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

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.

On the 28/12/07, the respondent filed a notice of preliminary objection which is argued in pages 5-8 of the respondent’s brief of argument It was argued, in substance, that ground 3 of the 8 grounds of notice of appeal was neither raised in the High Court and Court of Appeal, nor covered by any issue or argument in the appellant’s brief and that the ground should therefore be deemed as having been abandoned. It was further argued that the appellant’s issue No.4 does not relate to nor rest on any ground of appeal and ought to be struck out. For these submissions learned counsel for the respondent relied on Dieli v. lwuno (1996) 4 NWLR (Pt.445) 622 at 633; Tukur v. Govt. of Taraba State (1997) 6 NWLR (Pt.510) 549 at 569; Okeke v. Oruh (1999) 6 NWLR (Pt.606) 175 at 192; Calabar East Co-Operative v. Ikot (1999) 14 NWLR (Pt.638) 225 at 247; Omo v. J.S.C., Delta State (2000) 12 NWLR (Pt.682) 444 at 454 – 455. It was further argued that ground 6 of the notice of appeal and appellant’s issues No. 1 and 4 are fresh points which do not flow from the judgment of the court below and having regard to the failure to seek and obtain the leave of court to raise and argue same, the ground and issues 1 and 4 based therein are incompetent. In support of this submission, counsel relied on Ajuwon v. Adeoti (1990) 2 NWLR (Pt.132) 271 at 283 – 284; Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385 at 403 and 416, Olaniyi v. Aroyehun (1991) 5 NWLR (Pt.l94) 652 at 686; Global Trans Oceanico SA v. Free Ent. (Nig.) Ltd. (2001) 5 NWLR (Pt.706) 426 at 438 e.t.c and Order 6 rule 5(1) of the Supreme Court Rules, 1985 (as amended).

With respect to respondent’s first issue, the insistence of learned counsel for the respondent is that the cancellation of the respondent’s result on the ground of examination malpractice is not only a punishment for an academic wrong but also that a criminal offence has been committed. This cancellation on the ground of an alleged malpractice without the respondent being heard violates his fundamental rights of fair hearing, he argued. It was contended that in exercise of disciplinary powers against a candidate for examination malpractice, the appellant is acting in a quasi-judicial capacity, comparable to a domestic or administrative tribunal bound to observe the twin rules of natural justice – namely (i) audi alteram partem and (ii) nemo judex in causa sua – embodied in section 36(1) of the 1999 Constitution and Article 7 of the African Charter on Human and Peoples’ Rights. Reliance was placed on Saba v. N.C.A.T.C . (1991) 5 NWLR (Pt.192) 388 at 414 – 415; Oyeyemi v. Commissioner for Local Govt. Kwara State (1992) 2 NWLR (Pt. 226) 661 – at 678, WAEC v. Mbamalu (1992) 3 NWLR (Pt.230) 481. A further submission is that the cancellation of the result was also illegal. Learned counsel referred to the undisputed facts of the respondent’s use of the provisional result for admission into the University of Ilorin in October 1992 and the fact that he only became aware of the cancellation five years after in November 1997 and submitted that the appellant was, in the circumstances, caught by the doctrine of estoppel by conduct. Reliance was placed on Oyeyemi v. Commissioner for Local Govt. Kwara State (supra) and Ude v. Nwara (1993) 2 NWLR (Pt.278) 638 at 602-663.

The respondent’s second issue pertains to the nature of the legal relationship between the parties. Learned counsel for the respondent referred to Rule 2(6) of the appellant’s rules and regulations made pursuant to section 23(1) of the West African Examination Council Act and submitted that the rules are not common law rules of the law of contract. The legal relationship of the parties, it was argued, is statutory and reliance was placed on Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550. In response to the appellant’s argument that given the large number of candidates involved in the examination malpractice, it was impracticable to accord every candidate a hearing before the cancellation, it was the contention of the respondent that the rules of natural justice provided in the fair hearing provisions of the Constitution and the African Charter on Human and People’s Right cannot be circumvented on such flimsy grounds. Assuming (without conceding) that the legal relationship is contractual, counsel argued, it was a contract with statutory flavour similar to that in Garba’s case and under which any punishment by way of cancellation of result must be preceded by due process.

