PRINCIPAL REGISTRY
MISCELLANEOUS CIVIL CAUSE NO. 54 OF 1992
BETWEEN
BENEDICT NKHOMA…………………………………… 1ST
PLAINTIFF
and
GEORGE MACHEKA……………………………………2ND
PLAINTIFF
and
EPHRAIM PHIRI………………………………………… 3RD
PLAINTIFF
and
COUNCIL OF THE UNIVERSITY OF
MALAWI…………RESPONDENTS
CORAM: TAMBALA, J.
Chizumila/Kasambala, of Counsel, for the Applicants
Mvula, of Counsel, for the Respondents
Official Interpreter, Tsoka (Mrs.)
Court Reporter, Maore
The applicants seek an order from this Court quashing the decision of the University of Malawi’s Vice Chancellor withdrawing the applicants from the Malawi Polytechnic and a related order requiring their reinstatement at the said College. The application is brought under section 16(2) of Statute Law (Miscellaneous Provisions) Act. It was commenced by Originating Motion which is supported by affidavit.
The respondents intended to use affidavits in opposition to the application. They, however, filed their affidavits with the Court on 7th January 1993, some 57 days after they were served with the applicants’ Notice of Motion and the supporting affidavits. The respondents were guilty of unacceptable delay and they did not comply with the provisions of 0.53 rule 6-(4) of the Supreme Court Rules which requires that respondent must file his affidavit within 56 days following service upon him of the necessary documents. Counsel for the respondents conceded that he failed to comply with Order 53 rule 6-(4). He explained that the delay was caused by the fact that his clients were at first willing to settle the dispute with the applicants out of court. They, however, changed their mind over the Christmas period and that made it difficult for him to prepare and file the necessary document in good time. Counsel for the respondents was, therefore, compelled to rely on submissions based on law in reply to the application.
This application arose from the following facts: The three applicants were third-year students pursuing a course of training for a Diploma in Business Studies at the Malawi Polytechnic, a constituent college of the University of Malawi. Successful students in the third year would be awarded a Diploma, but those students who perform exceedingly well are allowed to proceed to obtain a Degree in Commerce.
In June 1992, the applicants together with the rest of the third-year students sat for end-of-year examinations. After they had written two papers, namely (1) Language and Communication and (2) Management Accounting, staff in the Faculty of Commerce received anonymous letters from other third-year students alleging that the three applicants were in possession of examination papers and answer notes. The anonymous letters also alleged that during the Management Accounting examination the three applicants were seen exchanging answer notes. The unsigned letters threatened that the rest of the students would boycott the remaining examination papers if no action was taken against the three persons.
The Principal of the College called the applicants and told them about the allegations contained in the anonymous letters. He at the same time told them that he did not expect them to make a reply as he was not conducting a court and in any case investigations into the matter were not concluded. He informed them that they would be called later to defend themselves when investigations were completed.
During the following three papers the applicants were called individually by the invigilators to enter the examination room and were required to sit at places of the invigilator’s choice. They were subjected to very close supervision by three different invigilators. They finished writing examinations on 26th May 1992. They eventually left the College campus.
About the second week of August 1992, each applicant received a letter from their Principal. The letter was dated 6th August 1992 and contained the same message. The relevant part of the letter showed:
“CHEATING DURING EXAMINATION
I write to advise that Senate at its last meeting on 5th August, 1992 approved the Faculty’s recommendation that you be withdrawn from College because you were caught cheating during the end-of-year examinations.
You may make an appeal to the Vice Chancellor if you are not satisfied with Senate’s decision.
DR. A.G. PHIRI
PRINCIPAL”
The reaction of each applicant when he received the letter is described in paragraph 13 of the 1st applicant’s affidavit, which states:
“13. That I was shocked and distressed to receive the principal’s
letter because:-
a)
I had never been
caught let alone cheated during the alleged examinations or any examinations at
all.
b)
I was not called by
the Principal to defend myself against the allegations preferred against me
after he had concluded his investigations as per his promise.
c)
I was not informed
of the grounds on which the Faculty of Commerce recommended to the Senate to
have me withdrawn from the college and I was not given an opportunity of any
kind of being heard in my own defence.”
