IN THE MATTER OF APPLICATION BY SIMEON MANYAKI AND IN THE MATTER OF THE EXECUTIVE COMMITTEE AND COUNCIL OF THE INSTITUTE OF FINANCE MANAGEMENT 1984 TLR 304 (HC)

IN THE MATTER OF APPLICATION BY SIMEON MANYAKI AND IN THE MATTER OF THE EXECUTIVE COMMITTEE AND COUNCIL OF THE INSTITUTE OF FINANCE MANAGEMENT 1984 TLR 304 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mapigano J

September 12, 1986

MISC. CIVIL CAUSE 42 OF 1984 E

Flynote

Administrative Law - Natural justice - Disciplinary proceedings in higher educational

institution - Failure to F sufficiently appraise a student of the particulars of the

prejudicial allegations made against him - Rule of natural justice not complied with.

-Headnote

The applicant was a third year student at the Institute of Finance Management. After

the January 1984 G final examinations it was discovered that the examinations

papers and model answers had been extensively leaked. The examination results

were nullified and students were called upon to re-sit in April, 1984. In addition a

committee was set up to probe the leakage and prepare a report. The applicant was

one of those persons who were investigated by the probe committee. H

On April 27, 1984, the applicant was officially informed that he had passed the April,

1984 examinations. Five days later, i.e., on May 2, 1984 he was served with a letter

terminating his studies at the Institute with immediate effect, nullifying his April,

1984 I

1984 TLR p305

MAPIGANO J

A examination results and barring him from attempting any IFM examinations in

future.

The applicant filed the application requesting the High Court to exercise its discretion

and grant two orders, namely (i) an order of certiorari to quash the decision of the

Executive Committee of the Council of B the Institute of Finance Management dated

2nd May, 1984, and (ii) an order of mandamus requiring the Council of the Institute

to award him an Advanced Diploma in Accountancy.

It was argued in favour of the applicant that the probe committee did not sufficiently

appraise the applicant C of the prejudicial allegation levelled against him and that he

was not afforded opportunity of being heard.

Held: (i) An administrative body exercising functions that impinge directly on legally

recognized interests D has a duty to act judicially in accordance with the rules of

natural justice,

(ii) disciplinary proceedings in higher educational institutions have to be

conducted in conformity with natural justice provided at least the penalty imposed or

likely to be imposed is severe;

E (iii) the applicant whose rights and legitimate expectations stood to be so

adversely affected by the inquiry had the right:

(a) of being sufficiently appraised of the particulars of the prejudicial

allegations that were to be F made or had been made against him, so that he could

effectively prepare his answer and collect evidence necessary to rebut the case against

him;

(b) subject to the need for withholding details in order to protect other

overriding interest, of being G accorded sufficient opportunity of controverting or

commenting on the materials that had been tendered or were to be tendered against

him;

(c) of presenting his own case;

(d) of being given a reasonable and fair deal

H (iv) the applicant was deprived of his right.

Case Information

Application granted.

Cases referred to:

I 1. R.v Aston University Senate, Exp. Roffey and Another [1969] 2 QBD

538.

1984 TLR p306

MAPIGANO J

2. Glynn v Keele University [1971] 1 WLR 487. A

3. Ceylon University v Fernando [1960] 1 WLR 223.

4. Re Pergamon Press Ltd [1971] Ch. 388.

M. Marando, for the applicant.

S. Mjasiri, for the Respondent. B

[zJDz]Judgment

Mapigano, J.: The applicant Simon Manyaki is a senior accountant with the National

Shipping Agencies. He wants this court to exercise its discretion and grant two

orders, namely (1) an order of certiorari to C quash the decision of the Executive

Committee of the Council of the Institute of Finance Management dated 2 May 1984;

and (2) an order of mandamus requiring the Council of that Institute award him a

certificate of Advanced Diploma in Accountancy. The application has been stoutly

contested by the D Institute.

