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JUDGMENT
ANIN YEBOAH, J.S.C:
This is an appeal against the
decision of the Court of Appeal
dated the 28th
February, 2008. The appellants
were at the time material to
this action, students of the
Kwame Nkrumah University of
Science and Technology at Kumasi
pursuing various degree courses.
On the 25th August,
2006, the Registrar of the
University (the respondent
herein) acting on the
instructions of the Vice –
Chancellor wrote to each of the
appellants dismissing all of
them from the University. The
affidavit which supported the
application at the High Court
was sworn to by one Jamal Anabio,
a law clerk of the solicitor who
initiated the proceedings for
Judicial Review. The basis for
the application was that the
applicants had on 26th
August, 2006 proceeded on
vacation. On 26th
August 2006, the Registrar of
the University wrote a letter to
each to the appellants herein,
dismissing them from the
University. The letter claimed
that the appellants were
dismissed because their
continued stay or presence in
the university poses a great
risk to the university
community. The first appellant
in response to the letter of
dismissal on 6th
September 2006 wrote to the
Registrar insisting on his
innocence and demanded
reinstatement. The Registrar
never replied to the letter.
The parents of the appellants
who naturally felt aggrieved by
the dismissals came down from
Nigeria and requested to meet
the Vice – Chancellor of the
university. They could not meet
the Vice – Chancellor. The
solicitor for the appellants in
a letter dated 12th
September, 2006 addressed to the
Registrar of the university,
demanded an explanation for the
dismissal of the students. This
letter was also not responded to
by way of reply and on 21st
September, 2006, the appellants
resorted to the judicial process
by filing an application for
Judicial Review at the High
Court, Kumasi, seeking to quash
their dismissals by the
respondent. The ground for the
application was that their
dismissal violated the
University regulations and that
the dismissals were in violation
of article 25 of the 1992
Constitution of Ghana.
The respondent controverted some
of the allegations of facts by
insisting that a committee was
set up to inquire into a
shooting incident which occurred
in March of 2006. As part of
the investigations, the
Registrar on 4th May,
2006 directed letters to
everyone involved in the
incident and requested them to
report to the Dean of students.
The respondents claim that some
of the students reported but
others did not. It was
contended further by the
respondents that the appellants
were dismissed pursuant to the
report of the committee which
was set up to investigate the
allegations which found out
that the students were engaged
in occultism and mafia-style
factions which resorted in
violence to achieve their ends.
The record shows that the
application at the High Court
was determined on affidavit
evidence. The learned trial
judge who determined the matter
ruled against the appellants
whose appeal to the Court of
Appeal was also dismissed
culminating in this appeal
before us. Several exhibits
from both parties were placed
before the High Court to assist
the court in determining the
matter.
However, it is interesting to
note that the affidavit of the
respondents sworn to by Mr. J.B
Oleans Pobee, the solicitor for
the respondent in paragraph 7
thereof states categorically
that the setting up of a
committee of inquiry to
investigate the allegations.
The affidavit was supported by
the Interim Report on Activities
of Nigerian students and
subsequent shoot out at Maxims
on 19th April 2006
which is marked as exhibit KNUST
“3” dated 29th May,
2006.
The appellants, both at the High
Court and the Court of Appeal
contended, inter alia, that the
respondents failed to comply
with its own laid down
procedures for dismissing
students. This submission was
based on article 7 of the
Students Guide which appears to
be the guidelines for regulating
disciplinary proceedings and
other matters in the
university. For a fuller record
Article 7 of the Students Guide
is reproduced as follows:
“7. PENALTIES FOR BREACH OF
REGULATIONS
A student who is deemed to have
misconducted himself may be
liable to one or more of the
following penalties.
(i)
warning
(ii)
Reprimand
(iii)
Rustication for a stated period
(iv)
Suspension from the use of
university services or
facilities for a stated period
(v)
Payment or making good of or
damage to any property of the
university.
(vi)
Dismissal from the university.
Clauses III to VI above shall be
treated as major penalties,
which shall be imposed only by
the Vice-Chancellor. The Vice-
Chancellor shall appoint a
committee of Enquiry to
investigate cases likely to
attract the imposition of a
major penalty against a
student. The findings and
recommendations of such a
Committee shall be forwarded to
the Vice-Chancellor for him to
take the final decision. The
other penalties shall be treated
as minor ones and may be imposed
on his behalf.”
I have reproduced ad longum this
article in that it appears the
said article is the only
provision in the Students Guide
on which the parties relied in
presenting their respective
cases. The appellants have
insisted that no Committee of
Enquiry was set up by the
Vice-Chancellor in compliance
with article 7. The respondent
who came out with order in the
form of letters dismissing the
appellants categorically stated
that a committee was set up.
