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J U D G M E N T
KPEGAH JSC.
On 17 June 2004, this court
allowed the appeal against the
decision of the Court of Appeal
but reserved its full reasons to
be given later. I now proceed
to give my reasons why my vote
was cast that the appeal be
allowed.
The facts of this case are fairly
simple and I do not think a
detailed discussion or analysis
of them is crucial to the
determination of this appeal.
The essential facts should not
seriously be in dispute since
the case was contested from the
trial High Court to this court
purely on legal grounds, both
substantive and procedural, with
the latter dominating and
tilting the scales against the
appellant in the Court of
Appeal.
The case arises out of the decision of
the Final Award Committee of the
West African Examinations
Council (hereinafter referred to
as the council) not only to
cancel the entire results of the
appellants but also to ban them
from taking part in any
examinations conducted by it for
three years. The facts, which in
my view are essential for the
determination of this matter,
are briefly that the council is
established by a convention
between English-speaking West
African countries which was
later incorporated in the laws
of Ghana by the West African
Examinations Council Law, 1991
(PNDCL 225), with the sole
authority to conduct, in member
countries, such examinations as
the council may think
appropriate and to award
certificates and diplomas based
on the results of such
examinations. The council,
therefore, is the sole
authority
responsible in Ghana for the
conduct of both the Junior
Secondary Basic Education
Certificate Examinations (BECE)
and Senior Secondary School
Certificate Examinations
(SSSCE).
Between October and December 2000, the
council, as it normally does
every academic year, conducted
the Senior Secondary School
Examinations throughout the
country. The appellants were
all candidates at this
examination with their parent
school, the Notre Dame Minor
Seminary in Navrongo in the
Upper East Region as their
examination centre. While
waiting for their results, the
appellants were informed through
the headmaster of the school
about the cancellation of their
entire result on the grounds
that they had been involved in
some examination malpractices or
irregularities in relation to
Mathematics (Core) Paper 2. The
nature of the irregularities the
appellants were said to have
indulged in was that they had
foreknowledge of the paper and
colluded among themselves in
solving the questions.
Upon receipt of the letter informing
him of the cancellation of the
results of the appellants and
the imposition on them of a
three-year ban from taking any
examinations under the auspices
of the council, the headmaster
of the Notre Dame School
petitioned the council to review
its decision. He advanced a
number of reasons why he felt
the sanctions needed a review.
The most important and relevant,
in my view, is his objection to
the procedure adopted by the
council in its investigations,
culminating in the punishment of
his students. He urged upon
the council
that the claim that the
appellants had foreknowledge of
the Mathematics (Core) Paper 2
is only an allegation and the
invocation and “application of
rule 56 without further
investigation to ascertain the
veracity or otherwise of the
allegation is a bit harsh on the
poor
students.”
By this statement, I
understand the headmaster to be
taking issue with the procedural
unfairness of the investigations
which were said to have
established the involvement of
the appellants in examination
malpractices in relation to the
Mathematics (Core) Paper 2,
thereby calling for
the lifting of the sanctions
imposed on the appellants by the
Final Award Committee of the
Council. The fact that a
non-lawyer could raise such a
serious issue on procedural
fairness, to me only underscores
how fundamental and basic its
observance is by any person in
our present constitutional
dispensation making a decision
which affects the rights of
others. The headmaster also
contended in his petition for a
review that neither before,
during, nor after the
examinations at the centre was
there any incident which
suggested that any of the
students of Notre Dame School
had foreknowledge of any
examination papers, let alone
colluded during the
examinations. The headmaster
further indicated that when the
allegation of foreknowledge and
collusion was brought to their
attention, the school
authorities not only subjected
the affected students to a
thorough examination but also
the masters to self-examination
in what he called “a true spirit
of a minor seminary” in the hope
of finding where they might have
erred this time round but their
own investigations revealed the
contrary. He then protested the
innocence of the affected
students and claimed that any
similarity in their answers
might have been as a result of a
particular use of a common text
book – (Aki Ola Series) and SSS
Mathematics (Core) (Dalaba
Series); and that those books
treated past questions from 1993
to 1998 which the students could
have learnt.
In a short response to the
headmaster’s petition for a
review, the council stated 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
scrutiny of the scripts of the
candidates. As a result all
scripts were scrutinized. From
the scrutiny it was established
that there was foreknowledge and
collusion among the 13
candidates from your school in
Mathematics (Core) Paper 2. The
council therefore applied the
prescribed sanctions.”
The council rejected the
headmaster’s assertion that the
appellant during their
preparations for the
examinations, might have had
access to and used two
particular books that presented
already solved past questions
from 1993 to 1998 because the
headmaster did not indicate
which of the solved problems
were repeated in the 2000 SSSCE
Mathematics (Core) Paper 2; the
Council then denied that any of
the questions in the said paper
was a repeat from a previous
year. The council therefore
reiterated its position that
there was foreknowledge and
collusion among the appellants.
This was followed by a letter from
appellants’ solicitors raising
certain legal points why they
thought that the decision of the
Council was unlawful, null and
void since it violated article
23 of the 1992 Constitution, the
West African Examinations
Council Law, 1991 (PNDCL 255)
“and a host of other laws, rules
and regulations of this
country.” They also protested
the innocence of the appellants
and asked that their results be
released. When the council
failed to meet the demands of
the solicitors, they decided to
resort to the courts to redress
what they perceived
as the infringement of the
fundamental human rights of
their client.
Therefore, on 10 August 2001, the
appellants’ solicitors by an
“originating notice of motion”
initiated action in the Fast
Track High Court seeking a
number of declaratory reliefs
which can be summarised as
follows:
(i)
a declaration that the decision
of the Final Awards and
Examinations Committee of WAEC
to cancel the entire results of
the appellants is unlawful, void
and of no effect;
and
(ii) the barring of the appellants
from taking any examination
conducted by WAEC for three
years is equally unlawful, void
and of no effect.
The application also sought such
directions or orders which the
court felt was necessary for the
enforcement of any declarations
made by it.
In support of their application, the
appellants exhibited a number of
documents which they felt
supported their case. These
documents included the letter
dated 30 April 2000 informing
the headmaster of the
cancellation of the entire
results of the appellants –
(exhibit A). The headmaster’s
petition on behalf of the
appellants for a review was also
exhibited as (exhibit B). The
reply of the council to the
headmaster reiterating its
position was (exhibit C). The
letter from the appellants’
solicitors was marked (exhibit
D); and that of the council
acknowledging same was (exhibit
E). This letter merely
acknowledged receipt of the
letter on behalf of the
appellants and indicated, in a
typical public service fashion
that the petition had been
forwarded to the Final Awards
Committee, the decision of which
would be communicated later. It
is obvious to me that it was
this typical public service
attitude of “we are looking into
it” when action was immediately
called for. That kind of
response compelled the
solicitors to resort to the
courts and apply for a judicial
review under articles 23 and
33(1) of the 1992 Constitution.
In an affidavit in opposition sworn to
by Mr Frederick Selby, solicitor
for the council, and filed on 20
August 2001, the council tried
to justify the decision of its
Final Award Committee on a
number of legal grounds, before
finally objecting to the
procedure the appellants adopted
in invoking the jurisdiction of
the High Court under article
33(1) of the Constitution. I
think it will be prudent on my
part to quote the relevant
paragraphs of the Council’s
affidavit in opposition:
“(5) That in the exercise of the
powers conferred on it, the
respondent council has evolved
rules and regulations to ensure
the sanctity of examinations and
also to ensure fairness to all
candidates. This responsibility
enjoins the respondent council
to stem out acts of examination
malpractices for the public
interest…
(8)… The respondent council says
that following allegations of
leakage of the 2000 SSSCE
Mathematics (Core) 2
Pape
all scripts were scrutinized.
That there was
sufficient
evidence in the scripts of
the plaintiffs (sic) confirm
collusion arising out of
foreknowledge.
(9) In further answer the
respondent council says it has
all the expertise to detect
collusion among candidates.
(10) That the respondent council
admits paragraph (10) of the
affidavit in support and says it
took the action for the public
interest.
(11) … The respondent council
says the evidence in the scripts
of the plaintiffs are so
manifest that by its rules the
respondent council as an
examining body does not need to
invite candidates to make
representation. The practice is
universal with all examining
bodies.
(12) … The respondent council
says that the examination
results are not a matter of
human rights. That cancellation
of examination results on good
grounds does not constitute an
infringement of human rights.
Council will make reference to
relevant provisions of the 1992
Constitution.
(14) … The respondent council
says that as the name suggests,
the Final Award Committee is the
appropriate body that takes
decisions in all matters
affecting the SSSCE. As such it
is the same body that can review
its decisions, if any.
(15) … The respondent council
says that the decision was based
on evidence and was therefore
reasonable and fair.
(16) … The respondent council
says its decision does not
contravene any provision of the
1992 Constitution.
(17) … The respondent council
says its obligation of stemming
out acts of examination
malpractices is for the public
interest and therefore overrides
all other personal interests.”
After deposing to facts which can
conveniently be described as a
defence of justification for the
council’s decision, Mr Fredeick
Selby, the Solicitor for the
West Africa Examinations
Council, obviosly under a
misapprehension, challenged the
procedure adopted by the
apellants in the concluding
paragraphs of his affidavit in
opposition thus:
“(18) The originating summons
are used:
(i) under Order 54A to obtain a
declaration as to construction
of an instrument, will, deed or
statute;
(ii) under Order 54, r 15 for
the etermination, without any
administration of the estate or
trust, of the rights of persons
interested, the ascertainment of
any class of creditors, etc or
the furnishing of accounts;
(iii) under Order 54, r 16 for
the administration of a trust or
of the property of the estate of
a deceased person;
(iv) under Order 54, r 18 for
the foreclosure or redemption,
etc of a mortgage.
(19) That the present procedure
adopted by the applicants does
not give room for vidence,
which is very vital in this
case.
(20)That under the circumstances the
procedure adopted by the
plaintiffs is not the best to
determine the merits of the
matter.
(21)That the present action is
misconceived and lacks merit.
(22)That plaintiffs are not entitled
to the reliefs or at all.”
Later, in a supplementary affidavit
filed on 27 August 2001, the
same lawyer sought to “amend
paragraphs (5) and (11)” of his
original affidavit and to depose
to a new information that the
Final Awards Committee of the
council did, indeed, invite the
headmaster, Rev Fr Simon B Asofo
and one Mr Konlaan, the
invigilator for the day, to make
representations on behalf of the
appellants only for these
officers to confess in written
statements that the appellants
did receive pre-examination
briefing before the Mathematics
(Core) Paper 2. No such written
statements were exhibited as any
prudent lawyer would have done
in compliance with the Rules of
Court. For the avoidance of
doubt, I would like to I quote
the said affidavit in relevant
parts:
“(3) That I amend paragraph (5) of the
affidavit in opposition to read
as follows: That in exercise of
the powers conferred on it, the
respondent council has evolved
rules and regulations to ensure
the sanctity of examinations and
also to ensure fairness to all
candidates. This responsibility
enjoins the respondent council
to stem out acts of examination
malpractices for the public
interest. Counsel will make
references to regulations,
structure and scheme of the
examinations for the
Senior Secondary
School Certificate Examination
(SSSCE). Counsel will also make
reference to the statement of Fr
Simon B Asofo, headmaster
indicating that he briefed the
students before the commencement
of the examinations.
(4) That I amend paragraph (11) of my
affidavit to read as follows:
That in answer to paragraph (11)
of affidavit in support, the
respondent council says the
evidence in the scripts of the
plaintiffs are so manifest that
by its rules the respondent
council as an examining body
invited the headmaster of the
school and Mr Konlaan, the
supervisor in its
investigations. That being a
school examination the
respondent council did not need
to invite candidates to make
representation.”
I would like to briefly
comment on this peculiar
procedure adopted by learned
counsel for the council asking
that he be permitted to “amend”
paragraphs (5) and (11) of the
affidavit he had earlier sworn
to in opposition, and to depose
to new facts. I am very
doubtful whether this procedure
is permissible since to depose
to a new state of facts which is
inconsistent with that deposed
to in an earlier affidavit is
not the same as an application
for amendment of pleadings and
should not be considered as such
so as to allow such a strange
application at anytime as
is permitted by
the rules of court in the case
of pleadings. I dare say so
because I consider a deposition
as to the existence or
non-existence of a state of
facts as evidence for all
purposes and cannot simply be
re-called by another affidavit
stating a state of facts
inconsistent with the earlier
one, as is sought to be done in
the instant case. Even if a
party could be allowed to, as it
were, “amend” a deposition in an
earlier affidavit, he should not
be allowed to do so unless he
satisfactorily explains how he
came to depose to the previous
information.
My Lords, I have a confession to make
myself. I was deeply troubled
by this serious lapse on the
part of learned counsel; and if
you may permit me to re-call our
anxieties and concerns during
conference as to the likely
ramifications of our final
decision, upon reflection,
however, and speaking for
myself, I now think it was a
needless anxiety because of this
singular faux pas by
learned counsel. As I would
have been persuaded to adopt a
different position in this
matter had there been some
cogent and credible evidence on
record which is supportive of
this allegation and from which
one can safely make a finding of
fact in this direction, namely,
that the headmaster and the
invigilator were not only
invited but also did admit to
briefing the students.
I crave, your Lordships indulgence for
patience with me if I appear to
be treating “a non-essential
issue” or an issue not relevant
in this appeal because I
strongly feel that the whole of
my thought-process in arriving
at my decision be sufficiently
adumbrated. Moreover, I feel
greatly troubled by, and cannot
honestly gloss over, what I
consider to be learned counsel’s
serious lapse and inadequacies
on an important and crucial
issue like tendering of
confession statements from the
headmaster and the invigilator
to the detriment of his client’s
case.
I have therefore decided to change my
normal approach and to write
this particular judgment in a
what I will refer to as a
“tutorial style;” (that is to
say, pointing out what I
consider to be mistakes of
counsel and suggesting possible
solutions), so as to forestall
any possible accusations of lack
of sensitivity to the public
interest.
As earlier indicated,
although I am skeptical about
the procedure whereby a party
files a supplementary affidavit
seeking to, as it were, amend,
recall or recant a disposition
he had made in an earlier
affidavit, I have, however,
noticed from the record of
proceedings that, the learned
trial judge indulged learned
counsel with a week’s
adjournment to enable him put
his house in order, as we often
say, and yet counsel did not
take advantage of this
opportunity. The following
dialogue took place between him
and the court when counsel
attempted to show to the court
the alleged confession
statements. This is what
happened as recorded:
“Selby: … My Lord, this is a
statement the headmaster wrote
when he appeared before WAEC,
Rev Father Simon B Asofo and
then another one signed by the
supervisor. My Lord we gave
them every opportunity as an
institution. The headmaster and
the supervisor appeared before
the WAEC committee and this are
written statements they offered
that day.
Judge: Is that part of the
material you have filed.
Selby: My Lord, he is just
telling us that we invited all
other headmasters except this
school and my Lord, I am only
trying to disband that argument,
they appeared before us.
Judge: I remind you that you
should not forget that you are
arguing on affidavit and
therefore if you know there is
any material which will be of
use to the court please submit
it. Make it part of the
material you have filed.
Because if you have not filed
any thing, I will not use it.
The rules do not permit me to
use material which is not filed
so don’t forget that. I will
give you one week from today,
that is to say, you will be
coming on 28th.
And in the interim, if you think
it should be here but is not
here please go and file it. So
the case is adjourned to 28
August 2001.”
Despite this obvious indulgent
attitude of the learned trial
judge, there is nothing on
record to suggest that an
affidavit exhibiting these two
potentially decisive documents
had been filed. In my candid
opinion, therefore, the decision
of this court must unfortunately
be put down on the inadequacies
of learned counsel. He cannot,
in my humble view, escape blame
for this culpa lata in
the handing of this case.
Because, if such evidence were
properly laid before the trial
court, it would have, in my
opinion, provided an
unimpeachable answer to the
complaint of the appellants
under article 23 which enjoins
administrative bodies and
administrative officials, in a
very robust and imperative
language, to “act fairly and
reasonably and comply with the
requirements imposed on them by
law.”
The phrase “to act fairly and
reasonably” in my opinion
necessarily imports a duty to
observe the common law maxim of
audi alteram partem and
other principles of natural
justice which is very much part
of our jurisprudence and are
implicit in the constitutional
provisions in article 23.
Because I cannot contemplate how
a person could be said to have
acted fairly and reasonably if
he did not give either notice or
hearing to another who was
entitled to such notice or
hearing before taking a decision
which adversely affects his
rights, neither can I
contemplate a situation where a
person could be said to have
acted fairly and reasonably if
he acted as a judge in his own
cause, or gave a biased and
perverse decision!
My Lords, it is clear to me that the
appellants anchored their plaint
on article 23 of the
Constitution of this country
and, in seeking redress, took
advantage of article 33(1) which
confers jurisdiction on the High
Court to adjudicate any lis
in which an individual either
alleges an actual infringement
of his fundamental rights or
brings a quia timet
action to prevent a threatened
breach of his rights. Article
33(1) states in unambiguous
language as follows:
“33(1) Where a person alleges
that a provision of this
Constitution on the fundamental
human rights and freedoms has
been, or is being is likely to
be contravened in relation to
him, then without prejudice to
any other action that is
lawfully available, that person
may apply to the High Court for
redress.”
And in clause (2) of the said
article, the High Court in the
exercise of its enforcement
jurisdiction
under clause (1) is empowered
to:
“33(2)…issue such directions
or orders or writs
including writs or orders in the
nature of habeas corpus,
certiorari, mandamus,
prohibition, and quo
warranto as it may consider
appropriate for the purposes of
enforcing or securing the
enforcement of any of the
provisions on the fundamental
human rights and freedoms to the
protection of which the person
concerned is entitled.”
Under clause (4) of article 33,
the Rules of Court Committee of
the Judicial Council is
entrusted with the
responsibility to make rules to
regulate the practice and
procedure for enforcing the
fundamental rights of the
individual by the courts. And
it is common knowledge that this
constitutional responsibility
has not yet been discharged by
the appropriate authority. It
is this void or lacuna
in the rules as to the
appropriate procedure to be
employed to invoke the
enforcement jurisdiction of the
High Court under clause (1) of
article 23
that
compelled the appellants’
solicitors “to apply to the High
Court for redress” by employing
the procedure of “originating
notice of motion” to invoke the
jurisdiction of the High Court.
But before I consider the
objection of learned counsel, I
would like to digress a little
bit and take a brief look at the
history behind the whole of
chapter 5 (articles 12-33) on
the Fundamental Human Rights of
the individual.
The historical and political
development of the country as
demonstrated by the landmark
case of In re Akoto
[1961] 2 GLR 523, SC not only
made it paramount but inevitable
that the fundamental rights of
the individual be enshrined and
entrenched in the 1992
Constitution, but also desirable
that a mechanism be provided for
their enforcement. Therefore,
in enacting the fundamental
rights of the citizen in
articles 12 to 32 of the
Constitution coupled with a
provision in article 33(1)
empowering the High Court to
enforce these rights, the
framers of our Constitution have
not only demonstrated their
resolve and determination to
confer rights on the individual
but also that these rights be
enforceable as well. It may be
that it is this mechanism that
the framers of our Constitution
intended to use to avoid, in the
future, a similar decision like
the one in In re Akoto.
Through the provisions of
article 33(1), the framers of
the Constitution have, as
pointed out by Robert
Hayfron-Benjamin J (as he then
was), in the case of Peoples’
Popular Party v
Attorney-General [1971] 1
GLR 138 where a similar
provision in the 1969
Constitution was considered,
clearly expressed their general
intention that the courts should
be the custodians and the
protectors of the rights and
liberties of the individual
citizens of the country. When,
however, it is a law which
infringes any of these rights
and liberties, that law is
pro tanto void and
proceedings have to be initiated
under articles 2(1)(a) and
130(1)(b) for such a declaration
rather than a resort to article
33(1) of the Constitution.
There is no gainsaying the
fact that the gravamen of the
appellants case is that the
council did not give them any
hearing contrary to the
principles of natural justice
which principles, by necessary
implication, are now enshrined
in article 23 of the 1992
Constitution before taking the
decision cancelling their
results; which decision in every
sense will adversely affect
them. There can be no doubt,
therefore, that the decision of
the Final Awards Committee of
the council could be reviewed by
the High Court by means of a
writ of certiorari to
determine whether the said
decision was given in compliance
with the principles of natural
justice and, in my view, with
the provisions of article 23 of
our Constitution as well. But
the appellants did not directly
follow this
procedure possibly because of
time constraint, as an
application for certiorari,
under our Rules, is
ordinarily subject to be brought
within six months from the date
of the decision complained of.
The “originating notice on motion”
taken out on behalf of the
appellants, therefore, was
essentially to determine whether
the appellants were fairly
treated or given a hearing in
accordance with the principles
of natural justice embodied in
the maxim: audi alteram
partem, before they were
sanctioned by the Final Awards
Committee of the Council. To
me, these issues could easily
and fairly be resolved on
affidavit evidence without
recourse to viva voce
evidence as learned counsel
erroneously assumed. To me,
therefore, the procedure of
originating notice
of motion adopted by
the appellants might not only be
to avoid the constraints of time
fortuitously imposed on them by
the rules of court if they had
brought an application for a
writ of certiorari, but
also as a simple, convenient and
pragmatic means of vindicating
their rights. And although the
Rules of Court Committee is yet
to regulate, as required by
article 157(2) of the 1992
Constitution, the procedure for
the enforcement of the
fundamental rights enshrined in
chapter five of the
Constitution, I think it will be
a great tragedy for the rule of
law, like the decision in the
Re Akoto case [1961] 2 GLR
523, SC, if we interpret article
33(1) in such a manner that an
individual is, meanwhile,
prevented from bringing the
infringement of his fundamental
rights under chapter 5 to the
attention of the court to
vindicate the rule of law and
get unlawful conduct reviewed
and stopped. The fortunes of
this case, therefore, will
depend on what construction we
put on the words “may apply …
for redress” in article 33(1).
And we must bear in mind that in
cases involving the rights of
the citizen, a simple but
efficacious procedure is the
most desirable. I will therefore
humbly urge your Lordships to
adopt a very liberal and broad
construction of article 33(1)
rather than any restrictive and
doctrinaire approach to its
interpretation. As Sowah JSC (as
he then was) advised (in
delivering the judgment of the
Court of Appeal sitting as the
Supreme Court in Tuffuor
v Attorney-General [1980]
GLR 637), we must regard the
Constitution as “a living
organism capable of growth and
development, as the body politic
of Ghana itself is capable of
growth and development.” In our
efforts at interpreting the
Constitution his Lordship
advised thus at pp 647-648:
“A broad and liberal spirit is
required for its
interpretation. It does not
admit of a narrow
interpretation. A doctrinaire
approach to interpretation would
not do. We must take account of
its principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time.
And so we must take cognizance of the
age-old fundamental principle of
constitutional construction
which gives effect to the intent
of the framers of this organic
law. Every word has an effect.
Every part must be given
effect.”
As earlier pointed out, human rights
cases are matters which must not
only be given liberal
considerations but also must be
expeditiously determined. In
such matters, therefore, a
simple or non-cumbersome but
efficacious procedure must be
adopted for its enforcement;
“simple” or “non-cumbersome” in
the sense that the procedure
should be readily available to,
and inexpensive for the ordinary
citizen of this country. And
“efficacious” in the sense that
the procedure will also allow
for a speedy and convenient
determination of the issues at
stake.
After carefully reading clauses (1)
and (2) of article 33 together,
I am firmly of the view that the
words must be given their
literal and ordinary meaning;
and the simple and ordinary
meaning I would ascribe to the
word “redress” as it is used in
clause (1) is “relief.” And
“apply” is wide enough to admit
any procedure by which the court
can be approached. The question
then may be asked: What types of
relief can be granted by the
High Court in such
circumstances? The answer is
immediately provided in clause
(2) of the said article 33 which
empowers the High Court “to
issue such directions or
orders or writs …
for the purposes of enforcing or
securing the enforcement” of the
rights to which, in the opinion
of the court, the person is
entitled. There should
therefore, first, be a
declaration as to the existence
or otherwise of a right and
its
infringement before an
appropriate “order” could be
made or a “direction” issued to
secure or enforce such a right.
It is my humble view that in the
circumstances of the case before
us, we can say without any fear
of contradiction that where an
individual brings such
proceedings in court, he must
have a high expectation of
obtaining an authoritative
declaration of his legal rights
coupled with the grant of an
appropriate judicial remedy to
vindicate those rights.
Therefore learned counsel’s
argument that the procedure is
inappropriate for a declaratory
judgment, not in the accepted
sense of it being a foundation
for a future action, is, with
the greatest respect,
not
maintainable. Presumably the
“directions” or “orders” or
“writs” may be aimed at the
person or body which violates
the rights of the individual who
brings the complaint to the
court. But to the question
against whom these fundamental
rights of the individual in
chapter 5 can be enforced, I
would, broadly speaking, answer
that it is against the “state”
or “executive”; so that prima
facie, the fundamental rights
become enforceable against local
or other authorities or agents
of the state and the executive,
or any person who violates
them. But article 23
specifically mentions
“administrative bodies” and
“administrative officials.”
This should not be inconsistent
with the above submission as to
the categories of persons
against whom the rights can be
enforced.
My Lords, it is interesting to note
that in conferring supervisory
jurisdiction on the High Court
over all lower courts and any
lower adjudicating authority,
the framers of the Constitution
provide, in almost identical
language, that in the exercise
of its supervisory jurisdiction,
the High Court has power to
issue “orders” and “directions”
for the purpose of enforcing or
securing the enforcement of this
jurisdiction. What then is the
meaning of the words
“directions” or “orders” “writs”
as used in clause (2) of article
33?
The writ of mandamus, certiorari
and prohibition were
replaced in England in 1938 by
“orders” of the same name. It
was quo warranto which
was replaced first by
information in the nature of
quo warranto, and later by
an injunction – that is, an
order of the court. In India,
which is also a common law
jurisdiction, however, the
writs of habeas corpus and
mandamus were replaced by
“directions” in the nature of
mandamus. So the words
“orders” and “directions” may
not be too different from the
old writs since the terminology
has also been in use in England;
especially when “common law” as
known in English jurisprudence
is still applicable in our
jurisdiction. One basic
principle of interpretation of
statutes is that the legislature
must be credited with knowledge
of the state of the law.
Applying this canon of
construction, it is submitted
that under the common law which
is still undoubtedly relevant in
our
jurisprudence, we can say that
since the High Court enforces
its supervisory jurisdiction
through the prerogative writs of
habeas corpus, certiorari,
mandamus, prohibition, and
quo warranto of old, it
is safe to presume that the
words “orders” and “directions”
and “writs” are used to describe
what at one time were called
prerogative writs in England; or
they refer to these established
and well-recognized English
writs. The words, in my humble
opinion, have been used in
clause (2) of article 33 and
clause (2) or article 2 to
describe well-recognized English
writs. There is, therefore, in
my considered opinion, internal
evidence in clauses (1) and (2)
of article 33, read together,
unlike in article 2 clauses (1)
and (2), that the framers of the
Constitution might have intended
to de-emphasize the formal
procedure of issuing a writ in
the High Court to invoke its
enforcement jurisdiction under
article 33(1), and rather
intended that the Rules of Court
Committee make rules which will
be as simple as, and similar to
rules for the application for
the old prerogative writs.
It is submitted that the principles
governing the issue of the writ
of habeas corpus, mandamus,
quo warranto, have not been
affected merely by reason of the
wide language used in article
33(2). It is doubtful to
conceive of any “direction” or
“order” which can secure a
result, for example, a
declaratory relief, which could
not be secured by the writs
expressly mentioned in the
article. The order, in my view,
therefore, could be declaratory
in form and so we can declare
the rights of the appellants and
secure its enforcement by the
appropriate “direction” or
“order” or “writ.” But wide as
the connotation of the words
“directions” or “orders” in
article 33(2) is, I do not
consider them so wide as to
include declarations for
foundation of future claims.
These can
appropriately be decided in a
more appropriate proceedings.
This is not to say that any
adequate alternative relief will
defeat the constitutional remedy
under article 33(1). It may
rather be that it is that other
relief which is the only relief,
and article 33(1) is neither the
proper nor the adequate relief
or means to secure it. This is
borne out by the phrase “without
prejudice to any other action
that is lawfully available” to
the individual as used in the
said article.
It is clear to me that the
intention of the framers of our
Constitution is that the
individual who alleges that his
fundamental rights have been
breached or is threatened to be
breached, should have cheap and
unimpeded access to the High
Court. On the issue whether
the appellants
were right in invoking the
jurisdiction of the High Court
by originating notice of motion
in the absence of specific rules
to vindicate their fundamental
rights, I have already indicated
that there is enough internal
evidence in the relevant
provision to permit the recourse
to such a procedure. Therefore
the objection that the procedure
of originating notice of motion
was inappropriate for the
reliefs sought by the
appellants; and that until
specific rules have been made by
the mandated authority to
regulate the procedure for
invoking the
enforcement
jurisdiction under article
33(1), the only viable
alternative was for the
appellants to have issued a writ
like in civil cases is, in my
view, not maintainable.
Although learned counsel did not
specifically refer to Order 2, r
1 of the High Court (Civil
Procedure) Rules, 1954 (LN
140A), its influence could
easily be discerned from his
views. It must be conceded that
this alternative procedure is
also available under clause (1)
of article 33. But it is a
procedure which can hardly
recommend itself to any human
rights lawyer because of its
cumbersome nature with
its attendant
delays which may result in
considerable expenses. In my
humble opinion, the procedure of
originating notice of motion is
currently the most suitable
procedure, in the absence of any
specific rules, for a situation
which no doubt may demand some
urgency and expeditious
disposal. The added advantage
of this procedure is that in
extreme cases, an applicant can
obtain an interim relief, even
if ex parte, for a brief period
only.
In the High Court the learned trial
judge rejected Mr Selby’s
objection, dealt with the
application on the merits and
granted the appellants’ reliefs
by quashing the decision of the
Final Awards Committee of the
Council. On appeal, the Court
of Appeal agreed with learned
counsel for the council and
overruled the High Court and set
aside its decision. This court
is therefore to decide whether
the High Court’s jurisdiction
was properly invoked or not.
My Lords, in overruling the High
Court, the Court of Appeal held
the view that two cases cited in
argument were not relevant to
the case they were dealing
with. These cases are: (a)
People’s Popular Party v
Attorney-General [1971] 1
GLR 138; and (b) Juandoo
v Attorney-
General of Guyana [1971]
AC 972, PC. In the case of the
People’s Popular Party v
Attorney-General, the
applicants, a registered
political party, applied for
police permit to demonstrate in
respect of certain national
issues but were refused the
permit by the police
without
assigning any reasons. Another
political party was, however,
permitted to demonstrate over
some of the issues. The
People’s Popular Party therefore
applied to the High Court by way
of originating motion under
article 28(2) of the 1969
Constitution claiming that their
rights of
association, movement and
assembly as provided under the
said Constitution, had been
infringed. The relief sought by
them was an order compelling the
police to issue them with a
permit. The Rules of Court
Committee, like in this case,
did not make rules to regulate
the procedure to be followed
under article 28(2) of the 1969
Constitution.
The court, presided over by Robert
Hayfron-Benjamin J, applying the
case of In re Meister Locius
and Bruning Ltd [1914] WN
390, held that where a statute
(article 33(2) the 1992
Constitution) in this case
provides for an application to
be made to the court without
specifying the procedure by
which such an application is to
be made, it may be made by
originating notice of motion.
The case was also relied upon by
the Law Lords in the Jaundoo
case where Lord Diplock, reading
the opinion of the Privy
Council, quoted with approval
the following words of
Warrington J:
“… where the act merely provides
for an application and does not
say in what form that
application is to me made, as a
matter of procedure, it may be
made in any way in which the
court can be approached.”
Although the Court of Appeal is
not bound by the decision of the
High Court, it is inexplicable
to me how this case could be
said to be “hardly applicable”
to the case before them,
especially when the case dealt
with a constitutional provision
in the 1969 Constitution which
can be said to be in pari
material with article 33(1)
of the 1992 Constitution, which
is involved here.
With much respect to the learned
judges of the Court of Appeal, I
personally think the case is on
all fours with the present one.
The Jaundoo case presents
the same scenario as in the case
before us. The Government of
Guyana proposed to construct a
new road through the applicant’s
land. She held the view that
her rights under article 8 of
that country’s Constitution
would be violated. The said
article prevented the compulsory
acquisition of property unless
under circumstances specified in
the article. There were similar
provisions in the
Constitution
empowering the High Court to
enforce a citizen’s fundamental
rights; and also a provision
requiring the rule making
authority of the Supreme Court
to make rules for the practice
and procedure to invoke the
jurisdiction of the High Court
to enforce the individual’s
rights but this was not complied
with.
The applicant by originating notice of
motion applied to the High Court
for redress. The court
dismissed the application in
limine on the grounds that
an originating notice of motion
was not the proper procedure and
that the proceedings should have
been commenced by a writ of
summons. The case travelled up
to the Privy Council where it
was held that since the
authorized body had not made any
rules in respect of the practice
and procedure for applications
to be made to the High Court for
redress, the right to apply was
unqualified and wide enough to
cover applications by any form
of procedure by which the High
Court could be approached to
invoke its powers, and an
originating motion was one such
procedure.
Again, with much respect, although the
Court of Appeal is not bound to
follow the decision of the Privy
Council in the Jaundoo
case, one would have thought
that it is on all fours with the
case before them and contained
useful guidance and should
therefore have been treated with
respect and applied. But
unfortunately the court said the
case was “inapplicable” to the
situation before it.
My Lords, if the Court of Appeal
thought it had reached a
complete dead end or cut-de-sac
in the matter, it could have
sought refuge under Order 74 of
our High Court (Civil Procedure)
Rules, 1954 (LN 140A), which
allows the adoption of the
practice in force in the High
Court of England where our Rules
make no provision for any
procedure. In 1962 the Supreme
Court Rules were revised in
England by the RSC (Review)
1962, which came into effect on
1 January 1964. And by the said
revision, Order 5 r 1 made
changes as to the mode of
commencing civil proceedings in
the High Court. The rule stated
thus:
“Subject to the provisions of
any Act and of these rules,
civil proceedings in the High
Court may be begun by writ,
originating summons, originating
motion or petition.”
This rule, juxtaposed to the
provision in article 33(1), in
view of the latter’s wide
language, could only lead to the
conclusion that the procedure
adopted by the appellants to
seek redress from the court was
permissible.
One last point which I think is
important for me to touch on is
the failure of learned counsel
to exhibit the alleged
confession statements of the
headmaster and the invigilator,
one Mr Kolaan, to establish his
allegation that the appellants
were invited per those officials
who confessed
the offence. The learned trial
judge was therefore justified in
his finding that the appellants
were not given hearing at any
stage of the council’s
investigations into allegations
of malpractices during the
examinations; and this is the
pith of the appellants’
complaint against the council.
To compensate for this failure,
learned counsel contended that
the council has the necessary
expertise to detect “collusion
among candidates through
scrutiny of the scripts”; and
that from this exercise, there
was sufficient evidence to
“confirm collusion arising out
of foreknowledge”
against the appellants.
I think, and this is
important for emphasis, that
there has been a misapprehension
of the real import of the
complaint of the appellants
under article 23 of our
Constitution. This is so
because it is a well-settled
principle of administrative law
that preliminary investigations,
like the comparison and scrutiny
of the scripts of candidates, is
not subject to the principles of
procedural fairness. But when
the council, after its own
preliminary investigations,
forms the opinion that there
might have been collusion as a
result of foreknowledge among
the students then, I think, the
principles of procedural
fairness, like giving notice and
hearing to the appellants, must
be observed. This is because
after such preliminary
investigations, the council
could be said to have some
evidence upon which to act and
take a decision affecting the
rights of the appellants. To
me, therefore, this case comes
within the category of cases in
which we cannot sincerely say
that this serious default
against article 23 had not
inflicted a gross injustice on
the appellants. It was an
unreasonable exercise of power.
Thus the argument of learned
counsel to the effect that the
issue concerned school
examinations and the council
could not, as a universal
practice, invite the candidates
to make representations is, to
me, untenable since it implies
the submission that the
observance of the rules of
natural justice was
administratively inconvenient
and the flawed procedure made no
difference to the decision. In
this country, the right to be
heard is a fundamental principle
enshrined in our Constitution
and cannot be ignored for
reasons of administrative
inconvenience.
Another problem area for the council
is the type of punishment
imposed on the appellants under
their own regulations. The
appellants were said to have
colluded in one paper –
Mathematics (Core) Paper 2.
This finding, admittedly was
arrived at through the scrutiny
of the scripts of the
appellants. The case therefore
squarely falls under section B,
regulation 3(a) of the
council which governed the
entire examinations in the year
2000. It provides:
“3(a) Where cases of
cheating are detected in the
scripts and/or otherwise
established in one paper, the
results of the subject involved
shall be cancelled. Where a
candidate is proved to have
cheated in more than one
paper/subject his entire
results shall be cancelled.”
Clearly, the council has acted
ultra vires its own
regulations, that is, section B,
reg (3)(a) which relates
to collusion. I do not see why
Mr Selby as solicitor for the
council, could not advise it
that under its own regulations,
it had acted ultra vires
and allow for an earlier
resolution of this case rather
that contesting in the courts
for all this while.
There has been some
argument about the regulations
not having been made by the
Minister for Education as
provided in the law establishing
the council but by the council
itself. The legal consequences
of such a default are too great
to contemplate and pronounce
upon now. In any case, I do not
think it is very crucial to the
determination of this case and I
will prefer to rest my decision
on the grounds earlier canvassed
in this judgment. We can only
call upon the minister
to perform the
functions he has been tasked
with under PNDCL 225 to avoid
any future embarrassment.
Charity, they say, begins from home.
And I cannot also forget the
saying “let everybody sweep in
front of his house and the whole
world will be clean.” It is the
default in our system which has
given rise to this case. I
cannot therefore end this
judgment without quoting Lord
Diplock in the Jaundoo
case (supra). He said at page
987 thus:
“Their Lordships, however,
cannot part with this appeal
without … drawing attention to
the urgent need which it has
disclosed for specific provision
to be made under article 19(6)
for the practice and procedure
to be followed in applications
and references to the High Court
under article 9(2). The absence
of such provisions has had the
result in the instant appeal
that the parties have been put
to the expense of three stages
of interlocutory proceedings,
and the applicant’s claim still
remains to be heard on the
merits nearly five years after
the proceedings began.”
For article 19(6) substitute
article 33(4) of the 1992
Constitution and for article
9(2) substitute article 33(1)
and the sentiments expressed in
this dictum will serve my
purpose.
I do not think whatever decision we
are compelled to arrive at will
be subversive of the important
public duty of the council to
check and eradicate examination
malpractices and preserve the
integrity of its certificates
and diplomas. It is rather a
decision which seeks to balance
the democratic rights of the
citizen as enshrined in article
23 against the obvious need, in
the public interest, of the
council to preserve the sanctity
of its examinations. I do not
think this case is one in which
injustice to one individual can
be said to be of no consequence
because the larger societal
interest is more important. For
the right of a nation is that of
the individual written in
capital letters. And a nation
that stands by and looks on
while the rights of the
individual are slowly pecked at,
eventually pays the ultimate
price of finding its own rights
eroded. Often times, the
concept of “public interest” and
“national security” have been
used to undermine and subvert
individual freedoms. These are
words which are not infrequently
on the lips of potential
dictators and often used as
convenient excuses for the
violation of individual rights.
We may accept some limitation on
the fundamental rights of the
individual only if it is
justified and proportionate.
Might be it was time we told
public authorities that they
would be held scrupulously to
the democratic rights enshrined
in chapter five (article 12-32);
and especially the values
impliedly enshrined in article
23. My Lords, in view of all
that I have said, I would allow
the appeal against the judgment
of the Court of Appeal and
restore the judgment of the High
Court. The judgment of the
Court of Appeal is hereby set
aside and that of the High Court
restored.
As indicated in the
preface to this opinion, we gave
our decision on 17 June 2004 but
reserved our reasons for
allowing the appeal, and the
issuing of our final orders to
today. We did so because at a
pre-judgment conference held a
few days before the intended
judgment day to discuss our
final orders, we were divided in
opinion as to whether the
appellants, in view of the
circumstances of the case, were
entitled to some damages as part
of the redress or not. And, if
so, what factors were to be
considered. We therefore
invited further submissions from
both counsel as a form of
assistance to us. The essence
of questions we posed to counsel
can succinctly and neatly be
reframed thus: whether a
constitutional provision like
article 33(1) for redress for
breach of fundamental rights and
liberties should be interpreted
to include the award of damages
when the act complained of is
the non-observance of the rules
of natural justice, or the
violation a fundamental rights
as in the instant case.
Admittedly, the question does not lend
itself to an easy answer. This
is because customarily, a breach
of the principles of natural
justice does not, as such, give
rise to a cause of action in
public law proceedings for
damages. Strictly speaking,
therefore, such a breach is not
defined to include the risk that
the irregularity might
proximately affect the outcome
and give rise to award of
damages in public law
proceedings.
In canvassing this traditional
viewpoint that proceedings such
as these are public law
proceedings and therefore the
appellants are not entitled to
damages, learned counsel for the
West African Examinations
Council relied on decided cases
like Cutler v
Wandsworth Stadium Ltd
(In Liquidation)
[1949] All ER 544 and the views
of Simon Brown J in the case of
Thames Valley Police; Ex
parte Cotton [1989] COD 318
where the learned judge said at
page 320 thus:
“The mere fact of succeeding in
judicial review proceedings does
not supply [an applicant with
the cause of action].
Successful natural justice
challenges do not carry in their
wake damages claims. They
entitle the applicant to a fresh
decision but it is generally
well recognized that the mere
quashing of a decision and the
recognition that the state of
affairs which it brought about
was unlawfully occasioned does
not carry with it an entitlement
to damages.”
This is a classic common law position
which is still part of the Laws
of Ghana. But the issue is
whether article 33(1) should be
interpreted to include the award
of some damages as part of the
“redress” under the said
article. Learned counsel
submitted that the above dictum
“mirrors the Ghanaian position”
and that the only remedies
available are those mentioned in
article 33(2). The logical
conclusion of this submission,
in my view, is that the orders,
directions and writs etc are
intended only to enforce the
particular rights contravened
and this cannot be achieved by
the award of damages; a
position, counsel submitted,
which is reinforced by the words
“without prejudice to any other
action that is lawfully
available” to a victim. This,
counsel submitted, not only
excludes the right to damages
after a successful application
under article 33(1) of the
Constitution but also concedes
the multiplicity of actions and
prevents a plea of estoppel so
that an aggrieved person must
institute fresh action for
damages.
In the case of Edusei v
Attorney-General [1996-97]
SCGLR 1 at page 46, I did
express myself in words which
may appear to be supportive of
this view when I was commenting
on the words “without prejudice
to any other action that is
lawfully available to him” thus:
“These words cannot be said to
have conferred jurisdiction on
this court, or any other court
for that matter, to enforce
individual rights as some may
argue. In my humble opinion,
it simply means that if any
other cause of action is open to
an individual as a result of the
violation of his rights, he
shall not be foreclosed by his
initial action to vindicate his
right from pursuing that other
action. An example can
help illustrate
the point. Mr Delali, a
businessman, has been
unlawfully detained for say six
months before his release
through an application for a
habeas corpus. Mr Delali is
not precluded from bringing an
action for damages if his
business has collapsed as a
direct result of his detention
and for unlawful detention.”
(The emphasis is mine.)
It is therefore true to say that
while a prior recourse to
proceedings under article 33(1)
of the Constitution to secure
the immediate determination of
the breach of a fundamental
right cannot be construed as a
waiver of the consequences of
the breach with its attendant
remedies previously known to our
laws in any private law
proceedings, it may not also be
too far-fetched to say that the
intention of the framers of the
Constitution is to create a new
remedy in addition to any
existing remedies known to the
common law. The question
whether the appellants are
entitled to some compensatory
award may therefore be resolved
by the interpretation we put on
the word “redress” as used in
article 33(1).
My Lords, the breadth of language
employed in the said article
33(1) should encourage us to
follow the broad-minded approach
and liberal interpretation
adopted by the Privy Council in
the case of Maharaj v
Attorney-General of Trinidad &
Tobago [1978] 2 WLR 902
where it was held that the award
of some damages could be a
component of the redress the
court is entitled to give.
This was a case in which a lawyer was
convicted of contempt and
sentenced to prison for seven
days without due process. He
immediately filed an ex parte
notice of motion to the High
Court under section 6 of the
Constitution of Trinidad &
Tobago, claiming redress for the
violation of his fundamental
rights, guaranteed under section
1(a) of the said Constitution,
not to be deprived of his
liberty except by due process.
In the Privy Council the
majority of their Lordships held
the view that an order for
payment of compensation when a
right protected under section 1
“has been” contravened is
clearly a form of “redress”
which a person is entitled to
claim under section 6(1) and may
well be the only practicable
form of redress in a post
contravention situation as it is
in the instant case before us.
It must be pointed out that
section 6(1) of the Constitution
of Trinidad & Tobago corresponds
with article 33(1) of our
Constitution and is couched in
almost identical language with
the influential words “may apply
to the High Court for redress”
featuring in both provisions.
Their Lordships were confronted with
the same problem which now
confronts us in the instant
case. And as pointed out by
Lord Hailsham of St Maryleborne
in his dissenting opinion: “the
only question in this appeal is
whether the state is liable to
pay monetary compensation to the
appellant.” The majority
answered in the affirmative, and
speaking per Lord Diplock, said:
“What then was the nature of the
‘redress’ to which the appellant
was entitled? Not being a term
of legal art it must be
understood as bearing its
ordinary meaning, which in the
Shorter Oxford Dictionary, (3rd ed)
1944 is given as: Reparation of,
satisfaction or compensation for
a wrong sustained or the loss
resulting from this. At the
time of the original notice of
motion the appellant was still
in prison. His right not to be
deprived of his liberty except
by due process of law was still
being contravened; but by the
time the case reached the Court
of Appeal he had long ago served
his seven days and had been
released. The contravention was
in the past; the only
practicable form of redress was
monetary compensation.” (The
emphasis is mine).
My Lords, although we are not
bound to follow the decisions of
the Privy Council or any other
court, I am not particularly
enthused with treating this
decision with any careless
abandon in view of the
similarity in language of
article 33(1) with section 6(1)
involved in the Maharaj
case. It is therefore a case I
find very relevant and
persuasive enough and we must
accord much judicial respect to
it.
The Maharaj case, like the
instant case, was dealing with a
post violation of the
fundamental rights situation.
The appellant had already served
his sentence before his appeal
was heard and the Board of the
Privy Council felt the only way
such a wrong could be
adequately
redressed was not only by
quashing the conviction and
order of imprisonment but also
by the award of some damages.
And in the case before us we are
similarly dealing with a
contravention which is now in
the past. The appellants have
been frustrated in planning
their future in the academic
field and entire life for the
past four years not only as a
result of the unlawful
suspension of their entire
results but also their
illegal barring from taking any
examinations under the auspices
of the council for three years.
I find intolerable and
unconscionable
the situation
the appellants went through by
the decision of the council;
especially when under their own
regulations they are not
entitled to withhold the
entire results of the
appellants and in addition
bar them for three years.
In the circumstances, I think a token
and moderate compensatory award
coupled with the relevant orders
and directions to the council
will fairly and reasonably
redress the contravention of the
appellants’ rights. I must,
however, caution that this
should be limited to its own
facts since it is not intended
to represent any general
principle regulating a court’s
discretion which will open the
floodgates for the award of all
types of damages in public law
proceedings.
My Lords, under article 129(4) of the
1992 Constitution we are
empowered to do what the court
below ought to have done. It
will certainly be a needless
dissipation of valuable time to
remit this case to the court
below, as was one in Maharaj
case, with a direction to assess
the “damages.” I would instead
recommend to your Lordships that
each of the appellants be
awarded a token monetary
compensation only, assessed at
¢5 million cedis to each of the
appellants.
F. Y. KPEGAH
JUSTICE OF THE SUPREME COURT
SOPHIA AKUFFO JSC.
Essentially, this case is about
access to timely and effective
judicial protection of the
fundamental human rights and
freedoms enshrined in chapter 5
of the 1992 Constitution, in
general, and the right of the
individual to administrative
justice in particular. I will
briefly touch upon the
objectives of chapter 5 and
discuss the objectives and scope
of articles 33 and 23 in some
detail. I will not set out to
any great extent the factual
background of the appeal since
some of my learned colleagues
have ably done so in their
respective opinion. However, I
will advert to some of the
salient facts as and when
necessary.
