Dr. Basil Ukaegbu V. Attorney-general Of Imo State (1983)
LawGlobal-Hub Lead Judgment Report
IDIGBE, J.S.C.
This matter comes before this Court as a reference by the Federal Court of Appeal (Mamman Nasir P., Phil-Ebosie, Aseme, Alfa Belgore and Olatawura JJ.C.A.) holden at Enugu-hereinafter referred to simply as “the Court of Appeal”-under section 259 (3) of the 1979 Constitution of the Federal Republic of Nigeria (hereafter referred to simply as “the 1979 Constitution”) whereby this Court is asked to give its opinion on the following questions:
“(1) Is it correct to construe Item L of the Concurrent Legislative List contained in the Constitution of the Federation as implying that no private agency or individual can establish a University except by invoking the legislative powers of the National or State Assembly (sic) to establish the same
(2) If the first question is answered in the negative, has a private individual or agency the right to establish a University, or a secondary school or post primary institution by reasons of the provisions of sections 16 and 36 of the Constitution
(3) Is section 5 of the Joint Admissions and Matriculation Board Act void for inconsistency with sections 36 and 41 of the Constitution of 1979
(4) Are sections 34 and 35 of the Education Law of Imo State (No.1 of 1980) void for inconsistency with sections 36 and 41 of the Constitution”
It should be pointed out straightaway that in the foregoing questions submitted to this Court for its opinion the expressions “the Constitution of the Federation” and “the Constitution” and “the Constitution of 1979” refer to 1979 “Constitution of the Federal Republic of Nigeria” to which hereafter reference will be made simply as the “1979 Constitution”.
The proceedings which gave rise to the foregoing questions arose in this way: The respondent in the Court of Appeal (hereinafter referred to simply as “the plaintiff’) alleges that the appellant in that Court (hereinafter referred to simply as “the defendant”) was prior to the institution of these proceedings working towards establishing a private school or institution named the Imo Technical University, Imerienwe (hereinafter referred to as the “Imerienwe University”); and the defendant admits this allegation.
It is common ground between the parties to these proceedings that some buildings were prior to this suit being erected at the site of the Imerienwe University; and that the defendant has already put out several advertisements in the daily newspapers calling for prospective students to apply for admission into the said university. It is also common ground between the parties that on or abut the 14th March, 1981, the defendant caused necessary entrance examinations for prospective students of the said Imerienwe University to be conducted; and that pursuant to the said examinations arrangements were being made for an initial intake of about five hundred students.
The defendant admits that on 1st April 1981, he enrolled a number of successful students into the School of Basic Studies (Post-secondary and higher institution of learning which, although below the standard of a university, forms part of the said Imerienwe University). The defendant admits that he neither sought nor obtained approval of the Federal Government of Nigeria or of the Government of Imo State for the establishment of the Imerienwe University. Both parties admit that neither the National Assembly nor the Imo State House of Assembly has passed any law establishing the Imerienwe University; and it is also admitted by the defendant that he (the defendant) neither applied for, nor obtained the permission of the Imo State Commissioner for Education before embarking on the establishment of the said university which also comprises a section thereof known as the School of Basic Studies of the said University. Finally, it is common ground between the parties that the Imerienwe University is to be financed entirely from non-governmental sources.
In March, 1981, the plaintiff commenced the present suit in the High Court of Imo State claiming inter alia a number of declaratory reliefs and injunctions; but those of them which are material and relevant to the questions in this reference are as follows:
“(1) A declaration that the Imo Technical University Imerienwe being established by the defendant is an illegal school or institution
(2) A declaration that the defendant cannot legally establish a private School or institution without the written approval of the Commissioner for Education, Imo State
(3) A declaration that it is illegal for the defendant or anybody to establish an institution for the purposes of a University in Imo State without the National Assembly or Imo State House of Assembly making laws with respect to the establishment of such institution for purposes of a University.
(4) xx xx xx xx
(5) xx xx xx xx
(6) xx xx xx xx
(7) An injunction restraining the defendant, his servants and agents from admitting students or organising classes in the said Imo Technical University Imerienwe.”
In a judgment of the 8th day of May, 1981, the High Court of Imo State (Oputa C.J. Imo State) granted inter alia the following reliefs:
“(1) A declaration that the Imo Technical University Imerienwe being established by the defendant is an illegal school or institution.
(2) A declaration that the Imo Technical University when and where it means the School of Basic Studies is illegal as the defendant cannot establish such a school without the written approval of the Commissioner for Education Imo State.
(3) It is also declared that it is illegal for the defendant to establish an institution for purposes of a university in Imo State without the National Assembly making laws with respect to the establishment of such an institution for purposes of a university.
(4) It is hereby declared that whether the defendant is building a post-primary institution like the School of Basic Studies or a University properly so call he has to consult the Imo State Government in order that the State should have a balanced and coordinated educational development.
(5) The court hereby issues an injunction restraining the defendant his servants and agents from admitting students or organising classes in the School of Basic Studies branch of the Imo Technical University, Imerienwe.”
