19860912 TZHC Dar es Salaam 1

IN THE HIGH COURT OF T..~NZ.\NL'.. arnc. CIVIL c.::..UGE IT0.~-2 OF 1904 In the natter of o.pplico.tion by Smeon Nbnyulci for leave to apply for an order of ccrtiornri onc1 nnndcnus; In the rotter of the :cx:::tive Coooittee o n ~ of the Institute of Fin.once Mana 0enent. RULING !\.PIG..Um, J • The applicant Sinon Thhnyaki is n senior accountant with the National Shippine l~Gencies. I-Ie wants this court to exercise its discretion nnc1 c;ront two orclers, namely (1) an order of certiorari to qua.sh the decision of the Executive Conmittee of the Council of the Institute of Finance Mnnn.eenent dated 2 May 1904; a.nd (2) o.n order of mandamus requirine tho Council of thc.t lnstitute to n.waI'Cl h1m a ~rli- f'icate of .\dvo.nced Diplona. in :.ooou:otcncy. The npplico.tion bn.s been stoutly contested by the Institute. Most of the so.lient facts ere not in clispute. The applicant was a student at the Institute in Dnr es SnlnQn, pursuing a course of study in aooounto.ncy conc1ucte<1 by the Institute <1ur:inc the 1903/04 o.cademic ·~ year.· He nnd other stuucmts set for f:inci,l mc::min'ltions in January, 1984. Sadly, an outra&e had ta.ken place in coru1cction with the exnoinn.tion T'1 papers a.nd model answers and the cxnnino.tions ho.cl been extensively leaked. A cood number of the ccndidctcs h~d oLto.:ined unauthorised prior nocess to the exominotion papers ~nc1 noc1cl o.nswors. The exo.r.1i11ors wore not J3l.1>W to apprehend tha.t there ho.c1 been such o. lenk. It wo.s pcrhnps ;i.ru:rv±table, for some of the canclido.tes vmre so no.j_ve, .nny thoUGhtless, that they reproduced the model answers verbntim. It was considered to be o. cnse where the examination as o. whole could not properly be said to be o. reliable measure- oent tool of knowledge and expertise of the ea.ndidates. A decision was thus made to ( 1 ) nuJJ.ify the results and require the cand:Ldntes to re-take the exo.minnt:i.,ona in April, 1904; (2) set up a. Col:lrlittoe to probe the leakage o.ncl prepare o. report; o.nd (3) seek assistance of the state security or&ms to investiGnte the matter. It wo.s o.lso clocided thnt the results of the Ain";U exnm:i.J:llltions should be tied to o.ncl to.bled tocether with the repo- postpone rt of the probe cor:miittoo nn<l to / ; any c1isc;i.pli.nnry or punitive action aBa.inst any incliviclunl r1ho may have teen involved in the afftiir, including the nullification of the ,\ pril eY....'1uir1'J.tion results, until the final results of the investigations ho.ve been Sl~braitted. 2/••.••• - 2 The applicant 2.nd the other canc.1iclo.tes resa.t the exnminations in early April when the probe coLJIJi ttee that Ho.s famed wo.s carryins out investigations. On 27 ,~pril, 1904 tho :J.pplicc..nt was officially infcmed that he had passed the eY..c..r:!inntions. Honever, on 2 May 1904 ho received a diGtressL1c lot-~c:· :.::':.:-:.:,,:1 t::10 :lct:iJ.1G Director of the Institute which read a.a follows: 11 Re TERIVIIN"i~TION O:::' ;cFv."~NCED DIPLOM:'i. 3TUDillS 1. :rou may remember tho.t the Institute in Jo.nUt1ry, 1904 encountered pro blern.s in the final e7..nnir.,.D. tion process of of the 1903/04 Advc.nced Diplorn.a. in AccountinG third year students of the fa.c~ that a eood number of the students in tha.t class had unauthorised access to some of the exam papers and/or model answers. Subsequent to this the Institute set up an independent probe cor.JDittce to investicate this whole o.