The Fundamental Human Rights and
Freedoms
In our collective and national quest
for overall good governance, the
rights and freedoms set out in
chapter five of the 1992
Constitution constitute, by far,
some of the most crucial
mechanisms created by the
Constitution for assuring the
attainment and sustenance of the
political, social, economic and
cultural foundations of a modern
democracy. The Committee of
Experts (Constitution), in their
Proposals for a Draft
Constitution of Ghana gave
comprehensive justifications for
the formulation of chapter 5,
and the inclusion of provisions
on fundamental human rights and
freedoms in our Constitution. Of
their numerous reasons, one may
refer, in particular, to those
set out in paragraphs 132, 133
and 139 of the Report, which
respectively read as follows:
“132. Throughout Africa and,
indeed, a significant part of
the Third World, there has been,
in recent years, a sustained
public clamour for the
promulgation and enforcement of
human rights and freedoms as a
critical ingredient of the
democratization process…
133. This resurgence of interest
in human rights is hardly
surprising. Apart from the
obvious desire for a more
democratic order and the
universal yearning for human
dignity, there is a growing
realization that the enjoyment
of the basic freedoms is
conducive to the development and
purposeful application of human
resources and, indeed, the
establishment of an environment
that enhances development...
139. The Committee also
elaborated the social and
economic aspects of human rights
– aspects which are of
particular relevance to the
conditions of Africa and the
developing world generally. Some
of these rights are included in
the proposed Directive
Principles of State Policy,
except that here they are more
precisely elaborated as
rights...”
The scope and magnitude of guaranteed
fundamental human rights and
freedoms are such that, the 1992
Constitution, in article 33(5)
makes it very clear that the
rights and freedoms specified in
chapter 5 are not intended to be
exhaustive or exclusive of other
rights, duties, declaration and
guarantees relating to
fundamental rights and freedoms
“which are considered to be
inherent in a democracy and
intended to secure the freedom
and dignity of man.” (The
emphasis is mine). They are also
reflected in the opening clause
of chapter 5 (article 12(1))
which declares that:
“12(1). The fundamental human
rights and freedoms enshrined in
this Chapter shall be respected
and upheld by the Execudive,
Legislature and Judiciary and
all other organs of the
government and its agencies and,
where applicable to them, by all
natural and legal persons in
Ghana, and shall be enforceable
by the courts as provided for in
this Constitution.”
Thus, the judiciary is also required
to do everything
constitutionally and legally
possible to assure that, in the
exercise of its functions, these
rights and freedoms are upheld
and respected; subject of course
to a concomitant respect for the
rights and freedoms of others
and for the public interest.
The Constitution, in
chapter five, does not only
proclaim the fundamental rights
and freedoms but goes on, in
article 33, to provide, through
the High Court, effective means
for assuring
the
protection of these rights. In
this light, therefore, it is the
duty of the High Court, and
appellate courts, to ensure
that, where a person approaches
the seat of justice for the
protection of his rights and
freedoms, the procedural rules
of court do not become
instruments for obstructing or
denying the aggrieved person’s
access to justice. Hence, the
well-known dictum of Collins MR
in In re Coles & Ravenshear
[1907] 1 KB 1 at 4 remains a
healthy reminder that:
“Although I agree that a court
cannot conduct its business
without a code of procedure, I
think that the relation of rules
of practice to the work of
justice is intended to be that
of handmaiden rather than
mistress, and the court ought
not to be so far bound and held
by rules, which after all are
only intended as general rules
of procedure, as to be compelled
to do what will cause injustice
in the particular case.”
Issues for determination
In arriving at its decision that
is now on appeal, the Court of
Appeal made the following key
findings:
(1) The procedure by which the High
Court’s jurisdiction was invoked
was contrary to the rules of the
court and therefore irregular
and incurably bad, especially
since the action raises issues
of fact that can only be
established by evidence.
(2) The procedure adopted by the
appellant is inapplicable in
asserting a right under article
23.
(3) Until it has been clearly and
amply demonstrated that a
constitutionally guaranteed
fundamental human right has been
breached or contravened, no one
can bring an originating motion
on notice under article 33(1) of
the Constitution.
(4) In arriving at its decision to
impose penalties on the
appellant and his colleagues,
the respondent (hereinafter
referred to as WAEC) was
exercising an administrative
rather than judicial function.
Therefore, there has not been
any breach of article 23 of the
Constitution.
(5) The action taken by the WAEC was
neither ultra vires nor
arbitrary, but rather in
accordance with the provisions
of the West African Examinations
Council Law, 1991 (PNDCL 255).
In this appeal, the
appellant filed no less that ten
grounds most of which are, to my
mind,
merely verbose and repetitive.
In substance, these grounds may
be summed up as follows:
(a) The Court of Appeal erred when it
held that the High Court’s
jurisdiction under article 33(1)
of the Constitution may be
invoked only when a fundamental
human right under the
Constitution has in fact been
contravened.
(b) The Court of Appeal erred in
holding that, in the exercise of
its statutory and administrative
functions, WAEC had not breached
the appellants’ right to
administrative justice under
article 23.
(c) The Court of Appeal erred in
holding that the procedure of
originating motion on notice
adopted by the appellants was
inappropriate and flawed and was
inapplicable to article 23.
The determination of this
appeal, therefore, turns on the
two central issues of:
(1) whether or not the procedure of
originating motion on notice to
invoke the jurisdiction of the
High Court under article 33(1)
of the Constitution is
inappropriate, flawed and/or
incurably bad; and
(2) whether or not WAEC has breached
the appellants’ rights under
article 23 or any of their
fundamental human rights.
Procedure for invoking article
33(1) of the 1992 Constitution
I will first deal with the more
primary issue of the appropriate
procedure for invoking the
jurisdiction of the High Court
under article 33(1) and (2), in
view of the conclusion reached
by the Court of Appeal. The
article reads as follows:
“33(1) Where a person alleges
that a provision of this
Constitution on the fundamental
human rights and freedoms has
been, or is being or is likely
to be contravened in relation
to him, then, without prejudice
to any other action that is
lawfully available, that person
may apply to the High
Court for redress.
(2) The High Court
may, under clause (1) of this
article, issue such directions
or orders or writs including
writs or orders in the nature of
habeas corpus, certiorari,
mandamus, prohibition, and
quo warranto as it may
consider appropriate for the
purposes of enforcing or
securing the enforcement of any
of the provisions on the
fundamental human rights and
freedoms to the protection of
which the person concerned is
entitled.” (The emphasis is
mine).
It is clear to me that the
primary objective of article
33(1) is to give full effect to
the preceding provisions of
chapter 5, by making them
enforceable by the High Court at
the instance of every person who
claims to be affected by a past,
on-going or impending breach of
any of the said provisions. In
order to protect the rights and
freedoms enshrined in the
chapter five, therefore, the
article gives to every person,
who alleges that any of his
rights or freedoms has been, is
being or is likely to be
contravened, a
right of access to the High
Court for redress. And the High
Court, pursuant to its
obligation under article 12(1)
to protect and uphold these
rights and freedoms, has been
given the mandate (under article
33(2)) to exercise the full
gamut of its judicial powers to
assure effective redress to such
a person who brings his or her
grievance before it. By virtue
of article 140(1), the High
Court has (subject to the
Constitution) jurisdiction in
all matters. One would,
therefore, be justified in
thinking that, given its
breadth, such jurisdiction
would encompass
the matters set out in article
33(1) and (2). It is, therefore,
noteworthy that, despite this
broad jurisdiction, the drafters
of the Constitution deemed it
necessary to include these
provisions specifically and
subject article 140 to them. It
is also significant that,
having, in article 140(1) given
such an expansive jurisdiction,
the next clause (article
140(2)), nevertheless,
particularises the High Court’s
jurisdiction to enforce human
rights and freedoms. We can only
presume that, by article 33(1)
and (2), the esteemed drafters
intended to create, and have
created, a special jurisdiction
of the High Court which may be
invoked in the manner stipulated
in that article.
I believe it is pertinent, at this
stage, to set out some salient
portions of the judgment under
appeal herein. Owusu-Ansah JA,
in his opinion (concurred in by
his brothers in the Court of
Appeal), made the following
statements:
“That provision [ie
article 33(1)] in my opinion,
postulates that in this case the
fundamental human right under
the Constitution of 1992 has
been contravened in relation to
the aggrieved party; this must
be a condition precedent to
the invocation of
article 33(1)
...
It is not very clear which
‘fundamental human right’ under
the Constitution has been
breached or contravened so as to
justify the invocation of
article 33(1)
… by means of an originating motion
on notice or originating
summons
… In my view the procedure adopted
in this case, that is,
originating motion on notice, is
inappropriate and flawed, since
… the respondents (the
appellants herein) were seeking
a number of declarations
… It is my considered view that
the jurisdiction of the High
Court could and should have been
more appropriately invoked
… The (the respondent therein)
catalogues a list of statutory
provisions allegedly contravened
by the appellant council, in
many cases without any
indication as to how. However,
these alleged rights can only be
asserted by means of the
proper procedures in
order to invoke the
jurisdiction of the court
… In my view, unless the
jurisdiction of the court is
properly invoked in accordance
with the relevant Rules any
argument, however meritorious,
cannot be entertained
… Again it is a well
established rule that where the
facts are not capable of being
determined on affidavit
… then and in that event it will
be necessary to take evidence.
The court cannot condone such a
glaring error as occurred in
this case
… The jurisdiction of the court is
the power to hear and determine
the subject matter in
controversy between the parties
to the suit, the power or
authority to adjudicate
... Jurisdiction can be
properly invoked under Order 2,
r 1 of the High Court (Civil
Procedure) Rules, 1954 (LN 140A)
… which provides that “Every
action in the High Court shall
be commenced by a writ of
summons” subject of course to a
few exceptions, such as a
petition in a divorce case under
Order 55, r 3(1) or in an
appropriate case, an originating
motion or
originating summons
... It is true that no Rules had
been made by the Rules of Court
Committee in pursuance of
article (33(4) of the
Constitution. That, however, is
immaterial until it has been
clearly and amply demonstrated
that a constitutionally
guaranteed human right has been
breached or contravened, giving
rise to the invocation of
article 33(1). In such an
eventuality, no one can
legitimately quarrel with such
an application being made by an
originating motion on notice.
Thus in my respectful view the
decision in People’s Popular
Party v Attorney General
[1971] 1 GLR 138 cited with
approval in subsequent cases is
hardly applicable to the instant
case
… A careful perusal of the
available affidavit evidence,
the facts of the case, and all
the surrounding circumstances
would seem to confirm the need
to take evidence to resolve the
crucial pertinent issues of
fact in order to do substantial
justice… It goes without
saying that whether the council
had ‘acted fairly and reasonably
and complied with the
law’ under article 23 of the
Constitution must be issues of
fact to be established by
evidence. Hence the procedure
adopted by the respondents is
inapplicable in asserting a
right under article 23.”
(The emphasis is mine).
As with every enactment, we have to
presume that the drafters of
the Constitution chose with the
utmost care, every word included
therein and that, unless the
contrary is established, such
words must be given their normal
and ordinary meaning. Therefore,
when article 33(1) gives to a
person alleging that any of his
rights and freedoms under
chapter five has been, is being
or is likely to be contravened
the right to apply to the
High Court for redress, there is
an irresistible presumption that
such a person may invoke the
jurisdiction of the High Court
by way of an
application rather than by way
of a writ of summons. When
fundamental human rights have
been, are being or likely to be
contravened, access to judicial
redress must be as swift and
timely as feasible to ensure
that such rights or freedoms are
not lost or irremediably damaged
forever. Hence, in the light of
the objective of article 33(1)
(as hereinbefore mentioned), it
is clear to me that what article
33(1) seeks to assure, by making
provision for access by an
application rather than a writ
of summons (a relatively
sluggish process), is that such
a complaint be disposed of by
the High Court with the optimum
dispatch.
Admittedly, Order 2, r 1 of the High
Court (Civil Procedure) Rules,
1954 dictates that all civil
actions must be commenced by a
writ of summons. The same Rules,
as Owusu-Ansah JA correctly
noted, make exceptions in
specified circumstances (which
do not include proceedings for
the protection of constitutional
rights) for the commencement of
proceedings by other procedures,
such as originating summons and
originating motion on notice.
However, as I have already
stated above, we have to view
the High Court’s jurisdiction
under article 33(1) as a special
one; and by clear constitutional
stipulation, it may be invoked
by an application. Whether such
an application must be by
originating summons or
originating motion on notice,
the Constitution does not
prescribe any particular form
for such an application, but
rather
envisages, in article 33(4),
that the Rules of Court
Committee would make rules to
guide the practice and
procedures for the purposes of
the article. Article 33(4)
signifies a recognition that the
existing Rules of the High Court
predate the Constitution by
almost four decades,
were enacted
under a colonial regime, and do
not necessarily address all the
innovations, intentions and
underlying aspirations of the
Constitution. As yet, however,
there are no correlated
provisions in the Rules of the
High Court that mandate any
particular form of application
for invoking article 33(1). It
is, therefore, my view that,
until such rules have been made,
the High Court must be guided by
the terms of the article itself
plus commonsense and pragmatism.
This is the only means by which
the judiciary can assure the
realisation of the objective of
the article. Indeed, it is my
respectful view that, given the
special nature of the
jurisdiction created by article
33(1), the form of the
application is not necessarily
crucial, so long as the High
Court becomes aware of the claim
(or allegation), by one
procedural means or the other,
its jurisdiction must be deemed
to have been properly invoked.
Additionally, it is clear from the
language of article 33 that,
contrary to the views expressed
by the Court of Appeal, the form
of desired redress cannot
dictate the appropriate
procedure for invoking the
jurisdiction of the High Court.
Therefore, whether the aggrieved
person is claiming declarations,
directions or orders from the
High Court is immaterial. Where
the redress claimed is such as
would necessitate the reception
of parole evidence, the court
has the power to give directions
for the hearing of the same.
Thus, in the case of Sumaila
v Attorney-General
(FTC (HR) 15/2001), Accra,
unreported wherein an applicant
brought an originating motion on
notice to enforce his rights,
and made certain factual
allegations, which, in the view
of the court (coram
Agyeman-Bempah JA sitting as an
additional High Court Judge to
hear motions), must be
established by parole evidence,
the court, correctly in my view,
ordered the parties to file
pleadings and remitted the
matter for substantive hearing.
One may even venture further to state
that, from the language of
articles 33(1) and (2), what
matters is the allegation. If it
is proven, it is for the court
to fashion an effective redress
that would, in terms of article
33(2), be “appropriate for the
purposes of enforcing or
securing the
enforcement of any of the
provisions on the fundamental
human rights and freedoms to the
protection of which the person
concerned is entitled.”
Consequently, whatever form of
application is used to invoke
the High Court’s jurisdiction
under article 33(1), and
whatever be the nature of the
redress sought by the applicant,
no court may justifiably fault
the commencement procedure or
the proceedings, for the article
does not create any procedural
distinctions on the basis of the
type of redress sought. And
given the absence of explicit
procedural rules to regulate
practice and procedure under
this article, the statement made
by Robert Hayfron-Benjamin J (as
he then was), when he found
himself in a similar situation
in People’s Popular Party
v Attorney General
(supra at page 145), to the
effect that when a statute (in
that case article 28(4) of the
1969 Constitution)
“… provides for an application
to the court without specifying
the form in which it is to be
made and the normal rules of
court do not expressly provide
for any special procedure, such
an application may be made by
an originating motion.”
remains as applicable to our
current circumstances as it did
in 1970, when he delivered his
judgment, and I fully endorse it
as the most sagacious and
practical approach.
In my respectful view, therefore, the
learned Judges of the Court of
Appeal erred when, as is evident
from their judgment, it subsumed
the High Court’s jurisdiction in
article 33(1) under Order, 2 r 1
of the High Court (Civil
Procedure) Rules, and held that
the procedure used by the
appellants herein to invoke the
jurisdiction of the High Court
was flawed and inappropriate. To
the contrary, the procedure
utilised was appropriate and
correct for an application under
article 33(1), regardless of the
nature of reliefs claimed, and I
hold that the High
Court’s
jurisdiction was properly
invoked.
In arriving at this conclusion, I have
given due consideration to the
well-presented arguments set out
in counsel’s statement of case
for WAEC. However, I am not
persuaded by them since their
effect would be to thwart the
intent of the framers of the
Constitution in enacting article
33(1). One of these effects
would be that the nature of the
redress claimed would determine
the appropriate form of
commencement procedure. This
will result in our placing
procedural limitations on the
scope and effect of a
constitutional provision, which
are neither expressed therein
nor necessarily implied
thereby. I would decline to do
any such thing.
Still on the issue of appropriate
procedure for invoking article
33(1), the Court of Appeal
appears to have persuaded
itself, erroneously, that in
order for the High Court to do
justice in the matter, the
circumstances required the
reception of parole evidence “to
resolve the
crucial,
pertinent issues of fact.”
Owusu-Ansah JA, enumerated, as
examples necessitating such
evidence, WAEC’s allegation of
foreknowledge and collusion, as
well as the appellants’
allegation of breaches of
articles 19 and 23. However, as
is clear from the application
and affidavit in
support, all that the appellants
herein were asking from the High
Court was protection against
WAEC’s alleged contravention of
their rights under these
articles.
By the nature of their
application and the facts
deposed to, therefore, the only
key issue properly arising in
the High Court was whether or
not WAEC had a duty to give and
gave the appellants a fair and
reasonable hearing before
imposing the penalties on them.
This, the appellants sought to
establish by their affidavit and
the attachments thereto.
Certainly, the High Court was
not being called upon to try any
issue as to whether or not the
students had foreknowledge of
the examination questions or had
colluded amongst themselves;
such issues did not properly
arise from the application and
did not need to be determined
before the court could decide on
the issue of contravention of
the Constitution. In any event,
as already pointed out above,
even if, in the interest of
justice, the determination of
the application did indeed call
for the reception of parole
evidence and an opportunity for
cross-examination, the High
Court could have given the
appropriate orders and
directions.
The Court of Appeal, as is evident
from the excerpts hereinbefore
quoted, also proceeded under an
erroneous impression that, as a
condition precedent to the
invocation of the High Court’s
jurisdiction, article 33(1)
postulates that a fundamental
human right under the
Constitution
must have been contravened in
relation to the aggrieved
person. With all due respect to
their Lordships of the Court of
Appeal, the article clearly
postulates no such thing, as is
patent from its plain language.
As I understand the article, the
only condition precedent (if
such be a correct depiction) to
the invocation of the High
Court’s jurisdiction specified
therein is an allegation
by a person that one or more of
her fundamental rights and/or
freedoms under the Constitution
has been, is being or is
likely to be contravened.
Hence,
the
contravention may be in the
past, ongoing or merely
threatened. Once such a person
brings an application, in order
to succeed, it will, of course,
be incumbent upon her to
demonstrate to the court which
provision of chapter 5 of the
Constitution (or other
fundamental human right
or freedom) has
been, is being or likely to be
contravened and in what manner;
whether or not the applicant
surmounts these hurdles will
depend on the court finding as
demonstrably proven, the grounds
for the application. Thus, an
applicant has nothing to prove
or demonstrate
before the right to invoke
article 33(1) can accrue to him,
and it is incomprehensible to me
why the Court of Appeal stated
otherwise.
The right to administrative
justice
Article 23 of the Constitution
provides that:
“Administrative bodies and
administrative officers 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.”
Thus, by this article, the right
to administrative justice is
given constitutional force, the
objective being the assurance to
all persons the due observance
and application of the
principles of natural justice
which foster due process and the
stated qualities, in the
performance
of
administrative activities that
affect them. In my view, the
scope of article 23 is such
that, there is no distinction
made between acts done in
exercise of ordinary
administrative functions and
quasi-judicial administrative
functions. Where a body or
officer has an administrative
function to perform, the
activity must be conducted with,
and reflect the qualities of
fairness, reasonableness and
legal compliance. I will not
venture to give a comprehensive
definition of what is fair and
reasonable, since these
qualities are dictated by the
circumstances in which the
administrative function is
performed. At the very least
however, it includes probity,
transparency, objectivity,
opportunity to be heard, legal
competence and absence of bias,
caprice or ill-will. In
particular, where, as in this
case, the likely outcome of an
administrative activity is of a
penal nature, no matter how
strong the suspicion of the
commission of the offence, it is
imperative that all affected
persons be given reasonable
notice of the allegations
against them and reasonable
opportunity to be heard, if the
objective of article 23 is to be
achieved. This is in line with
current trends in administrative
law in general, and as pointed
out in Halsbury’s Laws of
England, (4th ed)
(Reissue) Vol 1(1),
para 84:
"…the obligation to observe
natural justice is not confined
to bodies constrained to observe
the procedural and evidential
rules of a court of law. For
this reason the courts have
tended in recent years to speak
less of natural justice and more
of a duty to act fairly. This is
not a duty which is confined to
persons and bodies having a duty
to act judicially or
quasi-judicially, although
whether a function is
more
characteristically
administrative or quasi-judicial
may be one factor determining
what fairness requires in its
exercise.”
In this appeal, it is quite
clear from the record, and also
not in dispute, that WAEC did
not notify the appellants of the
allegations and suspicions
raised against them, or give
them any reasonable opportunity
to be heard before deciding to
cancel their results and impose
the three-year ban against them.
The first time they had
knowledge of any problems
concerning their examinations
was through exhibit A, a letter
from WAEC and addressed to the
Headmaster of their school. That
letter, referred to rule 5b,
pages 3-5 of the 1997/98 West
African
Examinations Council Regulations
and syllabus, and informed the
headmaster that:
“… by decision of the Final
Awards and Examiners’
Appointment Committee … the
results of the candidates listed
below have been cancelled as
indicated because of
their
involvement in some examination
irregularities.”
The letter further indicated
that the irregular paper was
Mathematics Core 2 and barred
the appellant and his twelve
colleagues from all examinations
conducted by the respondent for
three years. The nature of the
irregularity was stated as
follows:
“It was alleged
that the candidates had
foreknowledge of the paper and
it has been established
that the listed candidates
colluded among themselves.” (The
emphasis is mine).
The headmaster, in response to
this letter, protested against
the grounds for WAEC’s decision
and petitioned it to review the
same (exhibit B). WAEC replied
with a letter dated 6 June 2001
(exhibit C) the most crucial
part of which reads 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
scrutiny of the scripts of the
candidates. As a result all
scripts for all subjects were
scrutinized. From the scrutiny,
it was established that there
was foreknowledge and collusion
among the thirteen candidates
from your school in Mathematics
(Core) Paper 2. The council
therefore applied the
prescribed
sanctions.
In making a case for your candidates
you intimated that your
candidates had access to two
particular books that present
already solved past questions
from 1993 to 1998 which they
‘could have learnt.’ Your letter
did not, however, indicate which
of the solved problems were
repeated in the in the 2000
SSSCE Mathematics (Core) Paper 2
for which there could ‘have been
coincidence of details’. None of
the questions in the said paper
was a repeat from a previous
year.”
According to the appellant
throughout the examinations,
neither he nor any of the twelve
other students was ever
questioned, reprimanded or
cautioned by anyone for engaging
in or trying to engage in any
examination malpractices; he was
never aware of any allegations
of impropriety
having been raised by any person
against him or any of his
colleagues, in respect of any
examination paper. Furthermore,
he never had any foreknowledge
of any of the examination papers
nor did he collude with the
other said students to gain
foreknowledge of any such
papers. Moreover, according to
the appellant, before cancelling
the examination results and
barring him and said other
candidates, they were:
“neither privy to any enquiry,
investigation or trial to
establish the truth or otherwise
of any allegation of examination
malpractice that might have been
levelled against us nor were we
given any opportunity by the
respondent to make any
representations or give any
testimony as to our innocence to
any such allegations.”
The
appellants also caused their
solicitors to write (per exhibit
D) to WAEC, stating the
appellant’s case and offering to
produce the appellant as well as
the other 12 persons for
interrogation. Although the WAEC
replied that the matter had been
referred to the Final Awards
Committee, there was no further
communication from the
respondent regarding the outcome
of the said committee’s
deliberations on the matter and
the penalty imposed on the first
appellant and his colleagues
remained in effect.
By virtue of article 12(1)
of the 1992 Constitution all
institutions and persons
(whether natural or legal) are
enjoined to respect and uphold
the rights and freedoms
enshrined in chapter 5. WAEC is
a legal person established by a
multilateral convention, of
which Ghana is a signatory. This
Convention is given the force of
law in Ghana by the West African
Examinations Council Law, 1991
(PNDCL 255). Thus, WAEC is a
legal creature, which exists and
functions in Ghana through this
enactment and is subject to the
1992 Constitution. Its
functions, as set out in article
4 of the schedule to the PNDCL
255, include the annual review
and
consideration of examinations to
be held in member countries of
the Convention, conducting such
examinations, and awarding
certificates and diplomas on the
results of the examinations. It
also has power under PNDCL 255,
to cancel or withhold results or
certificates and prohibit
persons from participating in
its examinations. Therefore, it
is an administrative body and,
as such, it is also subject to
the provisions of article 23,
which are, without doubt,
applicable to legal persons.
Thus, in the exercise of its
functions and powers under PNDCL
255, the respondent must, like
every other administrative body
in Ghana, comply with article 23
and act fairly, reasonably and
lawfully.
It is clear from the
record of appeal and exhibits A
and C in particular, that the
process by which WAEC
“established” the allegations
made against the appellants was
neither fair nor reasonable. The
process, in the circumstances,
was also, in my view, not in
compliance with PNDCL 255, ss 3
and 10, the law under which WAEC
exists and operates. WAEC,
therefore, contravened the
appellants’ rights under article
23. The said sections 3 and 10
of PNDCL 255 provide that:
“3(1)
Any person who, before or during
an examination conducted by the
Council, without lawful
authority, the proof of which
shall be on him -
(a) has in his possession
any examination paper;(b)
is found to have had
fore-knowledge of the contents
of
any examination paper; or
(c) makes use of any
examination paper or the
contents of
it in any manner whatsoever,
commits an offence and shall be
liable on summary conviction to
a fine of not less ¢20,000.00
and not exceeding ¢500,000.00
or imprisonment for a term of
not more than two years or to
both.
(2)Where a candidate before or during
an examination is found
to have acted or is found
acting in breach of the
provisions of subsection (1)
__
(a) he shall be disqualified
from taking the examination and
the entire results of the
candidate in the examination
shall be cancelled; and
(b) the council may prohibit
the candidate from taking any
examination conducted by or on
behalf of the council for a
period of not less than two
years immediately following the
breach.
(3) The penalties contained in this
section shall be in addition to
any penalties that may be
imposed by a Court or Tribunal.
(10) Where in any investigation
or trial a candidate is found
to have had access to an
examination paper or to have had
foreknowledge of the contents of
an examination paper or cheated
in any way during an
examination, a report shall be
made to the council which shall
take such action, including the
cancellation of examination
results and any certificate
issued in respect thereof to the
candidate.” (The emphasis is
mine).
In his statement of case herein,
counsel for WAEC argued that in
upholding the appellants’ claim
that he had not been heard, the
trial judge failed to take into
account sections 3(2) and 10 of
the above-quoted provisions.
According to counsel, section
3(2) must not and cannot be
interpreted to impose on WAEC a
duty to conduct a trial before
exacting a penalty against an
offending candidate since such a
requirement would render
impossible the application of
the provision. Rather, according
to counsel, WAEC may, under the
section, withhold examination
results if, in the course of
marking a paper, it discovers
that the answers of candidates
from a particular school “are so
identical as to lead to the
conclusion that the candidates
must have cheated.” Counsel,
therefore, submitted that “the
Council has the right to
withhold the results of a
candidate over whose script it
entertains genuine suspicion”,
and no rules of natural justice
come into play in such a
situation.
Regarding section 10, counsel also
argued that, in the performance
of administrative duty, it is
not in every instance that a
hearing must be conducted, and
where it is impossible or
inconvenient to expect such
procedure, the court would not
enforce it. He urged, further,
that the function of the council
relates to the education of the
youth and maintenance of
academic standards, and the
council needs a free hand to
perform its functions “without
undue interference from lazy
students who would rather cheat
than learn for their exams.” He,
therefore, submitted that the
Court of Appeal was right when
it held that section 10 does not
impose a judicial inquiry on the
council.
The rules of natural justice are never
suspended in the absence of
express and lawful stipulation
to the contrary. They serve as
an undercurrent running beneath
the legitimate exercise of every
administrative power. Hence,
although it is true that neither
section 3 nor section 10 (or
indeed any of the provisions of
the PNDCL 255) obliges the
respondent WAEC to impose a
penalty only after undertaking
the full rigours of a court
trial or proceedings, it is
quite clear to me that, at the
minimum, these provisions
envisage and require some form
of due process
which comply with the principles
of natural justice and reflect
the qualities of fairness and
reasonableness dictated by
article 23. A full reading of
sections 3 – 10 of PNDCL
255shows that each of the
offence-creating sections must
be read together with section
10. When read this way, it will
be seen that each offence may be
established in one of two ways,
either because a person has been
caught red-handed committing the
offence; or has been found,
after an investigation or a
trial, to have committed the
offence. In either situation the
alleged offender
must have been “found”
committing or to have committed
the offence.
Unfortunately, PNDCL 255 does not
prescribe what form an
investigation should take, and
there are no regulations
governing the procedure for
investigating allegations of
examination offences (the
regulations to which WAEC made
reference in exhibit A are not,
and cannot be, those envisaged
by section 12(b) and do not, in
any event, deal with
investigation procedures).
However, since PNDCL 255 is
subject to the 1992
Constitution, any investigation
must comply with the
requirements of article 23.
Therefore, the absence of
lawfully prescribed procedures
does not exonerate WAEC, as an
administrative body, from the
obligation, to act fairly,
reasonably and lawfully in the
exercise of its powers to
withhold or cancel results, and
impose bans. In the absence of
any prescribed procedure for
investigation, one may consider
the ordinary meaning of the
word to ascertain whether there
was any. To “investigate”,
according to the Chambers 21st Century
Dictionary, is “to carry
out a thorough, detailed and
often official inquiry into,
or examination
of, something or someone.”
(The emphasis is mine). The
requisite degree of thoroughness
and amount of detail will be
dictated by the circumstances of
each case. However, it is my
view that, in this case, there
was no attempt to achieve even a
modicum of thoroughness on the
part of WAEC. An allegation or
suspicion, however genuine, and
conjecture arrived at through a
one-sided in-house process
cannot amount to an
investigation.
In this case, there is no dispute that
none of the affected candidates
was actually caught red-handed
committing any of the alleged
offences. Rather, WAEC’s case is
that the identical answers given
by the candidates raised genuine
suspicion of foreknowledge and
collusion. Thus, the
circumstances only raised a
suspicion, which should have
been substantiated by fair and
reasonable means in order to
constitute an investigation.
However genuine, mere suspicion
is not enough and, bearing in
mind the likely outcome of the
inquiry (if it may called such)
WAEC ought to have conducted a
more serious investigation in
the course of which the affected
persons should have been given
some opportunity to be heard.
Nor can convenience and
expediency serve as guiding
principles in the exercise of
WAEC’s penal powers if the
outcome, in the circumstances,
smacks of unfairness,
unreasonableness or
unlawfulness. Therefore, the
fact that an investigation which
complies with natural justice
and meets the constitutional
standards of fairness and
reasonableness might seem
inconvenient or impracticable is
no excuse. It is true that a
fair and reasonable opportunity
to be heard does not necessarily
require a full-dress hearing
process. As was pointed by
Twumasi J (as he then was) in
Republic v
Ghana Railway Corporation; Ex
parte Appiah [1981]
GLR 752 (as stated in holding
(2):
“The core idea implicit in the
natural justice principle of
audi alteram partem was
simply that a party ought to
have reasonable notice of the
case he has to meet and ought to
be given the opportunity to make
his statement in explanation of
any question and answer any
arguments put forward against
it. The principle did not
require that there must be a
formal trial of a specific
charge akin to court
proceedings… In dealing with the
principles of natural justice,
one has always to bear in mind
that the principles are
substantive rather than
procedural safeguards. Therefore
the fact that a particular
formal procedure
is not adopted, does not of
itself imply that the principle
has not been applied in an
appropriate case.”
In the circumstances of
the instant matter, a letter to
the suspected candidates
informing them of the allegation
and the grounds therefor, plus
an invitation for their comments
or explanations might have
sufficed. And, certainly, when
the appellant, through, his
solicitor, requested a hearing
and interrogation of himself and
his colleagues, WAEC should have
afforded them the opportunity.
Consequently, the Honourable
Court of Appeal was ill-advised
and in error when, in the course
of the judgment under appeal,
the learned Owusu-Ansah JA, on
behalf of the Court of Appeal,
said:
“It seems to me that the council
were exercising an
administrative function rather
than a judicial function when it
came to a conclusion and decided
to impose the
penalties
complained of under section 3(3)
of PNDCL 255 “the penalties
contained in this section shall
be in addition to any other
penalties that may be imposed by
a Court or a Tribunal.” That is
if the appellant, in its wisdom,
had decided to prosecute the
respondents... West African
Examinations Council Law PNDCL
255 is by virtue of the
provisions of the 1992
Constitution, part of the Laws
of Ghana… This section 10 does
not necessarily imply or even
envisage a court action or
proceeding. The council had been
invested with power to
investigate and take action. No
legal enquiry was contemplated.
It is common knowledge that the
council in the fullness of its
wisdom and in order to preserve
its integrity and reputation,
cancelled the entire results. I
hold that the action taken by
the council was neither ultra
vires nor arbitrary but in
accordance with the provisions
of PNDCL 255.”
I am not unmindful of the
critical importance of WAEC’s
role in safeguarding the quality
and international credibility of
its examinations and resultant
certificates and diplomas. Most
members of this court have
undergone, at least, one WAEC
administered examination and are
who we are because of its
integrity. This role has been,
is and will continue to be vital
to the socio-economic
development of Ghana and the
other signatories of the
Convention. However, the
enviable standing of WAEC can be
sustained only by ensuring that
its administrative
processes,
including the exercise of its
powers, remain just. In my view,
this can only be achieved
through patent constitutionalism
and legality, rather than
through opacity and
arbitrariness. Towards this end,
it will inure to the benefit of
both WAEC and public interest,
as well as foster the sustenance
of the rule of law, if the
Minister for Education were to
exercise the power given by
section 12 of the West African
Examinations Council, 1991
(PNDCL 255), and enact
regulations to guide, inter
alia, procedures for the
exercise of WAEC’s powers under
sections 3-10 of the Law.
Conclusion
In the circumstances, I hold
that the jurisdiction of the
High Court was properly invoked
and the High Court judge was
correct when he found that, by
failing to observe the natural
justice principle of audi
alteram partem, WAEC
contravened the appellants’
rights under article 23 of the
Constitution. Consequently, the
appeal herein must succeed. I
also agree with the learned
President of this Court, Kpegah
JSC, that, in the circumstances
of this case, Daniel Awuni and
his twelve affected colleagues
are entitled to damages assessed
at ¢5 million cedis to each
appellants.
S.A.B. AKUFFO
JUSTICE OF THE SUPREME COURT
BROBBEY JSC.
I agree with the judgment
delivered by the learned
President of the Court, my
brother Kpegah JSC, and I have
nothing useful to add.
S. A. BROBBEY
JUSTICE OF THE SUPREME COURT
DR TWUM JSC.
In this appeal the applicant in
the High Court who is strictly
the
applicant/respondent/appellant
will be referred to as the
applicant. The West African
Examinations Council (WAEC) will
simply be referred to as the
council.
At the commencement of the action the
applicant was aged 19 and he
described himself as an infant.
Consequently he appointed his
sister, Marian Awuni, as his
next friend to act for him.
That, of course, was an error.
Under the revised Order 15, r
12(7) as amended by the High
Court (Civil Procedure)
(Amendment) (No 2) Rules, 1977
(LI 1129), “an infant” is
defined as a person aged below
18 years. The applicant
therefore did not need to sue by
his next friend.
On 20 August 2001, Daniel
Awuni, the applicant, filed an
originating notice of motion in
the High Court, Accra, against
the West African Examinations
Council. By it the applicant
applied for:
“a declaration that the decision
of the Final Awards Committee of
the West African Examinations
Council cancelling the entire
results of the Applicant
together with that of the twelve
other students aforementioned in
the Senior Secondary
School Certificate
Examination (SSSCE) 2000 and
barring him and the twelve other
students for three years from
taking any examinations
conducted by the West African
Examinations Council and the
refusal or neglect of the West
African
Examinations Council to release
the results of the Applicant
together with that of the twelve
other students in the SSSCE 2000
are unlawful, null and void and
of no effect on the grounds of
breaches of articles 23, 24 (1)
and 25 (1)(b) of
the
Constitution, 1992.”
In his affidavit in support, the
applicant deposed, inter alia,
as follows:
“(7)That during the examination period
neither the twelve students
aforementioned nor I was
questioned, reprimanded or
cautioned by any person for
engaging in or trying to engage
in any examination malpractices.
(8) That I never had any
foreknowledge of any examination
papers nor did I collude with
the other twelve students to
have foreknowledge of any
examination papers in the
said
examinations.
(10)That in a letter EX/SSS/RS/VOL
IV/173 dated 30 April 2000 the
respondents communicated to the
Headmaster/Rector of Notre Dame
Seminary-Secondary School that
my entire results and that of
the twelve students in the SSSCE
2000 had been cancelled and the
applicant and the others further
barred for three years from
taking any examinations
conducted by the respondents on
the ground that it was alleged
that the
candidates had foreknowledge of
the paper (Mathematics (Core) 2)
and it has been established that
the listed candidates colluded
among themselves.
(11)That before the Final Awards and
Examiners’ Appointment
Committee of the respondents
determined to cancel our results
and further bar us for three
years from taking any
examinations conducted by the
respondents, the twelve students
and I were neither privy to any
inquiry, investigation or tried
to establish the truth or
otherwise of any allegation of
examination malpractices that
might have been levelled against
us nor were we given any
opportunity by the respondents
to make any representations or
give any testimony as to our
innocence to any such
allegations.
(13)That in a letter NDSS/05/VOL 1/103
dated 21 May 2001 the
Headmaster/Rector of Notre Dame
Seminary-Secondary School
petitioned the respondents to
have another look at my scripts
as well as that of the other
students and review the decision
punishing me and the others for
any alleged irregularity in the
SSSCE 2000 Mathematics (Core) 2
Paper (copy of the letter
annexed and marked exhibit B).
(14) That in a letter EC/SSSCE/IRR/VOL
II/147 dated 6 June 2001 the
respondents reiterated to the
Headmaster/Rector of Notre Dame
Seminary-Secondary School that
the twelve students and I
colluded and had foreknowledge
of the Mathematics (Core) 2
paper in the SSSCE 2000. This
conclusion was drawn on the
basis that:
‘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
scrutiny of the scripts of the
candidates. As a result all
scripts for the subjects were
scrutinized. From the scrutiny
it was established that there
was foreknowledge and collusion
among the thirteen candidates
from your school in the
Mathematics (Core) 2 Paper. The
council therefore applied the
prescribed sanctions.’ (Copy of
letter annexed and marked
exhibit C).
(15) That on 5 June 2001, my
solicitors wrote a letter to the
respondents urging them to
review the sanction applied
against me and the other
students intimating, inter alia,
that the twelve students and I
are ready to be subjected to
interrogative sessions by the
respondents to establish my
involvement or the involvement
or otherwise of the other twelve
students in any examination
malpractices. (Copy of letter
annexed and marked exhibit D).
(17)That I am advised by counsel and
verily believe same to be true
that the decision of the Final
Appointment and Examiners’
Committee of the respondents to
cancel my entire results
together with that of the twelve
other students and bar us for 3
years from taking any
examinations conducted by the
respondents on the sole ground
of “scrutiny of our scripts” is
arbitrary and unfair and/or
unreasonable and violative
of administrative
justice. On 20 August 2001, the
Principal Legal Officer of the
respondent council swore to an
affidavit in opposition to the
application. In it, the Council
admitted applying
the sanctions to the thirteen
students and explained in
paragraph 11 thereof their
reason for so acting, namely,
“(11)That in answer to paragraph (11)
of the affidavit in support, the
respondent council says the
evidence in the script of the
plaintiffs was so manifest that
by its rules, the respondent
council as an examining body
does not need to invite
candidates to make
representations. The practice is
universal with all
examining bodies. In its
paragraph (12), the council made
the point “that the cancellation
of examination results on good
grounds does not constitute
an infringement
of human rights”. Further, it
denied that its decision
contravened any provision in the
1992 Constitution.
The respondent council next
challenged the procedure adopted
by the applicant in paragraphs
(19) and (20) thus:
'(19)That the present procedure
adopted by the applicant does
not give room for evidence,
which is very vital in this
case:
(20)That under the circumstances the
procedure adopted by the
plaintiff is not the best to
determine the merit of the
matter.'"
Exhibit B which was annexed to the
headmaster’s letter referred to
in paragraph (13) of the
applicant’s affidavit in support
shows that the headmaster wrote
“on behalf of the board of
governors, the PTA, the staff
and students of this school.” In
it he claimed that the case that
the thirteen students had
foreknowledge of the Mathematics
(Core) 2 was only an allegation
and therefore the application of
rule 5(b) without further
investigation to ascertain the
veracity or otherwise of the
allegation was a bit harsh on
the students. He said the school
had thoroughly
examined the affected students
in particular and they
themselves to find out if “we
actually erred this time but our
investigation indicates the
contrary.”
Next, the headmaster made the point
that the thirteen students did
not have foreknowledge of any of
the examination papers:
“Rather, our investigation
revealed that all the students
had access to and used two
particular books during their
preparations for the SSSCE
Mathematics Paper. These two
books, namely Core Mathematics
for Senior Secondary Schools
(AKI OLA SERIES) and SSS
MATHEMATICS (Core) (DALABA
SERIES A1) present ready solved
questions from 1993 to 1998,
which the students could have
learnt.”
He added that the case of the
thirteen students might be “a
rare coincidence of detail in
the presentation of some portion
of their answers in the
Mathematic (Core) 2 Paper.”
The affidavit evidence also shows that
the council considered the
petition and replied to the
headmaster’s letter on 6 June
2001 (see exhibit C annexed to
the applicant’s affidavit in
support). In it, the council
answered the suggestion that the
students had access to and used
two particular books that
present already solved past
questions from 1993 to 1998
which they could have learnt, by
pointing out that “none of the
questions in the said paper was
a repeat from a previous
year.”
Meanwhile, a letter
originating from LEGAL RESOURCES
CENTRE was addressed to the
council. Even though the letter
bore the date of 5 June 2001, it
was hand-delivered by the
writers to the council on 6 July
2001. In it, the directors of
the centre, writing as
solicitors for on behalf of
their clients (the thirteen
affected students) rehashed the
facts leading to the
cancellation of their clients’
results and rather unfairly
accused the council that: “In a
later communication to the
Headmaster of the said school,
you indicated that your outfit
engaged in an ex-post
facto
rationalization leading to the
imposition of the said penalties
on our clients.” Speaking for
myself, I found the tone and
tenor of that letter
unnecessarily abrasive and
largely discourteous of the
council. In my view, when
solicitors write letters to
third parties on behalf of
their clients,
they must exhibit professional
decorum and courtesy to them. It
is improper for solicitors to
threaten fire and brimstone in a
letter to a third party. It is
really a professional misconduct
(see Constitution, Code of
Ethics and Regulations of the
Ghana Bar Association: Rule 4 at
page 35).
Before the application was argued, His
Lordship, Omari Sasu JA, sitting
as additional High Court Judge,
expressed the opinion that in
view of the reliefs learned
counsel for the applicant was
claiming, he doubted whether
proceedings by originating
summons was the best way to
reach those reliefs. He
therefore invited counsel to
reconsider the matter. Counsel
promised to do so but in the end
he informed the court that: “we
have painfully come to the
conclusion that we would move
the motion as it stands, in
spite of all the limitations the
procedure we are adopting places
on us.”
After taking oral
arguments, the learned judge
gave judgment for the applicant
on 4 October 2001. The court
devoted a considerable portion
of its judgment to restate the
principles applicable to the
audi alteram partem rule;
and article 19(2) and (5) of the
1992 Constitution which dealt
with criminal trials. With
respect, no issue was joined by
the parties on that aspect of
the law. What was in issue from
the various affidavits was
whether on the facts the rule
was applicable. Without any
analysis or evaluation of the
facts and circumstances, the
court said:
“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
1992 Constitution.”
He added:
“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.”
The judgment ended with a number
of consequential orders. These
will be examined later in this
opinion.
On 10 October 2001, the council
being dissatisfied with the
decision of the High Court given
on 4 October 2001, appealed to
the Court of Appeal upon the
following grounds:
(1) His Lordship failed to note
that the Rules and Regulations
that govern examinations
constitute a contract between
the candidates and the
respondent/appellant and that
candidates accept these
conditions before writing the
examinations.
(2) In summarizing, His Lordship
omitted to note that the
respondents/applicant had
pleaded in paragraph (11) of
affidavit in opposition and had
also argued that the practice of
examining bodies evolving their
rules is universal. If His
Lordship had applied the
principle, he would have held
that the decision to cancel the
result was just.
(3) In summarizing the
respondent/applicant’s defence,
His Lordship omitted to note
that the respondents had pleaded
public interest under article 12
of the 1992 Constitution.
Counsel for the appellant
intimated that other grounds of
appeal would be filed upon
receipt of copy of the record of
appeal. There is no evidence on
record that the council filed
any additional grounds of
appeal. Nonetheless in its
statement of case, the council
argued “additional ground (2)”
and “additional ground B” The
record shows that the council
abandoned all the original
grounds of appeal and rather
argued the additional grounds
(2) and (B) which respectively
stated as follows:
“(2) The learned trial judge
erred in not setting aside the
originating motion on notice as
not warranted by any rule of
law or procedure.”
“(B) Having declared the
cancellation of the results by
the appellants as null and void
the trial judge erred in further
ordering the release of the
results of the applicant when
the allegation that the
applicant had committed an
examination offence had not been
determined.”
By its unanimous judgment
delivered on 5 December 2002,
the Court of Appeal reversed the
High Court.
The applicant also felt dissatisfied
with the judgment of the Court
of Appeal and lodged and appeal
to this court on 3 January 2003.
The following were the grounds
of appeal:
“(a) The Court of Appeal misapplied
article 33(1) of the 1992
Constitution when it held that
the jurisdiction of the High
Court can only be invoked under
article 33(1) when a fundamental
human right under the
constitution has in fact
been
contravened.
(b) The Court of Appeal erred when it
failed to recognize that the
right administrative justice is
embodied in article 23 of the
1992 Constitution is a
fundamental human right directly
enforceable under article 33(1)
of the Constitution.
(c) The Court of Appeal failed
to take account of the trial
judge’s specific findings of
fact that the respondents
violated article 23 of the 1992
Constitution when they breached
the audi alteram partem
rule of natural justice and
ignored other requirements
imposed on them by law.
(d) The Court of Appeal rightly held
that article 33 (1) could be
invoked by an originating motion
on notice where a
constitutionally guaranteed
fundamental human right has been
breached, but erred in holding
that the procedure of
originating motion on notice
adopted by the appellant to
enforce article 23 of the
Constitution was inappropriate
and flawed.
(e) The Court of Appeal erred
grievously by misapplying
article 33 (1) and (4) when it
held that the procedure of an
originating motion on notice
adopted by the appellants was
inappropriate and flawed because
the appellants were seeking a
number of declarations including
but not limited to a declaration
that:
the cancellation of the results
of the appellants was unlawful;
the barring of the applicants
was void and of no effect;
the council’s refusal to release
the results was unlawful.
(f)The Court of Appeal misconstrued
section 10 of the West African
Examinations Council Law, 1991
(PNDCL 225), when it held that
the appellants could be
sanctioned and damnified in the
enjoyment of their legal rights
by a process of investigation by
the council that did not afford
them an opportunity to present
their case.
(g)The Court of Appeal rightly found
that the evidence predominantly
favoured the appellants' case
but erred in holding that the
facts in issue were not capable
of being determined
on affidavit evidence.
(h) The Court of Appeal erred
grievously when it held that the
decision of the respondents to
cancel the entire results of the
appellants in the SSSCE 2000 and
to further bar them for three
years from taking any
examination conducted by the
respondents was an
administrative decision and not
subject to any further inquiry.
(i) The Court of Appeal erred
in holding that the decision of
the respondents to sanction the
appellants was in accordance
with section 10 of PNDCL 225
when the respondents have
clearly stated that they
punished the appellants under
the provisions of Rule 5b of
1997/98 WAEC Regulations and
Syllabus, which rule is not in
force and is non-existent.
(j) The Court of Appeal failed
to recognize that the sanctions
imposed by the respondents on
the appellants are ultra vires
the Senior Secondary School
Certificate Examination
Regulations 2000, which governed
the examination in issue.
I have grouped these grounds of
appeal into four, namely,
grounds A, B, C and D. I will
now discuss them as I have
grouped them.
