manyaki vs executive committee council of institute of finance management 1986 tzhc 1 12 september 1986

,. MISO.,O!Vn O.i.':,.USE 00,.42 orr 1984 :rn the matt or of applicf.'.tion by Simeon Manyald for leave to apply for an order of cGrtior~ri and r~ndcous; ~,' • In. 10M m~ter of tho n.;:tive Ccmnitteeon~ of tho Institute of Finanoe Nbnsconent. MAl'IG.'\.NO, J. The applicant Sinon ~bnyaki is a senior aocountant with the "National Shipping Agencies, He wants this oourt to exercise its .discretion o.nc1cront two orders, namely .(1) an order of certiorari tp quash the decision of the Executive Oommitteeof the Oouncil of the Institute of Finance Manneeoent dated 2 May1984; and (2) an o~d~r o£ mandamusrequiring the Council of that IJ:lstitut& to tl.wa:t"Cl him a -oerti- t-icate of ... \dVQ.llcocf'Diplowin :I.OOOUC:te.ncy, The applico.tion bas been stoutly conteste~ by the Institute, MOstof the salient facts arc not in dispute, The applicant was a student at the Institute in Dnr os 30.18.0.0, pursuing a course of study in aooountancy conduoted by tho Institute uuring the 1983/04 academic year.' He and other.stul1onts sat for fin'::,l oX.':'<J:.J.im.tions in >-January, 1984. Sadly, an outrage had tnkon place in connection with tho exaoimtion M ..••. : papers o.ndmodel rmswers and the exnmir.JD.tions had been extensively leaked';) A good number of the ccndidates ho.d outained unauthorised prior nocess to the e:xnmjnn.tionpapers o.ndnodel answers, The e::m.nll10rswere not ~lQw to apprehend thnt- there hau been such a lenk. It was perhaps ~ble, for some of the .oanc1idates wore so naive,nny thow;htless, that they reproduced the model answers verh.'"\tiD. It was considered to be a cnse where the emnunation as n Whole could not properly be said to be a reliable measure•.• ment tool of lalowledge and expertise of the eandidates. A deoision was thus made to (1) nullify the results and require the candidates to're-take the exnminat~s tn April, 1904; (2) set up a coDDittee to probe the leakage and prepare,a report; and (3) seek assistance of the state seourity or~s to inves~te the matter, It was also decided that the results of ~ ••A~ e~tiansshould be tied to and tabled together with'the repo- "" '. " . postpone rt of th~,probe eorJInittee anc1to 1 any disc1J;llinnry or punitive aotion j against ~ indi~ic1f1nl '.G my have' been involved in the afftlir, including the"';nullifio~tion ~f ,thO Aprl1 e~tio:n. results, until the :f'iJ::l.al results ~~ ,the investigati~hnve been sUDmitt~d. , .~: . r c:'· .. n'~.~~i"'''''",_ The applicant and the other cCinuic1o.tesresat the e:xnminations in early April when the prol:;eCOlluittee that Vl~l,S forned was carry:i.ng out investigations. On 27 ~pril, 1904 the applicant was officially 1nforJ:ledthat he had rassed the e~r.~irl[;tions.However, on 2 May 1984 he received a distressL1C Idea:..' :':;':"'8:1 t::lO "i.ctiJ.'lG Director of the Institute which read as follows: 1. ::toumy remember that the Institute in January, 1904 encountered problems in the final G:~nir~tion process of of the 1903/04 Advanced Diploma in AccountinC third year students of the fnet that a good number of the students in that class had unautaorised access to some of the exam papers and/or model answers. Subsequent to this the Institute set up an independent probe cormittcc to investiv-\tc this Whole a~fair, 2. The Executive Oo~ittee of the IFM Council which set up this inviestication received o.nd deliberated the probe commi- ttee report in its fortieth (extro.