A PAPER PRESENTED BY PROF, ABIODUN AMUDA-KANNIKE , SAN, PROVOST, COLLEGE OF LAW, KWARA STATE UNIVERSITY MALETE AT THE 23RD GRADUATION AND PRIZE GIVING CEREMONY HELD AT FEDERAL GOVERNMENT COLLEGE, ILORIN, KWARA STATE ON SATURDAY, THE 13TH DAY OF JULY, 2019.
Presenter: Prof. A. Amuda – Kannike (SAN) CIAP email@example.com
The concept of education law in Nigeria is not popular because, an average teacher in Nigeria does not look at it, as important for his or activities in teaching or for his or activities in administration or for the benefit of the students. The Nigerian teacher do not believe he or she requires the knowledge of law to compliment his or her role as a teacher. Whether this notion is true of false will be seen as we go into full details on this topic.
Education law has been defined as the portion of law in a state, a city, an area or a country which directly deals with the acts of administering educational bodies such as public and private primary and secondary schools, tertiary and non tertiary educational institutions.
It is important to state that in order to understand education law, one must look at several issues which are relevant in this regard such as;
(i) Sources of funding of an institution
(ii) Requirements for teaching and non teaching staffs
(iii) Criterias for the employment of teaching and non teaching staffs
(iv) Hiring and firing of both teaching and non teaching staffs
(v) Training and retraining of staffs
(vi) Roles and duties of staffs including the students
(vii) Meetings, quorums and disciplines.
THE SCHOOL PRINCIPAL AND THE KNOWLEDGE OF THE LAW
There is no doubt that most school principals in Nigeria will always say; “What is my business about the law, am I a Lawyer?” The idea of an average school principal in Nigeria is that it is only the Lawyers who should know the law.
The truth about this is that it is a wrong notion because, a school principal require basic knowledge of the law to succeed. The principal must be able to appreciate that a large percentage of their time are devoted to legal contentions. Norton, has therefore shown the importance of the knowledge of the school principal to education law.
It has been said also that the school principal does not need law degrees to be able to have the knowledge of the law but he needs to read the law dealing with his work and to make sure that he complies with what the law requires.
NIGERIAN EDUCATION LAWS ON CURRICULUM DEVELOPMENT
Both the Curriculum Developers and our Education Administrators are to be knowledgeable in education law especially with respect to the rules and regulations necessary in guiding the actions and inactions of those who implement the policies.
There are lot of educational policies beginning from 1914 during the period of Lord Lugard to the present day. One basic deficiency in the implication/effects of curriculum changes, is the failure to train and retrain the School Administrators on education laws through refresher courses such as conferences, seminars, workshops and symposia. Curriculum developments need to be passed into law for effective implementation especially on the area of national policy on education.
It is unfortunate that the Nigerian curriculum are being manipulated and changed from time to time even at the detriment of both the teachers and the students. Unfortunately unless you are knowledgeable on about the law upon which an education policy can be changed, you may not know whether the change in curriculum followed the laid down procedure as expected under the law.
It is no longer news that the federal government policy on education is the order of the day in most secondary schools in Nigeria and no one can deviate from it except the policy is amended or changed. The policy means, a child must spend six years in elementary school, six years in secondary school and the bodies given power under the law to examine the students in secondary through a uniform process is West African Examination Council (WAEC) and National Examination Council (NECO). The examination bodies are duly recognized by law and any school which goes contrary to the directives of this examination bodies are appropriately sanctioned but the said examination bodies must also give fair hearing to the school or staffs involved before any form of sanctions can take place effectively. There are periods of time to be spent at the tertiary and non tertiary institutions.
SOURCES OF EDUCATION LAW
There are certain basic sources of education law which are important for the teachers to know especially in Nigeria. They are below for purpose of adequate understanding;
(i) The Constitution
The constitution is said to be the organic law, a system or body of fundamental principles according to which a nation, state, body politic or organization is constituted and governed.
The constitution is also said to be the organic law or grundnorm of the people. That while it seeks to provide the machinery of government, it also gives rights and imposes obligations on the people it is meant for.
