WHETHER THE CRIME OF EXAMINATION MALPRACTICE CAN BE TRIED BY A UNIVERSITY'S DISCIPLINARY COMMITTEE BY PIUS AYAMA

First and foremost, it is indispensable to make a succinct definition of what a crime is. The Black’s Law Dictionary defines a crime as an act which the law makes punishable. The breach of a legal duty treated as the subject of a criminal proceeding. Hence, it is an act committed or omitted in violation of a public law either forbidding it or commanding it. This work, however,  tends to examine the legality of a University’s Disciplinary Panel to try the crime of examination malpractice.

Aptly, section 14 of the Examination Malpractices Act, 2004, clearly states that, examination mal-practice is a crime and it is triable by the Federal High Court. Thus, in the case of OLUTAYO v. F.U.T MINNA (supra), the court held thus: “Examination malpractice is an offence under section 1 and punishable under section 1(2) (a) of the Examination Malpractice Act 2004, with a fine of #100,000 or imprisonment for a term not exceeding three years or both where such person is under eighteen years. It is apropos and kosher to state that, a person accused of examination malpractice is entitled to fair hearing as provided in the 1999 constitution of Nigeria. In the aforementioned case, the court held that, the crime of examination malpractice which the Appellant was accused of and upon which she was investigated by the Students 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 under section 14 of the Examination Malpractice Act, 2004. Hence, neither the Students Disciplinary Committee nor the Senate has jurisdiction under the law to adjudicate on allegation of crime as they are not a court of law".

The writer hereby posits that: if a student is charged with the commission of examination malpractice, that student can only be tried and proved guilty by a court of law. This is consistent with the decision of the court in GARBA v. UNIVERSITY OF MAIDUGURI (supra). It is the writers humble submission that Universities should abstain from trying obvious cases of breach of criminal law; as they are not empowered to try the matter as an internal affair.

In light of the foregoing, section 36 (1) of the CFRN, 1999 (as amended) unequivocally provides thus: In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure it’s independence and impartiality. The clause: “A person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law” should be duly taken into cognizance. In essence, the law only allows a court or other tribunal established by law to grant a fear hearing that will lead to a final and conclusive determination of the rights and obligations of a person. Section 36(1) of the 1999 CFRN (as amended) dealing with the right to fair hearing is sacrosanct. It is trite and settled principle of 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. This was demonstrated in the case of  ATIKU ABUBAKAR v. A G FEDERATION (2007) 3 NWLR (PT 1022) 601. Furthermore, TALBA J.S.C stated thus: “ The courts must 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 CFRN (as amended).

The writer does not contend with the disciplinary powers of a University. For certainty, the court will not attempt to curtail such disciplinary powers for the good of the society and for the interest of justice. The point is, if a student is alleged to have committed a misconduct that amounts to a crime, it is an exclusive matter for the courts to deal with. However, in Garba’s case, Uwais JSC ( as he then was) stated thus: “However, this does not mean that every trivial or minor offense committed by students becomes the subject of prosecution in a court of law ( Deminimis non curat lex). Therefore, it is the responsibility of the Vice-chancellor, in the exercise of his powers under section 17, to distinguish between serious and minor acts of misconduct which has given rise to serious or minor criminal offences”.

In conclusion, the article is based on the recent decision of the court of Appeal in the case of  AMADU BELLO UNIVERSITY, ZARIA v. RASHIDAT SULEIMAN OBANLA (2021) LPELR 55101 (CA). The court held unequivocally that the Appellant acted outside it’s statutory duty which pertains only to academics and usurped the duties of the court of law by pronouncing the guilt of the Respondent for the alleged offense of examination malpractice which is a crime and only triable by the Federal High Court.