For the third issue of the respondent, learned counsel referred to what he described as a fundamental concession of the appellant at the court below to the effect that the action could well be brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979 and submitted that the Court of Appeal did no more than upholding that position. It was argued that once the respondent claims that he was punished without the opportunity of being heard, he has raised the issue of natural justice and his fundamental rights under section 36 of the Constitution and for which protection he rightly initiated the action via the Fundamental Rights (Enforcement Procedure) Rules. In conclusion, counsel urged that the appeal be dismissed.

In the appellant’s reply brief, the following arguments were proffered. With respect to ground 3 of the notice of appeal the short answer was that it was not argued. On the appellant’s issue one, learned counsel for the appellant referred to paragraphs 9 and 11 of the facts in support to the application and paragraph 24 of the counter affidavit and submitted that the issue of “School Candidates” for May/June Senior School Certificate Examinations and that “External Candidates” are not allowed for the May/June examinations was raised at the High Court, Counsel further referred to the briefs of the parties at the court below and argued that the issue was also raised and argued but that it was not considered in its judgment. It was further contended that the issue of public policy raised and canvassed both in the High Court and the court below.

Let me first dispose of the preliminary objection. Ground 3 of the grounds of appeal was not argued and so that takes care of itself. With respect to the arguments about public policy and public good, I am persuaded by the argument of the respondent that there is no ground of appeal on which it is predicated. I would therefore discountenance all the arguments on the appellant’s issue four. It is also my view that the arguments about whether the relationship between the pm1ies is contractual or statutory are not quite relevant to the proper determination of the appeal. I would for that reason also discountenance the lengthy arguments in that respect. Having disposed of the points raised in the preliminary objection let me proceed to deliberate on the issues raised in the appeal. From a careful examination of the issues formulated by the parties, it appears to me that the respondent’s issues one and three sufficiently determine the appeal. The respondent’s issue three is, in substance, the same as the appellant’s issue three. The issue is that of competence and jurisdiction and should, of necessity, be accorded priority of consideration for the obvious reason that resolution of same in favour of the appellant renders the suit liable to be struck out for incompetence.

The issue is whether, having regard to the reliefs claimed, this action is validly brought by way of an application under the Fundamental Rights (Enforcement Procedure) Rules, 1979.1 have earlier, in this judgment, noted in substance the rather sustained argument of Chief U. Ohadugha for the appellant to the effect that the relationship between the parties is contractual which clear terms constitute the rules and regulations of the appellant and to which the respondent accepted to be bound; and that an action emanating therefrom can only be initiated by the issuance of a writ of summons and not through an application as was done in this case. He cited some authorities on the guiding principles which I have also noted above.

The settled principle is that in ascertaining the justice ability or competence of a suit commenced by way of an application under the Fundamental Rights (Enforcement Procedure) Rules, 1979, the court must ensure that the enforcement of the fundamental rights under Chapter IV of the Constitution is the main claim and not the ancillary claim. Where the main or principal claim is not the enforcement of a fundamental right, the jurisdiction of the court cannot be said to be properly invoked and the action will be liable to struck out for incompetence. In Tukur v. Government of Taraba State (1997) 6 NWLR (Pt.510) 549, this court per Ogundare, J.S.C. at page 576-577 gave effect to this principle when he stated:

“The primary complaint of the appellant in the whole case was his deposition as the Emir of Muri; the alleged breaches of his fundamental rights to fair hearing, Iiberty and freedom of movement were merely accessory to his primary complaint. The proceedings by way of the Fundamental Rights (Enforcement Procedure) Rules, are inappropriate in the circumstances. The appellant herein ought to have come by way of a writ of summons …. ”

Applying the same principle, Belgore, J.S.C. (as he then was) at page 578 said:

“This matter was taken to the trial court on a wrong vehicle instead of a writ of summons designed for initiating an action it was started with a motion on notice under Fundamental Rights Procedure under the Constitution. The crux of the complaint in the trial court, however is as to whether the plaintiff was lawfully deposed as the Emir of Muri, but was cloaked under Fundamental Rights. Since the main procedural approach at the trial court was incompetent, no relief could flow from it.”

In Egbuonu v. Bonjo Radio Television Corporation (1997) 12 NWLR (Pt.531) 29, this court applied the same principle. Invoking the principle, this court per Kutigi, J.S.C. (as he then was) a page 40 stated:

“In this appeal the claims are partly for wrongful dismissal or termination of appointment and partly for breach of fundamental right. But here, as in Tukur the principal claim being wrongful termination of appointment which ought to have been commenced by a writ of summons which was not, then all the claims, principal and subsidiary which flow directly from it, are incompetent and ought to be struck out. That was what the Court of Appeal did in this case. I believe it was right.”