Most of the salient facts are not in dispute. The applicant was a student at the

Institute in Dar es Salaam, pursuing a course of study in accountancy conducted by

the Institute during the 1983/84 academic year. He and other students sat for final

examinations in January, 1984. Sadly, an outrage had taken place in E connection

with the examination papers and model answers and the examinations had been

extensively leaked. A good number of the candidates had obtained unauthorised

prior access to the examination papers and model answers. The examiners were not

slow to apprehend that there had been such a leak. It F was perhaps inevitable, for

some of the candidates were so naive, nay thoughtless, that they reproduced the

model answers verbatim. It was considered to be a case where the examination as a

whole could not properly be said to be a reliable measurement tool of knowledge and

expertise of the candidates. A G decision was thus made to (1) nullify the results and

require the candidates to re-take the examinations in April, 1984; (2) set up a

committee to probe the leakage and prepare a report; and (3) seek assistance of the

state security organs to investigate the matter. It was also decided that the results of

the April examinations should be tied to and tabled together with the report of the

probe committee and to postpone any disciplinary or punitive action against any

individual who may have been involved in the affair, H including the nullification of

the April examination results, until the final results of the investigations have been

submitted. I

1984 TLR p307

MAPIGANO J

A The applicant and the other candidates resat the examinations in early April when

the probe committee that was formed was carrying out investigations. On 27 April,

1984 the applicant was officially informed that he had passed the examinations.

However, on 2 May 1984 he received a distressing letter from the B Acting Director

of the Institute which read as follows:

Re: TERMINATION OF ADVANCED DIPLOMA STUDIES

1. You may remember that the Institute in January, 1984 encountered

problems in the final examination process C of the 1983/84 Advanced Diploma in

Accounting third year students because of the fact that a good number of the students

in that class had unauthorised access to some of the exam papers and/or model

answers. D Subsequent to this the Institute set up an independent probe committee

to investigate this whole affair.

2. The Executive Committee of the IFM Council which set up this

investigation received and deliberated the E probe committee report in its fortieth

(extra-ordinary) meeting held on Friday, 1984. According to the findings and

conclusions of this report you are one of the students who are highly implicated.

3. The Committee noted with grave concern that you are depicted

as one of the primary clique member in F your class who participated and/or assisted

contrary to Institute's rules of examination and good discipline in the commercialized

distribution and propagation of the examination papers and/or model answers which

leaked. The Committee observed further that, as if that was not enough, you

subsequently did not want to tell G the truth to the investigators; during the

investigation which ensued you were nonrepentant; you were intransigent if not

arrogant and you were obdurate if not thoroughly uncooperative in this investigation.

It was H noted also that the wide propagation of the leaked exams caused a lot of

problems to the community and entailed enormous financial costs to the Institute.

All these behavioural patterns, it was observed by the Committee, are not consistent

with good discipline and are contrary to professional ethics and integrity in your I

field of training.

1984 TLR p308

MAPIGANO J

4. Because of the above reasons the Executive Committee of the Institute's

Council had decided to terminate A your studies at the Institute with immediate

effect and also to bar you from attempting any IFM examinations in future as well as

nullify whatever results you may have had in this year's April 2-6 examinations, if

you happened to sit for these examinations etc. B

This letter was copied to the applicant's employer, among others. His employer

reacted by writing to him on 23 May, 1984 rebuking him and informing him that the

fact that he had undergone the course of study C would not be recognized.

At this juncture I pause to notice, only to reject, an argument that was advanced by

applicant to the effect that the Institute had no legal competence to terminate his

studies, nullify his results of the April examinations and bar him from future

enrolment and attempting any of its examinations. For one thing, D examinations

such as these, are meant to be honestly and honorably set and taken for they are

contemplated to be, as the Institute observed, a reliable measurement tool of

knowledge and skill of the candidates. For another, it cannot be denied that the

Institute stood embarrassed and disgraced by the E leak and its integrity stood

tainted. The leak thus bore viewing with seriousness and those who were involved in

it should surely expect to be severely dealt with and visited with deterrent or

exemplary penalties. I entirely agree with the Institute that under both IFM Act,

1972, in particular section 7 thereof, F and the general rules governing such

examinations, it has the discretion to treat the applicant in the manner it did.

