Legal Issues In Higher Education In The 21st Century By Prof. Amuda-Kannike Abiodun (SAN)

INTRODUCTION This topic is crucial to our higher education survival, development and progress because, there are lots of illegalities taking place in relation to higher education in the 21st Century which we tend to ignore or we may not be aware of, yet when they are exposed either by the members of the public, the media or through litigation, the embarrassment may become a monumental fraud, capable of destroying the main basis of a society/country. It should be further appreciated, that there can be no “higher education” without “higher educational institutions”. Therefore, there are likely to be cross references of these two phrases in this discourse as they are like a twin notwithstanding the former is for learning while the later is for the platform for learning. It will also enrich our knowledge to define the two key terms associated with this presentation which terms are; (i) Legal Issue/Issues (ii) Higher education. Legal issue is a legal question which is the foundation of a case. It requires a court decision. It can also be referred to as point on which the evidence is undisputed, the outcome of which depends on the court interpretation of the Law.[1] Furthermore, Legal issueis defined as a legal question which is usually at the foundation of a case and requiring a court decision. Legal issue is further defined as a point on which the evidence is undisputed, the outcome depending on the court’s interpretation of the Law[2] We have searched to see whether there can be a better definition to fit into this paper presentation and because, we couldn’t find any one, we have decided to define legal issue as the important aspect of law, and or principle of Law, arising from a given fact, whether in dispute or not which requires proper analysis of such law to those facts in series, in order to arrive at a conclusion, decisions or recommendations. They are the essential aspect of the Law, distilled from a given fact or set of facts which requires proper analysis, construction,critisms, and summation. Higher education is defined as an optimum final stage of formal learning that occurs after the completion of secondary education. These educations are often delivered at universities, academies, Colleges, seminaries, etc.[3] Furthermore, higher education has been defined as any of the various types of education given in post secondary institutions of learning and usually affording, at the end of course of study, named degree, diploma, and other certificates[4] A further definition of higher education is seen as all types of studies, training or training for research at the post-secondary level, provided by universities or other educational establishments that are approved as institutions of higher education by the competent state authorities.[5] Most people often time thought that higher education means, post graduate education such as PGD, Master Degree, Ph.D Degree or even H.N.D. Some see it as being able to be in the university alone. Those thoughts are not correct and are completely a sign of ignorance. Accordingly, in this presentation, the important legal issues out of so many Legal issues in Higher education in the 21st Century shall be examined constructively, we shall summarise the presentation, make useful recommendations vis-à-vis conclusion. THE LEGAL ISSUE DEALING WITH THE LEGAL STATUS OF HIGHER INSTITUTIONS It is important to note that, there are so many higher institutions springing up, here and there in Nigeria, without legality. This is because in Nigeria today as applicable to most Nations of the world, a higher institution must be a legal outfit before carrying on as higher institution. The question is: how do you carry on as a legal outfit? The simple answer to this is that, for a public higher institution, be it state or Federal, there must be a Law establishing such institution properly passed into Law by the state Assembly or National Assembly, which ought to be assented to by the Governor of the state concerned or by the president of the country, in the case of a Federal Institution of higher learning[6] A good example in this regard is to look at the University of Port Harcourt Act which states thus; “There is hereby established the University of Port Harcourt (in this Act referred to as “the University” which shall be a body corporate with perpetual succession and a common seal.” “The University may sue or be sued in its corporate name” For a private higher institution, their legal status become effective when license to operate is given to them, otherwise, their operations will be illegal with the licensing of the first private university about a decade ago, there has been increase in the numberof private universities and other higher institutions privately own. It is to be noted that from available research it is embarrassing but it is true to state that no private university in Nigeria was established by the Law in accordance with the Education (National Minimum Standards and Establishment of Institutions) Act2004. It is to be understood that the various legal implications with respect to this anomalies if taken up., may affect the issue of ownership, control, autonomy, delivery of quality education, labour, legal personality, life perpetuity and so many other legal issues.[7] It is to be understood that in Nigeria, the federal Government through the Federal Ministry of Education is the authority that can grant the License to operate a higher institution privately own. We have to state this because; the position of the Law is that a non-existing person, natural or artificial, cannot institute an action in court, nor will an action be allowed to be maintained against a Defendant. Juristic personality can only be donated by the enabling Law, which can either be through the constitution or an enabling statute. If the enabling Law provides for a particular name by way of juristic or legal personality, a party must sue or be sued in that name and not in any other name as was decided by the supreme court in Reg. Trustees of the Airline Operators of Nigeria Vs Nigeria Airspace Management Agency and Reptico S.A. VsAfribank[8] LEGAL ISSUE DEALING WITH ADMINISTRATION OF AN HIGHER INSTITUTION The day to day administration of higher institution is very important because crucial issues ought to be discussed from time to time. It is to be understood that as far as public higher institutions are concerned, such power can be seen in the law establishing the institutions while the Law establishing private higher institutions will be seen in the constitution of the higher Institutions, vis-à-vis its memorandum and articles of association which ought to be part of the documents to be submitted before being granted a license to operate. Now, a close look at the university of Port Harcourt Act states that the Principal Officers of the university are; (i) Chancellor (ii) Pro-chancellor (iii) Pro-Chancellor and council (iv) Vice Chancellor and a senate (v) congregation (vi) convocation (vii) Campuses and colleges (viii) Faculties, Schools,[9] institutes and other teaching and research units, etc.