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.