IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
HO - A.D 2018
THE REPUBLIC - (Plaintiff)
UNIVERSITY OF HEALTH AND ALLIED SCIENCES, HO; EX PARTE ISAAC YEBOAH AND 6 OTHERS - (Defendants)
DATE: 4 TH JUNE, 2018
SUIT NO: E10/6/2018
JUDGES: (SGD) N. C. A. AGBEVOR JUSTICE OF THE APPEAL COURT
MR. AGBAKPE FOR APPLICANTS
MR. ERNEST GAEWU FOR RESPONDENTS
This judgement is in respect of a motion on notice for judicial review in the nature of certiorari under Order 55 of High Court Rules 2004 (C. I. 47). The Applicants herein claim that their expulsion and suspension from the University of Health and Allied Sciences breached their legal rights and should be set aside by this Court.
The facts leading to the instant application are not complex. The Applicants as students of the University of Health and Allied Sciences are alleged to have had prior knowledge of the second semester examination in SCPH 324 HEALTH MANAGEMENT INFORMATION SYSTEM taught by MR. YAKUBU A. YAKUBU the Acting Head of Department of Epidemiology and Biostatistics through his relationship with the 5th Applicant Ms. Perfect Asamoah.
It is alleged that the 5th Applicant forwarded these questions to other colleagues. The Respondent University proceeded to institute a committee which is said to have conducted investigations into the allegation leading to the dismissal of Applicants without giving them a hearing. This approach to their dismissals Applicants claim violates the disciplinary rules of the institution particularly the provision of ARTICLE 9.16(2)f of the RULES AND REGULATIONS OF THE RESPONDENT.
It is the defence of the Respondents that the Applicants were dealt with under the provision of REGULATION 10.25 to 10.25.4 of the Handbook 2016/17 and that the Institution complied with the rules of the Institution. The law governing the grant of an order of certiorari is certain in the decisions by the superior Courts. Certiorari is a discretionary remedy which would issue to correct a clear error of law on the face of the ruling of the Court; or an error which amounts to lack of jurisdiction in the Court so as to make the decision a nullity. See REPUBLIC VRS. HIGH COURT, ACCRA EX-PARTE INDUSTRIALLISATION FUND FOR DEVELOPING COUNTRIES AND ANOTHER (2003-4) SCGLR 348.
Certiorari as a common law remedy is primarily directed to control actions of inferior Courts or tribunal's jurisdiction and to bring them in line within their permissible limits in law.
Thus in Halsbury's Law of England (3rd edition) Vol. 11 paragraph 119 it states:
“where the proceedings are regular upon the face and the inferior tribunal had jurisdiction, the Superior Court will not grant the order for certiorari on the ground that the inferior tribunal has misconceived a point of law. When the inferior tribunal has jurisdiction to decide a matter it cannot (merely because it incidentally misconstrues a statute or admits illegal evidence or rejected legal evidence or misdirects itself as to the weight of the evidence, or convicts without evidence) be deemed to exceed or abuse its jurisdiction”.
Applicants case is that by the rules and regulations of the institution it is only a properly constituted Disciplinary Committee of the University who have the mandate to take disciplinary action against any junior member of the University. It is their claim that the regulation under which they could have been disciplined is ARTICLE 9.16 2(f) which provides – RULES AND PROCEDURES RELATING TO DISCIPLINE.
9.161 If a student violates Hall regulations disciplinary measures shall be taken by the authorities of the residential hall which he or she belongs.
9.16 2(a) There shall be a disciplinary board or committee for Junior Members.
9.16 2(b) A disciplinary Board or Committee shall investigate an allegation of misconduct referred to it by the Disciplinary Officer or the Registrar and shall make appropriate decisions on the charges including sanctions. The Vice Chancellor shall implement the decisions of the Disciplinary Board or Committee in accordance with these statutes.
9.16 2(c) (i) The Registrar or other authorized University Official shall cause to be investigated all allegation of misconduct referred to him or her by the Disciplinary Officer.
(ii) where investigations disclose misconduct disciplinary proceedings shall be instituted before the appropriate disciplinary Board or Committee by the Disciplinary Officer.
9.16(2)(d) For the avoidance of doubt, it shall not be necessary to conduct an investigation of misconduct where the University is already in possession of the relevant evidence. The persons identified in the evidence shall be charged directly before the appropriate disciplinary Committee by the Disciplinary Officer.
9.16(2)(e) Where a disciplinary action concerns a person who is a member of the disciplinary Committee, the Vice Chancellor shall replace that person with a suitably qualified alternate.
9.16(2)(f) The Registrar shall appoint a disciplinary board to deal with any matter of discipline affecting junior members which shall comprise;
i) Three Senior Members of whom shall be designated as Chairman by the Registrar.
ii) Two students nominated by the students Representative Council.
