This open legal opinion gratis is offered to Professor Ben Ayade both as Governor of Cross River State and visitor to Cross River University of Technology herein called CRUTECH.
CRUTECH was established pursuant to Cross River University of Technology Law, Cap C19 LCRS 2004. It is on record that the following have been Vice Chancellors over the years:
1. Prof. Kelvin Etta
2. Prof. Eka Ikpi Braide
3. Prof. Eno-Obong and lately
4. Prof. Anthony Owan Enoh
Though by Section 1(3) of establishment law, CRUTECH is wholly owned by the State Government, by Section 1(2) CRUTECH is a corporate body with perpetual succession with a common seal.
The functions of the University and that of the principal officers are outlined distinctively in the establishment law and anything done without reference to the law, is ultra vires, hence null and void.
The office of the Vice Chancellor and the Council are created by Section 3(1)(b) and (1)(c), whilst that of the visitor is in Section 20 of CRUTECH law.
This free legal opinion is intended to let Governor Ben Ayade know that he has no powers under any Sections of CRUTECH law to single handedly in the exercise of his Executive power as the Governor of Cross River State appoint a Vice Chancellor without going through the mandatorily laid down procedure requiring an advertorial calling for interested persons to apply with the governing council as the arrow head. It is mandatory that, such an advertorial has to be taken within the current term of the about-to-leave Vice Chancellor. The only statutory responsibility of Governor Ben Ayade as the Visitor is only to select one person from a list of 2 or 3 names of applicants whose scores are graded in order of performance. It must be noted that the Visitor has the sole discretion as to who to select to be the Vice Chancellor provided it is from the screened and scored list. It will be illegal for him to go outside the list of names submitted, to do so will amount to an abuse of discretion.
However, recent happenings in CRUTECH tends to negate not only the dreams of the founders of CRUTECH, the extant law but above all, the widely acknowledged good work and high standards already set by the out-gone Vice Chancellor Prof. Anthony Owan-Enoh.
With respect sir, let it be known that by CRUTECH law, the appointment of the Vice Chancellor is for a fixed term of 5years certain. Let it as well be known that, as the Governor of Cross River State and indeed the Visitor to the University, you lack powers to grant a one day extension of stay to a Vice Chancellor who has completed his 5years certain. Any such extension if challenged will certainly be declared ultra vires your powers, therefore null and void.
Though a State University, it is well established and acknowledged that CRUTECH is rated among the reputable Universities in Nigeria and should not be reduced to a glorified secondary school where principals of the school are changed at the wimps and caprices of the powers that be.
It is recently noticed that, perhaps in your capacity as the Governor you unlawfully caused to be publicly announced that the very respected and erudite Professor Ingwu has been appointed the Vice Chancellor in an acting capacity, a position unknown in hierarchy of positions created in the law.
It is settled in our jurisprudence that when a statute makes provisions for particular steps to be taken to consummate an action, the action taken can only be correct and proper when done as prescribed by law.
You are charged to be minded to ask yourself first, as the Visitor whether the fault of not having taken steps before now to cause the machinery for the appointment of a substantive Vice Chancellor to be setup as prescribed by the extant law is due to your own fault or that of the governing council? The gap created by this dereliction of duty cannot be filled by resorting to creating an illegality or resort to self help.
The public today is aware that CRUTECH has been thrown into a state of confusion and one person(s) must take the blame for this malfeasance.
Supposing for purposes of argument, that, an impromptu incident of water shortage or prolonged lights out occurs in CRUTECH now that there is no head or anybody in-charge and the students are charged to action as is it usual with students, who is to blame for any of their actions if it becomes violent?
Let me repeat for the avoidance of doubt that the office of the University Visitor which you hold as the Governor of Cross River State is a creation of statue and where the University is a Federal University, the Visitor is the President of the Federal Republic of Nigeria. The juristic personality of the office of the President/State Governor is different from that of the Visitor, though the President/State Governor as the case may be is different with that of the Visitor as the roles and functions are distinct. The limits of the functions of the Visitor is prescribed holistically in the Establishment Act/Law.
