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WEST AFRICAN EXAMINATION COUNCIL
IN THE COURT OF APPEAL [LAGOS DIVISION]
8TH APRIL 2002
28 WRN 13
BEFORE THEIR LORDSHIPS:
SULEIMAN GALADIMA, JCA (Presided and delivered the leading judgment)
PIUS OLAYIWOLA ADEREMI, JCA
CHRISTOPHER MITCHELL CHUKWUMA-ENEH, JCA
Uche Ohadugha ESQ. – for the appellant
Jiti Ogunye ESQ. – for the respondent
CONSTITUTIONAL LAW – Rules and regulations made under the WAEC Act – when in conflict with the 1999 Constitution and the African Charter on Human and Peoples’ Rights – nullity of.
GOVERNMENT AND ADMINISTRATIVE LAW – EXAMINATIONS – Case of impersonation – punishment that may be imposed by WAEC.
GOVERNMENT AND ADMINISTRATIVE LAW – WAEC – EXAMINATIONS – Denying a candidate his/her result by WAEC on weak and vague evidence – injustice inherent in same.
GOVERNMENT AND ADMINISTRATIVE LAW – WAEC – EXAMINATIONS – need for it to detect examination malpractice before releasing results to candidate.
GOVERNMENT AND ADMINISTRATIVE LAW – WAEC – EXAMINATIONS –punishment that can be imposed by WAEC in a case of impersonation.
GOVERNMENT AND ADMINISTRATIVE LAW – WAEC – EXAMINATIONS– relationship between WAEC and individual candidates – Whether contractual.
GOVERNMENT AND ADMINISTRATIVE LAW – WAEC – EXAMINATIONS– Whether can be estopped from cancelling results released several years back.
GOVERNMENT AND ADMINISTRATIVE LAW – WAEC – EXAMINATIONS:– West African Examination Council Act Cap. 464, Laws of the Federation of Nigeria 1990 – Withdrawal or invalidation of certificate or cancellation of result – Whether same is a punishment for examination malpractice thereunder.
GOVERNMENT AND ADMINISTRATIVE LAW – FUNDAMENTAL RIGHTS – Cancellation of results by WAEC without hearing candidate – whether amounts to denial of fair hearing under section 36, 1999 Constitution and article 7 of the African Charter Cap. 10 Laws of Federation of Nigeria 1990.
GOVERNMENT AND ADMINISTRATIVE LAW – WAEC – punishment that can be imposed by WAEC in a case of impersonation.
GOVERNMENT AND ADMINISTRATIVE LAW – WAEC – whether a domestic or administrative body having a duty to observe the rules of natural justice.
GOVERNMENT AND ADMINISTRATIVE LAW – WAEC – whether bound to observe rules of natural justice when taking disciplinary action against a candidate accused of examination malpractice.
GOVERNMENT AND ADMINISTRATIVE LAW – WAEC – whether its actions are subject to judicial review.
HUMAN RIGHTS AND CONSTITUTIONAL LAW – FUNDAMENTAL RIGHTS – Fundamental Rights (Enforcement Procedure) Rules – whether can be invoked to compel the release of results withheld by WAEC
HUMAN RIGHTS AND CONSTITUTIONAL LAW – FUNDAMENTAL RIGHTS – High Court – whether vested with jurisdiction to entertain complaints on infringement of right to fair hearing
INTERPRETATION OF STATUTE – West African Examination Council Act Cap. 464, Laws of the Federation of Nigeria 1990 – Withdrawal or invalidation of certificate or cancellation of result – Whether same is a punishment for examination malpractice thereunder
SULEIMAN GALADIMA, JCA (Delivered the following judgment):
This is an appeal by this appellant who was the respondent in an application brought by the present respondent as an applicant before the lower court. The appeal arose from a suit filed by the respondent to enforce his fundamental right to fair hearing under section 46(1) and (2) and 36(1) of the Constitution of the Federal Republic of Nigeria 1999 and under order 1 rules 2 and 3(1) of the Fundamental Rights (Enforcement Procedure) Rules 1979.
It is not disputed by the parties that the applicant sat for the May/June 1992 West African Senior School Certificate Examination at Atunrase Boys’ High School Surulere, Lagos. In September, 1992 when the examination results were released he obtained two distinctions”, four “credits” and a “pass”. The respondent thereafter secured admission into the University of Ilorin in November 1992. Between 1992 – 97 he was in the Biological Sciences Department (Microbiology Unit) of the Faculty of Science, having matriculated with No. 92/032524.
