West African Examination Council V. Akinola Oladipo Akinkunmi (2008)

LAWGLOBAL HUB Lead Judgment Report

TABAI, J.S.C.

This action was initiated at the Lagos Division of the High Court of Lagos State by way of a motion ex-parte filed on the 5th of October 1999. The applicant therein is the respondent in this appeal. The respondent therein is the appellant here. The application was brought under section 46(1) and (2) of the 1999 Constitution and Order 1 rules 2 and 3(1) of the Fundamental Rights Enforcement Procedure Rules, 1979. In the application, the respondent sought the leave of the court to bring an application for the enforcement of his fundamental right of fair hearing.

Leave was granted and pursuant thereto the respondent, on the 20th October, 1999, filed a motion on notice. The reliefs sought were:

“(i) A DECLARATION that the cancellation of the results obtained by the applicant in the May/June 1992 Senior School Certificate Examination by the respondent is illegal, unconstitutional null and void as same violates the applicant’s right to fair healing guaranteed by section 36 of the Constitution of the Federal Republic of Nigeria, 1999 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.

(ii) AN ORDER quashing the decision of the respondent to cancel the said results and compelling the respondent to issue the applicant a certificate based on the said results.

(iii) AN ORDER compelling the respondent to furnish the admission office of University of Ilorin the purportedly cancelled results of the applicant in the said May/June 1992 Senior School Certificate Examination forthwith.

The application contained a 23 paragraph statements of facts to which were attached exhibits A, B, C and D. In opposing the application, the appellant filed a 30 paragraph counter affidavit to which were attached exhibits PEl, PE2, PE3 and PE4. The parties, through their counsel filed and exchanged written addresses. In its ruling on the 12th September, 2002 the application was granted by the trial court. Dissatisfied, the appellant went on appeal to the court below. By its judgment on the 8th April, 2002, the appeal was dismissed.

Still aggrieved, the appellant has come on appeal to this court. The appellant’s brief was prepared by Uche Ohadugha and it was filed on the 25/3/03. He also prepared appellant’s reply brief which

was filed on the 18/3/04. Mr. Jiti Ogunye prepared the respondent’s brief. Same was filed on the 5/6/03. The notice of appeal dated the 5th July, 2002 contained eight grounds of appeal. And from these grounds learned counsel for the appellant formulated the following four issues for determination.

1. Whether in the conduct and writing of the May/June, 1992 Senior School Certificate Examinations, the status of the respondent as “external candidate” was proper and/or allowed and whether the said status had any effect on the respondent in this transaction.
2. Whether the relationship that exists between the appellant and the respondent in the conduct and writing of the Senior School Certificate Examinations was contractual and which empowers the appellant to withhold and cancel results of any candidate(s) including that of the respondent who engaged in examination malpractices.
3. Whether an application for a declaration under the Fundamental Rights (Enforcement Procedure) Rules, 1979 that the cancellation of the respondent’s result in the May/June Senior School Certificate Examinations is illegal, unconstitutional and violates the respondent’s right to fair hearing under 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 as the respondent was not heard, either orally or in writing before the cancellation can be maintained, sustained or resolved as a constitutional issue, in a case of examination malpractice against a candidate and in the face of the rules and regulations governing the conduct of the examinations.
4. Whether or not in the circumstances, there should be public policy considerations in arriving at a decision by the court.

Mr. Ogunye for the respondent identified the following three issues for determination.

1. Whether the cancellation of the result of the respondent in the May/June 1992 West African School Certificate Examination after the release of same to the respondent by the appellant on the ground that the respondent engaged in examination malpractice, is not illegal unconstitutional, null and void in view of the fact that the respondent was not accorded a fair hearing before the cancellation of the result
2. What is the nature of the relationship between the respondent and the appellant (whether the relationship between the respondent and appellant in the May/June 1992 West African School Certificate Examination which the respondent sat for was contractual and whether the undertaking by the respondent to abide by the rules governing the said examination when he registered for same empowered the appellant, while exercising its statutory disciplinary power and the West African Examination Council Act, Cap. 468, Laws of the Federation of Nigeria, 1990, to cancel the respondent’s result without regard to the respondent’s right to fair hearing under the Constitution and the African Charter on Human and Peoples
3. Whether the respondent’s complaint or claim against the cancellation and/or withdrawal of his Senior School Certificate Examination (S.S.C.E) result by the appellant could be validly brought by an application under the Fundamental Rights Enforcement Procedure) Rules, 1979 wherein the violation of section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 and Article 7 of the African Charter on Human and People’s Rights is being alleged