The provision does not indeed
state the composition of the
Committee of Enquiry to be set
up by the Vice-Chancellor. The
affidavit of learned counsel for
the respondent also does not
state who and who constituted
the Committee of Enquiry.
I find myself unable to see how
in a serious matter of this
nature when the academic welfare
of students was in issue, no
effort was made by the
respondents to even name a
single member of the
Committee of Enquiry which went
into the matter pursuant to
which the appellants were
dismissed. Exhibit KNUST “3”
annexed to the affidavit and
already referred to in this
judgment as the “Interim Report
on Activities of Nigerian
Students and subsequent shoot
out at Maxima on 19th
April 2006” was signed by one
Lt. - Col W.K Addo (Rtd) Head of
Security without stating the
nature of his role in the
Committee of Enquiry and if he
was indeed a member of same.
The appellants were students,
and it was their case that they
never appeared before anybody or
Committee of Enquiry for that
matter. The respondent whose
answer to the case is built on
compliance with article 7 of the
Students Guide did not provide
any particulars of the Committee
of Enquiry, who set it up, the
composition and terms of
reference if any. Indeed
Exhibit KNUST 3 does not mention
a single member of the Committee
of Enquiry which allegedly
investigated the damming
allegations. Both the High
Court and the Court of Appeal
with due respect to their
Lordships, ignored this all
important matter. The
Court of Appeal on this matter
clearly stated that as the
appellants did not call for
evidence or said nothing about
exhibit KNUST “3” the trial High
Court judge was right in holding
that there was a Committee of
Enquiry set up by the
Vice-Chancellor which heard
evidence that culminated in the
dismissal of the appellants.
How the committee, if any, was
constituted, how evidence was
taken etc did not matter to the
courts below. How in a crucial
matter of this nature a security
officer can sign a committee’s
report without even indicating
his status escaped the lower
courts. In my opinion, as the
setting up of the Committee of
Enquiry, its terms of reference
and the modalities for its work
were known exclusively by the
respondent which allegedly set
it up, it behoves
the respondent to
have given particulars thereof
as regards at least the
composition and terms of
reference, etc. This they
failed to do. Section 17(1) of
the Evidence Act, 1975 NRCD323
states the position clearly as
follows:
17(1) Except as otherwise
provided by law, the burden
of producing evidence of a
particular fact is on the party
against whom a finding on that
fact would be required in the
absence of further proof.
The facts of the commission of
Enquiry, if any, was within the
particular knowledge of the
respondent who allegedly set it
up and claimed to have heard the
appellants. In such a case,
there would be no hardship on
them to produce the full record
of proceedings, including of
course, the evidence, if any,
and the membership thereof etc.
See the case of: NIMMO V
ALEXANDER COWAN & SONS LTD
[1968] AC 107 and the opinion of
Lord Pearson who was of the view
that a party’s respective means
of knowledge and spheres of
responsibility are vital factors
in determining the incidence of
burden of proof.
I think it would be right to
hold against the respondents
that given the circumstances of
the case, they were enjoined by
basic principles of
administrative fairness to have
provided the names of the
members of the Committee of
Enquiry, their mandate, and when
the appellants were allegedly
heard in the matter to warrant
the serious sanctions imposed on
them.
At the court of Appeal it was
contended by learned counsel for
the respondents that the
students (appellants) filled
Exhibits KNUST 2, KNUST “1” and
KNUST 3 as student Data Sheets
and the court according to
counsel should reasonably draw
the inference that the
appellants and certainly 2nd,
3rd and 5th
appellants had been directed by
the Registrar to report to the
Dean of Students or Head of the
University Security. I am
afraid that this would be unfair
inference to draw against the
appellants given the
circumstances of the case as the
appellants had no access to the
records of the committee if any.
In my opinion, the High Court
and the Court of Appeal were
both invited to resolve two
crucial issues in the matter.
The first one was whether the
appellants were offered any
hearing by any Committee of
Enquiry. It is clear from what
I have said earlier that there
was no evidence of any Committee
of Enquiry as envisaged under
the Students Guide which both
parties admit was the prevailing
regulations dealing with
disciplinary matters affecting
students. In the absence of any
composition, terms of reference
and proceedings of the
committee, a court of law always
mindful of substantial justice
must find as a fact that no such
committee was indeed formed to
undertake the duties under
article 7 of the Students
Guide. Indeed, there was no
hearing of the appellants in any
lawful manner whatsoever from
Exhibit KNUST “3” as this is
apparent from the exhibit.