~fo.ir, 2_. The Executive Conmittee of the IFM Council which set up this inviestiea.tion received C'.nd clcliberate(1 the probe commi- ttee report in its fortieth (extra-ordinary) neetinB held on Friday, 1904. AccorclinG to the fim1in3s and conclusions of this report you are one of the students v1ho o.rc hiehl,y impli- cated, 3. The Col!lID.ittce :·.otecl with ,:ro.ve concern th1.t .. you are depicted ns one of the pr:una.ry clique uenber in your clnss who participated and/or assisted contrary to Inoti tute I s rules of exom:i:n..:1.tion and good discipline in the comr.:iercio.lizecl distribution and propa.ga- - tion of the e:xn.aino.tion popers nnel/or nodel nnswers which leaked,. The Committee observeel further tha.t, as if that wns not enough, you subsequently clic.1 l1ot nnnt to tell the truth to the investi&1tors; during the investieation which ensued; you were nonrepentant; you were intra.nsi13ent if not arroGS,nt and you were obdurate if not -thorou{3illy uncooperative in this investiGation., It was noted also tha.t the Wide propo.,:;c.tion of the lea.keel mcaos co.used a lot of pro- blem.a to the coranunity ::.m<.1 onto.Heel enorooua financial costs to the Institute,. ,'1.11 tl:e:se beho.vi01..:ro.l patterns, j_t was observed by the Committee, nre not consis~~or..t v,j_th r.;oocl discipline and are contrary t9 professional et~:::.c.~ m::.·. :.::!~ocrity in your field of training. 4. Deen.use of the c.1.:-ov·) :..·00.::;om:: tho E::cecutive Comittee of the Institute 1s Council :lnz C. ;.;ciC ::;;J to terninnte your studies at the Institute with ir.:rc.::.i:::.te: -.::'.:'f'o.::t and nlso to bnr you from attemp- ting any IFM cxru:ri.no.tionw i~ future as well ns nullify whatever results you may have hnd in t:1is yeo.r 1 s ,\pril 2-6 examinations, if you happened to sit for those exar:unc.tions etc". 31•••••••• - 3 - This letter was copied to the o.p~,licant I s er.iployor, am.onts others. His employer reacted by wri ti.11c to hiD. on 23 fhy, 1904 rebukine him and informine him that the fa.ct tho. t l:c lnc1 under(sono the course of study would not be recognizedo ~'i.t this juncture I pause -to notice, only to reject, nn are;ument that was advanced by the nppliront to the effect that the Institute had no legal competence to terninnte his studies, nullify his results of the <lpril examinations and bar bill fron future enrollnent and attempting any of its emrJi.notions. For one thing, exnmi11.0tions such as these, are meant to be honestly n~u honorably set and taken for they are contemplated to be, as the Institute observed, a reliabla measurei::,.ent tool of knowledge and skill of the candidates. . For another, it cannot be denied that the Institute sto0d embarrassed anu uisc:r-aced by the leak and its integrity stood tainted. The leak thus bore viewine with seriousness and those who were involved in it should surely expect to be severely dealt with and visited with deterrent or exeuplnry peno.lties. I entirely als!'ee With the Institute that under both the IH.i .\ct, 1972, in pnrtic~ section 7 thereof, and the seneral rules coverninc such c:xriru.na.tio:ne, it lw.s the discretion to treat the applicant in the manner it did. The pro be comrilittee that v,a.s fornecl by the Exe cutive Conrait::tee of the Council of the. Institute wn.s eiven the follov7inaterms of reference: (1) to find out whether there was a len.knce of the. exq,ninn,tions; (2) if so, to establish nn<.1 indico..tc when, how, where nml by whom the e:xnr:d.na- tions were lea.keel, what papers nncl/or t:1odel onswers leaked and to what extent; (3) to find out weakneDses, if nny, in tho eXl'.r.dnntion adnini.Stro.tion system tho.t I:lie}lt have contributed to the lealcnee, in po.rticular,. to exnraine the circunsta.nces of settins, a':.I'king, externru. exarninu,.g and. iIIV'ieilntion of exnmin.o.tions; (4) to mo.ke observations on the above points and o.ny others that might be pertinent ~ereto, draw -0onclusions thereof and re.c.oIDtlend appropriate aotion to be taken; . (5) to cletomine o.nd reeuinte its procee- dings as it deems fit nncl to co-opt nny other person or persons who in its opinion may fo.cilitnte the execution of its tnslcs •. ln <lisc.ha.J:'5ine its assiennent the probe coOI.U.ttee examined a host of doe\llllents and conducted interviews with 24 people, who included students; examiners ancl officials of the Institute o.nd lID.'