[10] Now, a close scrutiny of the University Act[11] shows that the Chancellor is not a member of the University council [12] and there are many functions the council are to carry out which includes general control and super intendante of the Policy, finances and property of the university, including its publications, etc.[13] Now, a dissection of the Power of the senate shows that they are equally in charge of the day to day administration of the institution [14]and those who ought to be in the senate can be seen in the Act which includes, the Vice-Chancellors, Deans of Various faculties, Director of various institutes, Professors, the Librarian and few others.[15] You will agree with us with all due respect that the Senate does not have the power to approve your promotion either as a professor or to any other rank without the approval of the university council but we have heard where it has been said that “the Senate hereby confirm your appointment or promotion to the rank of ……”.Infact the Senate only general function is provided for in section 7 (1) of the university Act which is only to organize and control teaching, admission of students section 7(2) of the University Act, cannot be said to be the functions of Senate because of the use of the words; “It shall in particular be the function of the Senate to make provision for” It is submitted with all due respect that to make provision for “something””is it different from doing something” The appropriate words ought to be; to make provision for and also to carry out the function of”……” This will not provide difficulty in interpreting the law, because you can make provision through regulations without being the one to carry out the regulations. Furthermore, the “council” is with enormous power to override the decision of the Senate when you look at the opening sentence of both section 7(1) and (2) of the Act which states that; subject to section 6 of this Act” and also; without prejudice to the generality of subsection (1) of this section and subject as herein mentioned ….” The situation here is unfortunate because even in the council, the Senate are entitled to only four persons to sit in council as could be seen in section 5(f) of the act and there are about 21 members of council. We are not saying here that the “council” may not always ratify the senate decisions, what we are saying is that the council is clothed with enormous power which can Jeopardize the interest of the University Senate, who are the ones who knows where the shoe pinch them and not necessarily the council members whose majority members are not strictly part of the University Community. LEGAL ISSUE AS TO SCHOOL FEES CONTROL ESPECIALLY FOR PRIVATE HIGHER INSTITUTIONS In India, the state control fees tightly, for example the UGC (Institutions Deemed to be Universities) Regulations 2010, states that the fee structure for various programmes of study in the deemed to be Universities shall also be fixed in a accordance with the fee Regulations formed by the Government or the U.G.C (University Grant Commission) from time to time[16]. The fees must however be reasonable in relation to cost of running the course. The Underlining notion behind these regulations is to prevent what is seen as “commercialization” of the higher education sector. This is because, if the poorer students are left out, then the whole essence of higher education may be defeated. The India Law as revealed above have their own problems also because of rising cost of main expenditures in this regard would still affect the system to be better.[17] In Nigeria, and most African countries, the fees charge by private higher institutions are not monitored nor controlled by Law leaving most private institutions to be called “commercial higher educational institution” as only the children of the rich or the rich persons alone can attend such higher institution. LEGAL ISSUES DEALING WITH HIGHER INSTITUTION POLICIES (DISCRIMINATION/CURRICULUM) Before now, issues dealing with discrimination in appointments of staffs, both teaching and non teaching are not so pronounced. This problem is not associated with Nigeria alone. Even in the United States of America, within six years alone, issues associated with race, ethnicity and gender emerged on a large scale. This led to constitutional pronouncements to the public perception in various key states. The Supreme Court of United States of America in the Landmark Judgment of GrutterVs Bollinger [18]after several years of silence on the issue of “race”, ethnicity and gender, affirmed that mission drive educational benefits associated with a diverse class of students could, in appropriate circumstances justify the limited consideration of race and ethnicity in higher education admission. The supreme court while recognizing the academic freedom interests of higher education leader who were implicated in admission judgments, went further to state clearly that higher educational institutions have the responsibilities to exercise their discretion responsibly, with due attention to be paid to actual, mission-driven outcomes associated with student learning and development (including preparation of students to fully participate as citizens in the workforce based on evidence about outcomes. Flowing from the above and using University of Port Harcourt as example. Section 1(3) of the Act[19] stated the objects of the institution among others to include (a) encouragement of the advancement of learning and to hold out to all persons without distinction of race, creed, sex or political conviction, the opportunity of acquiring a higher and liberal education. Now, the question is; can it can be correct that there exist compliance with this aspect of the Law and the persuasive