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By SANDRA IMADE

INTRODUCTION

This legal opinion addresses questions pertaining to the legality of the powers of the West African Examination Council to cancel any scores or subject of a candidate on the ground of examination malpractice and examines the recent case of Agbakor Isaac Terkuve v West African Examinations Council SUIT NO. MHC/37/2023 (unreported) Delivered on 7^th March 2024 by Justice Kume in line with the provisions of the Constitution of the Federal  Republic of Nigeria, 1999 (as amended), The Examination Malpractices Act, Laws of the Federation of  Nigeria, 2004 and the West African Examinations  Council Act relaying to the administrative powers of West African Examination Council.

SUMMARY OF THE CASE

1. The West African Examinations Council (WAEC) is an examination board established by law to determine the examinations required in the public interest in the English-speaking West African countries, to conduct the examinations, and to award certificates comparable to those of equivalent examining authorities internationally.
2. Mr. Agbakor Isaac Terkuve (Plaintiff), sat and wrote the secondary school leaving certificate examination organized by WAEC (Defendant) for the year 2023 in Benue state, Nigeria. The Plaintiff wrote 9 subjects including the Use of English and Mathematics which are compulsory.
3. Upon the release of the 2023 examination results by WAEC, the Plaintiff was taken aback as his scores for the use of English and Mathematics were withheld on the grounds of examination Malpractice.
4. The Plaintiff instituted an action against the Defendant in the Benue State High Court challenging the legality of the cancellation of his result in the subject of Mathematics and Use of English by WAEC.
5. The court per Justice Kume declared that the unilateral cancellation of the scores/results in the said subjects by the Defendant without affording the Plaintiff the opportunity to defend of any allegation is an infringement of the Plaintiff’s fundamental right to fair hearing. Consequently, the court granted an order directing the Defendant to restore and release the Plaintiff’s scores in the said subjects.

CONSIDERATIONS FROM THE JUDGMENT

1. Whether or not WAEC is a competent body to try the offence of examination malpractice in Nigeria.
2. Whether or not the Plaintiff’s right to fair hearing was infringed by WAEC by the cancellation of his scores for examination malpractice without the giving the Plaintiff the opportunity to defend himself.

On Issue One

The offence of examination malpractice is governed by the Examination Malpractice Act, Laws of the Federation of Nigeria, 2004, (The EMA). This Act prescribes various actions which constitutes examination malpractice and the punishment for them. For example, section 2 of the Examination Malpractices Act, defines what constitutes stealing question papers at an examination and the punishment thereof as;

A candidate who, at any examination, by any fraudulent trick or device or with intent to cheat or secure an unfair advantage for himself or any other person, steals or otherwise appropriates or takes a question paper, an answer sheet or a script of any other candidate commits, an offence and is liable on conviction to a fine of N100,000 or imprisonment for a term not exceeding three years or to both such fine and imprisonment.

Accordingly, section 14 of the Examination Malpractices Act, provides that the Federal High Court of Nigeria is the court of competent jurisdiction to try the offence of examination malpractice. Section 14(b) went further to provide that notwithstanding anything contrary to any other enactment, to impose the penalties provided for in this Act, only the Federal High Court has Jurisdiction to try and impose the punishment prescribed by the EMA. Thus, all other laws which are inconsistent with the EMA, are void to the extent of its inconsistency. See section 1(3) and 4(5) the CFRN, 1999 (as amended).

Consequently, the issue of examination malpractice is clearly, a crime in Nigeria, and no person shall be tried for any criminal offence except by a competent court of law established by the CFRN, 1999 (as amended). WAEC is not a court in Nigeria, neither does it have the right to try the offence of examination malpractice.

However, section 16 of the EMA provides that notwithstanding the provisions of the Act, an examination body shall have the power to-

1. withhold, suspend or cancel the results of a candidate or ban or blacklist a   candidate from  taking its examinations if it is satisfied that the candidate has engaged  in any  form of   examination malpractice;
2. withdraw recognition, suspend, ban or blacklist or place on probation a school or an  examination centre if it is satisfied that the school or examination centre is involved in any form  of examination malpractice;
3. remove the name of, or withhold payment to a supervisor or an invigilator or any other official  employed in the conduct of an examination if it is satisfied that the supervisor or invigilator or official has contributed to an examination malpractice.

Furthermore, section 19 of the EMA, which is the interpretation section defines ‘examinationbody’to include the West African Examinations Council and any other body established by the Government to conduct an examination.

It is safe to say that although WAEC is not competent to try the offence of examination malpractice in Nigeria, it can sit as an administrative body to determine if a candidate has engaged in any form of examination malpractice and withhold, suspend, or cancel the results of such candidate. See section 16 of the EMA and Sections 19 – 21 of the WAEC Act.