-ordinnry) tleetinB held on Friday, 1904. AccordinG to the findinas and conclusions of this report you arc ono of the students who are hiehly impli- cated, 3. The Committee :'~otec1with::::raveconcern th.'1tyou c.re depicted as one of the primary clique Dember in your olass who purticipnted and/or asaiste4 contrc.ry to Ill~titute's rules of examination and good discipline in the coworcialized distribution and propaga- tion of the exnninntion papers and/or nodel answers which leaked. The Committee observed further that, as if that was not enough, you subsequently did not want to tell the truth to the investi@D.tors; during the investigation Which ensued; you were nonrepentant; you were intransigent if not arrocant and you were obdurnte if not -thoroughly uncooljorative illthis invosti[,"D.tion. It Wc.s noted also that the Wide propacation of the lenked oxaos caused a lot of pro- blems to the oomr.1uni ty o.n(lentailed enomous fillimcial oosts to the InstituteA 411 tLose bohQviokXCl patterns, it was observed by the " r' Committee, nre not consisc~Cl,:t vl:i.thc;ood discipline and are contrary l tQ professional et~::.:'c.:; 0.1:., :'::~"coerit;7 L"l your field of tra1n1ng. li f_ l . ..,...·" 4, Beca.use of the c":':OV) :;,'vo.;:;onc tho E:cecutive Oommittee of the Institute t S . CounCil l::::.c (..;ciC::.1 to terminate your studies at the f~' " Institute With 1l:r::.-2L::tc c::':.:'aot and also to bar you from attemp- ting any 11iM0xauinntionc il,-future as well as nullify whatever results you may h1:.wehad in tllis year's ,\prll 2-6 exaIlliJ:lD,tionB, 1:f you happened to sit for these exarlino.tionsetcll• This letter was copied to the 0. p:jlicant1 s employer, among others. .HJ.s employer reacted by vvrit:L.'1G to hir: on 23 Thy, 1984 rebuking him and :l.n:forming him that the fact toot Le bod underGone the course of study would not be recognized • .. ~t this juncture I pause "GO notice, only to reject, nn arcu:ment that was a.dvanced by the applicnnt to the effect that the Institute had no legal competence to teroinnte his studios, nullify his rosults of the April exa.mi.no.tions nnc1 bar him fron future enrollnent and attempting any of its exami.nntions. For one thing, exam:lnntions such as these, are meant to be honestly nnu honorably set and taken for they are oontemplated to be, as the Institute observed, a relia.ble measurement tool of knoWledge and skill of the candidates. For another, it cannot be denied that the Institute stoed embarrassed anu uiscraced by tho look and its integrity stood tainted, The leok thus bore viewing with seriousness and those who were involved in it should surely expect to be severely dealt With and visited With deterrent or exeupla.ry pennl ties, I entirely aeree With the Institute that under both the I.li'I.I .•\ct, 1972, in pa.rticuJ.t:u- seotion 7 thereof', and the general rules Governinc; such exo.tlina.ti,ons, it has the disoretion to treat the applicant in the !UllUlCrit did, The pro be committee tho t 1l1o.S famed by the Executive CoIltli t:tee of' the Counoil of the Institute was Given the folloWinctorms of reference: (1) to find out whether thero 1;VOS a leo...1cnge of the c:x:o.tl1l:lntionsJ (2) if so, to esta.blish o.nd indicate when, hOW, whoro nnd by whon the e~ tions were leaked, what papers and/or nodel answers leaked and to what extent; (3) to find out weaknesses, it any, in tho exaDinntion ndninistrntion system that mie;ht have contributed to the lea.1roBe,in particular, to examine the c1rcutlStances of settins, m,..".I'k1ng, exteX'%1DJ. e;x;a.n~~g and inV1gUntion of examinAtions; (4) to make observations on the above points and any others that might be pertinen~ thereto, drew ~onclueions thereof and reoommend appropriate 30tion to be taken; ..(5) to c1eteroine nnc1 reeulate its procee- dings as it deems fit and to co-opt any other person or persons who in its opinion may facilitate the execution of its tusks, In dis~e its nssicnnent the probe coooittee examined a host of documents and conducted interviews With 24 people, who included students~ examiners and officials of the Inatitute a.nd NB.~~, the acronyw. for National Doard of .• l.cocunta.ntsand .• \uditors. It vias·standard procedure to send the examioations papers to NniA tor moderation, The a.p~caQt was one of the stu.dOJltsWho was interviGwcd ljYthe pro be co~ ttee, 4/••••• · ~t the conclusion of the L~vesti3n~ions the probe oommittee stated, in sum, that it profoundly suspected one Chandrasekbaran, a moderator with NBL~, and one I,JD.shenene,a co-orl1inD.tor with the Institute, to be the source of the leak. It opined that either of the two had surreptitiously :3iven ono .