A few days later the applicants received another letter dated 7th August 1992. It was addressed to each applicant and the material part of the letter addressed to the 1st applicant states:
At its meeting held on 5 August 1992, Senate approved the University Academic and Assessment Committee’s recommendation that you FAIL and WITHDRAW from College on academic grounds. You have been warned SERIOUSLY during the year and in your final examinations, you failed more than 40% of the courses you were studying. Find listed immediately below your FAIL marks:
COURSE MARK REMARKS
FINANCIAL ACCOUNTING 59 PASS
MANAGEMENT ACCTG 48 PASS
ECONOMICS 59 PASS
AUDITING 48 PASS
LAW 58 PASS
LANGUAGE AND COMM 74 MARG. DIST
PROJECT 76 DISTINCTION
Dr. A.G. Phiri
PRINCIPAL”
A similar letter sent to the 2nd applicant showed the following results:
COURSE MARK REMARKS
FINANCIAL ACCOUNTING 64 CREDIT
MANAGEMENT ACCTG 43 BARE PASS
ECONOMICS 49 PASS
AUDITING 49 PASS
LAW 56 PASS
LANGUGE AND COMM 57 PASS
PROJECT 68 CREDIT”
The scores slip for the third applicant shows:
COURSE MARK REMARKS
FINANCIAL ACCOUNTING 38 MARGINAL FAIL
MANAGEMENT ACCTG 52 PASS
ECONOMICS 56 PASS
AUDITING 60 CREDIT
LAW 50 PASS
LANGUGE AND COMM 52 PASS
PROJECT 76 DISTINCTION”
The reaction of the 1st applicant to the second letter from the Principal is shown on paragraphs 15 and 16 of his affidavit, which state:
“15. That I was shocked and distressed to receive the aforesaid
letter on the following grounds:-
a)
I had never been
warned academically (be it light or serious) during my three (3) year study
period at the College;
b)
I did not fail a
single subject or course during my end of year examinations but paradoxically had
two (2) distinctions.
c)
The Principal acted
blindly on the Senate’s approval without ascertaining whether I had indeed
failed in any of the courses.
d)
The University
Academic and Assessment Committee recommended things that were not supported by
any records whatsoever.
16. That the cumulative effect of these two letters from the
Principal convinced me that the Principal was bent on having me expelled from
college at all costs.”
The reactions of the 2nd and 3rd applicants were almost to the same effect with the exception that the 3rd applicant stated in addition that he thought that according to the prevailing practice in the University the marginal fail which he obtained in the one subject could be compensated for and turned into a pass by the credit and distinction which he had in the other two subjects.
In response to the Principal’s letter of 6th August, in which the applicants were given an opportunity to appeal to the Vice Chancellor, they wrote to the Vice Chancellor pleading that the matter should be re-considered and that the decision withdrawing them from College should be reversed. The letter of the 2nd applicant addressed to the Vice Chancellor would give sufficient example of the manner in which the applicants pleaded for a decision in their favour. I shall reproduce almost the entire letter. It states:
“Dear Sir
APPEAL
FOR A REVIEW OF THE SENATE DECISION
I refer to the letter from Dr. A.G. Phiri (The Principal of Polytechnic) dated 6th August 1992 in which I was informed of my withdrawal from College. I wish to make an appeal for a reconsideration on the Senate’s decision.
My plea for a reconsideration of this case is based on the following points:
Firstly, I was not caught cheating during examinations as the letter reads. There were a number of allegations against me of which was the circulation of papers during our Management Accounting paper. According to the results notification slip enclosed herein, this was my worst paper. I am therefore satisfied that some marks were deducted since I have always done better. If marks were really deducted, it is a punishment on its own.
