AGBEVADI VRS WEST AFRICAN EXAMINATION COUNCIL (HR/0107/23) [2023] GHAHC 504 (7 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, HUMAN RIGHTS DIVISION, COURT 2, ACCRA, HELD ON THURSDAY THE 7TH DAY OF DECEMBER, 2023, BEFORE HIS LORDSHIP JUSTICE NICHOLAS M. C. ABODAKPI. =================================== CASE CALLED AT 10:09 A. M. SUIT NO. HR/0107/23 LAWRENCE SELORM AGBEVADI VS WEST AFRICAN EXAMINATION COUNCIL ====================================== PARTIES: APPLICANT – PRESENT RESPONDENT REPRESENTED BY THOMAS ARMAH COUNSEL: 1. RICHMOND ADODOADJI WITH CECILIA BANDOH HOLDING BRIEF FOR ISRAEL ACKAH FOR APPLICANT – PRESENT 2. CHRISTINE AMANKWAH HOLDING BRIEF FOR ERIC MENSAH FOR THE RESPONDENT – PRESENT ===================================== JUDGMENT 01. On the 3/07/2023, this application for an order of certiorari, pursuant to Article 141 of the 1992 Constitution and Order 55 of the High Court Civil Procedure Rules was filed, seeking to quash the decision of the Final Award and examinations Appointment Committee of the West African Examination Council (W. A. E. C.). The deposition of the Applicant who is the NEXT FRIEND of his son [Lawrence] showed that on 20/10/2022, he had reported for his Integrated ‘MCG’ Page 1 of 13 Science paper for Junior High School Examination. And that his index/candidate number is 0109052011. In paragraphs 4, 5, 6 and 7 are details of what allegedly transpired in the examination hall, leading to this litigation. These paragraphs are to the effect that Lawrence Selorm Agbevadzi was found by an external invigilator with a mobile phone in his hand, and was marched by this invigilator to give a statement, having collected the phone from him. It was contended the statement was taken from the candidate without the presence of his parent or a guardian. And that the candidate was made to write a statement to the effect that he was caught with a mobile phone in the examination hall. In addition, these paragraphs cited supra showed that an allegation of internal invigilator being an Agent of Respondent/W. A. E. C. herein was made. Furthermore, it was stated this local invigilator also gave a statement confirming what the candidate has recorded or said. In paragraph 7, it was stated the next day which was the last day of examination, the external invigilator returned and handed over the mobile phone seized back to the local invigilator. Besides the above, the deposition is to the effect that evidence of the candidate’s involvement in violation of examination rules is inadequate and doubtful, yet Respondent cancelled the entire examination result of the candidate without causing an investigation into the ownership of the phone. ‘MCG’ Page 2 of 13 The Applicant alleged the local invigilator is indeed the owner of the phone in question. Further to this, it was alleged it was not the candidate who took the phone into the examination hall and that he was entrapped, therefore he did not voluntarily participate in any examination malpractice. The fact that the candidate was only fifteen years old was also raised as a defence to the determination made by the Respondent against the candidate. It was stated on 21/02/2023, solicitors of the Applicant petitioned the Respondent over the issue but it failed to respond. Exhibit ‘A’ was cited in that regard. Then on 30/03/2023, the notice of cancellation of the result was served on the Applicant. Exhibit ‘B’ was cited in support. The Applicant contended there has been miscarriage of justice, hence the application was filed with the Reliefs as stated in the motion paper and the affidavit endorsed for redress. 02. What is offered in rebuttal is found in the affidavit of Thomas Armah, who described himself as the Controller/Head Records and Aptitude Test Department ((R. A. T. D.) of the Respondent institution. Firstly, the Respondent stated that Exhibit ‘1’ is a copy of Rules and Regulations of the examination i.e. B. E. C. E., and the DOS and DON’TS meant for the protection of the integrity of the examination are well known to all candidates. ‘MCG’ Page 3 of 13 It stated that bringing a mobile phone or any electronic device into the examination hall is prohibited by the regulations. And violation of the rule by a candidate results in cancellation of the candidates entire results. Furthermore, it was stated that all candidates who sat for the B. E. C. E. were sensitized about the regulations of the examination. Secondly, it was stated the Applicant/Candidate was caught by Respondent’s external invigilator with a phone in the examination hall and a statement was obtained from him, as in the Irregularity Report Form. Exhibit ‘2’was tendered as the statement form and it was disclosed that the candidate admitted that he was caught with a phone. The Respondent contended this conduct amount to a misconduct as defined in Exhibit ‘1’, the Regulation of the examination. Furthermore, the supervisor of the examination also gave his comments as could be gleaned on the face of Exhibit ‘2’. The Respondent contended the admission of the misconduct was voluntary and not induced by any influence on the candidate. Therefore the account of events as in the Irregularity FORM, are genuine and that the