From the foregoing decision the, plaintiff appealed to the Court of Appeal; and arguments having been separately advanced in that Court by learned counsel for the parties, the Court was of the opinion that substantial questions of law have been raised before it; and learned counsel having asked that those questions be referred to this Court, their lordships of the Court of Appeal have by this reference called for the opinion and answers of this Court in respect of those questions I earlier set out in this judgment. In the course of its formal reference to this Court under section 259(3) of the 1979 Constitution, Nasir P. made the following observations (in which Phil-Ebosie, Aseme, Alfa Belgore and Olatawura JJ.C.A. concurred):
“We do however agree that the facts [in this case] have raised important issues as to the right of individuals to establish private universities with or without any form of governmental approval. In particular, in view of the decision of this Court in Archbishop Okogie’s case [i.e. Archbishop Okogie vs. Attorney-General for Lagos State (1981) 2 N.C.L.R. 337] we consider it of considerable importance to have the opinion of the Supreme Court in respect of the provisions of Item L in the Concurrent Legislative List [i.e. of the 1979 Constitution], which gives power to both the National Assembly and a State Assembly to establish universities.
It is also of considerable importance to have the opinion of the Supreme Court in respect of the proper interpretation of the fundamental right under section 36 of the Constitution. Does this fundamental right extend to the establishment of a University In Archbishop Okogie’s case this court decided that the establishment of an educational institution-secondary and other post-primary schools-was an economic activity under section 16 of the Constitution which a private person has a right to pursue subject to governmental control by legislation in order to ensure standard, health and other social requirements in respect of public welfare.”
Much later in this formal reference the Court of Appeal, apparently as a result of the contentions and submissions in respect of the seventh ground of the appeal before it, observed:
“This sub-section [i.e. 41(1) of the 1979 Constitution] would seem to (BB) ensure that the State has power to protect public rights and rights of other persons. It is also, in our opinion, wide enough to cover legislations limiting the fundamental right of expression and of holding opinions if such expression or opinion will be harmful to the welfare of the society or any section thereof. It seems to us also reasonable for the State to regulate and control standard of education in the country and also to ensure that minimum standard of public health, public safety, public order and public morality are maintained in all institutions. In other words the State has a duty to set standard in education.”
Now, it seems pretty clear to me that in this latter quotation, against the margin of which I have endorsed in capitals the letters “BB”, the Court of Appeal in effect was almost giving its opinion or answer on one of the questions it has referred to this Court for its opinion and/or answer. In the lead judgment of this Court in Senator Abraham Adesanya v. President Federal Republic of Nigeria and another (1981) 2 N.C.L.R. 358 at 369 to 370 his Lordship, Williams-Williams C.J.N. in giving his interpretation and understanding of section 259(3) of the 1979 Constitution when read together with Order 6 rules 1 and 3 of the Supreme Court Rules 1977-an interpretation in which the other justices (Sowemimo, Bello, Obaseki, Nnamani, Uwais and I) concurred, made the following observations which, in my view, repay quotation:-
“It cannot be disputed that what can be referred to the Supreme Court for a decision under section 259(3) of the Constitution is:-
any question as to the interpretation or application of the Constitution, which involves a substantial question of law.
A decision already made by the Federal Court of Appeal cannot be referred to the Supreme Court for another decision under that section. Once a decision ‘on the substantial question of law’ is given by the Federal Court of Appeal, the only way to obtain a review of that decision is by way of appeal to the Supreme Court-
A close scrutiny of the provisions of rule 1 [of Order 6] together with the format and wording of Form 10-referred to therein show that it is the ‘question of law’ and not the answer given to such a question that is being referred by the lower court to the Supreme Court for determination. Admittedly the provisions of rule 3 could have been better drafted with clarity and precision. Nevertheless, a close look at the said provisions shows that the only finding which a lower court, in the course of stating a case when making a reference to a higher court, can make is one ‘of fact’, not law.
It only remains for me to repeat the above observation of the learned Chief Justice of Nigeria and to request the lower courts to refrain from determining questions of law involved in any reference under section 259 of the 1979 Constitution before having them submitted to the relevant Court, as the case may be, for determination.
I will now consider the questions of law submitted to this Court under section 259(3) aforesaid but before doing so, I consider it desirable to set out the sections of the 1979 Constitution which bear relevance to the questions earlier set out by me; and these are sections 36(1), 36(2), 41(1) (a), 41(1) (b), of the 1979 Constitution, sections 5(1) (a), 5(1) (b), 5(2) of the Joint Admissions and Matriculation Board Act, No.2 of 1978 (hereinafter referred to as “the JAMB Act”), sections 34 and 35 of Education Law of Imo State, Law No.10 of 1980 (hereinafter referred to as “the 1980 Education Law”), and paragraphs 27, 28, 29 and 30 of Item L on the Concurrent Legislative List in Part II of the Second Schedule to the 1979 Constitution. I now set out the details of the relevant sections aforesaid:
The 1979 Constitution
“36(1) Every person shall be entitled to freedom of expression including freedom to hold opinions and to receive and impart ideas and information without interference.
36(2) Without prejudice to the generality of sub-section (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions.
Provided that no person, other than the government of the Federation or of a State or any other person or body authorised by the President shall be entitled to own, establish or operate a television or wireless broadcasting station for any purpose whatsoever. 41(1) nothing in sections 34, 35, 36, 37 and 38 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society
(a) In the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other persons.”
Joint Admissions & Matriculation Board Act (1978):-
“5(1) notwithstanding the provisions of any other enactment, the Board shall be responsible for the following matters that is to say (a) the general control of the conduct of matriculation examinations for admissions into all Universities in Nigeria;
(b) the appointment of examiners, moderators, invigilators, members of subject panels and committees and other persons with respect to matriculation examinations and any other matter incidental thereto or connected therewith;
5(2) For the avoidance of doubt, the Board shall be responsible for determining matriculation requirements and conducting examinations leading to undergraduate admissions and for admissions to non-degree courses but shall not be responsible for examinations or any other selective process for post-graduate courses.”
