Examinations Council of Zambia v Lipe Kabanze and Anor (APPEAL NO. 58/2017) [2018] ZMCA 634 (16 February 2018)

IN THE COURT OF APPEAL APPEAL NO. 58/2017 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: AND LIPE KABANZE MICHELO MWIIMBU APPELLANT 1 ST RESPONDENT 2ND RESPONDENT 1 6 FEB 2018 CIVIL REGISTRY 1 p · 0-aox sorl'-1 Lusr>."-" Coram: Chisanga JP, Chishimba and Kondolo, SC JJA This 6th day of September 2017 and 16th February 2018 For the Appellant: A. J. Shonga, SC, with Mr. S . Lungu and Ms. S. Namusamba For the 1 s Respondent: Mrs . C. Nsoni of Messrs Wilso.n & Comhill of Messrs Shamwana & Company For the 2 nd Respondent: NI A JUDGMENT CHISANGA JP, delivered the judgment of the Court Cases cited: 1. Nkhoma vs Miyanda (sued on his own behalf and on behalf of the Movement for Multi-party Democracy (1995-1997) ZR 74) 2. Council of Civil Service Union and Others vs Minister for Civil Service (1984) 3 ALL ER 935 3. Associated Provincial Pictures Houses Ltd vs Wednesbury Corporation (1948) lK. B. 223 4. Chitala vs Attorney General (1995-1997) ZR 91 5. Attorney General vs Roy Clarke (2008) ZR 38 Vol 1 J1 . . 6. Nyampala Safaris (Z) Limited and Others vs Zawa and Others (2004) ZR49 7. Chief Constable of the North Wales Police vs Evans (1982) 1 W. L. R. 1155. 8. Regina vs Aston University Senate, Ex parte Ro/fey and davo 7LR (1969) 2 W. L. R. P 1418 9. Russell vs Norfolk (Duke) 1949 1 ALL ER 109 10. Ridge vs Baldwin (1964) A. C. 40 at page 79 11. Local Government Board of Arlidge (1915) AC 120 at P132 12. De Vertueil vs Knaggs (1918) AC 557 13. University of Ceylon vs Fernando (1960) 1 ALL ER 631 14. Attorney General vs Fulham Corporation (1921) 1 Ch P 440 15. Hazel vs Hammersmith & Fulham London Borough Council and Others (1991) 1 All ER 545 16. Attorney General vs Great Eastern Rly Company (1880) 5 App Cas 473 at 481 Other Works referred to: 1. PUBLIC LAW by URSULA SMARTT 2014 London and New York, Rutledge Taylor & Francis Group Pl 751 The respondents to this appeal moved the High Court for orders of certiorari and mandamus regarding a decision made by the appellant, to nullify all the grade twelve results of the respondents and to bar them from writing any examinations conducted by the appellant for a period of two years. The grounds on which the decision of the appellant was called in question were illegality, irrationality and procedural impropriety. The circumstances giving rise to the decision in question were common cause. The 1st respondent who was a candidate in the grade 12 final examinations J2 conducted in 2012, was found with a mobile phone, which contained chemical tests conducted to determine the nutritional components of various foods. She was later interrogated by the headmistress and three teachers concerning this memo. Her explanation was that she got the information in the memo from past papers she had obtained from a friend, Namunza Chanza. She was threatened with arrest and the District Education Board Secretary and a policeman actually came to arrest her and this frightened her. The 1st respondent was summoned the following day by the same teachers, and an armed policeman was present this time. She was directed to write the names of those in her study group. Thereafter, the members of the study group were summoned, including the second respondent. The 1st respondent was given a paper, and instructed to copy the contents of the memo on the phone that had been confiscated, and write an admission that she was the owner of the phone. She appended her examination number and signature to the document she had written. She was led to believe that if she signed the statement, she would be allowed to continue writing examinations and would obtain the results. But if she did not, she would be arrested. When the results were published, hers were nullified by the appellant. An appeal against the nullification was lodged, but was unsuccessful. The 2 nd respondent was in the 1st respondent's study group. She was on account of that fact made to copy the contents of the memo found on the 1st respondent's phone, and directed to state that she had seen the contents of the J3 memo. This was untrue, as she had not seen the memo, but signed the document as she was made to believe she would write the examination and obtain her results if she did so. Her results were however nullified, and because she appealed later than the 30 days indicated as the period within which an appeal should be lodged, her appeal was dismissed. The respondents were dissatisfied with the decision of the appellant, and invoked the supervisory jurisdiction of the high court on the stated grounds. The response of the appellant to the application for judicial review was that its decision was not based solely on the contents of the allegedly coerced confession of the 1s t respondent, and the manner in which the interrogations were carried out was considered and noted in arriving at a decision. Upon considering the application, the learned trial judge was of the view that although section 22 (2) of the Examinations Council of Zambia Act CA 137 of the Laws of Zambia (The Act) gives power to the appellant to nullify examination results where it is believed that they were obtained by irregular means, this power does not extend to barring a