BENARD vs. WEST AFRICAN EXAMINATIONS COUNCIL [1999-2000] 1 GLR 578

CASE REFERRED TO

Majolagbe v Larbi [1959] GLR 190

NATURE OF PROCEEDINGS

ACTION by the plaintiff for, inter alia, damages for libel against the defendant, the West African Examinations Council, for pasting on its notice board a notice that his “results” had been “withheld” and then subsequently notifying him that his results had been cancelled and other specified sanctions imposed on him based on a false allegation that he had been guilty of impersonation contrary to section 5 of the West African Examinations Council Law, 1991 (PNDCL 255) during the conduct of the November-December 1999 Advance Level Examinations conducted by the defendant. The facts are sufficiently stated in the judgment.

COUNSEL

Koomson of Barton and Partners for the plaintiff.

Frederick Selby for the defendant.

JUDGMENT OF HEWARD-MILLS J.

The plaintiff in November-December 1995 wrote for the General Certificate of Examination Advance Level economics examination conducted by the defendant council.

When the results were published subsequently, he found his name on the notice board with the word “results withheld” printed against his name. He made several attempts to find out the reasons, but all to no avail. On 9 September 1996, he received a letter from the council. It was to inform him that the council had decided to cancel his entire examination results and to bar him from taking any examination conducted by the council for three years. His crime stated in the second paragraph was that “he had impersonated another candidate during the examination.” As a further punishment, his particulars were going to be given due publicity. If he attempted

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to enter any of the council’s examination before the expiration of the three years, his entry would be null and void and there would be no refund of fees paid.

This is the record of proceedings of the cross examination of the senior assistant registrar of the council:

“Q Did you investigate the case against Abaidoo?

A No.

Q Did you take a statement from Abaidoo?

A No.”

The evidence disclosed that indeed there was an impersonation, the culprit had been caught and dealt with. Abaidoo was not involved. As he had stated, he needed to write that examination himself in order to enter the university so he could not have impersonated anyone.

In its defence, the second defendant states that the withholding of the plaintiff’s results was an error which when detected led the council to eventually release the results. They revoked their earlier letter and apologized to him. In the meantime, the results released indicated that the plaintiff had failed the paper he sat for, so as an act of immense generosity, he was offered a chance to resit the examination.

The plaintiff declined the offer and has sued for the following reliefs:

“(a) A declaration that the withholding and cancellation of his results was unjustified and unlawful.

(b) Special and general damages.

(c) A declaration that the subsequent results declared was actuated by malice and therefore null and void.

(d) An order compelling the defendant to re-mark the economics paper.

(e) Also for special damages for defamation.”

The plaintiff instituted this suit in November 1996, almost a year after the examination. The letter withdrawing the earlier letter of the council, releasing the results and apologising for the “inadvertent” letter was dated 20 January 1997. The inference that the council acted only after the threat of a legal action is beyond doubt.

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The fact that the plaintiff had suffered a great deal of pain, humiliation and expense in between the release of the results and the final letter of the council is also beyond doubt. The only question to consider is what reliefs is the plaintiff entitled to.

The withholding and cancellation of the results was, indeed, unjustified. Clause 2(f) of the General Regulations for the Examination 1993-99 states: “In all cases of irregularity, the council may, after considering the report, cancel the result of the paper.” The consideration of a report prior to the taking of the drastic action contained in the council’s first letter, presupposes the conduct of a thorough investigations into all allegations of irregularities. The defendant had not only breached its own regulation[sic](1) and procedures but also acted capriciously. The court declares that the imposition of sanctions contained in its letter of September 1996 is completely unjustified. The decision based on a capricious act and in breach of statutory regulations, amount to a nullity and is of no effect. The withdrawal of that letter (during the institution of this suit) was an attempt to present the court with a fait accompli. It proves the plaintiff’s claim and entitles him to special and general damages where such losses are proven.

The court accepts that the claim by the plaintiff of ¢600,000 as representing transport costs for the numerous visits to the council’s officers is highly exaggerated. Half that amount would be a true representation of the costs incurred.