Part II of the Second Schedule of the 1979 Constitution:
” Item L
- The National Assembly shall have power to make laws for the Federation or any part thereof with respect to university education, the National Assembly may from time to time designate technological education or such professional education as may from time to time be designated by the National Assembly
- The power conferred on the National Assembly under paragraph 27 of this item shall include power to establish an institution for the purpose of university, post-primary, technological or professional education.
- Subject as herein provided a House of Assembly shall have power to make laws for the State with respect to the establishment of an institution for purposes of a university, professional or technical education.
- Nothing in the foregoing paragraphs of this item shall be construed so as to limit the powers of a House of Assembly to make laws for the State with respect to technical, vocational, post-primary, primary or other forms of education, including the establishment of institutions for the pursuit of such education.”
EDUCATION LAW of Imo State, No. 10 of 1980:
“34(1) The Commissioner, after consultation with the Imo State Education Board, may be regulations make provisions for-
(a) the curricula for schools
(b) the certificates to be awarded to pupils in any school and the examinations for such certificate.
(2) xx xx xx xx
35(1) The Commissioner may from time to time establish new schools or institutions, which shall be State schools.
(2) Private schools or institutions may be established with the written approval of the Commissioner.
(3) No new school or institution shall be approved by the Commissioner which is not of a type specified in the First Schedule to this Law.”
In this Court considerable argument was advanced by learned counsel on both sides on the meaning and effect of the various statutory and constitutional provisions set out in the immediately foregoing paragraphs. As regards section 36 of the Constitution, Chief F.R.A. Williams, learned counsel for the defendant, submits that under the section every member of this community has a right, without reference to the Government or anyone else, to establish an institution for purposes or primary, post primary and university education. The right to “freedom of speech” under section 36 aforesaid, learned counsel submits, includes the rights “to communicate or impart ideas” to other members of the community at an institution established for that purpose; for this proposition he prays in aid the decision of the Indian Supreme Court in A.I.B.E. Association v. National Industrial Tribunal (1962) A.I.R. (Supreme Court) 171 particularly at 181. He further contends that a law enacted by the appropriate legislature can validly restrict the right of the subject, which is guaranteed under section 36 of the 1979 Constitution only if that law is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health as envisaged in section 41 of the 1979 Constitution.
Chief Williams further submits that by virtue of the provisions in Item L of the Concurrent Legislative List in Part II of the Second Schedule to the 1979 Constitution the National Assembly has power to make a law to control the establishment of a university and the conditions or terms of establishing the same; but unless and until such a law is made any individual or agency can establish a university. In his view neither the National Universities Commission Act No.1 of 1974 nor the Joint Admissions nor Matriculation Board Act No.2 of 1978 qualifies as such law [i.e. a law restricting the right of the subject under section 36 of the 1979 Constitution to establish a university]. It is only but fair to mention, here, that Chief Williams concedes that it is undesirable for universities to spring up like mushrooms in the country without any restriction by Government, but, he submits, that unless and until a law restricting the right of the subject under section 36 aforesaid has been validly passed there is no question that any individual or agency can establish a university without any restriction whatsoever. Chief Williams further contends that in so far as sections 5(1) (a) and (b) and also 5(2) of the JAMB Act seek to control admission and/or intake of students in “non-governmental universities” (i.e. non-government owned universities) those sections offend against section 3 of the 1979 Constitution and must be declared invalid and unconstitutional. As regards section 34 of the 1980 Education Law, Chief Williams submits that in so far as it seeks to regulate the curricula for education in “private-owned” schools that law offends against section 36 and must be regarded as unconstitutional and invalid.
One other aspect of the submission of Chief Williams is that since a law which seeks to restrict the right to freedom of expression under section 36 aforesaid “must by its provisions have some rational connection with the matters-or any of those matters-specified in subsection (1) of section 41 of the 1979 Constitution such a law must not make the enjoyment of the right (it intends to restrict) conditional or contingent on the opinion of an official of the executive arm of Government or an executive agency or authority.” The “restricting law” must impost an objective (not subjective) test in relation to the matters specified under section 41 (1) of the said Constitution (i.e. the 1979 Constitution). By way of example, Chief Williams submits that a law, which allows the exercise of the subject’s right under section 36 on condition that a designated official or agency of the executive department is satisfied that such exercise, is in the interest of “public safety or public morality or public health”, is, indeed, invalid and unconstitutional; the reason for its invalidity, according to Chief Williams, is because the restriction imposed by the law on the exercise of the right of the subject under section 36 aforesaid is made contingent on the subjective opinion of an individual – in this case, an official of the Executive or of an agency of the Executive. This ought not to be the position since it is the Court, not an individual or an agency of the Executive that should decide that the right of the subject under section 36 aforesaid has been rightly or properly exercised. For this proposition, learned counsel relies on the decision in Staub v. Baxley 2 U.S. L-ed (second series) 302 at 310 and Shuttlesworth v. Birmingham 22 U.S. L-ed (second series) 162 at 167. Therefore, on the basis of the foregoing submissions, and by virtue of section 34(1)(a) of the 1980 Education Law as well as sections 35(2) and 35(3) thereof-which sections ought to be read in conjunction with sections 32(3)(c) 37 and 42(1) thereof which invest the Imo State Commissioner for Education and the State Board of Education with considerable latitude and discretion-the exercise by the subject of his right under section 36 aforesaid has been made contingent on the approval of some official or agency of the Executive arm of Government; and in these circumstances, sections 34 and 35 of the 1980 Education Law must be regarded as invalid and unconstitutional.