candidate from writing examinations conducted by the appellant for any period of time. The appellant exceeded its jurisdiction, rendering its decision illegal and ultra vires section 22 of the Act. Regarding the ground of irrationality, the learned judge opined that the decision to nullify all of a candidate's results is so weighty and cannot be made without compelling evidence that the candidate had prior knowledge of J4 examination materials in the relevant subjects. In the absence of such evidence, the judge found the nullification of all the results based on the allegation that the respondents had sight of the Biology Paper 3 Examination material irrational and unreasonable in the wednesbu:ry sense. Turning to procedural impropriety, the learned judge found that the appellant relied on statements the respondents said were obtained in circumstances which were not conducive, as they were virtually dictated to them. The learned judge noted that the appellant nullified the respondents' results without a hearing. It was the learned judge's holding that the decision to nullify the results affected the respondents' legitimate interest and expectation regarding their status as students. Therefore, they we entitled to be heard. The failure to hear them rendered the decision of the Examination Council of Zambia procedurally improper. She as a result quashed the decision of the appellant to nullify all the Grade 12 examination results of the applicants and to bar them from writing any examinations conducted by the appellant for two years. She further issued an order of mandamus to compel the appellant to hear and determine the respondents' appeals in accordance with the law, taking into account her observations. The appellant was aggrieved with the decision of the court and assails it on three grounds. The first ground is that the court below erred in law and in fact when it failed to make a distinction between the appellant's decision to nullify the 1s t and 2 nd JS respondents' results and the decision to bar them from writing examinations for two years. The arguments in furtherance of this ground are that the learned judge did not have regard to the fact that the appellant had made two separate decisions. One was to nullify all the respondents' results, while the other decision was to bar the respondent for two years. The result of the failure to distinguish the two decisions was that the decision to nullify the respondents' results did not receive deserved scrutiny. Although the trial judge did not take issue with the decision to nullify the results it condemned this decision together with that of nullification of the results because it treated the decision as one. Learned counsel submits that the decision to nullify the respondents' results was based on section 22 of the Act. It is conceded that the power to bar the respondents from writing examinations for the stated period is not expressly conferred by section 22 . However, it is contended, justification for the appellant's decision exists. It is anchored on the appellant's internally circulated Guidelines for the Administration and Management of Exams. The development of Guidelines and the enforcement of penalties against errant candidates is part of the process of conducting exams as provided in section 8 of the Act. Therefore, deterrent penalties such as barring errant candidates from writing exams must be viewed as necessary for the appellant to execute its mandate. J6 It is submitted that had the court below appreciated the distinction between the two decisions and the necessity of both, in light of the appellant's statutory mandate, a different decision might have been reached. It is submitted that the blanket finding by the court below is faulty and must be set aside. The opposing arguments on this ground are that as the grounds on which the appellant's decision was impugned were illegality, irrationality and procedural impropriety, success on any one ground was sufficient. It was therefore wrong to argue that the court might have reached a different decision. It is argued that section 10 of the Act only relates to the procedure regarding the holding of meetings. Any other Regulations for the better carrying out of the Act must be by statutory instrument through the Minister. An internally circulated guideline is not a statutory instrument. Barring a student from writing an examination is a serious penalty. The right to be heard, even if not provided for in the governing Act is a rule of natural justice. The appellant's internally-circulated guidelines vis-a-vis barring students from writing exams is ultra vires the Act. Reliance is placed on Nkhoma vs Miyanda 1 for this argument. It is further argued that the punishment that may be imposed on students is unknown to the public, and is not part of enforceable law. We are urged to refer to a Supreme Court judgment whose citation is unclear. It is contended that it was correct for the learned judge to consider the appellant's decision to nullify J7 the results, and bar the respondents from writing the examination, as the bar could only have taken effect after the nullification. The second ground of appeal is that the court below erred in law and in fact when it held that the appellant's decision to nullify