decision of the U.S Supreme court in Grutter’s case?Certainly, the answer is a capital “No” as at today. This is because, University of Port Harcourt is dominated by both South-South and South Eastern regions in terms of students and admission and lectureship position which can be assessed at 80% while the non-teaching staffs strength from south-south and south east can be put estimatedly to be 90%. What is happening in University of Port Harcourt may even be better compared to University of Uyo, or University of Calabar. The situation in University of Lagos, O.A.U. and Ahmadu Bello University are a little bit nearer to average, while all other universities are worst for this type of discriminatory staffs’ strength and admission policies. Furthermore, most of the state universities are worst off and tends to be seriously embarrassing without control uptil date. Even though the 1999 constitution as Amended is clear on this issue we cannot say there exist compliance, even with Section 19 of the University of Port Harcourt Act Cap U13 LFN 2004 THE ROLE OF THE LEGAL DEPARTMENT VIS-À-VIS FACULTY OF LAW OF HIGHER INSTITUTION/AVOIDANCE OF LITIGATION There are now presently increase litigation in court of law against most higher educational institutions, may be because the legal department of most of the institutions sheer away from their responsibilities on the need to advise the institution legally or they may be involved in encouraging litigations at the expense of the litigants both in terms of cost of litigation or the payment of judgment sum including the embarrassment such higher educational institutions may be placed. There is the need for all higher educational institutions to place emphasis on law dealing with the following circumstances; (i) Discipline of staffs and students, the provision of fair hearing is to be strictly adhered to. (ii) Proceedings at the meeting such as senate, council, Faculty board meetings and other important meetings, the Law/constitution/Policy(cies) dealing with the establishment of the higher educational institutions must be complied with, proper quorum must be formed and minutes should properly be taken, signed and kept in proper custody. (iii) In terms of contractual Obligations the Law establishing the institution should be adhered to or the constitution/policy of the institution. The issue of use of computer for documentation was not so much available earlier before now, but in this 21st Century, most establishments and individuals are into usage of computer and higher educational institutions are not out of tune with reality. LEGAL ISSUE ON COMPUTER GENERATED EVIDENCE OR DOCUMENTATION Higher educational institution must comply with the Law dealing with computer generated evidence assuming a case is to be filed or defended in court touching on documentary evidence especially, admissibility of computer generated evidence, and the issue of expert evidence under the Law of evidence. We also took time to look at the relationship of sections 85-87 of the evidence Act, 2011, in relation to electronically generated evidence especially as it has to do with primary and secondary evidence. Under section 84 of the evidence Act, 2011, we have seen that when leading a witness, in evidence, for the document computerly generated to be admissible, the witness has to state the followings;[20] (i) That I know as fact that the document sought to be tendered was produced by the computer which said computer has been in operation for about two (2) years and we regularly store the information retrieved and other information regularly in our said computer for about two (2) years now. (ii) That over the period of about two years, there was regular supply of information about the document sought to be tendered, including other informations in our usual way of receiving supply of information in our computer.[21] (iii) That within the said period of two years, I earlier mentioned, My (Lord or Your Worship), uptil now, the computer through which the document sought to be tendered was operating properly.[22] OR (iii) (a) That within the said period of two years, I earlier mentioned, My (Lord) or Your (Worship), it was not operating properly as we repaired it several times, but that even during the repair or when it was not operational, the repair was properly carried out, the repair/non operational period did not affect the production of the document computerly generated which is being sought to be tendered and the accuracy of the contents of the document sought to be tendered is not affected at all.[23] (iv) That we usually use the said computer to gather various information supplied to the internet from various information worldwide such as Google, Whatsap, text messages, GSM messages, video-records, companies and institutional records and our staffs record both input and output, and the document sought to be tendered is the information reproduces and generated from this computer of ours, I have mentioned.[24] In the case of Computer Network[25] (iv(a) That document sought to be tendered was produced through the combination of computers operating for about two years[26] (b) That document sought to be tendered was produced through different computers changed at different times but each time information in one is transferred to the other one used in changing the other[27] That different computers are use together and are changed at the same time with other computers but that the same information is contained in each as at the time they were changed[28] That all the computers used from one office to the other and all the departments and offices are net worked together and with the same information where the document sought to be tendered is derived from, as all the computers generally are seen and treated as one single computer and the mention of a particular computer in this transaction refers to one single computer, as a whole[29] That there is electronic signature through which there is a signature, a symbol or security procedure [30] For certificate (v(i) That I have a certificate produced which identifies the statement and describing the manner in which the document was produced[31] (ii) That the particulars of the devise used showing the devise is computer and appropriate for use and it is;[32] …Computer Model, with No …… of 2017 model (iii) That I am personally occupying the (responsible) office of where the computer was produced and as Director of the establishment, my signature is there on the document[33] a. That this information is to the best of my knowledge and belief.