The argument and submissions thereon urged on behalf of the Attorney General for Imo State, with all respect to learned counsel appearing on his behalf, appear to me to be. beside the point, if not altogether misconceived. In a nutshell the principal part of the argument is that “if section 36(2) is construed to mean that the appellant (i.e. the plaintiff) can establish a university without a law of (the) National Assembly, it thereby means that either the legislative power of the Assembly is usurped by the appellant or the appellant could establish a university without the Legislature exercising its power to make laws in respect of that university.” “In that case”, learned counsel for the Attorney General submits, “the act of the appellant would be unconstitutional and void.” It was further submitted on behalf of the Attorney General but “the Constitution does not (sic) contemplate a situation wherein a law of the National Assembly should be enacted as an enabling law for the establishment of universities. This construction, if adopted, would contradict the clear meaning of Item L paragraph 27 and 28 of the Concurrent Legislative List of the Constitution.” “The Constitution”, he further contended “did require every university to be established by law. All universities before and after the 1979 Constitution came into force have been established by an Act of the National Assembly or by a law of (a) State Assembly.” The sum of the foregoing submission is that although the private individual has a right to establish a university he cannot do so unless and until a law of the National Assembly or State House of Assembly enabling him to do so has in fact been passed.
As regards the contention of the defendant in regard to section 34 of the 1980 Education Law, the submission on behalf of the Attorney General is that section 34 of that law invests the Commissioner for Education in Imo State with the power to make regulations; “such power in itself cannot, without more, be said to curtail the right of the defendant under section 36 of the Constitution. Nor can the regulations not yet made be said to curtail or infringe the rights of the appellant under section 36 of the Constitution.” Yet again, it appears to me-with every great respect to learned counsel on behalf of the Attorney-General-that his argument and submissions do not in any way constitute an answer to the main thrust of the submissions on behalf of the defendant in this regard.
I consider it necessary at this stage, however, to make some reference to the views of the learned trial Chief Judge on these issues, which culminated in the appeal proceedings in the Court of Appeal. The learned trial Chief Judge was of the view that a private university must be incorporated; and a private individual or agency that desires to establish a university ought to have a private members bill for this purpose initiated in the National Assembly or State House of Assembly. Part of his judgment reads:
“-But common sense apart, section 4(4)(a) and Item L paragraphs 27 and 28 of the Second Schedule to the Constitution-conferred on the National Assembly the ‘power to establish an institution for the purposes of a university.’ Why did the defendant not invoke the aid of the National Assembly
I do not share the view that anybody may wake up any morning and establish a university without consultation with the State or Federal Government; without incorporation and without an establishing law.”
The learned trial Chief Judge then continued later in his judgment:
“The National Assembly has power under section 4(4)(a) and Item L paragraph 27 and 28 of the Second Schedule-to make laws for the Federation or any part thereof: ‘with respect to university education’ that is to say, policy on university education. The National Assembly by virtue of section 274(1) (a) of the 1979 Constitution has in fact made two of such laws]. These are the National Universities Commission Act. No.1 of 1974 and the Joint Admissions and Matriculation Board Act. No.2 of 1978. It will be unlawful for the defendant to establish the Imo Technical University without complying with the relevant provisions of these two laws.”
Further down in the judgment of the High Court, the learned trial Chief Judge dealing with the 1980 Education Law observed:
“Is the defendant required by law to obtain the written approval of the Commissioner for Education Imo State, before he can lawfully establish a private school or institution in that State
Answer: The answer is yes. Section 2 of the Imo State Education Law No. 10 of 1980 explicitly excludes a university, but it includes a private school or institution. Section 35(2) of the self same law, No. 10 of 1980, obliges the defendant to seek and obtain the written approval of the Commissioner for Education before establishing a private school.”
Finally, the learned trial Chief Judge held that the sections aforesaid [i.e. sections 2 and 35 of the 1980 Education Law] are “valid and constitutional, in so far as they require the defendant to obtain the written approval of the Commissioner of Education aforesaid.”
Having examined in detail in the foregoing paragraphs the background to the questions submitted to this Court under reference, I will now proceed to formulate the basis for my answers to the questions in the said reference. It is my view that paragraph 27 of Item L of the Concurrent Legislative List in the Second Schedule to the 1979 Constitution invests the National Assembly with powers to make laws for the Federation or any part thereof with respect to “university education, technological education or such professional education as may from time to time be designated by the National Assembly”; and paragraph 28 of Item L aforesaid invests the National Assembly with powers to establish institutions for the purposes of “university, post-primary, technological or professional education”. It should be pointed out straightaway that the powers of the National Assembly under paragraph 28 aforesaid do not appear to include that of establishing an institution for purposes of primary education.
It is my view that paragraph 29 of Item L of the Concurrent Legislative List in the Second Schedule aforesaid, invests a State House of Assembly with powers to make laws for the State with respect to the establishment of institutions for the purposes of university, professional or technical education; and paragraph 30 of Item L aforesaid invests a State House of Assembly with powers not only to regulate education, within the State in vocational technical, post-primary and primary schools and institutions, but also of establishing such institutions within the State.