It is a basic principle of the
common law that judicial review
by way of certiorari would lie
when it is established that
there was breach of the basic
rules of natural justice. It
would thus be mere pedantry to
cite legal authorities to
establish that the courts in
Ghana by way of judicial review
could quash any proceedings
which seek to deny a citizen of
this country his basic rights to
natural justice if the body
which undertook the inquiry is
amendable to judicial review.
The next issue which was
resolved both by the two lower
courts was whether or not
judicial review was appropriate
under the circumstances. The
appellants had applied for
judicial review under order 55
of C1 47 of the High Court Civil
Procedure Rules of 2004 to quash
the decision of the
Vice-Chancellor of the
university which is the
respondent herein. Counsel for
the University, Mr. Pobee has
rightly conceded that the
university is a public
institution. I think section 2
of the act establishing the
university, that is The Kwame
Nkrumah University of Science
and Technology, Kumasi Act ,
1961 Act 80 shows clearly that
the university performs public
functions. Section 1(2) also
makes the university a body
corporate in law.
The respondent as a statutory
corporate body is performing a
public function by way of
offering education to the
public. In Principles of
Judicial Review by De Smith,
Woolf and Jowell’s the 1999
edition, the learned authors
said of public function as
follows at page 65:
“A body is performing a “public
function” when it seeks to
achieve collective benefit for
the public or a section of the
public and is accepted by the
public, or a section of it, as
having authority to do so. Such
legitimacy may be conferred by
the fact that the body is
established by parliament, it
may also arise in other ways”
The learned authors proceed to
give several examples of bodies
performing public functions at
page 65 as follows:
“For instance, a body is
performing a public function
when it provides public goods or
other collective services, such
as health care, education and
personal social services
from funds raised by taxation”
It is thus settled that the
university is a public
institution performing public
functions. Sir. John Donaldson
MR in the case of R V
PANEL ON TAKEOVERS AND MERGERS,
EX PARTE DATAFIN pic [1987]
1 QB 815 extended the scope of
bodies exercising public
functions in modern times to
warrant the intervention of the
courts. I think public law has
undergone drastic changes of
late to the extent that it was
wrong for the Court of Appeal to
hold that the remedy of judicial
review was inappropriate under
the circumstances. The Court in
agreeing with the submission of
learned counsel for the
respondent said as follows”
“I agree in toto with counsel
for the respondent that looking
at the special circumstances of
this application before the
court below and the subsequent
appeal before this court, the
remedy available to the
appellant was not an application
of this nature (i.e. judicial
review for an order of
certiorari)”.
I think the test to determine
whether a body is performing
public function and thus may be
amendable to judicial review has
been proposed by the learned
authors of Principles of
Judicial Review the 1999
edition at page 73 as follows:
(1)
The test of whether a body is
performing a public function and
is hence amendable to judicial
review may not depend upon the
source of its power or whether
the body is ostensibly a
“public” or a “private” body.
(2)
The principles of judicial
review prima facie govern the
activities of bodies performing
public functions.
(3)
However, not all decisions taken
by the bodies in the course of
their public functions are
the subject matter of judicial
review.”
The learned authors proceed to
give examples of situations in
which even though the body may
be performing public functions
as such they may nevertheless
not be amendable to judicial
review. The first is if the
parties agree to regulate the
settlements of their disputes by
resort to other branch of the
law and secondly when a contract
exists between the parties with
express or implied terms to
regulate their dispute.
Save these situations, the
courts are more than willing to
grant judicial review in
appropriate circumstances to
redress administrative abuses.
The Court of Appeal with due
respect failed to acknowledge
the extent of judicial review in
the contemporary administrative
law. As pointed out,
the university is a
public institution performing
public functions under an act of
Parliament. If it is
established that there was abuse
of any power vested in them in
the discharge of their functions
the scope of judicial review
should avail any member of the
public who had suffered from
such abuse. The learned authors
of Constitutional and
Administrative Law 11th
Edition E.C.S Wade and A.W
Bradley had this to say at page
675 “ The courts may intervene
not only to prevent powers being
exceeded but also prevent them
being abused. The justification
for this is that the exercise of
discretion for an improper
purpose or without taking into
account all relevant
considerations is regarded as
failure to exercise the
discretion lawfully”
The contention that the
appellants did not avail
themselves of the provisions in
the Student Guide but resorted
to the judicial process does not
answer the question posed by the
appellants. The regulations in
the Students Guide have no
ouster
clause to deny the High
Court jurisdiction to entertain
the matter. Judicial review has
broadened in scope to the extent
that such limitation placed on
it by the Court of Appeal will
not advance its growth. Lord
Scarman in COUNCIL OF CIVIL
SERVICE UNIONS & ORS V
MINISTER FOR THE CIVIL SERVICE
[1985] 1 AC 374
after
subjecting the authorities on
the subject to review
categorically stated the modern
position about the scope of
judicial review at page 407 as
follows:
“Just as ancient restrictions in
the law relating to the
prerogative writs and orders
have not prevented the courts
from extending the
requirement of natural
justice, namely the duty to act
fairly, so that it is required
of a purely administrative act,
so also has the modern law, a
vivid sketch of which my noble
and learned friend Lord Diplock
has included in his speech,
extended the range of judicial
review in respect of the
exercise of prerogative power.