In creating CRUTECH, the Cross River State law makers copied nearly word-for-word the provisions in the Federal Act establishing nearly all Federal Universities in Nigeria. Some of these provisions copied word-for-word by the Cross River State Legislature into the law setting up CRUTECH are:
(a) Section 14 University of Abuja Act establishes the office of the Visitor and Section 13 provides for the powers of the Visitor.
(b) In University of Benin Act, Section 15 repeat (a) above.
(c) In the case of University of Calabar (a) above is repeated word-for-word in Sections 14 and 13 above.
(d) In University of Ibadan, the office of the Visitor is established in Section 9 of the Act with all the duties of the Visitor in the same Section.
(e) In the University of Jos, it is the same as in (a) & (b) above.
(f) The same (a), (b), (c) & (d) above is repeated in Universities of Illorin Act, University of Maiduguri Act, University of Nigeria Act, University of Port Harcourt Act, University of Sokoto Act and University of Uyo Act.
(g) University of Lagos Act has the office and powers of the Visitor in Section 15 and 16 respectively.
The functions of the Visitor be it in a Federal/State University are basically the same and also for the private Universities where its owners(s), sponsor(s), founder is the Visitor.
Over the years, through judicial interpretation, the court including the Supreme Court have taken pains to interpret and also limit the over-zealousness of some Governors Visitor intermeddling in the day to day affairs of the University outside the officially circumscribed jurisdiction. The Visitor, particularly the State Governors are sometimes overwhelmed by their Executive Powers to attempt to stray into the arena of the State owned University under the guise of they being the Executive Governor of the State.
Thus, the court of Appeal warned sternly that, though the offices of the Head of State (President/Governor) and that of the Visitor are fused and vested in one person when acting as a University Visitor, he must act in accordance with the restricted powers allocated to him by the enabling statute creating the University. The Visitor cannot exceed the limits of the officially allocated powers. Thus, a Visitor must act upon reliance on a Visitation panel report conducted at least once in every 5 years. The University Visitor cannot act arbitrarily. The University being the citadel of learning the world over, it enjoys some measure of immunity and removed from undue Executive interference by the government even though it is programmed towards the needs and policies of government.
Thus, the intermeddlesomesness of the Visitor during the military days when it was thought that under a Decree, the Head of State or military Governor could do whatsoever pleases his fancy was promptly curtailed by the courts. The courts took bold steps to speak out to restrain the Head of State from being deceived by that appellation of the Visitor to jump into the University arena under the guise of being the Visitor to perform the functions he could only perform as Head of State/Governor. Thus, by judicial interpretation, the President of Nigeria or the State Governor though Chief Executives in State Affairs, are precluded and cosigned to his office when it comes to the affairs of the University. The President/Governor cannot order a sacked University staff to be reinstated, or order the transfer of a University staff to the state service, or order a closed down University due to students’ violence/riot to open without passing through due process of the governing council of the University or its management.
Thus, the Supreme Court per Kabribi-whyte JSC, in the most celebrated case of ANYAH Vs IYAYI (1988) 3 NWLR (pt. 82) 359, espoused the law with clarity that “the powers of the Head of State by extension or analogy (State Governor too) are distinct and separate from those of a Visitor and that where statue confers specific or special powers to any person or authority for the performance of certain acts, it is only that person or authority and no other that is contemplated in the performance of the duties under the law. Thus, a Minister of Education/Commissioner or a Permanent Secretary in a government department cannot issue a directive to be obeyed in the University. Universities are run by the governing councils and the management not by directives of government officials. The decision making organ of the University is by management with the Vice-Chancellor as Head of the management team. The University System abhors undue interference from external forces including the President/Governor”.
A simple and ordinary interpretation of the postulation above is that, neither President or Governor acting as a Visitor to the University can stay in the comfort of his office as Chief Executive, President/Governor and in that capacity make a pronouncement which he can only make when he is acting as President or Governor. Any such pronouncement will be null and void abinito and without capacity.
This judicial logic was re-enacted in the case of PROF. NDILI Vs AKINSUMMANDE (2000) FWLR (pt.5) 750 where MR AKINSUMMADE, Permanent Secretary in the Federal Ministry of Education was instructed by the President to sign a letter affecting the dismissal of Professor Ndili, the Supreme Court annulled same in the compelling logic of AKANBI JCA, in an unreported decision in case NO. CA/1/M.140/88, UNIVERSITY OF IBADAN Vs. EKUNDAYO, delivered on 5th June, 1989, this point was repeated with emphasis.
