AWUNI v WEST AFRICAN EXAMINATIONS COUNCIL

[2001-2002] 1 GLR 25

Division: HIGH COURT, ACCRA

Date: 4 OCTOBER 2001
Before: OMARI-SASU JA

Natural justice—Right to be heard—Administrative body—Candidates in examination conducted by

respondents—Applicants alleged to have had foreknowledge of examination papers—Respondents neither
charging nor accusing any of them—Respondents cancelling applicants’ entire results and barring them
from writing any examinations for three years—Whether respondents acting in accordance with
principles of natural justice—Constitution, 1992, arts 19, 28 and 33 (1).

Law reform—West African Examinations Council—Statutory authority for dealing with examination
malpractices—PNDCL 255 empowering Minister of Education to make regulations defining role of
respondents in dealing with examination malpractices—Power not exercised by minister—Respondents
nonetheless issuing and enforcing regulations by minister—Whether action of respondents lawful—Need
for immediate reform—West African Examinations Council Law, 1991 (PNDCL 255).
The applicant and twelve other students of the Notre Dame Secondary School

[p.26] of [2001-2002] 1 GLR 25

were registered for and sat the Senior Secondary School Certificate Examinations for the year 2000 which
were organised and conducted by the respondents. Their entire results were however cancelled by the
respondents and they were further barred from writing any of the respondents’ examinations for a period
of three years on the ground of examination malpractices. The headmaster of the school wrote a petition
to 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 respondents’ decision. The respondents
however maintained their stance. The applicants therefore brought an action at the High Court for a
declaration, inter alia, that the decision of the respondents which resulted in the cancellation of their
entire results was unlawful, null and void and of no effect. In support of their application, the applicants
averred that they never had any foreknowledge of any of the question papers set either before, or during
the examination and also that they never acted in collusion with anyone in the said examination.
Furthermore, none of them was ever questioned, cautioned, reprimanded or interrogated by any agents of
the respondents either before, during or after writing the said examination in respect of any of the
allegations. Besides, neither the applicants nor their headmaster was in any manner given a chance of
being heard or participated in the investigations. The respondents however submitted that as an
international examining body set up by convention and law to conduct examinations in the
English-speaking West African sub-region, they had evolved rules and regulations to ensure the sanctity
of examinations and also to ensure fairness to candidates. The respondents further argued that during the
conduct of the 2000 Senior Secondary School Certificate Examinations, there were allegations of
foreknowledge of some of the question papers. They therefore had all the scripts of the candidates
scrutinised and it was established that there was foreknowledge and collusion among the applicants. The
court found, inter alia, that the respondents did not have any statutory authority for cancelling the results
of the applicants.
Held, allowing the application:
(1) Article 23 of the Constitution, 1992 imposed a duty on administrative bodies and officials to act
fairly and reasonably. From the evidence, the applicants were never accused or charged. When the
respondents investigated the allegation of foreknowledge and collusion, neither the applicants nor
their headmaster was heard and thus none was given a chance to examine his accusers. The
respondents acted as investigators, prosecutors and judges in their own case and were therefore in
breach of article 23 of the Constitution, 1992. Accordingly, the decision was incurably bad, void
and of no consequence. Dicta of Lord Hodson in Ridge v Baldwin [1964] AC 40 at 132, HL; of
Kelly CB in Wood v Woad (1723) 1 Str 557; of Ofori-Boateng JA (as he then was) in L’air Liquide
Ghana Ltd v Anin [1991] 1 GLR 460 at 463, CA and R v University of Cambridge (1723) 1 Str
557 applied.
(2) Section 12 of the West African Examinations Council Law, 1991 (PNDCL 255) which gave power
to the Minister of Education to make regulations and legislative instruments dealing with, inter
alia, examination

[p.27] of [2001-2002] 1 GLR 25

malpractices had not been executed since 1991. The Minister for Education should therefore take
immediate action under section 12 of PNCDL 255 to define clearly the role of the respondents
when confronted with examination malpractices. In that way, the unfortunate practice whereby the
respondents issued periodic regulations and enforced same as if they were part of the laws of
Ghana would be curtailed.

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
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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