Group A covering grounds (a) and
(b)
I am unable to appreciate the
import of ground (a) since it
contains a self-evident truth. I
am also not sure that the Court
of Appeal really failed to
recognize the statement in
ground (b). What the Court of
Appeal said was that the
originating notice of motion
procedure was not the correct
procedure. After all, article
33(1) merely states that the
aggrieved party may apply to the
High Court for redress. I would
therefore dismiss grounds (a)
and (b) as unmeritorious. I
shall next answer the question
of the use of the originating
notice of motion.
Group B
covering grounds (d), (e),
and (g) relating to the use of
originating motion on notice
These grounds deal with the procedure
adopted by the applicant. One of
the grounds upon which the Court
of Appeal dismissed the appeal
was that the procedure adopted
by the applicant was “incurably
bad.” In the view of the Court
of Appeal, the procedure adopted
by the applicant had the effect
of taking away the jurisdiction
of the court to adjudicate on
the matter. It emphasised that
the Rules of Court are meant to
facilitate a fair and
expeditious trial and must not
be sacrificed on the altar of
convenience. These sentiments
are perhaps justified, in view
of the
uncompromising stand taken by
learned counsel for the
applicant even in the teeth of
what I would describe as
“mandatory advice” from the
trial court. It was unfortunate
that the learned trial judge
having expressed such serious
misgivings about the procedure
adopted by the applicant’s
lawyers, did not order the
applicant to use what the court
considered to be the regular
procedure.
In arriving at the decision to dismiss
the appeal on the ground of lack
of jurisdiction, the Court of
Appeal relied on the Court of
Appeal decision in
Heward-Mills v
Heward-Mills [1992-93] GBR
234. That judgment was right on
the facts, but in my view, does
not support the
wide proposition
of law stated at page 246 of the
Report, namely:
“where a statutory condition
must be complied with before a
court can have jurisdiction to
make an order, failure to comply
with such a condition will leave
the court with no discretion to
make any order or orders in the
matter.”
In that case, plaintiff issued a
writ in the High Court for the
revocation of a will. Under the
Probate and Administration
Rules, 1991 (LI 1515), this was
“a probate action.” Under Order
6, r 2(3), before a writ
beginning an action for the
revocation of the grant of
probate of a will or letters of
administration of the estate of
a deceased person is issued out,
notice shall be given under rule
6 unless the probate or letters
of administration has or have
been lodged in the registry.
Further rule 6(1) provides:
“where an action is brought for
the revocation of a grant of
probate or letters of
administration of the estate of
a deceased person the plaintiff
shall serve a notice on the
person to whom the probate or
letters of administration as the
case may be was granted
requiring him to bring and leave
at the registry the probate or
letters of administration.”
The plaintiff filed his writ
without complying with those
statutory rules. The result was
that the action was not properly
before the court and had to be
struck out, not, dismissed.
It must be emphasized that, under
article 140 (1) of the 1992
Constitution, the “High Court,
shall subject to the provisions
of this Constitution, have
jurisdiction in all matters and
in particular, in civil and
criminal matters...” The court
in the Heward-Mills case
therefore had jurisdiction to
entertain a contentious probate
action. The plaintiff failed to
take the necessary step to
invoke that jurisdiction. Hence
his action could not be
entertained by the court.
Similar provision exists in the
Local Government Act, 1993 (Act
462), s 127(1). Another
situation where the court will
have jurisdiction but the action
will not be properly before it
is where the original writ is
not signed by the party or his
lawyer. The writ will be
ineffective to commence an
action and will have to be
struck out.
In the present case, the position is
not cut and dried. The applicant
was desirous of taking action to
protect what he perceived to be
a breach of his fundamental
human right. Under article 33
(4) of the Constitution, the
Rules of Court Committee may
make rules of court with respect
to the practice and procedure of
the Superior Courts for the
purposes of this article. This
is permissive, not mandatory.
But there is mandatory provision
in article 157(2) whereby “the
Rules of Court Committee, shall
by constitutional instrument,
make rules and regulations for
regulating the practice and
procedure of all courts of
Ghana.” At the time of this
action no such rules had been
made by the Rules of Court
Committee. This, of course,
should not lead to a failure of
justice. The applicant,
therefore, adopted a procedure
which in the “considered”
opinion of his legal advisers,
was permissible, namely, the
originating notice of motion.
Even though Order 2, r 1 of the
High Court (Civil Procedure)
Rules, 1954 provides that every
action shall be commenced by
writ, that is certainly not the
practice in our courts. The
Rules permit the use of
originating summons, originating
notice of motion, and petition
in addition to the writ of
summons. There is, at least, in
the High Court, a decision of
Robert Hayfron-Benjamin J (as he
then was), in People’s
Popular Party v
Attorney-General
[1971] 1 GLR 134 to the effect
that where a statute provides
for an application to the court
and neither the statute nor the
Rules of Court provide expressly
a specific procedure, the
application may be made by
originating notice of motion.
I have noted earlier in this opinion
that in the High Court, the
trial judge expressed misgivings
about the procedure adopted by
the applicant; but it is clear
that he was more concerned with
whether that procedure would
achieve the reliefs the
applicant wanted; not that it
was a wrong procedure. In the
case of Abdilmasih
v Amarh
[1972] 2 GLR 414 at 422, CA
Apaloo JA (as he then was) said:
“Nobody has a vested right in
procedure and modern notions of
justice require that a court
should do substantial justice
between the parties unhampered
by technical
procedural rules.” I can
conceive of no injustice that
was caused to the council by the
procedure adopted by the
applicant. Consequently, I hold
that the procedure adopted by
the applicant was not fatal to
his action. The Court of Appeal
erred in so holding.
Group C covering grounds (f),
(i) and (j)
By these grounds, the applicant
seeks to broaden the ambit of
the type of application he made
in the High Court. One of the
grounds upon which the Court of
Appeal reversed the High Court
was that it was not too clear
which of the applicant’s
fundamental human right had been
violated. As counsel for the
applicant put it, they chose to
proceed with the originating
notice of motion, despite the
limitations it imposed on them.
In my view, a claim under article 23
cannot be stretched to cover
errors of law (if any) made by
an administrative body. Nobody
has a fundamental human right
which guarantees him against any
administrative body applying
wrong law to his right or
interest. That may be a ground
for judicial review but
certainly no application on such
a complaint can be made under
article 33(1). Lest we forget,
it is only those fundamental
human rights envisaged in
article 12(1) that can be
vindicated under article 33(1)
of the Constitution.
One more point. The applicant
submitted that the rules under
which the council conducted the
examinations were non-existent.
Further, that the council had
been making regulations in
respect of the examinations they
hold when that power is vested
in the Minister of Education.
If, indeed, these submissions
are correct, then the logical
conclusion will be that the
entire 2000 SSSCE were a
nullity, in which case all the
legal challenge mounted by the
applicant can properly be
described as “much-ado about
nothing.” I have carefully
examined the submissions and I
am persuaded that they are
wrong.
Under article 24 of the Convention,
the council has power to
regulate certain matters,
including the conduct of
entrants during examinations. In
my view, it is the council that
can prescribe regulations for
the behaviour of candidates and
the appropriate penalties for
breach of those regulations. Now
section 12 of the West African
Examinations Council Law, 1991
(PNDCL 255), opens with the
words “except as otherwise
provided in the Convention, the
Secretary for education may by
legislative instrument…” As I
have pointed out article 24 of
the Convention
gives the council power to
regulate the conduct of the
entire examination as well as
the conduct of entrants.
Consequently, it is not
necessary for the Minister for
Education also to make
Regulations to cover the same
matters.
In my view, the submission
based on the non-existence of
1996-97 Rules is sheer
sophistry. I am sure that what
is wrong is the headed paper
used to communicate the decision
of the council to the affected
students. There is no doubt in
my mind that the candidates were
examined on the basis of the
“Regulations, Structure and
Scheme of the Examination for
the Senior Secondary School
Certificate Examinations
(2000).” Regulation 5(b)
referred to is what appears at
page 8 of that booklet. Indeed,
in their letter dated 5June 2001
(exhibit D), the Executive
Director, Mohammed Ayariga and
the Projects Director, Raymond
Atuguba of the Legal Resources
Centre, the solicitors for the
applicants, stated at page 2 as
follows:
“On
the face of the facts, as we
have been able to construct
them, the decision of WAEC
violates the 1992 Constitution
(article 23), the West African
Examinations Council Law, 1991
(PNDCL 255), s 3, the WAEC
Regulations, Structure and
Scheme of the SSSCE 2000,
and a host of other laws rules,
and regulations of this country.”
(The emphasis is mine).
The applicant confirmed my view
when he admitted in ground (j)
of his grounds of appeal to this
court that the SSSCE Regulations
2000 governed the examination in
issue. Further, the council
could sanction the applicant
under section 10. I would
accordingly dismiss these
grounds of appeal.
GROUP D covering grounds
(c) (f) (h) – relating to
failure to give the applicant
the opportunity of presenting
his case
The gist of these grounds is whether
or not the applicants could be
anctioned and damnified in the
enjoyment of their legal rights
by a process of investigation by
the council that did not afford
them an opportunity to present
their case. This is really the
pivotal issue in these
proceedings. Since the
applicants claim that they are
entitled to administrative
justice under article 23, we
should examine that article a
little more closely. Article 23
of the 1992 Constitution
provides:
“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.”
Since the duty to act fairly is
imposed on administrative
officials by article 23 it is
important to determine whether
or not the council is an
administrative body within the
meaning of that article. The
Constitution does not define
“administrative bodies” or
“administrative
officials.” Curiously,
neither counsel for the
applicant nor for the council
considered that issue. The
judgment of the High Court
assumed that it was and
proceeded to paraphrase article
33 wrongly by saying that it
confers jurisdiction on the High
Court in cases where applicants
allege their personal rights
have been infringed upon. That
is clearly wrong.
Article 33 (1) states
that: “Where a person alleges
that a provision of this
Constitution on the fundamental
human rights and freedoms has
been, or is being or is likely
to be contravened in relation to
him…” It is obvious that not all
personal rights are fundamental
human rights. A breach of
contract is a personal right but
it is clearly not a fundamental
human right. Modern governments
have grown into large
bureaucracies. As stated in
Wade & Forsyth, Administrative
Law (7th ed)
at page 4):
“If the state is to care for its
citizens from cradle to the
grave, to protect their
environment, to educate them at
all stages, to provide them with
employment, training, houses,
medical services, pensions and
in the last resort, food,
clothing and shelter, it needs a
huge administrative apparatus.”
A government’s vision and
election promises cannot be
translated into a welfare
society merely by the passing of
laws and leaving it to the
courts to enforce them.
In our tripartite
governmental structure, we have
the executive, the legislature
and the judiciary. It is the
executive branch of government
that must exercise executive
authority of Ghana: see article
58(1) of the Constitution 1992.
It is this branch that is
therefore charged with the real
business of improving the
overall welfare of the people of
Ghana. The executive comprises
the President, Ministers of
State, the Ministries,
Departments, Chief Directors,
Directors, a host of
administrative and other staff,
as well as other agencies of
government and other bodies in
the Public Services such as the
Police Service, the Internal
Revenue Service, the Audit
Service, the Legal Service, the
Immigration Service, the Prison
Service, etc. These innumerable
and variegated functionaries,
central and local, are entrusted
with various degrees of power to
adjudicate numerous contested
matters, make decisions and
impose penalties and
prohibitions; always acting
under the authority of the
Constitution or some Act of
Parliament, Decree or Law or at
the very least, under some
delegated power from a person
with authority to
delegate.
This process of delegation starts from
the President himself. Under
article 58 (3):
“Subject to the provisions of
this Constitution, the functions
conferred on the President by
clause (1) of this article may
be exercised by him either
directly or through officers
subordinate to him.”
Hence the official of the
Internal Revenue Service who
decides that a person resident
in Ghana is assessable to income
tax (see Republic v
Commissioner of Income Tax; Ex
parte Fynhout [1971] 1 GLR
213, CA; the VAT official who
determines that a company was
late in
submitting its monthly VAT
returns and imposes a mandatory
penalty; the customs officer who
assesses customs duty and
imposes a penalty of three times
the value of goods for attempted
smuggling; the immigration
officer who detains a passenger
at the airport on a drug-related
offence; the factory inspectors,
the officers of the
Environmental Protection Agency,
are but a few examples of
persons who help the President
to exercise the executive
authority of this country. They
include the Ministers of State,
both within and outside the
Cabinet who
decide various
policies of government, the
implementation of which may
affect the rights of subjects –
such as, for example, compulsory
acquisition of land for a new
school or hospital; the
introduction of a National
Health Insurance Scheme and how
it shall be funded; the National
Accreditation Board which
decides which institutions of
learning shall be permitted to
run university courses and under
what conditions. In my view,
all bodies and persons whose
authority to act derives by this
process of sub-infeudation (to
borrow an English feudal land
law concept) from the President,
however tenuous the connection
may be, are
the
“administrative bodies” and
“administrative officials”
mentioned in article 23 of the
1992 Constitution.
The next question which may be posed
is, is the Council an
administrative body? On 23 March
1982, a Convention establishing
the West African Examinations
Council was signed in Monrovia,
Liberia, by the Governments of
the Gambia, Ghana, Liberia,
Nigeria and the Sierra Leone.
Ghana ratified the Convention on
28 December 1982. Under article
14 of the Convention, each
member country was required to
enact laws in accordance with
its legislative processes
incorporating into its laws the
provisions of the Convention. In
pursuance of its said
obligation, the
government of Ghana promulgated
the West African Examinations
Council Law, 1991 (PNDCL 255),
whereby the Convention, as set
out in the Schedule to the Law,
had the force of law in Ghana.
The Convention constituted the
council as a body corporate with
perpetual succession and a
common seal. It could sue and be
sued in its corporate name.
Under article 16(1) “the Council
shall enjoy legal personality as
an international organization
within the territorial limits of
the Member Countries and
Associate Member Countries.” By
article 16 (iv) “the chairman,
members of the Council, the
Registrar and members of his
staff shall severally and
collectively be accorded
diplomatic privileges status in
accordance with the rules,
regulations and policies
governing diplomatic immunities
within the territories of the
Member Countries and Associate
Member countries.”
The Convention contained
elaborate provisions for the
constitution of the council.
There are three categories of
members: (a) persons appointed
by each of the signatory
governments; (b) persons
appointed in a manner prescribed
by the National Committee of
each signatory government to
represent their respective
universities; (c) persons
elected by each National
Committee; and a registrar who
is an ex-officio non-voting
member. He is the Secretary to
the council. The Convention also
provided for the election of a
chairman and vice-chairman of
the council. It dealt with the
tenure of office of members of
the council; the powers and
duties of the council; its
finance and external auditors;
the secretariat of the council;
the establishment and
constitution of national
committee; settlement of
disputes; amendments and
discipline of staff. The main
function of the council is
provided in article 4. It shall
review and consider annually the
examinations to be held in the
member countries in the public
interest. It may also conduct,
in consultation with member
countries, such examinations as
the council may think
appropriate under the Convention
and to award certificates and
diplomas on the results of such
examinations. The council may
prescribe the fees chargeable to
entrants to and regulate the
conduct of, any examinations
conducted under the provisions
of sub-section (b) of article 4
of the Convention, including but
without prejudice to the
generality of the foregoing: (a)
the persons or categories of
persons who may enter for such
examinations; and (b) the
conduct of entrants during such
examinations.
Under article 9(d), if invited by any
government of any member
country, the council may conduct
any other examination considered
by the government to be in the
public interest to conduct such
examination, after due
consultation. From what has been
stated above, it is
quite evident that
even though the functions of the
council may affect a substantial
part of the public ever so
often, those functions are in no
sense governmental. The council
does not discharge functions of
a governmental nature. In other
words, those functions have not
been woven into any system of
executive authority. The council
is not, de facto, even a
surrogate organ of government.
It is an international body
domiciled in Ghana. It has no
business involving itself in
the
administration of Ghana. In its
origin, its history, its
constitution or least of all,
its membership, it is not part
of the administrative arm of
government. Its status as an
international body coupled with
the fact that the chairman,
members of the council, the
registrar and even members of
his staff are severally and
collectively to be accorded
diplomatic privileges status, is
incompatible with the status of
bodies or persons in the
administrative organ of
government. In my view, the
council is not an
“administrative body” within the
meaning of article 23 of
the
Constitution.
Learned counsel for the applicant
tried to expand the horizon of
article 23 by referring to the
Indian Constitution. In my view,
that is not helpful in this
particular instance. Chapter
five of the 1992 Constitution,
which deals with Fundamental
Human Rights and Freedoms, opens
with article 12(1) which clearly
delimits what is intended to be
protected as such. Article 12(1)
provides:
“12(1) The fundamental human
rights and freedoms enshrined in
this chapter shall be respected
and upheld by the Executive, the
Legislature and Judiciary and
other organs of government and
its agencies and, where
applicable to them, by all
natural and legal persons in
Ghana, and shall be enforceable
by the Courts as provided for in
the Constitution.”
I must not be misunderstood. I
am aware that globally, the list
of fundamental human rights
protected under various national
constitutions is far in excess
of what is contained in our
chapter five. But that is the
choice we in this country have
made and a party who invokes the
jurisdiction of the High Court
under article 33(1) of the
Constitution must bring himself
within the list contained in
chapter five. I am also aware
that outside the Constitution,
the laws of Ghana protect
personal rights akin to what are
described in the Constitution as
fundamental human rights and
freedoms.
The principle of natural justice was
developed by the judges of
English Common Law without the
intervention of any written
constitution. Protection to life
is adequately secured by the
Criminal Code, 1960 (Act 29).
Article 14 covers the Common law
tort of
false
imprisonment and a writ of
habeas corpus may issue to
secure the freedom of any person
who is unlawfully detained by a
public official or the
government, or even by his own
parents. The point I am making
here is simply this: An action
based on article 23 of the
Constitution must be confined to
the persons specified in that
article, the fact that under
some other national constitution
or system a more expansive or
restrictive definition is given
to the infraction complained of
is at most, only persuasive.
Administrative law is
essentially about the control of
abuse or misuse of public power.
Accordingly, it is persons who
wield this type of authority who
are targeted under article 23.
For example, it cannot apply to
domestic tribunals, such as the
Presbyterian Church of Ghana
which decides who may be
admitted to the priesthood by
the Church. The reason for this
is that the powers of domestic
tribunals derive from contract.
Administrative justice is a
public law remedy. Fundamental
Human Rights are for the most
part, rights against government
interference.
Is the council, nonetheless, subject
to the rules of natural justice?
The power which the Council
exercises over those, like the
applicant, who take its
examinations derive from
agreement. This gives right to
private rights on which
effective action for
declaration, injunction and even
damages may be based. It is not
part of any government
regulation. By applying to take
the examinations and paying the
prescribed fees, people like the
applicant, expressly submit
themselves to the regulations of
the council. They acknowledge
that they are governed by
the
disciplinary rules of the
council.
Article 23 does not define what is
meant by “to act fairly and
reasonably.” That omission may
be supplied by resort to the
common law. At common law,
before the House of Lords
decision in Ridge v
Baldwin [1964] AC 40, the
court took the view that
judicial tribunals empowered to
deprive persons of their
liberty, impose financial
burdens on them and ascertain
their legal rights had to
observe the audi alteram partem
rule. See R v
Electricity Commissioners; Ex
parte London
Electricity Board
[1924] 1 KB 171. At this point,
functions which were
administrative but not judicial
or (later quasi-judicial) did
not attract the rule. This
dichotomy has been abandoned by
the English Courts and have
since Ridge v Baldwin
(supra) insisted that even
in the so-called administrative
functions, the body discharging
the function must act fairly. In
my humble opinion, article 23
effectively lays to rest any
lingering doubt about the modern
statement of the rule in this
country.
The audi alteram partem rule is part
of the broader rule of natural
justice which comprises the audi
alteram partem rule and the nemo
judex in causa sua rule. I am
not concerned with the latter
rule for the West African
Examinations Council Law, 1991
(PNDCL 255), gives the council
powers to control its
examinations and impose various
penalties for examination
malpractices. Except in one
area, which I will deal with
presently, if the Council
complies with the Law, its
decisions cannot be impugned.
The scope and purpose of the Law
makes that abundantly clear. See
Wilkinson v Barking
Corporation [1948] 1 All ER
564; [1948] 1 KB 721. It is
sometimes said glibly that any
person who decides anything
affecting the rights of subjects
must observe the rules of
natural justice. That is
certainly not correct. For
example, no such duty arises
where numerous persons are
competing for scare resources,
eg allocation of government
contracts or university places.
This may cause some considerable
hardship to the unsuccessful
contenders, but no court has
held that such people have any
common law right to go to court
on the ground that their
applications were summarily
rejected. In R v
University of Aston Senate; Ex
parte Roffey [1969] 2 QB 538
the English Court of Appeal
discussed what I consider to be
similar to this case, ie when
university students may be
entitled to be heard when they
have been asked to withdraw from
the university for failure of
examinations. The authorities
establish that in examination
malpractices, the party affected
must be given an opportunity to
be heard before
penalties are meted out to him.
This duty will arise when the
charges are put to him. See
Herring v Templeman
[1973] 3 All ER 569 and Glynn
v Keele University
[1971] 1 WLR 487 at 494.
In the case before us,
Part II of PNDCL 255 dealing
with examination offences and
penalties provides in section 3
(1) that any person who, before
or during an examination
conducted by the council,
without lawful authority, the
proof of which shall be on him
“(b) is found to have had
foreknowledge of the contents of
any examination paper … etc.” He
can only discharge this burden
if he is given an opportunity to
be heard. In my view, this is
clear indication that a
candidate who is accused of any
examination malpractice must be
given an opportunity to be
heard. This is common fairness
to the candidate, which is what
natural justice is all about.
The fact that he is not
criminally prosecuted is
irrelevant. But the matter does
not end there. I have already
referred to the letter which the
Headmaster/Rector of the Notre
Dame Minor Seminary
Secondary School wrote to the
council (exhibit B). In it, he
said he wrote on behalf of a
number of people including the
students requesting the council
to take another look at the
scripts and review the decision
meting out punishment for the
alleged irregularity.
(See paragraph
(13) of the applicant’s
affidavit in support. The
council replied by saying that
the only means by which the
council could verify the
allegations was the scrutiny of
the scripts. As a result, all
the scripts for the subjects
were scrutinized and it was from
the scrutiny that it was
established that there was
foreknowledge and collusion
among the thirteen candidates.
In their letter to the council,
the solicitors of the applicant
suggested that the applicants
were ready to be subjected to
“interrogative sessions” by the
council to establish their guilt
or innocence.
Counsel further argued in their
said letter and also in their
legal submission that the
punishment meted out to their
client on the sole ground of
“scrutiny of our scripts” was
arbitrary, unfair and/or
unreasonable.
Is this right? As it has been pointed
out in a number of English
decisions starting with Local
Government Board v
Arlidge [1915] AC 120 at
140; General Medical Council
v Spackman [1943] AC
627 at 628 and particularly in
In re Pergamon Press
[1971] Ch 388 at 402-403, the
rules of natural justice are not
rigid norms of unchanging
content and their ambit may vary
according to the context. In
In re Pergamon Press (supra)
company inspectors had informed
the directors of the general
nature of their tentative
findings and requested the
directors to comment on them.
The directors refused, claiming
that they ought to be given
copies of the transcripts of the
proceedings before they would
comment. The Court of Appeal
held that they were not entitled
to the transcripts. What the law
insists upon is substantial
fairness. In this case,
the applicants
were seeking to take over the
role of the council. To act
fairly does not necessarily mean
that the person likely to be
affected must be given an oral
hearing. The various letters
exchanged between the council
and the applicants through their
headmaster and their lawyers
could in an appropriate context,
amount to “fair hearing.”
Further, it will reduce the
council to complete impotence if
the applicants could dictate the
mode or manner in which the
council was to discharge a duty
placed squarely on it by PNDCL
255. In my view, it cannot be
said that the council acted
unfairly and unreasonably by
scrutinizing all the scripts. It
shows rather that the council
was most anxious to do justice
to the applicants.
In Ridge v
Baldwin [1964] AC 40 at 79,
Lord Reid said:
“I do not doubt that if an
officer or body realizes that it
has acted hastily and
reconsiders the whole matter
afresh, after affording to the
person affected a proper
opportunity to present his case,
then its later decision will be
valid.”
This is exactly what happened in
R v Aston University
Senate; Ex parte Roffey
[1969] 2 QB 538. Here the
university asked some students
to withdraw from the university
for poor performance in the
university examinations. The
students petitioned the
Vice-Chancellor and thereafter a
series of meetings were held by
the students tutor with the
students, by the board of
examiners, the senate and other
authorities to consider the
students’ grievances. The court
held that those meetings were
proper to see what could be done
to produce a fair result. The
court ruled against the
university on the ground that
the board of examiners who only
had the final say in the matter
did not actually take any
further decision after the
various meetings.
In the instant case, the suggestion of
“interrogative session” is
clearly misplaced. I doubt it if
the council has power to
administer oaths. The council
need not examine witnesses. It
can obtain information in any
way it thinks best, always
giving a fair opportunity to
those who are parties to the
controversy for correcting or
contradicting anything
prejudicial to their interest.
In this case the principle of
res ipsa loquitor comes into
play. In my view, no useful
purpose will be served by
cross-examination. The evidence
of foreknowledge is in the
scripts and apart from using a
lie-detector, no amount of
cross-examination of each of the
affected students can resolve
the problem of collusion among
them. This is a difficult case.
It places the council in a
dilemma. Anybody who has marked
examination scripts before will
have no difficulty in coming to
the conclusion
that there has been
foreknowledge and collusion
among the candidates. The
difficulty here is how to
demonstrate that to each
affected student.
My Lords, what does fairness require
in this case? To act fairly is
to make over to the party
affected the evidence available
to him. Where the party affected
has the right to make
representations, this involves
three things: (i) he must be
informed of the case against
him; (ii) so as to tailor his
submission thereto; and (iii) to
refute some of the allegation,
(if that is the case), correct
mistakes or explain away
otherwise damaging evidence.
See In re Pergamon Press Ltd
(supra).
In this present case,
the applicant’s headmaster
suggested that what the council
thought was a case of
foreknowledge might be a rare
case of coincidence because the
students had access to two books
that had ready-solved questions
which the students could have
learnt. The
council
rebutted it by saying that the
questions that were set in the
2000 SSSCE had not been set
before and could therefore not
have appeared in those books.
Lord Mustill has observed in
R v Secretary of State
for the Home Department; Ex
parte Doody [1993] 3 WLR 154
that the
standards of fairness are not
immutable. They may change with
the passage of time, both in
general and in their application
to decisions of a particular
type. The principles of fairness
are not to be applied
identically by rote in every
situation. What fairness demands
is dependent on the context of
the decision, and this is to be
taken into account in all its
aspects. An essential feature of
the context is the statute which
creates the discretion, as
regards both its language and
the shape of the legal and
administrative system within
which the decision is taken.
See also Lloyd v
McMahon [1987] 2 WLR 821.
My Lords, what is required is a fair
result reached by fair methods.
It is in the public interest
that the sanctity of the results
is guaranteed. After a very
careful and anxious
consideration of the
circumstances of this rather
difficult case, and the language
of section 3 (1) of PNDCL 255, I
have come to the conclusion that
the decision of the council
should be set aside on the sole
ground that it failed to give
the students an opportunity to
respond to the charge of
foreknowledge before they were
penalized. I wish to emphasize
that my opinion should be
limited in scope to the matter
of disciplinary action taken
against the affected students.
Serious public mischief will
result if any attempt is made in
the future to introduce the
principle of natural justice to
the area of marking and
moderating examination scripts.
Judges do not inhabit an
intellectual vacuum. I am not
oblivious of the rampant nature
of examination malpractices in
this country. We all bear a
heavy responsibility to ensure
that the canker is completely
exterminated. To admit the
principle of natural justice
into the conduct of examinations
apart from the disciplinary
functions of the council will
surely open the floodgates to a
torrent of unbridled abuse. We
do not wish to tie up the
council in an impenetrable
morass of legal chicanery. We
owe a duty to our youth, our
educational system, our
institutions of higher learning,
our business community, indeed,
our very survival as a nation,
to ensure that our educational
standards are constantly
improved upon, that brilliant
and diligent students are
encouraged and that cheats are
weeded out
ruthlessly. In particular, l do
not envisage cases like
Thorne v University of
London [1966] 2 QB 277. In
that case, Dr Thorne Ph D sat
and failed to pass certain
examinations for the LLB
Degree. He claimed that his
failure was the result of the
negligence of the examiners. He
claimed damages against the
defendants “for negligently
misjudging his examination
papers for the Inter and Final
LLB Degree” and sought an order
of mandamus commanding the
defendants to award him “the
grades at least justified.”
This judgment offers no solace to the
person who claims that he is
deserving of ten ones instead of
the five he was awarded. Until
the day comes when it is shown
that the council has marked
somebody down out of spite or
ill-will, the courts must
abstain from intruding into the
marking room. To some extent,
the council is to blame for its
woes. If the questions do not
leak, all these problems will
not arise. But having said that
I am not prepared to gloss over
the activities of students and
or their parents who get hold of
examination questions and hope
to over-reach the council. Such
students occupy no moral high
ground. They cannot claim to be
not in pari delicto with the
council. They deserve the
penalties contained in PNDCL 255
if they cheat and are found out.
The issue of award of damages
During our deliberations and
before we announced our verdict,
the question of whether or not
if the appellants won, they
would be entitled to damages,
came up. Consequently on 17 May
2004, when we announced our
verdict, we reserved our reasons
and invited learned counsel for
the parties to file further
submissions if they wished on
the following:
A. Whether or not in the
circumstances of this case, the
applicants are entitled to
damages; and if so,
B. What factors may be considered as
appropriate, if damages, were to
be awarded to the applicants.
Learned counsel duly filed their
respective submissions. After a
very careful and anxious
consideration of all the
material available to me on
issues (A) and (B), above, I
regret to say that I am unable
to answer A affirmatively.
As I understand it, the kingpin of
the argument in support of the
majority holding that damages be
awarded was inspired by a Privy
Council judgment in the case of
Maharaj v
Attorney-General of Trinidad and
Tobago [1979] AC 385. It
contains a holding that the
reliefs available to a person
who complains of a breach of a
constitutionally guaranteed
fundamental human right, may
include the award of damages.
But the Privy Council was at
pains to point out that that
right depends on a determination
of the merits. Whether or not
in this particular
case, damages
should be awarded to the
applicants, does not, in my
view, follow as a matter of
course. I can accept that
damages should be awarded to a
person who complains that his
personal liberty has been
restricted without due process
(article 14); or that forced
labour was exacted from him
(article 16); or that his
property was unlawfully
appropriated (article 20). See
Jaundoo v
Attorney-General of Guyana
[1971] AC 972. But I am not
persuaded that this case is a
proper case to award damages.
It was argued by learned counsel for
the appellants that the students
“have a residual or vested cause
of action for damages under
article 33(1) of the
Constitution” but he did not
show how that cause of action
arises – whether at common law
or under some statute.
He further argued that:
“irreparable and ruinous injury
has been done to the reputation
of the appellants by the actions
of the respondent. The hint at
moral turpitude that the false
accusations convey to the public
… calls for heavy compensation
if the charge is completely
unsustainable.”
I am unable to follow counsel’s
argument. No court, and
certainly not this court, has
decided that the accusations of
cheating are unfounded and
completely unsustainable. What
this court has decided is that
the appellants were not given an
opportunity to rebut the
accusations levelled against
them. In other words, the
procedure used by the respondent
was flawed. This is a case of
procedural irregularity. Our
judgment has nothing whatsoever
to do with the merits of the
accusations. Learned counsel
for the applicant argued as
though our judgment dealt with
the merits of the charges.
I have read article 33 over and over
again and I have come to the
conclusion that it does not
create the remedy of damages.
In my opinion, whether a party
is entitled to damages or not
must be determined according to
common law principles. I am of
the firm opinion that successful
natural justice challenges
should not necessarily carry in
their wake award of damages.
The appellants will only be
entitled to damages if it should
be established that there was no
collusion or foreknowledge among
the students as alleged. For if
it is proved that, indeed, they
cheated, as alleged, there can
be no justification for awarding
them damages. The issue of
damages cannot therefore be
dealt with without first dealing
with the merits of the charges.
Already, counsel for the
appellant is saying that the
charges were false and
completely unsustainable, when
there has been no adjudication
of that.
In the result, I would
refuse any award of damages to
the appellants and leave them
free to take advantage of the
“without prejudice” provision in
article 33 to commence a fresh
suit against the respondent for
damages. In such an action, the
respondent may, if it wishes,
raise the charges of collusion
and foreknowledge as a defence.
When battle is so joined,
substantial justice will be done
to all the parties. This
approach also accords well with
the Privy Council decision in
Jaundoo v
Attorney-General of Guyana
(supra). In that case, in
allowing the applicant’s appeal,
the Privy Council remitted the
motion to the court of first
instance with a direction to
hear and determine it on its
merits, and if these were found
to be favourable to the
applicant, to assess and give a
direction for the payment of
damages or compensation.
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
DR DATE-BAH JSC.
The key facts in this case are
not disputed and they bring into
sharp focus the accountability
of an examination authority. In
this case, young examination
candidates challenge the
authority’s stance of
infallibility on matters of
collusion. The applicant in the
case was nineteen at the time of
the institution of the action
and therefore brought the action
through his sister, as his next
friend. The action was
commenced by an originating
notice of motion seeking a
declaration that:
“(i) the decision of the Final Awards
and Examiners’ Appointment
Committee of the respondents
communicated in a letter
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 that of the twelve
students of Notre Dame Seminary
Secondary School in the SSSCE
2000 is unlawful, null and void
and of no effect;
(ii) the further 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 and void and of
no effect; and
(iii) the refusal or neglect of
the respondents to release the
entire results of the applicant
together with that of the twelve
other students in the SSSCE 2000
is unlawful, null and void and
of no effect.; …”
The applicant also sought such
directions or orders as the High
Court might consider necessary
and appropriate to remedy the
infringement or violation of the
fundamental human rights and
freedoms of the applicant and
twelve other students on whose
behalf he brought action. In
the title of the action, the
applicant expressed himself as
applying in a representative
capacity on his own behalf and
for the benefit of twelve other
students of the Notre Dame
Seminary Secondary School,
Navrongo. Since the thirteen
students have the same interest,
it is legitimate for the
applicant to bring these
representative proceedings on
their joint behalf. I will
regard all thirteen students as
parties to this suit for the
purposes of the relief or remedy
to be granted them, although
only one of them has formally
instituted this action.
The applicant and the twelve other
students were students at Notre
Dame Secondary School from 1998
to 2000 and sat for the Senior
Secondary School Certificate
Examinations “SSSCE 2000”
between October and December
2000. The respondent is the
body authorised to conduct these
examinations and award the
relevant certificate to
successful candidates. The
applicant deposed in his
affidavit in support of his
motion that during the
examination period neither he
nor any of the other twelve
students was questioned,
reprimanded or cautioned by any
person for engaging in or trying
to engage in any examination
malpractices. He further
deposed that he never had any
foreknowledge of any examination
papers nor did he collude with
the other twelve
students to have foreknowledge
of any examination papers.
However, in a letter dated 30 April
2001, the respondent informed
the headmaster of the
applicant’s school that its
Final Awards and Examiners’
Appointments Committee had
cancelled the results of the
applicant and the twelve other
students because of their
involvement in some examination
irregularities and requested him
to inform the candidates. The
nature of the irregularity
concerned was stated as
follows: “It was alleged that
the candidates had foreknowledge
of the paper and it has been
established that the listed
candidates colluded among
themselves.” In addition to
cancelling the results of the
candidates, they were to be
barred for three years from
taking any examination conducted
by the respondent.
The applicant deposed that
before this decision by the
committee neither he nor any of
the twelve other students were
privy to any inquiry,
investigation or trial to
establish the truth or otherwise
of any allegation of examination
malpractices that might have
been levelled against them and
that they were not given any
opportunity by the respondent to
make any representations or give
any testimony as to their
innocence of any such
allegations.
On 21 May 2001, the headmaster of the
applicant’s school petitioned
the respondent to review its
decision. One significant
paragraph of the headmaster’s
petition reads as follows:
“First of all, the case that the
thirteen students had
foreknowledge of the Mathematics
(Core) Paper 2 is only an
allegation, and therefore the
application of rule 5b
without further
investigation to ascertain the
veracity or otherwise of the
allegation is a bit harsh on the
poor students. We are dealing
here with young people who have
worked hard for three years in a
reputable school with the hope
of developing a career for
themselves, and if we are not
careful we may ruin their future
for good.”
By a letter of 6 June 2001, the
respondent communicated its
reaction to the headmaster’s
petition, turning it down. A
very significant paragraph in
the respondent’s letter in reply
was the following:
“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
scrutiny of the scripts of the
candidates. As a result all
scripts for all subjects were
scrutinized. From the scrutiny
it was established that there
was foreknowledge and collusion
among the thirteen candidates
from your school in Mathematics
(Core) Paper 2. The council
therefore applied the
prescribed
sanctions.”
This letter thus confirmed that
applicant and the other students
were not given an opportunity to
be heard before the prescribed
sanctions were applied.
Furthermore, in an affidavit
deposed to by the respondent’s
principal legal officer in
opposition to the applicant’s
motion, the sole evidence of
malpractice relied on by the
respondent appears to be
evidence in the examination
scripts themselves.
Paragraphs (8), (9) and
(11) of the affidavit are quite
illuminating. They were in the
following terms:
“(8)In answer to paragraphs (8) and
(9) of affidavit
respondent-council says that
following allegations of leakage
in the 2000 SSSCE Mathematics
(Core) 2 Paper all scripts were
scrutinized. That there was
sufficient evidence in the
scripts of the plaintiffs
confirm (sic) collusion arising
out of foreknowledge.
(9) In further answer the
respondent council says it has
all the expertise to detect
collusion among candidates.
(11) That in answer to paragraph
(11) of affidavit in support the
respondent council says the
evidence in the scripts of the
plaintiffs are so manifest that
by its rules the
respondent
council as an examining body
does not need to invite
candidates to make
representation. The practice is
universal with all examining
bodies.”
The respondent thus appears to
have adopted the position that
its expertise as an examining
authority enabled it to discern
cheating and collusion from the
mere scrutiny of the examination
scripts and that there was no
need to receive representations
from the affected
candidates
before applying sanctions to
them. Indeed, its principal
legal officer deposed to its
belief that examination results
were not matters of human
rights. In paragraph (12) of
his affidavit, he said:
“In answer to paragraph (12) of
the affidavit in support, the
respondent council says that the
examination results is not a
matter of human rights. That
cancellation of examination
results on good grounds does not
constitute an infringement of
human rights. Counsel will make
reference to relevant
provisions of the 1992
Constitution.”
The applicant being
dissatisfied with the result of
the petition by his headmaster
has brought this action to
enforce his rights. The learned
trial judge, Omari-Sasu JA,
sitting as an additional High
Court Judge, granted him the
relief he sought. Before doing
so, he made the following
findings of fact:
“(1)The thirteen applicants herein who
are aged between 18 years and 22
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/papers 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 respondent’s
examination.
(6) During the
investigations conducted by the
respondents into the allegation
of foreknowledge and collusion,
there is no evidence on record
which tends to show that:
(a) The applicants or their
headmaster was informed of the
allegations.
(b) The applicants or their head
teacher was in any manner given
a chance of being heard or
participating in the
investigations.
(7) The respondents in dealing with
the present case acted as
investigators, prosecutors and
judges in their own cause and
neither the applicants nor their
headmaster was in any way
invited to assist in the
investigations.”
The judgment of the
learned trial judge was,
however, reversed on appeal.
The applicant and the twelve
other students have therefore
appealed to this court. The
grounds of appeal filed are as
follows:
(a) The Court of Appeal
misapplied article 33(1) of the
1992 Constitution when it held
that the jurisdiction of the
High Court can only be invoked
under article 33(1) when a
fundamental human right under
the Constitution has in fact
been
contravened.
(b) The Court of Appeal erred
when it failed to recognise that
the right to administrative
justice as embodied in article
23 of the 1992 Constitution is a
fundamental human right directly
enforceable under article 33(1)
of the Constitution.
(c) The Court of Appeal failed
to take account of the trial
judge’s specific findings of
fact that the respondents
violated article 23 of the 1992
Constitution when they breached
the audi alteram partem rule of
natural justice and ignored
other requirements imposed on
them by law.
(d) The Court of Appeal rightly
held that article 33(1) could be
invoked by an originating motion
on notice where a
constitutionally guaranteed
fundamental human right has been
breached, but erred in holding
that the procedure of
originating motion on notice
adopted by the appellants to
enforce article 23 of the
Constitution was inappropriate
and flawed.
(e) The Court of Appeal erred
grievously by misapplying
article 33(1) and (4) when it
held that the procedure of an
originating motion on notice
adopted by the appellants was
inappropriate and flawed because
the appellants were seeking a
number of declarations including
but not limited to a declaration
that:
the cancellation of the results
of the appellants was unlawful;
the barring of the applicants
was void and of no effect;
the council’s refusal to release
the results was unlawful.
(f) The Court of Appeal
misconstrued section 10 of the
West African Examinations
Council Law, 1991 (PNDCL 225)
when it held that the appellants
could be sanctioned and
damnified in the enjoyment of
their legal rights by a process
of investigation by the council
that did not afford them an
opportunity to present their
case.
(g) The Court of Appeal rightly
found that the evidence
predominantly favoured the
appellants’ case but erred in
holding that the facts in issue
were not capable of being
determined on
affidavit evidence.
(h) The Court of Appeal erred
grievously when it held that the
decision of the respondents to
cancel the entire results of the
appellants in the SSSCE 2000 and
to further bar them for three
years from taking any
examination conducted by the
respondents was an
administrative decision and not
subject to any further inquiry.
(i) The Court of Appeal erred
in holding that the decision of
the respondents to sanction the
appellants was in accordance
with section 10 of PNDCL 225
when the respondents have
clearly stated that they
punished the appellants under
the provisions of rule 5b of the
1997/98 WAEC Regulations and
Syllabus, which rule is not in
force and is non-existent.
(j) The Court of Appeal failed
to recognise that the sanctions
imposed by the respondents on
the appellants are ultra vires
the Senior Secondary School
Certificate Examination
Regulations 2000, which governed
the examination in issue.”
Procedure for invoking the
jurisdiction of the High Court
under article 33
One of the grounds on which the Court
of Appeal allowed the appeal of
the respondent before this court
from the High Court was
procedural. The court, through
Owusu-Ansah JA, held that the
procedure adopted by the
applicant (ie appellant before
this court) was “inapplicable
in asserting a
right under article 23.”
Naturally, the appellants are
dissatisfied with this decision
and filed grounds of appeal in
relation to it. Ground (d) of
the appellants’ grounds of
appeal is in the following
terms:
“The Court of Appeal rightly held that article 33(1) could be
invoked by an originating motion
on notice where a
constitutionally guaranteed
fundamental human right has been
breached, but erred in holding
that the procedure of
originating motion on notice
adopted by the appellants to
enforce article 23 of the
Constitution was inappropriate
and flawed.”
Ground (e) is also as follows:
“The Court of Appeal erred grievously by misapplying article 33(1)
and (4) when it held that the
procedure of an originating
motion on notice adopted by the
appellants was inappropriate and
flawed because the appellants
were seeking a number of
declarations including but not
limited to a declaration that:
the cancellation of the results of the appellants was unlawful;
the barring of the applicants
was void and of no effect; and
the council’s refusal to release
the results was unlawful.”
The respondent, of course,
sought to defend the decision of
the Court of Appeal. In its
statement of case, it argues as
follows:
“(5)The appellants contend
at page 14 that their action
‘was not an ordinary suit before
the High Court. It was an
application for the enforcement
of constitutionally guaranteed
fundamental human rights under
article 33(1) of the 1992
Constitution.’ That article,
the appellants argue, enabled
their invocation by originating
motion on notice.
(6) With due respect to
counsel for the appellants, the
provision does not so say so.
The Constitution enables a
person seeking remedy for the
violation of a human rights
provision to apply to the
High Court for remedy, and had
directed the Rules of Court
Committee to make rules for its
invocation. Although the
committee has not made fresh
rules, the existing rules of the
High Court continue to apply as
existing law under section 26 of
the transitional provisions of
the 1992 Constitution. The list
of remedies in article 33,
namely, habeas corpus,
certiorari, mandamus,
prohibition, and quo warranto
have been adequately provided
for in the High Court (Civil
Procedure) Rules, 1954 (LN
140A), Order 59. If those rules
are inadequate, the aggrieved
person may resort to the
provision in Order 2, r 1 if it
is intended to see declarations
from the court. See also Order
25, r 5.
(7) A claim for the declaration
in the High Court can be made
in limited circumstances by
originating summons, otherwise
it must be by a writ of
summons. The applicants did not
adopt either procedure but
rather proceeded by originating
motion on notice.
They claim that the decision of
the High Court in
People’s Popular Party v
Attorney-General
[1971] 1 GLR 138 and that of the
Supreme Court in Edusei v
Attorney-General [1998-99]
SCGLR 753 enable claims for
declaration to be made by
originating motion. With due
respect to counsel for the
appellants, neither court so
decided.
(8) Further, and in the
alternative, the respondent
invites this court to take a
second look at the above
decisions and place them in
context. The ratio of In re
Meister Lucius and Bruning Ltd
[1914] WN 390 which has featured
prominently in both decisions,
was stated succinctly in
Peoples Popular Party thus:
‘It is … a rule of practice that
where a statute provides for an
application to the court without
specifying the form in which it
is made, and the normal rules
of court do not expressly
provide for any special
procedure, such application
may be made by an originating
motion.’
(9) When article 33 was
promulgated in the 1992
Constitution, Order 59 of the
High Court Rules was in force
and adequately provided for the
invocation of the remedies
listed in the article by
application. In such
situation it cannot be said that
the normal rules of court do
not expressly provide for any
special procedure.
Admittedly the Constitution
provides that the Rules of Court
Committee shall make rules to
regulate proceedings under the
provision but it does not follow
that the existing rules must be
cast aside even if they are
adequate.
(10) The legislative scheme
adopted in all Republican
Constitutions in Ghana is to
empower a law-making body to
make laws, rules or regulations
to govern specified situations,
leaving it to such body to
determine whether, having regard
to the existing rules, law
reform in the nature of new
provisions would be necessary.
Where the need for reform would
not arise the Constitution
framers have ensured that the
existing law, as
defined under the Constitution
would hold extant the existing
laws, rules or regulations as
part of the Laws of Ghana.”
The appellants, on the other
hand, argued as follows:
“Our application was not an ordinary suit before the High Court.
It was an application for the
enforcement of constitutionally
guaranteed fundamental human
rights under article 33(1) of
the 1992 Constitution. This
article states as follows:
'33(1) Where a person alleges
that a provision of this
Constitution on the fundamental
human rights and freedoms has
been … contravened in relation
to him, then,
without
prejudice to any other action
that is lawfully available, that
person may apply to the High
Court for redress.'
(Emphasis ours).
Article 33(1) of the
Constitution provides for the
making of an application
to the High Court, and
applications are not made by
writ of summons. Applications
are made either by originating
motions, originating summons, or
summons (Orders 52, 54, and 54A)
respectively of the High Court
(Civil Procedure) Rules, 1954
(LN 140A). And article 33(4)
of the Constitution provides
that the Rules of Court
Committee may make rules of
court with respect to how
applications brought under
article 33(1) may be made. The
Rules of Court Committee has not
yet made any Rules to govern
such
applications.
The applicants in the case of
People’s Popular Party
v Attorney-General
[1971] 1 GLR 138 were
in the same situation that we
found ourselves. When the
procedural issue was raised in
that case, Robert
Hayfron-Benjamin J, (as he then
was), held as follows at page
145:
“Article 28(4) of the
Constitution [1969] provides
that, ‘The Rules of Court
Committee may, by constitutional
instrument, make Rules of Court
with respect to the practice and
procedure of the Superior Court
of Judicature for the purposes
of this article.’ No such rules
have so far been made. It is
however a rule of practice that
where a statute provides for an
application to the court without
specifying the form in which it
is to be made, and the normal
rules of court do not expressly
provide for any special
procedure, such an application
may be made by an originating
motion … The notice of motion
must be intituled in the matter
of the Act under which the
application is made …”
The Court of Appeal was unable
to refer to any rule of
procedure which specifically
provides that an application
under article 33(1) should be by
writ of summons. The decision
in People’s Popular Party
v Attorney-General
was quoted with approval in the
Supreme Court decision of
Edusei v
Attorney-General [1998-1999]
SCGLR 753 at 796 per
Acquah JSC (as he then was).
Indeed, in this case, the
Supreme Court sought to energise
and save from extinction, the
provisions of article 33 of the
Constitution when it held that
the claim of the applicant was
properly to be brought under
that article in the High Court.
