitor is to decide the meaning of a statute. Thus section 12(1) and (2) of the University of Port Harcourt Act provides that (1) In the event of any doubt or dispute arising at anty time as to the meaning of any provision of a statute, the matter may be referred to the visitor, who shall take such advice and make such decision thereon as he shall think fit. (2) The decision of the visitor on any matter referred to him under this section shall be binding upon the authorities, staff and students of the university, and where any question as to the meaning of any provision of a statute has been decided by the visitor under this section, no question as to the meaning of the provision shall be entertained by any court of law in Nigeria Provided that nothing in this section shall affect any power of a court of competent jurisdiction to determine whether any provision of a statute is wholly or partly void as being ultra vires or as being inconsistent with the Constitution of the Federal Republic of Nigeria. The inquisitorial power of the visitor stems from the power given to the visitor to conduct visitations by any persons that the visitor may seem fit and into any affairs. The disciplinary powers of the visitor allow him to remove the chancellor and members of the governing council. These powers of a visitor especially the interpretative powers enable the visitor to entertain academic disputes since the exercise of academic powers by senate is dependant on statutes made by senate in this regard. The governing council of a university is governing body of the university and is charged with the general control and supritendence of the policy, finances and property of the university. Akintemi extensively examines the role of the senate the council and the visitor in academic matters and it is safe to say that their role is now recognized as a matter of law. The key question is whether the structures of the university are adequate to resolve academic conflicts. A number of questions are pertinent here? Is the structure known to the students and is it constituted in such a way to ensure its independence and impartiality? A number of observations are also pertinent. If the sole authority for the award of degrees lies with senate what then would appeal from the senate to the governing councils and the visitor achieve? Can the visitor and/or the Governing Councils override senate and award a degree in the name of senate? The tenor of Magit and other cases seems to suggest that this is possible. Unfortunately there is hardly any evidence as to the practice and procedure of the visitor and the governing council in this regard. Even though the powers of the visitor have been judicially recognized, I am not aware that there is any university where the practice and procedure of a visitorial jurisdiction on academic matters is operational. It seems that it is the governing councils that are most likely to be engaged in resolving academic disputes. Yet it may well be possible to doubt the impartiality of the councils. Again there is not much evidence of the involvement of governing councils in this regard. IIIB The Use of an Independent Arbitral Body in Resolving Academic Disputes In the event that the domestic jurisdiction of a court is asserted, it is submitted that this jurisdiction should be subject to the review of an independent body of academic arbitrators. This body of arbitrators should be fast cheap and reasonable. At leat it will perform better than the courts. Magit was filed in the Supreme Court in 2001 and judgment was delivered in December 2005. Esiaga also took five years from the date of filing of the case to judgment in the Supreme Court. To wait for five years before a student knows the outcome of his complaint is certainly unacceptable and is in some sense a denial of justice. Many other cases have suffered the same delay making the jurisdiction of the court over academic disputes an unattractive option. As stated above it may be feasible to use an independent body of academic arbitrators whose job will be to receive complaints from students and reach a decision that is fair quick and reasonable within six months of the filing of the complaint.. These body of arbitrators can be organized on a regional basis with the power to co opt experts in whatever field they are investigating. Their decision could be appealed to the Court of Appeal whose decision would be final. The Court of Appeal would ensure that the body of arbitrators adhere to the university rules and regulations and the fundamental human rights of the students. IV CONCLUDING REMARKS Perhaps the Magit Court is a reaction against the decision of