JOSEPH KOBEAH & 39 ORS. vs. AKOMEA BOATENG & 78 ORS v TEMA OIL REFINERY CIVIL APPEAL [2004]DLSC2395

JOSEPH KOBEAH & 39 ORS. vs. AKOMEA BOATENG & 78 ORS v TEMA OIL REFINERY CIVIL AP... [2004]DLSC2395

Date	2004-07-21
Suit No.	CIVIL APPEAL NO. 9/2003
Citation No.	[2004]DLSC2395

KPEGAH J.S.C. (PRESIDING)

MISS AKUFFO J.S.C

BROBBEY J.S.C

DR. TWUM J.S.C

DR. DATE-BAH J.S.C.

DR RAYMOND ATUGUBA (WITH HIM BAASIT ABDUL AZIZ) FOR THE APPELLANTS.

KIZITO BEYUO FOR THE RESPONDENT.

[2004]DLSC2395
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													<main id="main" class="content" style="min-height: 60rem" >JOSEPH KOBEAH &amp; 39 ORS.<o:p></o:p>vs.<o:p></o:p>AKOMEA BOATENG &amp; 78 ORS v TEMA OIL REFINERY CIVIL
APPEAL<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. 9/2003<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE: 21ST JULY, 2004.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>&nbsp;DR RAYMOND ATUGUBA (WITH HIM BAASIT ABDUL
AZIZ) FOR THE APPELLANTS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

KIZITO
BEYUO FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

KPEGAH,
J.S.C. (PRESIDING), MISS AKUFFO, J.S.C., BROBBEY, J.S.C., DR. TWUM, J.S.C., DR.
DATE-BAH, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>&nbsp;KPEGAH JSC.&nbsp;
On 17 June 2004, this court allowed the appeal against the decision of
the Court of Appeal but reserved its full reasons to be given later.&nbsp; I now proceed to give my reasons why my vote
was cast that the appeal be allowed.&nbsp; <o:p></o:p>The
facts of this case are fairly simple and I do not think a detailed discussion
or analysis of them is crucial to the determination of this appeal.&nbsp; The essential facts should not seriously be
in dispute since the case was contested from the trial High Court to this court
purely on legal grounds, both substantive and procedural, with the latter
dominating and tilting the scales against the appellant in the Court of Appeal.<o:p></o:p>The
case arises out of the decision of the Final Award Committee of the West
African Examinations Council (hereinafter referred to as the council) not only
to cancel the entire results of the appellants but also to ban them from taking
part in any examinations conducted by it for three years. The facts, which in
my view are essential for the determination of this matter, are briefly that
the council is established by a convention between English-speaking West
African countries which was later incorporated in the laws of Ghana by the West
African Examinations Council Law, 1991 (PNDCL 225), with the sole authority to
conduct, in member countries, such examinations as the council may think
appropriate and to award certificates and diplomas based on the results of such
examinations. The council, therefore, is the sole authority&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; responsible in Ghana for the
conduct of both the Junior Secondary Basic Education Certificate Examinations
(BECE) and Senior Secondary School Certificate Examinations (SSSCE). <o:p></o:p>Between
October and December 2000, the council, as it normally does every academic
year, conducted the Senior Secondary School Examinations throughout the
country.&nbsp; The appellants were all
candidates at this examination with their parent school, the Notre Dame Minor
Seminary in Navrongo in the Upper East Region as their examination centre.&nbsp; While waiting for their results, the
appellants were informed through the headmaster of the school about the cancellation
of their entire result on the grounds that they had been involved in some
examination malpractices or irregularities in relation to Mathematics (Core)
Paper 2.&nbsp; The nature of the
irregularities the appellants were said to have indulged in was that they had
foreknowledge of the paper and colluded among themselves in solving the
questions.<o:p></o:p>Upon
receipt of the letter informing him of the cancellation of the results of the
appellants and the imposition on them of a three-year ban from taking any
examinations under the auspices of the council, the headmaster of the Notre
Dame School petitioned the council to review its decision.&nbsp; He advanced a number of reasons why he felt
the sanctions needed a review.&nbsp; The most
important and relevant, in my view, is his objection to the procedure adopted
by the council in its investigations, culminating in the punishment of his
students. He urged upon the&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
council that the claim that the appellants had foreknowledge of the
Mathematics (Core) Paper 2 is only an allegation and the invocation and
“application of rule 56 without further investigation to ascertain the veracity
or otherwise of the allegation is a bit harsh on the poor&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; students.”<o:p></o:p>By
this statement, I understand the headmaster to be taking issue with the
procedural unfairness of the investigations which were said to have established
the involvement of the appellants in examination malpractices in relation to
the Mathematics (Core) Paper 2, thereby&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; calling for the lifting of the
sanctions imposed on the appellants by the Final Award Committee of the
Council.&nbsp; The fact that a non-lawyer
could raise such a serious issue on procedural fairness, to me only underscores
how fundamental and basic its observance is by any person in our present
constitutional dispensation making a decision which affects the rights of
others. The headmaster also contended in his petition for a review that neither
before, during, nor after the examinations at the centre was there any incident
which suggested that any of the students of Notre Dame School had foreknowledge
of any examination papers, let alone colluded during the examinations. The
headmaster further indicated that when the allegation of foreknowledge and
collusion was brought to their attention, the school authorities not only
subjected the affected students to a thorough examination but also the masters
to self-examination in what he called “a true spirit of a minor seminary” in
the hope of finding where they might have erred this time round but their own
investigations revealed the contrary.&nbsp; He
then protested the innocence of the affected students and claimed that any
similarity in their answers might have been as a result of a particular use of
a common text book – (Aki Ola Series) and SSS Mathematics (Core) (Dalaba
Series); and that those books treated past questions from 1993 to 1998 which
the students could have learnt.<o:p></o:p>In
a short response to the headmaster’s petition for a review, the council stated
as follows:<o:p></o:p>&nbsp;“During the conduct of the 2000 SSSCE there
were allegations of foreknowledge of some of the question papers.&nbsp; The only means by which the council could
verify the allegations was the scrutiny of the scripts of the candidates.&nbsp; As a result all scripts were
scrutinized.&nbsp; From the scrutiny it was
established that there was foreknowledge and collusion among the 13 candidates
from your school in Mathematics (Core) Paper 2.&nbsp;
The council therefore applied the prescribed sanctions.”<o:p></o:p>&nbs</main>