In his own contribution Ogundare, J.S.C. at page 42 said:

“Having regard to the claims of the appellant set out in the judgment of my learned brother and the affidavit evidence adduced at the trial, there can be no doubt that his main complaint was against the termination of his appointment with the respondent (which he regarded as wrongful) and his sole relief was his reinstatement. All these are not matters for the procedure provided for in section 42 of the 1979 Constitution. Appellant’s action should have been commenced by a writ of summons as provided for in the High Court Rules of Borno State. The action having been thus commenced wrongly, it was rightly struck out by the court below.”

This principle was applied with equal force in Sea Trucks (Nig.) Ltd. v. Anigboro (2001) 2 NWLR (Pt.696) 159 at 182.

The question now is whether the principle in these cases applies to this case as to render the suit liable to be struck out for incompetence. It is settled law that in ascertaining the competence of a suit, the determining factor is the plaintiff’s claim. On this question however, it is not the manner in which the claim is couched that matters. Nor is the categorization given to the claim by the defendant that counts. The court has a duty to carefully examine the reliefs claimed to ascertain what the claim is all about. I have earlier reproduced the three reliefs claimed in this action. The first relief seeks a declaration that the cancellation of the respondent’s May/June 1992 Senior School Certificate Examination result by the appellant is illegal, unconstitutional, null and void as it violates the respondent’s right of fair hearing. The 2nd and 3rd reliefs claim an order compelling a reversion of the appellant’s cancellation of the respondent’s result, revalidation of the result and furnishing the admissions Office University of llorin with revalidated result.

The trial court held the view that the suit was rightly brought under the Fundamental Rights (Enforcement Procedure) Rules of the 1979 Constitution and proceeded to grant the reliefs claimed. The Court of Appeal in its reaction endorsed the position of the trial and concluded:

“I agree with this view. It is correct, for once it is accepted that the respondent having received a punishment (that is by the cancellation of examination result) by the appellant, an administrative body without hearing, it becomes incontestable that the Fundamental Rights (Enforcement Procedure) Rules can be invoked to seek legal redress ….”

The court’s reasoning was predicated entirely on the assertion in the first relief about there being breach of the respondent’s natural justice and his fundamental rights of fair hearing under the constitution. That approach was, with respect rather superficial. The court was bound to carefully examined reliefs claimed to see what the claim is all about. A careful examination of the three reliefs shows clearly that although the first relief claims a declaration that the cancellation was a breach of the respondent’s right of fair hearing and therefore unconstitutional, the main claim is the order for restoration of the cancelled result and making same available to the University of Ilorin for his graduation. Thus, the mere assertion of the violation of the respondent’s constitutional rights of fair healing does not necessarily make the action maintainable by recourse to the Fundamental Rights (Enforcement Procedure) Rules. The court has to examine the reliefs closely to ascertain what the plaintiff claims. On a thorough scrutiny of the reliefs claimed, it is my view that the principal and ultimate claim is the restoration of the cancelled result of the respondent for the purpose of its use for his graduation. And on the authority of Tukur v. Government of Taraba State (supra) and others which I have discussed above, this suit ought to have been initiated by a writ of summons where the parties could have filed and exchanged pleadings and evidence adduced and tested on the issue about the propriety or otherwise of the appellant’s cancellation of the respondent’s result. In the 30 paragraph counter affidavit of the appellant, for instance, the appellant raised issues about the respondent’s status as “an external candidates” and matters incidental thereto, whether or not she had any duty for direct communication with the respondent etc. These are not issues that can be effectually tried and resolved by affidavit evidence.

For the foregoing reasons, I hold that this action initiated under the Fundamental Rights (Enforcement Procedure) Rules is incompetent and is, for that reason, liable to be struck out. The result is that this issue of competence and jurisdiction is resolved in favour of the appellant and which effectually determines the appeal. And having come to this conclusion, it serves no useful purpose to go into the second issue.

In conclusion, I hold that this appeal succeeds. The judgment of the trial court affirmed by the Court of Appeal be and is hereby set aside. In its place is substituted judgment striking out the suit for lack of competence and jurisdiction. In view of the peculiar circumstances of the respondent, I make no orders as to costs.

SC.337/2002