It is also important to note that the constitution is said to be supreme and that any law that is inconsistent with the provision of the constitution, shall to the extent of such inconsistency, be declared null and void and of no effect. That is to show that any law meant for the purpose of education, and it is inconsistent with any part of the constitution, it shall become null and void and of no effect to the extent of such inconsistency.
The aspect of the constitution dealing with education can be seen in constitution as follows;
“(1) Government shall direct its policy towards ensuring that there are equal and adequate educational opportunities at all levels.
(2) Government shall promote science and technology
(3) Government shall strive to eradicate illiteracy and to this end government shall as and when practicable provide
(a) Free, compulsory and universal primary education.
(b) Free secondary education.
(c) Free university education and
(d) Free adult literacy programme”.
It is important to note that the constitution also state that no person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction, ceremony or observance in relation to a religion other than his own, religion not approved by his parent or guardian.
For those who are in primary schools or secondary schools, the constitution stipulates that their right to personal liberty can be deprived if such person has not become 18years of age. However, such deprivation must be for the purpose of his or her education welfare.
(2) The Federal and States Statutes
There are various legislations of federal government on education in Nigeria which have been legislated upon by the National assembly or deemed to have been made by the National Assembly and assented to by the president. Among this are; National Examination Council Act, (NECO) (Establishment) Act, National Secondary Education Commission, ETC, Act, Nigerian Education Bank Act, West African Examination Council Act, Universal Basic Education Act, Child’s Right Act, African Charter on Human and Peoples Right.
There are various statutes dealing with the issue if education also as relevant to each state of the federation as passed by the State Houses of Assemblies and assented to by the Governors.
(3) Case Laws decided by the Court
There are some cases which have gone to court and which have been decided dealing with education law. This is a good way of having knowledge about the interpretation given by the court on the issues of education law as may have been decided which will now form what is referred to as “judicial precedent”.
There are textbooks writers on education law but such are majorly found in the U.S and U.K. In Nigeria, there hardly any text book as a result of low interest in this area of study.
The area of education law also in the journals in Nigeria is very weak as no much direct work can be found in this important area of education
FREEDOM OF SPEECH BY SECONDARY SCHOOL STUDENTS
There is the need for the teachers to learn about freedom of speech popularly called right to freedom of expression and as guaranteed under the constitution which states as follows;
“Every person shall be entitled to freedom of expression including freedom to hold opinions and to receive and impact ideas and information without interference….”
As far as the above regulation is concerned, the freedom of speech will apply to persons who are not under strictly regulated environments such as secondary schools as the case may apply.
The U.S.A constitution under the First Amendment deals with right of freedom of speech, which is similar in nature to our 1999 constitution in Nigeria, this was put to test in the court in the U.S, in relation to the right of the high school students to freely express themselves either orally or impliedly. The fact of the case was that some high school students wore armbands to school, apparently to protest against the Vietnam War. While the school authorities directed them to remove the bands, they refused to comply, they were accordingly suspended.
The students proceeded to file a suit at the court, challenging their suspension from the school as being illegal, null and void and of no effect.
The U.S supreme court decided in favour of the students declaring their suspension as being null and void and of no effect, as the students are entitled to express their opinions on all subjects, which include the controversial Vietnam War, subject to the fact that the protest must be done in such a way as to substantially and materially be in line with the schools disciplinary regulations and same must not affect the rights of the other students in the school.
Another important case which dealt with the issue of freedom of speech by secondary school students is the case which has to do with a legal dispute on the basis of the power of a high school authority to censor internal literary publications by the students of the school.
The court decided in favour of the school that the First Amendment Provisions of the U.S.A Constitution, did not prohibit the school authorities from censoring such publications especially as there exist the need to regulate those activities the students of such age should be exposed to provided that the overriding objective is to take care of the welfare of the students.