~nGela 1,1pa.nduji(who was a candidate) the e:x:nmi.nntionpapers o.nc.toot the said ~~nGela Imd in turn passed then to the D.lJljlioantand two other candida'iieswho, in turn, in tho 'words of the committee, constituted themselves as distribution aeents and Dade them available to other candidate~ in consideration of cash or kind. The first nain question that arises is whether the Council had authority to establish the Executive Cor~ittee that set up the probe cot:I!11ittee, and if the answor be yos, whether the Executive Co~ttee had competence to exercise such powers. By paraeraph 10 of his affidavit the applico.nt contends that the IDl1 ~ct, 1972 does not prOVide for the crOO,tion of such [" coomittee and that, therefore, the creation of the cor::n:li ttee by the CJuncil WRS an illo&11 exercise of the powers conferrol: on tho GOl-mcil by the .• 'l.ct. ]lIre Marando who appeared for the [~pplic"J.nthLS cubnittcd toot the only body that could have acted a.(~ainsttho applicnnt nO-s the Students f Disciplinary Conn:d.1itee established under rule 37 of the IF1I1StUCf;ll1't Rules set out in the IN 1903/04 Prospectus. :.i.:;o.inst that subru.~sion .Miss. Mjasiri of the Tanzania Leeal Corporation, counsel for tho respondent Institute, replied that the Executive CoIJrlittee 1::v1a le:3al status and that under the I~11 Act the Council enjoyed discretion to establish such a oomcittee. With reeard to the IFM Student Rules,· it was her argument toot those rules did not apply to academio natters~ ~s indicated, the lllstitute was established by an Act of Parliament. i.e. ~ct No.3 of 19720 The objects and functions are to be found in section 4. By section 6(1) tho Council' is the body vested With the governanoe lind control of the InstHuto. How the Executive Comt:1ittee ¥~s oreated by the Council in its n00tL~:3 held on 24 September 1974. It is a saal1er body than the full Council, it boine oonposed of only half l'. I of the members of the Counoil • •\mone other thines, the :r'..xocutivo ColJIJittee was chareed With the functions of dealing, in enG~eenoY'casos, With such natters as are normally considered by the Council, in between CouncU meetings. It was expressly stipulated that tho decisions of that CoDDittee are Bubject to ratificat:Lon by the full Council. ~ .' '~..., ,*,c,H... h •.•••.•••••• ""... ~: ..."'.rr.."'--." . .,. '_~~ '~.?- ~~:.~.",. •. ,. t:" In my view section 6(2)(f) of the IFM Act is wide enough and gives the Council power to establish such a Comnittee and to invest it with such authority. I take the view that this was not an instance of abdication of power by tho CounCil, but G valid exercise of its statutory discretion.. ,~so.forostatec1,the Council prescribed that all deoisions of that Cor~ittee would be subject to ratification by the full Council. Essentially, by that proviso the Council retained conplete control over all the fm1ctions assi~nod to tho CorlOittee and the Council intended to continuo to adLlrel9sits OVll1 J:J.1nd to the exercise of the powers dcleeated to tho 0oUQitte0~ I also take the VioVl th~t the Executive Comcittee did not enoroach on or usurp the powers of the Students' Disciplinary Committee. It is not true that the S~uGentst ~isciplinL;ry OorJDittee has any power to deal with academio no.tters~ I ho.vo perused the IFH Student Rules and I have come to the conclusion th:::"v such LJD.ttorsc,s tho leaknGe of exaninations fall outside the purviow of those Rules. I au satisfied that the juris- diction of tho Stucc~tG =~cciplinary Coocittoe is oonfined to what oay be desoribed as doneatic matters such as those pertaining to acoommodation, kitohen, dru:nkness, nuisance nnd the msuse of lJUsic instrurJ.ents. I pnss to t~s seconu =~~l Question, Which is Whether the proceed~ ines of the probe cO:J.Oittoe:.:1.s conducted in acoordance with the rules of na.turn1 juotice.. The nl':;liccmthas avorred, vide paragraphs 11 and 13 of his affido.vit, tho.t llO';!8.;:; l1enicc1Th.'l.tu.""n.l juotice in that (a) he