all the grade 12 results of the 1st and 2 nd respondents was irrational. The arguments on this ground are anchored on the decisions in Council of Civil Service Union and Others vs Minister for Civil Service2 and Associated Provincial Pictures Houses Ltd vs Wednesbury Corporation3 as well as Chitala vs Attorney General4 . Our attention is drawn to section 22 of the Examinations Council of Zambia Act Chapter 137 of the Laws of Zambia, which enacts the following: 22(1) Where the Council is satisfied that there has been an irregularity in the course of any examination, the Council may suspend or nullify such examination or part thereof. (2) Where the Council is satisfied that there is reasonable cause to believe that the examination results of any candidate have been obtained by irregular means, the Council may nullify the examination results of such candidate . The appellant's contentions on this ground are that for section 22(1) to be invoked, the appellant must be satisfied that an irregularity has occurred. This is inapplicable to subsection 2 of section 22, in that reasonable cause for the belief that examination results have been obtained irregularly entitles the appellant to nullify the examination results . This, according to learned counsel, J8 confers a statutory discretion on the appellant in the exercise of its powers. It is argued that the facts reveal that the appellant established that the respondents surreptitiously gained advance knowledge of the Biology examination well before the paper was written. They had cheated, and the appellant's view was that it was most probable that the respondents had cheated in other exams as well. There was therefore reasonable cause to believe that the respondents had obtained all of their results in an irregular fashion. It was thus within the law to nullify all the respondents' results. It is argued that the statutory duty of the appellant is to superintend the conduct of examinations. The court is invited to take judicial notice that the incidents of exam malpractices are rampant in this jurisdiction. The discretion placed on the appellant is to nullify examination results so as to combat malpractices. Thus, the decision to nullify cannot be categorized as unreasonable in the wednesbury sense. It is further contended that the record of appeal indicates that the statements made by the appellants were not the sole reason for which the respondents' examination results were nullified. The statements merely repeated the information that was on the 1s t respondent's phone, which fact she confirmed. The decision regarding the 1st respondent was based on a report made by the school at which the respondent was enrolled. The report included reports by the criminal investigations officer of Mazabuka Central Police and the report of the Education Standards Officer - Special Education Mazabuka. J9 • Even if the statements are discarded, learned counsel argues, there exists sufficient evidence to support the decision taken by the appellant to nullify the respondents' results. It was therefore incorrect to find the appellant's decision irrational. The respondents ' arguments on this ground are that none of the reports the appellant claims were used to arrive at its decision were put in evidence in the court below. It is learned counsel's view that the respondents ought to have been represented when giving the statements, as 'prior knowledge' or leakage invariably involves parties other than students. This is an irregularity which could have fallen under section 22(1) of the Act. Learned counsel refers to Attorney General vs Roy Clarke5 where the deportation of the respondent was held to be disproportionate. Ground three of the appeal is that the court below erred in law and in fact when it granted the respondent an order of certiorari quashing the decision of the appellant which nullified the examination results of the respondents whilst also directing that the appellant hears the respondents' appeal. The argument on this ground is that having quashed the appellant's decision to nullify the examination results, it followed that the said results were re-instated . That having occurred, one wondered what appeal the appellant would be entertaining. It is learned counsel's argument that the court should have either quashed the decision to nullify results, or directed that the results stood, but that the JlO respondents could appeal the decision. To order both represented a dilemma and is most unhelpful to the parties. It is further submitted that the respondents were given opportunity to lodge written representations before the Standing Appeals Committee. This opportunity satisfied the rules of natural justice. In counsel's view, the order of the court below appeared to suggest that the Standing Appeals Committee's decision should be substituted for a decision that the respondents sought from the court below. The respondent's submissions on this ground are that the court below did not bear in mind the effect of the order of certiorari, whose import was that the decision that was quashed was deemed to have never been made. Therefore, no separate order was necessary to compel the appellants to release the respondent's results. Nonetheless, the respondent urges us to dismiss this appeal. We