AWUNI vs. WEST AFRICAN EXAMINATIONS COUNCIL [2001-2002] 1 GLR 25

CASES REFERRED TO:

(1) L’air Liquide Ghana Ltd v Anim [1991] 1 GLR 460, CA.

(2) Wood v Woad (1723) 1 Str 557.

(3) Ridge v Baldwin [1964] AC 40, HL.

(4) R v University of Cambridge (1723) 1 Str 557.

APPLICATION for declaration orders against the decision of the respondents cancelling the entire results of the applicants and in addition barring them from writing any of the respondents’ examinations for a period of three years. The facts are sufficiently stated in the ruling.

M Ayariga for the applicants.

F Selby for the respondents.

Omari-Sasu JA. This application for declaratory judgment or orders against the respondents herein has been brought by the applicant herein who is aged nineteen years per his next friend for himself and also in a representative capacity. The other parties represented are as follows:

(1) Adivila Matthew aged 21 years (2) Akologo Gideon Atanga aged 23 years (3) Akugre John aged 21 years (4) Aseghebila Elvis Depores aged nineteen years (5) Atagabe Kenneth Anderson aged nineteen years (6) Atorah Bede Akorige aged nineteen years (7) Atiah Albert aged 20 years (8) Atuguba Harold Tivah aged 21 years (9) Awandre Jerome Anongseam aged eighteen years (10) Aye-Anine Guggisberg aged 21 years (11) Ayibellow Isaac Bakite aged eighteen years (12) Ayidiya Eric aged 22 years [p.28] of [2001-2002] 1 GLR 25 The reliefs sought in the present application are:

(a) A declaration that the decision of the final awards committee of the respondents (the West African Examinations Council) communicated in a letter No EC/SSS/-RS/Vol IV/173 dated 30 April 2001 to the headmaster/rector of Notre Dame Seminary/Secondary School, Navrongo cancelling the entire results of the applicant together with those of the twelve students (named supra) of Notre Dame Secondary School in the SSSCE for the year 2000 is unlawful, null, void and of no effect. (b) A further declaration that the barring of the applicant together with the twelve other students by the respondents for three years from taking any examinations conducted by the respondents is unlawful, null, void and of no effect.

(c) A third declaration that the refusal or neglect of the respondents to release the entire results of the applicant together with those of the twelve other students in the SSSCE for the year 2000 is equally unlawful, null void and of no effect.

(d) Lastly, this court is requested to issue out such remedies, directions or orders as this honourable court may consider necessary to remedy the infringements or violations of the fundamental human rights and freedoms of the applicant and the twelve other students.

In support of the reliefs sought, affidavits were filed and in time argued. The substance of the application is that the applicant and the twelve others were registered for and sat the Senior Secondary School Certificate Examinations for the year 2000 which were organised and conducted by the respondents. The applicants aver they never had any foreknowledge of any of the question papers set either before or during the examinations and also that they never acted in collusion with anyone in the said examinations. It is also their case that none of them was ever questioned, cautioned, reprimanded or interrogated by any agents of the respondents either before, during or after writing the said examinations in respect of [p.29] of [2001-2002] 1 GLR 25 any of them having had foreknowledge of any of the examination questions or as having acted in collusion with any person(s) in writing the said examination.

At the beginning of May 2000, however, the respondents wrote exhibit A to the headmaster of the applicants’ school who in turn summoned the applicants to appear before him after which the contents of exhibit A were read to them. For the avoidance of doubt, I reproduce hereunder the contents of exhibit A verbatim. It is as follows:

“West African Examinations Council Examination Loop Ridge P O Box 917, Accra 30 April 2001 Confidential Dear Sir/Madam, Senior Secondary School Certificate Examination 2000 Cancelled Result You are hereby informed that by decision of the final awards and examinations appointment committee of the West African Examinations Council the results of the candidates listed below have been cancelled as indicated because of their involvement in some examination irregularities. The candidates should be so informed.

NAME OF CENTRE: Notre Dame Seminary/Secondary School. SCHOOL CENTRE NO: 690505 INDEX NUMBERS OF CANDIDATES INVOLVED:

035, 036, 039, 038, 012, 019, 020, 037, 040, 044, 046, 047, AND 048 SUBJECT PAPER: Mathematics (Core) 2 NATURE OF IRREGULARITY: It was alleged that the candidates had foreknowledge of the paper and it has been established that the listed candidates colluded among them- selves.

RULE NO (applicable) 5b FINAL DECISION: Cancel Entire Results and bar for 3 years.

NB For the Rule, refer to 1997/1998 WAEC regulations and

[p.30] of [2001-2002] 1 GLR 25 syllabus pages 3, 4 and 5 which equally apply to the Senior Secondary School Certificate Examination (2000).”

(The emphasis is mine.)