As part of his final screening preparatory to his graduating from the University the respondent was obliged to present his Senior Secondary School Certificate Examination. Statement of result amongst other papers. After screening, the sub-committee of the University Board requested for the original certificate issued for the examination from the respondent who proceeded to his school from where he was informed by the principal, one Mr. A. I. Bolawa, that six months after the release of the results, the appellant by a letter dated 3/2/93 cancelled the entirety of the results of the center for the year, on the ground that the candidates engaged in examination malpractice.
The respondent claimed that he was not aware of the cancellation of the result up to the time he went to the school to collect his certificate. Being unable to secure the original certificate reflecting the result on the basis of which he secured admission into the University, the applicant had not been able to graduate since 1997.
The ground upon which the respondent sought leave to enforce his fundamental right to fair hearing was that the appellant cancelled his result and punished him on the basis that he engaged in examination malpractice without granting him a fair hearing.
On 20/1/2000, the lower court, in agreement with the request of both counsel ordered written submissions to be filed and exchanged in the proceedings. This was done and the written submission were adopted by the counsel. In his considered ruling the learned trial Judge declared that the cancellation of the result of the respondent obtained in the West African Certificate Examination by the appellant after its release was illegal, unconstitutional, null and void in that it violated the respondent’s right to fair hearing. Consequently, the court quashed the decision of the appellant canceling the result and ordered the appellant to furnish the admission office of the University of Ilorin the purportedly cancelled result of the respondent in the May/June 1992 Senior School Certificate Examination.
Dissatisfied with this decision the appellant filed notice of appeal containing 5 grounds and formulated 4 issues for the determination of this court as follows:
“1. Whether the relationship that exists between the appellant and respondent in the conduct and writing of the SSCE was contractual.
On the part of the respondent the following five issues were proffered for determination:
The issues formulated by the learned counsel on behalf of their respective parties are serialized differently, but I find that the substance is the same. I shall therefore be guided by the respondent’s issues. I intend to consider the first, second and third issues together, followed by the fourth and fifth issues respectively.
First, I must deal with the appropriateness of the Fundamental Rights (Enforcement Procedure) Rules as the mode of instituting this action by the respondent from which this appeal arose. In his brief of argument, learned counsel for the appellant has argued strenuously that the respondent was wrong to have commenced this action under the Fundamental (Enforcement Procedure) Rules at the lower court. The basis for this argument is the claim of the appellant that the cancellation of the result of the respondent is not a fundamental right recognised by Chapter 4 of the Constitution. It was further argued by the appellant that since the main or principal claim of the respondent is not the enforcement of a fundamental right the lower court ought not to have assumed jurisdiction to entertain the respondent’s case. Reliance was placed by the appellant on the following cases:
Odogu v. A.G., Federation (1996) 6 NWLR (Pt. 456) 508 at 552; Peterside v. I.M.B (Nig) Ltd. (1993) 2 NWLR (Pt. 278) 712. Egbuonu v. B.R.T.C. (1997) 12 NWLR (Pt. 531) 219; Tukur v. Govt., Taraba State (1997) 6 NWLR (Pt. 510) 549. It was further submitted by the learned counsel for the appellant in the appellant’s brief that the lower court could not have jurisdiction to entertain an action challenging the cancellation of the respondent’s result where proper approach for remedy is adopted in initiating the action, and that an inappropriate and wrong approach adopted in this case is fatal to the case.
In dealing with the issue of mode of instituting the action, the learned trial Judge held that the reliefs being sought by the appellant fall squarely within the ambit of sections 36(1)(2) and (3) of the 1999 Constitution and as such his court has the necessary jurisdiction to hear the suit. I agree with this view. It is correct, for once it is accepted that the respondent’s case raises the issue of natural justice, the respondent having received a punishment (that is by the cancellation of his examination result) by the appellant, an administrative body without a hearing, it becomes incontestable that the Fundamental Rights (Enforcement Procedure) Rules can be invoked to seek legal redress. I do not agree with the view of the appellants counsel in the brief that the respondent’s principal relief in the action is the release of his result. Here the principal relief sought by the respondent was a declarative relief to the effect that the cancellation of his result without any hearing violates his right to fair hearing. The consequential relief sought by the respondent in this action was the revalidation of the result and the issuance of a certificate based on it. In finding support for this argument that the respondent used the wrong procedure in challenging the punishment by the withdrawal and invalidation of his result, learned counsel to the appellant argued in the brief thus that:
“The respondent may have validly brought the action under the Constitution or Fundamental Rights (Enforcement Procedure) Rules if he was barred from taking the examination for say seven (7) years – see Mbamalu’s case…….”