was not intornod, tl:rou~O'L:t,tll:."lt he was a subject of suspioion or- investi- eation, and (b) toot he 1/,[.;/:3 not c.ffor<..1ec1 opportunity of being heard. This has been denied by the Instituto~ The parties cea~ to ue acutely aware, and it is trite to renark, th::t an administrative bo0.y c:::crcisinsfunctions that iopinge directly on legally reooenisoc1 interests owes it ns a duty to nct judiCially :ill accordance With tho rules of no.turnl justice, which basically means the adoption of fair procedure, which fundauentally de~8 freedom from interest and bias on the pert of the adnlilistrQtive body and the right to a fair hearine for thODO Hho nre ~e0.1ntoly affected by its decision. ~\nd it is cowon -:::,::;unJ thc.t this oourt has discretion to intervene and award appropriate reliefs Where the rules of natural justioe have not been observQd. QUite elco.rly, nnt o.Cnin it is COlJrJOl1 [;round, the probe committee was investigatine on enornous mttcr und the authorities must have apprehe- nded that the effect of its findinGS Wn~ bound to have substantial adverse topaot and consequonces on tho intorest~ of oertain individuals. The applicant is certc:.inly one of the people who have been detriLlemtally affected by the findings of the probe coDDittee. That is patently evident from the severity of the penalties thc:.t were eventually handed out to him by the Executive COlJLlitteecc::.•.c1 lJy his employer. I hold the view that the applicant, Whoserichts Gnu lecitioate expectations stood to be so ndversely a.ffected ]Jy the inquiry 1::0.<1 the rie;ht to hnve an adequate opportunity of lcnowinCthe cnse ho r~d to meet, of answering it, of putting forward his onn case, c.m1 OJ'? beinG fairly and impartially treated. In other wOrUs, he had tho riGht, first, of being sufficiently apprised of the ~~rticUL~rs of the prejulio.l allc:3Utions thnt were to be Il18.deor had been t1QdcaG"Ci.inst hir.l, so toot ho could effectively prepare his answer and oolleot eviuence nocessnr:: to rebut tho caso a~inst him; secondly, subjeot to tIle neeQ for TIitr~olc1in3 details in order to proteot other overriding intorests, a.nd in oy opinion thore wO.snone here, of being aoao»-dedsuffioient opportunity of controvertine or oocmenting on the materials tho.t hnd been tenderec1 or v:ero to be tendered against him; thirdly, of presenting his ovm case; and fourthly, of beine Given a reasonable and fair dual. It matters for nothing that these were prooeedings initiated by an Institute of hiBher lea.rnine. The wai6ht of rJOdernauthorities is in favour of the view that disoiplinary procooc1inea in hiGher educational institutions have to be conducted in oonfor.city With natural justice, provided at least tho ven~ltyll~posea or likoly to be tmposed is severe: see n y .\stgn Un~versitl uenate. Ex R. lZsfte;yancl.\nother, (1969) 2 QED 538, a deoision that hoe been roforroc1 to by both Sides; Glynn v Keele Universi t:y. (1971) I \7Ul 4C7, 0. case of Surn:1C1.ry suspension frOD residence on the ~pus for c1isoivlinory offence; ~nd nore helpful. Ce~9S University v Ferngndo. (1960) 1 VrrJt 2231 n'c~se of disqualification fram deeree for alleged ohec.t1:lg in cxo.lJ,ina.tion. With due respect, it is, in try considered 0p:ulJ.on, not .g.nexaegeration to say that the applic(mt wa.sde])rived of his riGht. It cannot be seriously denied that there is nothine in the record that shows toot he was apprised' of the partiouJ.,ars of the alloCOotions tha.t wore to be mdo or wd been made against hie. It will be roco~bered that the probe oomcittee cnrried out its assiBl'1mentby scrutiniZ:i.nB several, d~ts and 1nterv:Lemng soores of people. I heve 6one/~~~~ooUtlents emd :in regard to the applicant I see nothing damn:1nein theu,. Tho record of the proceedings of the committee shows that it tlet on rJevor.:'tl;Jccnzionr.:to conduct the interviews. About the only interviewee WhoiL'lplicntol: the D.l)vlica.ntwoos one ;\ncilla Kilinda. ij~Nif~.K'-~_-~\~t-~'*_'-.!i'--jF LiU A ~)'''~ This .