On receipt of exhibit A and after its contents had been communicated to the applicants herein the headmaster of the applicants’ school on 21 May 2001 wrote a petition to the West African Examinations Council (the respondents) on behalf of the applicants, the school, the Parent Teacher Association and the Board of Governors and prayed for a review and reconsideration of the West African Examinations Council’s decision contained in exhibit A. This petition is dated 21 May 2001 and was annexed to the applicants’ present case as exhibit B. The West African Examinations Council, on receipt of the petition, exhibit B, sent a reply on 6 June to the applicants’ headmaster. In their reply, the respondents maintained their stance which they had communicated in exhibit A. This reply is labelled exhibit C in this case. The applicants were unhappy about the state of affairs and they consulted solicitors in Accra who wrote exhibit D to the respondents on 6 June 2001 in which they threatened legal action if the respondents did not respond favourably to the plight of the applicants within one week. The present application before this court is thus the full consummation of the applicants’ quest for justice to be done to them.

The case for the respondents is that the respondents, as an international examining body set up by convention and law to conduct examinations in the English-speaking West African sub-region, has evolved rules and regulations to ensure the sanctity of examinations and also to ensure fairness to candidates. The enforcement of the said regulations is to stem out examination malpractices in the public interest. In respect of the applicants’ case, the respondents state in exhibit C as follows:

“During the conduct of the 2000 SSSCE there were allegations of foreknowledge of some of the question papers. The only means by which the council could verify the allegations was the scrutinizing of the scripts of the candidates. As a result all scripts for all subjects were scrutinised. From the scrutiny it

[p.31] of [2001-2002] 1 GLR 25 was established that there was foreknowledge and collusion among the thirteen candidates (out of 76) from Notre Dame Seminary Secondary School, Navrongo in mathematics (core) paper 2. The Council therefore applied the prescribed sanctions.”

From the record of proceedings, I make the following findings of fact which I consider relevant for the determination of the present case:

(1) The thirteen applicants herein who are aged between 18 years and 23 years and in law called young persons were candidates who had been registered for and sat the 2000 SSSCE conducted by the respondents.

(2) At no time either before or during the said examinations were any of the thirteen applicants questioned by anyone as engaging in any examination malpractices.

(3) It was after the scripts in mathematics core paper 2 had been marked that the thirteen applicants herein were said to have had foreknowledge of the said paper.

(4) The respondents scrutinised the scripts of the candidates and after the said scrutiny came to the conclusion that it had been established that the thirteen applicants herein had acted in collusion among themselves.

(5) The respondents have cancelled the entire results of the applicants in all the subjects they had written including those in which there were no examination malpractices and also have barred the applicants for three years from writing any of the respondents’ examinations.

(6) During the investigations conducted by the respondents into the allegation of foreknowledge and collusion, there was no evidence on record which showed that:

(a) the applicants or their headmaster was informed of the allegations; and

(b) the applicants or their headmaster was in any manner given a chance of being heard or participated in the investigations.

(7) The respondents in dealing with the present case acted as investigators, prosecutors and judges in their own case and [p.32] of [2001-2002] 1 GLR 25 neither the applicants nor their headmaster was in any way invited to assist in the investigations.

The applicants brought the present application under articles 33(1) and 23 of the Constitution, 1992 of the Republic of Ghana. Article 23 of our Constitution, 1992 states:

“23. Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal.”

(The emphasis is mine.) Article 33 confers jurisdiction in cases where applicants allege their personal rights have been infringed upon on the High Court. The next question is what is meant by “acting fairly and reasonably” within the law? It should be noted that article 19 of the Constitution, 1992 of Ghana which deals with fair trial provides:

“19. (2) A person charged with a criminal offence shall—

(c) be presumed to be innocent until he is proved or has pleaded guilty;

(d) be informed immediately in a language he understands, and in detail; of the nature of the offence charged;

(f) be permitted to defend himself before the court in person or by a lawyer of his choice;

(g) be afforded facilities to examine, in person or by his lawyer, the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on the same conditions as those applicable to witnesses called by the prosecution…

(5) A person shall not be charged with or held to be guilty of a criminal offence which is founded on an act or omission that did not at the time it took place constitute an offence.”

Wade on Administrative Law (6th ed), p 523 states, inter alia:

[p.33] of [2001-2002] 1 GLR 25

“Powers of a purely administrative character must be exercised ‘fairly’ meaning in accordance with natural justice—which after all is only fair play in action. Natural Justice is but fairness writ large and judicially.”

De Smith’s Judicial Review of Administrative Action (4th ed) at pp 238-239 in dealing with duty to act fairly states:

“In general it means a duty to observe the rudiments of natural justice for a limited purpose in the exercise of fairness that are not analytically judicial but administrative.”