The contention of the Applicants is that the University in applying these provisions denied them audience before instituting sanctions on them. The Respondents deny these and averred that the misconduct being a violation of rules in respect of University Examination the regulations provide specific mode of procedure to discipline misconduct. These regulations are set out in Article 10.25 to 10.25.4.
10.25(1) Examination Offences shall be understood to include any attempt on the part of a candidate to gain an unfair advantage and breach of the Examination Regulations and instructions to candidates including but not limited to
i. refusal on the part of a candidate to occupy an assigned place in an Examination Room.
ii. any form of communication with another candidate, possession of a book, paper or written information of any kind except as required by the rules of a particular examination.
iii. smoking or imbibing any illegal substance.
iv. leaving examination room without permission of the invigilator or refusal to follow instructions.
v. refusal to follow instructions.
vi. attempting to bully or threaten or manipulate invigilation personnel.
vii. Attempting to misrepresent candidate's identification on examination materials.
10.25 2 The Chief Invigilator or any Examiner shall report to the Registrar as soon as practicable any instance of a breach of examination Regulations.
10.25(2)(a) On the advice of the Registrar the Pro Vice Chancellor shall constitute and inter-school Committee on Examination Malpractice to investigate all examination offences that have come to attention.
(b) In respect of offences occurring outside the precincts of an Examination Room the Dean of school or warden shall cause an enquiry to be made into any reports that reach him/her and submit his findings to the Registrar.
10.25(3) The Joint Board of Examiners shall review all reports received in connection with an examination malpractice or an offence. On the basis of its review the relevant Board of Examiners may recommend imposing a sanction that involves loss of marks in a particular paper. A grade Z shall be awarded wherever it is established that a candidate had attempted to gain an unfair advantage in an examination be it in a Principal subject or an Anciliary or any other paper or has misconducted himself or herself during an examination exercise. Such a candidate may be debarred from taking a University Examination for a stated period or indefinitely, or expelled from the University.
10.25(4) In all instances of examination malpractices or offences, a formal report from the Joint Board of Examiners shall be made to the Academic Board. The Academic Board may review all such reported cases and may determine sanctions as it deems fit.
In his submissions in support of this application Counsel for the Applicants Agbakpe Esq. cited the Supreme Court case of THE REPUBLIC VRS. HIGH COURT, ACCRA EX-PARTE ASAKUM
ENGINEERING (1993/94) 2 GLRR 843 holding 3 which identified the following grounds upon which certiorari would issue:
That the inferior Court acted without or in excess of jurisdiction. That there is breach of natural justice.
That there is an error of law manifest on the face of the records.
Counsel also cited in support REPUBLIC VRS. AKIWUMI AND BANNERMAN (1958) 3 WALR 372 and EX-PARTE SHAW an English case.
It is Agbakpe Esq.'s application to the Court that in this case he would wish to rely on the second ground set out in the ASAKUM CASE which is that “there is monumental breach of the rules of natural justice which Counsel summarized as the audi Alteram partem rule and the nemo judex rule”. Counsel cited the dictum of Dordzie J. in Ex-parte Amoo to support his case. Counsel submitted that since the Respondents have constituted themselves into a quasi-judicial body exercising disciplinary powers, they are enjoined to observe the rules of natural justice which they have willfully failed to do by not inviting the Applicants to state or to hear their side of the story as set out in “CSK 1” - “The Committee was unable to complete its work due to limited time and as such could not invite some of the students for questioning”.
Counsel contends that it is this same uncompleted report which laid the foundation for exhibit “CSK 2” from which the Applicants were dismissed. Also in the terms of reference of the Committee they were to consider the interim report (Exhibit CSK1) and make recommendations but the Committee rather made pronouncement on Exhibit “CSK1” which was uncompleted.
Respondents are also alleged to have breached Regulation 9.165 to 9.967 that the regulations required Respondents to lay a formal charge and to allow those Accused to prepare their defence. This was absent and therefore the procedure adopted to determine the culpability of Applicants is unknown. The applicants therefore pray this Court to set aside the punishment imposed on them by quashing by certiorari the action taken against them.
Mr. Gaewu for the Respondents set out in his submission against the application that the 4th, 5th, 6th and 7th Applicants were rusticated from the University while 2nd and 3rd were expelled for examination malpractices. He submitted that by paragraph 5 of their motion the Applicants contend that they were not given a hearing by the Disciplinary Committee to defend themselves.
Counsel cited numerous cases on when certiorari may be granted. These include:
REPUBLIC VRS. HIGH COURT (Fast Track Division) Accra EX PARTE SIAN GOLDFIELD LTD. (2009) SCGLR 204.
REPUBLIC VRS. HIGH COURT JUDGE (Fast Track Division) ACCRA EX-PARE GHANA LOTTO OPERATORS ASSOC. (2009) SCGLR 372.