Today, therefore, the
controlling factor in
determining whether the exercise
of prerogative power is subject
to judicial review is not its
source but its subject matter”.
Lord Diplock, whose opinion was
very instructive and has since
influenced the scope of judicial
review of administrative action
put up a test to qualify for
judicial review at page 408 of
the judgment as follows:
“To qualify as a
subject for judicial review the
decision must have consequences
which affects some person (or
body of persons) other than the
decision maker, although it may
affect him too. It must affect
such other person either:
(a)
by altering rights or
obligations of that person which
are enforced by or against him
in private law ;or …”
Lord Diplock went further and
made it abundantly clear at page
410 as follows:
“My Lords, I see no reason why
simply because a decision-making
power is derived from a common
law and not a statutory source,
it should reason only be immune
from judicial review. Judicial
Review has I think developed to
a stage today when without
reiterating any analysis of the
steps by which the development
has come about, one can
conveniently classify under
there heads the grounds upon
which administrative action is
subject to control by judicial
review. The first ground I
would call “illegality”, the
second “irrationality” and the
third “procedural impropriety”.
That is not to say that
further development on a case by
case basis may not in course of
time add further grounds”.
In my respectful opinion, all
the circumstances necessary to
warrant the intervention of both
the High Court and the Court of
Appeal were not adequately
considered. That probably led
it to hold as follows:
“If the appellants think their
dismissal was wrongful because
the Vice- Chancellor did not
set up any proper committee of
inquiry to investigate them,
then their remedy lies in an
action for Damages for Wrongful
Dismissal and/or Breach of
Contract. Certiorari is not the
remedy”
Indeed, the appellants herein
have not contended that there
was any contract of employment
existing between them and the
respondent. Their complaint, to
me, was simple and
straightforward. Their ground
for the action against the
Vice-Chancellor was that he
ought to have set up a committee
of inquiry as laid down by the
existing regulations. The Court
of Appeal’s assertion that there
was no basis for the action and
that damages were the
appropriate remedy is with due
respect erroneous. The students
(the appellants herein) were not
employees of the university and
the respondents did not raise
the issue of master-servant
relationship at all. Upholding
this judgment would certainly
stifle and prevent the growth of
actions for judicial review of
administrative action which is
developing rapidly in every
common law jurisprudence. Ever
since the decision of the Court
of Appeal of England in the case
of ASSOCIATED PROVINCIAL
PICTURE HOUSES LTD V
WEDNESBURY CORPORATION
[1948] 1 KB 223, the superior
courts have by the remedy of
judicial review questioned
administrative abuses to the
extent that its rapid growth can
not be underestimated. No
wonder Lord Scarman in reviewing
the then existing authorities
and in support of Lord Diplock,
observed at page 407 of the
COUNCIL OF CIVIL SERVICE UNIONS
case as follows:
“Like my noble and learned
friend Lord Diplock, I believe
that the law relating to
judicial review has now reached
the stage where it can be said
with confidence that, if the
subject matter in respect of
which prerogative power is
exercised is justiciable, that
is to say if it is a matter upon
which the court can adjudicate,
the exercise of the power is
subject to review in
accordance with the principles
developed in respect of the
review of the exercise of
statutory power”
To conclude, I hold that all the
circumstances existed to warrant
the review by the High Court and
the Court of Appeal to set aside
the letter purporting to dismiss
the appellants from the Kwame
Nkrumah University of Science
and Technology based on the
principles referred to in this
judgment. The said letter which
is in evidence as exhibits A, A1
and A2 were issued in gross
violation of the Students Guide
which amounted to clear
administrative abuse by the
Vice-Chancellor. The purported
dismissals are subject to
judicial review for the reasons
canvassed above. They are
therefore set aside as having
being made without due process
of the regulations as it thus
stood. The appeal is thus
allowed.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
S. A. BROBBEY
(JUSTICE OF THE SUPREME COURT)
R.C . OWUSU(MS)
(JUSTICE OF THE SUPREME COURT)
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
SIR DENNIS ADJEI FOR THE
APPELLANTS
KWAKU NTI FOR THE RESPONDENT
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