This argument proffered by the learned counsel with due respect, is not flawless. He missed the point. The learned counsel for the respondent has paused (sic) a good question, when he demanded to know under what law will the appellant be acting or what rules will it be applying in barring the respondent, (as hypothetically suggested) from taking an examination for seven years. Could it be right to say that the law and rules are not the same statute under which the appellant was established and the rules which regulate the conduct of the examination. To give a positive answer is to further demand to know why in law can the respondent, in the instant case, institute an action against an administrative decision of the appellant barring him from writing an examination for seven years, for example, under the Fundamental Right (Enforcement Procedure) Rules, while he is, at the same time, disqualified from instituting an action challenging the cancellation of his result under the same rules. Under rules and regulations for dealing with cases of irregularities at the council’s examination barring of candidates for a period of not less than 3 years from any examinations conducted by the appellant is a punishment awarded against an impersonator and the impersonated in a case of impersonation. That is, barring candidates from writing an examination for a period which the appellant has conceded could be challenged under the Fundamental Rights (Enforcement Procedure) Rules is a punishment like cancellation of result under the rules being invoked by the appellant in this case. The appellant cannot approbate and reprobate. In doing so this will strengthen the respondent’s case against the appellant.
Careful study of the cases cited by the appellant in support of its contention that the Fundamental Right (Enforcement Procedure) Rules are not the appropriate procedure the respondent should have used, are not quite on all fours with the instant case. The facts are quite distinguishable. The appellant has made it quite clear that it conducted an investigation into cases of examination malpractice involving the respondent and it took a decision affecting the respondent without giving him a hearing contending that its rules permit it to conduct a hearing in the absence of an accused person and award punishment. The main or principal relief sought by the respondent was a declaration that the cancellation of his result amounts to a violation of his right to fair hearing. The facts of the cases cited and relied upon in this appeal are clearly distinguishable from the facts and circumstances in the instant case. It is for this reason I hold that the procedure used by the respondent to initiate this action was quite appropriate. It is not in doubt that the lower court has jurisdiction to entertain the complaint of the respondent, which has to do with infringement of fundamental right to fair hearing. The respondent had sought before the lower court, a declaration that the cancellation of his result obtained in 1992 in SSCE by the appellant after the release of same and after he had used it to secure admission into the university which cancellation he only became aware of in 1997, is illegal, unconstitutional, null and void as this violates his right to fair hearing guaranteed by section 36 of the 1999 Constitution and article 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement Act, Cap. 10 Laws of the Federation of Nigeria, 1990. The respondent also sought an order quashing the decision of the appellant to cancel the said result compelling the appellant to issue him a certificate based on the said result. He also sought an order compelling the appellant to furnish the admission office of University of Ilorin with his cancelled result.
Under the appellant (W.A.E.C.) Act Cap. 468, Laws of the Federation, 1990 withdrawal and invalidation of certificate or cancellation of result which a candidate had obtained in an examination conducted by the appellant is a punishment for examination malpractice on the part of such candidate. Here, the respondent has contended that before invoking its disciplinary powers against him by canceling his result, no allegation was leveled against him by the appellant, and that no representation or hearing, written or oral, was received from him on the issue of his engaging in examination malpractice.
I do not think in this appeal, the respondent has contended that the appellant cannot in any situation exercise the power conferred on it under sections 19, 20, 21, and 22 of the WAEC Act to cancel the result of a candidate in an examination or withdraw and invalidate same. The insistence of the respondent is that such cancellation, when it is a punishment and penalty for engaging in examination malpractice in violation of the rules and regulations guiding the conduct of examinations, can only come after the fulfillment of certain constitutional requirements. These requirements are that a candidate against whom an allegation of engaging in examination malpractice is levelled must be personally confronted with the allegation and given an opportunity to deny the allegation. Also the body set up to consider his defence and determine the matter must be impartial and fair.
I must say that when taking disciplinary action against a candidate accused of examination malpractice the appellant which is acting in a quasi-judicial capacity is bound to observe the rules of natural justice expressed in a latin maxim “audi alteram partem” and “nemo judex debet esse in causa sua.” These rules have been enshrined in section 36(1) of the 1999 Constitution and article 7 of the African Charter. See Baba v. N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388. Oyeyemi v. Com. for Local Govt. Kwara State (1992) 2 NWLR (Pt. 226) 661 at 678; WAEC v. Mbamalu (1992) 3 NWLR (Pt. 230) at 481. In Mbamalu’s case Uwaifo JCA (as he then was) in delivering the leading judgment stated the position of the law at pages 493 and 494 thus:
“The 1st appellant (WAEC) may well be regarded as a domestic or administrative tribunal when taking disciplinary steps against a candidate accused of examination malpractice. It is a body established by law. It is the law that a body established by law may have the power to decide its own procedure and lay down rules for the conduct of inquiries regarding discipline. The only requirement is that such inquiry must be conducted in accordance with rules of natural justice: See Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306; Wilson v. A.G., Bendel State (1985) 1 NWLR (Pt. 4) 572. Natural justice is built on the two pillars known by the rules: nemo judex debet esse in causa sua (i.e. no one should be a Judge in his own cause) and audi alteram partem (i.e. hear the other party). Once a body of persons by whatever name called are invested with authority to hear and determine particular issues or dispute, such a body will be expected to observe these rules: See Ex parte Olakunrin (1985) 2 NWLR (Pt. 4) 652, Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 2 NWLR (Pt. 7) 300; Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Aiyetan v. N.I.F.O.R (1987) 3 NWLR (Pt. 59) 48.