Secondly, I have neither failed any subject nor been warned seriously during my three year stay at College. I am therefore not aware of what the results notification slip (enclosed) is referring to.
Thirdly, I am still very young and not yet ready for work especially with the qualification that I currently posses (MSCE). Also it will be very difficult for me to obtain a job or to be admitted to any other college since the dismissal from College will destroy my reputation.
Fourthly, I learnt a lot of material in the three years at College which I feel need to be recognized with an award (DIPLOMA).
My whole future sorely depends on education so that the withdrawal means the end of my future. As a first born in a family of nine, the Senate’s decision is also a big blow to my family.
Therefore Sir, I humbly beg you to reconsider the punishment since as it is, the whole future is blocked for me. Having stayed with you for three years, I now take you as my father to whom I can turn for advice, leniency, help and forgiveness.
I promise that given chance to proceed or repeat, I will work extra hard with dedication, discipline and honesty to ensure a high degree of education at the Polytechnic.
I will be available in person for further explanation and can be contacted on telephone number 332 100 or on the above address.
I hope this appeal for help will reach your most favourable consideration.
Yours faithfully
(GEORGE JACK MACHEKA)”
The Vice Chancellor was unmoved. On 10th September 1992, he wrote:
Dear Mr. Macheka,
APPEAL AGAINST DISMISSAL FROM THE
POLYTECHNIC
1992 END-OF-YEAR EXAMINATIONS
I have now received a comprehensive report from an
adhoc College Appeals Committee that was set up to consider your letter of
appeal against Senate decision that you be dismissed from the University on
academic fraud and I regret to inform you that your appeal has been
unsuccessful.
There is overwhelming evidence that you deliberately and defiantly cheated during the end-of-year examinations in violation of a standing University Regulation concerning writing from hidden notes and communication from fellow students, and its consequences.
In taking the decision to expel you Senate was aware of its earlier decision in 1990 when four students (one from Chancellor College and three from the Polytechnic) were suspended for one academic year for cheating. Following this decision, Senate agreed to expel in future from the University anyone cheating in the examinations and requested that Colleges inform all students about this decision.
For the last two years Colleges have indeed reminded all students verbally and in writing, prior to writing their examinations of the following:
“Penalty
the penalties for academic fraud will range from deducting marks to permanent dismissal from the University. Each case will be considered on its merit, but in the case of cheating in the examinations, expulsion from the University will be mandatory. In this context ‘examinations’ will be taken to include all final examinations, taken during the year.”
It is against this background that Senate has decided to stand by its decision to expel you. Documents in support of this decision are available at the Polytechnic for your inspection, should you wish to do so.”
Having given an outline of the facts upon which the application is based, I must now consider whether the applicants are entitled to the remedy which they are seeking.
The objects of the University of Malawi, according to section 5 of the University of Malawi Act (Cap. 30:02), include the_
“offering within the limits of its
resources, to persons suitably qualified academically and who, in the opinion
of the Council, are able and willing to benefit from he facilities offered by
the University, an education of a high university standard.”
From the object of the University of Malawi, it can be said that the respondents have a public duty to offer, within their financial, material and other constraints, to deserving students university education of a high standard. In the landmark case of Richard Karol Kapile and Others –v- Council of the University of Malawi, Miscellaneous Application No. 47 of 1992, Justice Msosa, after observing that the respondents are a public corporation and a creature of statute, held that when the respondents make decisions affecting the rights of students, care must be taken to ensure that principles of natural justice are observed and that this Court is entitled to intervene to correct an apparent violation of such principles. This Court’s jurisdiction to entertain applications of this kind is, therefore, well settled and it was not contested by Counsel for the respondents.