In addition, in the same U.S, case, the court equally decided in favour of the school authority. The school authority in this case, suspended the student who was addressing other students, the student said “my friend here is a “firm”, he further stated thus “my friend is” firm in pants, firm in his shirt, his character…”. Waren .J, delivering the lead judgment in this case, stated that the freedom of speech guaranteed under the First Amendment which would allow unpopular, and controversial views in schools “must be balanced against the society countervailing interest in teaching the students the boundaries of socially appropriate behaviour”
The court, (His lordship) strictly speaking, did not find any fault with the other contents of the speech referred to above, but decided against the student majorly on the basis of the immoral words “pervasive sexual innuendo” contained therein as such words constitutes a contravention of good morals among the students and staffs of the said school.
It is therefore, to be understood that what the situation at stake means is that if the act is done outside the school, or at home or elsewhere, the school authority is prohibited from punishing the student or students even if the internal school regulation is breached. The students should face their studies, be optimistic to succeed and entrepreneurially driven, rather than be involved in illegal activities.
THE IMPORTANCE OF EDUCATION LAW IN NIGERIA
From the analysis so far illustrated it is not in doubt that education law is important for teachers in Nigeria in order to excel. Among such importance are;
(i) They act as codes of instruction which regulate educational policies and programmes.
(ii) It directs and regulates the students.
(iii) It directs and regulates the teachers.
(iv) It direct and regulates the stakeholders for effective administration of educational policies and planning.
(v) It guides against corruption and maladministration.
Going deeply in looking at the importance of education law, it has been said that, there is the need to carefully expand this importance in covering of wider varieties of issues which can be appreciated thus;
- It is not in doubt that every school must be accountable for all its activities just like any business outfit. Because of this, need for accountability and responsibility, modern day education require every schools to meet up certain basic regulations which are in the form of education law.
(ii) There is the need for every School to comply with appropriate education laws and government policies and such rules must not be broken in order to avoid sanctions.
(iii) Certainly schools will be involved in buying goods and services and there is no doubt that the basic knowledge of law of contract is required in order to be at the safer side. The breach of contract or signing of illegal contract may spell doom for an institution.
(iv) The teachers will be involved in the discipline of students and it is important for a modern day teacher to know what constitutes discipline of a student as at today and what can be said not to constitute discipline of a student.
(v) There is the need to have an idea of construction, planning and ecological laws. There is the need to comply with the law. If you want to modify the structure of your building or an entire new building or even the play fields.
(vi) There is the need to know the employment law and to be sure that there exist no breach of the terms of the employment contract by the employer and the employees.
CONTRACT OF EMPLOYMENT BY THE TEACHER
The basic Law of Contract guides the employment status of a teacher, and he is required to be abreast with the simple law of contract.
The Law of Contract is said to be involved in the employment of a teacher because the teacher will go through the following stages before taking the employment;
(i) Application for employment or filing of form for employment.
(ii) Letter of invitation for interview.
(iii) Interviewing of prospective applicants for employment.
(iv) Letter of offer of employment.
(v) Letter of acceptance of employment
A contract is defined as an agreement between two or more parties, by which they reach what is known as “consensus – ad – idem” giving rise to a legal relationship. A Contract has been further defined as an agreement which the law will enforce or which the law will recognize as affecting the legal rights and duties of the parties.
The essential elements of a valid contract, can therefore be stated as follows;
(iv) Intention to enter into a legal relationship.
(v) Legal capacity of the parties to the contract.
An Offer: is defined as a definite undertaking or promise made by one party by which he convey the terms and conditions of the offer with the intention that it shall become binding on the party making it as soon as it is accepted by the party to whom it is addressed. The person making the offer is called the offeror.
Acceptance is defined as a final and unqualified expression of assent to the terms of the offer. The court has further described acceptance thus; a counter-offer is not an acceptance, it must not be conditional, acceptance must be communicated. It must be understood that an offer will remain open for acceptance but can be terminated by; (i) revocation (ii) by lapse of time (iii) by the death of the offeror or offeree and (iv) by rejection. The person accepting the offer is known as offeree.
Consideration means that there must be something of value in the eye of the law, which will be given for a promise so as to make the contract to be enforceable.