On behalf of the appellant, Chief Uche Ohadugha made the following submissions. With respect to the appellant’s issue one learned counsel distinguished two categories of candidates for the Senior School Certificate Examinations conducted by the appellant yearly. According to him, the first category are “SCHOOL CANDIDATES” who are final year students in a secondary school who are registered through and presented by the secondary school to the appellant specifically for the May/June edition of the Senior School Certificate Examinations. The second, according to counsel, are the PRIVATE CANDIDATES who apply individually and register with the appellant specifically for the November/December edition of the Senior School Certificate Examinations. It was the submission of learned counsel that the respondent, not being a final year student of the Atunrase Boys High School, Surulere, Lagos, was not qualified, in the first place, to be registered through and presented by the said secondary school to the appellant for the May/June 1992 Senior School Certificate Examinations. It was his final submission on this issue that the respondent cannot therefore be heard to complain, having exposed himself to the risk of non-qualification to so act and the consequences that ensued.

On the second issue, it was the submission of learned counsel for the appellant that there was a contractual relationship between the appellant and the respondent and that the rules and regulations which constitute the terms and conditions of the said contract are contained in the Standard Forms prepared and presented by the appellant to the candidates including the respondent who accepted to be bound by the said terms and conditions by filling and signing same. Counsel referred specifically to section B2(1) and (2) of the appellant’s rules and regulations and submitted that in view of the malpractices established in the respondent’s centre by the National Examinations Committee to which body the Principal of the Atunrase Boys High School Surulere also belongs, the appellant had the right to cancel the provisional result of the school including the result of the respondent. He submitted that W.A.EC. v. Mbamalu (1992) 3 NWLR (Pt.230) 481 is distinguishable from this case.

As regards the third issue, it was the submission of learned counsel that the rights sought to be enforced are common law contractual rights and not fundamental rights enforceable by recourse to the Fundamental Rights (Enforcement Procedure) Rules, 1979. It was the contention for the appellant that the mere fact of a declaratory relief would not elevate the cancellation of the result without a hearing to a constitutional right. The release or cancellation of the Senior Secondary Certificate Examination result relates and is limited to the parties contractual obligation and has nothing to do with the fundamental rights in the Constitution, counsel argued. On the meaning of the fundamental rights enshrined in the constitution, learned counsel relied on Peterside v. I.M.B. (Nig.) Lt. (1993) 2 NWLR (Pt.278) 712 at 731-734 and Ransome-Kuti v. A.-G.,of the Federation (2001) FWLR (Pt.80) page 1637 at 1709; (1985) 2 NWLR (Pt. 6) 211. According to counsel, the civil rights and obligations of the respondent exist independent of his entitlement to fair hearing and therefore the rights claimed are not constitutional rights to which the respondent is entitled.

On the 4th issue of whether there should be public policy considerations in arriving at a decision by the court, learned counsel referred to section l(i) of the West African Examinations Council Act, Cap. 468 of the Laws of the Federation of Nigeria, 1990 and submitted that in the performance of its duties in the conduct and review examinations and the award of certificates and diplomas, the appellant is bound to act in the interest of the public at large and for public good. He relied on Sonnar (Nig.) Ltd. & Anor. v. Partenreedri M.S. Norwind (1987) 9-11 SC 121 at 143; (1987) 4 NWLR (Pt. 66) 520. Counsel pointed out the uncontroverted fact that the whole school centre of the respondent’s Atunrase Boys High School cheated in the examination and submitted that an order for the revalidation of the respondent’s result would, by implication, mean an order for the revalidation of the entire school’s result and cautioned on the devastating repercussions of such a pronouncement. He urged in conclusion that the appeal be allowed.