...l, the acronym for National Board of .\coountants nnd ,luditors. It wo.s · sfanclard procedure to send the examinations papers to im:iA for noclerotion. The applj.oan:t was one of the stu.dcxits who was interviGwcc.1 by the probe .coJ;ljJittee, - 4 - ,\t the conclusion of the i.'1vesti3a~ions the probe oonnnittee stated, in s1.J.I:J., thnt it profoundly suspected one Chandrasekha.ran, a moderator with NBA.~, and one ~\Tnshenene, a co-ordinator with the Institute, to be the source of the leak. It opined that either of the two had surreptitiously civen one J.ngela Mpanduji (who was a candidate ) the e.xnrai.na tion pa pors l"'.nJ thn t the so.id /,_ngela liad in turn passed then to the applicant and two other candida·~es who, in turn, in tho words of the committee, constituted themselves as distribution aeents and oade then available to other candidate8 in consideration of cash or kind. The first main question thnt arises is whether the Council had authority to establish the Executive CorJDittee that set up the probe committee, ancl if the ansi7or be yes, whether the Executive Comu.ttee had competence to exercise such powers. ~ pnraeraph 10 of his affidavit the O.:Jplicant contends that the Il!l-:1 .~ct, 1972 does not provic.1e for the creation of ouch n cormittee anc.1 that, therefore, the creation of the cocr:1i tteG by the CJU11cil was an illeenl exercise of the powers conferroc.1, on tho Council by the .\ct. Mr• Marando who appeared for the c.pplico.nt hr..s 01.;.bnittccl that tho only body that could have acted nr..:.uinst the npplicnnt vns the Students' Disciplinary CoIJraittee established under rule 37 of the IFM: Studmi't Rules set out :in the IFM 1903/04 Prospectus. :,c-;a:inst thnt subnission i'.Ii ss. Mjasiri of the Tanzania. Lels3,l Corporation, counsel for tho respondent Institute, replied that the Executive Conni ttee l:::tc.1 a lecal status and that un<ler the. IFM Act the Council enjoyed discretion to establish such a con:n:Jittee. With reea,rd to the IFM Student Rules,·it was her argument that those rules did not apply to academic natters¥ :-..s inc1icatec.1, the Institute wo.s established by an ./1-ct of Parliament. i.e ••let No.3 of 1972 0 The objGcts o..nc1 f\;,!lctions are to be found in section 4. By section 6(1) tho Council-is the body vested with the governance and control of the InstHute 0 lfow the Executive Collltlittee wns created by the Council in its 1--ieetfo.c; held on 24 Septeuber 1974. It is a snaller body than the full Council, it beine conposed of only half of the nembers of the Council • •\mons other things, the ~ecutivo CoIJJ:J.ittee was char5ed With the functions of dealinB, i.11 ene::eenoy- cases, \7ith such natters as are normally considered by the Council, in between Council meetings. It was expressly stipulated that the c.1ecisions of that Coamittee are subject to ratification by the full Council. 