But in an inquiry by an administrative or a domestic tribunal, or by a person or body exercising quasi judicial function, the hearing can be on oral evidence or written representations made by the parties. Thus a hearing of parties to a dispute need not be oral; it could be on written documents whether by way of accusation or explanation, so long as the decision is based on evidence available. However, both sides must be given the same mode of hearing; See Adigun v. A.G., Oyo State (No. 1) (1987) 1 NWLR (Pt. 53) 678 at 707 – 708 ……”
The appellant in its brief has sought to establish by its averments in paragraphs 7, 8, 9 and 10 of its counter-affidavit that the conduct of the examination was a contract between it and the school, the center, where the examination was conducted and that the appellant is not liable to any of the individual candidates. These averments are not tenable. Appellant has no justification denying the respondent fair hearing when his legal right to his examination result which he had been given was cancelled. Though the appellant averred that it has no direct dealing with the individual candidates including the respondent but the appellant could not disclose if it had taken any disciplinary action against the school with whom they had direct dealings. Again, though the principal of the school was contacted and he promptly appeared to defend his school, but no defence was offered when confronted with the facts. It would appear the schools were supposedly punished by the withdrawal of the result of the centers; however it was the candidates who were not given the opportunity to defend themselves who bare the brunt of the whole action of the appellant.
I have said that the appellant is an administrative body established by a statute to conduct examinations and award certificates and diplomas. Its actions and decisions are subject to the judicial review. The rules and regulations governing the conduct of the appellant’s examinations are also made under the statute establishing it. It is well noted that these rules are not common law rules relating to the law of contract. I agree with the view held by the learned counsel for the respondent in the brief that even if the relationship between the parties was contractual, it is a relationship with statutory flavour. It follows therefore, that just as a contract of employment with statutory flavour cannot be determined without the due process of law (that is by granting a fair hearing to the employee before his dismissal or termination of his appointment) so also the appellant cannot punish the respondent for purportedly engaging in examination malpractice without giving him a hearing. These rules and regulations cannot displace the Constitution and the African Charter. If and when these rules and regulations are found to be inconsistent with the provisions of the Constitution and the Charter they become void to the extent of their inconsistency. The supervisory jurisdiction of the lower court or its powers enshrined in sections 6(6)(b) and 272 of the Constitution of 1999, are not ousted. In the hierarchy of laws the Constitution and the African Charter are superior to the WAEC Act, let alone the rules made there under. It is in view of this I must hold that the lower court was perfectly right to have held that the cancellation of the result of the respondent for engaging in examination malpractice without being given fair hearing at all raise issue of fundamental right.
On the issue of estoppel, the respondent claimed before the lower court that he first became aware of the cancellation of his result in November, 1997 – five years after same was released, when he was about to graduate from the University of Ilorin. The respondent argued that the doctrine of estoppel by conduct applies in this case, since the appellant by its conduct and actions made him to believe that he obtained the result contained in the result sheet, which result he used to secure admission into the University of Ilorin in October, 1992. In view of this the appellant was estopped from taking steps later to deny him of the advantages accruing from the result. The respondent argued that assuming but not conceding that the appellant ought not to have released the result or that it did so in error, the appellant was estopped from denying the validity of the result.
The operation of doctrine of estoppel by conduct mean no more than this observation made by the Supreme Court in Joe Iga AND Ors. v. Ezekiel Amakiri AND Ors. (1976) 11 S.C 1 at 12 – 13.
“If a man by his own words or conduct willfully endeavours to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and acts upon the belief, he who knowingly made false statement is estopped from averring afterwards that such a state of things does not exist at the time; again, if a man either expresses terms or by conduct, makes representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts the first is estopped from denying the existence of such state of facts. Thirdly, if a man whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean certain representation of facts and that it was a true representation and that the latter was intended to act upon it and in a particular way and he with such belief does act in that way to his damage, the first is estopped from denying the facts as represented.”