The allegation of “impersonation” levelled against the plaintiff is defamatory because it imputs to the plaintiff a crime under the West African Examination Council Law, 1991 (PNDCL 255), s 5 which states:

“5. Any person who for the purpose of an examination conducted by or on behalf of the council— (a) falsely presents himself to be some other person … shall be guilty of an offence and liable on summary conviction to a fine . . . or to imprisonment for a term of not more than two years or to both. . . “

This is in addition to the sanction of three years’ prohibition from taking an examination conducted by the council as indicated in the aforementioned letter.

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The printing and pasting of the plaintiff’s name on the results board with the remark “results withheld” against the name imports an innuendo which would have been clear to all and sundry who went to check the board for their results. The obvious inference is that the plaintiff is guilty of an examination malpractice which is under investigation. That allegation has been proved to be false and without any justification. By pasting it on the notice board, the essential additional element of publication of libel to a third party has been established. The request to the court for a finding of “illegality” against the defendant, though well founded, strictly speaking applies only in a criminal proceedings and is inappropriate in this civil suit.

In libel cases, the award of damages is proportionate to the damage done so that the extent and manner of publication is very pertinent. The loss of future prospects must also be taken into account together with the conduct of the defendant, ie How was the retraction made? Was its publication to the same extent and manner as the libel? If so, how soon was it made to mitigate the plaintiff’s loss?

The plaintiff’s plight was grossly aggravated by the apparent lack of concern shown by the council. They had by pasting the notice of plaintiff’s results, published to all who know about such matters that the plaintiff has misconducted himself seriously during the examination. They had not taken any trouble to conduct an investigation. The plaintiff had been condemned without hearing and defamed without any justification. He made several attempts to exonerate his name by physically calling at the offices of the defendant. One visit should have been enough to put them on notice to review their decision and make appropriate amends. When the plaintiff took the extreme avenue by instituting a suit, they decided to completely demoralise and disarm the plaintiff by informing him that he had failed the examination in any case. The effect on the plaintiff cannot be even contemplated by this Court.

Examinations are becoming ordeals in this country. The cost involved is often beyond the reach of most. To pass and pass well enough to be able to take up one of the limited places available, has now become the difference between earning a living wage or living on the streets. The potential damage to the plaintiff who was seeking to enter the university cannot be calculated. In mitigation, however, the defendant did offer an opportunity to him to resit the exami-

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nation. It is not surprising that the plaintiff turned the offer down. He was in no frame of mind to revisit his ordeal, so that the offer in effect amounted to a poisoned chalice.

In addition to the claim for damages, the court is being asked to order a re-marking of the paper which the plaintiff is alleged to have failed. The court in granting reliefs must ensure that its orders can be carried out satisfactorily in order to conclude matters. To make such an order, may possibly lead to the opening of a can of worms because the plaintiff is not an exceptionally bright pupil as his earlier examination results have indicated. It would have been preferable for the plaintiff through the court processes, to obtain a copy of his paper and subject it to a second opinion by neutral marking.

The results would have satisfied the best evidence rule. To allege bias in the marking of his paper by the council, although highly probable, is not sufficient to discharge the onus on the plaintiff to produce the best proof where this is available. That is the essence of the decision in the often cited case of Majolagbe v Larbi [1959] GLR 190. See also section 10(1) and (11) of the Evidence Decree, 1975 (NRCD 323). As there is no certainty in the outcome, it will be futile for the court to make the order for the re-marking of the plaintiff’s paper. Since the allegations of bias and malice have not been proven but are based on mere suspicion, the court is again unable to make the requested declaration that the declared result of failure was actuated by malice.

The court does, however, recognise that the plaintiff has suffered immense loss as a result of the defendant’s conduct. In addition to the ¢300,000 special loss already made, the court awards him ¢6 million as general damages.

DECISION

Judgment for the plaintiff.

SA

Endnotes

1 (Popup – Footnote) [sic] same in original.