In talking about the rules of natural justice, our Court of Appeal per Ofori-Boateng JA (as he then was) said in the case of L’air Liquide (Ghana) Ltd v Anim [1991] 1 GLR 460 at 463, CA that: “The general basic principle about these administrative inquiries is that whenever people are given power by law to consider facts and to arrive at conclusions affecting the fate of human beings, they are performing a quasi-judicial function. And although not a court, if the body violates the rules of natural justice, the courts have the power to declare the procedure invalid, as well as the conclusions therefrom. The rules of natural justice are two: First, that a man may not be condemned unheard; and secondly, that a man must not be a judge of his own case.”

As far back as 1723 it was observed in the case of Wood v Woad (1723) 1 Str 557 per Kelly CB that: “The rule expressed in audi alteram partem is not confined to the conduct of strictly legal tribunals, but is applicable to every individual or body or persons invested with authority to adjudicate upon matter involving civil consequences to individuals.”

Lord Hodson has also observed in the House of Lords’ case of Ridge v Baldwin [1964] AC 40 at 132, HL as follows:

“. . . three features of natural justice stand out— (1) the right to be heard by an unbiased tribunal; (2) the right to have notice of

[p.34] of [2001-2002] 1 GLR 25 charges of misconduct; (3) the right to be heard in answer to those charges.”

As a last illustration, I would like to refer to Dr Bentley’s case in R v University of Cambridge (1723) 1 Str 557 in which a judicial dictum is recorded thus:

“. . . even God himself did not pass sentence upon Adam, before he was called upon to make his defence. Adam (says God,) where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldst not eat? And the same question was put to Eve also.”

The above dictum was in Dr Bentley’s case in which the University of Cambridge had deprived that recalcitrant scholar of his degrees on account of his misconduct in insulting the Vice-Chancellor’s Court but he was reinstated on mandamus from the court of King’s Bench on the ground that deprivation was unjustifiable because he should have been given notice of the trial to enable him make his defence. Thus if God almighty gives notice before he punishes, how much more should we mortals deny our citizens the same? It is my considered view, therefore, that the respondents herein have acted in open defiance of the duty to act fairly and reasonably, which duty is mandatorily imposed on administrative bodies and officials by article 23 of our Constitution, 1992. The applicants were never accused or charged. When the respondents were investigating the allegation of foreknowledge and collusion, the applicants or their headmaster should have been heard and also given a chance to examine their accusers. The respondents are guilty of abnegation of a constitutional mandatory duty to act fairly and reasonably in this case. And I accordingly declare that the decision which the respondents arrived at concerning the applicants is incurably bad, void and of no consequence.

Consequential orders

(1) The respondents are hereby ordered to publish the results of the applicants in all the papers they wrote in the 2000 SSSCE and communicate same to the headmaster of the applicants’ school forthwith.

[p.35] of [2001-2002] 1 GLR 25

(2) The ban imposed on the applicants from writing any examinations of the council for the next three years is hereby lifted.

(3) By and under article 14 of the convention establishing the West African Examinations Council, which is annexed to the West African Examinations Council Law, 1991 (PNDCL 255) the Republic of Ghana as a member country was mandated to enact laws incorporating the convention and also enact laws dealing with fraud, forgery and kindred offences including offences, against malpractice in examination and relating to awards of certificates and diplomas, and I take judicial notice that PNDCL 255 was enacted pursuant to the said convention, however this law in section 12 thereof gave power to the Secretary and Minister for Education to make regulations and legislative instrument to give full effect to the provisions of PNDCL 255. This power has not been executed since 1991 when PNDCL 255 was enacted.

(4) In the course of hearing this case, I observed that, although the respondents herein have not been given any specific legislative power under section 12 of PNDCL 255 or by any law of Ghana, they have been issuing out periodic regulations and enforcing same as though they were part of the laws of Ghana. An example is the reference of the respondents to regulation “5b” of 1997/98 by which the respondents purported to cancel the entire results of the applicants herein. During the pendency of this case, I drove to the headquarters of the respondents in an effort to secure a copy of the said regulations “5b” of 1997/98 but it turned out that it was non-existent. It is my considered view, therefore, that the ends of justice shall be fully met if the Minister for Education takes immediate action under section 12 of PNDCL 255 and clearly defines the role the respondents herein should play in dealing with examination malpractices which they may come up against in the execution of their work.

(5) Copies of this decision are to be sent to (1) The Attorney-

[p.36] of [2001-2002] 1 GLR 25

General and Minister of Justice; and (2) The Minister for Education.

Mr Mohammed Ayariga, counsel for the applicants, says that the applicants hail from Navrongo and Bolgatanga in the Upper East Region and because of this case they have made five court appearances. We therefore pray for ¢3 million as costs for the thirteen applicants. Mr Fredrick Selby, counsel for the respondents, says the address for service filed by the applicants is Tema and there is no indication anywhere that somebody has travelled from Bolgatanga or Navrongo to this court in Accra.

The respondents are not a money-making organization. The court may thus impose a token amount of ¢500,000 as costs

By court: The respondents should pay ¢2,000,000 as costs to the thirteen applicants.

Application granted.

FGA