HIGH COURT, KUMASI
13 NOVEMBER 1970
BEFORE: ANNAN J
COUNSEL
Abeyie for the plaintiffs.
Quist for the defendants.
JUDGMENT OF ANNAN J.
This is an application by the plaintiffs for an order of interim injunction restraining the defendants from conducting examinations in four subjects scheduled to take place during 16 November to 2 December 1970.
Before the hearing of the motion, counsel for the defendants sought leave to raise and argue certain preliminary objections notice of which had been given in the defendants’ affidavit in opposition to the motion. The preliminary objections were based on two matters, namely, that the writ and statement of claim disclose no cause of action and that the writ is bad. The plaintiffs’ claims as endorsed on the writ are for:
(a) an order of mandamus that the defendants do forthwith declare as valid the June 1970 General Certificate of Education school certificate examination held in 36 centres in Kumasi;
(b) an order that the purported cancellation of the results is inequitable, unjust and illegal;
(c) an order that the defendants do forthwith award certificates on the result of the examination in accordance with section 6 (b) of the West African Examinations Council Act, 1970;
(d) an order of injunction to restrain the defendants from holding the examination scheduled for November 1970;
(e) damages for negligence.
Looking at the statement of claim it does appear that the statement does not set out the averments necessary to support an action for mandamus or for negligence since there is no averment of a demand and refusal to perform a public duty or of necessary particulars of negligence and the rest of the reliefs asked for by the plaintiffs appear to flow from these central complaints. Counsel for the plaintiffs, however, no doubt impressed by the force of the submissions on this aspect of the matter shifted his ground and maintained that the reliefs sought in paragraphs (a) to (c) of the writ are for declaratory judgments or orders as to the rights of the plaintiffs and the extent of the powers of the defendants in terms of the statute under which the defendants admittedly derive their status, powers and duties. Counsel contended that the court can, and in the circumstances of this case, ought to permit the plaintiffs to amend the wording of the endorsement to clarify the nature of the reliefs sought.
[p.65] of [1971] 1 GLR 63
He states clearly that this is in no sense an action for mandamus and that the suit was brought under Order 25, r. 5 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). The endorsement no doubt was not worded in terms to show that the first three reliefs were brought under Order 25, r. 5 and indeed the express language of the reliefs sought under paragraphs (a) and (c) do not admit of declaratory orders being made. It seems to me, however, that this obvious imprecision in the choice of language is one of no real seriousness and that the matter can be cured by amendment through the deletion and substitution of a few words in each category of claim.
I will therefore here and now grant leave to the plaintiffs to amend in terms of Order 25, r. 5 and I will treat the first three heads of claim as for declaratory orders that the June examinations be declared to be valid in terms of the West African Examinations Council Act, 1970 (Act 332), that the purported cancellation of the results of that examination is illegal and that the defendants are bound in terms of the Act to award certificates to the persons concerned in this suit in accordance with their duty under the Act.
The issue then is not whether the defendants have the right under the statute to declare an examination to be invalid or to cancel results or to withhold certificates but rather whether these rights have been properly exercised in the circumstances of the June examinations. Counsel for the defendants contends that the court ought not to interfere with the discretion of the defendants in these matters or to lift the veil of secrecy which in the public interest must surround the exercise of the statutory duties of the defendants having regard to the nature of the functions entrusted to them under the statute. Public interest demands, it is said, that there should be absolute confidence in the certificate issued by the defendants and in the examining body itself. The public should be in the position that they must accept the word of the council without further question.
The council, however, is a creature of statute and its powers and obligations are therefore governed by the enabling statute—Act 332 of 1970. Section 6 (b) of that Act spells out in a concise form the duty of the council to conduct examinations and to award certificates and diplomas on the results of such examinations. Section 22 of the Act also empowers the council to lay down regulations for the conduct of such examinations. It seems to me that looking at these two provisions and the Act generally, as well as the regulations made thereunder, the council has the right to cancel results of candidates if it considers that such candidates have been involved in irregularities before or during the examination and to withhold certificates or to cancel certificates. It also appears that the award of certificates is entirely within the discretion of the council and there is no liability in this respect to any candidate. Certificates also remain the property of the council.
[p.66] of [1971] 1 GLR 63
These statutory powers seem at first blush to clothe the council with wide discretionary powers in respect of examinations, results and certificates. The issue however is whether on a proper construction of these powers they are not subject to challenge or control by the courts. Can the court declare as invalid and ultra vires the Act an obviously arbitrary exercise of discretion by the council in circumstances which amount to an abuse of discretion? It has been said that courts will not normally interfere with the exercise of discretion by statutory bodies but then exceptions have been recognised in cases of gross violation of the limits of discretion which amounts in effect to an abuse of that discretion. A candidate who sits for an examination conducted by the council and who passes that examination and who is not shown to have indulged in any dishonest or irregular behaviour in connection with the examination may well make out a case that in terms of the Act he has a right to a certificate. That may or may not be so I do not wish to prejudge that issue now. It is a matter of construction of the Act. Again it may well be that for the council to exercise its discretion against a candidate where there is no evidence showing either the fact of dishonesty or irregularity or at least a reasonable probability of these matters is for the council to deny that candidate a legal right which is his under the Act. The issue arises whether the council is entitled as matter of law to exercise its discretion to make a blanket order of cancellation in the absence of good and sufficient cause. The issue is not a simple issue involving as it does the position of such an important body as the defendants. In my view there are real issues of statutory rights and duties which fall for determination in the present action and I am not prepared to say that the plaintiffs have no cause of action or that the writ is bad, that is after due amendment. For these reasons I overruled the preliminary objections.
I turn now to consider the matter of the interim order of injunction. What the plaintiffs are asking for is an order to stop the November examinations. The substantive right which the plaintiffs claim is that they are entitled to declarations that the June examinations were valid, that the results of those examinations should be upheld by the court and that they are entitled to certificates. These declarations have nothing to do with the scheduled examinations for November. The defendants have the right to hold examinations. No candidate is compelled to sit for any such examination. In any case I do not see how the holding of the examinations scheduled for November can affect the outcome of the actions for the declarations sought for by the plaintiffs. Whether or not examinations are held in November the plaintiffs’ case remains the same, namely, that they take their stand on the June examinations. Furthermore this is not a representative action. It is an action by three individuals in their own behalf. It may well be a test case but that does not make it representative. I do not see why I should stop the examinations for over 3,000 students because of the application of three of these students. Besides I see no case of irreparable injury made out which cannot be compensated for in damages or costs. In the light of the nature of the declarations sought for by the plaintiffs there can be no question of hardship to the plaintiffs.
[p.67] of [1971] 1 GLR 63
It is true they are being asked to sit the examinations at rather short notice and there are obvious difficulties involved in this. But then on balance I do not see that a postponement of the examination will serve to preserve the status quo. Clearly if the plaintiffs are confident in the stand they have taken upon the validity of the June examinations and if they are rightfully so confident then the holding of the November examinations cannot affect their position.
The plaintiffs are not asking for a postponement of the November examinations. They are asking for an order to stop the defendants from holding those examinations. I see no right made out prima facie in the plaintiffs to an injunction to stop the November examinations. Candidates who wish to take part in those examinations may do so. Those who do not wish to offer themselves for it need not do so. There is no compulsion in the matter. There is no case of a threatened or actual infringement of any right of the plaintiffs. The plaintiffs have the right to refuse to take part in the examination. No one is threatening to interfere with their exercise of that right. In the circumstances the motion must fail and I dismiss it.
DECISION
Application for interim injunction refused.
- A. Y.