[34] LEGAL ISSUE OF PUBLIC OFFICERS PROTECTION ACT LFN 2004/CONFIRMATION OF APPOINTMENT It will not also serve the interest of justice if we are not aware that the public institutions of higher education/higher learning are public officer [35] but those of private institutions are not public officers. Anyone who feels aggrieved by whatsoever action an higher institution had carried out against him or her should take up the action within three months when the cause of action occurred, otherwise, no case can succeed as the suit is likely to be struck out. The decision of the court in UnijosVsIkegwuoha[36] though decided the issue of public officers protection Act in favour of Dr. Ikegwuoha but still serves as a warning on this issue but it is of great importance to also discuss the legal issues as to confirmation of appointment. In the above named case, the said Dr. M.C Ikegwuoha was at all material times a lecturer II in the department of political science of the University of Jos, having initially been offered appointment as a temporary lecturer on 22/1/93, a post with respect to which he assumed duty on 27/1/93. He was interviewed by a full panel of the university, found appointable and had his appointment regularized with effect from 12/8/94. He became due for confirmation on 27/1/95 and he applied to be so confirmed. The H.OD of his department and Dean of his faculty both recommended him for confirmation in accordance with the rules and regulations of University of Jos. Instead of confirming his appointment, UNIJOS, purportedly said they are acting on a protest by a few students who were instigated to write a petition against him not to be confirmed. The University wrote a letter dated 2/10/97 stating that they have no intention of confirming his appointment. Dr. Ikegwuoha being aggrieved approached the Federal High Court then (Take notice that if it is today, such case will go to National Industrial court) claiming an order directing the University to confirm his appointment “as Lecturer II in the Department of Political Science at the University of Jos, with effect from the 27/1/95 with all his promotions, allowance and entitlements, etc. The parties exchanged pleadings. Dr. Ikegwuoha gave evidence in support of his pleadings. The University of Jos did not give evidence to support its defence. The court however dismissed his case, Dr. Ikegwuoha appealed to the Court of Appeal, which allowed the appeal and ordered the said Dr. Ikewguoha to be confirmed. The University of Jos felt dissatisfied and appealed to the Supreme Court and the appeal was allowed in part but it was a sound victory for Dr. Ikegwuoha when the supreme Court held that the University of Jos is hereby ordered to confirm the appointment of the respondent as lecturer II in the department of political science with effect from the 27/1/95. The other reliefs claimed by the respondent namely for promotions, allowances and entitlements are not proved. In this case, the Supreme Court stated that the cause of action arose on 2/10/97 when Dr. Ikegwuoha got the letter not confirming him and that there was nothing in 1995 that would have justified a cause of action. The date of 27th January, 1995 is therefore, a typographical error. This case is very important to the cause of education where the institution was not alife to its responsibilities under section 22 (vii) of the University of Jos Regulations because the panel that sat failed to identify the deficiencies of Dr. Ikegwuoha which the 300 Level student petition through Exhibit 3 identified as; (i) Lack of effective communication skills (ii) Lack of mastery of the supposed field taught. (iii) Failure to deliver intellectual goods required of a lecturer. Furthermore, the interpretation of section 22 of Exhibit 5 (UNIJOS regulations governing the conditions of service of senior staff) deals with confirmation and appointment. It states that “a recommendation for non confirming or deferment of confirmation should” be “made only after the member of staff concerned has been warned” of his or her short comings and has been given sufficient time to remedy this. If after this. It is still necessary to recommend non confirmation of appointment; this should be done atleast three months before the date when confirmation is due. The Supreme court through Hon. Justice Nwali Sylvester Ngwuta J.S.C. on page 507 Paras F-G, in his contribution to the judgment Lambasted UNIJOS when he stated; “Did the members of the “full panel” that interviewed the respondent on behalf of the University of Jos conduct the interview in their sleep? How could they have inflicted on the University, Lecturer who had no writing and/or communication skill in the English Language to teach political science?” The Learned Jurist of the Supreme Court, while still feeling bad for the future of higher education in the 21st Century stated further thus; “This is the bane of the educational system in the country-Square pegs are put in round holes. And the Appellant, having woken up to her error, thanks to some 300 level students, failed to comply with section 22 (vii) of her regulations thereby compounding the problem for the University with the respondent. Perhaps, the appellant will resolve that issue in due course. However, the better for the university and her student, particularly those in social sciences” POLICY AND THE LAW We must understand that often times, higher education is clothe with so many policies but the truth is that in as much as we make use of policies, “a policy document is not a Law, but it will often identify new laws needed to achieve its goals. Laws set out standards, procedures and principles that must be followed. If a Law is not followed, those responsible for breaking them can be prosecuted in court. [37] It is however agreed that policy can lead to creation of new Law. A policy outlines any and all methods and principles that the government or any entity for that matter will use to achieve its directive/objective. A policy is not Law, however, it can often identity new laws that are needed by the government or any entity to achieve its goal.