have considered the grounds of appeal as well as the arguments on which the appellant questions the decision of the court below. We will deal with the issues arising in this appeal as we consider convenient, and not necessarily in the order in which they are presented . Before we do so, we consider it appropriate to echo the often stated function of judicial review. Indeed, it 1s unavoidable to do so, as the parameters of a court's jurisdiction in this area of the law necessarily dictate the elements a court will have regard to, in deciding Jll whether or not to interfere with a decision made by a public body, or a private body exercising public law functions, as the case may be. Judicial review is not a process by which the merits of a decision made by a body exercising public law functions are examined. Rather, it is an application through which the decision making process of such a body is scruitinised, as to whether the affected individual has been fairly treated by the body or authority in question. A judge sitting in review of a public law decision is not permitted to substitute his or her own opinion in the place of the opinion of that authority. Thus, judicial review is not an appeal from a decision, but a review of the manner in which the decision was made. See Nyampala Safaris (Z) Limited and Others vs ZAWA and Others6 and Chief Constable of the North Wales Police vs Evans7 • In other words, the question whether a decision was good or bad does not fall to be decided, as it relates to the merits of a decision. The applicable law instead is directed at determining whether the decision was reached in a proper manner, and was within the range of permissible outcomes in law. The questions that arise in this process are whether the procedure in reaching the decision was properly followed, whether the concerned administrative authority acted within the law, or whether it acted outside its statutory powers. See PUBLIC LAW by URSULA SMARTT 2014 London and New York, Rutledge Taylor & Francis Group Pl 751. J12 Over time, public law standards of procedural fairness have been developed by case law. These provide the yardstick against which the process followed by an administrative body is measured. They apply irrespective of any statutory procedural requirements. However, the standard imposed will depend on the circumstances and the nature of the matter. An administrative authority exercising quasi judicial functions is required to apply higher standards of fairness. Procedural impropriety will arise where there is a failure to observe the basic rules of natural justice, a failure to act with procedural fairness towards the person who will be affected by the decision, a failure by an administrative body or tribunal to observe the procedural rules that are expressly laid down m statute, or breach of a legitimate expectation. See PUBLIC LAW supra, P 18L. In the present case, the learned judge's view was that the appellant relied on statements obtained in circumstances which were not conducive and the respondent's results were nullified without a hearing. The facts that were before the trial judge were that the 1st respondent was found with a memo that contained food tests on her phone. This much was common cause. It was the contents of the said memo that were reduced into writing. Therefore, even without the 1s t respondent's written statement, it was a fact that she had been found with a memo that contained food tests. We however note that the respondents' results were nullified on the basis of statements they had made without a hearing. Regina vs Aston University J13 Senate8 is a case in which the principles of audi alteram partem and natural justice were discussed. The facts were that the applicants were university students, and special regulations governing their course provided: "Students who ... fail in a referred examination, may at the discretion of the examiners, re-sit the whole examination or may be required to withdraw from the course." In September, 1967, the applicants failed referred examinations in subsidiary subjects, and at a consultation between examiners and tutors the marks of all students who had failed the referred examinations were considered in the light of their academic and personal histories, consequent on which certain students, including the applicants, received letters asking them to withdraw from their course and, by implication, from student membership of the university. Subsequent meetings between university authorities resulted in the university senate in December, 1967, confirming the decision to ask the students to withdraw. In July, 1968, the applicants applied for orders of certiorari to quash the decision asking them to withdraw and of mandamus requirmg the university to determine in accordance with law whether they should be allowed to re-sit examinations or be asked to withdraw. On the contention that there had been a breach in the rules of natural justice in that the applicants had not been given an opportunity to be heard, it was held that the principle of audi alteram partem was not divorced from the concept of natural justice although it would not apply in every case in which there was a right to natural justice. That since the examiners had considered J14 extraneous