REUBLIC VRS. HIGH COURT ACCRA EX-PARTE ANYAW (PLATINUM HOLDING INT. PARTY) 2009 SCGLR 255 and
REPUBLIC VRS. HIGH COURT ACCRA EX-PARTE INDUSTRIALISATION FUNDS (2003/4) SCGLR 348
REPUBLIC VRS. HIGH COURT ACCRA EX-PARTE ATTORNEY GENERAL (DELTA TOOD LTD. CASE) (1998/99) SCGLR 595 at 600.
Counsel submitted that to succeed to get an order of certiorari one of the grounds is that the decision maker or body lacked jurisdiction to make the decision being challenged where however the decision maker had the jurisdiction to make the decision but the decision turns out to be wrong, the remedy available to appeal against the decision. The Applicants' Counsel submitted that by the effect of their paragraphs 5 and 8 of their affidavit of 19/1/2018 the first Committee that investigated the malpractice did not give them a hearing thus breaching the rules of natural justice. Also that the Committee that recommended various sanctions against them lacked the requisite jurisdiction referring to Exhibit 'B' which is the RESPONDENTS HANDBOOK OF REGULATIONS for 2016/17. The Applicants referred to Regulation 9.16.2 of the Exhibit 'B' as the basis of their application. The Applicants deposed that:
“That assuming without admitting the body which authored Exhibit 'A' a purported disciplinary committee as the Respondent is likely to argue, article 9.16.2 (f) of the rules and regulation of the Respondent requires that two (2) students be nominated by the SRC members of the Disciplinary Committee. Refer to Exhibit ‘B’.
Counsel submits that the affidavit deposed to included two Exhibits which are Interim Report on Examination Malpractice for Second Semester Examination of 2016/17. Academic year as Exhibit "CSK1” and Report of Committee on Examination Malpractice Exhibit “CSK2”. The Respondents contention is that the “Sanction for examination malpractices and offences are dealt with under Regulation 10.2.5 to 10.2.4 of Exhibit 'B' narrated supra by the Court. It is not disputed that the applicants are junior members of University of Health and Allied Sciences. See Regulation 9.16 of Exhibit ‘B’ also the Committees that held the investigations and recommendation have jurisdiction to do so. See Regulation 10.25 of Exhibit ‘B’.
To resolve the instant application, the Court would need to determine: -
Which provisions of the Institution's Regulation govern the issues raised
What is the procedure applicable to its resolution
Was the procedure observed
Have the rights of Applicants been breached
Are Applicants entitled to the relief sought.
SECTION 17(1) of the Evidence Act 1975 (NRCD 323) states:
"17(1) Except as otherwise provided by law the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof. See also ENEKWA & OTHERS V KNUST (2009) SCGLR 243.
Applicants claim or contention is that the regulations under which they could be disciplined is ARTICLE 9.16 2(f) of the RULES AND PROCEDURES RELATING TO DISCIPLINE OF THE
Respondent Institution. Both parties agree that the disciplinary rules and regulations are as set out in EXHIBIT “B”. Clearly the Applicants claim of which rules apply to junior members for examination misconduct is incorrect as stated in Section 9.12. These rules apply to general and non-examination conduct. Misconduct related to examination offences are as set out in Section 10 of the rules UNIVERSITY EXAMINATIONS specifically Regulations 10.25 to 10.25.4 of the Handbook 2016/17. It may be necessary to recite again this:
10.25.1 Examination offences shall be understood to include any attempt on the part of a candidate to gain an unfair advantage and breach of the Examination Regulations and instructions to candidates including but not limited to.....
ii. Any form of communication with another candidate, possession of a book paper or written information of any kind except as required by the rules of a particular examination.
Each of the Applicants is sanctioned for:
“It was further established that you attempted to gain unfair advantage in the examination by having access to the examination question ahead of time. This is in violation of Section 10.25.1 of the University's Regulations on Examinations as stated in the Students Handbook”.
The terms of Reference of the Investigative Committee in respect of the examination leakage was for the “consideration of the Interim Report from the SPH Committee and make the recommendations for the appropriate sanction to management. The interim report set out among other things that the following students appeared before a Committee. These are
a) ABDUL RHAMAN IBRAHIM TIMAY
b) ISAAC YEBOA two of the Applicants herein.
A second Committee met with these two students and
c) SAMUEL LAPOA
d) FRANCIS AMESINU
e) CYRIL AZORNU
f) WILLIAM DORMECHELE and
g) MS. PERFECT EDINAM ASAMOAH.
And after discussions of their charges with them the Committee made recommendations of sanctions imposed on each culprit. In my opinion the procedure stipulated in Regulation 10.25 have not been breached by the Respondent. I am of the opinion that the Applicants have been listed in the Academic Boards report as having been given a hearing by Committees that have jurisdiction to do so under the regulation.
Accordingly, I will dismiss Applicants case and affirm the sanctions imposed on the Applicants.