X (Unnamed Person) v. University of Ibadan & Ors
When I came across the case of ‘Kunle v. University of Port Harcourt (Uniport), a case instituted by one Adekunle against the disciplinary action taken by Uniport, I knew immediately that the Adekunle wasn’t ‘Kunle Adebajo for three reasons.
First, ‘Kunle never had a stint at Uniport; secondly, ‘Kunle isn’t a controversial lad whose matter always floods court gate; thirdly, the case was before the Nigerian Court of Appeal in 1991, long before ‘Kunle Adebajo was begotten.
Ipso facto, I have decided to use X (Unnamed Person) to conceal ‘Kunle’s identity in the title of this article in accordance with the practice of enshrouding young people’s name whenever they are a party before the court. Such is the youngness of ‘Kunle.
Subjectively, I have the moral duty to protect the interest of my amiable friend, ‘Kunle Adebajo. Those who know me can testify to the relationship I share with this brilliant prodigy. Simultaneously, I have the immaculate obligation to defend the University of Ibadan, my alma mater.
This is a university whose flag I have had the privilege of carrying both nationally and internationally under the current distinguished Vice – Chancellor, Professor Idowu Olayinka. Hence, my legal opinion on the rustication of a friend by my alma mater will be given objectively.
Having read the critique of different people on ‘Kunle’s rustication, I espied that most, if not all, have approached the verdict from a moral perspective. The legal perspective, eluded, perhaps due to the resultant accident and insult the verdict seems to provoke on intelligence.
However, with alacrity, I must clarify that, a thing may be gross, shameful, intimidating or unlikable, yet it is not illegal. A case that readily comes to the mind of a jurisprudential enthusiast is R v. Akanni, where the accused stood and did nothing while an old woman died in a house which had been gutted by fire.
The Supreme Court said that the accused’s conduct, though ‘disgraceful’, was not illegal. Ergo, because the decision to rusticate ´Kunle is unlikable does not make it illegal; for if it is legal, the outcry of people may well turn out to be vanitas vanitatum.
Powers of the University to discipline its students
Without sentiment and prejudice to the powers of a university, a university does have astronomic powers to discipline its students. In all universities established by law, one of the cardinal functions of the university is to train students in both character and learning; and good character is very decisive in awarding degrees and diplomas.
In fact, and in law, any student blemished in character can be denied their degree. In Asein v. University of Ibadan, the apex court reiterated the powers a university wields in disciplining its students before awarding degrees. In most universities, the power to ultimately discipline students lies with the Vice – Chancellor.
In the case of the University of Ibadan, a perusal of the Act establishing the university, together with the writings of notable Professors, such as Professor J. D. Ojo, reveals that the Students’ Disciplinary Committee (SDC) acts in a mere advisory capacity.
The establishment of the SDC by the Senate of the University of Ibadan does not in any way prejudice the exercise of the power by the Vice – Chancellor to discipline any student. In Olori Magage v. University of Benin, the court had shown that the Vice – Chancellor has the power to rusticate, suspend or expel any student if it appears to him that such student is guilty of misconduct.
With the verdict of rustication for two semesters, it seems it has appeared to the Vice – Chancellor that ‘Kunle’s article titled: “UI: The Irony of Fashionable Rooftops and Awful Interior” is defamatory, contrary to the Matriculation Oath he took not to bring the name of the university into disrepute.
Does it mean the phrase, if it appears to the Vice – Chancellor is a blank cheque that may be used in any manner that pleases him, or to put it wrongly, that pleases the SDC?
The charge against ‘Kunle and the law
Noteworthy, I was the Honourable Speaker of Kenneth Mellanby Hall when the whole puzzle began, and by that virtue, I have had a track on the development of the case.
I personally saw the charge, (though quoting from memory, I believe I am quoting correctly), it read to the effect that he had done something to bring the name of the university into disrepute. Meaning, he had defamed the university.
If there were an area of law I rate myself 100%, it would be law of defamation.
The position of the law is clear as it was stated in Capital & Counties Bank v. Henty that a publication is defamatory if, under the circumstances in which it was published, reasonable man to whom the publication was made would be likely to understand it in a libellous sense.
One may be cajoled to think a reasonable man is that professor who has mastered Charles Lyell on Principles of Geology or a young lad who has won awards in writing. No. This is not the test of who a reasonable man is.
In Sim v. Sketch, a reasonable man was interpreted to mean – ‘the right thinking members of the society generally’; i.e., not the cynical or hasty but the right- minded persons, who are neither extremely suspicious nor extremely naïve.
Kayode Eso JSC, of blessed memory, in Adigun v. A. G Oyo State even offered a simplistic definition of a reasonable man. Hear him:
A reasonable person here may be a pleasant housewife shopping for meal in Sandgrouse… he may be the ordinary worker in the Kano Native City living on his ‘Tuwo’… or she is the plain woman in Okrika dress
Therefore, the pertinent question is if, a woman in Okrika dress, read the said article, would she have regarded it as defamatory or just a fair comment, made perfectly in line with the right to freedom of expression constitutionally guaranteed under section 39?
In our opinion, having read the article more than a dozen time, the said article does not in any way amount to defamation of the premier university. Rather, it is the act of rusticating ‘Kunle that has the effect of defaming the university.
Although the Vice – Chancellor can, or together with the SDC, rusticate any student, if it appears to him, the Court of Appeal in ‘Kunle v. University of Port Harcourt, held that though there is an element of discretion, the power must be used in good faith, or to use the words of the court, ‘obey the elementary rules of fairness’. In my opinion, the verdict did not obey rules of fairness to a young lad who has advanced the name of the university on many occasions.
Legal remedies for ‘Kunle under the law
At this stage, no legal remedy is available. The case of Olajobi & 2 Ors v. Vice – Chancellor, University of Ife & Anor has revealed that a student must exhaust the university machinery before he can appeal to a court for redress. Hence, ‘Kunle needs to exhaust internal remedy, which is appealing to the Council.
In fact, the Supreme Court in Olajobi Case (supra) per Obaseki JSC, maintained that the court could not and would not usurp the functions of the Senate, the Council and the Visitor of the University in the selection of their fit and proper persons for passing and for the award of certificates, degrees and diplomas.
Only if, in the process of performing their functions under the law, the civil rights of any student is breached, denied or abridged could the matter become justiciable under the Nigerian Constitution.
As it has seemed that ‘Kunle’s right to freedom of expression enshrined in the constitution has been breached, he can apply to the court for an order of certiorari, which is usually used to quash decisions which appear to be ‘bad’ on the face of it.
In R v. Patents Appeal Tribunal, Goddard LCJ said certiorari will lie, if a tribunal gives a decision which the court conceives to be bad on the face of the decision.
May I point out that the court will have to be convinced, just like most critics, that the verdict is not just unreasonable, but wednesbury unreasonable – a term which denotes that the decision must have been so unreasonable, for the court to leave unchanged. This is, of course, after a decision has been given by the Council.
My pen is a lady justice, blindfolded, yet objectively as its watchword. The Vice – Chancellor is an extremely reasonable man and acts in loco parentis for his students.
Twice, the University of Ibadan, under the leadership of Professor Idowu Olayinka, has been supportive in my representation of the university at international competitions.
Professor Olayinka would even go to the length of sending me text messages to wish us luck. Such is his love for excellence. However, ‘Kunle’s case represents an unfortunate turn of event.
Mr Vice – Chancellor has unfettered power in disciplinary matters. All disciplinary matters, even if they did not emanate from him, end with him. He has the power of hire and fire, though, with a corresponding duty of exercising it bona fide. Prof., in your magnanimity, review the decision of the SDC.