WHETHER THE CRIME OF EXAMINATION MALPRACTICE SHOULD BE TRIED BY A COURT OF LAW/TRIBUNAL

CASE TITLE:                         AHMADU BELLO UNIVERSITY, ZARIA v. RASHIDAT SULEIMAN OBANLA (2021) LPELR 55101(CA)

JUDGMENT DATE:           13TH JULY, 2021

JUSTICES:                            RAPHAEL CHIKWE AGBO, JCA

                                           FATIMA OMORO AKINBAMI, JCA

                                           ABUBAKAR MAHMUD TALBA, JCA

COURT DIVISION:            KADUNA

PRACTICE AREA:              Education- Examination Malpractice

FACTS

The Respondent was a student of the Appellant (Ahmadu Bello University, Zaria) in its Mathematics Department, under the Faculty of Science. In the 2012/2013 academic session, she graduated with B.sc (Hons) in Mathematics and was issued a letter by the Head of the Mathematics Department addressed to the Academic Secretary of the Appellant, stating that the Respondent had successfully graduated and thus requested that necessary assistance be rendered to enable the Respondent to collect her certificate of graduation.

However, at the point of collecting her certificate, the Respondent was informed that she had no certificate as she was expelled by the Appellant since 2012 by a letter of expulsion dated 27th November, 2012. The expulsion was as a result of an incident that occurred when the Respondent was in 300 level in the 2011/2012 academic session wherein it had been alleged that the rough jottings the Respondent made on her examination card amounted to a cheat note.

Consequently, the matter had been referred to the Faculty of Science Examination Regulations and Irregularities Committee (ERIC). The Respondent was invited to the Committee but she was not asked to give any explanation neither was she subsequently contacted by the committee as regards any decisions made.

The Respondent completed the rest of her undergraduate studies without any hitch. It was at the point of collection of the certificate that she was informed about the expulsion.

The Respondent protested to the Vice-Chancellor of the Appellant without success. The Appellant maintained that the Respondent was expelled on 27th November 2012 for violation of her Matriculation Oath but that its Senate Standing Committee erroneously omitted to inform the Mathematics Department.

As a result, the Respondent instituted a suit at the Federal High Court on the 30th of September 2015. The Appellant defended the suit and also contended that the Respondent’s suit was statute-barred by virtue of the provisions of the Public Officers Protection Act.

In its considered judgment, the Federal High Court found in favor of the Respondent. Aggrieved, the Appellant appealed to the Court of Appeal.

ISSUES:

The Court determined the appeal upon consideration of the following issues:

1. Whether the learned trial judge was right to have held that the suit of the respondent was not statute-barred by virtue of the provisions of the Public Officers Protection Act.

2. Whether the learned trial Judge was right to have held that the respondent was denied a fair hearing by the appellant.

3. Whether the learned trial judge was right to have held that the appellant maliciously and deliberately represented to and made the respondent believe she was still a student and as such the appellant was stopped from reneging on that state of affairs

COUNSEL SUBMISSIONS:

Learned Counsel to the Appellant submitted that an action cannot be commenced against a Public Officer for an act done in pursuance of any public duty unless it is commenced within three months from when the cause of action arose. That the cause of action of the Respondent arose on 15th May 2014 when the Respondent became aware that she had been expelled from the Appellant, but she commenced the suit at the trial Court on 30th September 2015 which was clearly after the three months period, thereby making her action statute barred

That the fact that examination malpractice is a crime does not prevent the Appellant from disciplining the Respondent as its student since the ABU ACT makes provision for same by virtue of Statute 9(4) of ABU ACT which empowers the Appellant to discipline its students.

In response, the Respondent’s Counsel submitted that the Respondent’s cause of action arose on the 21st July 2015, after having exhausted all internally available remedies by appealing for a review in line with the ABU Act. That even though the Respondent initiated the suit within 3 months from the date the cause of action arose, she is actually exempted from the limitation provided in Section 2(a) and (b) Public Act, in view of its nature.

Counsel submitted that the Appellant acted outside its statutory duty which pertains only to academics and actually usurped the duties of the Court of law by pronouncing the guilt of the Respondent for the alleged offence of examination malpractices which is a crime and only triable by the Federal High Court. That there was a continuance of injury and the Appellant acted in bad faith by not informing the Appellant or her department of the expulsion until she completed her studies.