The court has given a wider and clearer definition of consideration thus;
“A valuable consideration in the eye of the law may consist either in some right, interest, profit, or benefit accruing to the one party, or some for bearance, detriment, loss or responsibility given, suffered or undertaking by the other thus consideration does not only consist of profit by one party, but also exists where the other party abandons some legal right in the present, or limits his legal freedom of action in the future as an inducement for the promise of the first. So, it is irrelevant whether one party benefits but enough that he accepts the consideration and that the party giving it does thereby undertake some burden, or lose something which is in contemplation of the law may be a thing of value.”
Intentional to enter into legal relationship
One of the essentials of a valid contract is the intention to enter into legal relations. At least it is important that it is stated in the contract or it should be capable of being inferred in a contract. Where intention to enter into legal relations is lacking in an agreement, then, it cannot be said to ripen into contractual obligation, no wonder, it is often said, that;
“All contracts are subject matter of an agreement but not all agreement are subject matter of a contract.”
The above quotation can be seen in the circumstances;
Domestic and social engagements are agreement but there exist no intention to enter into true legal relations.
Legal capacity of the parties
The parties to a contract must not lack capacity to enter into such contract. If such party is an institution, the law establishing the institution or terms of reference must spell out the legal capacity of such institution.
If the contract has to do with an adult, who is above 18 years, he must not be insane nor drunk as at the time of entering into the contract, if he is a child, he must enter only into contract of necessity for his welfare directly.
If the party is a company or corporation or statutory establishments, it must be contract as stated in the memorandum and articles of association of such company and for statutory establishments, it must have been stated in the statutes creating such establishment.
TERMS OF THE CONTRACT
The terms of a contract are either stipulated or implied. The terms may be express or implied. The terms may be implied as a result of the usage or custom of a particular trade and except the terms of contract specifically expressly excluded the implied terms, the implied terms will automatically be taken or accepted as being part of the said term or terms of the contract.
The terms are also classified as conditions and warranties, while conditions are most important terms of a contract, warranties are less important terms of the contract.
Jurisdiction of court with respect to employment cases
The court which has the jurisdiction to handle employment cases and its related issue is the “National Industrial Court”. This fact has to be known by most teachers in Nigeria who may have one or more problem in relation to their employment.
The above postulation is supported by the constitution which is the 1999 constitution as altered by Fourth Alteration. The National Industrial Court is given power to exercise jurisdiction to the exclusion of any other court in civil causes and matters (a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith; (b) relating to or connected with or arising from Factories Act, Employers Compensation Act or any other Acts or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws.
Furthermore, the Constitution as altered by the third Alteration gave the National Industrial Court, other jurisdiction such as (c) relating to or connected with the grant of any trade restraining any person or body from taking part in any strike, lock-out or any industrial action or any conduct in contemplation or in furtherance of a strike, lock-out, or any industrial action and matters connected therewith or related thereto.
The constitution gave the National Industrial Court other Jurisdiction in cases such as;
(i) Dispute over interpretation of the constitution relating to employment and related matters.
(ii) Dispute on National Minimum Wage.
(iii) Unfair labour practices or international best practices in labour, employment and industrial matters.
(iv) Dispute arising from sexual harassment at work place.
(v) Application or interpretation of International Labour Standards.
(vi) Child Labour and related matters.
(vii) Interpretation of collective agreement, awards.
(viii) Payment or nonpayment of salaries.
The topic is a very sensitive one and we have been able to see that the teachers in Nigeria require knowledge of law to be able to do their work perfectly.
This work dealt extensively with so many issues in relation to Education Law, such as, the area where the constitution devote itself to education, showing how important section 1 (1) and (3) is to education Law, since it states that the constitution is supreme and its provisions shall have binding force on all authorities and powers throughout the Federal Republic of Nigeria, while subsection 3 of the Constitution is on the issue of any Law which is inconsistent with the provision of the Constitution shall to the extent of inconsistency be void.
Also, Section 18 if the 1999 Constitution was analyzed, which has to do with education objectives of the Government while Section 38 dealing with restriction on forceful religious teaching and indoctrination in schools vis-à-vis, Section 35(1)(d) where a person who has not attained the age of eighteen years can be deprived of his personal liberty for the purpose of his education or welfare.