The probe committee that was formed by the Executive Committee of the Council of

the Institute was given the following terms of reference: (1) to find out whether there

was a leakage of the examinations; (2) if so, G to establish and indicate when, how,

where and by whom the examinations were leaked, what papers and/or model

answers leaked and to what extent; (3) to find out weaknesses, if any, in the

examination administration system that might have contributed to the leakage, in

particular, to examine the H circumstances of setting, marking, external examining

and invigilation of examinations; (4) to make observations on the above points and

any others that might be pertinent thereto, draw conclusions thereof and recommend

appropriate action to be taken; (5) to determine and regulate its proceedings as it

deems fit and to I

1984 TLR p309

MAPIGANO J

A co-opt any other person or persons who in its opinion may facilitate the execution

of its tasks.

In discharging its assignment the probe committee examined a host of documents and

conducted interviews with 24 people, who included students, examiners and officials

of the Institute and NBAA, the B acronym for National Board of Accountants and

Auditors. It was standard procedure to send the examinations papers to NBAA for

moderation. The applicant was one of the students who was interviewed by the

probe committee.

C At the conclusion of the investigations the probe committee stated, in sum, that it

profoundly suspected on Chandrasekharan, a moderator with NBAA, and one

Mashenene, a co-ordinator with the Institute, to be the source of the leak. It opined

that either of the two had surreptitiously given one Angela Mpanduji (who was a

candidate) the examination papers and that the said Angela had in turn passed them

D to the applicant and two other candidates who, in turn, in the words of the

committee, constituted themselves as distribution agents and made them available to

other candidates for consideration of cash or kind.

E The first main question that arises in whether the Council had authority to

establish the Executive Committee that set up the probe committee, and if the answer

be yes, whether the Executive Committee had competence to exercise such powers.

By paragraph 10 of his affidavit the applicant contends that the IFM Act, 1972 does

not provide for the creation of such a committee and that, therefore, the creation of

the F committee by the Council was an illegal exercise of the powers conferred on

the Council by the Act. Mr. Marando who appeared for the applicant has submitted

that the only body that could have acted against the applicant was the Students'

Disciplinary Committee established under rule 37 of the IFM Student Rules G set

out in the IFM 1983/84 Prospectus. Against that submission Miss. Mjasiri of the

Tanzania Legal Corporation, counsel for the respondent Institute, replied that the

Executive Committee had a legal status and that under the IFM Act the Council

enjoyed discretion to establish such a committee. With regard to H the IFM Student

Rules, it was her argument that those rules did not apply to academic matters.

As indicated, the Institute was established by an Act of Parliament. i.e. Act No.3 of

1972. The objects and functions are to be found in section 4. By section 6(1) the

Council is the body vested with the governance I and control of the Institute. Now

the Executive Committee was created by the Council in its meeting

1984 TLR p310

MAPIGANO J

held on 24 September 1974. It is a smaller body than the full Council, it being

composed of only half of the A members of the Council.

Among other things, the Executive Committee was charged with the functions of

dealing, in emergency cases, with such matters as are normally considered by

Council, in between Council meetings. It was expressly stipulated that the decisions

of that Committee are subject to ratification by the full Council. B

In my view section 6(2)(f) of the IFM Act is wide enough and gives the Council

power to establish such a Committee and to invest it with such authority. I take the

view that this was not an instance of abdication C of power by the Council, but a

valid exercise of its statutory discretion. As aforestated, the Council prescribed that

all decisions of that Committee would be subject to ratification by the full Council.

Essentially, by that proviso the Council retained complete control over all the

functions assigned to the Committee and the Council intended to continue to address

its own mind to the exercise of the powers D delegated to the committee.