DECISION/HELD:

In the final analysis, the Court of Appeal held that the appeal lacked substance and same was accordingly dismissed.

RATIO:

1. EDUCATION – EXAMINATION MALPRACTICE(S): Whether examination malpractice being a crime should be tried by a Court of law or Tribunal

“In this instant case, Section 14 of the Examination Malpractices Act Cap E15 LFN 2004 clearly states that examination malpractice is a crime and it is triable by the Federal High Court. In the case of OLUTAYO V. F.U.T. MINNA (supra) which was relied upon by the trial Court. This Court held thus; “Examination Malpractice is an offence under Section 1 and punishable under Section 1(2)(a) of the Examination Malpractices Cap E15 Laws of the Federation of Nigeria, 2004 with a fine of N100,000 or imprisonment for a term not exceeding three years or to both such fine and imprisonment where the person is under eighteen years. It follows therefore that a person accused of Examination Malpractice is entitled to a right to fair hearing under Section 36(1)(4) of the 1999 Constitution. The offence of Examination Malpractice which the appellant was accused of and upon which she was investigated by the Student’s Disciplinary Committee of the Federal University of Technology, Minna and later expelled by the Senate of the University is only triable by the Federal High Court pursuant to Section 14 of the Examination Malpractices Act. Neither the students Disciplinary Committee nor the Senate which approved the recommendation of the students Disciplinary Committee have jurisdiction under the law to adjudicate on allegation of crime as they are not a Court of law. Offences against the laws of the landfall outside the jurisdiction of the University Senate or Committee set up by the University Council. If a student is charged with the commission of a crime that student can only be proved guilty before a Court of law. See GARBA V. UNIVERSITY OF MAIDUGURI (supra). it should be observed and noted that students in our universities are not above the law of the land, and where obvious cases of breaches of Penal laws have taken place the authorities of the University are not empowered to try the matter as an internal affair…” OLUTAYOS case (supra) is in all fours with the instant case… It is quite evident that the appellant did not resort to the Court after its investigation but rather proceeded to expel the respondent… What can be deduced from all the decisions of this Court and the Apex Court in relation to allegations of Crime made to students, is that Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) dealing with the right to a fair hearing is sacrosanct. Section 14 of the Examination Malpractices Act, having stated clearly that examination malpractice is a crime and it is triable by the Federal High Court, the appellant had no option but to resort to the Court to prosecute the respondent. It is settled law that where a statute specifically and expressly provides for a particular method of performing a duty, that method and no other has to be adopted. See ATIKU ABUBAKAR V. A-G FEDERATION (2007) 3 NWLR (PT. 1022) 601; NWANKWO V. YARADUA (2010) 12 NWLR (PT. 1209) 518. The Courts have a duty to ensure that nobody or authority is allowed to usurp the powers of the Courts and the flagrant breach of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.” Per TALBA, J.C.A.

• EDUCATION – EXAMINATION MALPRACTICE(S): Powers of an institution to discipline its student for examination malpractice

“The vexed issue here is the powers of the University to discipline their students pursuant to the enabling statute and the students right to fair hearing as guaranteed by Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It is certainly not in doubt that a University has the power to discipline its student. The Court will not attempt to curtail such disciplinary powers for the good of society and the younger generations in particular. However, the Court has a duty to see that the University exercises its powers in conformity with the rules of fair hearing. If a student is alleged to have committed misconduct that amounts to a crime it is a matter for the Courts to deal with, that does not mean that as Judges we condone cheating in examinations which no doubt lower the quality of education with the consequences of allowing patients to die at the hands of such doctors. Buildings collapse at the hands of such Engineers, money missing in the hands of such accountants, Justice is lost at the hands of such lawyers and Judges. See DENLOYE V. MDPDC (1968) A.N.L.R 298; GARBA V. UNIVERSITY OF MAIDUGURI (supra). In Garba’s case Uwais JSC (as he then was) stated thus: “However, this does not mean that every trivial or minor offence committed by students becomes the subject of prosecution in a Court of law. It is the responsibility of the vice-chancellor, in the exercise of his powers under Section 17, to distinguish between the serious and minor act of misconduct which has given rise to serious or minor criminal offences. ” Per TALBA, J.C.A.