The work look at the right of students to free speech and the limiting factors imposed by law. The issue as to fair hearing, curriculum development, quorum when holding meetings and the basic requirements for a school principal and other officers of the school were discussed among other issues.
Not done with the above discussion, we also dealt with the issue of contract of employment by a teacher, while exposing the teachers to the basic requirements of the essentials of a valid contract.
To be able to show the court which has jurisdiction on employment matter, we looked extensively at Section 254C, of the 1999 Constitution, the Third Alteration to the constitution and we accordingly exposed the cases the National Industrial Court can handle as provided for constitutionally.
We did a summary, recommendations and conclusion. The footnotes and bibliography contained here-in are going to be helpful for further reading.
From the work done, we hereby recommend as follows;
(i) That both the Federal Government and the State Government should as a matter of urgent necessity make “education law” to be compulsory for all categories of teachers in Nigeria by allowing all teachers to go for two or three months training in education law in any of the colleges of Law or faculties of Law in our Nigerian Universities.
(ii) That all the colleges of education or faculties of education in Nigeria should as a matter of urgent necessity, make sure non of its graduate obtain their certificates without taking a course on “education law”, this can be a policy to be implemented by all agencies of government who supervise teachers education.
(iii) That more lawyers should write books and articles in journals on “education law” for teachers in Nigeria. This will re-awaken their interest in the knowledge of education law.
(iv) The teachers of most schools, whether private or government institutions, from primary, secondary, tertiary and non tertiary institutions should endeavour to have knowledge in the law establishing their institutions, the constitution and all areas of law dealing with education.
(v) The teachers should have basic knowledge of the law of contract vis-à-vis employment law because some teachers just sign their employment letter, accept the terms of the offer of employment, without first going through the terms contained in the said letter of offer of employment.
(vi) There should be seminars, conferences and activities for teachers on education law.
(vii) The Constitution should be amended making entrepreneurship education compulsory from primary school to the university.
It is not in doubt that no knowledge is lost in acquiring more knowledge. The truth about this is that the Nigerian teacher require the knowledge on education law instead of the wrong notion that only the lawyers require the knowledge of the law.
LIST OF AUTHORITIES
- BOOKS/ INTERNET MATERIALS
- Sagay; Nigerian Law of Contract, 2nd Edition Published by Spectrum Law Series Page 1-5.
- See; what is Education Law through; https://law.freeadvice.com accessed through the internet on Sunday the 7th of July, 2019 at 2am.
- The Legal World of the school principal; by M. Scott Norton published by Rowman & Littlefield, https://rowman.com accessed on the internet on 7/7/2019 at 7:15am
- Stewart, Douglas J – Principals Knowledge of Law affecting Schools; see www.astlii.au accessed through the internet on 7/7/2019 at 7:30pm
- Babalola. Victor. Tubosun; Implication of Nigerian Education Laws on Curriculum Developments; See; https://www.researchgate.net accessed through the internet on Sunday 7/7/2019 at 8pm.
- Education in Nigeria; https://en.m.wikipedia.org accessed through the internet on 8/7/2019 at 8:50pm
- Education Laws; seahipag.org.full, accessed through the internet on Sunday the 9th of July, 2019.
- IMONIKHE VS A.G BENDEL STATE, (1992) 6 NWLR (part 248) Page 396 at 411 SC.
- ANKA VS LOKOJA (2001) 4 NWLR (part 702) Page 178
- FIRST BANK OF NIGERIA PLC VS T.S.A INDUSTRIES LTD (2010) ALL FWLR (part 527) page 633 at 678 SC
- A.G OF ONDO VS A.G FEDERATION (2002) FWLR (part 111) page 1972 and also reported in (2002) 9 NWLR (part 772) page 222.
- TINKER VS DES MOINES SCHOOL DISTRICT 393 U.S Page 503 (1969)
- FRASCA VS ANDREWS 463 F. SUPP. Page 1043 (1978).
- HAZELWOOD DISTRICT SCHOOL VS KUHLMEIER 108 SCt. Page 562 (1988).
