The Nursing College Disciplinary Committee: Certiorari, Alternative Remedy and Delay
Akua, a final-year student at a government-assisted nursing college, is accused of examination malpractice. The college's disciplinary committee invites her by letter to a hearing, telling her that 'materials were found' but not identifying the invigilator or the alleged material. At the hearing, the committee's chairman reads from a report Akua has never seen and refuses her request to question the invigilator. The committee suspends her for two academic years. The college's regulations provide that 'a student may appeal to the Minister of Health within 30 days'. Akua does nothing for seven months; she then applies to the High Court for an order of certiorari to quash the suspension and prohibition to restrain the college from enforcing it. The college argues that (i) the application is out of time, (ii) the appeal to the Minister is an alternative remedy, and (iii) certiorari does not lie because the committee is not a court.
1. Identify the proper writ or writs, the respondent or respondents, and whether the committee is amenable to judicial review.
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The proper application is for judicial review in the High Court, intituled in the name of the Republic: 'Republic v the Disciplinary Committee of the College; Ex parte Akua'. The primary relief is certiorari to quash the suspension. Prohibition may be sought to restrain the committee or the college from enforcing the suspension or from taking further steps on the invalid decision. Mandamus would lie only if, after the decision is quashed, the committee refuses to hear the matter afresh. A declaration may also be sought, although the prerogative orders are the normal remedy.
The committee is amenable to judicial review if it is established by statute or regulations and exercises public functions over students at a government-assisted institution. Its decision affects Akua's rights and her professional prospects, and it is required to observe natural justice. The fact that it is not a court does not matter; certiorari lies to any body exercising public functions of a judicial or quasi-judicial character. If the college were a purely private institution, the position would be different, but the public character of the institution and the statutory disciplinary framework make review available.
2. Is the failure to appeal to the Minister fatal, and how should the court treat the seven-month delay?
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The existence of a statutory appeal is not an absolute bar to judicial review. It is a factor in the court's discretion. The court may refuse relief where the applicant has an adequate alternative remedy and has not exhausted it, but it will intervene where there is a clear breach of natural justice or where the appeal is not an adequate remedy.
The delay is more serious. Judicial review must be sought promptly, and the court's discretion is affected by delay even where a time limit has not been exceeded. Seven months is on its face not prompt. Akua must explain it: for example, illness, attempts to obtain the record, or reliance on advice. The existence of a 30-day appeal period does not extend the time for judicial review; if anything, it shows that she had a remedy she ignored.
The court should weigh the strength of the breach against the delay. The refusal to disclose the report and to allow cross-examination of the invigilator is a serious breach of audi alteram partem. But the court may still refuse certiorari on the ground of delay and the alternative remedy, leaving Akua to seek an extension of time to appeal to the Minister or to pursue any other remedy. If the court is satisfied that the breach is clear and the delay excusable, it may grant relief notwithstanding the appeal route.
3. What procedural steps must Akua take to make the application competent, and what relief should the court grant?
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Akua must file a motion on notice supported by a statement and an affidavit. The statement sets out the grounds of the application and the reliefs sought. The affidavit sets out the facts: the invitation, the hearing, the refusal to disclose the report and to allow cross-examination, the suspension, the appeal provision and the explanation for the delay. The decision letter and the regulations should be exhibited. The application should be served on the committee and the college; the Republic is the nominal applicant.
The court may order the committee to produce the record of the proceedings. If it finds a breach of natural justice, the appropriate relief is certiorari to quash the suspension, together with prohibition restraining enforcement. The court may remit the matter to the committee for a fresh hearing rather than substitute its own decision. A declaration that the suspension is void for breach of natural justice may also be granted.
Damages are not available in judicial review; Akua would have to bring a separate action if she has a cause of action. Costs are in the court's discretion. If the court finds that the committee is not amenable to review, or that the delay and alternative remedy are fatal, the application will be dismissed and Akua must pursue the ministerial appeal.