This suit is the blood baby of
that holding of this court. The
decision was again quoted with
approval by the High Court in
Republic v Edward Wiredu;
Ex parte Amidu, Suit No FT
(HR) 4/2001, Accra unreported at
page 21. Again, in Juandoo
v Attorney-General
of Guyana [1971] 3
WLR 13 at 14, the Privy
Council held that where the rule
making authority, had not
exercised their power to make
rules with respect to the
practice and procedure for
invoking the jurisdiction of the
court for a redress of rights in
the Constitution of Guyana, the
applicant was justified to use
the procedure of an originating
motion on notice in invoking the
jurisdiction of the court.
A close reading of article 33(1) of
the 1992 Constitution especially
the “without prejudice” clause,
reveals that the appellants can
bring an application under
article 33(1) even if there are
other forms of action available
to them. In the words of Acquah
JSC in Edusei (No 2)
v Attorney-General
[1998-99] SCGLR 753 at 788:
“‘without prejudice to any other
action that is lawfully
available’ … refers to any
possible cause of action which
may arise from the violation of
one’s fundamental human right
and freedom, independent of
that victim’s constitutional
right of seeking redress for the
said violation.”
It is therefore improper for the
Court of Appeal to attempt to
restrict the options of the
appellants to an action by writ
of summons."
In determining which of these
competing contentions on
procedure by the parties is
right, I think that one should
remember the famous wise words
of Sowah JSC (as he then was) in
Tuffuor v Attorney-General
[1980] GLR 637 at 647-648:
“The Constitution has its letter
of the law. Equally, the
Constitution has its spirit….Its
language, therefore, must be
considered as if it were a
living organism capable of
growth and development. Indeed,
it is a living organism capable
of growth and development… A
broad and liberal spirit is
required for its
interpretation. It does not
admit of a narrow
interpretation. A doctrinaire
approach to interpretation would
not do. We must take account of
its principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time.”
We need to remind ourselves that
the words to be construed,
though they relate to procedure,
are nevertheless contained in
the Constitution. Accordingly,
they should be construed
liberally, as urged by Sowah
JSC. In that light, I have no
hesitation in holding that
“apply to the High Court for
redress” in article 33(1) is to
be construed as including
applying by way of an
originating motion,
notwithstanding the express
language in the High Court Rules
to which the respondent has
drawn this court’s attention, to
the effect that unless a
specific other mode of
originating an action is
specified in the Rules, a writ
of summons is to be the mode of
initiating an action. Order 2,
r 1 of the High Court (Civil
Procedure) Rules, 1954 (LN 140A)
provides that: “Every action in
the High Court shall be
commenced by a writ of summons”,
subject to
specified
exceptions. In the
circumstances of this case, this
ordinary rule of procedure is
overridden by the letter and
spirit of the Constitution. In
constitutional cases, it is
generally right that the court
should concentrate on the
substantive matters raised,
rather than allowing
procedural
considerations to preclude it
from addressing the substance of
the case.
In my view, until the Rules of Court
Committee has prescribed a
particular mode of application
under article 33(1), applicants
should be given latitude as to
how to invoke the jurisdiction
of the High Court. This is
certainly in consonance with the
legal position formulated by
Acquah JSC (as he then was) in
Edusei (No 2) v
Attorney-General [1998-99]
SCGLR 753 at 797, as follows:
“The legal position therefore is
that where an enactment confers
an actionable right on a person,
but there are no rules
specifically provided for
vindicating that right because
either that enactment provided
none, or it rather directed an
authority to make the said rules
which are yet to be made, an
aggrieved person is entitled to
adopt the nearest reasonable
procedure of utilizing the right
accorded by the law – a
procedure which must be such as
to give notice to the person or
legally authorized authority
against whom redress is sought
and afford to him or it an
opportunity of putting his side
of the case. For, where there
is an actionable right there
must be a remedy for vindicating
that right.”
The spirit of procedural
flexibility in constitutional
matters, which is embodied in
this approach, is given emphatic
re-affirmation in the recent
unanimous decision of the
Supreme Court in Luke Mensah
v Attorney-General,
Writ No J1/1/2004, 5 March 2004
reported in [2003-2004] SCGLR
122, where in spite of
procedural flaws identified by
the court in the plaintiff’s
action seeking to invoke the
original jurisdiction of the
Supreme Court, the court decided
to deal with the merits of the
plaintiff’s case. Acquah CJ,
delivering the judgment of the
court, held that it was right
for the court to do this if the
subject matter falls within the
jurisdiction of the court and
the procedural errors committed
by the plaintiff are not so
fundamental as to amount to a
denial of the court’s
jurisdiction.
Similar broad
considerations should guide the
determination of the procedural
point in relation to this case.
The most critical fact of this
case, in my view, is that the
applicant and the twelve other
students were given no
opportunity to make
representations on their own
behalf before the respondent
made the decision about them,
which they challenge. This fact
is not disputed and it is well
established by the affidavit
evidence. Even if the case had
required the leading of disputed
evidence, there is no reason
why, after it had been validly
initiated by motion, the learned
trial judge could not have
ordered the parties to file
pleadings and for the case to
have proceeded to trial.
In sum, then, I would uphold grounds
(d) and (e) of the appellants’
grounds of appeal. With
particular reference to ground
(d), it is my view that the
invocation of article 33 by
originating motion on notice is
legitimate not only when a
constitutionally guaranteed
human right has been breached,
but also when it is being
breached or is likely to be
breached. I, thus, do not share
the view expressed by
Owusu-Ansah JA in the Court of
Appeal that it is a condition
precedent to the invocation of
article 33(1) that a fundamental
human right under the
Constitution has been
contravened in relation to the
aggrieved party. Accordingly, I
would also uphold ground (a) of
the appellants’ grounds of
appeal, namely,
“The Court of Appeal misapplied
article 33(1) of the 1992
Constitution when it held that
the jurisdiction of the High
Court can only be invoked under
article 33(1) when a fundamental
human right under the
Constitution has in fact
been
contravened.”
With regard to ground (e), I do not
see why, given the need for
procedural flexibility in
constitutional matters, the fact
that the remedy sought by the
appellants was a number of
declarations should make the use
of an originating motion on
notice inappropriate and flawed,
as held by the Court of Appeal
per Owusu-Ansah JA.
Article 23 of the 1992
Constitution and judicial review
of administrative action
Article 23 of the 1992
Constitution provides as
follows:
“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.”
This provision clearly lays a
duty on “administrative bodies”
and “administrative officials”
and the first issue is whether
the respondent is to be regarded
as an administrative body and
its officials as administrative
officials. These terms are not
defined and therefore need to be
interpreted by this court.
It appears to me that the purpose of
article 23 is to provide a
constitutional foundation for
administrative law in Ghana and
to entrench entitlement to
administrative justice as a
fundamental human right in
Ghana. Under the English Common
Law, from which the Ghanaian
common law has borrowed most, an
important part of administrative
law is the judicial control of
administrative action. This is
because administrative power is
quintessentially derived power.
It is the power of public
officials derived from the
Constitution or from statutes.
The common law
courts have, therefore, seen it
as their role to ensure that
these public officials, and the
bodies to which they belong,
keep within their authority or
jurisdiction. Thus,
historically, the doctrine of
ultra vires was the
rationale for judicial control
of administrative action. This
context has to be borne in mind
during the search for the
meaning of “administrative
bodies” and “administrative
officials.”
The opening paragraph of De Smith,
Woolf & Jowell’s Principles
of Judicial Review (1999)
provides a clue as to the
meaning of these terms. It is
in the following terms:
“This book is concerned with judicial review of the acts,
decisions, determinations,
orders and omissions of
individuals and bodies
performing public functions. In
all developed legal systems
there has been recognition of a
fundamental requirement for
principles to govern the
exercise by public authorities
of their powers. These
principles provide a basic
protection for individuals and
prevent those exercising public
functions from abusing their
powers to the disadvantage of
the public. During the last
quarter of the twentieth
century, the circumstances in
which the courts have been
prepared to intervene to provide
relief for unlawful
administrative action have
expanded in spectacular fashion.
Coherent principles have
steadily evolved in a number of
areas of administrative law and
disfiguring archaisms have been
removed.”
To my mind, therefore,
“administrative bodies” and
“administration officials”
should be interpreted as
references to bodies and
individuals, respectively, which
or who exercise public functions
which affect individuals.
These individuals are entitled
to protection from the courts in
their interaction with such
public bodies or their
employees.
The following quotation from
the appellants’ statement of
case is quite apposite in this
connection:
“In a modern administrative state, such as ours, the citizenry is
in constant interaction with the
administrative agencies of the
state. Thus, the bulk of human
rights abuses occur between the
citizenry and the state, acting
through its administrative
agencies. It is in this regard
that administrative institutions
must be regulated in order to
ensure that they do not trample
on the rights of the citizenry
at will. This is the purpose of
article 23 of the 1992
Constitution. By including
article 23 in the directly
enforceable provisions of
Chapter 5 of the 1992
Constitution, the framers
ensured that the broad range of
administrative injustices that
are capable of infringing on the
rights of the citizenry are
remediable through the mechanism
under article 33(1) of the
Constitution.”
Does the respondent come within
the ambit of the concept of
administrative body sketched out
in the preceding discussion?
Admittedly, the respondent is an
inter-governmental
organisation
established by an international
Convention. The Convention is
attached as a schedule to the
West African Examinations
Council Law, 1991 (PNDCL 255).
In addition to the respondent
being established by an
international legal instrument,
however, the constitutive
Convention itself requires (in
article 14) that the Convention
should be incorporated into the
local laws of the respective
countries. PNDCL 255 fulfils
this incorporation obligation.
By that incorporation, the
Convention becomes a part of the
municipal law of Ghana and
therefore subject to
the peremptory
norms of the 1992 Constitution.
Thus, by PNDCL 255, the
inter-governmental body
established by Convention gains
a Ghanaian legal status and
becomes directly subject to
Ghanaian municipal law,
including its Constitution, as
pointed out. Depending on the
functions it carries out on the
Ghanaian
scene,
therefore, the respondent is
capable of being regarded as an
administrative body within the
meaning of article 23 of the
Constitution. The fact that the
respondent has international
legal personality is not
necessarily an impediment to its
being considered an
administrative body under
article 23. What is important
is its function in Ghana and its
impact on the public.
For the purpose of this case, its
relevant function is that of
conducting the Senior Secondary
School Certificate Examination.
It is a function that touches
directly on the lives and
aspirations of thousands of
young people in Ghana. This is
no distant public international
law function
carried out by an international
legal person. In view of the
exercise of this function by the
respondent, I have no hesitation
in considering it to be an
administrative body, within the
meaning of article 23 of the
Constitution.
We next need to consider what duties
are imposed on the respondent in
consequence of my holding it to
be subject to article 23 of the
Constitution. First of all, it
needs to be made abundantly
clear, in view of the
ambivalence expressed in the
Court of Appeal as to whether
any constitutionally guaranteed
human rights of the appellants
had been breached, that article
23 imposes binding obligations
on administrative bodies and
officials. In this connection,
it should be noted that article
12 provides that all the
fundamental human rights and
freedoms enshrined in chapter
five of the 1992 Constitution
are to be respected and upheld
by the executive, legislature
and Judiciary and all other
organs of government and its
agencies and all natural and
legal persons in Ghana. The
Article places a duty on the
courts to enforce these rights
and freedoms. They are thus
justiciable. Since article 23
comes within chapter five, it
embodies a justiciable
fundamental human right. What
needs analysis is the extent of
the rights and duties provided
for in the article. I shall, in
this regard, consider two
issues: first, the duty to act
fairly and
reasonably; and second, the duty
to comply with the requirements
imposed by law. I proceed to do
so seriatim.
The duty to act fairly and
reasonably
The first element of the article
23 duty imposed on
administrative bodies and
officials is that of acting
fairly and reasonably. What
does this mean? In addition to
whatever meaning may be derived
from subjecting these words to
the canons of constitutional
interpretation, there is also
the common law understanding of
acting “fairly” in matters of
administrative law. Since the
1992 Constitution was affixed
unto an underlying common law
system, which was saved by
article 11 of the Constitution,
it is necessary to examine the
common law on this issue.
A duty on administrative bodies to act
fairly exists at common law. It
is a duty that the English
courts have evolved from the
doctrine, commonly referred to
earlier as the principles of
natural justice, epitomised in
the twin latin maxims of :
nemo judex causae suae and
audi alteram partem. On
this evolution, De Smith, Woolf
and Jowell’s Principles of
Judicial Review (supra)
comment (at pp 272-273) that:
“The principal value of the introduction of the duty to act fairly
into the court’s vocabulary has
been to assist them to extend
the benefit of basic procedural
protections to situations where
it would be both confusing to
characterise as judicial, or
even quasi-judicial, the
decision-makers’ functions, and
inappropriate to insist on a
procedure analogous to a trial.”
In the modern English common
law, the term “natural justice”
is being increasingly replaced
by the duty to act fairly. The
current position of the English
common law on this issue is
summarised thus by De Smith,
Woolf and Jowell (supra at pp
275-276):
“The entitlement to fair
procedures no longer depends
upon the adjudicative analogy,
nor whether the authority is
required or empowered to decide
matters analogous to lites
inter partes. The law has
moved on; not to the state where
the entitlement to procedural
protection can be extracted with
certainty from a computer, but
to where the courts are able to
insist upon some degree of
participation in reaching most
official decisions by those whom
the decisions will affect in
widely different situations,
subject to well-established
exceptions.”
This generalisation of the
English common law position
suggests that the English
jurisdiction is likely to have a
rich seam of case-law which this
court can mine, so to speak, to
operationalise article 23. Of
course, the article, being a
Ghanaian constitutional
provision, has to be given
purposive meaning within the
context of the Ghanaian
Constitution and the Ghanaian
legal order. Accordingly, any
resort to foreign case-law has
to be had with circumspection
and any solutions adopted must
be customised to fit the
Ghanaian situation. In Ghana,
the natural justice doctrine was
applied by Ofori-Boateng JA (as
he then was) in L’Air Liquide
v Anin [1991]1 GLR
460. The learned judge
expressed it thus at 463:
“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: Firstly, that a man may
not be condemned unheard; and
secondly, that a man must not be
a judge of his own cause.”
My comment on this formulation
would be that it is unnecessary
to seek to characterise a
decision as quasi-judicial in
order to enable the application
of the doctrine of natural
justice to it. In its modern
form, natural justice principles
are equally applicable to
certain purely
administrative decisions.
My interpretation of fairness within
the context of article 23 would
be that, in general, unless the
circumstances make it
inappropriate, for instance for
reasons of practicality or of
public interest or for any other
cogently valid reason, it
includes a principle that
individuals affected by
administrative decisions should
be afforded an opportunity to
“participate” in the decision in
the sense of being given a
chance to make representations
on their own behalf of some
kind, oral or written, to the
decision-maker. Individuals
affected or to be affected by
administrative decisions
obviously have an interest in
influencing the outcome of the
decision-making process. In
general, it is fair that they
should be afforded an
opportunity to influence the
decision. Given the variety,
and the width of the continuum,
of contexts in which
administrative decisions are
taken, however, there is need
for flexibility in the ways that
are to be worked out to enable
individuals to influence
decisions about themselves.
Thus, in relation to a
particular decision, the
circumstances may indicate that
there is no need for a formal
hearing, in the sense of an
adjudication. A consultation,
for instance, may be adequate.
This flexibility, regarding how
the presentation of the views of
those affected by administrative
decisions may be made, is
expressed thus by Lord Bridge in
Lloyd v McMahon
[1987] AC 625 at 702:
"…the so-called rules of natural
justice are not engraved on
tablets of stone. To use the
phrase which better expresses
the underlying concept, what the
requirements of fairness demand
when any body, domestic,
administrative or judicial, has
to make a decision which will
affect the rights of individuals
depends on the character of the
decision-making body, the kind
of decision it has to make and
the statutory or other framework
in which it operates."
Accordingly, a fair “hearing”
does not necessarily connote an
opportunity for the person
affected to be heard orally.
Written representations on his
or her behalf may be sufficient,
given the context. Also, the
nature of the opportunity to be
offered to an affected person to
be heard may be influenced by
public interest considerations
and the requirements of
efficient administration.
Article 12(2) of the Constitution
contains, inter alia, a public
interest proviso to the
enforcement of the fundamental
rights and freedoms of the
individual enshrined in chapter
five of the Constitution.
Article 12(2) is in the
following terms:
"Every person in Ghana,
whatever his race, place of
origin, political opinion,
colour, religion, creed or
gender shall be entitled to the
fundamental human rights and
freedoms of the individual
contained in this Chapter but
subject to respect for the
rights and freedoms of others
and for the public interest."
(The emphasis is mine).
My understanding of this
provision is that an
individual’s entitlement to a
fundamental human right is to be
interpreted in such a way as not
to impair the public interest.
In relation to article 23, this
principle connotes that, in
determining procedural fairness,
what is required to protect the
public interest is also taken
into account. Some degree of
balancing between the
requirements of the public
interest and the needs of
administrative justice is called
for. Clearly, there is a public
interest in the maintenance of
an efficient examination system
for schools that detects and
punishes cheating in exams.
This public interest has to be
taken into account, alongside
the standard of administrative
justice prescribed in article
23, in determining whether the
respondent is in breach of its
duty under article 23.
Finally, in relation to the duty to
act “fairly and reasonably”, it
is significant that “reasonably”
is added to the formulation. To
my mind, this denotes that this
constitutional obligation is
distinct from the underlying
common law duty that I have
outlined above. In other words,
article 23 is not to be
interpreted as a codification of
the natural justice doctrine at
common law, as it existed at the
time of the promulgation of the
Constitution, or at any other
time. The case-law produced by
the doctrine is useful in giving
content and specificity to the
constitutional provision, but
the doctrine is not to be taken
as being coterminous with the
constitutional provision. The
South African courts have
arrived at a similar conclusion,
although, of course, the
constitutional language they
were construing was different.
(See Jenkins v
Government of the Republic of
South Africa 1996 (8)
Butterworths Constitutional Law
Reports 1059 (TK); 1996
SACLR LEXIS 21). This implies
that in determining the content
of the standard of fairness and
reasonableness under article 23,
the Ghanaian courts need not
follow the course of the natural
justice doctrine as it evolves
in common law jurisdictions.
Other than the flexibility that
the additional word “reasonably”
buttresses, I do not think that
“reasonably” adds much more to
the substantive meaning of
article 23. In my view, acting
“fairly” will usually entail
acting
“reasonably.”
The learned trial judge, Omari-Sasu
JA, sitting as an additional
High Court Judge, was
emphatically clear on the
respondent’s duty to act fairly
and reasonably. He said:
“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
1992 Constitution. 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.”
I agree with the learned trial judge
that the respondent before this
court breached the duty to act
fairly and reasonably and that
therefore its decision should be
set aside. His remarks,
however, suggest that he had in
mind a formal hearing, with
cross-examination, before the
respondent could take a lawful
decision on the appellants’
case. I would require less, in
the light of practicality and
the public interest. I think
that the appellants should have
been given an opportunity to
make written representations in
response to the allegation
levelled against them, before
the respondent took the decision
to sanction the appellants. In
view of the large number of
candidates involved in schools
examinations, it is probably
unwise to over-judicialise (sic)
the due process procedures for
policing wrong-doing in relation
to examinations, so long as
the
procedures in place lead to the
respondent acting fairly and
reasonably.
The duty to comply with the
requirements imposed by law
The next element of the article
23 duty which we need to examine
is the duty to comply with the
requirements imposed on
administrative bodies and
officials by law. I understand
this element to be additional to
what has been discussed above.
In other words, administrative
bodies and officials, in
addition to complying with the
rules on procedural fairness
embodied in audi alteram partem
and its derivatives and
independent constitutional
obligations (if any) distilled
by Ghanaian courts from the duty
to “act fairly and reasonably”,
must comply with all other
applicable rules of law. Such
other relevant applicable rules
of law will often be in the
constitutive enactment relating
to the administrative body
concerned.
In the present case, the
main source to examine for these
applicable rules of law is the
West African Examinations
Council Law, 1991 (PNDCL 255),
and instruments issued pursuant
to it. The effect of this
element of Article 23 is to
convert breaches of such rules
into breaches of
a fundamental
human right actionable under
article 33(1).
In the respondent’s statement of case,
it sought to challenge the view
of the learned trial judge that
the respondent was in breach of
article 23, by arguing that:
“(22) In so holding the learned trial
judge never adverted to the
relevant legislation on the
point, namely, sections 3(2) and
10 of the West African
Examinations Council Law, 1991
(PNDCL 255).
(23) Section 3(2) of PNDCL 255
provides that where a candidate
is found “before or during an
examination” to have in his
possession an examination paper
or had foreknowledge of the
paper or uses an examination
paper such candidate may be
disqualified from taking the
examination and his results
shall be cancelled.
Additionally the council may
prohibit him from taking any of
its examinations for two years.
(24)My Lords, can it be said
that the above provision imposes
a duty on the council to conduct
a trial? The answer to this
question can only be negative
otherwise the provision would be
impossible of performance. It
is preposterous to argue, for
example, that the council cannot
act instanta where a candidate
is caught red handed with a
paper in the examination hall.
In this regard, the expression
“during an examination” extends
from the time when the
invigilator announces the
commencement of the examinations
to the declaration of the
results. Thus the council may
withhold the results where in
the course of marking it
discovers that the answers in
the scripts of a particular
school are so identical as to
lead to the conclusion that the
candidates must have cheated.
(25)My Lords, the respondent
submits that the council has the
right to withhold the results of
a candidate over whose script it
entertains genuine suspicion.
No rules of natural justice come
into play in such situation.
(26)Section 10 similarly
provides that where in any
investigation or trial a
candidate is found to have had
access to an examination paper
or to have foreknowledge of an
examination paper or cheated in
the examination, a report shall
be made to the
council which may take action
including the cancellation of
the result. The learned judges
of the Court of Appeal held
rightly that the provision does
not impose a judicial inquiry on
the council.”
These legal arguments
need to be evaluated. They are
in the main based on PNDCL 255,
whose requirements the
respondent is obliged to comply
with, on pain of being in breach
of article 23. The section 3(2)
to which the respondent makes
reference is in the following
terms:
“3(2) Where a candidate before
or during an examination is
found to have acted or is found
acting in breach of the
provisions of subsection (1) –
(a) he shall be
disqualified from taking the
examination and the entire
results of the candidate in the
examination shall be cancelled;
and
(b) the council may
prohibit the candidate from
taking any examination conducted
by or on behalf of the council
for a period of not less than
two years immediately following
the breach.”
Clearly the sanctions provided
for in section 3(2) are
predicated on a breach of the
provisions of section 3(1),
which are to the following
effect:
“Any person who, before or
during an examination conducted
by the Council, without lawful
authority, the proof of which
shall be on him –
(a) has in his
possession any examination
paper;
(b) is found to have had
foreknowledge of the contents of
any examination paper; or
(c) makes use of any
examination paper or the
contents of it in any manner
whatsoever,
commits an offence and shall be
liable on summary conviction to
a fine of not less than ¢20,000
and not exceeding ¢500,000 or
imprisonment for a term of not
more that two years or to both.”
Section 3(1) thus creates a criminal
offence. Accordingly, in
accordance with the normal
principles of criminal law,
before the sanctions prescribed
in section 3(2) can be applied
to any examination candidate,
the offence created under
section 3(1) must have been
proved against him or her beyond
any reasonable doubt. In
response to the question posed
in paragraph (24) of the
respondent’s statement of case,
it is clear that to impose the
sanctions prescribed in section
3(1) of the Law, a criminal
trial has to take place. Of
course, it is not the respondent
which has to conduct this, but
the courts, on initiation by the
normal law enforcement agencies
of the land. Furthermore, I do
not accept the respondent’s
contention that “during an
examination” extends from when
the invigilator announces the
commencement of the exams until
the declaration
of the results. During the
examination should bear its
ordinary meaning of the duration
of the actual written or oral
examination. If in the course of
marking the scripts of a
particular school, the
respondent discovers suspicious
circumstances, but it has no
extrinsic evidence sufficient to
found a prosecution under
section 3(1), the course of
action available to it is
pursuant to section 10 of the
Law. Under section 10 of PNDCL
255, the respondent may take
administrative action in
response to a candidate having
been found to have had access to
an examination paper; or to have
had foreknowledge of the
contents of an examination
paper; or have cheated in any
way during an examination.
Section 10 is in the following
terms:
“(10) Where in any investigation
or trial a candidate is found to
have had access to an
examination paper or to have had
foreknowledge of the contents of
an examination paper or cheated
in any way during an
examination, a report shall be
made to the Council which shall
take such action, including the
cancellation of examination
results and any certificate
issued in respect thereof to the
candidate.”
The administrative action of the
respondent permitted by this
provision is, however, subject
to the duty to act fairly and
reasonably prescribed under
article 23. As I have already
indicated, the respondent’s fair
and reasonable administrative
action need not take the form of
a “trial” conducted
by it. It is sufficient if the
candidates concerned are given
an opportunity to be heard
through their written
representations. This implies
that I do not accept the
contention in paragraph (25) of
the respondent’s statement of
case to the effect that no rules
of natural justice
come into play when the
respondent withholds a
candidate’s results on grounds
of genuine suspicion. The
candidate must definitely have a
right to be heard before being
condemned.
Finally, in connection with the
provisions of PNDCL 255, the
learned trial judge found that
the regulations which, it was
anticipated, would be issued
under the statute had not been
and that the specific rule cited
by the respondent to justify its
action (rule 5b) did not exist.
These are all factors which
weaken the legal basis for the
respondent’s administrative
action against the appellants.
Although the examination
regulations issued by the
respondent probably have
contractual effect between it
and the candidates who submit to
its examinations, it is still
important for it to identify the
right provision under which it
purports to take action against
examination candidates.
Conclusion on issues arising
from the grounds of appeal
I have not found it necessary to
deal with each and every ground
of appeal filed by the
appellants. From the foregoing,
however, it is clear that I have
found merit in their appeal. In
the result, I would allow the
appeal of the appellants and
restore the judgment of the
learned trial judge, Omari-Sasu
JA, declaring the decision of
the respondent concerning the
appellants to be incurably bad,
void and of no consequence. The
decision is accordingly set
aside.
Availability of damages as
a remedy for any loss suffered
by appellants
To compensate the appellant in
this case for the loss caused
him as a result of the denial to
him of a fair procedure, this
court considered the
desirability of awarding him
(and the other students whom he
represented) damages for the
loss, in the interest of
justice. Since this is
uncharted territory in this
jurisdiction, the court
determined, after announcing its
decision to allow this appeal on
17 June 2004, to invite counsel
to make written submissions on
whether in the circumstances of
this case, it would be
appropriate to award damages
against the
defendants and, if so, what
factors should be taken into
account in determining such
damages. After considering
these submissions and reflecting
independently on the issues
involved, I have come to the
conclusion set out in this final
part of my judgment.
To award damages to the appellant on
the facts of this case would be
novel and this court needs to
consider carefully the
desirability and the
justification for such
development of the law and the
repercussions of such
development for the fabric of
our general legal system and our
public administration. Under
English law, such damages would
not be available. The following
terse overview of the position
under English law is provided by
De Smith, Woolf and Jowell’s
Principles of Judicial Review
(1999) at page 609:
“A fundamental tenet of English
law is that the failure of a
public body to act in accordance
with public law principles of
itself gives no entitlement
at common law to compensation
for any loss suffered. Nor does
the careless performance of a
statutory duty in itself give
rise to any cause of action in
the absence of a common law duty
of care in negligence or a right
of action for breach of
statutory duty. To recover
damages, a recognised cause of
action in tort must be pleaded
and proved. In short, while in
some cases it may be a necessary
condition, it is never a
sufficient one for the award of
damages that the act or omission
complained of be ‘unlawful’ in a
public law sense.”
The English common law has thus
refused to develop any special
law of torts applicable to only
public bodies and officials.
Indeed, Professor Dicey in his
famous doctrine of the rule of
law propounded in the nineteenth
century identified this aspect
of the English common law as one
of the elements of his
doctrine. He glorified in the
fact under English law “every
man, whatever be his rank or
condition, is subject to the
ordinary law of the realm and
amenable to the jurisdiction of
the ordinary tribunals.” (See
Dicey, Introduction to the
Law of the Constitution (10th ed
1959) page 193. Of course, it
does not follow that this court
should follow this English
orthodoxy. For even in England,
even though the courts have
clung to this orthodoxy, there
has been pressure for reform.
For instance, in 1988, a Report
of the Committee of the
Justice/All Souls Review of
Administrative Law in the United
Kingdom entitled
Administrative Justice – Some
Necessary Reforms (Oxford,
1988) recommended in paragraph
11.83 that:
“compensation shall be recoverable by any person who sustains loss
as a result of … (a) any act,
decision, determination,
instrument or order of a public
body which materially affects
him and which is for any reason
wrongful or contrary to law; or
(b) unreasonable or excessive
delay on the part of any public
body in taking any action,
taking any decision or
determination, making any order
or carrying out any duty.”
Given the written Ghanaian
Constitution of 1992 there may
be opportunities for reform
here, which are not available in
England.
According to the English orthodoxy,
the failure of a public body,
contrary to the principles of
fairness and natural justice, to
give a person a proper hearing
before making a decision does
not, of itself, give rise to a
cause of action for damages.
(See for instance, Dunlop
v Woollahra Municipal Council
[1982] AC 158.) However,
the interesting case of
Maharaj v Attorney-General of
Trinidad and Tobago [1979]
AC 385, PC illustrates the
impact of a written Constitution
on this English orthodoxy.
In Maharaj’s case, the
appellant before the Privy
Council was a barrister engaged
in a case in the High Court in
Trinidad and Tobago. He was
committed to prison for seven
days on the order of the judge.
He applied by motion to the High
Court under section 6 of the
Trinidad and Tobago Constitution
claiming redress for the
contravention of his right
protected under the Constitution
not to be deprived of his
liberty save by due process of
law. He appealed to the Court
of Appeal, when the High Court
dismissed his motion. He
further appealed to the Privy
Council when the Court of Appeal
upheld the High Court’s
dismissal.
The Privy Council allowed the appeal,
holding that section 6(1) of the
Constitution of Trinidad and
Tobago was intended to create a
new remedy for the contravention
of constitutional rights without
reference to existing remedies;
that the word “redress” in its
context bore its ordinary
meaning of reparation or
compensation, including
monetary
compensation; and that although
the claim was not a claim in
private law for damages for
tort, but was a claim in public
law for compensation, that
compensation could be measured
in terms of the deprivation of
liberty, including consequential
loss of earnings and recompense
for the
inconvenience and distress
suffered during detention.
This decision has
persuasive force in the Ghanaian
jurisdiction because of the
similarity in the wording of
section 6(1) of the Trinidad and
Tobago Constitution and Article
33 (1) of the Ghanaian
Constitution. Section 6(1)
provided as follows:
“For the removal of doubts it is hereby declared that if any person
alleges that any of the
provisions of the foregoing
sections or section of the
Constitution has been, is being,
or is likely to be contravened
in relation to him, then,
without prejudice to any other
action with respect to the same
matter which is lawfully
available, that person may apply
to the High Court for redress.”
Article 33(1) is in the
following terms:
“Where a person alleges that a provision of this Constitution on
the fundamental human rights and
freedoms has been, or is being
or is likely to be contravened
in relation to him, then,
without prejudice to any other
action that is lawfully
available, that person may apply
to the High Court for redress.”
The judgment of Lord Diplock, who delivered the majority judgment
of the Privy Council, is of
interest in respect of his view
on whether on the above
language, a claim for damages
was available for a breach of a
plaintiff’s constitutional
rights. This is what he said on
that issue (at pages 398-399 of
the Report):
“The right to 'apply to the High Court for redress' conferred by
section 6(1) is expressed to be
'without prejudice to any other
action with respect to the same
matter which is lawfully
available.' The clear intention
is to create a new remedy
whether there was already some
other existing remedy or not.
Speaking of the corresponding
provision of the Constitution of
Guyana, which is in
substantially identical terms,
the Judicial Committee said in
Jaundoo v
Attorney-General of Guyana
[1971] AC 972, 982:
“To ‘apply to the High Court for redress’ was not a term of art at
the time the Constitution was
made. It was an expression
which was first used in the
Constitution of 1961 and was not
descriptive of any procedure
which then existed under Rules
of Court for enforcing any legal
right. It was a newly created
right of access to the High
Court to invoke a jurisdiction
which was itself newly created…”
As has been already mentioned, in his originating motion in the
High Court of April 17, 1975,
the appellant did allege that
the provisions of section 1(a)
had been and were being
contravened in relation to him.
He was thus entitled under
section 6(1) to apply to the
High Court for redress, without
prejudice to his right also to
pursue his remedy of appealing
to the Judicial Committee
against the judge’s order.
What then was the nature of the “redress” to which the
appellant was entitled? Not
being a term of legal art it
must be understood as bearing
its ordinary meaning, which in
the Shorter Oxford
English Dictionary, (3rd ed)
1944 is given as: “Reparation
of, satisfaction or compensation
for, a wrong sustained or the
loss resulting from this.” At
the time of the original notice
of motion the appellant was
still in prison. His right not
to be deprived of his liberty
except by due process of law was
still being contravened; but at
the time the case reached the
Court of Appeal he had long ago
served his seven days and had
been released. The
contravention was in the past;
the only practicable form of
redress was monetary
compensation. It was argued on
behalf of the Attorney-General
that section 6(2) does not
permit of an order for monetary
compensation despite the fact
that this kind of redress was
ordered in Jaundoo v
Attorney-General of Guyana.
Reliance was placed upon the
reference in the subsection to
“enforcing, or securing the
enforcement of, any of the
provisions of the foregoing
sections” as the purpose for
which orders etc., could be
made. An order for payment of
compensation, it was submitted,
did not amount to the
enforcement of the rights
that had been contravened. In
their Lordships’ view an order
for payment of compensation when
a right protected under section
1 “has been” contravened is
clearly a form of “redress”
which a person is entitled to
claim under section 6(1) and may
well be the only practicable
form of redress; as by now it is
in the instant case.”
This is an eminently
sensible construction to put on
the right to “apply to the High
Court for redress” which is to
be found in both section 6(1) of
the Trinidad and Tobago
Constitution and article 33(1)
of the Ghanaian Constitution.
It is a construction whose
persuasive authority I am happy
to follow. Accordingly, I hold,
encouraged by this persuasive
authority, that in Ghana also
the High Court, in giving
“redress” pursuant to article
33(1), has power to award
damages or compensation for the
infringement of the fundamental
human rights and freedoms
contained in chapter five of the
1992 Constitution.
The respondent, however,
in his statement of case on
award of damages, submitted in
response to this court’s
invitation, urged a contrary
viewpoint. He argued, first,
that damages were not available
to the appellant because he had
never claimed that relief. This
argument is easily disposed of.
In my view, a claim for redress
under article 33 encompasses, in
law, a claim for damages as a
possible component of the
redress. It is up to the courts
to determine where such relief
is appropriate.
Secondly, the respondent
maintained that the introduction
of the issue of damages into the
case was a great surprise to it
and that injustice would be
caused to both sides if the
issue was pressed further. I do
not see how injustice would be
caused to the appellant by an
award of damages to him. With
regard to the respondent
council, it may well have been
taken by surprise. But that was
the very reason why the court
gave it an opportunity to make
further submissions on the
issue. The requirements of
fairness have thus been complied
with. The fact that the
respondent did not appreciate
all the nuances in meaning of
“redress” within the context of
article 33(1) cannot be held up
as a bar to this court’s right
and responsibility to interpret
the Constitution. Given the
extra opportunity that the
respondent was given to marshal
additional submissions on
whether damages should be
available on the facts of this
case, I am satisfied that no
injustice will be caused to him
by the award of damages.
Thirdly, the respondent asserted that “there is no precedent in our
municipality for a grant of
damages in the exercise of
supervisory jurisdiction, and
this is because damages are not
a public law remedy.” It is
inaccurate to describe the
jurisdiction which this court is
exercising in this case as
supervisory. The court is
exercising an appellate
jurisdiction over a suit in
which the High Court has applied
the provisions of the
Constitution in order to protect
the appellant’s constitutional
rights. Under Ghanaian
constitutional law, the
exposition earlier in this
judgment has demonstrated that
damages have a role to play as a
public law remedy in Ghana.
The next inquiry is to determine the
circumstances in which the
undoubted power of the High
Court to award damages may be
exercised in relation to article
23 of the Ghanaian
Constitution. There are policy
reasons why there should be
restraint in the exercise of the
power to award damages in that
context. If damages were to be
awarded each time that the High
Court found administrative
action unlawful and exercised
judicial review over it, this
would raise the cost of
government and public
administration. This is an
issue of policy that needs to be
borne in mind. The quashing of
a decision or the prohibition of
a public official from a
particular course of action may
be sufficient to meet the ends
of justice, without the need to
award damages. In making
decisions in the context of the
facts of particular cases, the
courts will need to remember
that whilst damages may serve
the purpose of compensating the
victims of unlawful
administrative action, they may
not necessarily serve to deter
such unlawful action, since the
damages will be paid from public
coffers and not from the
personal funds of the officials
concerned.
In any case, in the Maharaj
case the facts lent themselves
to an easy quantification of
damages. A public law cause of
action in relation to the
deprivation of liberty is quite
analogous to the tort of false
imprisonment and therefore the
established methods of
quantifying damages for that
tort can be borrowed. It is
much more difficult to quantify
the damage caused by unlawful
administrative conduct where
this consists, as in the instant
case, of a failure to apply a
fair procedure. Should the
difficulty in assessing damages
in such circumstances affect
entitlement to damages on such
facts? Or, rather, should there
be a disconnection between the
difficulties in determining the
measure of damages and the
establishment of the principle
of liability to damages under
the circumstances in
contemplation? These are
difficult questions.
On the facts of the present case, the
critical issues are whether just
redress is achievable through
the quashing alone of the
offending decision of the
respondent and whether in the
interest of justice some
compensation ought to be paid to
the appellant and the other
students. If this court
determines that it is desirable
and appropriate in the interest
of justice to give monetary
compensation to the wronged
students, the difficulty of
quantification should not be
allowed to be an impediment to
the doing of justice.
In my opinion, just redress, on the
facts of this case, is
achievable only if, in addition
to quashing the offending
decision, compensation is paid
to the victims of the procedural
injustice. This is because for
more than three years the
appellant and his fellow
students have endured the loss
of their constitutional right
under article 23. This loss of
their right has already happened
and it is irretrievable. As Lord
Diplock said in the Maharaj
case [1982] AC 385 at 398. “The
contravention was in the past;
the only practicable form of
redress was monetary
compensation.” It may be that
the award of damages may not be
necessary where an offending
decision is quickly set aside.
But where, as here, an aggrieved
person has had to bear the
consequences of an offending
decision for a considerable
period, the award of damages,
pursuant to the High Court’s
power under article 33(1), is
justifiable.
Assessment of damages arising
from failure to apply fair
procedure in breach of article
23 of the 1992 Constitution
If this court decides to award
damages for an infringement of
any of the fundamental human
rights and freedoms contained in
chapter 5 of the Constitution,
it would in effect be giving
redress for a constitutional
wrong or a public law tort.
This is uncharted territory for
the common law, as already
noted. Accordingly, any
principles from the common law
that can be pressed into service
can only be by analogy. To
award damages under the private
law of tort, judges are guided
by principles relating to the
measure of damages. Some
analogous principles need to
be fashioned
for the public law of tort
arising from the Ghanaian
Constitution.
The basic principle that the common
law courts have applied for the
measure of damages in the
private law of tort (and indeed
of contract) is that of
restitutio in integrum.
Lord Scarman expressed this
principle thus in Lim v
Camden Health Authority
[1980] AC 174 at 187:
“…the principle of the law is that compensation should as nearly as
possible put the party who has
suffered in the same position as
he would have been in if he had
not sustained the wrong.”
This measure of damage is easier
to apply in the traditional
private law of torts area, where
a plaintiff’s loss may consist
of personal injury, damage to
property, financial loss etc.
It is much more difficult to
apply where a plaintiff’s loss
is that of a constitutional
right. What is the level
of monetary
payment that can return him or
her to the status quo ante.
A similar difficulty has been
found in trying to apply
restitutio in integrum to
the non-pecuniary elements of
personal injury compensation,
such as pain and suffering. In
such situations, what the courts
may end up with is not true
compensation but what Romer LJ
described in Rushton v
National Coal Board [1953]
495 at 502 as “notional or
theoretical compensation to take
the place of that which is not
possible, namely, actual
compensation.”
Similarly, how can there be actual
compensation for the appellant’s
loss of his right to a fair
hearing, on the facts of this
case? What payment can restore
him to the situation he was in
before the respondents took
their decision affecting him
without hearing him? The
difficulty of this question is
compounded by the fact that it
is to be answered without
prejudice to the substantive
rights of the parties to this
dispute. On the facts of this
case, I am not in a position to
determine whether the applicant
and his fellow students did or
did not cheat. All that this
court can determine is that the
procedure the respondent
employed to arrive at its
decision is flawed and therefore
the decision is void. Assessing
the monetary compensation to
restore the applicant to his
procedural status quo ante
will, to my mind, inevitably
involve a “notional or
theoretical” exercise. It is
nevertheless worth carrying out
in order to give substance to
his constitutional right. In
undertaking this notional
exercise of compensation, the
courts will need to exercise
their judicial discretion
judiciously, taking into account
the totality of the
circumstances of each case.
They would be well advised to
restrict themselves to modest
awards because of the inevitable
subjectivity of the exercise.
In effect, the damages that are
awarded for breach of a
constitutional right under
chapter five of the Constitution
in cases where no actual damage
is proved are damages which are
“at large” in the sense in which
Lord Hailsham LC used this
expression in Cassell & Co
Ltd v Broome [1972]
AC 1027 at 1073, HL where he
said:
“The expression ‘at
large’ should be used in general
to cover all cases where awards
of damages may include elements
for loss of reputation, injured
feelings, bad or good conduct by
either party, or punishment, and
where in consequence no precise
limit can be set in extent. It
would be convenient if, as the
appellants’ counsel did at the
hearing, it could be extended to
include damages for pain and
suffering or loss of amenity.
Lord Devlin uses the term in
this sense in Rookes v
Barnard [1964] AC 1129,1221,
when he defines the phrase as
meaning all cases where “the
award is not limited to the
pecuniary loss that can be
specifically proved.” But I
suspect that he was there guilty
of a neologism. If I am wrong,
it is a convenient use and
should be repeated.”
In the Ghanaian context, use of
the phrase may be convenient
shorthand for describing the
nature of the damages payable
for breach of a constitutional
right, where no actual proximate
pecuniary loss is proved. I
think that the quantum of such
damages is in the discretion of
the judge and that there are no
truly objective standards to
guide him or her except the
judge’s assessment of what
justice requires in the context
of the facts of each particular
case. To recapitulate, I would
say that, in respect of article
23 of the Constitution, if no
evidence of actual
proximate
consequential loss has been led,
damages are at large and the
court may award such
compensation as it deems fit and
just in order to restore the
victim of the procedural
injustice to the position he was
in before the breach of his or
her constitutional right, to the
extent that money can do this.
However, for reasons of public
policy, I recommend that the
courts should limit themselves
to awarding only moderate
amounts.
Counsel for the appellant,
in his supplementary
submissions, prepared in
response to this court’s
invitation to identify the
factors to be taken into account
in the possible award of damages
against the respondent, outlines
three factors that should be
taken into account in
determining the level of general
damages that should be awarded
against the respondent. (The
appellant’s counsel defines
general damages as “such damages
as the law will presume to have
resulted from
the
defendant’s actionable wrong.”)
The first factor which he points out
is injury to reputation. He
claims that irreparable and
ruinous injury has been done to
the reputations of the
appellants by the actions of the
respondent. I do not, however,
accept that injury to reputation
is a relevant factor in
determining the measure of
damages for breach of article 23
of the Constitution. The
appellant has the independent
cause of action (preserved by
the express language of article
33(1)) to sue for the private
law tort of defamation, if he is
so inclined. This private law
remedy is independent of the
public law remedy of damages
awarded to redress the breach of
a constitutional duty.
The second factor that he identifies
is: “loss of time and
educational and related
opportunities.” In his words
(see paragraph (11) of his
supplementary submissions):
“Further, because of the virtual
monopoly the respondent has in
the conduct of Senior Secondary
School Certificate Examinations
(SSSCE), the unlawful ban on the
appellants from sitting any
examinations conducted by the
respondent literally halted any
educational progression the
appellants could have made
during the period of the ban.
They can never regain the
invaluable educational time they
have lost. There has also been
loss of employment opportunities
and earnings for those of them
who could have sought employment
using their SSSCE certificates.
It must certainly have been
foreseeable and in the
reasonable contemplation of the
respondent that unlawfully and
capriciously cancelling the
results of thirteen students,
and further barring them for
three years from taking any
examinations conducted by the
respondent, will occasion grave
injury to the students. The
appellants should be compensated
for this injury.”
It seems to me legitimate to take the
injury sketched out above into
account in determining the
quantum of general damages to be
awarded against the respondent
since it can credibly be
asserted that it was proximately
caused by the respondent’s
infringement of article 23 of
the Constitution, subject to one
qualification. That
qualification is that there is
no certainty that if the
appellants and the other
students had been heard, they
would have been awarded their
SSSCE certificates. This court
should be careful not to
pronounce on the substance of
the allegation of
collusion and cheating. The
respondent may or may not have
proved the allegation, if the
proper procedure had been
adopted. This court has no way
of knowing. Accordingly, I
would exclude from consideration
any putative earnings that
counsel claims the students
would have received by using
their SSSCE certificates.
The third factor referred
to by the appellant is “social
dislocation and emotional and
mental distress.” He contends
that:
“the appellants have been socially dislocated, and have had to bear
great emotional and mental
distress. For three years they
have suffered severe and stormy
emotional and mental distress as
they protested their innocence.
The empty insistence of the
respondent council that the
appellants were guilty, when the
council could not produce an
iota of evidence against them,
compounded the emotional and
mental distress of the
appellants. The respondent
ought properly to pay for this.”
I do not agree that the
respondent should pay for this.
I do not consider the social
dislocation and emotional and
mental distress to be
sufficiently proximate
consequences of the breach of
article 23.
Apart from putting forward a case in
favour of general damages, the
appellant’s counsel also
asserted that aggravated damages
should be awarded to the
appellant, citing in support of
this contention the following
passage from Winfield and
Jolowicz on Tort (12th ed)
at page 616:
“In any case in which damages
are at large, that is, where
they cannot be precisely
calculated in money terms, the
court may take into account the
motives and conduct of the
defendant, and where these
aggravate the plaintiff’s
injury, the damages will be
correspondingly increased.
These ‘aggravated damages’ are
truly compensatory, being given
for the injury to the
plaintiff’s proper feelings of
dignity and pride.”
(The emphasis is
that of counsel).
I am not persuaded that aggravated
damages should be payable on the
facts of this case. It has to
be remembered that the damages
in issue here are not ordinary
private law damages of the kind
that the passage above has in
contemplation. This is
compensation for a public law
wrong which is not actionable at
common law. I believe that we
should tread carefully and
gingerly in this novel
territory.
Similarly, I do not think that this is
an appropriate case in which to
award exemplary/punitive
damages, as we were urged to do
by the appellant. At the
commencement of the evolution of
the new remedy that this case
has established, it would be
prudent to exercise restraint
and to allow time to provide an
opportunity for the courts to
monitor how the new remedy fits
into the general fabric of our
public law. I believe that the
modest general damages awarded
in this case against an
administrative body for breach
of article 23 in itself sends a
strong message to public
authorities to be mindful of
their constitutional obligations
under that article in particular
and under chapter five in
general.
To conclude, I agree that,
in addition to the quashing of
the decision of the respondent,
the respondent should pay
damages in the amount as
recommended in the judgment of
my learned brother Kpegah JSC,
the President of the Court. I
wish to highlight, for the
guidance of High Courts which
may subsequently follow this
decision, the moderation in the
quantum of the damages awarded.
I believe that, in awarding
these damages and in reaching
its decision in this case, this
court has taken an important
step in the development of the
constitutional
and
administrative law of this
country. I wish to thank both
counsel for their assistance to
this court in reaching this
important decision.
S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
Dr Raymond Atuguba
(with him Baasit Abdul Aziz)
for the appellants.
Kizito Beyuo
for the respondent.
gso*
IN THE SUPERIOR COURT OF JUDICATURE
THE SUPREME COURT
ACCRA.
---------------------------------------------------------------
CORAM: KPEGAH, J.S.C. (PRESIDING)
MISS AKUFFO, J.S.C.
BROBBEY, J.S.C.
DR. TWUM, J.S.C.
DR. DATE-BAH, J.S.C.