5/••••• - 5 - In ny view section 6(2)(f) of the IFNI ,\ct is wide enough and gives the Council power to establish such a Co:mr:d.ttee and to invest it with such authority. I take the view that this was not an instance of abdication of power by tho C·ouncil, but c. VD.lid exercise of its statutory discretiono ;~s nforest8.tec1, the Council prescribed that all decisions of that Co::.:mittee v1oul<.l be subject to ratification by the full Council. Essentially, by thct proviso tho Council retained conplete control over all the functions assi~nod to tho CorIDittee and the Council intended to continue to nduress its ovn1 .oind to the exercise of the powers dele5atec1 to the CoDnittee., I also tnke the view that the Executive Comraittee did not encroach on or usurp the powers of tho S tuclents I Discipl:i.na.ry Comm. ttee. It is not true tha.t the S ~udents 1 I:isciplin~~ry Coor.iittee has any power to deal with academic natters,, I ha.vo perused the IFJ:.i Stuc"!ent Rules and I have come to the conclusion thc'/c such nnttors c,s the leolroge of exnninations fall outsicle tho purview of those llulcs. I au satisfied thnt the juris- diction of the Gtuc!8:::1tc :·:;_sciplinary Coooittoe is confined to what may be described as donestic matters such as those pertainins to accotmc:>dation, kitchen, drunkness, nuisance nnd the raisuse of ousic instruoents. I pass to t~~ seconu z.;;::L;.1 question, which is whether the proceed- ings of the probe co::.mittce ·;::,s conc1uctec1 in accordance with the rules of no.tural juotice~ The ci.p:,lict:nt hc.s averred, vide pnrasraphs 11 and 13 of his afficlo.vit, tho.t :1e y:o,s L1enicd n..'.:l.tt.U-ul juotice in that (a) he was not infomod, tr..roue}:lout, tll::i.t he \':as a. subject of suspicion or-investi- c.,ration; and (b) thnt he wrn,, not 1;.ffor<.1ed Ol)!)ortunity of being heard. This has been deniec1 by the Institu~c~ The parties 8eco to be ncutely aware, a.nu it is trite to reBark, th~t an administrative bo~y ezcrcisine functions that iopinge directly on legally reoogniscc1 interests owes it as n duty to act judicially in accordance with the rules of-nnturo.l justice, which basically means the adoption of fair procedure, which funclai:mnto.lly deLJanda f'reedom from interest and bias on the pert of the adninistTo.tive body and the right to a fo.il" hear:me for those nho ure mneclic, tcly affected by its decision. ,:\nd it is COJJLlon ~;:-8unil the-. t this court has discretion to intervene and award appropriate reliefs where the rules of no.tural justice have not been obse~d• Quite elonrly, ant ncnin it is corn.1011 crouncl, the probe committee was investientine on enornous rotter untl tho authorities must have apprehe- nded that the effect of its findinJs was bound to ho.ve substantial adverse :i.npaot and consequences on tl-:.o interests. of certa.in individuals. The 6/ •· .•••• - 6 - applicant is certainly one of the people who have been detriraemtally affected by the findings of the ~robe cormttee. That is patently evident froCT the severity of the penalties that were eventually handed out to him by the Executive Cou:1ittoe nrsd by his employer. I hold the view that the applicant, whoso ric;hts anc.1 lccitil::late expectations stood to be so ndversely affected by the inquiry hnu the rie;ht to have an adequnte opportunity of lmovli.'1.C tho co.so he had to Beet, of answering it, of puttine forward his Oi'ln case, c,m1 ol beine fairly and impartially treated. In other wor<ls, he had the richt, first, of being suf'ficiently apprised of the particulnrs of the prcjuJiD,l o.lle:30-tions that were to be made or had been r.10.dc n 0--a.inst hir.1 1 so toot ho could effectively prepare his answer and collect evidence nccessr.tr:, to rebut the ca.so ac,,oinst h:i.D; secondly, subject to tl10 noocl for Y1ithholdin5 details in order to protect other overridine interests, a.nd in ey opinion there was none here, of being nooorded sufficient opportunity of controvertin~ or cotm1entin& on the materials thnt had been tendered or Viere to be tendered a.gninst him; thirdly, of presentine his own case; o.nd fourthly, of beine civen n reasonable ond fair doo.1. It matters for noth:l.ne; that these were proceedings iniiti.nted by on Institute of hie;her 10arn1ne. The weieht of modern authorities is in favour of tho view tha.t disoiplinr~ry proceedings in hiG}ler eduootional institutions have to be conducted in oonfomity with natural justice, provided et least tho vencl ty ·1i:1poseQ. or likely to be iraposed is $evere: see 11 y .