[38] NEW METHODS AND CURRICULA It is so apparent that the changes in teaching method and curricula brings challenges. By and large, teaching methods are moving away from the old-fashioned model of lecture aimed at passive audiences, but a more participatory class. The students of today are now much more interested in interactive and self-guided approaches. With so much information online and available for free higher institutions such as university and colleges are restricting curricula to stay current and equip students to work with emerging technologies. Most of the higher institutions recognize the facts that higher education requires uniform method of learning and evolution but those which require uniform methods of learning and evaluation are no longer Rn-vogue. There are now more student-centered forms of criteria to evaluate learning and success. Things like individual response system in the form of clicker are being used to allow students to participate directly and immediately. Team teaching and peer-led teaching models are also emerging as alternatives to the old professor/student dynamic. For tenured, long established professor, new curricula and methodologies can be difficult to incorporate into their long established teaching practice. They can find themselves frustrated by having to use teaching methods they don’t like and not knowing how to most effectively implement the new curricula. In fact, these challenges are becoming so widespread and important that universities are granting leave time for faculty to explore and develop new teaching methods. However, we must look at whether this issue can be found in the Law establishing the higher institution in order to give same legal backing. Using the University of Port Harcourt Act, as a good example, we can conveniently say that this is possible and should be immediately made possible. This situation is covered by section 1 (b) and (c) of the University Act[39]. THE ROLE OF THE UNIVERSITY, FREE SPEECH AND CAMPUS CIVILITY As is apparent to anyone who watches the news, these issues aren’t going away anytime soon. The university has historically been an oasis of freedom of speech and freedom of expression for students and faculty alike. As centres of learning and research, the university has always been a place where new and potentially threatening ideas often emerge. It’s been the mission of higher education in the United States to ensure that these freedoms are treasured in institutions of higher learning. However, recent events have challenged these ideals [40]The current political climate and the potential violent threats which have emerged not only on university campuses but also in cities across the country have put university administrators in a difficult place. They must strike a balance between free speech and maintaining a secured and safe environment on university and college campuses. Free speech has always been an essential part of college life, and we should expect to see universities working hard to create safe environments for the discussion of various opinions. Additionally, universities are often on the forefront of new ideas making them easy targets for opponents of free speech to look for university to take increasingly strong stand on this issue. On 17th February, 2016, police used tear gas to disperse hundreds of university of Abormey-Calavi students of Benin Republic who had gathered at on hotel in Abomey-Calavi, a suburb of Cotonou, for a general assembly and press conference and to peacefully protest against the October, 2016 ban on all student union activities, since Benin Republic is a member of African Union, the citizens are at liberty to use the African commission on Human and Peoples Right. [41] In Dubai, United Arab Emirate (U.A.E) Judicial system is derived from the civil Law system and Sharia Law. The court system consists of civil courts and Sharia Courts. According to Human right groups, freedom of expression has been curtailed by enacted Laws in order to water-down the constitution.[42] THE ROLE OF NATIONAL ASSEMBLY IN HIGHER EDUCATION The National Assembly in Nigeria are responsible for making Laws in the country and if they are alife to their responsibilities, they should have acted teimeously to help the survival of higher education in Nigeria especially. The question is “How many Laws has the National Assembly amended or passed dealing with the issue of higher education in the last ten years? Certainly there exist non. The only thing you see them doing now is for each Honourable member to present a bill seeking to establish higher institutions in his or her localities and for the members to easily pass the bill without thinking deeply about; (i) The other higher institutions have they been properly funded? (ii) Are the salaries and allowances of staffs whether teaching or non teaching staffs properly taken care of to prevent strike and other serious demonstrations or even closure of the higher educational intuitions? (iii) Are there enough lecturers and teaching staffs in the various institutions. (iv) Should the power of national university commission/other bodies not be curtailed in disaccrediting the university and whether the body ought not to have been disbanded and the power returned back to Federal Ministry of Education? (v) Should they not have stooped the various universities from conducting post-jamb examination and allow JAMB to do their work because when JAMB was in-charge, we don’t have half baked students. (vi) Should the National Assembly not have worked on the legal education consolidationAct LFN 2004 and amend same. SECTION 36 OF THE 1999 CONSTITUTION AND THE PRINCIPLE OF ADMINISTRATIVE OR DOMESTIC AFFAIRS OF THE HIGHER INSTITUTION. The constitution of Nigeria under section 36 states that in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a court or other tribunal established by Law and constituted in such manner as to secure its independence and impartiality. That means, no matter the case, a person whose result has been seized or who was not allowed to write his or her examinations will not be happy. The courts unfortunately dampened the hope of most students when they tend to be supportive of higher institutions by stating that in so far as the award of a degree or certificate is concerned, the courts have no jurisdiction in the matter as it is purely administrative and domestic affair of a university as was decided in MagitVs University of Agriculture, Makurdi[43] The same decision was reached in University of CalabarVsEsiaga[44] and AkintemiVsOnwumechili[45]. This are not too good news to Justice and it is like allowing the University to do anything they so like by refusing to give out degree results