Put tersely, the combined effect of paragraphs 27, 28, 29 and 30 of item L of the Concurrent Legislative List in Part II of the Second Schedule to the 1979 Constitution comes to this: Both the National Assembly and a State House of Assembly have powers each to make laws for the establishment of a university; the former can make a law for the establishment of a Federal University [paragraph 28 refers], and the latter can make a law for the establishment of a State University [paragraph 29 refers]. (2) Only the National Assembly has power to make laws for the regulation of university education throughout the Federation; and (3) Only the National Assembly has power to make laws for the regulation of technological education or such professional education in Federal education institutions [paragraphs 27 and 30 read together, refer]; (4) A State House of Assembly has powers to make laws for the regulation of technical, vocational, post primary and primary education [but NOT for university education, even in a State University] in State educational institutions.
[Paragraphs 29 and 30 refer]; nor has it any such power in respect of education in technological institutions [paragraphs 27 and 30 read together, refer].
Section 36 of the 1979 Constitution: By virtue of subsections (1) and (2) of section 36 every subject of this Federation has a right to establish an institution “for the dissemination of information, ideas and opinions”; and for this purpose any individual or private agency may establish a university, post-primary as well as primary schools. For the moment I will focus attention on the first of the three institutions i.e. the University. The right of the subject to establish a university is guaranteed by the Constitution under section 36 aforesaid. No law can by its provisions validly take away this right unless it can be justified under section 41 of the 1979 Constitution. It is undoubtedly undesirable that there should be indiscriminate establishment of universities within the Federation; and it is to guard against such a situation that the framers of our 1979 Constitution considered it fit to introduce paragraph 27 in Item L of the Concurrent Legislative List in the Second Schedule to the 1979 Constitution (hereinafter referred to simply as “Item L of the Current Constitution”). It is envisaged that by virtue of such laws as can be made under the said paragraph 27, the establishment of universities can be regulated and brought in check; further, it will then be possible to set a uniform standard for universities in the Federation. Under paragraph 27 aforesaid, it is possible for the National Assembly to regulate education in all universities in the country irrespective of their origin i.e. whether they were established by the Federal or State Governments or by private individuals. But paragraph 27 in Item L of the current Constitution is an enabling provision; it is not self-executing. Therefore, unless the National Assembly in exercise of its powers under the said paragraph (i.e. 27 aforesaid) passes a law to regulate indiscriminate establishment of universities, the private citizen’s right under section 36 of the 1979 Constitution to establish a university remains completely or absolutely uninhibited; and even then, if and when the National Assembly passes any law which is intended to restrict the right of the citizen under section 36 aforesaid, such law can validly operate only if it can be justified under the provisions of section 41 (1) of the 1979 Constitution. The question, which naturally arises, is, whether the National Assembly has passed any such “restrictive law”
The learned trial Chief Judge and, to some extent, the plaintiff each seem to think that the National Assembly has, indeed, passed such a law; in their respective views, both the National Universities Commission Act, No.1 of 1974 (hereinafter referred to simply as “the National Universities Act”) and the JAMB Act No.2 of 1978 jointly and severally stand in for such “restrictive law”.
But is this a correct appraisal of these laws Can it be said that either of these laws truly restricts the right of the subject under section 36 of the 1979 Constitution to establish a university I do not think so. Neither the National Universities Act nor the JAMB Act has any provision which can legitimately limit or restrict the right of the private individual to establish a university; section 4 of the National Universities Act deals with the functions of the National Universities Commission and none of the subparagraphs of that section can be construed to have any such inhibitory or restrictive effect. Section 5 of the JAMB Act deals with the functions of the Joint Admissions and Matriculations Board; and it is conceded that some of its provisions are relevant to the regulation of the standard of education in “all universities in Nigeria”. For instance by virtue of sections 5(1)(a) and 5(1)(b) of the JAMB Act aforesaid, the Joint Admissions and Matriculations Board has the right of general control of the conduct of matriculation examinations for admissions into all universities (whether Government or State-owned, or Private-owned) in Nigeria; and in addition, the Board is invested with the powers of appointing examiners, moderators, invigilators and members of subject panels and committees with respect to such matriculation examinations. Subject thereto, there is nothing in any of the provisions of the JAMB Act, which seeks to inhibit (or actually inhibits) the right of the private individual or private agency to establish a university. I repeat that although the 1979 Constitution provides both the National Assembly and a State House of Assembly with powers of restricting, or otherwise preventing indiscriminate, establishment of universities [see paragraphs 27 and 28 of Item L aforesaid-so far as concerns the National Assembly; and paragraph 29 of Item L aforesaid-so far as concerns a State House of Assembly], neither the National Assembly nor the Imo State House of Assembly has taken advantage of their powers in this regard. In the circumstances, the answer to the first question in this reference must be in the negative.