factors some of which might have been known only to the students themselves, the students should have been given an opportunity of being heard orally or in writing, personally or by representatives before a final decision was reached. Donaldson J made the following observations at page 1431. " ... . In such circumstances and with so much at stake, common fairness to the students, which is all that natural justice is, and the desire of the examiners to exercise their discretion upon the most solid basis, alike demanded that before a final decision was reached the students should be given an opportunity to be heard either orally or in writing, in person or by their representative as might be most appropriate. It was, in my judgment, the examiners' duty and the student's right that such audience be given. It was not given and there was a breach of the rules of natural justice." Donaldson J referred to Tucker W's words m Russell vs Norfolk 9 where the latter said, at page 118: "There are in my view no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth." His lordship also recalled Lord Reid's words in Ridge vs Baldwin10 : "I do not doubt that if an officer or body realizes that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid." JlS We should also advert to Viscount Haldane L C's words in Local Government Board of Arlidge11: "I agree with the view expressed in an analogous case by my noble and learned friend WRD LOREBURN. In Board of Education vs Rice (1911) AC at P 182, he laid down that, in disposing of a question which was the subject of an appeal to it, the Board of Education was under a duty to act in good faith, and to listen fairly to both sides, in as much as that was a duty which lay on every one who decided anything. But he went on to say that he did not think it was bound to treat such a question as though it were a trial. The board had no power to administer an oath, and need not examine witnesses. It could, he thought, obtain information in any way it thought best, always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view." De Vertueil vs Knaggs12 is another decision where a very instructive passage is found, at page 560: "Their Lordships are of opinion that in making such an inquiry there is apart from special circumstances, a duty of giving to any person against whom the complaint is made a fair opportunity to make any relevant statement which he may desire to bring forward and a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice." The last two authorities were referred to m University of Ceylon vs Fernando 13 . The facts were that a General Act of the University of Ceylon provided that, where the vice-chancellor was satisfied that any candidate for examination had acquired knowledge of the nature or the substance of any question or the content of any paper, the vice-chancellor might suspend the candidate from the J16 examination and should report the matter to the Board of Residence and Discipline for such further action that the board might decide to take . When a matter was so reported , the board might suspend the candidate from any university examination indefinitely. The vice-chancellor appointed a commission of inquiry, consisting of himself and two others, to assist him in inquiring in to certain allegations which had been made by B, a woman student, and which, if they were true, were explicable only on the footing that F, a student, who was taking a university examination, had acquired knowledge of a German passage in one of the examination papers before taking the examination. F was informed by letter of the allegation against him and of the appointment of the commission, and was asked to attend before the commission on two occasions . F attended before the commission, when it was made clear to him, so the court found, what the charge was and he was given opportunity to state his case. When other witnesses, including B, gave evidence before the commission, F was not present. F did not ask that he should be allowed to question any of these witnesses. Two witnesses, other than F and B, were questioned by the vice-chancellor alone, in the absence of the other members of the commission. The commission found that the allegation against F was true and reported accordingly. The board found F guilty of an examination offence and suspended him indefinitely from all university examinations. F brought an action against the university for a declaration to the effect that the decision was null and void on the ground that the inquiry was not conducted in J17 . . accordance with principles of natural justice. On appeal against an order of the Supreme Court of Colombo granting the declaration, it was not disputed that the inquiry was a quasi-judicial, not an administrative, proceeding. It was held that the fact that the commission did not tender B, or any other witness, for cross-examination by F was not a failure to comply with the rules of natural justice, but the position might have been different if F had asked to be allowed to cross-examine B and had not been allowed to do so; neither was the fact that two witnesses had been questioned by the vice-chancellor alone a failure to comply with the principles of natural justice, and, on the facts of the case, the finding of the commission