to any student or allow the authority to refuse the student to sit for examination even when not justified. We are of the view that the university regulations of statutes ought not to be allowed to override the provision of the constitution and if it does to, it shall become null and void and such ought, to be the position of the courts in the above named cases by virtue of section 1 (3) of the 1999 Constitution as Amended. No wonder in 2010, the court decided to do justice in similar situation by accepting that the students having exhausted the remedies available to complain that his certificate be released, cannot be denied access to court. This was decided in the case of University of Ilorin VsResheedatAdesina[46] It is not out of place to discuss the relationship between an higher institution and a student and it is better to point out that the students have contractual right and duties based on their contract of membership which the matriculation formalities symbolize. Where an Higher Institution made Law, the statute view develops its strength from the enabling Law, since the higher institution is a creation of the statute.[47] Then the contract automatically becomes statutory and no longer contractual. This is important as was determined in GarbaVs University of Maiduguri.[48] With respect to private higher institutions, it is however, contractual obligation. The Major decisions in Garba’s Case, was perfectly captured by Hon. Justice Nnamani J.SC as he then was and of blessed memory when he stated [49] thus; “It is pertinent to mention that by section 17(2) of Act No. 83 of 1979 (Now LFN 2004) it is to the University council that appellants could have lodged an appeal if the issues were such as could be dealt with within the statutes of the University. It seems to me fair to conclude that if, as indeed they felt, the appellants fundamental rights had been breached it was to the high court, and not to the visitor that they had to go for relief” In Garba’s case, part of the reason why the University lost the cases are as follows; (i) That you cannot be a judge in your own cause; The deputy Vice-Chancellor cannot be a witness and a Judge all at the same time. The likeyhood of bias is a necessary inference from the assumption of the two positions. The Disciplinary investigation panel set up by the Vice-Chancellor as the chairman, and he is also a victim of the disturbance. (ii) That a person must be heard to state his own side of the story. In Garba’s case, can it be said that the Appellants were heard. What does it mean in this context to be heard? Yes truly, they were summoned, they gave evidence but fundamentally, there was no such opportunity of cross-examination and knowing the witnesses in order to comply with the principle of natural Justice as to fair hearing[50] The erudite Jurist, and scholar of repute, Hon Justice Oputa J.SC as he then was (May his soul rest in perfect peace) added more heart touching statement thus[51]; “Another but related view is that fair hearing (even in an Administrative Board or a Disciplinary Investigation Panel as the one set up by the Vice-Chancellor in this case) implies the right in the appellants to know what and what were being alleged against them; what evidence has been given; and what statement had been made affecting them; and they must be given a fair opportunity to correct and contradict such evidence. It follows that the panel must not hear evidence, or receive representation behind their backs. The case that brings out these points very clearly is the case of Kanda V Government (1962) AC 332” CORRUPTION DEALING WITH HIGHER EDUCATION The present situation is that as a result of corruption, there exists decadence in the situation of higher education. The money meant for the development of infrastructures are embezzled and usually no one may be saying anything about this. There is need for search lights as far as financial activities in this area is concerned [52] The more those who embezzled money in this sector are investigated, prosecuted and sentenced to terms of imprisonment, the more everyone would be scared of being involved in all forms of financial irregularities and mismanagement because the educational sector is usually seen as a place where financial impropriety can’t take place. THE ROLE OF EDUCATIONAL COMMISSION/FEDERAL MINISTRY OF EDUCATION There are lots of oversight functions the education commissions, bodies and Federal Ministry of education can perform by making sure as it use to happen earlier before now, where secret service Agencies such as C.I.D are given admission in Higher Institution and because they are sponsored by the government, they always give information to the bodies mentioned above who can even approach the National or state Assemblies as to how to bring additional Laws or amend the Laws to fit into reality in development of the higher education sector. LEGAL EDUCATION ISSUE The council of legal education deprivation of National Open University Students of the opportunity of going to the Law school is rather unfortunate because how can students be allowed to go to university accredited and recognized by National Universities Commission and at the same time being deprived of completing the course? This is rather unfortunate as the same universities in Nigeria who have faculty of Law are allowed to go to Law school. This act is bad for the development of higher education. The case that was filed at the Federal High Court Port Harcourt would have made Hon. Justice Oshomah who handled the case to go down in history lane as one of the Judges who have contributed to the development of higher education in Nigeria but with due respect to him he failed to see the better side of the case by agreeing with technicalities rather than the law to decided the case. [53] The Judge wrongly with all due respect stated that the Nigeria Law school through council of Legal education ought not to have been sued because according to him, it is the domestic affairs of the institution. We are aware that under section 4 of the council of Legal education Act and National Universities Act, the Attorney-general can override the decision of the council. The Hon. Attorney-General however refused to use his power uptil now under section 4 but there are pressures on him to do so. Now coming back to the United States of America, Education Counsel’s Washington, D.C.-, Atlanta-and Greenville, S.C.