enforcement of the Regulation is what will protect the integrity of its examination. In conclusion, Respondent contended that in arriving at its decision, as an administrative body, it acted fairly, reasonably and in compliance with requirement of the law. 03. THE APPLICABLE LAW The common law of Ghana has been shaped tremendously by our historical antecedent, as seen in our jurisprudence. The nature and scope of the power of Judicial Review is seen in case law on the subject. ‘MCG’ Page 4 of 13 I refer to the case: THE REPUBLIC VRS. HIGH COURT, ACCRA Ex-Parte: CHRAJ [ADDO – INTERESTED PARTY] [2003/2003] SCGLR In this case the Supreme Court defined the scope of Judicial Review in the following terms: It stated for an act, conduct or omission to qualify as a candidate for judicial review, it must be impugned on the following grounds: i. Illegality ii. Irrationality, and iii. Procedural Impropriety Firstly, on the ground of illegality, the Court held that the decision maker must understand and correctly apply the law that regulate his/it decision making power and give effect to it. Secondly, by Irrationality, the Court defines this as what is known as: “WEDNESBURY UNREASONABLENESS” Enunciated first in the case: ASSOCIATED PROVISIONAL PICTURE VRS WEDNESBURY CORPORATION [1947] 2 LLER I. R. C. 3 It has been stated therein that, a decision which is so outrageous in its defiance of logic or accepted moral standard that no person who had applied his mind ‘MCG’ Page 5 of 13 to the question to be decided could have arrived at it, is a decision which is irrational. Thirdly, a decision that suffers from procedural Impropriety, the Court said is one that was arrived at or made, by failing to act with procedural fairness towards the person who will be affected by the decision. Furthermore, it has been stated that, susceptibility to Judicial Review under this ground covers failure by an administrative Tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which jurisdiction is conferred even where such failure does not involve the denial of natural justice. This High Court takes the view that the establishment of one or multiples of these conditions enumerated above by the proponent/Applicant that he has not been treated fairly by actions/decisions, of administrative officials and institutions in the public sector, should be sufficient to ground a favourable ruling. Order 55 of High Court, Civil Procedure Rules, 2004, C. I. 47 prescribes the procedure, in terms of nature and content of the application, the limitation period, service of the motion etc., and the requirement of statement of case. Article 23 of the 1992 Constitution is relevant to this application, it provides: “Administrative bodies and administrative officials shall act FAIRLY and REASONABLY and comply with the requirements imposed on them by law and persons aggrieved by exercise of such acts and decisions shall have the right to seek redress before a Court or other tribunal.” Article 141 also provides: ‘MCG’ Page 6 of 13 “The High Court shall have supervisory jurisdiction over all lower Courts and lower adjudicating authority and may in exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers.” And Section 16 of the Courts Act 1993, act 459 as amended by Act 620 is also relevant. These provisions are rooted in the British Common Law jurisprudence which Ghana shares with other common wealth nations. The scope then was enunciated in the judgment of ATKIN L. J. in the case: REX VRS ELECTRICITY CORPORATION [1924] 1 FIB 171 The essential elements are found in the dictum: “Whenever anybody of persons having legal authority to determine questions affecting the rights of subject and having the duty to act judicially acts in excess of the legal authority ...” These essential conditions are: a) Anybody of persons has b) Legal Authority to determine c) Questions affecting right of citizens, the body has a d) Duty to act judicially or fairly. The body of persons contemplated by the Court includes: ‘MCG’ Page 7 of 13 Lower Courts, Administrative Bodies, Local Authorities, the Judicial Committee of House of Chiefs, Commission of Enquiry, etc. Prerogative writs, as they were previously known, will issue against officers in charge of these bodies who discharge public functions. And by legal Authority, this generally means authority derived from a statute or executive instrument. Therefore by definition, CERTIORARI will neither lie against a private arbitration body, which derives its sole source of jurisdiction from the consent of its members. Furthermore, reference made to RIGHTS of citizens is that rights in the broad sense and not confined to the jurisprudential concept of Rights with correlative legal duties, annexed as postulated in Hofeldian Scheme of Rights. In addition, proceedings of a body, amenable to Judicial Review include every matter whether it will terminate in a final decision or not, it could still be subject of the writ or order. The cardinal point that must inform the decision or conclusion to be made by the Court is that, once the decision is binding or conclusive until reversed or appealed or quashed, it is amenable to Judicial Review. Finally, fairness demands that every party