CIVIL APPEAL
NO. 9/2003
21ST JULY, 2004
IN THE MATTER OF AN APPLICATION
UNDER ARTICLE 33 OF THE
CONSTITUTION 1992
A N D
IN THE MATTER OF AN APPLICATION
BY DANIEL AWUNI PER HIS NEXT
FRIEND.
MARIAN
AWUNI
.. ..
.. APPELLANT
VRS.
WEST AFRICAN EXAMINATION
COUNCIL
.. ..
.. RESPONDENT
J U D G M E N T
KPEGAH JSC.
On 17 June 2004, this court
allowed the appeal against the
decision of the Court of Appeal
but reserved its full reasons to
be given later. I now proceed
to give my reasons why my vote
was cast that the appeal be
allowed.
The facts of this case are fairly
simple and I do not think a
detailed discussion or analysis
of them is crucial to the
determination of this appeal.
The essential facts should not
seriously be in dispute since
the case was contested from the
trial High Court to this court
purely on legal grounds, both
substantive and procedural, with
the latter dominating and
tilting the scales against the
appellant in the Court of
Appeal.
The case arises out of the decision of
the Final Award Committee of the
West African Examinations
Council (hereinafter referred to
as the council) not only to
cancel the entire results of the
appellants but also to ban them
from taking part in any
examinations conducted by it for
three years. The facts, which in
my view are essential for the
determination of this matter,
are briefly that the council is
established by a convention
between English-speaking West
African countries which was
later incorporated in the laws
of Ghana by the West African
Examinations Council Law, 1991
(PNDCL 225), with the sole
authority to conduct, in member
countries, such examinations as
the council may think
appropriate and to award
certificates and diplomas based
on the results of such
examinations. The council,
therefore, is the sole
authority
responsible in Ghana for the
conduct of both the Junior
Secondary Basic Education
Certificate Examinations (BECE)
and Senior Secondary School
Certificate Examinations
(SSSCE).
Between October and December 2000, the
council, as it normally does
every academic year, conducted
the Senior Secondary School
Examinations throughout the
country. The appellants were
all candidates at this
examination with their parent
school, the Notre Dame Minor
Seminary in Navrongo in the
Upper East Region as their
examination centre. While
waiting for their results, the
appellants were informed through
the headmaster of the school
about the cancellation of their
entire result on the grounds
that they had been involved in
some examination malpractices or
irregularities in relation to
Mathematics (Core) Paper 2. The
nature of the irregularities the
appellants were said to have
indulged in was that they had
foreknowledge of the paper and
colluded among themselves in
solving the questions.
Upon receipt of the letter informing
him of the cancellation of the
results of the appellants and
the imposition on them of a
three-year ban from taking any
examinations under the auspices
of the council, the headmaster
of the Notre Dame School
petitioned the council to review
its decision. He advanced a
number of reasons why he felt
the sanctions needed a review.
The most important and relevant,
in my view, is his objection to
the procedure adopted by the
council in its investigations,
culminating in the punishment of
his students. He urged upon
the council
that the claim that the
appellants had foreknowledge of
the Mathematics (Core) Paper 2
is only an allegation and the
invocation and “application of
rule 56 without further
investigation to ascertain the
veracity or otherwise of the
allegation is a bit harsh on the
poor
students.”
By this statement, I
understand the headmaster to be
taking issue with the procedural
unfairness of the investigations
which were said to have
established the involvement of
the appellants in examination
malpractices in relation to the
Mathematics (Core) Paper 2,
thereby calling for
the lifting of the sanctions
imposed on the appellants by the
Final Award Committee of the
Council. The fact that a
non-lawyer could raise such a
serious issue on procedural
fairness, to me only underscores
how fundamental and basic its
observance is by any person in
our present constitutional
dispensation making a decision
which affects the rights of
others. The headmaster also
contended in his petition for a
review that neither before,
during, nor after the
examinations at the centre was
there any incident which
suggested that any of the
students of Notre Dame School
had foreknowledge of any
examination papers, let alone
colluded during the
examinations. The headmaster
further indicated that when the
allegation of foreknowledge and
collusion was brought to their
attention, the school
authorities not only subjected
the affected students to a
thorough examination but also
the masters to self-examination
in what he called “a true spirit
of a minor seminary” in the hope
of finding where they might have
erred this time round but their
own investigations revealed the
contrary. He then protested the
innocence of the affected
students and claimed that any
similarity in their answers
might have been as a result of a
particular use of a common text
book – (Aki Ola Series) and SSS
Mathematics (Core) (Dalaba
Series); and that those books
treated past questions from 1993
to 1998 which the students could
have learnt.
In a short response to the
headmaster’s petition for a
review, the council stated 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
scrutiny of the scripts of the
candidates. As a result all
scripts were scrutinized. From
the scrutiny it was established
that there was foreknowledge and
collusion among the 13
candidates from your school in
Mathematics (Core) Paper 2. The
council therefore applied the
prescribed sanctions.”
The council rejected the
headmaster’s assertion that the
appellant during their
preparations for the
examinations, might have had
access to and used two
particular books that presented
already solved past questions
from 1993 to 1998 because the
headmaster did not indicate
which of the solved problems
were repeated in the 2000 SSSCE
Mathematics (Core) Paper 2; the
Council then denied that any of
the questions in the said paper
was a repeat from a previous
year. The council therefore
reiterated its position that
there was foreknowledge and
collusion among the appellants.
This was followed by a letter from
appellants’ solicitors raising
certain legal points why they
thought that the decision of the
Council was unlawful, null and
void since it violated article
23 of the 1992 Constitution, the
West African Examinations
Council Law, 1991 (PNDCL 255)
“and a host of other laws, rules
and regulations of this
country.” They also protested
the innocence of the appellants
and asked that their results be
released. When the council
failed to meet the demands of
the solicitors, they decided to
resort to the courts to redress
what they perceived
as the infringement of the
fundamental human rights of
their client.
Therefore, on 10 August 2001, the
appellants’ solicitors by an
“originating notice of motion”
initiated action in the Fast
Track High Court seeking a
number of declaratory reliefs
which can be summarised as
follows:
(i)
a declaration that the decision
of the Final Awards and
Examinations Committee of WAEC
to cancel the entire results of
the appellants is unlawful, void
and of no effect;
and
(ii) the barring of the appellants
from taking any examination
conducted by WAEC for three
years is equally unlawful, void
and of no effect.
The application also sought such
directions or orders which the
court felt was necessary for the
enforcement of any declarations
made by it.
In support of their application, the
appellants exhibited a number of
documents which they felt
supported their case. These
documents included the letter
dated 30 April 2000 informing
the headmaster of the
cancellation of the entire
results of the appellants –
(exhibit A). The headmaster’s
petition on behalf of the
appellants for a review was also
exhibited as (exhibit B). The
reply of the council to the
headmaster reiterating its
position was (exhibit C). The
letter from the appellants’
solicitors was marked (exhibit
D); and that of the council
acknowledging same was (exhibit
E). This letter merely
acknowledged receipt of the
letter on behalf of the
appellants and indicated, in a
typical public service fashion
that the petition had been
forwarded to the Final Awards
Committee, the decision of which
would be communicated later. It
is obvious to me that it was
this typical public service
attitude of “we are looking into
it” when action was immediately
called for. That kind of
response compelled the
solicitors to resort to the
courts and apply for a judicial
review under articles 23 and
33(1) of the 1992 Constitution.
In an affidavit in opposition sworn to
by Mr Frederick Selby, solicitor
for the council, and filed on 20
August 2001, the council tried
to justify the decision of its
Final Award Committee on a
number of legal grounds, before
finally objecting to the
procedure the appellants adopted
in invoking the jurisdiction of
the High Court under article
33(1) of the Constitution. I
think it will be prudent on my
part to quote the relevant
paragraphs of the Council’s
affidavit in opposition:
“(5) That in the exercise of the
powers conferred on it, the
respondent council has evolved
rules and regulations to ensure
the sanctity of examinations and
also to ensure fairness to all
candidates. This responsibility
enjoins the respondent council
to stem out acts of examination
malpractices for the public
interest…
(8)… The respondent council says
that following allegations of
leakage of the 2000 SSSCE
Mathematics (Core) 2
Pape
all scripts were scrutinized.
That there was
sufficient
evidence in the scripts of
the plaintiffs (sic) confirm
collusion arising out of
foreknowledge.
(9) In further answer the
respondent council says it has
all the expertise to detect
collusion among candidates.
(10) That the respondent council
admits paragraph (10) of the
affidavit in support and says it
took the action for the public
interest.
(11) … The respondent council
says the evidence in the scripts
of the plaintiffs are so
manifest that by its rules the
respondent council as an
examining body does not need to
invite candidates to make
representation. The practice is
universal with all examining
bodies.
(12) … The respondent council
says that the examination
results are not a matter of
human rights. That cancellation
of examination results on good
grounds does not constitute an
infringement of human rights.
Council will make reference to
relevant provisions of the 1992
Constitution.
(14) … The respondent council
says that as the name suggests,
the Final Award Committee is the
appropriate body that takes
decisions in all matters
affecting the SSSCE. As such it
is the same body that can review
its decisions, if any.
(15) … The respondent council
says that the decision was based
on evidence and was therefore
reasonable and fair.
(16) … The respondent council
says its decision does not
contravene any provision of the
1992 Constitution.
(17) … The respondent council
says its obligation of stemming
out acts of examination
malpractices is for the public
interest and therefore overrides
all other personal interests.”
After deposing to facts which can
conveniently be described as a
defence of justification for the
council’s decision, Mr Fredeick
Selby, the Solicitor for the
West Africa Examinations
Council, obviosly under a
misapprehension, challenged the
procedure adopted by the
apellants in the concluding
paragraphs of his affidavit in
opposition thus:
“(18) The originating summons
are used:
(i) under Order 54A to obtain a
declaration as to construction
of an instrument, will, deed or
statute;
(ii) under Order 54, r 15 for
the etermination, without any
administration of the estate or
trust, of the rights of persons
interested, the ascertainment of
any class of creditors, etc or
the furnishing of accounts;
(iii) under Order 54, r 16 for
the administration of a trust or
of the property of the estate of
a deceased person;
(iv) under Order 54, r 18 for
the foreclosure or redemption,
etc of a mortgage.
(19) That the present procedure
adopted by the applicants does
not give room for vidence,
which is very vital in this
case.
(20)That under the circumstances the
procedure adopted by the
plaintiffs is not the best to
determine the merits of the
matter.
(21)That the present action is
misconceived and lacks merit.
(22)That plaintiffs are not entitled
to the reliefs or at all.”
Later, in a supplementary affidavit
filed on 27 August 2001, the
same lawyer sought to “amend
paragraphs (5) and (11)” of his
original affidavit and to depose
to a new information that the
Final Awards Committee of the
council did, indeed, invite the
headmaster, Rev Fr Simon B Asofo
and one Mr Konlaan, the
invigilator for the day, to make
representations on behalf of the
appellants only for these
officers to confess in written
statements that the appellants
did receive pre-examination
briefing before the Mathematics
(Core) Paper 2. No such written
statements were exhibited as any
prudent lawyer would have done
in compliance with the Rules of
Court. For the avoidance of
doubt, I would like to I quote
the said affidavit in relevant
parts:
“(3) That I amend paragraph (5) of the
affidavit in opposition to read
as follows: That in exercise of
the powers conferred on it, the
respondent council has evolved
rules and regulations to ensure
the sanctity of examinations and
also to ensure fairness to all
candidates. This responsibility
enjoins the respondent council
to stem out acts of examination
malpractices for the public
interest. Counsel will make
references to regulations,
structure and scheme of the
examinations for the
Senior Secondary
School Certificate Examination
(SSSCE). Counsel will also make
reference to the statement of Fr
Simon B Asofo, headmaster
indicating that he briefed the
students before the commencement
of the examinations.
(4) That I amend paragraph (11) of my
affidavit to read as follows:
That in answer to paragraph (11)
of affidavit in support, the
respondent council says the
evidence in the scripts of the
plaintiffs are so manifest that
by its rules the respondent
council as an examining body
invited the headmaster of the
school and Mr Konlaan, the
supervisor in its
investigations. That being a
school examination the
respondent council did not need
to invite candidates to make
representation.”
I would like to briefly
comment on this peculiar
procedure adopted by learned
counsel for the council asking
that he be permitted to “amend”
paragraphs (5) and (11) of the
affidavit he had earlier sworn
to in opposition, and to depose
to new facts. I am very
doubtful whether this procedure
is permissible since to depose
to a new state of facts which is
inconsistent with that deposed
to in an earlier affidavit is
not the same as an application
for amendment of pleadings and
should not be considered as such
so as to allow such a strange
application at anytime as
is permitted by
the rules of court in the case
of pleadings. I dare say so
because I consider a deposition
as to the existence or
non-existence of a state of
facts as evidence for all
purposes and cannot simply be
re-called by another affidavit
stating a state of facts
inconsistent with the earlier
one, as is sought to be done in
the instant case. Even if a
party could be allowed to, as it
were, “amend” a deposition in an
earlier affidavit, he should not
be allowed to do so unless he
satisfactorily explains how he
came to depose to the previous
information.
My Lords, I have a confession to make
myself. I was deeply troubled
by this serious lapse on the
part of learned counsel; and if
you may permit me to re-call our
anxieties and concerns during
conference as to the likely
ramifications of our final
decision, upon reflection,
however, and speaking for
myself, I now think it was a
needless anxiety because of this
singular faux pas by
learned counsel. As I would
have been persuaded to adopt a
different position in this
matter had there been some
cogent and credible evidence on
record which is supportive of
this allegation and from which
one can safely make a finding of
fact in this direction, namely,
that the headmaster and the
invigilator were not only
invited but also did admit to
briefing the students.
I crave, your Lordships indulgence for
patience with me if I appear to
be treating “a non-essential
issue” or an issue not relevant
in this appeal because I
strongly feel that the whole of
my thought-process in arriving
at my decision be sufficiently
adumbrated. Moreover, I feel
greatly troubled by, and cannot
honestly gloss over, what I
consider to be learned counsel’s
serious lapse and inadequacies
on an important and crucial
issue like tendering of
confession statements from the
headmaster and the invigilator
to the detriment of his client’s
case.
I have therefore decided to change my
normal approach and to write
this particular judgment in a
what I will refer to as a
“tutorial style;” (that is to
say, pointing out what I
consider to be mistakes of
counsel and suggesting possible
solutions), so as to forestall
any possible accusations of lack
of sensitivity to the public
interest.
As earlier indicated,
although I am skeptical about
the procedure whereby a party
files a supplementary affidavit
seeking to, as it were, amend,
recall or recant a disposition
he had made in an earlier
affidavit, I have, however,
noticed from the record of
proceedings that, the learned
trial judge indulged learned
counsel with a week’s
adjournment to enable him put
his house in order, as we often
say, and yet counsel did not
take advantage of this
opportunity. The following
dialogue took place between him
and the court when counsel
attempted to show to the court
the alleged confession
statements. This is what
happened as recorded:
“Selby: … My Lord, this is a
statement the headmaster wrote
when he appeared before WAEC,
Rev Father Simon B Asofo and
then another one signed by the
supervisor. My Lord we gave
them every opportunity as an
institution. The headmaster and
the supervisor appeared before
the WAEC committee and this are
written statements they offered
that day.
Judge: Is that part of the
material you have filed.
Selby: My Lord, he is just
telling us that we invited all
other headmasters except this
school and my Lord, I am only
trying to disband that argument,
they appeared before us.
Judge: I remind you that you
should not forget that you are
arguing on affidavit and
therefore if you know there is
any material which will be of
use to the court please submit
it. Make it part of the
material you have filed.
Because if you have not filed
any thing, I will not use it.
The rules do not permit me to
use material which is not filed
so don’t forget that. I will
give you one week from today,
that is to say, you will be
coming on 28th.
And in the interim, if you think
it should be here but is not
here please go and file it. So
the case is adjourned to 28
August 2001.”
Despite this obvious indulgent
attitude of the learned trial
judge, there is nothing on
record to suggest that an
affidavit exhibiting these two
potentially decisive documents
had been filed. In my candid
opinion, therefore, the decision
of this court must unfortunately
be put down on the inadequacies
of learned counsel. He cannot,
in my humble view, escape blame
for this culpa lata in
the handing of this case.
Because, if such evidence were
properly laid before the trial
court, it would have, in my
opinion, provided an
unimpeachable answer to the
complaint of the appellants
under article 23 which enjoins
administrative bodies and
administrative officials, in a
very robust and imperative
language, to “act fairly and
reasonably and comply with the
requirements imposed on them by
law.”
The phrase “to act fairly and
reasonably” in my opinion
necessarily imports a duty to
observe the common law maxim of
audi alteram partem and
other principles of natural
justice which is very much part
of our jurisprudence and are
implicit in the constitutional
provisions in article 23.
Because I cannot contemplate how
a person could be said to have
acted fairly and reasonably if
he did not give either notice or
hearing to another who was
entitled to such notice or
hearing before taking a decision
which adversely affects his
rights, neither can I
contemplate a situation where a
person could be said to have
acted fairly and reasonably if
he acted as a judge in his own
cause, or gave a biased and
perverse decision!
My Lords, it is clear to me that the
appellants anchored their plaint
on article 23 of the
Constitution of this country
and, in seeking redress, took
advantage of article 33(1) which
confers jurisdiction on the High
Court to adjudicate any lis
in which an individual either
alleges an actual infringement
of his fundamental rights or
brings a quia timet
action to prevent a threatened
breach of his rights. Article
33(1) states in unambiguous
language as follows:
“33(1) Where a person alleges
that a provision of this
Constitution on the fundamental
human rights and freedoms has
been, or is being is likely to
be contravened in relation to
him, then without prejudice to
any other action that is
lawfully available, that person
may apply to the High Court for
redress.”
And in clause (2) of the said
article, the High Court in the
exercise of its enforcement
jurisdiction
under clause (1) is empowered
to:
“33(2)…issue such directions
or orders or writs
including writs or orders in the
nature of habeas corpus,
certiorari, mandamus,
prohibition, and quo
warranto as it may consider
appropriate for the purposes of
enforcing or securing the
enforcement of any of the
provisions on the fundamental
human rights and freedoms to the
protection of which the person
concerned is entitled.”
Under clause (4) of article 33,
the Rules of Court Committee of
the Judicial Council is
entrusted with the
responsibility to make rules to
regulate the practice and
procedure for enforcing the
fundamental rights of the
individual by the courts. And
it is common knowledge that this
constitutional responsibility
has not yet been discharged by
the appropriate authority. It
is this void or lacuna
in the rules as to the
appropriate procedure to be
employed to invoke the
enforcement jurisdiction of the
High Court under clause (1) of
article 23
that
compelled the appellants’
solicitors “to apply to the High
Court for redress” by employing
the procedure of “originating
notice of motion” to invoke the
jurisdiction of the High Court.
But before I consider the
objection of learned counsel, I
would like to digress a little
bit and take a brief look at the
history behind the whole of
chapter 5 (articles 12-33) on
the Fundamental Human Rights of
the individual.
The historical and political
development of the country as
demonstrated by the landmark
case of In re Akoto
[1961] 2 GLR 523, SC not only
made it paramount but inevitable
that the fundamental rights of
the individual be enshrined and
entrenched in the 1992
Constitution, but also desirable
that a mechanism be provided for
their enforcement. Therefore,
in enacting the fundamental
rights of the citizen in
articles 12 to 32 of the
Constitution coupled with a
provision in article 33(1)
empowering the High Court to
enforce these rights, the
framers of our Constitution have
not only demonstrated their
resolve and determination to
confer rights on the individual
but also that these rights be
enforceable as well. It may be
that it is this mechanism that
the framers of our Constitution
intended to use to avoid, in the
future, a similar decision like
the one in In re Akoto.
Through the provisions of
article 33(1), the framers of
the Constitution have, as
pointed out by Robert
Hayfron-Benjamin J (as he then
was), in the case of Peoples’
Popular Party v
Attorney-General [1971] 1
GLR 138 where a similar
provision in the 1969
Constitution was considered,
clearly expressed their general
intention that the courts should
be the custodians and the
protectors of the rights and
liberties of the individual
citizens of the country. When,
however, it is a law which
infringes any of these rights
and liberties, that law is
pro tanto void and
proceedings have to be initiated
under articles 2(1)(a) and
130(1)(b) for such a declaration
rather than a resort to article
33(1) of the Constitution.
There is no gainsaying the
fact that the gravamen of the
appellants case is that the
council did not give them any
hearing contrary to the
principles of natural justice
which principles, by necessary
implication, are now enshrined
in article 23 of the 1992
Constitution before taking the
decision cancelling their
results; which decision in every
sense will adversely affect
them. There can be no doubt,
therefore, that the decision of
the Final Awards Committee of
the council could be reviewed by
the High Court by means of a
writ of certiorari to
determine whether the said
decision was given in compliance
with the principles of natural
justice and, in my view, with
the provisions of article 23 of
our Constitution as well. But
the appellants did not directly
follow this
procedure possibly because of
time constraint, as an
application for certiorari,
under our Rules, is
ordinarily subject to be brought
within six months from the date
of the decision complained of.
The “originating notice on motion”
taken out on behalf of the
appellants, therefore, was
essentially to determine whether
the appellants were fairly
treated or given a hearing in
accordance with the principles
of natural justice embodied in
the maxim: audi alteram
partem, before they were
sanctioned by the Final Awards
Committee of the Council. To
me, these issues could easily
and fairly be resolved on
affidavit evidence without
recourse to viva voce
evidence as learned counsel
erroneously assumed. To me,
therefore, the procedure of
originating notice
of motion adopted by
the appellants might not only be
to avoid the constraints of time
fortuitously imposed on them by
the rules of court if they had
brought an application for a
writ of certiorari, but
also as a simple, convenient and
pragmatic means of vindicating
their rights. And although the
Rules of Court Committee is yet
to regulate, as required by
article 157(2) of the 1992
Constitution, the procedure for
the enforcement of the
fundamental rights enshrined in
chapter five of the
Constitution, I think it will be
a great tragedy for the rule of
law, like the decision in the
Re Akoto case [1961] 2 GLR
523, SC, if we interpret article
33(1) in such a manner that an
individual is, meanwhile,
prevented from bringing the
infringement of his fundamental
rights under chapter 5 to the
attention of the court to
vindicate the rule of law and
get unlawful conduct reviewed
and stopped. The fortunes of
this case, therefore, will
depend on what construction we
put on the words “may apply …
for redress” in article 33(1).
And we must bear in mind that in
cases involving the rights of
the citizen, a simple but
efficacious procedure is the
most desirable. I will therefore
humbly urge your Lordships to
adopt a very liberal and broad
construction of article 33(1)
rather than any restrictive and
doctrinaire approach to its
interpretation. As Sowah JSC (as
he then was) advised (in
delivering the judgment of the
Court of Appeal sitting as the
Supreme Court in Tuffuor
v Attorney-General [1980]
GLR 637), we must regard the
Constitution as “a living
organism capable of growth and
development, as the body politic
of Ghana itself is capable of
growth and development.” In our
efforts at interpreting the
Constitution his Lordship
advised thus at pp 647-648:
“A broad and liberal spirit is
required for its
interpretation. It does not
admit of a narrow
interpretation. A doctrinaire
approach to interpretation would
not do. We must take account of
its principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time.
And so we must take cognizance of the
age-old fundamental principle of
constitutional construction
which gives effect to the intent
of the framers of this organic
law. Every word has an effect.
Every part must be given
effect.”
As earlier pointed out, human rights
cases are matters which must not
only be given liberal
considerations but also must be
expeditiously determined. In
such matters, therefore, a
simple or non-cumbersome but
efficacious procedure must be
adopted for its enforcement;
“simple” or “non-cumbersome” in
the sense that the procedure
should be readily available to,
and inexpensive for the ordinary
citizen of this country. And
“efficacious” in the sense that
the procedure will also allow
for a speedy and convenient
determination of the issues at
stake.
After carefully reading clauses (1)
and (2) of article 33 together,
I am firmly of the view that the
words must be given their
literal and ordinary meaning;
and the simple and ordinary
meaning I would ascribe to the
word “redress” as it is used in
clause (1) is “relief.” And
“apply” is wide enough to admit
any procedure by which the court
can be approached. The question
then may be asked: What types of
relief can be granted by the
High Court in such
circumstances? The answer is
immediately provided in clause
(2) of the said article 33 which
empowers the High Court “to
issue such directions or
orders or writs …
for the purposes of enforcing or
securing the enforcement” of the
rights to which, in the opinion
of the court, the person is
entitled. There should
therefore, first, be a
declaration as to the existence
or otherwise of a right and
its
infringement before an
appropriate “order” could be
made or a “direction” issued to
secure or enforce such a right.
It is my humble view that in the
circumstances of the case before
us, we can say without any fear
of contradiction that where an
individual brings such
proceedings in court, he must
have a high expectation of
obtaining an authoritative
declaration of his legal rights
coupled with the grant of an
appropriate judicial remedy to
vindicate those rights.
Therefore learned counsel’s
argument that the procedure is
inappropriate for a declaratory
judgment, not in the accepted
sense of it being a foundation
for a future action, is, with
the greatest respect,
not
maintainable. Presumably the
“directions” or “orders” or
“writs” may be aimed at the
person or body which violates
the rights of the individual who
brings the complaint to the
court. But to the question
against whom these fundamental
rights of the individual in
chapter 5 can be enforced, I
would, broadly speaking, answer
that it is against the “state”
or “executive”; so that prima
facie, the fundamental rights
become enforceable against local
or other authorities or agents
of the state and the executive,
or any person who violates
them. But article 23
specifically mentions
“administrative bodies” and
“administrative officials.”
This should not be inconsistent
with the above submission as to
the categories of persons
against whom the rights can be
enforced.
My Lords, it is interesting to note
that in conferring supervisory
jurisdiction on the High Court
over all lower courts and any
lower adjudicating authority,
the framers of the Constitution
provide, in almost identical
language, that in the exercise
of its supervisory jurisdiction,
the High Court has power to
issue “orders” and “directions”
for the purpose of enforcing or
securing the enforcement of this
jurisdiction. What then is the
meaning of the words
“directions” or “orders” “writs”
as used in clause (2) of article
33?
The writ of mandamus, certiorari
and prohibition were
replaced in England in 1938 by
“orders” of the same name. It
was quo warranto which
was replaced first by
information in the nature of
quo warranto, and later by
an injunction – that is, an
order of the court. In India,
which is also a common law
jurisdiction, however, the
writs of habeas corpus and
mandamus were replaced by
“directions” in the nature of
mandamus. So the words
“orders” and “directions” may
not be too different from the
old writs since the terminology
has also been in use in England;
especially when “common law” as
known in English jurisprudence
is still applicable in our
jurisdiction. One basic
principle of interpretation of
statutes is that the legislature
must be credited with knowledge
of the state of the law.
Applying this canon of
construction, it is submitted
that under the common law which
is still undoubtedly relevant in
our
jurisprudence, we can say that
since the High Court enforces
its supervisory jurisdiction
through the prerogative writs of
habeas corpus, certiorari,
mandamus, prohibition, and
quo warranto of old, it
is safe to presume that the
words “orders” and “directions”
and “writs” are used to describe
what at one time were called
prerogative writs in England; or
they refer to these established
and well-recognized English
writs. The words, in my humble
opinion, have been used in
clause (2) of article 33 and
clause (2) or article 2 to
describe well-recognized English
writs. There is, therefore, in
my considered opinion, internal
evidence in clauses (1) and (2)
of article 33, read together,
unlike in article 2 clauses (1)
and (2), that the framers of the
Constitution might have intended
to de-emphasize the formal
procedure of issuing a writ in
the High Court to invoke its
enforcement jurisdiction under
article 33(1), and rather
intended that the Rules of Court
Committee make rules which will
be as simple as, and similar to
rules for the application for
the old prerogative writs.
It is submitted that the principles
governing the issue of the writ
of habeas corpus, mandamus,
quo warranto, have not been
affected merely by reason of the
wide language used in article
33(2). It is doubtful to
conceive of any “direction” or
“order” which can secure a
result, for example, a
declaratory relief, which could
not be secured by the writs
expressly mentioned in the
article. The order, in my view,
therefore, could be declaratory
in form and so we can declare
the rights of the appellants and
secure its enforcement by the
appropriate “direction” or
“order” or “writ.” But wide as
the connotation of the words
“directions” or “orders” in
article 33(2) is, I do not
consider them so wide as to
include declarations for
foundation of future claims.
These can
appropriately be decided in a
more appropriate proceedings.
This is not to say that any
adequate alternative relief will
defeat the constitutional remedy
under article 33(1). It may
rather be that it is that other
relief which is the only relief,
and article 33(1) is neither the
proper nor the adequate relief
or means to secure it. This is
borne out by the phrase “without
prejudice to any other action
that is lawfully available” to
the individual as used in the
said article.
It is clear to me that the
intention of the framers of our
Constitution is that the
individual who alleges that his
fundamental rights have been
breached or is threatened to be
breached, should have cheap and
unimpeded access to the High
Court. On the issue whether
the appellants
were right in invoking the
jurisdiction of the High Court
by originating notice of motion
in the absence of specific rules
to vindicate their fundamental
rights, I have already indicated
that there is enough internal
evidence in the relevant
provision to permit the recourse
to such a procedure. Therefore
the objection that the procedure
of originating notice of motion
was inappropriate for the
reliefs sought by the
appellants; and that until
specific rules have been made by
the mandated authority to
regulate the procedure for
invoking the
enforcement
jurisdiction under article
33(1), the only viable
alternative was for the
appellants to have issued a writ
like in civil cases is, in my
view, not maintainable.
Although learned counsel did not
specifically refer to Order 2, r
1 of the High Court (Civil
Procedure) Rules, 1954 (LN
140A), its influence could
easily be discerned from his
views. It must be conceded that
this alternative procedure is
also available under clause (1)
of article 33. But it is a
procedure which can hardly
recommend itself to any human
rights lawyer because of its
cumbersome nature with
its attendant
delays which may result in
considerable expenses. In my
humble opinion, the procedure of
originating notice of motion is
currently the most suitable
procedure, in the absence of any
specific rules, for a situation
which no doubt may demand some
urgency and expeditious
disposal. The added advantage
of this procedure is that in
extreme cases, an applicant can
obtain an interim relief, even
if ex parte, for a brief period
only.
In the High Court the learned trial
judge rejected Mr Selby’s
objection, dealt with the
application on the merits and
granted the appellants’ reliefs
by quashing the decision of the
Final Awards Committee of the
Council. On appeal, the Court
of Appeal agreed with learned
counsel for the council and
overruled the High Court and set
aside its decision. This court
is therefore to decide whether
the High Court’s jurisdiction
was properly invoked or not.
My Lords, in overruling the High
Court, the Court of Appeal held
the view that two cases cited in
argument were not relevant to
the case they were dealing
with. These cases are: (a)
People’s Popular Party v
Attorney-General [1971] 1
GLR 138; and (b) Juandoo
v Attorney-
General of Guyana [1971]
AC 972, PC. In the case of the
People’s Popular Party v
Attorney-General, the
applicants, a registered
political party, applied for
police permit to demonstrate in
respect of certain national
issues but were refused the
permit by the police
without
assigning any reasons. Another
political party was, however,
permitted to demonstrate over
some of the issues. The
People’s Popular Party therefore
applied to the High Court by way
of originating motion under
article 28(2) of the 1969
Constitution claiming that their
rights of
association, movement and
assembly as provided under the
said Constitution, had been
infringed. The relief sought by
them was an order compelling the
police to issue them with a
permit. The Rules of Court
Committee, like in this case,
did not make rules to regulate
the procedure to be followed
under article 28(2) of the 1969
Constitution.
The court, presided over by Robert
Hayfron-Benjamin J, applying the
case of In re Meister Locius
and Bruning Ltd [1914] WN
390, held that where a statute
(article 33(2) the 1992
Constitution) in this case
provides for an application to
be made to the court without
specifying the procedure by
which such an application is to
be made, it may be made by
originating notice of motion.
The case was also relied upon by
the Law Lords in the Jaundoo
case where Lord Diplock, reading
the opinion of the Privy
Council, quoted with approval
the following words of
Warrington J:
“… where the act merely provides
for an application and does not
say in what form that
application is to me made, as a
matter of procedure, it may be
made in any way in which the
court can be approached.”
Although the Court of Appeal is
not bound by the decision of the
High Court, it is inexplicable
to me how this case could be
said to be “hardly applicable”
to the case before them,
especially when the case dealt
with a constitutional provision
in the 1969 Constitution which
can be said to be in pari
material with article 33(1)
of the 1992 Constitution, which
is involved here.
With much respect to the learned
judges of the Court of Appeal, I
personally think the case is on
all fours with the present one.
The Jaundoo case presents
the same scenario as in the case
before us. The Government of
Guyana proposed to construct a
new road through the applicant’s
land. She held the view that
her rights under article 8 of
that country’s Constitution
would be violated. The said
article prevented the compulsory
acquisition of property unless
under circumstances specified in
the article. There were similar
provisions in the
Constitution
empowering the High Court to
enforce a citizen’s fundamental
rights; and also a provision
requiring the rule making
authority of the Supreme Court
to make rules for the practice
and procedure to invoke the
jurisdiction of the High Court
to enforce the individual’s
rights but this was not complied
with.
The applicant by originating notice of
motion applied to the High Court
for redress. The court
dismissed the application in
limine on the grounds that
an originating notice of motion
was not the proper procedure and
that the proceedings should have
been commenced by a writ of
summons. The case travelled up
to the Privy Council where it
was held that since the
authorized body had not made any
rules in respect of the practice
and procedure for applications
to be made to the High Court for
redress, the right to apply was
unqualified and wide enough to
cover applications by any form
of procedure by which the High
Court could be approached to
invoke its powers, and an
originating motion was one such
procedure.
Again, with much respect, although the
Court of Appeal is not bound to
follow the decision of the Privy
Council in the Jaundoo
case, one would have thought
that it is on all fours with the
case before them and contained
useful guidance and should
therefore have been treated with
respect and applied. But
unfortunately the court said the
case was “inapplicable” to the
situation before it.
My Lords, if the Court of Appeal
thought it had reached a
complete dead end or cut-de-sac
in the matter, it could have
sought refuge under Order 74 of
our High Court (Civil Procedure)
Rules, 1954 (LN 140A), which
allows the adoption of the
practice in force in the High
Court of England where our Rules
make no provision for any
procedure. In 1962 the Supreme
Court Rules were revised in
England by the RSC (Review)
1962, which came into effect on
1 January 1964. And by the said
revision, Order 5 r 1 made
changes as to the mode of
commencing civil proceedings in
the High Court. The rule stated
thus:
“Subject to the provisions of
any Act and of these rules,
civil proceedings in the High
Court may be begun by writ,
originating summons, originating
motion or petition.”
This rule, juxtaposed to the
provision in article 33(1), in
view of the latter’s wide
language, could only lead to the
conclusion that the procedure
adopted by the appellants to
seek redress from the court was
permissible.
One last point which I think is
important for me to touch on is
the failure of learned counsel
to exhibit the alleged
confession statements of the
headmaster and the invigilator,
one Mr Kolaan, to establish his
allegation that the appellants
were invited per those officials
who confessed
the offence. The learned trial
judge was therefore justified in
his finding that the appellants
were not given hearing at any
stage of the council’s
investigations into allegations
of malpractices during the
examinations; and this is the
pith of the appellants’
complaint against the council.
To compensate for this failure,
learned counsel contended that
the council has the necessary
expertise to detect “collusion
among candidates through
scrutiny of the scripts”; and
that from this exercise, there
was sufficient evidence to
“confirm collusion arising out
of foreknowledge”
against the appellants.
I think, and this is
important for emphasis, that
there has been a misapprehension
of the real import of the
complaint of the appellants
under article 23 of our
Constitution. This is so
because it is a well-settled
principle of administrative law
that preliminary investigations,
like the comparison and scrutiny
of the scripts of candidates, is
not subject to the principles of
procedural fairness. But when
the council, after its own
preliminary investigations,
forms the opinion that there
might have been collusion as a
result of foreknowledge among
the students then, I think, the
principles of procedural
fairness, like giving notice and
hearing to the appellants, must
be observed. This is because
after such preliminary
investigations, the council
could be said to have some
evidence upon which to act and
take a decision affecting the
rights of the appellants. To
me, therefore, this case comes
within the category of cases in
which we cannot sincerely say
that this serious default
against article 23 had not
inflicted a gross injustice on
the appellants. It was an
unreasonable exercise of power.
Thus the argument of learned
counsel to the effect that the
issue concerned school
examinations and the council
could not, as a universal
practice, invite the candidates
to make representations is, to
me, untenable since it implies
the submission that the
observance of the rules of
natural justice was
administratively inconvenient
and the flawed procedure made no
difference to the decision. In
this country, the right to be
heard is a fundamental principle
enshrined in our Constitution
and cannot be ignored for
reasons of administrative
inconvenience.
Another problem area for the council
is the type of punishment
imposed on the appellants under
their own regulations. The
appellants were said to have
colluded in one paper –
Mathematics (Core) Paper 2.
This finding, admittedly was
arrived at through the scrutiny
of the scripts of the
appellants. The case therefore
squarely falls under section B,
regulation 3(a) of the
council which governed the
entire examinations in the year
2000. It provides:
“3(a) Where cases of
cheating are detected in the
scripts and/or otherwise
established in one paper, the
results of the subject involved
shall be cancelled. Where a
candidate is proved to have
cheated in more than one
paper/subject his entire
results shall be cancelled.”
Clearly, the council has acted
ultra vires its own
regulations, that is, section B,
reg (3)(a) which relates
to collusion. I do not see why
Mr Selby as solicitor for the
council, could not advise it
that under its own regulations,
it had acted ultra vires
and allow for an earlier
resolution of this case rather
that contesting in the courts
for all this while.
There has been some
argument about the regulations
not having been made by the
Minister for Education as
provided in the law establishing
the council but by the council
itself. The legal consequences
of such a default are too great
to contemplate and pronounce
upon now. In any case, I do not
think it is very crucial to the
determination of this case and I
will prefer to rest my decision
on the grounds earlier canvassed
in this judgment. We can only
call upon the minister
to perform the
functions he has been tasked
with under PNDCL 225 to avoid
any future embarrassment.
Charity, they say, begins from home.
And I cannot also forget the
saying “let everybody sweep in
front of his house and the whole
world will be clean.” It is the
default in our system which has
given rise to this case. I
cannot therefore end this
judgment without quoting Lord
Diplock in the Jaundoo
case (supra). He said at page
987 thus:
“Their Lordships, however,
cannot part with this appeal
without … drawing attention to
the urgent need which it has
disclosed for specific provision
to be made under article 19(6)
for the practice and procedure
to be followed in applications
and references to the High Court
under article 9(2). The absence
of such provisions has had the
result in the instant appeal
that the parties have been put
to the expense of three stages
of interlocutory proceedings,
and the applicant’s claim still
remains to be heard on the
merits nearly five years after
the proceedings began.”
For article 19(6) substitute
article 33(4) of the 1992
Constitution and for article
9(2) substitute article 33(1)
and the sentiments expressed in
this dictum will serve my
purpose.
I do not think whatever decision we
are compelled to arrive at will
be subversive of the important
public duty of the council to
check and eradicate examination
malpractices and preserve the
integrity of its certificates
and diplomas. It is rather a
decision which seeks to balance
the democratic rights of the
citizen as enshrined in article
23 against the obvious need, in
the public interest, of the
council to preserve the sanctity
of its examinations. I do not
think this case is one in which
injustice to one individual can
be said to be of no consequence
because the larger societal
interest is more important. For
the right of a nation is that of
the individual written in
capital letters. And a nation
that stands by and looks on
while the rights of the
individual are slowly pecked at,
eventually pays the ultimate
price of finding its own rights
eroded. Often times, the
concept of “public interest” and
“national security” have been
used to undermine and subvert
individual freedoms. These are
words which are not infrequently
on the lips of potential
dictators and often used as
convenient excuses for the
violation of individual rights.
We may accept some limitation on
the fundamental rights of the
individual only if it is
justified and proportionate.
Might be it was time we told
public authorities that they
would be held scrupulously to
the democratic rights enshrined
in chapter five (article 12-32);
and especially the values
impliedly enshrined in article
23. My Lords, in view of all
that I have said, I would allow
the appeal against the judgment
of the Court of Appeal and
restore the judgment of the High
Court. The judgment of the
Court of Appeal is hereby set
aside and that of the High Court
restored.
As indicated in the
preface to this opinion, we gave
our decision on 17 June 2004 but
reserved our reasons for
allowing the appeal, and the
issuing of our final orders to
today. We did so because at a
pre-judgment conference held a
few days before the intended
judgment day to discuss our
final orders, we were divided in
opinion as to whether the
appellants, in view of the
circumstances of the case, were
entitled to some damages as part
of the redress or not. And, if
so, what factors were to be
considered. We therefore
invited further submissions from
both counsel as a form of
assistance to us. The essence
of questions we posed to counsel
can succinctly and neatly be
reframed thus: whether a
constitutional provision like
article 33(1) for redress for
breach of fundamental rights and
liberties should be interpreted
to include the award of damages
when the act complained of is
the non-observance of the rules
of natural justice, or the
violation a fundamental rights
as in the instant case.
Admittedly, the question does not lend
itself to an easy answer. This
is because customarily, a breach
of the principles of natural
justice does not, as such, give
rise to a cause of action in
public law proceedings for
damages. Strictly speaking,
therefore, such a breach is not
defined to include the risk that
the irregularity might
proximately affect the outcome
and give rise to award of
damages in public law
proceedings.
In canvassing this traditional
viewpoint that proceedings such
as these are public law
proceedings and therefore the
appellants are not entitled to
damages, learned counsel for the
West African Examinations
Council relied on decided cases
like Cutler v
Wandsworth Stadium Ltd
(In Liquidation)
[1949] All ER 544 and the views
of Simon Brown J in the case of
Thames Valley Police; Ex
parte Cotton [1989] COD 318
where the learned judge said at
page 320 thus:
“The mere fact of succeeding in
judicial review proceedings does
not supply [an applicant with
the cause of action].
Successful natural justice
challenges do not carry in their
wake damages claims. They
entitle the applicant to a fresh
decision but it is generally
well recognized that the mere
quashing of a decision and the
recognition that the state of
affairs which it brought about
was unlawfully occasioned does
not carry with it an entitlement
to damages.”
This is a classic common law position
which is still part of the Laws
of Ghana. But the issue is
whether article 33(1) should be
interpreted to include the award
of some damages as part of the
“redress” under the said
article. Learned counsel
submitted that the above dictum
“mirrors the Ghanaian position”
and that the only remedies
available are those mentioned in
article 33(2). The logical
conclusion of this submission,
in my view, is that the orders,
directions and writs etc are
intended only to enforce the
particular rights contravened
and this cannot be achieved by
the award of damages; a
position, counsel submitted,
which is reinforced by the words
“without prejudice to any other
action that is lawfully
available” to a victim. This,
counsel submitted, not only
excludes the right to damages
after a successful application
under article 33(1) of the
Constitution but also concedes
the multiplicity of actions and
prevents a plea of estoppel so
that an aggrieved person must
institute fresh action for
damages.
In the case of Edusei v
Attorney-General [1996-97]
SCGLR 1 at page 46, I did
express myself in words which
may appear to be supportive of
this view when I was commenting
on the words “without prejudice
to any other action that is
lawfully available to him” thus:
“These words cannot be said to
have conferred jurisdiction on
this court, or any other court
for that matter, to enforce
individual rights as some may
argue. In my humble opinion,
it simply means that if any
other cause of action is open to
an individual as a result of the
violation of his rights, he
shall not be foreclosed by his
initial action to vindicate his
right from pursuing that other
action. An example can
help illustrate
the point. Mr Delali, a
businessman, has been
unlawfully detained for say six
months before his release
through an application for a
habeas corpus. Mr Delali is
not precluded from bringing an
action for damages if his
business has collapsed as a
direct result of his detention
and for unlawful detention.”
(The emphasis is mine.)
It is therefore true to say that
while a prior recourse to
proceedings under article 33(1)
of the Constitution to secure
the immediate determination of
the breach of a fundamental
right cannot be construed as a
waiver of the consequences of
the breach with its attendant
remedies previously known to our
laws in any private law
proceedings, it may not also be
too far-fetched to say that the
intention of the framers of the
Constitution is to create a new
remedy in addition to any
existing remedies known to the
common law. The question
whether the appellants are
entitled to some compensatory
award may therefore be resolved
by the interpretation we put on
the word “redress” as used in
article 33(1).
My Lords, the breadth of language
employed in the said article
33(1) should encourage us to
follow the broad-minded approach
and liberal interpretation
adopted by the Privy Council in
the case of Maharaj v
Attorney-General of Trinidad &
Tobago [1978] 2 WLR 902
where it was held that the award
of some damages could be a
component of the redress the
court is entitled to give.
This was a case in which a lawyer was
convicted of contempt and
sentenced to prison for seven
days without due process. He
immediately filed an ex parte
notice of motion to the High
Court under section 6 of the
Constitution of Trinidad &
Tobago, claiming redress for the
violation of his fundamental
rights, guaranteed under section
1(a) of the said Constitution,
not to be deprived of his
liberty except by due process.
In the Privy Council the
majority of their Lordships held
the view that an order for
payment of compensation when a
right protected under section 1
“has been” contravened is
clearly a form of “redress”
which a person is entitled to
claim under section 6(1) and may
well be the only practicable
form of redress in a post
contravention situation as it is
in the instant case before us.
It must be pointed out that
section 6(1) of the Constitution
of Trinidad & Tobago corresponds
with article 33(1) of our
Constitution and is couched in
almost identical language with
the influential words “may apply
to the High Court for redress”
featuring in both provisions.
Their Lordships were confronted with
the same problem which now
confronts us in the instant
case. And as pointed out by
Lord Hailsham of St Maryleborne
in his dissenting opinion: “the
only question in this appeal is
whether the state is liable to
pay monetary compensation to the
appellant.” The majority
answered in the affirmative, and
speaking per Lord Diplock, said:
“What then was the nature of the
‘redress’ to which the appellant
was entitled? Not being a term
of legal art it must be
understood as bearing its
ordinary meaning, which in the
Shorter Oxford Dictionary, (3rd ed)
1944 is given as: Reparation of,
satisfaction or compensation for
a wrong sustained or the loss
resulting from this. At the
time of the original notice of
motion the appellant was still
in prison. His right not to be
deprived of his liberty except
by due process of law was still
being contravened; but by the
time the case reached the Court
of Appeal he had long ago served
his seven days and had been
released. The contravention was
in the past; the only
practicable form of redress was
monetary compensation.” (The
emphasis is mine).
My Lords, although we are not
bound to follow the decisions of
the Privy Council or any other
court, I am not particularly
enthused with treating this
decision with any careless
abandon in view of the
similarity in language of
article 33(1) with section 6(1)
involved in the Maharaj
case. It is therefore a case I
find very relevant and
persuasive enough and we must
accord much judicial respect to
it.
The Maharaj case, like the
instant case, was dealing with a
post violation of the
fundamental rights situation.
The appellant had already served
his sentence before his appeal
was heard and the Board of the
Privy Council felt the only way
such a wrong could be
adequately
redressed was not only by
quashing the conviction and
order of imprisonment but also
by the award of some damages.
And in the case before us we are
similarly dealing with a
contravention which is now in
the past. The appellants have
been frustrated in planning
their future in the academic
field and entire life for the
past four years not only as a
result of the unlawful
suspension of their entire
results but also their
illegal barring from taking any
examinations under the auspices
of the council for three years.
I find intolerable and
unconscionable
the situation
the appellants went through by
the decision of the council;
especially when under their own
regulations they are not
entitled to withhold the
entire results of the
appellants and in addition
bar them for three years.
In the circumstances, I think a token
and moderate compensatory award
coupled with the relevant orders
and directions to the council
will fairly and reasonably
redress the contravention of the
appellants’ rights. I must,
however, caution that this
should be limited to its own
facts since it is not intended
to represent any general
principle regulating a court’s
discretion which will open the
floodgates for the award of all
types of damages in public law
proceedings.
My Lords, under article 129(4) of the
1992 Constitution we are
empowered to do what the court
below ought to have done. It
will certainly be a needless
dissipation of valuable time to
remit this case to the court
below, as was one in Maharaj
case, with a direction to assess
the “damages.” I would instead
recommend to your Lordships that
each of the appellants be
awarded a token monetary
compensation only, assessed at
¢5 million cedis to each of the
appellants.
F. Y. KPEGAH
JUSTICE OF THE SUPREME COURT
SOPHIA AKUFFO JSC.
Essentially, this case is about
access to timely and effective
judicial protection of the
fundamental human rights and
freedoms enshrined in chapter 5
of the 1992 Constitution, in
general, and the right of the
individual to administrative
justice in particular. I will
briefly touch upon the
objectives of chapter 5 and
discuss the objectives and scope
of articles 33 and 23 in some
detail. I will not set out to
any great extent the factual
background of the appeal since
some of my learned colleagues
have ably done so in their
respective opinion. However, I
will advert to some of the
salient facts as and when
necessary.