On Issue Two

The principle of natural justice, also known as procedural fairness, is a fundamental legal concept that ensures fairness and justice in administrative, judicial, and quasi-judicial proceedings. It encompasses two core elements;

1. Right to a fair hearing: this rule is also known as the ‘”audi alteram partem” rule in Latin that means “hear the other side. This entails the right of all parties involved to have their case heard before an impartial and unbiased decision-maker. This includes the right to present evidence, call witnesses, and make submissions, parties should have the opportunity to know the case against them and to respond to it. They should also be given reasonable notice of hearings and any relevant information or evidence.
2. Rule against bias– this rule is also known as “Nemo judex in causa sua” rule in Latin that translates to “no one should be a judge in their own cause. Decision-makers must be impartial and free from any actual or perceived bias. This means they should have no personal interest in the outcome of the case and should not have prejudged the issues. Decisions should be based solely on the evidence presented during the proceedings and relevant to the issues in dispute.

These principles are essential to ensure that individuals are treated fairly and justly in legal and administrative proceedings, and they form the cornerstone of the rule of law. This right is guaranteed in the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Chapter 4, Section 36(1), (4), (5) of the CFRN, 1999 (as amended). This constitutional provision has been upheld in a plethora of cases by the courts in Nigeria.

In FutMina v. Olutayo (2018) All FWLR (pt. 935) 125,  it was held that the principles of natural justice demand that a student accused of examination misconduct and expelled for that misconduct must be afforded an opportunity by the body statutorily empowered to take such decision, either judicially or quasi-judicially to know the allegation against him, be present when the case against him is heard and, not only to state his side of the allegation, but also to contradict the case against him by the cross-examination of the witnesses called by his accusers.

In Garba & Ors  v University of Maiduguri (1986) All N.L.R. 149, The appellants were studentsat the University of Maiduguri, they were expelled from the institution sequel to the riotous behaviour of about 500 students which amounted to willful destruction, arson, looting and assaults. Their expulsion was not till an investigation panel was appointed by the Vice-Chancellor with the approval of the senate to investigate the student rampage. Each of the appellants deposed to an affidavit denying any participation in the rampage. They also contended that they were not given a fair hearing before the respondent expelled them from the University of Maiduguri. The Supreme Court of Nigeria upheld their appeal as the appellants were not given the opportunity to defend themselves.

In WAEC v Akinkunmi [2008] 9 NWLR (Pt 1091) the respondent wrote and passed WAEC in 1992, subsequently, he was admitted into the University of Ilorin. He obtained a Statement of Result from his school which he used to process his admission at the university. When he was in his final level, the university requested the original of his WAEC certificate for proper documentation. Akin returned to his secondary school only to be told by his principal that WAEC subsequently canceled the result on ground of malpractice. Aggrieved, the respondent went to court. WAEC argued that by the Rules and Regulations made pursuant to the WAEC Act regulating the conduct of WAEC examinations, the body is entitled to cancel results of a candidate or the entire centre where there is a report of malpractice. All that is required of WEAC is to set up panel or for the National Examination Committee (NEC) to invite a representative of the affected school to answer to the allegations. Once the representative of the school fails to give satisfactory explanations, WAEC will be entitled to report malpractice and to dish out the appropriate punishment, including the cancellation of result. The respondent argued that examination malpractice is a crime in Nigeria, It must be proved beyond reasonable doubt against every candidate, and every candidate must be given the opportunity to defend himself/herself in person as the practice of having a principal or representative of the school answer for all the candidates violates the principle of fair hearing. The respondent got judgment at the Court of Appeal but the WAEC won on technical grounds at the Supreme Court.

CONCLUSION

By the combined provisions of the CFRN, 1999 (as amended), the Examination Malpractices Act, and the West African Examinations Council Act, it is established that examination malpractice is a criminal offence in Nigeria, and only a court of competent jurisdiction (the Federal High Court) can try the offence. Be that as it may, WAEC can sit as an administrative body to determine if the offence of examination malpractice has been committed by a candidate and can either withhold, suspend or cancel the result of such candidate.  In exercising this powers granted to it, it must ensure procedural fairness by giving the candidate the opportunity to defend himself. See WAEC & Ors v Mbamalu (1992) 3 NWLR (pt 230). In applying the provisions of the law to the case under examination, the Trial Court, per Justice Kume, was right to in his judgment to the extent of holding that the unilateral cancellation of the Plaintiff’s result by WAEC without affording the plaintiff the opportunity to defend himself of any allegations is an infringement of the plaintiff’s right to fair hearing.