had been reached with due regard to those principles. Turning to the present case, we note that the 1st respondent's advocates appealed against the appellant's decision to nullify the results, and bar the 1st respondent from sitting for the exams. The appeal was by letter dated 8 th July 2013. It was successful in relation to six other students who had been implicated only by the fact that they were in the same group as the 1st respondent, whose appeal was unsuccessful, as indicated by letter dated 21 st October 2013, to Messrs Wilson and Cornhill. The said advocates were dissatisfied with the appellant's response regarding the 1st respondent and apparently pressed for reasons why the 1st respondent's appeal was unsuccessful. The appellant had concluded that the 1st respondent saved the Biology Paper 3 Practical leakage on her phone. The appellant's J18 conclusion was that the 1st respondent intended to use the information for the examination. In our considered view, the appellant reconsidered the matter afresh, after affording the 1 st respondent opportunity to present her case . It should be borne in mind that a hearing need not be oral; it may be by written representation as was done by the 1s t respondent's advocates . We are mindful that the appellant was obligated to hear the p t respondent, as the proposed sanction would deprive the p t respondent of opportunity to obtain her grade 12 results. The rules of natural justice demanded that the 1st respondent be given opportunity to make representations to the appellant, and this was done. The same cannot be said of the 2 nd respondent however. This is because initially, the 2 nd respondent's results were nullified without her being heard on the matter and on insupportable 'circumstantial evidence ' as the appellant chose to refer to it. What was so described was most tenuous and could by no means lead to the conclusion that the 2 n d respondent had had sight of the memo . We are not surprised that the appellant reconsidered the fate of students circumstanced as the 2 n d respondent. We agree with learned counsel fo r the respondents that natural justice demanded that the respondents be heard . We hold however that the 1st respondent was heard, while the 2 nd respondent was not heard. She was denied the right to be heard . Ground two attacks the learned judge's view that the decision to nullify all examinations was irrational. The learned judge's view was that there had to be J1 9 . . compelling evidence to justify nullification of the respondent's examination results. It had thus to be shown that the respondents had prior knowledge in the relevant subjects . In the absence of such proof, nullification of these results was unreasonable in the wednesb ury sense; and irrational, as it was founded on the allegation that they had had sight of the Biology Paper 3 examination material. The term, 'wednesbury unreasonable' as a ground of judicial review was well articulated in Associated Provincial Picture Houses Ltd vs Wednesbury Corporation3 . The facts were that the owners and licensees (Claimants) of the Cavmont Cinema in Wednesbury, Staffordshire, were granted a cinema licence by the defendant local authority, the Wednesbury Corporation, under the Cinematograph Act 1909 for performance on Sunday s. But the licence was granted to a condition that 'no children shall be admitted to any entertainment whether accompanied by an adult or not'. The cinema owners brought an action in judicial review for a declaration that the condition was ultra vires and unreasonable . The Court of Appeal dismissed the appeal and h eld that the local authority had not acted unreasonab ly or u ltra vires in imposing the condition . The principle articulated m this case was that in considering whether an authority with unlimited power has acted unreasonably, the court is only entitled to investigate the action of the authority with a view to seeing if it has J20 • taken into account any matters that ought not to be or disregarded matters that ought to be taken into account. The court cannot interfere as an appellate authority to override a decision of a public authority, its concern being only to see whether the authorrity has contravened the law by acting in excess of the powers confided in it by parliament. The wednesbury reasonableness test has developed towards the 'irrationality test' first formulated by Lord Diplock in Council of Civil Service Unions vs Minister for the Civil Service2 . He said: " ... this applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." The court is entitled to review the rationality of a decision, which is, whether the decision-maker has taken into account only the relevant considerations and has exercised their discretion reasonably. Thus, the decision-maker must adhere to the laws, and give due consideration to the matter. They should therefore not arrive at totally absurd decisions or act unreasonably. The ground of irrationality raised must be viewed in the light of these requirements. In the present case, the appellant invoked section 22 (2) of the Act cited above. The power to nullify the examination results of a candidate is to be exercised where there is reasonable cause to believe that the examination results of a candidate have been obtained by