The letter of 6th August from the Principal to the applicants states that the decision to withdraw the applicants from the University was approved by the Senate on the recommendation of the Faculty. The letter, in my view, suggests that it was the Senate which made the decision to withdraw the applicants; for, it is quite clear, that if the Senate withheld its approval, the applicants would have been retained in the University. Mr. Chizumila in one of his submissions in support of the application, contended that both the Faculty and Senate had no power under the provisions of the University of Malawi Act and Statutes made pursuant to it, to remove a student from the University. I have carefully perused the University of Malawi Act and Statutes XIV and XV which deal with the powers and functions of the Senate and Faculties and Schools respectively and I am compelled to agree with Mr. Chizumila that the provisions of the University Act and Statutes made thereunder do not empower the Faculties or the Senate to make a decision to withdraw a student from any College of the University.
My close examination of Statutes XIV and XV discloses that the Senate’s main function is to formulate policy relating to purely academic matters with a view to promoting high-quality education in the University. It has no administrative or disciplinary functions. These are functions which fall within the jurisdiction of the Vice Chancellor or the Principals of the various Colleges: See article 3 of Statute IV and article 2 of Statute VI. I have not been informed that the Vice Chancellor delegated his general disciplinary powers over students to the Senate. I am also not certain that the Vice Chancellor would lawfully delegate such powers to the Senate. The Faculty simply implements policy on academic matters which has been formulated by Senate. It too has no disciplinary powers over student under the provisions and Statutes of the University of Malawi Act.
Paragraph (t) of Statute XIV states that it is the function of the Senate_
“to discuss and express an opinion on any
matter whatsoever relating to the University.”
The letter of 6th August from the Principal to the applicants clearly shows that the decision to expel the applicants from the University was made by neither the Vice Chancellor nor the Principal of the Malawi Polytechnic persons who were legally empowered to make it. It w recommended by the Faculty and approved by Senate bodies which had no legal power to recommend or approve such a serious matter. I, therefore, come to the conclusion that the actions of the Faculty and Senate in recommending and approving, respectively, withdraw al of the applicants from the Malawi Polytechnic was ultra vires. It was void, incompetent and invalid.
The Vice Chancellor similarly dismissed the applicants plea to reverse the decision withdrawing them from the University. Can it be said that the act of the Vice Chancellor in upholding an invalid decision validated it? I would answer in the negative. The Vice Chancellor cannot validate an act or decision made ultra vires in this manner, for that would be tantamount to giving power to the Vice Chancellor to confer legal jurisdiction wherenone was conferred by law. He cannot validate that which is void and invalid ab initio. In any case, the Vice Chancellor confirmed the decision blindly and under the wrong impression that the two bodies had legal power to make the relevant decision. It is probable that if he was aware of the lack of legality of the Faculty’s and Senate’s decision, he would have subjected it to more careful scrutiny and in the end reversed it.
Mr. Chizumila also ……… that the decision to expel the applicants was made without giving them an opportunity to be heard. He contends that the respondent violated principles of natural justice. The applicants were not called before the Faculty to state their side of the story and refute the allegations made against them. They were also denied this chance when the Senate approved the decision. They were not allowed to be heard before an ad hoc College Appeals Committee which was constituted without their knowledge and considered their case in their absence. In the case of Ridge –v- Bardwin (1963) 2 All FR 56, Lord Reid, towards the end of a long judgment observed, at Page 81, as follows:
“Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void and that w expressly decided in Wool –v- Wood (75). I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.” This principle of natural justice which requires a decision-making body to afford a person likely to be affected by the decision an opportunity to be heard and state his case is part of our law.
I am satisfied that in making their decision to withdraw the applicants from the University, the respondents outrageously violated principles of natural justice.