The Fundamental Human Rights and
Freedoms
In our collective and national quest
for overall good governance, the
rights and freedoms set out in
chapter five of the 1992
Constitution constitute, by far,
some of the most crucial
mechanisms created by the
Constitution for assuring the
attainment and sustenance of the
political, social, economic and
cultural foundations of a modern
democracy. The Committee of
Experts (Constitution), in their
Proposals for a Draft
Constitution of Ghana gave
comprehensive justifications for
the formulation of chapter 5,
and the inclusion of provisions
on fundamental human rights and
freedoms in our Constitution. Of
their numerous reasons, one may
refer, in particular, to those
set out in paragraphs 132, 133
and 139 of the Report, which
respectively read as follows:
“132. Throughout Africa and,
indeed, a significant part of
the Third World, there has been,
in recent years, a sustained
public clamour for the
promulgation and enforcement of
human rights and freedoms as a
critical ingredient of the
democratization process…
133. This resurgence of interest
in human rights is hardly
surprising. Apart from the
obvious desire for a more
democratic order and the
universal yearning for human
dignity, there is a growing
realization that the enjoyment
of the basic freedoms is
conducive to the development and
purposeful application of human
resources and, indeed, the
establishment of an environment
that enhances development...
139. The Committee also
elaborated the social and
economic aspects of human rights
– aspects which are of
particular relevance to the
conditions of Africa and the
developing world generally. Some
of these rights are included in
the proposed Directive
Principles of State Policy,
except that here they are more
precisely elaborated as
rights...”
The scope and magnitude of guaranteed
fundamental human rights and
freedoms are such that, the 1992
Constitution, in article 33(5)
makes it very clear that the
rights and freedoms specified in
chapter 5 are not intended to be
exhaustive or exclusive of other
rights, duties, declaration and
guarantees relating to
fundamental rights and freedoms
“which are considered to be
inherent in a democracy and
intended to secure the freedom
and dignity of man.” (The
emphasis is mine). They are also
reflected in the opening clause
of chapter 5 (article 12(1))
which declares that:
“12(1). The fundamental human
rights and freedoms enshrined in
this Chapter shall be respected
and upheld by the Execudive,
Legislature and Judiciary and
all other organs of the
government and its agencies and,
where applicable to them, by all
natural and legal persons in
Ghana, and shall be enforceable
by the courts as provided for in
this Constitution.”
Thus, the judiciary is also required
to do everything
constitutionally and legally
possible to assure that, in the
exercise of its functions, these
rights and freedoms are upheld
and respected; subject of course
to a concomitant respect for the
rights and freedoms of others
and for the public interest.
The Constitution, in
chapter five, does not only
proclaim the fundamental rights
and freedoms but goes on, in
article 33, to provide, through
the High Court, effective means
for assuring
the
protection of these rights. In
this light, therefore, it is the
duty of the High Court, and
appellate courts, to ensure
that, where a person approaches
the seat of justice for the
protection of his rights and
freedoms, the procedural rules
of court do not become
instruments for obstructing or
denying the aggrieved person’s
access to justice. Hence, the
well-known dictum of Collins MR
in In re Coles & Ravenshear
[1907] 1 KB 1 at 4 remains a
healthy reminder that:
“Although I agree that a court
cannot conduct its business
without a code of procedure, I
think that the relation of rules
of practice to the work of
justice is intended to be that
of handmaiden rather than
mistress, and the court ought
not to be so far bound and held
by rules, which after all are
only intended as general rules
of procedure, as to be compelled
to do what will cause injustice
in the particular case.”
Issues for determination
In arriving at its decision that
is now on appeal, the Court of
Appeal made the following key
findings:
(1) The procedure by which the High
Court’s jurisdiction was invoked
was contrary to the rules of the
court and therefore irregular
and incurably bad, especially
since the action raises issues
of fact that can only be
established by evidence.
(2) The procedure adopted by the
appellant is inapplicable in
asserting a right under article
23.
(3) Until it has been clearly and
amply demonstrated that a
constitutionally guaranteed
fundamental human right has been
breached or contravened, no one
can bring an originating motion
on notice under article 33(1) of
the Constitution.
(4) In arriving at its decision to
impose penalties on the
appellant and his colleagues,
the respondent (hereinafter
referred to as WAEC) was
exercising an administrative
rather than judicial function.
Therefore, there has not been
any breach of article 23 of the
Constitution.
(5) The action taken by the WAEC was
neither ultra vires nor
arbitrary, but rather in
accordance with the provisions
of the West African Examinations
Council Law, 1991 (PNDCL 255).
In this appeal, the
appellant filed no less that ten
grounds most of which are, to my
mind,
merely verbose and repetitive.
In substance, these grounds may
be summed up as follows:
(a) The Court of Appeal erred when it
held that the High Court’s
jurisdiction under article 33(1)
of the Constitution may be
invoked only when a fundamental
human right under the
Constitution has in fact been
contravened.
(b) The Court of Appeal erred in
holding that, in the exercise of
its statutory and administrative
functions, WAEC had not breached
the appellants’ right to
administrative justice under
article 23.
(c) The Court of Appeal erred in
holding that the procedure of
originating motion on notice
adopted by the appellants was
inappropriate and flawed and was
inapplicable to article 23.
The determination of this
appeal, therefore, turns on the
two central issues of:
(1) whether or not the procedure of
originating motion on notice to
invoke the jurisdiction of the
High Court under article 33(1)
of the Constitution is
inappropriate, flawed and/or
incurably bad; and
(2) whether or not WAEC has breached
the appellants’ rights under
article 23 or any of their
fundamental human rights.
Procedure for invoking article
33(1) of the 1992 Constitution
I will first deal with the more
primary issue of the appropriate
procedure for invoking the
jurisdiction of the High Court
under article 33(1) and (2), in
view of the conclusion reached
by the Court of Appeal. The
article reads as follows:
“33(1) Where a person alleges
that a provision of this
Constitution on the fundamental
human rights and freedoms has
been, or is being or is likely
to be contravened in relation
to him, then, without prejudice
to any other action that is
lawfully available, that person
may apply to the High
Court for redress.
(2) The High Court
may, under clause (1) of this
article, issue such directions
or orders or writs including
writs or orders in the nature of
habeas corpus, certiorari,
mandamus, prohibition, and
quo warranto as it may
consider appropriate for the
purposes of enforcing or
securing the enforcement of any
of the provisions on the
fundamental human rights and
freedoms to the protection of
which the person concerned is
entitled.” (The emphasis is
mine).
It is clear to me that the
primary objective of article
33(1) is to give full effect to
the preceding provisions of
chapter 5, by making them
enforceable by the High Court at
the instance of every person who
claims to be affected by a past,
on-going or impending breach of
any of the said provisions. In
order to protect the rights and
freedoms enshrined in the
chapter five, therefore, the
article gives to every person,
who alleges that any of his
rights or freedoms has been, is
being or is likely to be
contravened, a
right of access to the High
Court for redress. And the High
Court, pursuant to its
obligation under article 12(1)
to protect and uphold these
rights and freedoms, has been
given the mandate (under article
33(2)) to exercise the full
gamut of its judicial powers to
assure effective redress to such
a person who brings his or her
grievance before it. By virtue
of article 140(1), the High
Court has (subject to the
Constitution) jurisdiction in
all matters. One would,
therefore, be justified in
thinking that, given its
breadth, such jurisdiction
would encompass
the matters set out in article
33(1) and (2). It is, therefore,
noteworthy that, despite this
broad jurisdiction, the drafters
of the Constitution deemed it
necessary to include these
provisions specifically and
subject article 140 to them. It
is also significant that,
having, in article 140(1) given
such an expansive jurisdiction,
the next clause (article
140(2)), nevertheless,
particularises the High Court’s
jurisdiction to enforce human
rights and freedoms. We can only
presume that, by article 33(1)
and (2), the esteemed drafters
intended to create, and have
created, a special jurisdiction
of the High Court which may be
invoked in the manner stipulated
in that article.
I believe it is pertinent, at this
stage, to set out some salient
portions of the judgment under
appeal herein. Owusu-Ansah JA,
in his opinion (concurred in by
his brothers in the Court of
Appeal), made the following
statements:
“That provision [ie
article 33(1)] in my opinion,
postulates that in this case the
fundamental human right under
the Constitution of 1992 has
been contravened in relation to
the aggrieved party; this must
be a condition precedent to
the invocation of
article 33(1)
...
It is not very clear which
‘fundamental human right’ under
the Constitution has been
breached or contravened so as to
justify the invocation of
article 33(1)
… by means of an originating motion
on notice or originating
summons
… In my view the procedure adopted
in this case, that is,
originating motion on notice, is
inappropriate and flawed, since
… the respondents (the
appellants herein) were seeking
a number of declarations
… It is my considered view that
the jurisdiction of the High
Court could and should have been
more appropriately invoked
… The (the respondent therein)
catalogues a list of statutory
provisions allegedly contravened
by the appellant council, in
many cases without any
indication as to how. However,
these alleged rights can only be
asserted by means of the
proper procedures in
order to invoke the
jurisdiction of the court
… In my view, unless the
jurisdiction of the court is
properly invoked in accordance
with the relevant Rules any
argument, however meritorious,
cannot be entertained
… Again it is a well
established rule that where the
facts are not capable of being
determined on affidavit
… then and in that event it will
be necessary to take evidence.
The court cannot condone such a
glaring error as occurred in
this case
… The jurisdiction of the court is
the power to hear and determine
the subject matter in
controversy between the parties
to the suit, the power or
authority to adjudicate
... Jurisdiction can be
properly invoked under Order 2,
r 1 of the High Court (Civil
Procedure) Rules, 1954 (LN 140A)
… which provides that “Every
action in the High Court shall
be commenced by a writ of
summons” subject of course to a
few exceptions, such as a
petition in a divorce case under
Order 55, r 3(1) or in an
appropriate case, an originating
motion or
originating summons
... It is true that no Rules had
been made by the Rules of Court
Committee in pursuance of
article (33(4) of the
Constitution. That, however, is
immaterial until it has been
clearly and amply demonstrated
that a constitutionally
guaranteed human right has been
breached or contravened, giving
rise to the invocation of
article 33(1). In such an
eventuality, no one can
legitimately quarrel with such
an application being made by an
originating motion on notice.
Thus in my respectful view the
decision in People’s Popular
Party v Attorney General
[1971] 1 GLR 138 cited with
approval in subsequent cases is
hardly applicable to the instant
case
… A careful perusal of the
available affidavit evidence,
the facts of the case, and all
the surrounding circumstances
would seem to confirm the need
to take evidence to resolve the
crucial pertinent issues of
fact in order to do substantial
justice… It goes without
saying that whether the council
had ‘acted fairly and reasonably
and complied with the
law’ under article 23 of the
Constitution must be issues of
fact to be established by
evidence. Hence the procedure
adopted by the respondents is
inapplicable in asserting a
right under article 23.”
(The emphasis is mine).
As with every enactment, we have to
presume that the drafters of
the Constitution chose with the
utmost care, every word included
therein and that, unless the
contrary is established, such
words must be given their normal
and ordinary meaning. Therefore,
when article 33(1) gives to a
person alleging that any of his
rights and freedoms under
chapter five has been, is being
or is likely to be contravened
the right to apply to the
High Court for redress, there is
an irresistible presumption that
such a person may invoke the
jurisdiction of the High Court
by way of an
application rather than by way
of a writ of summons. When
fundamental human rights have
been, are being or likely to be
contravened, access to judicial
redress must be as swift and
timely as feasible to ensure
that such rights or freedoms are
not lost or irremediably damaged
forever. Hence, in the light of
the objective of article 33(1)
(as hereinbefore mentioned), it
is clear to me that what article
33(1) seeks to assure, by making
provision for access by an
application rather than a writ
of summons (a relatively
sluggish process), is that such
a complaint be disposed of by
the High Court with the optimum
dispatch.
Admittedly, Order 2, r 1 of the High
Court (Civil Procedure) Rules,
1954 dictates that all civil
actions must be commenced by a
writ of summons. The same Rules,
as Owusu-Ansah JA correctly
noted, make exceptions in
specified circumstances (which
do not include proceedings for
the protection of constitutional
rights) for the commencement of
proceedings by other procedures,
such as originating summons and
originating motion on notice.
However, as I have already
stated above, we have to view
the High Court’s jurisdiction
under article 33(1) as a special
one; and by clear constitutional
stipulation, it may be invoked
by an application. Whether such
an application must be by
originating summons or
originating motion on notice,
the Constitution does not
prescribe any particular form
for such an application, but
rather
envisages, in article 33(4),
that the Rules of Court
Committee would make rules to
guide the practice and
procedures for the purposes of
the article. Article 33(4)
signifies a recognition that the
existing Rules of the High Court
predate the Constitution by
almost four decades,
were enacted
under a colonial regime, and do
not necessarily address all the
innovations, intentions and
underlying aspirations of the
Constitution. As yet, however,
there are no correlated
provisions in the Rules of the
High Court that mandate any
particular form of application
for invoking article 33(1). It
is, therefore, my view that,
until such rules have been made,
the High Court must be guided by
the terms of the article itself
plus commonsense and pragmatism.
This is the only means by which
the judiciary can assure the
realisation of the objective of
the article. Indeed, it is my
respectful view that, given the
special nature of the
jurisdiction created by article
33(1), the form of the
application is not necessarily
crucial, so long as the High
Court becomes aware of the claim
(or allegation), by one
procedural means or the other,
its jurisdiction must be deemed
to have been properly invoked.
Additionally, it is clear from the
language of article 33 that,
contrary to the views expressed
by the Court of Appeal, the form
of desired redress cannot
dictate the appropriate
procedure for invoking the
jurisdiction of the High Court.
Therefore, whether the aggrieved
person is claiming declarations,
directions or orders from the
High Court is immaterial. Where
the redress claimed is such as
would necessitate the reception
of parole evidence, the court
has the power to give directions
for the hearing of the same.
Thus, in the case of Sumaila
v Attorney-General
(FTC (HR) 15/2001), Accra,
unreported wherein an applicant
brought an originating motion on
notice to enforce his rights,
and made certain factual
allegations, which, in the view
of the court (coram
Agyeman-Bempah JA sitting as an
additional High Court Judge to
hear motions), must be
established by parole evidence,
the court, correctly in my view,
ordered the parties to file
pleadings and remitted the
matter for substantive hearing.
One may even venture further to state
that, from the language of
articles 33(1) and (2), what
matters is the allegation. If it
is proven, it is for the court
to fashion an effective redress
that would, in terms of article
33(2), be “appropriate for the
purposes of enforcing or
securing the
enforcement of any of the
provisions on the fundamental
human rights and freedoms to the
protection of which the person
concerned is entitled.”
Consequently, whatever form of
application is used to invoke
the High Court’s jurisdiction
under article 33(1), and
whatever be the nature of the
redress sought by the applicant,
no court may justifiably fault
the commencement procedure or
the proceedings, for the article
does not create any procedural
distinctions on the basis of the
type of redress sought. And
given the absence of explicit
procedural rules to regulate
practice and procedure under
this article, the statement made
by Robert Hayfron-Benjamin J (as
he then was), when he found
himself in a similar situation
in People’s Popular Party
v Attorney General
(supra at page 145), to the
effect that when a statute (in
that case article 28(4) of the
1969 Constitution)
“… provides for an application
to the court without specifying
the form in which it is to be
made and the normal rules of
court do not expressly provide
for any special procedure, such
an application may be made by
an originating motion.”
remains as applicable to our
current circumstances as it did
in 1970, when he delivered his
judgment, and I fully endorse it
as the most sagacious and
practical approach.
In my respectful view, therefore, the
learned Judges of the Court of
Appeal erred when, as is evident
from their judgment, it subsumed
the High Court’s jurisdiction in
article 33(1) under Order, 2 r 1
of the High Court (Civil
Procedure) Rules, and held that
the procedure used by the
appellants herein to invoke the
jurisdiction of the High Court
was flawed and inappropriate. To
the contrary, the procedure
utilised was appropriate and
correct for an application under
article 33(1), regardless of the
nature of reliefs claimed, and I
hold that the High
Court’s
jurisdiction was properly
invoked.
In arriving at this conclusion, I have
given due consideration to the
well-presented arguments set out
in counsel’s statement of case
for WAEC. However, I am not
persuaded by them since their
effect would be to thwart the
intent of the framers of the
Constitution in enacting article
33(1). One of these effects
would be that the nature of the
redress claimed would determine
the appropriate form of
commencement procedure. This
will result in our placing
procedural limitations on the
scope and effect of a
constitutional provision, which
are neither expressed therein
nor necessarily implied
thereby. I would decline to do
any such thing.
Still on the issue of appropriate
procedure for invoking article
33(1), the Court of Appeal
appears to have persuaded
itself, erroneously, that in
order for the High Court to do
justice in the matter, the
circumstances required the
reception of parole evidence “to
resolve the
crucial,
pertinent issues of fact.”
Owusu-Ansah JA, enumerated, as
examples necessitating such
evidence, WAEC’s allegation of
foreknowledge and collusion, as
well as the appellants’
allegation of breaches of
articles 19 and 23. However, as
is clear from the application
and affidavit in
support, all that the appellants
herein were asking from the High
Court was protection against
WAEC’s alleged contravention of
their rights under these
articles.
By the nature of their
application and the facts
deposed to, therefore, the only
key issue properly arising in
the High Court was whether or
not WAEC had a duty to give and
gave the appellants a fair and
reasonable hearing before
imposing the penalties on them.
This, the appellants sought to
establish by their affidavit and
the attachments thereto.
Certainly, the High Court was
not being called upon to try any
issue as to whether or not the
students had foreknowledge of
the examination questions or had
colluded amongst themselves;
such issues did not properly
arise from the application and
did not need to be determined
before the court could decide on
the issue of contravention of
the Constitution. In any event,
as already pointed out above,
even if, in the interest of
justice, the determination of
the application did indeed call
for the reception of parole
evidence and an opportunity for
cross-examination, the High
Court could have given the
appropriate orders and
directions.
The Court of Appeal, as is evident
from the excerpts hereinbefore
quoted, also proceeded under an
erroneous impression that, as a
condition precedent to the
invocation of the High Court’s
jurisdiction, article 33(1)
postulates that a fundamental
human right under the
Constitution
must have been contravened in
relation to the aggrieved
person. With all due respect to
their Lordships of the Court of
Appeal, the article clearly
postulates no such thing, as is
patent from its plain language.
As I understand the article, the
only condition precedent (if
such be a correct depiction) to
the invocation of the High
Court’s jurisdiction specified
therein is an allegation
by a person that one or more of
her fundamental rights and/or
freedoms under the Constitution
has been, is being or is
likely to be contravened.
Hence,
the
contravention may be in the
past, ongoing or merely
threatened. Once such a person
brings an application, in order
to succeed, it will, of course,
be incumbent upon her to
demonstrate to the court which
provision of chapter 5 of the
Constitution (or other
fundamental human right
or freedom) has
been, is being or likely to be
contravened and in what manner;
whether or not the applicant
surmounts these hurdles will
depend on the court finding as
demonstrably proven, the grounds
for the application. Thus, an
applicant has nothing to prove
or demonstrate
before the right to invoke
article 33(1) can accrue to him,
and it is incomprehensible to me
why the Court of Appeal stated
otherwise.
The right to administrative
justice
Article 23 of the Constitution
provides that:
“Administrative bodies and
administrative officers 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.”
Thus, by this article, the right
to administrative justice is
given constitutional force, the
objective being the assurance to
all persons the due observance
and application of the
principles of natural justice
which foster due process and the
stated qualities, in the
performance
of
administrative activities that
affect them. In my view, the
scope of article 23 is such
that, there is no distinction
made between acts done in
exercise of ordinary
administrative functions and
quasi-judicial administrative
functions. Where a body or
officer has an administrative
function to perform, the
activity must be conducted with,
and reflect the qualities of
fairness, reasonableness and
legal compliance. I will not
venture to give a comprehensive
definition of what is fair and
reasonable, since these
qualities are dictated by the
circumstances in which the
administrative function is
performed. At the very least
however, it includes probity,
transparency, objectivity,
opportunity to be heard, legal
competence and absence of bias,
caprice or ill-will. In
particular, where, as in this
case, the likely outcome of an
administrative activity is of a
penal nature, no matter how
strong the suspicion of the
commission of the offence, it is
imperative that all affected
persons be given reasonable
notice of the allegations
against them and reasonable
opportunity to be heard, if the
objective of article 23 is to be
achieved. This is in line with
current trends in administrative
law in general, and as pointed
out in Halsbury’s Laws of
England, (4th ed)
(Reissue) Vol 1(1),
para 84:
"…the obligation to observe
natural justice is not confined
to bodies constrained to observe
the procedural and evidential
rules of a court of law. For
this reason the courts have
tended in recent years to speak
less of natural justice and more
of a duty to act fairly. This is
not a duty which is confined to
persons and bodies having a duty
to act judicially or
quasi-judicially, although
whether a function is
more
characteristically
administrative or quasi-judicial
may be one factor determining
what fairness requires in its
exercise.”
In this appeal, it is quite
clear from the record, and also
not in dispute, that WAEC did
not notify the appellants of the
allegations and suspicions
raised against them, or give
them any reasonable opportunity
to be heard before deciding to
cancel their results and impose
the three-year ban against them.
The first time they had
knowledge of any problems
concerning their examinations
was through exhibit A, a letter
from WAEC and addressed to the
Headmaster of their school. That
letter, referred to rule 5b,
pages 3-5 of the 1997/98 West
African
Examinations Council Regulations
and syllabus, and informed the
headmaster that:
“… by decision of the Final
Awards and Examiners’
Appointment Committee … the
results of the candidates listed
below have been cancelled as
indicated because of
their
involvement in some examination
irregularities.”
The letter further indicated
that the irregular paper was
Mathematics Core 2 and barred
the appellant and his twelve
colleagues from all examinations
conducted by the respondent for
three years. The nature of the
irregularity was stated as
follows:
“It was alleged
that the candidates had
foreknowledge of the paper and
it has been established
that the listed candidates
colluded among themselves.” (The
emphasis is mine).
The headmaster, in response to
this letter, protested against
the grounds for WAEC’s decision
and petitioned it to review the
same (exhibit B). WAEC replied
with a letter dated 6 June 2001
(exhibit C) the most crucial
part of which reads 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
scrutiny of the scripts of the
candidates. As a result all
scripts for all subjects were
scrutinized. From the scrutiny,
it was established that there
was foreknowledge and collusion
among the thirteen candidates
from your school in Mathematics
(Core) Paper 2. The council
therefore applied the
prescribed
sanctions.
In making a case for your candidates
you intimated that your
candidates had access to two
particular books that present
already solved past questions
from 1993 to 1998 which they
‘could have learnt.’ Your letter
did not, however, indicate which
of the solved problems were
repeated in the in the 2000
SSSCE Mathematics (Core) Paper 2
for which there could ‘have been
coincidence of details’. None of
the questions in the said paper
was a repeat from a previous
year.”
According to the appellant
throughout the examinations,
neither he nor any of the twelve
other students was ever
questioned, reprimanded or
cautioned by anyone for engaging
in or trying to engage in any
examination malpractices; he was
never aware of any allegations
of impropriety
having been raised by any person
against him or any of his
colleagues, in respect of any
examination paper. Furthermore,
he never had any foreknowledge
of any of the examination papers
nor did he collude with the
other said students to gain
foreknowledge of any such
papers. Moreover, according to
the appellant, before cancelling
the examination results and
barring him and said other
candidates, they were:
“neither privy to any enquiry,
investigation or trial to
establish the truth or otherwise
of any allegation of examination
malpractice that might have been
levelled against us nor were we
given any opportunity by the
respondent to make any
representations or give any
testimony as to our innocence to
any such allegations.”
The
appellants also caused their
solicitors to write (per exhibit
D) to WAEC, stating the
appellant’s case and offering to
produce the appellant as well as
the other 12 persons for
interrogation. Although the WAEC
replied that the matter had been
referred to the Final Awards
Committee, there was no further
communication from the
respondent regarding the outcome
of the said committee’s
deliberations on the matter and
the penalty imposed on the first
appellant and his colleagues
remained in effect.
By virtue of article 12(1)
of the 1992 Constitution all
institutions and persons
(whether natural or legal) are
enjoined to respect and uphold
the rights and freedoms
enshrined in chapter 5. WAEC is
a legal person established by a
multilateral convention, of
which Ghana is a signatory. This
Convention is given the force of
law in Ghana by the West African
Examinations Council Law, 1991
(PNDCL 255). Thus, WAEC is a
legal creature, which exists and
functions in Ghana through this
enactment and is subject to the
1992 Constitution. Its
functions, as set out in article
4 of the schedule to the PNDCL
255, include the annual review
and
consideration of examinations to
be held in member countries of
the Convention, conducting such
examinations, and awarding
certificates and diplomas on the
results of the examinations. It
also has power under PNDCL 255,
to cancel or withhold results or
certificates and prohibit
persons from participating in
its examinations. Therefore, it
is an administrative body and,
as such, it is also subject to
the provisions of article 23,
which are, without doubt,
applicable to legal persons.
Thus, in the exercise of its
functions and powers under PNDCL
255, the respondent must, like
every other administrative body
in Ghana, comply with article 23
and act fairly, reasonably and
lawfully.
It is clear from the
record of appeal and exhibits A
and C in particular, that the
process by which WAEC
“established” the allegations
made against the appellants was
neither fair nor reasonable. The
process, in the circumstances,
was also, in my view, not in
compliance with PNDCL 255, ss 3
and 10, the law under which WAEC
exists and operates. WAEC,
therefore, contravened the
appellants’ rights under article
23. The said sections 3 and 10
of PNDCL 255 provide that:
“3(1)
Any person who, before or during
an examination conducted by the
Council, without lawful
authority, the proof of which
shall be on him -
(a) has in his possession
any examination paper;(b)
is found to have had
fore-knowledge of the contents
of
any examination paper; or
(c) makes use of any
examination paper or the
contents of
it in any manner whatsoever,
commits an offence and shall be
liable on summary conviction to
a fine of not less ¢20,000.00
and not exceeding ¢500,000.00
or imprisonment for a term of
not more than two years or to
both.
(2)Where a candidate before or during
an examination is found
to have acted or is found
acting in breach of the
provisions of subsection (1)
__
(a) he shall be disqualified
from taking the examination and
the entire results of the
candidate in the examination
shall be cancelled; and
(b) the council may prohibit
the candidate from taking any
examination conducted by or on
behalf of the council for a
period of not less than two
years immediately following the
breach.
(3) The penalties contained in this
section shall be in addition to
any penalties that may be
imposed by a Court or Tribunal.
(10) Where in any investigation
or trial a candidate is found
to have had access to an
examination paper or to have had
foreknowledge of the contents of
an examination paper or cheated
in any way during an
examination, a report shall be
made to the council which shall
take such action, including the
cancellation of examination
results and any certificate
issued in respect thereof to the
candidate.” (The emphasis is
mine).
In his statement of case herein,
counsel for WAEC argued that in
upholding the appellants’ claim
that he had not been heard, the
trial judge failed to take into
account sections 3(2) and 10 of
the above-quoted provisions.
According to counsel, section
3(2) must not and cannot be
interpreted to impose on WAEC a
duty to conduct a trial before
exacting a penalty against an
offending candidate since such a
requirement would render
impossible the application of
the provision. Rather, according
to counsel, WAEC may, under the
section, withhold examination
results if, in the course of
marking a paper, it discovers
that the answers of candidates
from a particular school “are so
identical as to lead to the
conclusion that the candidates
must have cheated.” Counsel,
therefore, submitted that “the
Council has the right to
withhold the results of a
candidate over whose script it
entertains genuine suspicion”,
and no rules of natural justice
come into play in such a
situation.
Regarding section 10, counsel also
argued that, in the performance
of administrative duty, it is
not in every instance that a
hearing must be conducted, and
where it is impossible or
inconvenient to expect such
procedure, the court would not
enforce it. He urged, further,
that the function of the council
relates to the education of the
youth and maintenance of
academic standards, and the
council needs a free hand to
perform its functions “without
undue interference from lazy
students who would rather cheat
than learn for their exams.” He,
therefore, submitted that the
Court of Appeal was right when
it held that section 10 does not
impose a judicial inquiry on the
council.
The rules of natural justice are never
suspended in the absence of
express and lawful stipulation
to the contrary. They serve as
an undercurrent running beneath
the legitimate exercise of every
administrative power. Hence,
although it is true that neither
section 3 nor section 10 (or
indeed any of the provisions of
the PNDCL 255) obliges the
respondent WAEC to impose a
penalty only after undertaking
the full rigours of a court
trial or proceedings, it is
quite clear to me that, at the
minimum, these provisions
envisage and require some form
of due process
which comply with the principles
of natural justice and reflect
the qualities of fairness and
reasonableness dictated by
article 23. A full reading of
sections 3 – 10 of PNDCL
255shows that each of the
offence-creating sections must
be read together with section
10. When read this way, it will
be seen that each offence may be
established in one of two ways,
either because a person has been
caught red-handed committing the
offence; or has been found,
after an investigation or a
trial, to have committed the
offence. In either situation the
alleged offender
must have been “found”
committing or to have committed
the offence.
Unfortunately, PNDCL 255 does not
prescribe what form an
investigation should take, and
there are no regulations
governing the procedure for
investigating allegations of
examination offences (the
regulations to which WAEC made
reference in exhibit A are not,
and cannot be, those envisaged
by section 12(b) and do not, in
any event, deal with
investigation procedures).
However, since PNDCL 255 is
subject to the 1992
Constitution, any investigation
must comply with the
requirements of article 23.
Therefore, the absence of
lawfully prescribed procedures
does not exonerate WAEC, as an
administrative body, from the
obligation, to act fairly,
reasonably and lawfully in the
exercise of its powers to
withhold or cancel results, and
impose bans. In the absence of
any prescribed procedure for
investigation, one may consider
the ordinary meaning of the
word to ascertain whether there
was any. To “investigate”,
according to the Chambers 21st Century
Dictionary, is “to carry
out a thorough, detailed and
often official inquiry into,
or examination
of, something or someone.”
(The emphasis is mine). The
requisite degree of thoroughness
and amount of detail will be
dictated by the circumstances of
each case. However, it is my
view that, in this case, there
was no attempt to achieve even a
modicum of thoroughness on the
part of WAEC. An allegation or
suspicion, however genuine, and
conjecture arrived at through a
one-sided in-house process
cannot amount to an
investigation.
In this case, there is no dispute that
none of the affected candidates
was actually caught red-handed
committing any of the alleged
offences. Rather, WAEC’s case is
that the identical answers given
by the candidates raised genuine
suspicion of foreknowledge and
collusion. Thus, the
circumstances only raised a
suspicion, which should have
been substantiated by fair and
reasonable means in order to
constitute an investigation.
However genuine, mere suspicion
is not enough and, bearing in
mind the likely outcome of the
inquiry (if it may called such)
WAEC ought to have conducted a
more serious investigation in
the course of which the affected
persons should have been given
some opportunity to be heard.
Nor can convenience and
expediency serve as guiding
principles in the exercise of
WAEC’s penal powers if the
outcome, in the circumstances,
smacks of unfairness,
unreasonableness or
unlawfulness. Therefore, the
fact that an investigation which
complies with natural justice
and meets the constitutional
standards of fairness and
reasonableness might seem
inconvenient or impracticable is
no excuse. It is true that a
fair and reasonable opportunity
to be heard does not necessarily
require a full-dress hearing
process. As was pointed by
Twumasi J (as he then was) in
Republic v
Ghana Railway Corporation; Ex
parte Appiah [1981]
GLR 752 (as stated in holding
(2):
“The core idea implicit in the
natural justice principle of
audi alteram partem was
simply that a party ought to
have reasonable notice of the
case he has to meet and ought to
be given the opportunity to make
his statement in explanation of
any question and answer any
arguments put forward against
it. The principle did not
require that there must be a
formal trial of a specific
charge akin to court
proceedings… In dealing with the
principles of natural justice,
one has always to bear in mind
that the principles are
substantive rather than
procedural safeguards. Therefore
the fact that a particular
formal procedure
is not adopted, does not of
itself imply that the principle
has not been applied in an
appropriate case.”
In the circumstances of
the instant matter, a letter to
the suspected candidates
informing them of the allegation
and the grounds therefor, plus
an invitation for their comments
or explanations might have
sufficed. And, certainly, when
the appellant, through, his
solicitor, requested a hearing
and interrogation of himself and
his colleagues, WAEC should have
afforded them the opportunity.
Consequently, the Honourable
Court of Appeal was ill-advised
and in error when, in the course
of the judgment under appeal,
the learned Owusu-Ansah JA, on
behalf of the Court of Appeal,
said:
“It seems to me that the council
were exercising an
administrative function rather
than a judicial function when it
came to a conclusion and decided
to impose the
penalties
complained of under section 3(3)
of PNDCL 255 “the penalties
contained in this section shall
be in addition to any other
penalties that may be imposed by
a Court or a Tribunal.” That is
if the appellant, in its wisdom,
had decided to prosecute the
respondents... West African
Examinations Council Law PNDCL
255 is by virtue of the
provisions of the 1992
Constitution, part of the Laws
of Ghana… This section 10 does
not necessarily imply or even
envisage a court action or
proceeding. The council had been
invested with power to
investigate and take action. No
legal enquiry was contemplated.
It is common knowledge that the
council in the fullness of its
wisdom and in order to preserve
its integrity and reputation,
cancelled the entire results. I
hold that the action taken by
the council was neither ultra
vires nor arbitrary but in
accordance with the provisions
of PNDCL 255.”
I am not unmindful of the
critical importance of WAEC’s
role in safeguarding the quality
and international credibility of
its examinations and resultant
certificates and diplomas. Most
members of this court have
undergone, at least, one WAEC
administered examination and are
who we are because of its
integrity. This role has been,
is and will continue to be vital
to the socio-economic
development of Ghana and the
other signatories of the
Convention. However, the
enviable standing of WAEC can be
sustained only by ensuring that
its administrative
processes,
including the exercise of its
powers, remain just. In my view,
this can only be achieved
through patent constitutionalism
and legality, rather than
through opacity and
arbitrariness. Towards this end,
it will inure to the benefit of
both WAEC and public interest,
as well as foster the sustenance
of the rule of law, if the
Minister for Education were to
exercise the power given by
section 12 of the West African
Examinations Council, 1991
(PNDCL 255), and enact
regulations to guide, inter
alia, procedures for the
exercise of WAEC’s powers under
sections 3-10 of the Law.
Conclusion
In the circumstances, I hold
that the jurisdiction of the
High Court was properly invoked
and the High Court judge was
correct when he found that, by
failing to observe the natural
justice principle of audi
alteram partem, WAEC
contravened the appellants’
rights under article 23 of the
Constitution. Consequently, the
appeal herein must succeed. I
also agree with the learned
President of this Court, Kpegah
JSC, that, in the circumstances
of this case, Daniel Awuni and
his twelve affected colleagues
are entitled to damages assessed
at ¢5 million cedis to each
appellants.
S.A.B. AKUFFO
JUSTICE OF THE SUPREME COURT
BROBBEY JSC.
I agree with the judgment
delivered by the learned
President of the Court, my
brother Kpegah JSC, and I have
nothing useful to add.
S. A. BROBBEY
JUSTICE OF THE SUPREME COURT
DR TWUM JSC.
In this appeal the applicant in
the High Court who is strictly
the
applicant/respondent/appellant
will be referred to as the
applicant. The West African
Examinations Council (WAEC) will
simply be referred to as the
council.
At the commencement of the action the
applicant was aged 19 and he
described himself as an infant.
Consequently he appointed his
sister, Marian Awuni, as his
next friend to act for him.
That, of course, was an error.
Under the revised Order 15, r
12(7) as amended by the High
Court (Civil Procedure)
(Amendment) (No 2) Rules, 1977
(LI 1129), “an infant” is
defined as a person aged below
18 years. The applicant
therefore did not need to sue by
his next friend.
On 20 August 2001, Daniel
Awuni, the applicant, filed an
originating notice of motion in
the High Court, Accra, against
the West African Examinations
Council. By it the applicant
applied for:
“a declaration that the decision
of the Final Awards Committee of
the West African Examinations
Council cancelling the entire
results of the Applicant
together with that of the twelve
other students aforementioned in
the Senior Secondary
School Certificate
Examination (SSSCE) 2000 and
barring him and the twelve other
students for three years from
taking any examinations
conducted by the West African
Examinations Council and the
refusal or neglect of the West
African
Examinations Council to release
the results of the Applicant
together with that of the twelve
other students in the SSSCE 2000
are unlawful, null and void and
of no effect on the grounds of
breaches of articles 23, 24 (1)
and 25 (1)(b) of
the
Constitution, 1992.”
In his affidavit in support, the
applicant deposed, inter alia,
as follows:
“(7)That during the examination period
neither the twelve students
aforementioned nor I was
questioned, reprimanded or
cautioned by any person for
engaging in or trying to engage
in any examination malpractices.
(8) That I never had any
foreknowledge of any examination
papers nor did I collude with
the other twelve students to
have foreknowledge of any
examination papers in the
said
examinations.
(10)That in a letter EX/SSS/RS/VOL
IV/173 dated 30 April 2000 the
respondents communicated to the
Headmaster/Rector of Notre Dame
Seminary-Secondary School that
my entire results and that of
the twelve students in the SSSCE
2000 had been cancelled and the
applicant and the others further
barred for three years from
taking any examinations
conducted by the respondents on
the ground that it was alleged
that the
candidates had foreknowledge of
the paper (Mathematics (Core) 2)
and it has been established that
the listed candidates colluded
among themselves.
(11)That before the Final Awards and
Examiners’ Appointment
Committee of the respondents
determined to cancel our results
and further bar us for three
years from taking any
examinations conducted by the
respondents, the twelve students
and I were neither privy to any
inquiry, investigation or tried
to establish the truth or
otherwise of any allegation of
examination malpractices that
might have been levelled against
us nor were we given any
opportunity by the respondents
to make any representations or
give any testimony as to our
innocence to any such
allegations.
(13)That in a letter NDSS/05/VOL 1/103
dated 21 May 2001 the
Headmaster/Rector of Notre Dame
Seminary-Secondary School
petitioned the respondents to
have another look at my scripts
as well as that of the other
students and review the decision
punishing me and the others for
any alleged irregularity in the
SSSCE 2000 Mathematics (Core) 2
Paper (copy of the letter
annexed and marked exhibit B).
(14) That in a letter EC/SSSCE/IRR/VOL
II/147 dated 6 June 2001 the
respondents reiterated to the
Headmaster/Rector of Notre Dame
Seminary-Secondary School that
the twelve students and I
colluded and had foreknowledge
of the Mathematics (Core) 2
paper in the SSSCE 2000. This
conclusion was drawn on the
basis that:
‘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
scrutiny of the scripts of the
candidates. As a result all
scripts for the subjects were
scrutinized. From the scrutiny
it was established that there
was foreknowledge and collusion
among the thirteen candidates
from your school in the
Mathematics (Core) 2 Paper. The
council therefore applied the
prescribed sanctions.’ (Copy of
letter annexed and marked
exhibit C).
(15) That on 5 June 2001, my
solicitors wrote a letter to the
respondents urging them to
review the sanction applied
against me and the other
students intimating, inter alia,
that the twelve students and I
are ready to be subjected to
interrogative sessions by the
respondents to establish my
involvement or the involvement
or otherwise of the other twelve
students in any examination
malpractices. (Copy of letter
annexed and marked exhibit D).
(17)That I am advised by counsel and
verily believe same to be true
that the decision of the Final
Appointment and Examiners’
Committee of the respondents to
cancel my entire results
together with that of the twelve
other students and bar us for 3
years from taking any
examinations conducted by the
respondents on the sole ground
of “scrutiny of our scripts” is
arbitrary and unfair and/or
unreasonable and violative
of administrative
justice. On 20 August 2001, the
Principal Legal Officer of the
respondent council swore to an
affidavit in opposition to the
application. In it, the Council
admitted applying
the sanctions to the thirteen
students and explained in
paragraph 11 thereof their
reason for so acting, namely,
“(11)That in answer to paragraph (11)
of the affidavit in support, the
respondent council says the
evidence in the script of the
plaintiffs was so manifest that
by its rules, the respondent
council as an examining body
does not need to invite
candidates to make
representations. The practice is
universal with all
examining bodies. In its
paragraph (12), the council made
the point “that the cancellation
of examination results on good
grounds does not constitute
an infringement
of human rights”. Further, it
denied that its decision
contravened any provision in the
1992 Constitution.
The respondent council next
challenged the procedure adopted
by the applicant in paragraphs
(19) and (20) thus:
'(19)That the present procedure
adopted by the applicant does
not give room for evidence,
which is very vital in this
case:
(20)That under the circumstances the
procedure adopted by the
plaintiff is not the best to
determine the merit of the
matter.'"
Exhibit B which was annexed to the
headmaster’s letter referred to
in paragraph (13) of the
applicant’s affidavit in support
shows that the headmaster wrote
“on behalf of the board of
governors, the PTA, the staff
and students of this school.” In
it he claimed that the case that
the thirteen students had
foreknowledge of the Mathematics
(Core) 2 was only an allegation
and therefore the application of
rule 5(b) without further
investigation to ascertain the
veracity or otherwise of the
allegation was a bit harsh on
the students. He said the school
had thoroughly
examined the affected students
in particular and they
themselves to find out if “we
actually erred this time but our
investigation indicates the
contrary.”
Next, the headmaster made the point
that the thirteen students did
not have foreknowledge of any of
the examination papers:
“Rather, our investigation
revealed that all the students
had access to and used two
particular books during their
preparations for the SSSCE
Mathematics Paper. These two
books, namely Core Mathematics
for Senior Secondary Schools
(AKI OLA SERIES) and SSS
MATHEMATICS (Core) (DALABA
SERIES A1) present ready solved
questions from 1993 to 1998,
which the students could have
learnt.”
He added that the case of the
thirteen students might be “a
rare coincidence of detail in
the presentation of some portion
of their answers in the
Mathematic (Core) 2 Paper.”
The affidavit evidence also shows that
the council considered the
petition and replied to the
headmaster’s letter on 6 June
2001 (see exhibit C annexed to
the applicant’s affidavit in
support). In it, the council
answered the suggestion that the
students had access to and used
two particular books that
present already solved past
questions from 1993 to 1998
which they could have learnt, by
pointing out that “none of the
questions in the said paper was
a repeat from a previous
year.”
Meanwhile, a letter
originating from LEGAL RESOURCES
CENTRE was addressed to the
council. Even though the letter
bore the date of 5 June 2001, it
was hand-delivered by the
writers to the council on 6 July
2001. In it, the directors of
the centre, writing as
solicitors for on behalf of
their clients (the thirteen
affected students) rehashed the
facts leading to the
cancellation of their clients’
results and rather unfairly
accused the council that: “In a
later communication to the
Headmaster of the said school,
you indicated that your outfit
engaged in an ex-post
facto
rationalization leading to the
imposition of the said penalties
on our clients.” Speaking for
myself, I found the tone and
tenor of that letter
unnecessarily abrasive and
largely discourteous of the
council. In my view, when
solicitors write letters to
third parties on behalf of
their clients,
they must exhibit professional
decorum and courtesy to them. It
is improper for solicitors to
threaten fire and brimstone in a
letter to a third party. It is
really a professional misconduct
(see Constitution, Code of
Ethics and Regulations of the
Ghana Bar Association: Rule 4 at
page 35).
Before the application was argued, His
Lordship, Omari Sasu JA, sitting
as additional High Court Judge,
expressed the opinion that in
view of the reliefs learned
counsel for the applicant was
claiming, he doubted whether
proceedings by originating
summons was the best way to
reach those reliefs. He
therefore invited counsel to
reconsider the matter. Counsel
promised to do so but in the end
he informed the court that: “we
have painfully come to the
conclusion that we would move
the motion as it stands, in
spite of all the limitations the
procedure we are adopting places
on us.”
After taking oral
arguments, the learned judge
gave judgment for the applicant
on 4 October 2001. The court
devoted a considerable portion
of its judgment to restate the
principles applicable to the
audi alteram partem rule;
and article 19(2) and (5) of the
1992 Constitution which dealt
with criminal trials. With
respect, no issue was joined by
the parties on that aspect of
the law. What was in issue from
the various affidavits was
whether on the facts the rule
was applicable. Without any
analysis or evaluation of the
facts and circumstances, the
court said:
“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
1992 Constitution.”
He added:
“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.”
The judgment ended with a number
of consequential orders. These
will be examined later in this
opinion.
On 10 October 2001, the council
being dissatisfied with the
decision of the High Court given
on 4 October 2001, appealed to
the Court of Appeal upon the
following grounds:
(1) His Lordship failed to note
that the Rules and Regulations
that govern examinations
constitute a contract between
the candidates and the
respondent/appellant and that
candidates accept these
conditions before writing the
examinations.
(2) In summarizing, His Lordship
omitted to note that the
respondents/applicant had
pleaded in paragraph (11) of
affidavit in opposition and had
also argued that the practice of
examining bodies evolving their
rules is universal. If His
Lordship had applied the
principle, he would have held
that the decision to cancel the
result was just.
(3) In summarizing the
respondent/applicant’s defence,
His Lordship omitted to note
that the respondents had pleaded
public interest under article 12
of the 1992 Constitution.
Counsel for the appellant
intimated that other grounds of
appeal would be filed upon
receipt of copy of the record of
appeal. There is no evidence on
record that the council filed
any additional grounds of
appeal. Nonetheless in its
statement of case, the council
argued “additional ground (2)”
and “additional ground B” The
record shows that the council
abandoned all the original
grounds of appeal and rather
argued the additional grounds
(2) and (B) which respectively
stated as follows:
“(2) The learned trial judge
erred in not setting aside the
originating motion on notice as
not warranted by any rule of
law or procedure.”
“(B) Having declared the
cancellation of the results by
the appellants as null and void
the trial judge erred in further
ordering the release of the
results of the applicant when
the allegation that the
applicant had committed an
examination offence had not been
determined.”
By its unanimous judgment
delivered on 5 December 2002,
the Court of Appeal reversed the
High Court.
The applicant also felt dissatisfied
with the judgment of the Court
of Appeal and lodged and appeal
to this court on 3 January 2003.
The following were the grounds
of appeal:
“(a) The Court of Appeal misapplied
article 33(1) of the 1992
Constitution when it held that
the jurisdiction of the High
Court can only be invoked under
article 33(1) when a fundamental
human right under the
constitution has in fact
been
contravened.
(b) The Court of Appeal erred when it
failed to recognize that the
right administrative justice is
embodied in article 23 of the
1992 Constitution is a
fundamental human right directly
enforceable under article 33(1)
of the Constitution.
(c) The Court of Appeal failed
to take account of the trial
judge’s specific findings of
fact that the respondents
violated article 23 of the 1992
Constitution when they breached
the audi alteram partem
rule of natural justice and
ignored other requirements
imposed on them by law.
(d) The Court of Appeal rightly held
that article 33 (1) could be
invoked by an originating motion
on notice where a
constitutionally guaranteed
fundamental human right has been
breached, but erred in holding
that the procedure of
originating motion on notice
adopted by the appellant to
enforce article 23 of the
Constitution was inappropriate
and flawed.
(e) The Court of Appeal erred
grievously by misapplying
article 33 (1) and (4) when it
held that the procedure of an
originating motion on notice
adopted by the appellants was
inappropriate and flawed because
the appellants were seeking a
number of declarations including
but not limited to a declaration
that:
the cancellation of the results
of the appellants was unlawful;
the barring of the applicants
was void and of no effect;
the council’s refusal to release
the results was unlawful.
(f)The Court of Appeal misconstrued
section 10 of the West African
Examinations Council Law, 1991
(PNDCL 225), when it held that
the appellants could be
sanctioned and damnified in the
enjoyment of their legal rights
by a process of investigation by
the council that did not afford
them an opportunity to present
their case.
(g)The Court of Appeal rightly found
that the evidence predominantly
favoured the appellants' case
but erred in holding that the
facts in issue were not capable
of being determined
on affidavit evidence.
(h) The Court of Appeal erred
grievously when it held that the
decision of the respondents to
cancel the entire results of the
appellants in the SSSCE 2000 and
to further bar them for three
years from taking any
examination conducted by the
respondents was an
administrative decision and not
subject to any further inquiry.
(i) The Court of Appeal erred
in holding that the decision of
the respondents to sanction the
appellants was in accordance
with section 10 of PNDCL 225
when the respondents have
clearly stated that they
punished the appellants under
the provisions of Rule 5b of
1997/98 WAEC Regulations and
Syllabus, which rule is not in
force and is non-existent.