irregular means. The court is not J21 .. here called upon to scrutinize the merits of a decision made by a public body. Rather, it is confined to examining the elements stated above. The section in question confers power on the appellant to nullify examination results where it is satisfied that a particular candidate could have obtained results by irregular means. This decision must be premised on reasonable cause. The appellant was satisfied that the memo on the 1st respondent's phone contained biology paper 3 questions. The reasonable cause the appellant had was the presence of contents of the biology paper 3 leakage on the 1st respondent's phone. Possession of the leakage meant that she had access to examination material. It was unknown at that stage as to what examination material she could have come across, but there was reasonable cause to believe that she had access to other examination material. This, discernibly, was the appellant's view. This view cannot be said to be so defiant of logic that no person in the appellant's position would take a similar view. That being the case, it was misdirection to refer to the decision to nullify all other results as irrational. We agree that the learned trial judge was alive to the power confided in the appellant to nullify examination results . She however found that the appellant exceeded its jurisdiction by barring the 1s t respondent from writing examinations for two years. The learned judge should have distinguished nullification of results and being barred from writing examinations for two J22 years. Then she would have found that the decision to nullify the biology examination result was not in excess of jurisdiction, but was sound. Learned state counsel argues that the barring of the applicants from sitting for examination for a period of two years was justifiable, as it was part of the process of conducting examinations. It was a deterrent penalty, that must be viewed as necessary for the appellant to execute its mandate. Essentially, learned state counsel's argument is that barring was reasonably incidental to the functions of the appellant, which is to conduct examinations. Certain acts, although not expressly authorised by the legislation in question are lawful if they are reasonably incidental to acts which are expressly authorised. In Attorney General vs Fulham Corporation14 , the respondent had powers under the Baths and Wash-houses Act, to establish baths, wash houses and open bathing places. In 1920, a new washing scheme was started in which the respondent's employees washed clothes for customers, and in some instances collected the clothes and delivered them to the customers at a small fee. It was held by Sargant J that the new scheme was not authorised by Baths and Wash houses Act 1846 to 1878, and that the corporation must be restrained from continuing to carry it out. In arriving at this decision, Sargant J recognised that the doctrine of ultra vires ought to be reasonably and not unreasonably understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon those things which the legislature has authorised ought not (unless expressly prohibited) to be held by J23 • judicial construction to be ultra vires. He then proceeded to examme the scheme of the Act, which he found to be that the respondent was to give washing facilities to persons who were not able to provide for themselves places where they may cleanse themselves or their cloths. He reached the conclusion that the respondent was not conferred with power to wash clothes for the public, and the arrangement in that regard was ultra vires its powers. Hazel vs Hammersmith & Fulham London Borough Council and Others15 1s a case in which the House of Lords considered the 'reasonably incidental' doctrine. The prov1s10n m question was section 111 (1) of the Local Government Act of 1972, which provides as follows: "Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act ... A local authority shall have power to do anything (whether or not involving expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions." The local authority, a London borough, established a capital market fund for the purpose of conducting transactions involving interest rate movements. Eventually the local authority began to deal in interest rate swaps, transacting with banks. In these contracts, the local authority would benefit if interest rates fell but would incur substantial losses if interest rates rose. The district auditor challenged the legality of the swap transactions on the ground that they amounted to speculative trading for profit, and applied for a declaration J24 • • that the items appearing in the local authority's capital market fund account for the fiscal years 1987 and 1988 were contrary to the law and for an order for rectification of the accounts. Ultimately, an appeal was made to the House of Lords, which held inter alia that a local authority had no power to enter interest rate swap transactions, which by their nature involved speculation in future interest trends, with the object of making a profit in order to increase the available resources of the local authority, because they were inconsistent with the borrowing powers of a local authority as defined and controlled by the provisions of Part 1 of