\ncilla Kilincb ',1:,3 also a candidate and, as the idioIJ. goes, the canary who sang_ She admitted that she had prior access to the examination papers. She stated that-she had purchased the papers from Angela Mpanduji for sDS.l,50o/-. She disclosed that the papers she acquired wore handwritten. Sho snid she destroyed them imIJedio.tely ntter sitting the oxauinntions. She Wf1.S had to examine several scripts and, according to the roport of the probe cODIJ.ittee, she singled ot..t the scripts of the applicnnt, cla:i.l.li.ngthat they were similar with the handv'l!'iting on the oY..c.l:.lir1.'ltion l)..'l.persshe bad purchased from ;\.n6ela Mpanduji. Thnt was a soriouG :::cllGga.tionand it was regarded by the probe comittee 8.8 high-L;!'c,deinfornntion and in no snall way led the conmittee to infor thc,t tho ecpplicant was a party to the scandal. ~e coomittee eiGht be right. But wr~1tis objectionable is that the substance of that adverse infor:-.:ntion ',7'-',8 not put to the applicant at all. He had, therefore, no o~port~ity to deny or adnit it. Of course a party cannot deny or o.Qrli t ';,;hc:tof which he is unaware. This is not to say, however, that "·.ncillo. ~i~.:il1,-~a r,':::;,s 'l1llcnndidwith the probe commi- tliee. Angela Mpnnduji appeared before the probe cODIJ.itteefor interTiew. She did not in the least inplicate any body, let alone the applicant. In actual tact she was not no]:ol1:::.:;y·th:!.r.g about the applicant. The :l.nformntion provided by one or two other cr~--:.":::":::ttos r,::,sin tho last analysis either margi.nnl or wmt they had picl:uJ U] second hand and I aLlunable to see any- thing probative in it. On 5 April, 190,"~t:lO applic8.nt .• .,as intervieG ..by the probe coD:lI:littee. I will eet out in extenso who. t tr:::,::~sJ)irol1: II Q. Co.nyou toll us any~ stranee or unusl.ml y:>uho~-,ra. 0. bout the emo. before tho OX::'!:l was done? A. The st11l1entsHorked very hard to prepare thenselves for the oxans. But I heard no Q Whoare your study group? ~. I do Rot have any specifio study cr~Ul\, I ·L::;Uo.~:::':l stu<1yon ny own. Q. Fho :tn your cl::WS, h.'we you, for emmple, been studyinG Dith? I WD.S used to !.1niroin first and second year and ~ncela Mpnnduji in third year. Ancela was sellinG cxnns, did she sell to you also? NOt I· never b1.Wexams. I pass on my own effort. Q. Did you knowthat Aneela was sellin6 emma or One day you were stuely:ingin your room with some colleagues, saneone ~ane and knooked at tije door. Youlocked hill outo Youwere diGosting an exam you had laid hanas on.- A. This is 100%lie. Q.. Vmon~ngela got the papers she was looking for SOD8oneto assist her With solutions.. Youassisted her. lI.. Th[\t is not true. Q. Is ... ~ngela your friend? A. That is what people th:t.nk. I3ut she is no more than sonoone I study With. ~. Q. But.she is surely more thD.nthat VI') you•. A. Yes, at one stage she ~troduced me to her father, and I once escorted her tQ the airport whenher sister was passing throuc;h froD Soyohelles". This interchftDge is dravr.nfroLl J.X'..c;es 54 and 55 of the report of the probe " committee. On a careful roadine one r.~y probably discern some in consiste- nCies,even evasiveness, in the answers of the ap~licant. But, as pointed out supra, there is, fro:i start to end, nothinG in toot interview which shows that the identification of the scripta by :l.noilla K1linda was int:i.mated, much less announced, to the applicant. What f S more, it is plain, I think, there is nothing to show that the applicant was informed tl1n.t he wos one of the c1istrtbution agents of the leaked exarn;Jnations, contrary to vlhiJ.tis deposed in parae;raph 1 of the counter-at'f:Lo.aV1t. EqU£'.llyplain is thc.t there is nothing that shows that the applicant had, durine the course of the interview, been made to unde~ stand that he was appenring before that cor.r:.litteeto answer such a charge, ~lnd oertaJ.nJ..ythere is nothinc in his answers that can validly be said to have tangibJ.;yand Qred1bly established that he was a party to that illegal enterprise. More l;lJcely than not the applicant- was one at the candidates