(j) The Court of Appeal failed
to recognize that the sanctions
imposed by the respondents on
the appellants are ultra vires
the Senior Secondary School
Certificate Examination
Regulations 2000, which governed
the examination in issue.
I have grouped these grounds of
appeal into four, namely,
grounds A, B, C and D. I will
now discuss them as I have
grouped them.
Group A covering grounds (a) and
(b)
I am unable to appreciate the
import of ground (a) since it
contains a self-evident truth. I
am also not sure that the Court
of Appeal really failed to
recognize the statement in
ground (b). What the Court of
Appeal said was that the
originating notice of motion
procedure was not the correct
procedure. After all, article
33(1) merely states that the
aggrieved party may apply to the
High Court for redress. I would
therefore dismiss grounds (a)
and (b) as unmeritorious. I
shall next answer the question
of the use of the originating
notice of motion.
Group B
covering grounds (d), (e),
and (g) relating to the use of
originating motion on notice
These grounds deal with the procedure
adopted by the applicant. One of
the grounds upon which the Court
of Appeal dismissed the appeal
was that the procedure adopted
by the applicant was “incurably
bad.” In the view of the Court
of Appeal, the procedure adopted
by the applicant had the effect
of taking away the jurisdiction
of the court to adjudicate on
the matter. It emphasised that
the Rules of Court are meant to
facilitate a fair and
expeditious trial and must not
be sacrificed on the altar of
convenience. These sentiments
are perhaps justified, in view
of the
uncompromising stand taken by
learned counsel for the
applicant even in the teeth of
what I would describe as
“mandatory advice” from the
trial court. It was unfortunate
that the learned trial judge
having expressed such serious
misgivings about the procedure
adopted by the applicant’s
lawyers, did not order the
applicant to use what the court
considered to be the regular
procedure.
In arriving at the decision to dismiss
the appeal on the ground of lack
of jurisdiction, the Court of
Appeal relied on the Court of
Appeal decision in
Heward-Mills v
Heward-Mills [1992-93] GBR
234. That judgment was right on
the facts, but in my view, does
not support the
wide proposition
of law stated at page 246 of the
Report, namely:
“where a statutory condition
must be complied with before a
court can have jurisdiction to
make an order, failure to comply
with such a condition will leave
the court with no discretion to
make any order or orders in the
matter.”
In that case, plaintiff issued a
writ in the High Court for the
revocation of a will. Under the
Probate and Administration
Rules, 1991 (LI 1515), this was
“a probate action.” Under Order
6, r 2(3), before a writ
beginning an action for the
revocation of the grant of
probate of a will or letters of
administration of the estate of
a deceased person is issued out,
notice shall be given under rule
6 unless the probate or letters
of administration has or have
been lodged in the registry.
Further rule 6(1) provides:
“where an action is brought for
the revocation of a grant of
probate or letters of
administration of the estate of
a deceased person the plaintiff
shall serve a notice on the
person to whom the probate or
letters of administration as the
case may be was granted
requiring him to bring and leave
at the registry the probate or
letters of administration.”
The plaintiff filed his writ
without complying with those
statutory rules. The result was
that the action was not properly
before the court and had to be
struck out, not, dismissed.
It must be emphasized that, under
article 140 (1) of the 1992
Constitution, the “High Court,
shall subject to the provisions
of this Constitution, have
jurisdiction in all matters and
in particular, in civil and
criminal matters...” The court
in the Heward-Mills case
therefore had jurisdiction to
entertain a contentious probate
action. The plaintiff failed to
take the necessary step to
invoke that jurisdiction. Hence
his action could not be
entertained by the court.
Similar provision exists in the
Local Government Act, 1993 (Act
462), s 127(1). Another
situation where the court will
have jurisdiction but the action
will not be properly before it
is where the original writ is
not signed by the party or his
lawyer. The writ will be
ineffective to commence an
action and will have to be
struck out.
In the present case, the position is
not cut and dried. The applicant
was desirous of taking action to
protect what he perceived to be
a breach of his fundamental
human right. Under article 33
(4) of the Constitution, the
Rules of Court Committee may
make rules of court with respect
to the practice and procedure of
the Superior Courts for the
purposes of this article. This
is permissive, not mandatory.
But there is mandatory provision
in article 157(2) whereby “the
Rules of Court Committee, shall
by constitutional instrument,
make rules and regulations for
regulating the practice and
procedure of all courts of
Ghana.” At the time of this
action no such rules had been
made by the Rules of Court
Committee. This, of course,
should not lead to a failure of
justice. The applicant,
therefore, adopted a procedure
which in the “considered”
opinion of his legal advisers,
was permissible, namely, the
originating notice of motion.
Even though Order 2, r 1 of the
High Court (Civil Procedure)
Rules, 1954 provides that every
action shall be commenced by
writ, that is certainly not the
practice in our courts. The
Rules permit the use of
originating summons, originating
notice of motion, and petition
in addition to the writ of
summons. There is, at least, in
the High Court, a decision of
Robert Hayfron-Benjamin J (as he
then was), in People’s
Popular Party v
Attorney-General
[1971] 1 GLR 134 to the effect
that where a statute provides
for an application to the court
and neither the statute nor the
Rules of Court provide expressly
a specific procedure, the
application may be made by
originating notice of motion.
I have noted earlier in this opinion
that in the High Court, the
trial judge expressed misgivings
about the procedure adopted by
the applicant; but it is clear
that he was more concerned with
whether that procedure would
achieve the reliefs the
applicant wanted; not that it
was a wrong procedure. In the
case of Abdilmasih
v Amarh
[1972] 2 GLR 414 at 422, CA
Apaloo JA (as he then was) said:
“Nobody has a vested right in
procedure and modern notions of
justice require that a court
should do substantial justice
between the parties unhampered
by technical
procedural rules.” I can
conceive of no injustice that
was caused to the council by the
procedure adopted by the
applicant. Consequently, I hold
that the procedure adopted by
the applicant was not fatal to
his action. The Court of Appeal
erred in so holding.
Group C covering grounds (f),
(i) and (j)
By these grounds, the applicant
seeks to broaden the ambit of
the type of application he made
in the High Court. One of the
grounds upon which the Court of
Appeal reversed the High Court
was that it was not too clear
which of the applicant’s
fundamental human right had been
violated. As counsel for the
applicant put it, they chose to
proceed with the originating
notice of motion, despite the
limitations it imposed on them.
In my view, a claim under article 23
cannot be stretched to cover
errors of law (if any) made by
an administrative body. Nobody
has a fundamental human right
which guarantees him against any
administrative body applying
wrong law to his right or
interest. That may be a ground
for judicial review but
certainly no application on such
a complaint can be made under
article 33(1). Lest we forget,
it is only those fundamental
human rights envisaged in
article 12(1) that can be
vindicated under article 33(1)
of the Constitution.
One more point. The applicant
submitted that the rules under
which the council conducted the
examinations were non-existent.
Further, that the council had
been making regulations in
respect of the examinations they
hold when that power is vested
in the Minister of Education.
If, indeed, these submissions
are correct, then the logical
conclusion will be that the
entire 2000 SSSCE were a
nullity, in which case all the
legal challenge mounted by the
applicant can properly be
described as “much-ado about
nothing.” I have carefully
examined the submissions and I
am persuaded that they are
wrong.
Under article 24 of the Convention,
the council has power to
regulate certain matters,
including the conduct of
entrants during examinations. In
my view, it is the council that
can prescribe regulations for
the behaviour of candidates and
the appropriate penalties for
breach of those regulations. Now
section 12 of the West African
Examinations Council Law, 1991
(PNDCL 255), opens with the
words “except as otherwise
provided in the Convention, the
Secretary for education may by
legislative instrument…” As I
have pointed out article 24 of
the Convention
gives the council power to
regulate the conduct of the
entire examination as well as
the conduct of entrants.
Consequently, it is not
necessary for the Minister for
Education also to make
Regulations to cover the same
matters.
In my view, the submission
based on the non-existence of
1996-97 Rules is sheer
sophistry. I am sure that what
is wrong is the headed paper
used to communicate the decision
of the council to the affected
students. There is no doubt in
my mind that the candidates were
examined on the basis of the
“Regulations, Structure and
Scheme of the Examination for
the Senior Secondary School
Certificate Examinations
(2000).” Regulation 5(b)
referred to is what appears at
page 8 of that booklet. Indeed,
in their letter dated 5June 2001
(exhibit D), the Executive
Director, Mohammed Ayariga and
the Projects Director, Raymond
Atuguba of the Legal Resources
Centre, the solicitors for the
applicants, stated at page 2 as
follows:
“On
the face of the facts, as we
have been able to construct
them, the decision of WAEC
violates the 1992 Constitution
(article 23), the West African
Examinations Council Law, 1991
(PNDCL 255), s 3, the WAEC
Regulations, Structure and
Scheme of the SSSCE 2000,
and a host of other laws rules,
and regulations of this country.”
(The emphasis is mine).
The applicant confirmed my view
when he admitted in ground (j)
of his grounds of appeal to this
court that the SSSCE Regulations
2000 governed the examination in
issue. Further, the council
could sanction the applicant
under section 10. I would
accordingly dismiss these
grounds of appeal.
GROUP D covering grounds
(c) (f) (h) – relating to
failure to give the applicant
the opportunity of presenting
his case
The gist of these grounds is whether
or not the applicants could be
anctioned and damnified in the
enjoyment of their legal rights
by a process of investigation by
the council that did not afford
them an opportunity to present
their case. This is really the
pivotal issue in these
proceedings. Since the
applicants claim that they are
entitled to administrative
justice under article 23, we
should examine that article a
little more closely. Article 23
of the 1992 Constitution
provides:
“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.”
Since the duty to act fairly is
imposed on administrative
officials by article 23 it is
important to determine whether
or not the council is an
administrative body within the
meaning of that article. The
Constitution does not define
“administrative bodies” or
“administrative
officials.” Curiously,
neither counsel for the
applicant nor for the council
considered that issue. The
judgment of the High Court
assumed that it was and
proceeded to paraphrase article
33 wrongly by saying that it
confers jurisdiction on the High
Court in cases where applicants
allege their personal rights
have been infringed upon. That
is clearly wrong.
Article 33 (1) states
that: “Where a person alleges
that a provision of this
Constitution on the fundamental
human rights and freedoms has
been, or is being or is likely
to be contravened in relation to
him…” It is obvious that not all
personal rights are fundamental
human rights. A breach of
contract is a personal right but
it is clearly not a fundamental
human right. Modern governments
have grown into large
bureaucracies. As stated in
Wade & Forsyth, Administrative
Law (7th ed)
at page 4):
“If the state is to care for its
citizens from cradle to the
grave, to protect their
environment, to educate them at
all stages, to provide them with
employment, training, houses,
medical services, pensions and
in the last resort, food,
clothing and shelter, it needs a
huge administrative apparatus.”
A government’s vision and
election promises cannot be
translated into a welfare
society merely by the passing of
laws and leaving it to the
courts to enforce them.
In our tripartite
governmental structure, we have
the executive, the legislature
and the judiciary. It is the
executive branch of government
that must exercise executive
authority of Ghana: see article
58(1) of the Constitution 1992.
It is this branch that is
therefore charged with the real
business of improving the
overall welfare of the people of
Ghana. The executive comprises
the President, Ministers of
State, the Ministries,
Departments, Chief Directors,
Directors, a host of
administrative and other staff,
as well as other agencies of
government and other bodies in
the Public Services such as the
Police Service, the Internal
Revenue Service, the Audit
Service, the Legal Service, the
Immigration Service, the Prison
Service, etc. These innumerable
and variegated functionaries,
central and local, are entrusted
with various degrees of power to
adjudicate numerous contested
matters, make decisions and
impose penalties and
prohibitions; always acting
under the authority of the
Constitution or some Act of
Parliament, Decree or Law or at
the very least, under some
delegated power from a person
with authority to
delegate.
This process of delegation starts from
the President himself. Under
article 58 (3):
“Subject to the provisions of
this Constitution, the functions
conferred on the President by
clause (1) of this article may
be exercised by him either
directly or through officers
subordinate to him.”
Hence the official of the
Internal Revenue Service who
decides that a person resident
in Ghana is assessable to income
tax (see Republic v
Commissioner of Income Tax; Ex
parte Fynhout [1971] 1 GLR
213, CA; the VAT official who
determines that a company was
late in
submitting its monthly VAT
returns and imposes a mandatory
penalty; the customs officer who
assesses customs duty and
imposes a penalty of three times
the value of goods for attempted
smuggling; the immigration
officer who detains a passenger
at the airport on a drug-related
offence; the factory inspectors,
the officers of the
Environmental Protection Agency,
are but a few examples of
persons who help the President
to exercise the executive
authority of this country. They
include the Ministers of State,
both within and outside the
Cabinet who
decide various
policies of government, the
implementation of which may
affect the rights of subjects –
such as, for example, compulsory
acquisition of land for a new
school or hospital; the
introduction of a National
Health Insurance Scheme and how
it shall be funded; the National
Accreditation Board which
decides which institutions of
learning shall be permitted to
run university courses and under
what conditions. In my view,
all bodies and persons whose
authority to act derives by this
process of sub-infeudation (to
borrow an English feudal land
law concept) from the President,
however tenuous the connection
may be, are
the
“administrative bodies” and
“administrative officials”
mentioned in article 23 of the
1992 Constitution.
The next question which may be posed
is, is the Council an
administrative body? On 23 March
1982, a Convention establishing
the West African Examinations
Council was signed in Monrovia,
Liberia, by the Governments of
the Gambia, Ghana, Liberia,
Nigeria and the Sierra Leone.
Ghana ratified the Convention on
28 December 1982. Under article
14 of the Convention, each
member country was required to
enact laws in accordance with
its legislative processes
incorporating into its laws the
provisions of the Convention. In
pursuance of its said
obligation, the
government of Ghana promulgated
the West African Examinations
Council Law, 1991 (PNDCL 255),
whereby the Convention, as set
out in the Schedule to the Law,
had the force of law in Ghana.
The Convention constituted the
council as a body corporate with
perpetual succession and a
common seal. It could sue and be
sued in its corporate name.
Under article 16(1) “the Council
shall enjoy legal personality as
an international organization
within the territorial limits of
the Member Countries and
Associate Member Countries.” By
article 16 (iv) “the chairman,
members of the Council, the
Registrar and members of his
staff shall severally and
collectively be accorded
diplomatic privileges status in
accordance with the rules,
regulations and policies
governing diplomatic immunities
within the territories of the
Member Countries and Associate
Member countries.”
The Convention contained
elaborate provisions for the
constitution of the council.
There are three categories of
members: (a) persons appointed
by each of the signatory
governments; (b) persons
appointed in a manner prescribed
by the National Committee of
each signatory government to
represent their respective
universities; (c) persons
elected by each National
Committee; and a registrar who
is an ex-officio non-voting
member. He is the Secretary to
the council. The Convention also
provided for the election of a
chairman and vice-chairman of
the council. It dealt with the
tenure of office of members of
the council; the powers and
duties of the council; its
finance and external auditors;
the secretariat of the council;
the establishment and
constitution of national
committee; settlement of
disputes; amendments and
discipline of staff. The main
function of the council is
provided in article 4. It shall
review and consider annually the
examinations to be held in the
member countries in the public
interest. It may also conduct,
in consultation with member
countries, such examinations as
the council may think
appropriate under the Convention
and to award certificates and
diplomas on the results of such
examinations. The council may
prescribe the fees chargeable to
entrants to and regulate the
conduct of, any examinations
conducted under the provisions
of sub-section (b) of article 4
of the Convention, including but
without prejudice to the
generality of the foregoing: (a)
the persons or categories of
persons who may enter for such
examinations; and (b) the
conduct of entrants during such
examinations.
Under article 9(d), if invited by any
government of any member
country, the council may conduct
any other examination considered
by the government to be in the
public interest to conduct such
examination, after due
consultation. From what has been
stated above, it is
quite evident that
even though the functions of the
council may affect a substantial
part of the public ever so
often, those functions are in no
sense governmental. The council
does not discharge functions of
a governmental nature. In other
words, those functions have not
been woven into any system of
executive authority. The council
is not, de facto, even a
surrogate organ of government.
It is an international body
domiciled in Ghana. It has no
business involving itself in
the
administration of Ghana. In its
origin, its history, its
constitution or least of all,
its membership, it is not part
of the administrative arm of
government. Its status as an
international body coupled with
the fact that the chairman,
members of the council, the
registrar and even members of
his staff are severally and
collectively to be accorded
diplomatic privileges status, is
incompatible with the status of
bodies or persons in the
administrative organ of
government. In my view, the
council is not an
“administrative body” within the
meaning of article 23 of
the
Constitution.
Learned counsel for the applicant
tried to expand the horizon of
article 23 by referring to the
Indian Constitution. In my view,
that is not helpful in this
particular instance. Chapter
five of the 1992 Constitution,
which deals with Fundamental
Human Rights and Freedoms, opens
with article 12(1) which clearly
delimits what is intended to be
protected as such. Article 12(1)
provides:
“12(1) The fundamental human
rights and freedoms enshrined in
this chapter shall be respected
and upheld by the Executive, the
Legislature and Judiciary and
other organs of government and
its agencies and, where
applicable to them, by all
natural and legal persons in
Ghana, and shall be enforceable
by the Courts as provided for in
the Constitution.”
I must not be misunderstood. I
am aware that globally, the list
of fundamental human rights
protected under various national
constitutions is far in excess
of what is contained in our
chapter five. But that is the
choice we in this country have
made and a party who invokes the
jurisdiction of the High Court
under article 33(1) of the
Constitution must bring himself
within the list contained in
chapter five. I am also aware
that outside the Constitution,
the laws of Ghana protect
personal rights akin to what are
described in the Constitution as
fundamental human rights and
freedoms.
The principle of natural justice was
developed by the judges of
English Common Law without the
intervention of any written
constitution. Protection to life
is adequately secured by the
Criminal Code, 1960 (Act 29).
Article 14 covers the Common law
tort of
false
imprisonment and a writ of
habeas corpus may issue to
secure the freedom of any person
who is unlawfully detained by a
public official or the
government, or even by his own
parents. The point I am making
here is simply this: An action
based on article 23 of the
Constitution must be confined to
the persons specified in that
article, the fact that under
some other national constitution
or system a more expansive or
restrictive definition is given
to the infraction complained of
is at most, only persuasive.
Administrative law is
essentially about the control of
abuse or misuse of public power.
Accordingly, it is persons who
wield this type of authority who
are targeted under article 23.
For example, it cannot apply to
domestic tribunals, such as the
Presbyterian Church of Ghana
which decides who may be
admitted to the priesthood by
the Church. The reason for this
is that the powers of domestic
tribunals derive from contract.
Administrative justice is a
public law remedy. Fundamental
Human Rights are for the most
part, rights against government
interference.
Is the council, nonetheless, subject
to the rules of natural justice?
The power which the Council
exercises over those, like the
applicant, who take its
examinations derive from
agreement. This gives right to
private rights on which
effective action for
declaration, injunction and even
damages may be based. It is not
part of any government
regulation. By applying to take
the examinations and paying the
prescribed fees, people like the
applicant, expressly submit
themselves to the regulations of
the council. They acknowledge
that they are governed by
the
disciplinary rules of the
council.
Article 23 does not define what is
meant by “to act fairly and
reasonably.” That omission may
be supplied by resort to the
common law. At common law,
before the House of Lords
decision in Ridge v
Baldwin [1964] AC 40, the
court took the view that
judicial tribunals empowered to
deprive persons of their
liberty, impose financial
burdens on them and ascertain
their legal rights had to
observe the audi alteram partem
rule. See R v
Electricity Commissioners; Ex
parte London
Electricity Board
[1924] 1 KB 171. At this point,
functions which were
administrative but not judicial
or (later quasi-judicial) did
not attract the rule. This
dichotomy has been abandoned by
the English Courts and have
since Ridge v Baldwin
(supra) insisted that even
in the so-called administrative
functions, the body discharging
the function must act fairly. In
my humble opinion, article 23
effectively lays to rest any
lingering doubt about the modern
statement of the rule in this
country.
The audi alteram partem rule is part
of the broader rule of natural
justice which comprises the audi
alteram partem rule and the nemo
judex in causa sua rule. I am
not concerned with the latter
rule for the West African
Examinations Council Law, 1991
(PNDCL 255), gives the council
powers to control its
examinations and impose various
penalties for examination
malpractices. Except in one
area, which I will deal with
presently, if the Council
complies with the Law, its
decisions cannot be impugned.
The scope and purpose of the Law
makes that abundantly clear. See
Wilkinson v Barking
Corporation [1948] 1 All ER
564; [1948] 1 KB 721. It is
sometimes said glibly that any
person who decides anything
affecting the rights of subjects
must observe the rules of
natural justice. That is
certainly not correct. For
example, no such duty arises
where numerous persons are
competing for scare resources,
eg allocation of government
contracts or university places.
This may cause some considerable
hardship to the unsuccessful
contenders, but no court has
held that such people have any
common law right to go to court
on the ground that their
applications were summarily
rejected. In R v
University of Aston Senate; Ex
parte Roffey [1969] 2 QB 538
the English Court of Appeal
discussed what I consider to be
similar to this case, ie when
university students may be
entitled to be heard when they
have been asked to withdraw from
the university for failure of
examinations. The authorities
establish that in examination
malpractices, the party affected
must be given an opportunity to
be heard before
penalties are meted out to him.
This duty will arise when the
charges are put to him. See
Herring v Templeman
[1973] 3 All ER 569 and Glynn
v Keele University
[1971] 1 WLR 487 at 494.
In the case before us,
Part II of PNDCL 255 dealing
with examination offences and
penalties provides in section 3
(1) that any person who, before
or during an examination
conducted by the council,
without lawful authority, the
proof of which shall be on him
“(b) is found to have had
foreknowledge of the contents of
any examination paper … etc.” He
can only discharge this burden
if he is given an opportunity to
be heard. In my view, this is
clear indication that a
candidate who is accused of any
examination malpractice must be
given an opportunity to be
heard. This is common fairness
to the candidate, which is what
natural justice is all about.
The fact that he is not
criminally prosecuted is
irrelevant. But the matter does
not end there. I have already
referred to the letter which the
Headmaster/Rector of the Notre
Dame Minor Seminary
Secondary School wrote to the
council (exhibit B). In it, he
said he wrote on behalf of a
number of people including the
students requesting the council
to take another look at the
scripts and review the decision
meting out punishment for the
alleged irregularity.
(See paragraph
(13) of the applicant’s
affidavit in support. The
council replied by saying that
the only means by which the
council could verify the
allegations was the scrutiny of
the scripts. As a result, all
the scripts for the subjects
were scrutinized and it was from
the scrutiny that it was
established that there was
foreknowledge and collusion
among the thirteen candidates.
In their letter to the council,
the solicitors of the applicant
suggested that the applicants
were ready to be subjected to
“interrogative sessions” by the
council to establish their guilt
or innocence.
Counsel further argued in their
said letter and also in their
legal submission that the
punishment meted out to their
client on the sole ground of
“scrutiny of our scripts” was
arbitrary, unfair and/or
unreasonable.
Is this right? As it has been pointed
out in a number of English
decisions starting with Local
Government Board v
Arlidge [1915] AC 120 at
140; General Medical Council
v Spackman [1943] AC
627 at 628 and particularly in
In re Pergamon Press
[1971] Ch 388 at 402-403, the
rules of natural justice are not
rigid norms of unchanging
content and their ambit may vary
according to the context. In
In re Pergamon Press (supra)
company inspectors had informed
the directors of the general
nature of their tentative
findings and requested the
directors to comment on them.
The directors refused, claiming
that they ought to be given
copies of the transcripts of the
proceedings before they would
comment. The Court of Appeal
held that they were not entitled
to the transcripts. What the law
insists upon is substantial
fairness. In this case,
the applicants
were seeking to take over the
role of the council. To act
fairly does not necessarily mean
that the person likely to be
affected must be given an oral
hearing. The various letters
exchanged between the council
and the applicants through their
headmaster and their lawyers
could in an appropriate context,
amount to “fair hearing.”
Further, it will reduce the
council to complete impotence if
the applicants could dictate the
mode or manner in which the
council was to discharge a duty
placed squarely on it by PNDCL
255. In my view, it cannot be
said that the council acted
unfairly and unreasonably by
scrutinizing all the scripts. It
shows rather that the council
was most anxious to do justice
to the applicants.
In Ridge v
Baldwin [1964] AC 40 at 79,
Lord Reid said:
“I do not doubt that if an
officer or body realizes that it
has acted hastily and
reconsiders the whole matter
afresh, after affording to the
person affected a proper
opportunity to present his case,
then its later decision will be
valid.”
This is exactly what happened in
R v Aston University
Senate; Ex parte Roffey
[1969] 2 QB 538. Here the
university asked some students
to withdraw from the university
for poor performance in the
university examinations. The
students petitioned the
Vice-Chancellor and thereafter a
series of meetings were held by
the students tutor with the
students, by the board of
examiners, the senate and other
authorities to consider the
students’ grievances. The court
held that those meetings were
proper to see what could be done
to produce a fair result. The
court ruled against the
university on the ground that
the board of examiners who only
had the final say in the matter
did not actually take any
further decision after the
various meetings.
In the instant case, the suggestion of
“interrogative session” is
clearly misplaced. I doubt it if
the council has power to
administer oaths. The council
need not examine witnesses. It
can obtain information in any
way it thinks best, always
giving a fair opportunity to
those who are parties to the
controversy for correcting or
contradicting anything
prejudicial to their interest.
In this case the principle of
res ipsa loquitor comes into
play. In my view, no useful
purpose will be served by
cross-examination. The evidence
of foreknowledge is in the
scripts and apart from using a
lie-detector, no amount of
cross-examination of each of the
affected students can resolve
the problem of collusion among
them. This is a difficult case.
It places the council in a
dilemma. Anybody who has marked
examination scripts before will
have no difficulty in coming to
the conclusion
that there has been
foreknowledge and collusion
among the candidates. The
difficulty here is how to
demonstrate that to each
affected student.
My Lords, what does fairness require
in this case? To act fairly is
to make over to the party
affected the evidence available
to him. Where the party affected
has the right to make
representations, this involves
three things: (i) he must be
informed of the case against
him; (ii) so as to tailor his
submission thereto; and (iii) to
refute some of the allegation,
(if that is the case), correct
mistakes or explain away
otherwise damaging evidence.
See In re Pergamon Press Ltd
(supra).
In this present case,
the applicant’s headmaster
suggested that what the council
thought was a case of
foreknowledge might be a rare
case of coincidence because the
students had access to two books
that had ready-solved questions
which the students could have
learnt. The
council
rebutted it by saying that the
questions that were set in the
2000 SSSCE had not been set
before and could therefore not
have appeared in those books.
Lord Mustill has observed in
R v Secretary of State
for the Home Department; Ex
parte Doody [1993] 3 WLR 154
that the
standards of fairness are not
immutable. They may change with
the passage of time, both in
general and in their application
to decisions of a particular
type. The principles of fairness
are not to be applied
identically by rote in every
situation. What fairness demands
is dependent on the context of
the decision, and this is to be
taken into account in all its
aspects. An essential feature of
the context is the statute which
creates the discretion, as
regards both its language and
the shape of the legal and
administrative system within
which the decision is taken.
See also Lloyd v
McMahon [1987] 2 WLR 821.
My Lords, what is required is a fair
result reached by fair methods.
It is in the public interest
that the sanctity of the results
is guaranteed. After a very
careful and anxious
consideration of the
circumstances of this rather
difficult case, and the language
of section 3 (1) of PNDCL 255, I
have come to the conclusion that
the decision of the council
should be set aside on the sole
ground that it failed to give
the students an opportunity to
respond to the charge of
foreknowledge before they were
penalized. I wish to emphasize
that my opinion should be
limited in scope to the matter
of disciplinary action taken
against the affected students.
Serious public mischief will
result if any attempt is made in
the future to introduce the
principle of natural justice to
the area of marking and
moderating examination scripts.
Judges do not inhabit an
intellectual vacuum. I am not
oblivious of the rampant nature
of examination malpractices in
this country. We all bear a
heavy responsibility to ensure
that the canker is completely
exterminated. To admit the
principle of natural justice
into the conduct of examinations
apart from the disciplinary
functions of the council will
surely open the floodgates to a
torrent of unbridled abuse. We
do not wish to tie up the
council in an impenetrable
morass of legal chicanery. We
owe a duty to our youth, our
educational system, our
institutions of higher learning,
our business community, indeed,
our very survival as a nation,
to ensure that our educational
standards are constantly
improved upon, that brilliant
and diligent students are
encouraged and that cheats are
weeded out
ruthlessly. In particular, l do
not envisage cases like
Thorne v University of
London [1966] 2 QB 277. In
that case, Dr Thorne Ph D sat
and failed to pass certain
examinations for the LLB
Degree. He claimed that his
failure was the result of the
negligence of the examiners. He
claimed damages against the
defendants “for negligently
misjudging his examination
papers for the Inter and Final
LLB Degree” and sought an order
of mandamus commanding the
defendants to award him “the
grades at least justified.”
This judgment offers no solace to the
person who claims that he is
deserving of ten ones instead of
the five he was awarded. Until
the day comes when it is shown
that the council has marked
somebody down out of spite or
ill-will, the courts must
abstain from intruding into the
marking room. To some extent,
the council is to blame for its
woes. If the questions do not
leak, all these problems will
not arise. But having said that
I am not prepared to gloss over
the activities of students and
or their parents who get hold of
examination questions and hope
to over-reach the council. Such
students occupy no moral high
ground. They cannot claim to be
not in pari delicto with the
council. They deserve the
penalties contained in PNDCL 255
if they cheat and are found out.
The issue of award of damages
During our deliberations and
before we announced our verdict,
the question of whether or not
if the appellants won, they
would be entitled to damages,
came up. Consequently on 17 May
2004, when we announced our
verdict, we reserved our reasons
and invited learned counsel for
the parties to file further
submissions if they wished on
the following:
A. Whether or not in the
circumstances of this case, the
applicants are entitled to
damages; and if so,
B. What factors may be considered as
appropriate, if damages, were to
be awarded to the applicants.
Learned counsel duly filed their
respective submissions. After a
very careful and anxious
consideration of all the
material available to me on
issues (A) and (B), above, I
regret to say that I am unable
to answer A affirmatively.
As I understand it, the kingpin of
the argument in support of the
majority holding that damages be
awarded was inspired by a Privy
Council judgment in the case of
Maharaj v
Attorney-General of Trinidad and
Tobago [1979] AC 385. It
contains a holding that the
reliefs available to a person
who complains of a breach of a
constitutionally guaranteed
fundamental human right, may
include the award of damages.
But the Privy Council was at
pains to point out that that
right depends on a determination
of the merits. Whether or not
in this particular
case, damages
should be awarded to the
applicants, does not, in my
view, follow as a matter of
course. I can accept that
damages should be awarded to a
person who complains that his
personal liberty has been
restricted without due process
(article 14); or that forced
labour was exacted from him
(article 16); or that his
property was unlawfully
appropriated (article 20). See
Jaundoo v
Attorney-General of Guyana
[1971] AC 972. But I am not
persuaded that this case is a
proper case to award damages.
It was argued by learned counsel for
the appellants that the students
“have a residual or vested cause
of action for damages under
article 33(1) of the
Constitution” but he did not
show how that cause of action
arises – whether at common law
or under some statute.
He further argued that:
“irreparable and ruinous injury
has been done to the reputation
of the appellants by the actions
of the respondent. The hint at
moral turpitude that the false
accusations convey to the public
… calls for heavy compensation
if the charge is completely
unsustainable.”
I am unable to follow counsel’s
argument. No court, and
certainly not this court, has
decided that the accusations of
cheating are unfounded and
completely unsustainable. What
this court has decided is that
the appellants were not given an
opportunity to rebut the
accusations levelled against
them. In other words, the
procedure used by the respondent
was flawed. This is a case of
procedural irregularity. Our
judgment has nothing whatsoever
to do with the merits of the
accusations. Learned counsel
for the applicant argued as
though our judgment dealt with
the merits of the charges.
I have read article 33 over and over
again and I have come to the
conclusion that it does not
create the remedy of damages.
In my opinion, whether a party
is entitled to damages or not
must be determined according to
common law principles. I am of
the firm opinion that successful
natural justice challenges
should not necessarily carry in
their wake award of damages.
The appellants will only be
entitled to damages if it should
be established that there was no
collusion or foreknowledge among
the students as alleged. For if
it is proved that, indeed, they
cheated, as alleged, there can
be no justification for awarding
them damages. The issue of
damages cannot therefore be
dealt with without first dealing
with the merits of the charges.
Already, counsel for the
appellant is saying that the
charges were false and
completely unsustainable, when
there has been no adjudication
of that.
In the result, I would
refuse any award of damages to
the appellants and leave them
free to take advantage of the
“without prejudice” provision in
article 33 to commence a fresh
suit against the respondent for
damages. In such an action, the
respondent may, if it wishes,
raise the charges of collusion
and foreknowledge as a defence.
When battle is so joined,
substantial justice will be done
to all the parties. This
approach also accords well with
the Privy Council decision in
Jaundoo v
Attorney-General of Guyana
(supra). In that case, in
allowing the applicant’s appeal,
the Privy Council remitted the
motion to the court of first
instance with a direction to
hear and determine it on its
merits, and if these were found
to be favourable to the
applicant, to assess and give a
direction for the payment of
damages or compensation.
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
DR DATE-BAH JSC.
The key facts in this case are
not disputed and they bring into
sharp focus the accountability
of an examination authority. In
this case, young examination
candidates challenge the
authority’s stance of
infallibility on matters of
collusion. The applicant in the
case was nineteen at the time of
the institution of the action
and therefore brought the action
through his sister, as his next
friend. The action was
commenced by an originating
notice of motion seeking a
declaration that:
“(i) the decision of the Final Awards
and Examiners’ Appointment
Committee of the respondents
communicated in a letter
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 that of the twelve
students of Notre Dame Seminary
Secondary School in the SSSCE
2000 is unlawful, null and void
and of no effect;
(ii) the further 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 and void and of
no effect; and
(iii) the refusal or neglect of
the respondents to release the
entire results of the applicant
together with that of the twelve
other students in the SSSCE 2000
is unlawful, null and void and
of no effect.; …”
The applicant also sought such
directions or orders as the High
Court might consider necessary
and appropriate to remedy the
infringement or violation of the
fundamental human rights and
freedoms of the applicant and
twelve other students on whose
behalf he brought action. In
the title of the action, the
applicant expressed himself as
applying in a representative
capacity on his own behalf and
for the benefit of twelve other
students of the Notre Dame
Seminary Secondary School,
Navrongo. Since the thirteen
students have the same interest,
it is legitimate for the
applicant to bring these
representative proceedings on
their joint behalf. I will
regard all thirteen students as
parties to this suit for the
purposes of the relief or remedy
to be granted them, although
only one of them has formally
instituted this action.
The applicant and the twelve other
students were students at Notre
Dame Secondary School from 1998
to 2000 and sat for the Senior
Secondary School Certificate
Examinations “SSSCE 2000”
between October and December
2000. The respondent is the
body authorised to conduct these
examinations and award the
relevant certificate to
successful candidates. The
applicant deposed in his
affidavit in support of his
motion that during the
examination period neither he
nor any of the other twelve
students was questioned,
reprimanded or cautioned by any
person for engaging in or trying
to engage in any examination
malpractices. He further
deposed that he never had any
foreknowledge of any examination
papers nor did he collude with
the other twelve
students to have foreknowledge
of any examination papers.
However, in a letter dated 30 April
2001, the respondent informed
the headmaster of the
applicant’s school that its
Final Awards and Examiners’
Appointments Committee had
cancelled the results of the
applicant and the twelve other
students because of their
involvement in some examination
irregularities and requested him
to inform the candidates. The
nature of the irregularity
concerned was stated as
follows: “It was alleged that
the candidates had foreknowledge
of the paper and it has been
established that the listed
candidates colluded among
themselves.” In addition to
cancelling the results of the
candidates, they were to be
barred for three years from
taking any examination conducted
by the respondent.
The applicant deposed that
before this decision by the
committee neither he nor any of
the twelve other students were
privy to any inquiry,
investigation or trial to
establish the truth or otherwise
of any allegation of examination
malpractices that might have
been levelled against them and
that they were not given any
opportunity by the respondent to
make any representations or give
any testimony as to their
innocence of any such
allegations.
On 21 May 2001, the headmaster of the
applicant’s school petitioned
the respondent to review its
decision. One significant
paragraph of the headmaster’s
petition reads as follows:
“First of all, the case that the
thirteen students had
foreknowledge of the Mathematics
(Core) Paper 2 is only an
allegation, and therefore the
application of rule 5b
without further
investigation to ascertain the
veracity or otherwise of the
allegation is a bit harsh on the
poor students. We are dealing
here with young people who have
worked hard for three years in a
reputable school with the hope
of developing a career for
themselves, and if we are not
careful we may ruin their future
for good.”
By a letter of 6 June 2001, the
respondent communicated its
reaction to the headmaster’s
petition, turning it down. A
very significant paragraph in
the respondent’s letter in reply
was the following:
“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
scrutiny of the scripts of the
candidates. As a result all
scripts for all subjects were
scrutinized. From the scrutiny
it was established that there
was foreknowledge and collusion
among the thirteen candidates
from your school in Mathematics
(Core) Paper 2. The council
therefore applied the
prescribed
sanctions.”
This letter thus confirmed that
applicant and the other students
were not given an opportunity to
be heard before the prescribed
sanctions were applied.
Furthermore, in an affidavit
deposed to by the respondent’s
principal legal officer in
opposition to the applicant’s
motion, the sole evidence of
malpractice relied on by the
respondent appears to be
evidence in the examination
scripts themselves.
Paragraphs (8), (9) and
(11) of the affidavit are quite
illuminating. They were in the
following terms:
“(8)In answer to paragraphs (8) and
(9) of affidavit
respondent-council says that
following allegations of leakage
in the 2000 SSSCE Mathematics
(Core) 2 Paper all scripts were
scrutinized. That there was
sufficient evidence in the
scripts of the plaintiffs
confirm (sic) collusion arising
out of foreknowledge.
(9) In further answer the
respondent council says it has
all the expertise to detect
collusion among candidates.
(11) That in answer to paragraph
(11) of affidavit in support the
respondent council says the
evidence in the scripts of the
plaintiffs are so manifest that
by its rules the
respondent
council as an examining body
does not need to invite
candidates to make
representation. The practice is
universal with all examining
bodies.”
The respondent thus appears to
have adopted the position that
its expertise as an examining
authority enabled it to discern
cheating and collusion from the
mere scrutiny of the examination
scripts and that there was no
need to receive representations
from the affected
candidates
before applying sanctions to
them. Indeed, its principal
legal officer deposed to its
belief that examination results
were not matters of human
rights. In paragraph (12) of
his affidavit, he said:
“In answer to paragraph (12) of
the affidavit in support, the
respondent council says that the
examination results is not a
matter of human rights. That
cancellation of examination
results on good grounds does not
constitute an infringement of
human rights. Counsel will make
reference to relevant
provisions of the 1992
Constitution.”
The applicant being
dissatisfied with the result of
the petition by his headmaster
has brought this action to
enforce his rights. The learned
trial judge, Omari-Sasu JA,
sitting as an additional High
Court Judge, granted him the
relief he sought. Before doing
so, he made the following
findings of fact:
“(1)The thirteen applicants herein who
are aged between 18 years and 22
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/papers 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 respondent’s
examination.
(6) During the
investigations conducted by the
respondents into the allegation
of foreknowledge and collusion,
there is no evidence on record
which tends to show that:
(a) The applicants or their
headmaster was informed of the
allegations.
(b) The applicants or their head
teacher was in any manner given
a chance of being heard or
participating in the
investigations.
(7) The respondents in dealing with
the present case acted as
investigators, prosecutors and
judges in their own cause and
neither the applicants nor their
headmaster was in any way
invited to assist in the
investigations.”
The judgment of the
learned trial judge was,
however, reversed on appeal.
The applicant and the twelve
other students have therefore
appealed to this court. The
grounds of appeal filed are as
follows:
(a) The Court of Appeal
misapplied article 33(1) of the
1992 Constitution when it held
that the jurisdiction of the
High Court can only be invoked
under article 33(1) when a
fundamental human right under
the Constitution has in fact
been
contravened.
(b) The Court of Appeal erred
when it failed to recognise that
the right to administrative
justice as embodied in article
23 of the 1992 Constitution is a
fundamental human right directly
enforceable under article 33(1)
of the Constitution.
(c) The Court of Appeal failed
to take account of the trial
judge’s specific findings of
fact that the respondents
violated article 23 of the 1992
Constitution when they breached
the audi alteram partem rule of
natural justice and ignored
other requirements imposed on
them by law.
(d) The Court of Appeal rightly
held that article 33(1) could be
invoked by an originating motion
on notice where a
constitutionally guaranteed
fundamental human right has been
breached, but erred in holding
that the procedure of
originating motion on notice
adopted by the appellants to
enforce article 23 of the
Constitution was inappropriate
and flawed.
(e) The Court of Appeal erred
grievously by misapplying
article 33(1) and (4) when it
held that the procedure of an
originating motion on notice
adopted by the appellants was
inappropriate and flawed because
the appellants were seeking a
number of declarations including
but not limited to a declaration
that:
the cancellation of the results
of the appellants was unlawful;
the barring of the applicants
was void and of no effect;
the council’s refusal to release
the results was unlawful.
(f) The Court of Appeal
misconstrued section 10 of the
West African Examinations
Council Law, 1991 (PNDCL 225)
when it held that the appellants
could be sanctioned and
damnified in the enjoyment of
their legal rights by a process
of investigation by the council
that did not afford them an
opportunity to present their
case.
(g) The Court of Appeal rightly
found that the evidence
predominantly favoured the
appellants’ case but erred in
holding that the facts in issue
were not capable of being
determined on
affidavit evidence.
(h) The Court of Appeal erred
grievously when it held that the
decision of the respondents to
cancel the entire results of the
appellants in the SSSCE 2000 and
to further bar them for three
years from taking any
examination conducted by the
respondents was an
administrative decision and not
subject to any further inquiry.
(i) The Court of Appeal erred
in holding that the decision of
the respondents to sanction the
appellants was in accordance
with section 10 of PNDCL 225
when the respondents have
clearly stated that they
punished the appellants under
the provisions of rule 5b of the
1997/98 WAEC Regulations and
Syllabus, which rule is not in
force and is non-existent.
(j) The Court of Appeal failed
to recognise that the sanctions
imposed by the respondents on
the appellants are ultra vires
the Senior Secondary School
Certificate Examination
Regulations 2000, which governed
the examination in issue.”
Procedure for invoking the
jurisdiction of the High Court
under article 33
One of the grounds on which the Court
of Appeal allowed the appeal of
the respondent before this court
from the High Court was
procedural. The court, through
Owusu-Ansah JA, held that the
procedure adopted by the
applicant (ie appellant before
this court) was “inapplicable
in asserting a
right under article 23.”
Naturally, the appellants are
dissatisfied with this decision
and filed grounds of appeal in
relation to it. Ground (d) of
the appellants’ grounds of
appeal is in the following
terms:
“The Court of Appeal rightly held that article 33(1) could be
invoked by an originating motion
on notice where a
constitutionally guaranteed
fundamental human right has been
breached, but erred in holding
that the procedure of
originating motion on notice
adopted by the appellants to
enforce article 23 of the
Constitution was inappropriate
and flawed.”
Ground (e) is also as follows:
“The Court of Appeal erred grievously by misapplying article 33(1)
and (4) when it held that the
procedure of an originating
motion on notice adopted by the
appellants was inappropriate and
flawed because the appellants
were seeking a number of
declarations including but not
limited to a declaration that:
the cancellation of the results of the appellants was unlawful;
the barring of the applicants
was void and of no effect; and
the council’s refusal to release
the results was unlawful.”
The respondent, of course,
sought to defend the decision of
the Court of Appeal. In its
statement of case, it argues as
follows:
“(5)The appellants contend
at page 14 that their action
‘was not an ordinary suit before
the High Court. It was an
application for the enforcement
of constitutionally guaranteed
fundamental human rights under
article 33(1) of the 1992
Constitution.’ That article,
the appellants argue, enabled
their invocation by originating
motion on notice.
(6) With due respect to
counsel for the appellants, the
provision does not so say so.
The Constitution enables a
person seeking remedy for the
violation of a human rights
provision to apply to the
High Court for remedy, and had
directed the Rules of Court
Committee to make rules for its
invocation. Although the
committee has not made fresh
rules, the existing rules of the
High Court continue to apply as
existing law under section 26 of
the transitional provisions of
the 1992 Constitution. The list
of remedies in article 33,
namely, habeas corpus,
certiorari, mandamus,
prohibition, and quo warranto
have been adequately provided
for in the High Court (Civil
Procedure) Rules, 1954 (LN
140A), Order 59. If those rules
are inadequate, the aggrieved
person may resort to the
provision in Order 2, r 1 if it
is intended to see declarations
from the court. See also Order
25, r 5.
(7) A claim for the declaration
in the High Court can be made
in limited circumstances by
originating summons, otherwise
it must be by a writ of
summons. The applicants did not
adopt either procedure but
rather proceeded by originating
motion on notice.
They claim that the decision of
the High Court in
People’s Popular Party v
Attorney-General
[1971] 1 GLR 138 and that of the
Supreme Court in Edusei v
Attorney-General [1998-99]
SCGLR 753 enable claims for
declaration to be made by
originating motion. With due
respect to counsel for the
appellants, neither court so
decided.
(8) Further, and in the
alternative, the respondent
invites this court to take a
second look at the above
decisions and place them in
context. The ratio of In re
Meister Lucius and Bruning Ltd
[1914] WN 390 which has featured
prominently in both decisions,
was stated succinctly in
Peoples Popular Party thus:
‘It is … a rule of practice that
where a statute provides for an
application to the court without
specifying the form in which it
is made, and the normal rules
of court do not expressly
provide for any special
procedure, such application
may be made by an originating
motion.’
(9) When article 33 was
promulgated in the 1992
Constitution, Order 59 of the
High Court Rules was in force
and adequately provided for the
invocation of the remedies
listed in the article by
application. In such
situation it cannot be said that
the normal rules of court do
not expressly provide for any
special procedure.
Admittedly the Constitution
provides that the Rules of Court
Committee shall make rules to
regulate proceedings under the
provision but it does not follow
that the existing rules must be
cast aside even if they are
adequate.
(10) The legislative scheme
adopted in all Republican
Constitutions in Ghana is to
empower a law-making body to
make laws, rules or regulations
to govern specified situations,
leaving it to such body to
determine whether, having regard
to the existing rules, law
reform in the nature of new
provisions would be necessary.
Where the need for reform would
not arise the Constitution
framers have ensured that the
existing law, as
defined under the Constitution
would hold extant the existing
laws, rules or regulations as
part of the Laws of Ghana.”
The appellants, on the other
hand, argued as follows:
“Our application was not an ordinary suit before the High Court.
It was an application for the
enforcement of constitutionally
guaranteed fundamental human
rights under article 33(1) of
the 1992 Constitution. This
article states as follows:
'33(1) Where a person alleges
that a provision of this
Constitution on the fundamental
human rights and freedoms has
been … contravened in relation
to him, then,
without
prejudice to any other action
that is lawfully available, that
person may apply to the High
Court for redress.'
(Emphasis ours).
Article 33(1) of the
Constitution provides for the
making of an application
to the High Court, and
applications are not made by
writ of summons. Applications
are made either by originating
motions, originating summons, or
summons (Orders 52, 54, and 54A)
respectively of the High Court
(Civil Procedure) Rules, 1954
(LN 140A). And article 33(4)
of the Constitution provides
that the Rules of Court
Committee may make rules of
court with respect to how
applications brought under
article 33(1) may be made. The
Rules of Court Committee has not
yet made any Rules to govern
such
applications.
The applicants in the case of
People’s Popular Party
v Attorney-General
[1971] 1 GLR 138 were
in the same situation that we
found ourselves. When the
procedural issue was raised in
that case, Robert
Hayfron-Benjamin J, (as he then
was), held as follows at page
145:
“Article 28(4) of the
Constitution [1969] provides
that, ‘The Rules of Court
Committee may, by constitutional
instrument, make Rules of Court
with respect to the practice and
procedure of the Superior Court
of Judicature for the purposes
of this article.’ No such rules
have so far been made. It is
however a rule of practice that
where a statute provides for an
application to the court without
specifying the form in which it
is to be made, and the normal
rules of court do not expressly
provide for any special
procedure, such an application
may be made by an originating
motion … The notice of motion
must be intituled in the matter
of the Act under which the
application is made …”
The Court of Appeal was unable
to refer to any rule of
procedure which specifically
provides that an application
under article 33(1) should be by
writ of summons. The decision
in People’s Popular Party
v Attorney-General
was quoted with approval in the
Supreme Court decision of
Edusei v
Attorney-General [1998-1999]
SCGLR 753 at 796 per
Acquah JSC (as he then was).
