The Republic Vrs The vice Chancellor - Kwame Nkruman University Of Science And Technology (J4/7/2008) [2008] GHASC 16 (12 November 2008);

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA - GHANA

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CORAM:- BROBBEY, J.S.C. (PRESIDING)

OWUSU(MS), J.S.C.

DOTSE, J.S.C.

ANIN YEBOAH, J.S.C.

BAFFOE-BONNIE, J.S.C.

CIVIL APPEAL J4/7/2008

12TH NOVEMBER, 2008

THE REPUBLIC … RESPONDENT/RESPONDENT/RESPONDENT

VRS

THE VICE CHANCELLOR KWAME NKRUMAH

UNIVERSITY OF SCIENCE &TECHNOLOGY

EX-PARTE: NNAMBI NNAKWADORO ENEKWA & 4ORS … APPLICANTS/

APPELLANTS/APPELLANTS

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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