- based multidisciplinary team seeks creative, research-based solutions to the complex challenges facing the education community in the 21st century. The firm includes a former U.S. secretary of education and governor, including individuals who have held major positions in the White House, the U.S. Department of Education, governors’ offices, state boards and departments of education, foundations involved in education, Congress, and the classroom (elementary school to postgraduate education). [54]The American Council on Education (ACE) is the major coordinating body for all the nation’s higher education institutions. ACE seeks to provide leadership and a unifying voice on key higher education issues and to influence public policy through advocacy, research and program initiatives. Counted among its members are approximately 1,800 accredited, degree-granting colleges and universities and higher[55] education-related associations, organizations including corporations. Founded in 1918, ACE aims to foster greater collaboration and new partnerships within and outside the higher education community to help colleges and universities anticipate and address the challenges of the 21st century and contribute to a stronger nation vis-a-vis a better world. Three key strategic priorities drive ACE’s activities: representation as advocate and voice for all higher education, leadership development to enhance the diversity and capacity American higher education and adult learner organizations. ACE’s areas of focus include access, equity, and diversity; institutional effectiveness; lifelong learning; and internationalization.[56] SUMMARY We have been able to show in this presentation the definitions of the Key words which are “Legal Issues” and “Higher Education”. We specifically mentioned that though Legal issues have been variously defined but that those definitions are not all en-compassing as they do not completely fit into this presentation. We accordingly gave working definitions which we are of the opinion that it fit into the present presentation. We equally define the term higher education which is confusing to some people who believe that it has to do with any degree higher than a university degree but by our definition, it becomes clearer that it be seen, as being all types of studies, training or training for research at the post-secondary level, provided by universities or other educational establishments, that are approved as institutions of higher education by the competent state authorities. We also in this presentation brought out substantial number of legal issues which we are of the view require adequate examination in order to know whether higher education is on the right lane or working lane in the 21st Century, because the constructive evaluation of those Legal issues, will enable the educationist and the authorities to re-direct and direct the course of higher education towards the right path in order to meet up with challenges of globalization and academic excellence. Among the legal issues that were carefully scrutinized are; Legal Issues dealing with the legal status of a higher institution, section 36 of the 1999 constitution, etc. We have equally seen that, the topic did not restrict us to Nigeria but it is general, though we placed more emphasis on the legal issues of Higher Education in Nigeria, including using more of the statues establishing University of Port Harcourt, but the fundamental aspect of this presentation are; (i) Charity begins at home, it is the University of Port Harcourt that is hosting this event and we need to use it as a case study. (ii) The world is a global village bow, and we are not surprised that most legal issues affecting higher education in Nigeria, higher education institutions and other countries are substantially the same, except, the differences in the implementation of the various laws and policies. (iii) We took time to look at the activities dealing with some legal issues in a few other countries such as, (Benin republic, United Arab Emirate/Dubai), Ghana Britain including the United States of America among other countries. (iv) It is seen that majority of the lecturers since they have been employed to teach including staffs of various higher educational institutions do not even know the statutes which established their institutions, nor the components of such Laws and they often time put themselves into expensive litigation or they put the institutions into expensive litigation. This presentation is clothed with recommendations to legally improve higher educational activities in the 21st Century, thereafter, as expected we concluded the presentation. RECOMMENDATIONS (1) It is recommended that the statutes of most higher institutions in order to move higher education forward should incorporate that “on no account should an higher institution fail to promote lecturers and staffs who are due for promotion immediately” we have seen situation where some are due for professionship, their papers have been positively assessed and the next the senate and council would do is to say, they don’t have vacancy for more than one or two professors in a particular faculty. No wonder, some best brains have retired or move to other part of the world. The National Assembly can make such law, the state assemblies can make such Law also. (2) There exist no doubt that discriminatorily, the women are still behind compared to the men in acquisition of higher education and the constitution of most nations says there should be no discrimination on ground of “sex” among other grounds recognized, it is therefore recommended that states must as a matter of urgency, (both federal and states) enact laws to ensure equality of access to education and to equally strengthen the role of women in higher education and in the society. (3) It is recommended that both the teaching staffs and non teaching staffs of higher educational institutions should be made compulsorily to have and go through a copy of the statute or constitution which set-up or establish such institution. It has been discovered that without being use to this important books/laws, there exist the tendency of breaching the laws always thereby undermining the objectives of higher education in the 21st century. (4) The issue of fair hearing is a constitutional right and all issue dealing with higher education need to ensure strict compliance with this right because no matter how the institution beautifully handle such matter dealing with fair