\ston Universi t?L Geno. te, Ex p, lloft'e,y a.pd ..1nother, (i969) 2 QBD 530, a decision thnt l:ia.s been referred to by both sides; Gl:ynn v Keele Univers,itY, (1971) I rTLJ.'1 407, o., co.se of sur.n'1ry suspension froo :tesidence on the oaopus for disci11lin;.,ry offence; cm<l uore helpful 1 Ceylon University · v, Fernando, (;1960) 1 Y/Lll. 223, O, · 08.SC of <lisc1ualifico.tion from doeree for alleged oheo.tins in exn;.u.nntion. With due respect, it is, in ny considered opinion, not 4nex.at:meration to say that the appliccmt wo.s deJ.)rived of his rie;ht. It cannot be seriously denied that there is nothing in the .record thnt shows that he was apprised· of the pa.rticuJ.e,rs of the o.llo,5'.tions tha.t wcro to be rode or hD.d been made aga:inet hitl. It will 'be rcr.:c~:bered that the probe coonittee ca.rried out. its assi{i!l'llilent by scrut:i.llizine eeverai docuoents and interviewing scores of people. I hsve 5one/t~~~oowJents cnu in reeo,rd to the applicant I see nothing do.mnine in thee.., Tho rccort1 of the proceedings of the committee ., shows that it net on r:.1evo~.1 ,::,ccG,cionc to conduct the interviews. About the only interviewee who ir.aplicntc2 tho npplic~U1t wo,s one Ancilla Kilinda. 7/ •••••• 7 - This ,'\.ncilla Kilinc1a ·.7:.:..s also a candidate and, as the idio.o eoes, 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 Mpnnc.1uji for ahs.l,500/-. She disclosed that the papers she acquired were handwritten. She so.id she destroyed them irill:Iedio.tely after sitting the oxnuinntions. She vm.s had to exaoine several scripts and, o.ccording to the report of the probe coI:1t1ittee, she sineled out the scripts of the applicnnt, clnirri.ng that they were similar with the handwriting on tl1e eY..c.u:i.nntion papers she hnd purchosed from Angela Mpanduji. Thnt was a serious nllecation and it wns re01rded by the probe corn::uttee ns hig].1-.:_;r[.,de in:foruntion and in no smll way led the conmittee to infer that tho c.pplicnnt wns a party to the scandal. Tl)e coomittee nicht be richt. Dut vib.o.t is objectionable is that the substance of thnt adverse j_'YJ.for.:.:.ation ',7£:.s not put to the applicant at all. He hcd, therefore, no o,port-unity to deny or nclnit it. Of course a party cannot deny or a.unit 'bhc,t of which he is un..'lwnre. This is not •· to say, however$ that ;.ncilln ~~i:'.i.'1(:.a Y,:::.s uncnnc1id with the probe commi- ttee. .Ansela Mpuncluji appeared before the probe coDIJittee for interview. She did not in the least iLlplica.te any body, let alone the applicant. In actual fact she was not o.sJ:ccl :::.::ythir..g about the a.pplicant. The information provided by one or two other cr~.:~.,.:.::.-2::i.tes ,·:t'.s in tho lnot analysis either marginal or wbnt they ha.d pic1::cJ u:_) second hand and I ara unable to see any- thing probative in it. On 5 April, 1904 tlio applic:1nt ·,w.s intervie{1.,by the probe comoittee. I will set out in extenso nhr.1.. t trc;::1s11irocl: 11 Q. Co.n you tell us :J.l1.Y'1,hine strane;e or unusual y'.)u hcc.rd nbout the exno before tho ox.:::.c. wns <lone? A. The stuclonts norked vory·ho.rd to prepare thenselves for the exans, But I heard no rw:iours~ Q: Do you ha.ve a. study group? Q Who are your study eroup? A. I do Rot h/:1.ve a.ny specific study· cr::iup~ I ·•..::v..n2..::..y stucly on ny ovm. Q. Uho i~ your clc,ss, hnve you, for ex.a.raple, been stuclyin[s vri th? A. It all cle:yoncls on the topic. My eroup chance ·,·1ith tho topic. o/•••••• ..., - u - Q. Any c;irls you c-.rc used to in your class? I WQS used to r.hira in first and second year o.nd /mcela Mpr.mduji in third year. :\.ne:;clo was sellin5 exo.ns, did she sell to you also? .1.