the Court in Garba v University of Maiduigiri by rolling back the jurisdiction of courts over different aspects of university administration. Consider what Pats Acholonu JSC said in Magit: Too often nowadays ever since the case of Garba v University of Maiduigiri many litigants have tended to inundate courts with frivolous claims and have tried to invest courts with the powers to run a university usually described as an ivory tower with their strange claims. It is submitted that the way to deal with the harshness of Garba is not to go to the other extreme and declare that the universities are in a sense a law unto themselves. Compliance with internal rules and regulations, breach of fundamental human rights and the need to conform to substantive ultra vires should be a basis of judicial review of decisions of the domestic forum of universities. This review should as much as possible result in a matter, being sent back to a university. Alternatively if a domestic jurisdiction of a court is preferred, a body should be established to review academic complaints of universities. In this regard, the different structures of the domestic jurisdiction of a university must be elaborated so that their practice and procedure are known to all. Ultimately it is important to emphasise the unlimited jurisdiction of courts. Care must be taken that institutions do not routinely assert an exclusive domestic jurisdiction.  [2006] All FWLR (Pt 298) 1313. Hereafter referred to as Magit.  (2004) All FWLR (Pt 206) 381. Hereafter Esiaga.  1985 All NLR 94. Hereafter Akintemi.  Ibid at p. 108. See the opinion of Fakayode J at the High Court. He said: 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 plaintiffs claim must fail because the issues of setting, sitting and marking examination papers and publishing the results of such examination are matters of domestic dispute within a university and such matters can only be looked into by the visitor. If the Visitor, on demand of the applicants fail to look into the dispute, he can be compelled to do so by order of mandamus. But no court in the land can compel the university to decide the dispute one way or te other. His decision on the dispute cannot be looked into by the court. The court cannot perform visitorial duties. See Akintemi, note 3 p. 110.  Ibid at. p. 110.  Note 2.  Ibid at p. 404  See University of Calabar v Esiaga (1997) 4 NWLR (Pt. 502) 719, 724-725.  Ibid.  Note 2, p. 1333.  Ibid, at p. 1337  Note 2 p. 1344.  Ibid at p.1345.  Unreported CA/I/63/84.  Ibid.  Note 3 , p. 114. See also WAPMC v Okojie [2003] FWLR (Pt 150) 1761.  Ibid, p. 120.  Note 2 p. 1332.  (1993) 7 SCNJ (Pt. 11) 304.  (1994) 10 SCNJ 98.  Note 2, p. 1343.  [1986] 1 NWLR (Pt. 18) 550.  See B.U Eka Judicial Review of Administrative Process in Nigeria (Obafemi Awolowo University Press 2001) 83.  See Banko v Abeokuta U.D.C (1965) NMLR 295; Stitch v Federal Attorney General (1986) 5 NWLR (Pt 46) 941; Iwuji v Federal Commissioner of Establishments (1985) 1 NWLR (Pt 3) 497.  See Shugaba v Federal Minister of Internal Affairs (1981) 2 NCLR 41.  See Kruse v Johnson [1898] 2 QB 91; Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 K.B 223- A local authority is not to come to a conclusion so unreasonable that no unreasonable authority could ever have come to it Lord Greene MR at p. 233. See also Trustees of Nigerian Railway Corporation v Holloway (1965) NMLR 237. See also A. Emiola Remedies in Administrative Law (Emiola Publishers, Ogbomosho Nigeria 2000) p. 19: that the exercise of discretion must be reasonable.  See Awolowo v Minister of Internal Affairs (1962) LLR 177; Shugaba v Minister of Internal Affairs, note 18.  Note 2 at p. 1326.  Note 2, p. 1347. Emphasis supplied.  Note 2 p. 1333. See also University of Ilorin v Oluwadare [2003] All FWLR (Pt 338) 747 where in an obiter Ogbuagu and Tabai JJSC dwelt on the need to exhaust internal remedies before a student approaches the court.  (2000) 3 NWLR (Pt. 683) 118.  Ibid at 131.  Note 3, p. 120.  See section 5 of the University of Port Harcourt Act.  See section 12(1) and (2) of the University of Port Harcourt Act  See section 13(2) of the University of Port Harcourt Act.  See section 9(1) and (2) of the Act.  Note . See C.O Okonkwo My quarrel with Garba and its descendants in Irukwu & Umezuluike (ed) Judicial Excellence: Essays In Honour of Hon Justice Anthony I Iguh (Snaap Press Enugu 2004) 367.  Note 2 p. 1344.     PAGE  PAGE 1  >RSYdef    p }   # Q f αΦΙαΎΊ΂zvrvrvjvffhhFhL6h6ohLhLhu5hLh e`5h}tvjhuUh e`hdaPhu0JjhuUjhuUh e`h e`5 hu5h e`hu5huh*\hKL5CJ aJ h*\hA5CJ aJ h*\hu5CJ aJ h6o5CJ aJ (STUVWXYef  ! 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