- FRASER VS BETHEL SCHOOL DISTRICT, 106 SCt 3159 (1986).
- CARILL VS CARBOLIC SMOKEBALL CO (1893) 1 QB page 256
- ORIENT BANK (NIG) PLC VS BILANTE INTERNATIONAL LTD (1997) 8 NWLR (part 515) page 37
- CURRIE VS M.S.A (1875) L.R 10 Exch. 153 at page 162
- PDP VS INEC (2001) FWLR (part 31) Page 2735 at 2776-2777.
- Section 18 of the 1999 Constitution.
- Section 38 (2) and (3) of the 1999 Constitution.
- Section 35 (d) of the 1999 Constitution.
- Section 39 (1) of the 1999 Constitution
- Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010
- Section 254 C of the 1999 Constitution as Altered by the Third Alteration to the Constitution.
- Section 254 C of the 1999 Constitution, Third Alteration, (e), (d), (f), (g), (h), (i), (j), (k), (l), (m), 1, 2, 3, 4, 5 and 6.
- The 1999 Constitution of Nigeria.
 See; what is Education Law; https://law.freeadvice.com accessed through the internet on Sunday the 7th of July, 2019 at 2am.
 The Legal World of the school principal; by M. Scott Norton published by Rowman & Littlefield, https://rowman.com accessed on the internet on 7/7/2019 at 7:15am
 Stewart, Douglas J – Principals Knowledge of Law affecting Schools; see www.astlii.au accessed through the internet on 7/7/2019 at 7:30pm
 Babalola. Victor. Tubosun; Implication of Nigerian Education Laws on Curriculum Developments; See; https://www.researchgate.net accessed through the internet on Sunday 7/7/2019 at 8pm.
 Education in Nigeria; https://en.m.wikipedia.org accessed through the internet on 7/7/2019 at 8:50pm
 IMONIKHE VS A.G BENDEL STATE, (1992) 6 NWLR (part 248) Page 396 at 411 SC.
 PDP VS INEC (2001) FWLR (part 31) Page 2735 at 2776-2777.
 ANKA VS LOKOJA (2001) 4 NWLR (part 702) Page 178
 Section 1 (3) of the 1999 Constitution. FIRST BANK OF NIGERIA PLC VS T.S.A INDUSTRIES LTD (2010) ALL FWLR (part 527) page 633 at 678 SC
 A.G OF ONDO VS A.G FEDERATION (2002) FWLR (part 111) page 1972 and also reported in (2002) 9 NWLR (part 772) page 222.
 Section 18 of the 1999 Constitution.
 See Section 38 (2) and (3) of the 1999 Constitution.
 See Section 35 (d) of the 1999 Constitution.
 Section 39 (1) of the 1999 Constitution
 TINKER VS DES MOINES SCHOOL DISTRICT 393 U.S Page 503 (1969)
 HAZELWOOD DISTRICT SCHOOL VS KUHLMEIER 108 SCt. Page 562 (1988).
 FRASCA VS ANDREWS 463 F. SUPP. Page 1043 (1978).
 FRASER VS BETHEL SCHOOL DISTRICT, 106 SCt 3159 (1986).
 See, Education Laws; seahipag.org.full, accessed through the internet on Sunday the 7th of July, 2019.
 Offer is one of the essential ingredients of a valid contract.
 Acceptance is one of the essential ingredients of a valid contract also.
 Sagay; Nigerian Law of Contract, 2nd Edition Published by Spectrum Law Series Page 1.
 CARILL VS CARBOLIC SMOKEBALL CO (1893) 1 QB page 256
 ORIENT BANK (NIG) PLC VS BILANTE INTERNATIONAL LTD (1997) 8 NWLR (part 515) page 37
 CURRIE VS M.S.A (1875) L.R 10 Exch. 153 at page 162
 Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010
 Section 254 C of the 1999 Constitution as Altered by the Third Alteration to the Constitution.
 See; Section 254 C of the 1999 Constitution, Third Alteration, (e), (d), (f), (g), (h), (i), (j), (k), (l), (m), 1, 2, 3, 4, 5 and 6.