SECONDARY OR POST-PRIMARY & PRIMARY SCHOOLS
By virtue of the provisions of section 36 of the 1979 Constitution, a private individual or private agency has undoubtedly a right to establish a primary as well as a secondary or post-primary school; but a State House of Assembly has, under the said Constitution, the power not only to regulate education in, but also the establishment of, institutions intended for use as, primary, post-primary schools as well as all vocational and technical schools below the standard of a university [paragraph 30 of Item L of the Current Constitution refers]. The expression “medium for dissemination of information, ideas and opinions” in subsection (2) of section 36 aforesaid must be given a broad interpretation bearing in mind the ordinary dictionary meaning of the word ‘medium’-which is “any intervening means, instrument, or agency” [see Chambers, Twentieth Century Dictionary-Revised Edition 1970 P.661]; thus given a broad interpretation, the phrase in question (i.e. “any medium for the dissemination of information, ideas and opinions”) is bound to include a school and ought not to be limited to the newspaper of ‘mass media’. I have carefully considered sections 16 and 18 of the 1979 Constitution and I can find nothing in the provisions of either or both sections which in any way derogates from the right of the subject under section 36 aforesaid to establish and own primary, post-primary or secondary schools. Undoubted1y, the establishment and running of primary and post-primary schools if undertaken by a subject of this Federation would be an “economic activity” under section 16 of the 1979 Constitution. In my view, section 16 directs the State to participate in all the major and other sectors of the economy but the same section, without any doubt, also allows the subject or the private citizen to participate in all sectors of the economy which the National Assembly has not yet declared to be “major sectors” of the economy; and it seems pretty clear to me that by virtue of the provisions of section 16(4)(a) the running of schools or institutions of education-although an economic activity-was not, on the 1st day of October, 1979, when the current Constitution came into force, an activity within the ‘major sector of the economy’ and certainly has not as yet been so declared. Section 18 aforesaid, in my view, is not intended, and does not in any way, restrict the exercise by the subject of his fundamental right under section 36(2) of the Constitution. In the circumstances, the answer to the second question in this reference must be in the affirmative. The answer is however subject to qualification and I propose to deal with the said qualification in the next paragraph. In doing so, I am bound to take on at the same time the fourth question in this reference.
ARE SECTIONS 34 & 35 OF THE EDUCATION LAW OF IMO STATE (NO.I0 of 1980) VOID FOR INCONSISTENCY WITH SECTION 36 & 41 OF THE CONSTITUTION
The Education Law of Imo State No.10 of 1980 also referred to in this judgment as the 1980 Education Law, as stated thereon, is “a law to streamline the primary and post-primary systems of education and to provide guidelines for pre-primary education and to provide for other matters connected therewith or incidental thereto”. It is a law intended to regulate education in educational institutions lower than a university. The 1980 Education Law sets out conditions for establishment and approval of schools or educational institutions other than universities such as are mentioned in the First Schedule to the said Law; and these are: -primary, post-primary, (or secondary schools), colleges for training of teachers and other post-secondary colleges, and technical institutions other than universities. By section 29 of the said Law, any school in Imo State established and operated otherwise than in accordance with the provisions laid down in the 1980 Education Law “shall be an illegal school”; and by section 30 thereof “the establishment, management or running of any nursery school, evening classes or adult education classes shall be in accordance with regulations made by the Commissioner for that purpose”.
By section 32 of the said Law, it is provided that the Commissioner for Education of Imo State in exercise of his functions under the Law shall recognise and assist educational institutions of the type set out in the First Schedule to that Law; it is further provided that he may after consultation with the Board of Education of the State, by regulations provide for “instructions to be given in schools”, and add to, or delete, or vary any of the particulars contained in the First Schedule, as well as provide for “discipline in the schools” [subsections (1), (2) & 3 of section 32 refer]. It is further provided that the Commissioner for Education after consultation with the Board may by regulation make provisions “for the curricula for schools”, and “the certificates to be awarded to pupils in any schools and the examination for such certificates” [subsections 1(a) and l(b) of section 34 refer]. It is further provided in the said 1980 Education Law that “private schools or institutions may be established with the written approval of the Commissioner” for Education; and that “no new school or institution shall be approved by the Commissioner which is not of the type specified in the First Schedule” to the said Law [sub-sections 2 and 3 of section 35 refer].
It is contended on behalf of the defendant that the 1980 Education Law, as a whole, seeks to derogate from the fundamental right of the subject under section 36 of the 1979 Constitution to establish a school without reference whatsoever to any authority; and that, in any event, the provisions of sections 34 and 35 thereof detract considerably from the said right of the subject. Accordingly, it is submitted that these sections being inconsistent with the provisions of the 1979 Constitution must be regarded as unconstitutional and invalid. Reliance for the foregoing submissions was placed on the cases of Staub v. Baxley (1958) 355 U.S. 313 at 322; also 2 L-ed 302 at 311; and also Shuttlesworth v. City of Birmingham, Alabama (1969) 394 U.S. 147; also 22 L-ed 162 at 167.
These cases deal with the First and Fourteenth Amendments of the Constitution of the United States of America. In Shuttlesworth (supra) it was held that (1) the Ordinance which was in issue in that case was unconstitutional since it subjected the exercise of the First Amendment freedoms for movement and speech to the prior restraint of a licence or permit for such parade and movement “without narrow, objective and definite standards to guide the licensing authority; the basis of the issuance or refusal of parade permits being entirely unrelated to legitimate municipal regulation of the public streets and sidewalks” and (2) “the conviction of the defendant who failed to obtain such a licence or permit was unconstitutional as violating the First Amendment rights of assembly and free speech.” The defendant had been convicted of violating an Ordinance which made it an offence to participate in any parade or public demonstration without having first obtained a permit, or licence from city authorities, the defendant having participated in a civil rights march for which a request for permit or licence had been denied.