See also Rourafric AND Far Eastern Ltd v. Avbenake (1958) WRNLR 92; Oyeyemi v. Com. for Local Govt. Kwara State (1992) 2 NWLR (Pt. 226) 661.
The appellant had by its conduct and action made the respondent believe that he obtained the result in exhibit ‘C’ and the appellant is estopped from denying the validity of that result.
I must take the peculiar situation of the respondent into consideration. Here is a young man in his late twenties who for the past five years has not been able to complete his university education and be awarded a degree owing to the appellant’s action. I would not allow the appellant’s action to stand, for that will defeat the end of justice in this matter. It has serious implication for the life pursuit of the respondent. He would have wasted ten years of his life time. If he must acquire a university education in his life time he would have to go back to sit for another WAEC examination to be conducted by the appellant, which is also open to the possibility of another unilateral cancellation of the result. It is high time the appellant mustered all its facilities and resources to conduct all its examinations effectively free of all malpractices. It ought to dictate forthwith, whether there was malpractice at any center at any given time, where examination was conducted before the results are released. It is in the case of Mbamalu (supra) at page 487, my learned brother Oguntade, JCA clearly captured the injustice of denying a candidate his result in the examination conducted by the appellant thus:
“The matter in my view properly falls within the discretion of the court; and it is to be approached with reference to the facts in a particular case. There may be cases where the court may well feel that pupils should not be granted unrestrained access to the court to question the decisions of their tutors, parents or guardians such as to encourage indiscipline. But that is not an issue of jurisdiction. It is more a question of discretion in each case.
In the instant case, the plaintiff has been denied her results. In addition she has been barred from taking WAEC examinations for three years. These are very weighty punishments for a pupil starting an educational life. They may in their effect ruin her educational potential. Where there was a clear evidence that the punishment were justified, the plaintiff could only blame herself and the court would not intervene. But the evidence available against the plaintiff is weak, vague and insubstantial.”
I would say no more but that a lesson or two must have been learnt by the appellant from this judgment. For all the reasons I have given above,
I disallow the appeal for lacking in merit. The judgment of the lower court is upheld. I therefore restore the following declarations and orders.
I award N5,000 costs in favour of the respondent and against the appellant.
PIUS OLAYIWOLA ADEREMI, JCA: I have read, in advance, the judgment just read by my learned, brother Galadima JCA. I agree with his reasoning and conclusion that the appeal is unmeritorious I would also disallow it. I abide by all the consequential orders made in the lead judgment including the order as to cost.
CHRISTOPHER MITCHELL CHUKWUMA-ENEH, JCA: I agree.
Cases referred to in the judgment
Adigun v. A-G., Oyo State (No. 1) (1987) 1 NWLR (Pt. 53) 678.
Aiyetan v. N.I.F.O.R (1987) 3 NWLR (Pt. 59) 48.
Baba v. N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388.
Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306.
Egbuonu v. B.R.T.C. (1997) 12 NWLR (Pt. 531) 219.
Ex parte Olakunrin (1985) 2 NWLR (Pt. 4) 652.
Iga v. Amakiri (1976) 11 S.C 1.
Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 2 NWLR (Pt. 7) 300.
Odogu v. A-G., Federation (1996) 6 NWLR (Pt. 456) 508.
Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587.
Oyeyemi v. Commissioner Local Govt. Kwara State(1992) 2 NWLR (Pt. 226) 661.
Peterside v. I.M.B (Nig) Ltd. (1993) 2 NWLR (Pt.278) 712.
Rourafric AND Far Eastern Ltd. v. Avbenake (1958) WRNLR 92.
Tukur v. Govt., Taraba State (1997) 6 NWLR (Pt. 510) 549.
W.A.E.C v. Mbamalu (1992) 3 NWLR (Pt. 230) 481.
Wilson v. A-G., Bendel State (1985) 1 NWLR (Pt. 4) 572.
Statutes referred to in the judgment
African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. 10 Laws of the Federation of Nigeria, 1990 Art. 7.
Constitution of the Federal Republic of Nigeria, 1979 Ss. 6(6)(b), 36(1), 46(1)&(2) AND 272.
Constitution of the Federal Republic of Nigeria, 1999 Ss. 6(6)(b), 36(1)(2)(3) AND 272.
West African Examination Council Act Cap. 468 Laws of the Federation of Nigeria, 1990 Ss. 19, 20, 21 AND 22.
Rules of court referred to in the judgment
Fundamental Rights Enforcement Procedure Rules 1979 or. 1 rr.2&3(1).