hearing, once there exist lack of compliance, such as adequate notice, opportunity to defend or state ones side of the case and before an impartial judge, there is the likelihood of declaring such decision null and void and of no effect. It is therefore recommended that fair hearing be applied in all ramifications once higher education is involved. (5) It is recommended that on no account should the institution fail to comply with its laws in assessing the issue of discipline, control and promotion of teaching and non-teaching staff to avoid the embarrassment in the case of UNIJOS VS DR EKWOUGHA [57] (6) The various institutions should envisaged litigation and therefore seminars on computer generated evidence should be sponsored. This will protect the institution from embarrassing themselves. Furthermore, it is recommended that the opinion of the legal department of most higher educational institutions should always be sought on most crucial matters especially legal issues involving the institution. (7) It is recommended that National University Commission, Council of Legal Education should immediately be proscribed. This is because as far as Nigeria is concerned, the enormous powers given to them to disaccredit some courses with respect to higher education seems to portray the education of Nigeria as being worse. Before, the 21st century, when higher education was majorly part of a department of the Federal or State Ministry, the higher educational system in Nigeria was better. The other thing which can be done is to make them a department of the Federal or State Ministry of Education inorder to even save costs of running such parasatal. When a student is almost graduating or has graduated and you disaccredit the course in his faculty, he cannot even graduate or use his certificate either within or outside the country. He or she is looked down upon as not having a legal degree but an illegal degree. He or she can also be seen as studying an illegal course in the higher institution. The same thing with other African Countries but the situation is much more disastrous in Nigeria. (8) The law should be amended to strictly comply with Federal Character commission Act in appointment of vice-chancellors, Deputy vice chancellors and other key appointment in several higher institutions. University of Port Harcourt is doing well as far as this issue is concerned but there should be room for improvement. In NDU throughout my stay as a lecturer, my appointment was not even confirmed and it was linked to ethnicity. Our application to UNIPORT till now has not been responded to, even though we put pressure for the establishment of this faculty of law. (9) Of recent three graduates of the University who were mobilized for youth service could not read nor write their names, well, could not answer very simple questions primary 4 -6 would answer, yet they found themselves performing the mandatory NYSC scheme. It was just discovered and NUC is setting up panel of enquiry. We don’t need NUC involvement as they are not police officers. It is recommended that the three (3) students be handed over to police for thorough investigation, the lecturers who marked the students’ scripts should equally be arrested and if found culpable they should be tried immediately in court to serve as determent to others. It is further recommended (10) With regards to discipline of the students, the higher educational institution authorities should know their limits as where such offences includes crimes such as looting, arson, destruction of property and indecent assault, this are offences under criminal laws and it is recommended that the institutions should only allow regular courts of law to try.[58] Crimes committed even within the walls of the campuses are crimes against the public at large. No citizen is above the law, students should understand that, where such occurs, he must be taken to a court of law for trial and not merely dealt with by a tribunal. [59] This must be done once the offence or offences is or are grave ones. It is therefore suggested that “suspension of the student” is better than outright “expulsion” without fair hearing or determination of the matter by a court of law, depending on the magnitude of the offence. The supreme court said that it took notice of the catastrophic and destructive incidence of cultism which has spread through the nation universities and colleges and held that the appropriate authority must not hesitate to make an effort temporarily to arrest a perceived evil that is seen rearing its head which if not nipped in the bud, might be destructive[60] (11) It is recommended that all the proprietors of private universities especially in Nigeria should be investigated beginning with Chief OlusegunObasanjo, of Bells University of Technology, Otuogun State, AbubakarAtiku of American University of Nigeria Yola, Adamawa State, Bishop Oyedepo Landmark University, OmuarenKwara State, University, Ota, among others because they ought not to make profit but they are making profits against part C registration under companies and Allied matters Act LFN 2004. Before this 21st Century, we have missionary schools built which are not for profit including individual schools though no private higher institution then. Finally any Higher Educations which do not stand on the four pillars of (1) international outlook of staffs and students (2) quality of research. (3) quality of teaching and (4) Global Graduate employability, should be call” failed higher education and whoever is involved in such are all part of the failures. CONCLUSION The issues affecting higher education in the 21st Century are very important to the whole world but without looking at it from the area of legal issues involved, it will just be like going to the stream/river with a basket without fetching water. There is therefore no doubt that to avoid illegality, to avoid unnecessary litigation and to move our higher education to world class standard, important areas of the Law and policies must be identified, improved upon and must be known to education administrators without necessarily being Lawyers or judges. A Paper Presentation By Prof. Amuda-Kannike Abiodun (SAN) at the National Conference on Higher Education Studies (NACHOES) Faculty of Education, Institute of Education, University of Port Harcourt, Held At Ebitimi Banigo Auditorium, University of Port Harcourt, Rivers State Of Nigeria on Wednesday 13th Day Of June, 2018]]>