I also take the view that the Executive Committee did not encroach on or usurp the

powers of the students' Disciplinary Committee. It is not true that the Students'

Disciplinary Committee has any power to deal with academic matters. I have perused

the IFM Student Rules and I have come to the conclusion that such E matters as the

leakage of examinations fall outside the purview of those Rules. I am satisfied that

the jurisdiction of the Students Disciplinary Committee is confined to what may be

described as domestic matters such as those pertaining to accommodation, kitchen,

drunkenness, nuisance and the misuse of F music instruments.

I pass to the second main question, which is whether the proceedings of the probe

committee were conducted in accordance with the rules of natural justice. The

applicant has averred, vide paragraphs 11 and 13 of the affidavit, that he was denied

natural justice in that (a) he was not informed, throughout, that G he was a subject

of suspicion or investigation; and (b) that he was not afforded opportunity of being

heard. This has been denied by the Institute.

The parties seem to be acutely aware, and it is trite to remark, that an administrative

body exercising functions that impinge directly on legally recognised interests owes it

as a duty to act judicially in H accordance with the rules of natural justice, which

basically means that adoption of fair procedure, which fundamentally demands

freedom from interest and bias on the part of the administrative body and the right to

a fair hearing for those who are immediately affected by its decision. And it is

common ground that this I court

1984 TLR p311

MAPIGANO J

A has discretion to intervene and award appropriate reliefs where the rules of

natural justice have not been observed.

Quite clearly, and again it is common ground, the probe committee was investigating

an enormous matter and the authorities must have apprehended that the effect of its

findings was bound to have substantial B adverse impact and consequences on the

interests of certain individuals. The applicant is certainly one of the people who have

been detrimentally affected by the findings of the probe committee. That is patently

evident from the severity of the penalties that were eventually handed out to him by

the Executive C Committee and by his employer. I hold the view that the applicant,

whose rights and legitimate expectations stood to be so adversely affected by the

inquiry had the right to have an adequate opportunity of knowing the case he had to

meet, of answering it, of putting forward his own case, and of D being fairly and

impartially treated. In other words, he had the right, first, of being sufficiently

appraised of the particulars of the prejudicial allegations that were to be made or had

been made against him, so that he could effectively prepare his answer and collect

evidence necessary to rebut the case against him; secondly, subject to the need for

withholding details in order to protect other overriding interests, and in E my

opinion there was none here, of being accorded sufficient opportunity of

controverting or commenting on the materials that had been tendered or were to be

tendered against him; thirdly, of presenting his own case; and fourthly, of being given

a reasonable and fair deal.

F It matters for nothing that these were proceedings initiated by an Institute of

higher learning. The weight of modern authorities is in favour of the view that

disciplinary proceedings in higher educational institutions have to be conducted in

conformity with natural justice, provided at least the penalty imposed G or likely to

be imposed is severe; see R.v Aston University Senate, Ex. p. Roffey and Another

[1969] 2 QBD 538, a decision that has been referred to by both sides; Glynn v Keele

University, [1971] I WLR 487, a case of summary suspension from residence on the

campus for disciplinary offence; and more helpful, H Ceylon University v Fernando

[1960] 1 WLR 223, a case of disqualification from degree for alleged cheating in

examination.

With due respect, it is, in my considered opinion, not an exaggeration to say that the

applicant was deprived of his right. It cannot be seriously denied that there is

nothing in the record that shows that he I was appraised of the particulars of the

allegations that were to be made or had been made against him. It will be

1984 TLR p312

MAPIGANO J

remembered that the probe committee carried out its assignment by scrutinizing

several documents and A interviewing scores of people. I have gone through those

documents and in regard to the applicant I see nothing damning in them. The record

of the proceedings of the committee shows that it met on several occasions to conduct

the interviews. About the only interviewee who implicated the applicant was one B

Ancilla Kilinda.

This Ancilla Kilinda was also a candidate and, as the idiom goes, 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 Mpanduji for shs.1,500/=. She disclosed that

the papers she acquired were handwritten. She said C she destroyed them

immediately after sitting the examinations. She was asked to examine several scripts

and, according to the report of the probe committee, she singled out the scripts of the

applicant, claiming that they were similar with the handwriting on the examination

papers she had purchased from Angela D Mpanduji. That was a serious allegation

and it was regarded by the probe committee as high-grade information and in no

small way led the committee to infer that the applicant was a party to the scandal.