to the proceedings is given a hearing, or an opportunity and afforded access to present his case. The Rights affected by the proceedings or subject or enquiry may be rights to enjoyment of personal liberty, tenure to office, pursuit of a profession or other ‘MCG’ Page 8 of 13 calling to the retention of unencumbered ownership and possession of property, etc. Thus, Rights protected in Chapter 5 of the 1992 Constitution, which covered civil liberties and socio and economic rights, when the enjoyment of any of these rights are flouted, being flouted or threatened or likely to be breached, it may be a subject of judicial review. Finally, I refer to the case: ABOAGYE VRS G. C. B. LTD. [2001/2002] SCGLR 797 at 806 The Supreme Court speaking through Bamford-Addo J. S. C., wrote on the power of judicial review as follows: “... Article 23 says that administrative bodies and officials shall act fairly. And acting fairly implies the application of the rules of Natural Justice, which have been elevated to constitutional rights and are binding on all adjudicating and administrative bodies as well as Courts and Tribunals.” 04. The fact that the Respondent is amenable to the powers of this Court by way of Judicial Review [certiorari] is not in doubt. It has not been contested. What has been contested is the allegation that it did not act fairly and in the process of making the impugned decision, it failed to uphold the tenents of the rules of Natural Justice. ‘MCG’ Page 9 of 13 It was contended there should have been further investigation of the candidates conduct, because the phone does not belong to him but one Samuel Armah, who Applicant described as an Agent of Respondent. It was also argued that the phone was actually returned to Samuel Armah and that the candidate was entrapped. The averment to the effect that, the candidate was only fifteen (15) years old, and his statement was taken without the presence of a parent and that he was confused at the time, was also made. The record showed that all these contentions were denied. The Respondent denied and stated the fact that Samuel Armah, whom it described as local invigilator or G. E. S invigilator, is NOT its agent and that the ownership of the phone was not a relevant factor given the regulations – i.e. DOS and DON’TS, which are known to all candidate including the Applicant/Candidate in this action. It was stated they have been educated on the import of these regulations, and he knew it, as he was given the opportunity to explain why he was caught with the phone. The Respondent contended strongly that, the candidate admitted the conduct that amounted to misconduct, as captured in Exhibit ‘TA1’, which is the statement he gave. And that this required no further investigation, because the opportunity to respond to the prohibited conduct had been given to the Candidate/Applicant. Samuel Armah who allegedly gave the phone to the candidate and allegedly got it back the following day is a material witness to the case of the Applicant. ‘MCG’ Page 10 of 13 It is Applicant who has made these allegations, and was required to call him as his witness. I find and hold that the Applicant has failed to call or lead material evidence in support of his claims. Furthermore, I find and hold that, Applicant has made a clear and unambiguous admission about possession of a phone in the examination hall contrary to the Regulations that control the management and conduct of the examination. The Respondent is permitted to rely on this admission, to buttress its rebuttal of the averments in support of this action. I refer to the cases: 1. AWUFU – SAO VRS GHANA SUPPLY LTD [2009]SCGLR 71 2. CHOU SEN LIN VRS. TONADO ENTERPRISE LTD. [2007/2008] 1 SCGLR 135 and AGEIWAA VRS P & T CORPORATION [2007/2008] 2 SCGLR 985 ‘MCG’ Page 11 of 13 Furthermore, I find and hold that Applicant had been given a hearing, he had stated his case, he had the opportunity which was offered by the Respondent to state his side of the story and he did as shown by the Exhibit ‘TA2’. In my candid opinion, those conditions enumerated in the case cited by this Court, as essential for a favourable ruling have been satisfied by the Respondent. In other words, Respondent has rebutted the claim that its conduct was unlawful, irrational and suffers from procedural impropriety. BY COURT: 1. The Applicant in this application for an order of certiorari to quash the decision of the Respondent has failed to establish his right to the Reliefs sought. Accordingly, the application filed on 3/07/2023, is dismissed. 2. Cost of GH¢2,000.00 is awarded in favour of the Respondent and against the Applicant. (SGD.) H/L NICHOLAS M. C. ABODAKPI JUSTICE OF THE HIGH COURT ‘MCG’ Page 12 of 13 REFERENCES: 1. THE REPUBLIC VRS. HIGH COURT, ACCRA, EX-PARTE: CHRAJ [ADDO – INTERESTED PARTY [2003/2003] SCGLR 2. ASSOCIATED PROVISIONAL PICTURE VRS. WEDNESBURY CORPORATION [1947] 3. REX VRS. ELECTRICITY CORPORATION [1924] 1 FIB 171 4. ABOAGYE VRS. G. C. B. LTD. [2001/2002] SCGLR 797 at 806 5. AWUFU – SAO VRS. GHANA SUPPLY LTD. [2009]SCGLR 71 6. CHOU SEN LIN VRS. TONADO ENTERPRISE LTD. [2007/2008] 1 SCGLR 135 7. AGEIWAA VRS. P & T CORPORATION [2007/2008] 2 SGLR 985 ‘MCG’ Page 13 of 13