The Ordinance authorised the members of the City Commission to refuse a permit if “the public welfare, peace, safety, health, decency, good order, morals or convenience require” that it should be refused [section 1159 of the General Code of the City of Birmingham: italics portion of quotation by me]. The basis of the decision in Rose Staub v. the City of Baxley (Supra) was on this very same principle. It is, in my view, desirable to refer to some of the relevant observations in Staub v. Baxley (Supra), part of the judgment of Whittaker J. in the Supreme Court reads:
“It will be noted that the appellant was not accused of any act against the peace, good order or dignity of the community, nor for any particular thing she said in soliciting employees of the manufacturing company to join the Union. She was simply charged and convicted for ‘soliciting members of an organisation without a permit’. This solicitation as shown by the evidence consisted solely of speaking to those employees in their private homes about joining the Union.
It will also be noted that the permit is not to be issued as a matter of course, but only upon the affirmative action of the Mayor and Council of the City. They are expressly authorised to refuse to grant the permit if they do not approve of the applicant or of the Union or of the Union’s effects upon the general welfare of the citizens of the City of Baxley.
The criteria are without semblance of definitive standards or other controlling guides governing the action of the Mayor and Council in granting or withholding a permit-
It is settled by a long line of recent decisions of this Court that an Ordinance, which like this one, makes the peaceful enjoyment of freedoms contingent upon the uncontrolled will of an official-as by requiring a permit or licence (sic) which may be granted or withheld in the discretion of such official-is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms” [see Staub v. City of Baxley (1958) 355 U.S. 313 at 321-323; also 2 L-ed (First Series) 302 at 311. In Rose Staub (Supra) a labour union organiser was convicted in the Mayor’s Court of the City of Baxley, Georgia of violating a municipal Ordinance which provided that persons seeking to solicit members of any organisation requiring payment of dues should first apply to the mayor and city council for a permit or licence. The Ordinance also authorised the mayor and city council to refuse the grant of such permit if they do not approve of the applicant or the organisation or the organisation’s effect on the general welfare of the city. The Superior Court, Appling County, Georgia, affirmed the conviction as against the organiser’s claim that the statute infringed the right of free speech guaranteed by the Fourteenth Amendment of the Constitution of the United States of America. The Court of Appeal of Georgia, Division 2 affirmed the judgment of the Superior Court with certain reservations. However, the United States Supreme Court by a majority judgment reversed the conviction.
Now, the First and Fourteenth Amendments of the Constitution of the United States of America are not in pari materia with sections 36 and 41 of our own Constitution (i.e the 1979 Constitution); indeed, there is no provision in the Constitution of the United States of America (hereafter referred to as “United States Constitution”) similar to section 41 in our own Constitution under consideration. There are also no provisions in the said Constitution similar to the provisions in paragraphs 27, 28, 29 and 30 of Item L in the Current Constitution of Nigeria. The First Amendment of the United States Constitution is quite short, and reads:-
“Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”
[italics by me]; and again, equally short are the provisions of the Fourteenth Amendment of the Constitution of the United States which read:
“All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”
With very great respect to learned counsel for the defendant, I am unable to find any basis for drawing any inspiration from the decision in Staub v. Baxley (Supra) and Shuttlesworth vs Birmingham (Supra), ‘based as they are upon provisions of law (i.e. the United States Constitution) which, in my respectful view, are wholly unrelated to the special and specific provisions of our organic law with which we are concerned in this reference, to wit: the specific provisions of paragraphs 27, 28, 29 and 30 of Item L aforesaid as well as section 41 of the 1979 Constitution.
This Court is called upon in this reference (particularly in regard to the second and fourth questions therein) to interprete the meaning and effect of the provisions of paragraphs 27, 28, 29 and 30 of Item L in Part II of the Second Schedule to the 1979 Constitution generally; and with particular reference to sections 34 and 35 of the 1980 Education Law, this Court is, indeed, called upon to examine closely paragraph 30 of Item L aforesaid, and pronounce on the validity of these sections and their justification on the basis of the provisions of section 41 (1) of the 1979 Constitution. In the words of Earl Loreburn L.C. in the Privy Council in Attorney General for the Province of Ontario & others v. Attorney-General for the Dominion of Canada (1912) A.C. 571 at 583 which I gratefully adopt:
“In the interpretation of a completely self governing Constitution founded upon a written organic instrument-if the is explicit the is conclusive, alike in what it directs and what it forbids.”
We are concerned here with our own Constitution, with its detailed provisions; unlike the Constitution of the United States of America it provides in very great detail for a number of contingencies. While it spells out in lucid terms the fundamental rights of the subject in section 36 it goes on to provide in section 41 thereof the circumstances and conditions under which these rights may be validly abridged. Unlike the Constitution of some other jurisdictions-such as the United States of America-it deliberately failed to follow the pattern which largely has left to the courts the onerous but lonely duty of “fashioning” out, as it were, those circumstances and conditions under which the fundamental rights of the subject to freedom of expression may be abridged; it has relieved the courts, in this country, of the lonely aspect of this duty by providing guidelines in section 41 aforesaid for validly abridging the said rights. In many respects, the 1979 Constitution is unique and it is in the knowledge that it is, indeed, unique that considerable care and originality must be employed whenever the Courts are called upon to interprete its provisions; and in the discharge of this duty the courts ought always to bear in mind the circumstances of our people.
As I said earlier, paragraph 30 of Item L in Part II of the Second Schedule to the said Constitution invests a State House of Assembly with powers to regulate education in institutions below university standard e.g. the primary, post-primary schools and other institutions belonging to that class, such as institutions for technical education [but not for technological or such professional educations. Paragraphs 27 and 30 of Item L aforesaid refer]. In making laws which are intended to carry out the intention of the framers of the Constitution in paragraph 30 of Item L aforesaid, a State House of Assembly must, however, have regard to the provisions of section 41 aforesaid.