\. No, I~never bey ex.a.ms. I pass on my own effort. Q. Diel you lmow that ..\ne;ela wo.s selling exams or she hncl e:xnos? .A.. No• Q. One clo.y you were studyi.n.B in your room with some colleneues,. sooeon0 cone and lmocked at tUe door •. You locked hin auto You were di6estirie o.n exam you had lnicl hnnd.s on". A, This is 100% lieo Q.. When ~·,ne;elo. cot the papers she was looldng for soneone to assist her with solutions.. You assisted her, A. Thnt is not true. Q. • Is .:\.neela your friend? A, That is what people th:!.nk. But she is no more than soneone I study with. Q. But · she is surely more than that :to you •. A. Yes, at one stage she mtroduced me to her father, and I once escorted her tq the airport when her sister was passinc; throue;h frow Soychelles 11 • This interchr..Dge is drarm fron po..e;cs 54 o.ncl 55 of the report of the probe . conmittee. On a careful rca.dine one r.10.y probably discern some in consist:e- ncies,even evasiveness, in the answers of the ap;;,licant. But, as pointed out supra, there is, fro:.i stnrt to encl, nothine in thD. t interview which shows that the identificntion of the scripts by ~ncilla Kilinda was intima.ted, much less announced, to the applicant. \"fhatts more, it is plain, I think, there is nothing to show that the applicant was in.formed thcit he was one of the distribution aBents of the leaked exarr)jnations, contrnry to v,h.:i.t is deposed in parag.raph 7 of the counter-affidavit. Equally plcin is th-:-.t there is nothing that shows that the applicant had, durine the course of tho interview, been mnde to under~ stand that he was appearines before that cor:nittee to answer such a charge, ,\nd certawJ.y there is nothinc in his answers that can validly be said to have tangibly and gredibly established that he was a party to that illecsal enterprise• More l:Ucely than not the appli~ wo.s one of the candidates 9/••••• 9 who hnc1 access to the exaninntions be:fore the ciue dntes. Hovmver, it is well to keep in ninu t:~~,t tho aisconc1uct :fo::.' which he 'No,s punished 11 was what the Actinc Director t1oscribec1 as tho comercia.lizec1 dist~bu;~on and propagation of tho leaked oxar.unation papers and/or nodel answe~s" i It my be successfully asm~rtec1 thnt under its terns of referen~ the probe coIJ.1t1ittee wns not expoctec.1 to conduct a disciplinary proceeding as such. It is plausibly arcuo.lJle that it wns only asked to investieo.te but not to give a bindinc decision& Even if thnt was the case, it was, in my view, still placed under oblisntion to observe the rules of natural justice, because it was investigating whet wns essentially a serious public scandal, and since it ho.din its posnession the resolutions of the Executive Coilliilittee, it was aware throuchout that tho ilwestiC,-ntion o.nc1 its report were po.rt of a process that could terninnte into notion adverse to the interests of some of the interviewees, as indeed tl1oy c.1ic1-I?.e Por;7:i.mon Press Ltd, (1971) (IJ.q 388 1 is a case in point. In the final event thir:: c;:~j)lico.tion is :_:ranted. The decision of the Executive Comnitteo i.s horo:Jy c~uc.s:1ec1 c,nd t?10 Council of the IFM is direc;ted to award the applico.nt u cortii'ic-'.'. to of ~~c.1vo.nccd Diplono. in Accountaney• Costs are to follo':-i thc- ov2:,r\. Delivered o.nd cl8tec.1 12 Ser)tenber, 1906. Miss. Mjasiri for Mr~ I.1arnnc1o i'or Applicnnt .. M1ss. Mjasiri for Responc1cnt.