For instance, there was a time, payments by CRUTECH for the running of the school was illegally subjected to the scrutiny and approval of the Commissioner for Education in Cross River State upon the illegal directives of Governor Ben Ayade.
Thus, in the celebrated case of GARBA & ORS VS. UNIVERSITY OF MAIDUGURI (1981) 10 Law Quarterly Review 610 to resolve the ferociously argued legal tantrums by Late. Chief Rotimi Williams SAN and the foremost Human Activist, Late Chief Gani Fawehinmi. The aspect of the legal points in issue squarely touched on the actions of the Visitor to the Federal University of Maiduguri. OTUTU OBASEKI JSC in the lead judgment of the Supreme Court opined thus:
“But a more-up to –date study of the powers of the Visitor and his exclusive jurisdiction will be found in an article by Dr. Peter Smith in the 1981 October issue of the Law Quarterly Review p.610 a study which Lord. Hailsahm of Marylebone L.C. termed as exhaustive and up to date” (See CASSON VS. UNIVERSITY OF ASTON in Birmingham (1983) 1 ALL E.R, a case which came before the learned Lord. Chancellor in his capacity as Visitor).In that article, after a careful study, Dr. Smith made the following important pronouncements- important to his case because Chief Williams then is that, the students has a contract with the University,’’ Thus, in a more recent unreported judgment of the National Industrial Court, Calabar Division in suit between ENGR. JULIUS UGUMA VS. CROSS RIVER UNIVERSITY OF TECHNOLOGY & ORS delivered by Agbakogba J. The Court held that CRUTECH has a separate legal personality different from the Cross River State Government, hence, the Head-of –State Civil Service upon the directive of Governor Donald Duke cannot transfer recruited staff into the state main civil service. It is important to emphasize the point that, though the Head of Service acted under the report of a joint panel, it was specifically however not a report of a Visitation panel set up by Governor Donald Duke in his capacity as the Visitor but was an Executive act. Even if it were, by the authority of Professor Ndili and Iyayi’s case Supra this still would have been ineffective in so far as the Head of the State Civil Service was not a representative of the University but of the State Government that reached the decision in the exercise of his Executive powers as the Governor of Cross River State.
Experience has shown that since democracy came into force and with the State Governors called Executive Governors, the areas of conflicts and frictions arising from patient misunderstandings of their roles as Visitor to the State University with the authorities of the University has been on the increase. There appear to be a lack of proper understanding of the legal distinction to limit the meddlesomeness of the Governors in the affairs of State owned Universities. This aspect of the friction and conflicts is no longer a reoccurring decimal in Federal Universities perhaps due to the many cases where the Courts have pronounced on the matter against the FGN. This is where the Constitutional Role of the State Attorney General as the State Chief Law Officer in Section 195(1) is instructive with a view to guide the State Governors in defining the limits of their roles as University Visitors. The Universities shall remain the citadel of learning and must not be interfered with by overzealous State Governors who more often than not are influenced by political considerations.
Governor Ayade has to be properly guided whilst requesting CRUTECH governing council to be abreast with its responsibility to belatedly place an advertorial calling on potential applicants to vie for the position of Vice Chancellor of CRUTECH.
It will not be out of place if Gov. Ben Ayade apologizes to Prof. Ingwu for the embarrassment caused him by reason of the lawful announcement that he has been appointed the Vice Chancellor of CRUTECH howbeit illegally.
ANY REMEDY?
Since there can be no vacuum in an institution as acknowledged and dignified University in Nigeria, the doctrine of necessity could be resorted to, to temporarily fill the vacuum by calling on the Chairman of the Committee of Deans in CRUTECH to hold forth until the proper thing is done, though he may not have the instrument of authority to operate the finances of the University.
This is a very sad and avoidable scenario.
Chief Utum Eteng, a private legal practitioner and public affairs analyst writes in from Calabar.
09050032600, 08034008723
utumeteng2015@gmail.com
NOTE: Opinions expressed in this article are strictly attributable to the author, Utum Eteng, and do not represent the opinion of CrossRiverWatch or any other organization the author works for/with.
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