That section provides that “nothing in sections 34, 35, 36 and 38 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society-(a) in the interest of defence, public safety, public order, public morality or public health, or (b) for the purposes of protecting the rights and freedoms of other persons.” Every member of this community has a right to adequate, unalloyed and balanced education; a right to receive healthy education; a right to freedom from unsavory and diabolical instructions and techniques; a right to freedom from dissemination of information that could lead to public disorder, or that are publicly morally wrong. A law, which seeks directly to protect these rights or, indirectly to prevent infraction of these rights undoubtedly, will be justified under section 41 (b). In the view of this court where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the court should always lean where the justice of the case so demands to the broader interpretation unless there is something in the con or in the rest of the Constitution to indicate that a narrower interpretation will best carry out its object and purpose. [See Nafiu Rabiu vs. The State (1981) 2 N.C.L.R. 293].
However, although this reference is in respect of the specific questions set out in the early portion of this judgment, the fourth question is, in my view, obviously tied up with a number of sections of the 1980 Education Law other than sections 34 and 35 thereof; 25 and, in particular, with such other sections which relate to the approval by the Commissioner of Education, Imo State of private schools or institutions which come within the ambit of the said Law. Some of these sections, are 32(3) (c), 37 and 38. In the circumstances, I must, therefore, observe in passing that, in my view, the provisions of paragraph (c) of subsection (3) of section 32 of the 1980 Education Law are unconstitutional and invalid. Power to regulate education in the institutions with which the 1980 Education Law is concerned is invested by the 1979 Constitution in the State House of Assembly, and it is only that House which, in my view, should “delete, vary or add to any, of the particulars in the First Schedule” to the said Law. Again, I must observe in passing that the provisions of sections 37(2) and 38(2) of the 1980 Education Law must be read subject to the provisions of section 42 of the 1979 Constitution; and the provisions of these sub-sections cannot lawfully be regarded as detracting from the fundamental right of the citizen or subject under the 1979 Constitution to challenge, in the High Court of Imo State, any decision of the Governor under those sub-sections or any other sections or sub-sections of the 1980 Education Law similarly worded (i.e. as sections 37(2) and 38(2) aforesaid).
In my respectful view, the provisions of paragraph (b) of sub-section (1) of section 41 of the 1979 Constitution deserve a broad interpretation; a narrow interpretation of those provisions could lead to flagrant and unwholesome abuse of the right of the subject under section 36 of the 1979 Constitution. The position, therefore, is that although the subject has undoubtedly a right to establish primary, post-primary or secondary schools in any State of the Federation, he must in doing so have regard to and comply with the provisions-where they exist-of any laws of the State which seek to regulate primary and post-primary education or education in other institutions which do not qualify as universities. In the circumstances, the answer to the fourth question in this reference must be in the negative.
IS SECTION 5 OF THE JAMB ACT VOID FOR INCONSISTENCY WITH SECTIONS 36 & 41 OF THE CONSTITUTION OF 1979
As already stated earlier in this judgment, paragraph 27 of Item L in Part II of the Second Schedule to the 1979 Constitution invests the National Assembly with powers to make laws for the regulation of education in all universities in the country. The JAMB Act, without doubt, as section 5 thereof clearly shows is a law having that tendency [sub-sections 1 (a), 1 (b), 1 (c) and 2 of section 5 refer]. By virtue of the provisions of section 274(1) (a), the JAMB Act must be deemed to be a law of the National Assembly.
Although the National Assembly has, as stated earlier, not made any law under paragraph 28 of Item L aforesaid governing the establishment of universities in the Federation, the JAMB Act, however, does seem to me to satisfy albeit, in very limited respect, the requirement of a law of the National Assembly regulating in certain respects the standard and quality of university education throughout the Federation.
By the provisions of section 5 thereof, the Joint Admissions and Matriculation Board set up under the JAMB Act has the general control of the conduct of matriculation examinations for admissions into all universities in Nigeria; and the Board is also responsible for the placement of suitably qualified candidates in the Universities as required under sub-paragraph (c) of sub-section (1) of section 5 aforesaid. Sub-section (2) of section 5 reposes in the Board the overall power and responsibility of determining matriculation requirements for all universities in Nigeria.
Following the views already expressed by me on sub-paragraph (b) of sub-section (1) of section 41 of the 1979 Constitution, I am of the firm view that section 5 of the JAMB Act is not only constitutional but also pre-eminently desirable. In the event, the answer to the third question in this reference must be in the negative.
For the foregoing reasons, I am of the opinion that the answers to the questions in this reference are as follows:
Question 1: Is it correct to construe Item L of the Concurrent Legislative List contained in the Constitution of the Federation as implying that no private agency or individual can establish a university except by invoking the legislative powers of the National or State Assembly (sic) to establish the same
ANSWER: NO.
Question 2: If the first question is answered in the negative, has a private individual or agency the right to establish a university or secondary or post-primary institutions by reasons of the provisions of sections 16 and 36 of the Constitution
ANSWER: YES.
Question 3: Is section 5 of the Joint Admissions and Matriculation Board Act void for inconsistency with sections 36 & 41 of the Constitution of 1979
ANSWER: NO.
Question 4: Are sections 34 and 35 of the Education Law of Imo State (No. 10 of 1980) void for inconsistency with section 36 and 41 of the Constitution
ANSWER: NO.
Other Citation: (1983) LCN/2192(SC)