Schedule 13 to the 1972 Act and were not saved by S 111 ( 1) of the Act since they did not 'facilitate' and were not 'conducive or incidental to' the discharge by a local authority of its borrowing functions as limited by the Act. Furthermore, since such transactions were unlawful, the fact that those entered into after July 1988 were intended to eliminate or reduce the risks inherent in the earlier swap transactions did not render them lawful. Lord Ackner, at page 569 of the judgment stated that the power to carry out interest swap activities involved in the interim strategy had to be derived from the statute in question . Thus, an underlying function had to be identified, to which the interim strategy activities were incidental. He ultimately found the interest swap activities unlawful, as they were not incidental to the function of borrowing conferred upon the authorities by the Act. J25 .. . Lord Templeman, who delivered the main judgment with which his brethren concurred, cited Attorney General vs Great Eastern Rly Company16 where lord Blackburn said: " .... where there is an act of parliament creating a corporation for a particular purpose and giving it powers for that particular purpose, what it does not expressly or impliedly authorize is to be taken to be prohibited .... " He also referred to Lord Selbourne's words in the same case at page 4 78, where he said that the doctrine of ultra vires "ought to be reasonably and not unreasonably understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon, these things which the legislature has authorized ought not, unless expressly prohibited, to be held by judicial construction, to be ultra vires." And to what fell from Lord Blackburn at page 481: " ..... those things which are incident to and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited." We have considered the arguments on this limb of the appeal. The function to conduct examinations is reposed in the appellant, by section 8 of the Act. Necessarily, guidelines for the conduct of examinations require to be formulated, and brought to the attention of examination candidates. Although the Act does not expressly so state, the appellant bears the implied duty of conducting credible examinations. The process of examination must be J26 ... • attended with integrity. It is beyond speculation that those who sit for these examinations are expected not to cheat, by obtaining examination questions beforehand. While it is recognized that this is made possible by the participation of a person or persons involved in the examination process, this factor does not absolve an examination candidate who elects to cheat. Section 22(2) of the Act provides for nullification of examination results in such an instance. Admittedly, the Act does not provide that an examination candidate who provides reasonable cause for belief that he or she has cheated should be barred. Having examined the instructive and persuasive English decisions cited above, it is rendered clear that that alone does not negate the power to bar the 1st respondent from writing the examinations for two years. Whether or not the decision to bar is ultra vires is dependent on whether the decision to bar is fairly and reasonably incidental or consequential to the function of conducting examinations conferred on the appellant by the Act. Having expressed the view that examination candidates are expected not to cheat when sitting for examinations, we consider that the power to bar a cheating candidate is incidental to the appellant's functions under the Act. This is because of the responsibility to uphold the credibility and integrity of examinations reposed in the appellant. This entails that candidates sitting for the examinations do so without cheating. This end would in some measure be achieved if students who would otherwise cheat are deterred from so doing, on account of the possibility of being barred from sitting for these examinations J27 should they be found to have cheated. Clearly, the power to bar is incidental, and consequential, thus intra vires the appellant's powers. We move to the third ground of appeal. The respondent's advocates conceded to this ground, as the learned judge, having issued an order of certiorari quashing the decision of the appellant, ought not to have issued an order of mandamus, as there was nothing to be reconsidered by the appellant. In the result, grounds one and three of the appeal succeed, while ground two of the appeal partially succeeds. We thus uphold the decision of the appellant to nullify the Biology Paper 3 results of the 1st respondent. We equally uphold the decision of the appellant to bar the 1st respondent from sitt' . mg or exammations for two t . years. We however uphold th d e or er of certiorari issued . In respect of the 2nd respondent, as she was not heard . or er of cert10rari issued . d ' contrary to the rules of natural J·u t· s Ice. The m respect of the 1st respond . ent 1s thu same fate befalls the order of . party will bear own costs. d . man amus m respect of b s set aside. The oth resp ondents. Each ····················~ ... F. M. C~ NG~ ·····. JUDGE PRESIDE' COURT OF APPE ~ ~ ········· ''""· M '170 11• DU 'C ...... :". •••••••••••• .............. . n NDOLo ......... . RTOF AP , SC PEAL JUDGE J28