The committee might be right. But what is objectionable is that the substance of that

adverse information E was not put to the applicant at all. He had, therefore, no

opportunity to deny or admit it. Of course a party cannot deny or admit that of

which he is unaware. This is not to say, however, that Ancilla Kilinda was uncandid

with the probe committee.

Angela Mpanduji appeared before the probe committee for interview. She did not in

the least implicate F anybody, let alone the applicant. In actual fact she was not

asked anything about the applicant. The information provided by one or two other

candidates was in the last analysis either marginal or what they had picked up second

hand and I am unable to see anything probative in it. G

On 5 April, 1984 the applicant was interviewed by the probe committee. I will set

out in extenso what transpired:

Q: Can you tell us anything strange or unusual you heard about the exam

before the exam was done? H

A: The students worked very hard to prepare themselves for the exams.

But I heard no rumours.

Q: Do you have a study group?

A: Yes.

Q: Who are your study group? I

1984 TLR p313

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A A: I do not have any specific study group. I usually study on my own.

Q: Who in your class, have you, for example, been studying with?

A: It all depends on the topic. My group changes with the topic.

B Q: Any girls you are used to in your class?

A: I was used to Maira in first and second year and Angela Mpanduji in

third year.

Q: Angela was selling exams, did she sell to you also?

C A: No. I never buy exams. I pass on my own effort.

Q: Did you know that Angela was selling exams or she had exams?

A: No.

D Q: One day you were studying in your room with some colleagues,

someone came and knocked at the door. You looked him out. You were digesting an

exam you had laid hands on.

A: This is 100% lie.

E Q. When Angela got the papers she was looking for someone to assist her

with solutions. You assisted her.

A: That is not true.

Q: Is Angela your friend?

A: That is what people think. But she is no more than someone I study

with.

F Q: But she is surely more than that to you.

A: Yes, at one stage she introduced me to her father, and I once escorted

her to the airport when her sister was passing through from Seychelles.

G This interchange is drawn from pages 54 and 55 of the report of the probe

committee. On a careful reading one may probably discern some inconsistencies,

even evasiveness, in the answers of the applicant. But, as pointed out supra, there is,

from start to end, nothing in that interview which shows that H the identification of

the scripts by Ancilla Kilinda was intimated, much less announced, to the applicant.

What's more, it is plain, I think, there is nothing to show that the applicant was

informed that he was one of the distribution agents of the leaked examinations,

contrary to what is deposed in paragraph 7 of the I counter-affidavit. Equally plain

is that there is nothing that shows that the applicant had, during the course of the

interview,

1984 TLR p314

been made to understand that he was appearing before that committee to answer such

a charge. And A certainly there is nothing in his answers that can validly be said to

have tangibly and credibly established that he was a party to that illegal enterprise.

More likely than not the applicant was one of the candidates who had access to the

examinations before the due dates. However, it is well to keep in mind that the B

misconduct for which he was punished was what the Acting Director described as

"the commercialized distribution and propagation of the leaked examination papers

and/or model answers".

It may be successfully asserted that under its terms of reference the probe committee

was not expected to C conduct a disciplinary proceeding as such. It is plausibly

arguable that it was only asked to investigate but not to give a binding decision. Even

if that was the case, it was, in my view, still placed under obligation to observe the

rules of natural justice, because it was investigating what was essentially a D serious

public scandal, and since it had in its possession the resolutions of the Executive

Committee, it was aware throughout that the investigation and its report were part of

a process that could terminate into action adverse to the interests of some of the

interviewees, as indeed they did Re Pergamon Press Ltd. E [1971] Ch. 388, is a case

in point.

In the final event this application is granted. The decision of the executive

Committee is hereby quashed and the Council of the IFM is directed to award the

applicant a certificate of Advanced Diploma in Accountancy. Costs are to follow the

event. F

Application granted.

1984 TLR p314

G