Indeed, in this case, the
Supreme Court sought to energise
and save from extinction, the
provisions of article 33 of the
Constitution when it held that
the claim of the applicant was
properly to be brought under
that article in the High Court.
This suit is the blood baby of
that holding of this court. The
decision was again quoted with
approval by the High Court in
Republic v Edward Wiredu;
Ex parte Amidu, Suit No FT
(HR) 4/2001, Accra unreported at
page 21. Again, in Juandoo
v Attorney-General
of Guyana [1971] 3
WLR 13 at 14, the Privy
Council held that where the rule
making authority, had not
exercised their power to make
rules with respect to the
practice and procedure for
invoking the jurisdiction of the
court for a redress of rights in
the Constitution of Guyana, the
applicant was justified to use
the procedure of an originating
motion on notice in invoking the
jurisdiction of the court.
A close reading of article 33(1) of
the 1992 Constitution especially
the “without prejudice” clause,
reveals that the appellants can
bring an application under
article 33(1) even if there are
other forms of action available
to them. In the words of Acquah
JSC in Edusei (No 2)
v Attorney-General
[1998-99] SCGLR 753 at 788:
“‘without prejudice to any other
action that is lawfully
available’ … refers to any
possible cause of action which
may arise from the violation of
one’s fundamental human right
and freedom, independent of
that victim’s constitutional
right of seeking redress for the
said violation.”
It is therefore improper for the
Court of Appeal to attempt to
restrict the options of the
appellants to an action by writ
of summons."
In determining which of these
competing contentions on
procedure by the parties is
right, I think that one should
remember the famous wise words
of Sowah JSC (as he then was) in
Tuffuor v Attorney-General
[1980] GLR 637 at 647-648:
“The Constitution has its letter
of the law. Equally, the
Constitution has its spirit….Its
language, therefore, must be
considered as if it were a
living organism capable of
growth and development. Indeed,
it is a living organism capable
of growth and development… A
broad and liberal spirit is
required for its
interpretation. It does not
admit of a narrow
interpretation. A doctrinaire
approach to interpretation would
not do. We must take account of
its principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time.”
We need to remind ourselves that
the words to be construed,
though they relate to procedure,
are nevertheless contained in
the Constitution. Accordingly,
they should be construed
liberally, as urged by Sowah
JSC. In that light, I have no
hesitation in holding that
“apply to the High Court for
redress” in article 33(1) is to
be construed as including
applying by way of an
originating motion,
notwithstanding the express
language in the High Court Rules
to which the respondent has
drawn this court’s attention, to
the effect that unless a
specific other mode of
originating an action is
specified in the Rules, a writ
of summons is to be the mode of
initiating an action. Order 2,
r 1 of the High Court (Civil
Procedure) Rules, 1954 (LN 140A)
provides that: “Every action in
the High Court shall be
commenced by a writ of summons”,
subject to
specified
exceptions. In the
circumstances of this case, this
ordinary rule of procedure is
overridden by the letter and
spirit of the Constitution. In
constitutional cases, it is
generally right that the court
should concentrate on the
substantive matters raised,
rather than allowing
procedural
considerations to preclude it
from addressing the substance of
the case.
In my view, until the Rules of Court
Committee has prescribed a
particular mode of application
under article 33(1), applicants
should be given latitude as to
how to invoke the jurisdiction
of the High Court. This is
certainly in consonance with the
legal position formulated by
Acquah JSC (as he then was) in
Edusei (No 2) v
Attorney-General [1998-99]
SCGLR 753 at 797, as follows:
“The legal position therefore is
that where an enactment confers
an actionable right on a person,
but there are no rules
specifically provided for
vindicating that right because
either that enactment provided
none, or it rather directed an
authority to make the said rules
which are yet to be made, an
aggrieved person is entitled to
adopt the nearest reasonable
procedure of utilizing the right
accorded by the law – a
procedure which must be such as
to give notice to the person or
legally authorized authority
against whom redress is sought
and afford to him or it an
opportunity of putting his side
of the case. For, where there
is an actionable right there
must be a remedy for vindicating
that right.”
The spirit of procedural
flexibility in constitutional
matters, which is embodied in
this approach, is given emphatic
re-affirmation in the recent
unanimous decision of the
Supreme Court in Luke Mensah
v Attorney-General,
Writ No J1/1/2004, 5 March 2004
reported in [2003-2004] SCGLR
122, where in spite of
procedural flaws identified by
the court in the plaintiff’s
action seeking to invoke the
original jurisdiction of the
Supreme Court, the court decided
to deal with the merits of the
plaintiff’s case. Acquah CJ,
delivering the judgment of the
court, held that it was right
for the court to do this if the
subject matter falls within the
jurisdiction of the court and
the procedural errors committed
by the plaintiff are not so
fundamental as to amount to a
denial of the court’s
jurisdiction.
Similar broad
considerations should guide the
determination of the procedural
point in relation to this case.
The most critical fact of this
case, in my view, is that the
applicant and the twelve other
students were given no
opportunity to make
representations on their own
behalf before the respondent
made the decision about them,
which they challenge. This fact
is not disputed and it is well
established by the affidavit
evidence. Even if the case had
required the leading of disputed
evidence, there is no reason
why, after it had been validly
initiated by motion, the learned
trial judge could not have
ordered the parties to file
pleadings and for the case to
have proceeded to trial.
In sum, then, I would uphold grounds
(d) and (e) of the appellants’
grounds of appeal. With
particular reference to ground
(d), it is my view that the
invocation of article 33 by
originating motion on notice is
legitimate not only when a
constitutionally guaranteed
human right has been breached,
but also when it is being
breached or is likely to be
breached. I, thus, do not share
the view expressed by
Owusu-Ansah JA in the Court of
Appeal that it is a condition
precedent to the invocation of
article 33(1) that a fundamental
human right under the
Constitution has been
contravened in relation to the
aggrieved party. Accordingly, I
would also uphold ground (a) of
the appellants’ grounds of
appeal, namely,
“The Court of Appeal misapplied
article 33(1) of the 1992
Constitution when it held that
the jurisdiction of the High
Court can only be invoked under
article 33(1) when a fundamental
human right under the
Constitution has in fact
been
contravened.”
With regard to ground (e), I do not
see why, given the need for
procedural flexibility in
constitutional matters, the fact
that the remedy sought by the
appellants was a number of
declarations should make the use
of an originating motion on
notice inappropriate and flawed,
as held by the Court of Appeal
per Owusu-Ansah JA.
Article 23 of the 1992
Constitution and judicial review
of administrative action
Article 23 of the 1992
Constitution provides as
follows:
“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.”
This provision clearly lays a
duty on “administrative bodies”
and “administrative officials”
and the first issue is whether
the respondent is to be regarded
as an administrative body and
its officials as administrative
officials. These terms are not
defined and therefore need to be
interpreted by this court.
It appears to me that the purpose of
article 23 is to provide a
constitutional foundation for
administrative law in Ghana and
to entrench entitlement to
administrative justice as a
fundamental human right in
Ghana. Under the English Common
Law, from which the Ghanaian
common law has borrowed most, an
important part of administrative
law is the judicial control of
administrative action. This is
because administrative power is
quintessentially derived power.
It is the power of public
officials derived from the
Constitution or from statutes.
The common law
courts have, therefore, seen it
as their role to ensure that
these public officials, and the
bodies to which they belong,
keep within their authority or
jurisdiction. Thus,
historically, the doctrine of
ultra vires was the
rationale for judicial control
of administrative action. This
context has to be borne in mind
during the search for the
meaning of “administrative
bodies” and “administrative
officials.”
The opening paragraph of De Smith,
Woolf & Jowell’s Principles
of Judicial Review (1999)
provides a clue as to the
meaning of these terms. It is
in the following terms:
“This book is concerned with judicial review of the acts,
decisions, determinations,
orders and omissions of
individuals and bodies
performing public functions. In
all developed legal systems
there has been recognition of a
fundamental requirement for
principles to govern the
exercise by public authorities
of their powers. These
principles provide a basic
protection for individuals and
prevent those exercising public
functions from abusing their
powers to the disadvantage of
the public. During the last
quarter of the twentieth
century, the circumstances in
which the courts have been
prepared to intervene to provide
relief for unlawful
administrative action have
expanded in spectacular fashion.
Coherent principles have
steadily evolved in a number of
areas of administrative law and
disfiguring archaisms have been
removed.”
To my mind, therefore,
“administrative bodies” and
“administration officials”
should be interpreted as
references to bodies and
individuals, respectively, which
or who exercise public functions
which affect individuals.
These individuals are entitled
to protection from the courts in
their interaction with such
public bodies or their
employees.
The following quotation from
the appellants’ statement of
case is quite apposite in this
connection:
“In a modern administrative state, such as ours, the citizenry is
in constant interaction with the
administrative agencies of the
state. Thus, the bulk of human
rights abuses occur between the
citizenry and the state, acting
through its administrative
agencies. It is in this regard
that administrative institutions
must be regulated in order to
ensure that they do not trample
on the rights of the citizenry
at will. This is the purpose of
article 23 of the 1992
Constitution. By including
article 23 in the directly
enforceable provisions of
Chapter 5 of the 1992
Constitution, the framers
ensured that the broad range of
administrative injustices that
are capable of infringing on the
rights of the citizenry are
remediable through the mechanism
under article 33(1) of the
Constitution.”
Does the respondent come within
the ambit of the concept of
administrative body sketched out
in the preceding discussion?
Admittedly, the respondent is an
inter-governmental
organisation
established by an international
Convention. The Convention is
attached as a schedule to the
West African Examinations
Council Law, 1991 (PNDCL 255).
In addition to the respondent
being established by an
international legal instrument,
however, the constitutive
Convention itself requires (in
article 14) that the Convention
should be incorporated into the
local laws of the respective
countries. PNDCL 255 fulfils
this incorporation obligation.
By that incorporation, the
Convention becomes a part of the
municipal law of Ghana and
therefore subject to
the peremptory
norms of the 1992 Constitution.
Thus, by PNDCL 255, the
inter-governmental body
established by Convention gains
a Ghanaian legal status and
becomes directly subject to
Ghanaian municipal law,
including its Constitution, as
pointed out. Depending on the
functions it carries out on the
Ghanaian
scene,
therefore, the respondent is
capable of being regarded as an
administrative body within the
meaning of article 23 of the
Constitution. The fact that the
respondent has international
legal personality is not
necessarily an impediment to its
being considered an
administrative body under
article 23. What is important
is its function in Ghana and its
impact on the public.
For the purpose of this case, its
relevant function is that of
conducting the Senior Secondary
School Certificate Examination.
It is a function that touches
directly on the lives and
aspirations of thousands of
young people in Ghana. This is
no distant public international
law function
carried out by an international
legal person. In view of the
exercise of this function by the
respondent, I have no hesitation
in considering it to be an
administrative body, within the
meaning of article 23 of the
Constitution.
We next need to consider what duties
are imposed on the respondent in
consequence of my holding it to
be subject to article 23 of the
Constitution. First of all, it
needs to be made abundantly
clear, in view of the
ambivalence expressed in the
Court of Appeal as to whether
any constitutionally guaranteed
human rights of the appellants
had been breached, that article
23 imposes binding obligations
on administrative bodies and
officials. In this connection,
it should be noted that article
12 provides that all the
fundamental human rights and
freedoms enshrined in chapter
five of the 1992 Constitution
are to be respected and upheld
by the executive, legislature
and Judiciary and all other
organs of government and its
agencies and all natural and
legal persons in Ghana. The
Article places a duty on the
courts to enforce these rights
and freedoms. They are thus
justiciable. Since article 23
comes within chapter five, it
embodies a justiciable
fundamental human right. What
needs analysis is the extent of
the rights and duties provided
for in the article. I shall, in
this regard, consider two
issues: first, the duty to act
fairly and
reasonably; and second, the duty
to comply with the requirements
imposed by law. I proceed to do
so seriatim.
The duty to act fairly and
reasonably
The first element of the article
23 duty imposed on
administrative bodies and
officials is that of acting
fairly and reasonably. What
does this mean? In addition to
whatever meaning may be derived
from subjecting these words to
the canons of constitutional
interpretation, there is also
the common law understanding of
acting “fairly” in matters of
administrative law. Since the
1992 Constitution was affixed
unto an underlying common law
system, which was saved by
article 11 of the Constitution,
it is necessary to examine the
common law on this issue.
A duty on administrative bodies to act
fairly exists at common law. It
is a duty that the English
courts have evolved from the
doctrine, commonly referred to
earlier as the principles of
natural justice, epitomised in
the twin latin maxims of :
nemo judex causae suae and
audi alteram partem. On
this evolution, De Smith, Woolf
and Jowell’s Principles of
Judicial Review (supra)
comment (at pp 272-273) that:
“The principal value of the introduction of the duty to act fairly
into the court’s vocabulary has
been to assist them to extend
the benefit of basic procedural
protections to situations where
it would be both confusing to
characterise as judicial, or
even quasi-judicial, the
decision-makers’ functions, and
inappropriate to insist on a
procedure analogous to a trial.”
In the modern English common
law, the term “natural justice”
is being increasingly replaced
by the duty to act fairly. The
current position of the English
common law on this issue is
summarised thus by De Smith,
Woolf and Jowell (supra at pp
275-276):
“The entitlement to fair
procedures no longer depends
upon the adjudicative analogy,
nor whether the authority is
required or empowered to decide
matters analogous to lites
inter partes. The law has
moved on; not to the state where
the entitlement to procedural
protection can be extracted with
certainty from a computer, but
to where the courts are able to
insist upon some degree of
participation in reaching most
official decisions by those whom
the decisions will affect in
widely different situations,
subject to well-established
exceptions.”
This generalisation of the
English common law position
suggests that the English
jurisdiction is likely to have a
rich seam of case-law which this
court can mine, so to speak, to
operationalise article 23. Of
course, the article, being a
Ghanaian constitutional
provision, has to be given
purposive meaning within the
context of the Ghanaian
Constitution and the Ghanaian
legal order. Accordingly, any
resort to foreign case-law has
to be had with circumspection
and any solutions adopted must
be customised to fit the
Ghanaian situation. In Ghana,
the natural justice doctrine was
applied by Ofori-Boateng JA (as
he then was) in L’Air Liquide
v Anin [1991]1 GLR
460. The learned judge
expressed it thus at 463:
“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: Firstly, that a man may
not be condemned unheard; and
secondly, that a man must not be
a judge of his own cause.”
My comment on this formulation
would be that it is unnecessary
to seek to characterise a
decision as quasi-judicial in
order to enable the application
of the doctrine of natural
justice to it. In its modern
form, natural justice principles
are equally applicable to
certain purely
administrative decisions.
My interpretation of fairness within
the context of article 23 would
be that, in general, unless the
circumstances make it
inappropriate, for instance for
reasons of practicality or of
public interest or for any other
cogently valid reason, it
includes a principle that
individuals affected by
administrative decisions should
be afforded an opportunity to
“participate” in the decision in
the sense of being given a
chance to make representations
on their own behalf of some
kind, oral or written, to the
decision-maker. Individuals
affected or to be affected by
administrative decisions
obviously have an interest in
influencing the outcome of the
decision-making process. In
general, it is fair that they
should be afforded an
opportunity to influence the
decision. Given the variety,
and the width of the continuum,
of contexts in which
administrative decisions are
taken, however, there is need
for flexibility in the ways that
are to be worked out to enable
individuals to influence
decisions about themselves.
Thus, in relation to a
particular decision, the
circumstances may indicate that
there is no need for a formal
hearing, in the sense of an
adjudication. A consultation,
for instance, may be adequate.
This flexibility, regarding how
the presentation of the views of
those affected by administrative
decisions may be made, is
expressed thus by Lord Bridge in
Lloyd v McMahon
[1987] AC 625 at 702:
"…the so-called rules of natural
justice are not engraved on
tablets of stone. To use the
phrase which better expresses
the underlying concept, what the
requirements of fairness demand
when any body, domestic,
administrative or judicial, has
to make a decision which will
affect the rights of individuals
depends on the character of the
decision-making body, the kind
of decision it has to make and
the statutory or other framework
in which it operates."
Accordingly, a fair “hearing”
does not necessarily connote an
opportunity for the person
affected to be heard orally.
Written representations on his
or her behalf may be sufficient,
given the context. Also, the
nature of the opportunity to be
offered to an affected person to
be heard may be influenced by
public interest considerations
and the requirements of
efficient administration.
Article 12(2) of the Constitution
contains, inter alia, a public
interest proviso to the
enforcement of the fundamental
rights and freedoms of the
individual enshrined in chapter
five of the Constitution.
Article 12(2) is in the
following terms:
"Every person in Ghana,
whatever his race, place of
origin, political opinion,
colour, religion, creed or
gender shall be entitled to the
fundamental human rights and
freedoms of the individual
contained in this Chapter but
subject to respect for the
rights and freedoms of others
and for the public interest."
(The emphasis is mine).
My understanding of this
provision is that an
individual’s entitlement to a
fundamental human right is to be
interpreted in such a way as not
to impair the public interest.
In relation to article 23, this
principle connotes that, in
determining procedural fairness,
what is required to protect the
public interest is also taken
into account. Some degree of
balancing between the
requirements of the public
interest and the needs of
administrative justice is called
for. Clearly, there is a public
interest in the maintenance of
an efficient examination system
for schools that detects and
punishes cheating in exams.
This public interest has to be
taken into account, alongside
the standard of administrative
justice prescribed in article
23, in determining whether the
respondent is in breach of its
duty under article 23.
Finally, in relation to the duty to
act “fairly and reasonably”, it
is significant that “reasonably”
is added to the formulation. To
my mind, this denotes that this
constitutional obligation is
distinct from the underlying
common law duty that I have
outlined above. In other words,
article 23 is not to be
interpreted as a codification of
the natural justice doctrine at
common law, as it existed at the
time of the promulgation of the
Constitution, or at any other
time. The case-law produced by
the doctrine is useful in giving
content and specificity to the
constitutional provision, but
the doctrine is not to be taken
as being coterminous with the
constitutional provision. The
South African courts have
arrived at a similar conclusion,
although, of course, the
constitutional language they
were construing was different.
(See Jenkins v
Government of the Republic of
South Africa 1996 (8)
Butterworths Constitutional Law
Reports 1059 (TK); 1996
SACLR LEXIS 21). This implies
that in determining the content
of the standard of fairness and
reasonableness under article 23,
the Ghanaian courts need not
follow the course of the natural
justice doctrine as it evolves
in common law jurisdictions.
Other than the flexibility that
the additional word “reasonably”
buttresses, I do not think that
“reasonably” adds much more to
the substantive meaning of
article 23. In my view, acting
“fairly” will usually entail
acting
“reasonably.”
The learned trial judge, Omari-Sasu
JA, sitting as an additional
High Court Judge, was
emphatically clear on the
respondent’s duty to act fairly
and reasonably. He said:
“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
1992 Constitution. 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.”
I agree with the learned trial judge
that the respondent before this
court breached the duty to act
fairly and reasonably and that
therefore its decision should be
set aside. His remarks,
however, suggest that he had in
mind a formal hearing, with
cross-examination, before the
respondent could take a lawful
decision on the appellants’
case. I would require less, in
the light of practicality and
the public interest. I think
that the appellants should have
been given an opportunity to
make written representations in
response to the allegation
levelled against them, before
the respondent took the decision
to sanction the appellants. In
view of the large number of
candidates involved in schools
examinations, it is probably
unwise to over-judicialise (sic)
the due process procedures for
policing wrong-doing in relation
to examinations, so long as
the
procedures in place lead to the
respondent acting fairly and
reasonably.
The duty to comply with the
requirements imposed by law
The next element of the article
23 duty which we need to examine
is the duty to comply with the
requirements imposed on
administrative bodies and
officials by law. I understand
this element to be additional to
what has been discussed above.
In other words, administrative
bodies and officials, in
addition to complying with the
rules on procedural fairness
embodied in audi alteram partem
and its derivatives and
independent constitutional
obligations (if any) distilled
by Ghanaian courts from the duty
to “act fairly and reasonably”,
must comply with all other
applicable rules of law. Such
other relevant applicable rules
of law will often be in the
constitutive enactment relating
to the administrative body
concerned.
In the present case, the
main source to examine for these
applicable rules of law is the
West African Examinations
Council Law, 1991 (PNDCL 255),
and instruments issued pursuant
to it. The effect of this
element of Article 23 is to
convert breaches of such rules
into breaches of
a fundamental
human right actionable under
article 33(1).
In the respondent’s statement of case,
it sought to challenge the view
of the learned trial judge that
the respondent was in breach of
article 23, by arguing that:
“(22) In so holding the learned trial
judge never adverted to the
relevant legislation on the
point, namely, sections 3(2) and
10 of the West African
Examinations Council Law, 1991
(PNDCL 255).
(23) Section 3(2) of PNDCL 255
provides that where a candidate
is found “before or during an
examination” to have in his
possession an examination paper
or had foreknowledge of the
paper or uses an examination
paper such candidate may be
disqualified from taking the
examination and his results
shall be cancelled.
Additionally the council may
prohibit him from taking any of
its examinations for two years.
(24)My Lords, can it be said
that the above provision imposes
a duty on the council to conduct
a trial? The answer to this
question can only be negative
otherwise the provision would be
impossible of performance. It
is preposterous to argue, for
example, that the council cannot
act instanta where a candidate
is caught red handed with a
paper in the examination hall.
In this regard, the expression
“during an examination” extends
from the time when the
invigilator announces the
commencement of the examinations
to the declaration of the
results. Thus the council may
withhold the results where in
the course of marking it
discovers that the answers in
the scripts of a particular
school are so identical as to
lead to the conclusion that the
candidates must have cheated.
(25)My Lords, the respondent
submits that the council has the
right to withhold the results of
a candidate over whose script it
entertains genuine suspicion.
No rules of natural justice come
into play in such situation.
(26)Section 10 similarly
provides that where in any
investigation or trial a
candidate is found to have had
access to an examination paper
or to have foreknowledge of an
examination paper or cheated in
the examination, a report shall
be made to the
council which may take action
including the cancellation of
the result. The learned judges
of the Court of Appeal held
rightly that the provision does
not impose a judicial inquiry on
the council.”
These legal arguments
need to be evaluated. They are
in the main based on PNDCL 255,
whose requirements the
respondent is obliged to comply
with, on pain of being in breach
of article 23. The section 3(2)
to which the respondent makes
reference is in the following
terms:
“3(2) Where a candidate before
or during an examination is
found to have acted or is found
acting in breach of the
provisions of subsection (1) –
(a) he shall be
disqualified from taking the
examination and the entire
results of the candidate in the
examination shall be cancelled;
and
(b) the council may
prohibit the candidate from
taking any examination conducted
by or on behalf of the council
for a period of not less than
two years immediately following
the breach.”
Clearly the sanctions provided
for in section 3(2) are
predicated on a breach of the
provisions of section 3(1),
which are to the following
effect:
“Any person who, before or
during an examination conducted
by the Council, without lawful
authority, the proof of which
shall be on him –
(a) has in his
possession any examination
paper;
(b) is found to have had
foreknowledge of the contents of
any examination paper; or
(c) makes use of any
examination paper or the
contents of it in any manner
whatsoever,
commits an offence and shall be
liable on summary conviction to
a fine of not less than ¢20,000
and not exceeding ¢500,000 or
imprisonment for a term of not
more that two years or to both.”
Section 3(1) thus creates a criminal
offence. Accordingly, in
accordance with the normal
principles of criminal law,
before the sanctions prescribed
in section 3(2) can be applied
to any examination candidate,
the offence created under
section 3(1) must have been
proved against him or her beyond
any reasonable doubt. In
response to the question posed
in paragraph (24) of the
respondent’s statement of case,
it is clear that to impose the
sanctions prescribed in section
3(1) of the Law, a criminal
trial has to take place. Of
course, it is not the respondent
which has to conduct this, but
the courts, on initiation by the
normal law enforcement agencies
of the land. Furthermore, I do
not accept the respondent’s
contention that “during an
examination” extends from when
the invigilator announces the
commencement of the exams until
the declaration
of the results. During the
examination should bear its
ordinary meaning of the duration
of the actual written or oral
examination. If in the course of
marking the scripts of a
particular school, the
respondent discovers suspicious
circumstances, but it has no
extrinsic evidence sufficient to
found a prosecution under
section 3(1), the course of
action available to it is
pursuant to section 10 of the
Law. Under section 10 of PNDCL
255, the respondent may take
administrative action in
response to a candidate having
been found to have had access to
an examination paper; or to have
had foreknowledge of the
contents of an examination
paper; or have cheated in any
way during an examination.
Section 10 is in the following
terms:
“(10) Where in any investigation
or trial a candidate is found to
have had access to an
examination paper or to have had
foreknowledge of the contents of
an examination paper or cheated
in any way during an
examination, a report shall be
made to the Council which shall
take such action, including the
cancellation of examination
results and any certificate
issued in respect thereof to the
candidate.”
The administrative action of the
respondent permitted by this
provision is, however, subject
to the duty to act fairly and
reasonably prescribed under
article 23. As I have already
indicated, the respondent’s fair
and reasonable administrative
action need not take the form of
a “trial” conducted
by it. It is sufficient if the
candidates concerned are given
an opportunity to be heard
through their written
representations. This implies
that I do not accept the
contention in paragraph (25) of
the respondent’s statement of
case to the effect that no rules
of natural justice
come into play when the
respondent withholds a
candidate’s results on grounds
of genuine suspicion. The
candidate must definitely have a
right to be heard before being
condemned.
Finally, in connection with the
provisions of PNDCL 255, the
learned trial judge found that
the regulations which, it was
anticipated, would be issued
under the statute had not been
and that the specific rule cited
by the respondent to justify its
action (rule 5b) did not exist.
These are all factors which
weaken the legal basis for the
respondent’s administrative
action against the appellants.
Although the examination
regulations issued by the
respondent probably have
contractual effect between it
and the candidates who submit to
its examinations, it is still
important for it to identify the
right provision under which it
purports to take action against
examination candidates.
Conclusion on issues arising
from the grounds of appeal
I have not found it necessary to
deal with each and every ground
of appeal filed by the
appellants. From the foregoing,
however, it is clear that I have
found merit in their appeal. In
the result, I would allow the
appeal of the appellants and
restore the judgment of the
learned trial judge, Omari-Sasu
JA, declaring the decision of
the respondent concerning the
appellants to be incurably bad,
void and of no consequence. The
decision is accordingly set
aside.
Availability of damages as
a remedy for any loss suffered
by appellants
To compensate the appellant in
this case for the loss caused
him as a result of the denial to
him of a fair procedure, this
court considered the
desirability of awarding him
(and the other students whom he
represented) damages for the
loss, in the interest of
justice. Since this is
uncharted territory in this
jurisdiction, the court
determined, after announcing its
decision to allow this appeal on
17 June 2004, to invite counsel
to make written submissions on
whether in the circumstances of
this case, it would be
appropriate to award damages
against the
defendants and, if so, what
factors should be taken into
account in determining such
damages. After considering
these submissions and reflecting
independently on the issues
involved, I have come to the
conclusion set out in this final
part of my judgment.
To award damages to the appellant on
the facts of this case would be
novel and this court needs to
consider carefully the
desirability and the
justification for such
development of the law and the
repercussions of such
development for the fabric of
our general legal system and our
public administration. Under
English law, such damages would
not be available. The following
terse overview of the position
under English law is provided by
De Smith, Woolf and Jowell’s
Principles of Judicial Review
(1999) at page 609:
“A fundamental tenet of English
law is that the failure of a
public body to act in accordance
with public law principles of
itself gives no entitlement
at common law to compensation
for any loss suffered. Nor does
the careless performance of a
statutory duty in itself give
rise to any cause of action in
the absence of a common law duty
of care in negligence or a right
of action for breach of
statutory duty. To recover
damages, a recognised cause of
action in tort must be pleaded
and proved. In short, while in
some cases it may be a necessary
condition, it is never a
sufficient one for the award of
damages that the act or omission
complained of be ‘unlawful’ in a
public law sense.”
The English common law has thus
refused to develop any special
law of torts applicable to only
public bodies and officials.
Indeed, Professor Dicey in his
famous doctrine of the rule of
law propounded in the nineteenth
century identified this aspect
of the English common law as one
of the elements of his
doctrine. He glorified in the
fact under English law “every
man, whatever be his rank or
condition, is subject to the
ordinary law of the realm and
amenable to the jurisdiction of
the ordinary tribunals.” (See
Dicey, Introduction to the
Law of the Constitution (10th ed
1959) page 193. Of course, it
does not follow that this court
should follow this English
orthodoxy. For even in England,
even though the courts have
clung to this orthodoxy, there
has been pressure for reform.
For instance, in 1988, a Report
of the Committee of the
Justice/All Souls Review of
Administrative Law in the United
Kingdom entitled
Administrative Justice – Some
Necessary Reforms (Oxford,
1988) recommended in paragraph
11.83 that:
“compensation shall be recoverable by any person who sustains loss
as a result of … (a) any act,
decision, determination,
instrument or order of a public
body which materially affects
him and which is for any reason
wrongful or contrary to law; or
(b) unreasonable or excessive
delay on the part of any public
body in taking any action,
taking any decision or
determination, making any order
or carrying out any duty.”
Given the written Ghanaian
Constitution of 1992 there may
be opportunities for reform
here, which are not available in
England.
According to the English orthodoxy,
the failure of a public body,
contrary to the principles of
fairness and natural justice, to
give a person a proper hearing
before making a decision does
not, of itself, give rise to a
cause of action for damages.
(See for instance, Dunlop
v Woollahra Municipal Council
[1982] AC 158.) However,
the interesting case of
Maharaj v Attorney-General of
Trinidad and Tobago [1979]
AC 385, PC illustrates the
impact of a written Constitution
on this English orthodoxy.
In Maharaj’s case, the
appellant before the Privy
Council was a barrister engaged
in a case in the High Court in
Trinidad and Tobago. He was
committed to prison for seven
days on the order of the judge.
He applied by motion to the High
Court under section 6 of the
Trinidad and Tobago Constitution
claiming redress for the
contravention of his right
protected under the Constitution
not to be deprived of his
liberty save by due process of
law. He appealed to the Court
of Appeal, when the High Court
dismissed his motion. He
further appealed to the Privy
Council when the Court of Appeal
upheld the High Court’s
dismissal.
The Privy Council allowed the appeal,
holding that section 6(1) of the
Constitution of Trinidad and
Tobago was intended to create a
new remedy for the contravention
of constitutional rights without
reference to existing remedies;
that the word “redress” in its
context bore its ordinary
meaning of reparation or
compensation, including
monetary
compensation; and that although
the claim was not a claim in
private law for damages for
tort, but was a claim in public
law for compensation, that
compensation could be measured
in terms of the deprivation of
liberty, including consequential
loss of earnings and recompense
for the
inconvenience and distress
suffered during detention.
This decision has
persuasive force in the Ghanaian
jurisdiction because of the
similarity in the wording of
section 6(1) of the Trinidad and
Tobago Constitution and Article
33 (1) of the Ghanaian
Constitution. Section 6(1)
provided as follows:
“For the removal of doubts it is hereby declared that if any person
alleges that any of the
provisions of the foregoing
sections or section of the
Constitution has been, is being,
or is likely to be contravened
in relation to him, then,
without prejudice to any other
action with respect to the same
matter which is lawfully
available, that person may apply
to the High Court for redress.”
Article 33(1) is in the
following terms:
“Where a person alleges that a provision of this Constitution on
the fundamental human rights and
freedoms has been, or is being
or is likely to be contravened
in relation to him, then,
without prejudice to any other
action that is lawfully
available, that person may apply
to the High Court for redress.”
The judgment of Lord Diplock, who delivered the majority judgment
of the Privy Council, is of
interest in respect of his view
on whether on the above
language, a claim for damages
was available for a breach of a
plaintiff’s constitutional
rights. This is what he said on
that issue (at pages 398-399 of
the Report):
“The right to 'apply to the High Court for redress' conferred by
section 6(1) is expressed to be
'without prejudice to any other
action with respect to the same
matter which is lawfully
available.' The clear intention
is to create a new remedy
whether there was already some
other existing remedy or not.
Speaking of the corresponding
provision of the Constitution of
Guyana, which is in
substantially identical terms,
the Judicial Committee said in
Jaundoo v
Attorney-General of Guyana
[1971] AC 972, 982:
“To ‘apply to the High Court for redress’ was not a term of art at
the time the Constitution was
made. It was an expression
which was first used in the
Constitution of 1961 and was not
descriptive of any procedure
which then existed under Rules
of Court for enforcing any legal
right. It was a newly created
right of access to the High
Court to invoke a jurisdiction
which was itself newly created…”
As has been already mentioned, in his originating motion in the
High Court of April 17, 1975,
the appellant did allege that
the provisions of section 1(a)
had been and were being
contravened in relation to him.
He was thus entitled under
section 6(1) to apply to the
High Court for redress, without
prejudice to his right also to
pursue his remedy of appealing
to the Judicial Committee
against the judge’s order.
What then was the nature of the “redress” to which the
appellant was entitled? Not
being a term of legal art it
must be understood as bearing
its ordinary meaning, which in
the Shorter Oxford
English Dictionary, (3rd ed)
1944 is given as: “Reparation
of, satisfaction or compensation
for, a wrong sustained or the
loss resulting from this.” At
the time of the original notice
of motion the appellant was
still in prison. His right not
to be deprived of his liberty
except by due process of law was
still being contravened; but at
the time the case reached the
Court of Appeal he had long ago
served his seven days and had
been released. The
contravention was in the past;
the only practicable form of
redress was monetary
compensation. It was argued on
behalf of the Attorney-General
that section 6(2) does not
permit of an order for monetary
compensation despite the fact
that this kind of redress was
ordered in Jaundoo v
Attorney-General of Guyana.
Reliance was placed upon the
reference in the subsection to
“enforcing, or securing the
enforcement of, any of the
provisions of the foregoing
sections” as the purpose for
which orders etc., could be
made. An order for payment of
compensation, it was submitted,
did not amount to the
enforcement of the rights
that had been contravened. In
their Lordships’ view an order
for payment of compensation when
a right protected under section
1 “has been” contravened is
clearly a form of “redress”
which a person is entitled to
claim under section 6(1) and may
well be the only practicable
form of redress; as by now it is
in the instant case.”
This is an eminently
sensible construction to put on
the right to “apply to the High
Court for redress” which is to
be found in both section 6(1) of
the Trinidad and Tobago
Constitution and article 33(1)
of the Ghanaian Constitution.
It is a construction whose
persuasive authority I am happy
to follow. Accordingly, I hold,
encouraged by this persuasive
authority, that in Ghana also
the High Court, in giving
“redress” pursuant to article
33(1), has power to award
damages or compensation for the
infringement of the fundamental
human rights and freedoms
contained in chapter five of the
1992 Constitution.
The respondent, however,
in his statement of case on
award of damages, submitted in
response to this court’s
invitation, urged a contrary
viewpoint. He argued, first,
that damages were not available
to the appellant because he had
never claimed that relief. This
argument is easily disposed of.
In my view, a claim for redress
under article 33 encompasses, in
law, a claim for damages as a
possible component of the
redress. It is up to the courts
to determine where such relief
is appropriate.
Secondly, the respondent
maintained that the introduction
of the issue of damages into the
case was a great surprise to it
and that injustice would be
caused to both sides if the
issue was pressed further. I do
not see how injustice would be
caused to the appellant by an
award of damages to him. With
regard to the respondent
council, it may well have been
taken by surprise. But that was
the very reason why the court
gave it an opportunity to make
further submissions on the
issue. The requirements of
fairness have thus been complied
with. The fact that the
respondent did not appreciate
all the nuances in meaning of
“redress” within the context of
article 33(1) cannot be held up
as a bar to this court’s right
and responsibility to interpret
the Constitution. Given the
extra opportunity that the
respondent was given to marshal
additional submissions on
whether damages should be
available on the facts of this
case, I am satisfied that no
injustice will be caused to him
by the award of damages.
Thirdly, the respondent asserted that “there is no precedent in our
municipality for a grant of
damages in the exercise of
supervisory jurisdiction, and
this is because damages are not
a public law remedy.” It is
inaccurate to describe the
jurisdiction which this court is
exercising in this case as
supervisory. The court is
exercising an appellate
jurisdiction over a suit in
which the High Court has applied
the provisions of the
Constitution in order to protect
the appellant’s constitutional
rights. Under Ghanaian
constitutional law, the
exposition earlier in this
judgment has demonstrated that
damages have a role to play as a
public law remedy in Ghana.
The next inquiry is to determine the
circumstances in which the
undoubted power of the High
Court to award damages may be
exercised in relation to article
23 of the Ghanaian
Constitution. There are policy
reasons why there should be
restraint in the exercise of the
power to award damages in that
context. If damages were to be
awarded each time that the High
Court found administrative
action unlawful and exercised
judicial review over it, this
would raise the cost of
government and public
administration. This is an
issue of policy that needs to be
borne in mind. The quashing of
a decision or the prohibition of
a public official from a
particular course of action may
be sufficient to meet the ends
of justice, without the need to
award damages. In making
decisions in the context of the
facts of particular cases, the
courts will need to remember
that whilst damages may serve
the purpose of compensating the
victims of unlawful
administrative action, they may
not necessarily serve to deter
such unlawful action, since the
damages will be paid from public
coffers and not from the
personal funds of the officials
concerned.
In any case, in the Maharaj
case the facts lent themselves
to an easy quantification of
damages. A public law cause of
action in relation to the
deprivation of liberty is quite
analogous to the tort of false
imprisonment and therefore the
established methods of
quantifying damages for that
tort can be borrowed. It is
much more difficult to quantify
the damage caused by unlawful
administrative conduct where
this consists, as in the instant
case, of a failure to apply a
fair procedure. Should the
difficulty in assessing damages
in such circumstances affect
entitlement to damages on such
facts? Or, rather, should there
be a disconnection between the
difficulties in determining the
measure of damages and the
establishment of the principle
of liability to damages under
the circumstances in
contemplation? These are
difficult questions.
On the facts of the present case, the
critical issues are whether just
redress is achievable through
the quashing alone of the
offending decision of the
respondent and whether in the
interest of justice some
compensation ought to be paid to
the appellant and the other
students. If this court
determines that it is desirable
and appropriate in the interest
of justice to give monetary
compensation to the wronged
students, the difficulty of
quantification should not be
allowed to be an impediment to
the doing of justice.
In my opinion, just redress, on the
facts of this case, is
achievable only if, in addition
to quashing the offending
decision, compensation is paid
to the victims of the procedural
injustice. This is because for
more than three years the
appellant and his fellow
students have endured the loss
of their constitutional right
under article 23. This loss of
their right has already happened
and it is irretrievable. As Lord
Diplock said in the Maharaj
case [1982] AC 385 at 398. “The
contravention was in the past;
the only practicable form of
redress was monetary
compensation.” It may be that
the award of damages may not be
necessary where an offending
decision is quickly set aside.
But where, as here, an aggrieved
person has had to bear the
consequences of an offending
decision for a considerable
period, the award of damages,
pursuant to the High Court’s
power under article 33(1), is
justifiable.
Assessment of damages arising
from failure to apply fair
procedure in breach of article
23 of the 1992 Constitution
If this court decides to award
damages for an infringement of
any of the fundamental human
rights and freedoms contained in
chapter 5 of the Constitution,
it would in effect be giving
redress for a constitutional
wrong or a public law tort.
This is uncharted territory for
the common law, as already
noted. Accordingly, any
principles from the common law
that can be pressed into service
can only be by analogy. To
award damages under the private
law of tort, judges are guided
by principles relating to the
measure of damages. Some
analogous principles need to
be fashioned
for the public law of tort
arising from the Ghanaian
Constitution.
The basic principle that the common
law courts have applied for the
measure of damages in the
private law of tort (and indeed
of contract) is that of
restitutio in integrum.
Lord Scarman expressed this
principle thus in Lim v
Camden Health Authority
[1980] AC 174 at 187:
“…the principle of the law is that compensation should as nearly as
possible put the party who has
suffered in the same position as
he would have been in if he had
not sustained the wrong.”
This measure of damage is easier
to apply in the traditional
private law of torts area, where
a plaintiff’s loss may consist
of personal injury, damage to
property, financial loss etc.
It is much more difficult to
apply where a plaintiff’s loss
is that of a constitutional
right. What is the level
of monetary
payment that can return him or
her to the status quo ante.
A similar difficulty has been
found in trying to apply
restitutio in integrum to
the non-pecuniary elements of
personal injury compensation,
such as pain and suffering. In
such situations, what the courts
may end up with is not true
compensation but what Romer LJ
described in Rushton v
National Coal Board [1953]
495 at 502 as “notional or
theoretical compensation to take
the place of that which is not
possible, namely, actual
compensation.”
Similarly, how can there be actual
compensation for the appellant’s
loss of his right to a fair
hearing, on the facts of this
case? What payment can restore
him to the situation he was in
before the respondents took
their decision affecting him
without hearing him? The
difficulty of this question is
compounded by the fact that it
is to be answered without
prejudice to the substantive
rights of the parties to this
dispute. On the facts of this
case, I am not in a position to
determine whether the applicant
and his fellow students did or
did not cheat. All that this
court can determine is that the
procedure the respondent
employed to arrive at its
decision is flawed and therefore
the decision is void. Assessing
the monetary compensation to
restore the applicant to his
procedural status quo ante
will, to my mind, inevitably
involve a “notional or
theoretical” exercise. It is
nevertheless worth carrying out
in order to give substance to
his constitutional right. In
undertaking this notional
exercise of compensation, the
courts will need to exercise
their judicial discretion
judiciously, taking into account
the totality of the
circumstances of each case.
They would be well advised to
restrict themselves to modest
awards because of the inevitable
subjectivity of the exercise.
In effect, the damages that are
awarded for breach of a
constitutional right under
chapter five of the Constitution
in cases where no actual damage
is proved are damages which are
“at large” in the sense in which
Lord Hailsham LC used this
expression in Cassell & Co
Ltd v Broome [1972]
AC 1027 at 1073, HL where he
said:
“The expression ‘at
large’ should be used in general
to cover all cases where awards
of damages may include elements
for loss of reputation, injured
feelings, bad or good conduct by
either party, or punishment, and
where in consequence no precise
limit can be set in extent. It
would be convenient if, as the
appellants’ counsel did at the
hearing, it could be extended to
include damages for pain and
suffering or loss of amenity.
Lord Devlin uses the term in
this sense in Rookes v
Barnard [1964] AC 1129,1221,
when he defines the phrase as
meaning all cases where “the
award is not limited to the
pecuniary loss that can be
specifically proved.” But I
suspect that he was there guilty
of a neologism. If I am wrong,
it is a convenient use and
should be repeated.”
In the Ghanaian context, use of
the phrase may be convenient
shorthand for describing the
nature of the damages payable
for breach of a constitutional
right, where no actual proximate
pecuniary loss is proved. I
think that the quantum of such
damages is in the discretion of
the judge and that there are no
truly objective standards to
guide him or her except the
judge’s assessment of what
justice requires in the context
of the facts of each particular
case. To recapitulate, I would
say that, in respect of article
23 of the Constitution, if no
evidence of actual
proximate
consequential loss has been led,
damages are at large and the
court may award such
compensation as it deems fit and
just in order to restore the
victim of the procedural
injustice to the position he was
in before the breach of his or
her constitutional right, to the
extent that money can do this.
However, for reasons of public
policy, I recommend that the
courts should limit themselves
to awarding only moderate
amounts.
Counsel for the appellant,
in his supplementary
submissions, prepared in
response to this court’s
invitation to identify the
factors to be taken into account
in the possible award of damages
against the respondent, outlines
three factors that should be
taken into account in
determining the level of general
damages that should be awarded
against the respondent. (The
appellant’s counsel defines
general damages as “such damages
as the law will presume to have
resulted from
the
defendant’s actionable wrong.”)
The first factor which he points out
is injury to reputation. He
claims that irreparable and
ruinous injury has been done to
the reputations of the
appellants by the actions of the
respondent. I do not, however,
accept that injury to reputation
is a relevant factor in
determining the measure of
damages for breach of article 23
of the Constitution. The
appellant has the independent
cause of action (preserved by
the express language of article
33(1)) to sue for the private
law tort of defamation, if he is
so inclined. This private law
remedy is independent of the
public law remedy of damages
awarded to redress the breach of
a constitutional duty.
The second factor that he identifies
is: “loss of time and
educational and related
opportunities.” In his words
(see paragraph (11) of his
supplementary submissions):
“Further, because of the virtual
monopoly the respondent has in
the conduct of Senior Secondary
School Certificate Examinations
(SSSCE), the unlawful ban on the
appellants from sitting any
examinations conducted by the
respondent literally halted any
educational progression the
appellants could have made
during the period of the ban.
They can never regain the
invaluable educational time they
have lost. There has also been
loss of employment opportunities
and earnings for those of them
who could have sought employment
using their SSSCE certificates.
It must certainly have been
foreseeable and in the
reasonable contemplation of the
respondent that unlawfully and
capriciously cancelling the
results of thirteen students,
and further barring them for
three years from taking any
examinations conducted by the
respondent, will occasion grave
injury to the students. The
appellants should be compensated
for this injury.”
It seems to me legitimate to take the
injury sketched out above into
account in determining the
quantum of general damages to be
awarded against the respondent
since it can credibly be
asserted that it was proximately
caused by the respondent’s
infringement of article 23 of
the Constitution, subject to one
qualification. That
qualification is that there is
no certainty that if the
appellants and the other
students had been heard, they
would have been awarded their
SSSCE certificates. This court
should be careful not to
pronounce on the substance of
the allegation of
collusion and cheating. The
respondent may or may not have
proved the allegation, if the
proper procedure had been
adopted. This court has no way
of knowing. Accordingly, I
would exclude from consideration
any putative earnings that
counsel claims the students
would have received by using
their SSSCE certificates.
The third factor referred
to by the appellant is “social
dislocation and emotional and
mental distress.” He contends
that:
“the appellants have been socially dislocated, and have had to bear
great emotional and mental
distress. For three years they
have suffered severe and stormy
emotional and mental distress as
they protested their innocence.
The empty insistence of the
respondent council that the
appellants were guilty, when the
council could not produce an
iota of evidence against them,
compounded the emotional and
mental distress of the
appellants. The respondent
ought properly to pay for this.”
I do not agree that the
respondent should pay for this.
I do not consider the social
dislocation and emotional and
mental distress to be
sufficiently proximate
consequences of the breach of
article 23.
Apart from putting forward a case in
favour of general damages, the
appellant’s counsel also
asserted that aggravated damages
should be awarded to the
appellant, citing in support of
this contention the following
passage from Winfield and
Jolowicz on Tort (12th ed)
at page 616:
“In any case in which damages
are at large, that is, where
they cannot be precisely
calculated in money terms, the
court may take into account the
motives and conduct of the
defendant, and where these
aggravate the plaintiff’s
injury, the damages will be
correspondingly increased.
These ‘aggravated damages’ are
truly compensatory, being given
for the injury to the
plaintiff’s proper feelings of
dignity and pride.”
(The emphasis is
that of counsel).
I am not persuaded that aggravated
damages should be payable on the
facts of this case. It has to
be remembered that the damages
in issue here are not ordinary
private law damages of the kind
that the passage above has in
contemplation. This is
compensation for a public law
wrong which is not actionable at
common law. I believe that we
should tread carefully and
gingerly in this novel
territory.
Similarly, I do not think that this is
an appropriate case in which to
award exemplary/punitive
damages, as we were urged to do
by the appellant. At the
commencement of the evolution of
the new remedy that this case
has established, it would be
prudent to exercise restraint
and to allow time to provide an
opportunity for the courts to
monitor how the new remedy fits
into the general fabric of our
public law. I believe that the
modest general damages awarded
in this case against an
administrative body for breach
of article 23 in itself sends a
strong message to public
authorities to be mindful of
their constitutional obligations
under that article in particular
and under chapter five in
general.
To conclude, I agree that,
in addition to the quashing of
the decision of the respondent,
the respondent should pay
damages in the amount as
recommended in the judgment of
my learned brother Kpegah JSC,
the President of the Court. I
wish to highlight, for the
guidance of High Courts which
may subsequently follow this
decision, the moderation in the
quantum of the damages awarded.
I believe that, in awarding
these damages and in reaching
its decision in this case, this
court has taken an important
step in the development of the
constitutional
and
administrative law of this
country. I wish to thank both
counsel for their assistance to
this court in reaching this
important decision.
S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
Dr Raymond Atuguba
(with him Baasit Abdul Aziz)
for the appellants.
Kizito Beyuo
for the respondent.
gso*
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