I must consider whether the act of the Vice Chancellor in considering and confirming the applicants’ appeal rectified the errors committed by the Faculty, Senate and the ad hoc College Appeals Committee. The Vice Chancellor, as it has been submitted by Mr. Chizumila, was himself guilty of a breach of principles of natural justice. He is the Chairman of the Senate: section 17-(1) (a) of the University of Malawi Act. In the ordinary course of events he must have sat in the Senate when it approved the decision of the Faculty in this case. He sat on an appeal against his own decision. Would it come as a surprise that he readily rejected the appeal? It is a violation of a principle of natural justice for a person to sit and hear an appeal against a decision when he participated in the making of that decision: Lusaka City Council –v- Mumba and Others (1976) Z.R. (Zambia Law Reports) 53. This is a decision of a fellow Commonwealth country. It must, therefore, have a strong persuasive effect on this Court, especially when it simply affirms a well-known principle of natural justice. There was no evidence before this Court that the Vice Chancellor was not in the Senate when it sat and decided to expel the applicants. The Vice Chancellor could not, therefore, validate an invalid and incompetent decision of the Faculty and Senate when he himself seriously violated principles of natural justice.
The conclusions which I have reached on the issue which I have discussed above would have disposed of this application; but let me make two minor observations before I rest. The first is that it is clear from affidavit evidence and from the common practice of the University of Malawi that at the end of the third year those students who pass their final examinations in Business Studies at the Malawi Polytechnic are entitled to obtain at least a Diploma. Those students who perform exceedingly well are allowed to proceed to the fourth year with a view to obtaining a Degree at the end of the fifth year. The letter of 6th August advising that the applicants are withdrawn from College does not show the date from which the withdrawal took effect. It can be said that it took effect from 5th August, when the Senate gave the approval. By that date the applicants had completed their third year and the 1st and 2nd applicant had clearly passed the examinations, as the results notification slips show. The letter of 6th August does not state that the decision of the Faculty and Senate had retroactive effect. It can, therefore, be argued cogently that the decision to withdraw the applicants from the University was belated and, therefore, of no effect.
The second observation is that the letter of 7th August which advised that the applicants were withdrawn on academic grounds is self-contradictory and contains a patent lie in view of the available credible affidavit evidence. The letter states that the applicants failed to obtain more than 40% of the courses they were studying. In the case of the 1st and second applicants, this seems to be a malicious lie. The results notification slips show five passes and two distinctions in the case of the 1st applicant and five passes and two credits in the case of the 2nd applicant. It is significant to note that the applicants performed very poorly in Management Accounting, the paper in which they are alleged to have cheated. It is probable that they were penalized by deduction of marks. It would seem unfair to penalize them again by totally withdrawing them from College. From the available affidavit evidence which appears to be credible, the applicants were not warned for poor academic performance or in relation to their general conduct during the course of the third year. To claim that they were seriously warned seems to be a malicious lie.
In the event I come to the conclusion that the decision to withdraw the three applicants from the Malawi Polytechnic is invalid on the grounds, firstly, that it was ultra vires because the bodies which purported to make it had no jurisdiction to make that kind of decision and, secondly, that the making of the decision and its affixmation by the Vice Chancellor was tainted with gross violation of principles of natural justice.
I must no consider whether the applicants are entitled to the remedy which they seek. Mr. Chizumila submitted that to deny a person university education in the present century is tantamount to murder. In his letter to the Vice Chancellor the 2nd applicant said:
“My whole future sorely depends on education so that the withdrawal means the end of my future.”
I would agree with the 2nd applicant that the future of the applicants is doomed and black as a result of the respondents’ conduct. I appreciate at the same time that I have a discretion to grant or refuse the relief sought by the applicants even if I hold that the rights of the applicants were violated by the respondents. The discretion which I have must, however, be exercised in accordance with recognized judicial principles. In a proper case, this Court can make an order for mandamus requiring reinstatement of a person wrongfully dismissed: Chief Constable of the North Wales Police –v- Evans (1982) 3 All ER 141, especially at P. 147. In the case of Martin Likongwe through M. Mashunga (next friend) –v- The Attorney General, Miscellaneous Civil Cause No. 48 of 1991 (unreported), Banda, J., as he then was, ordered that the applicant who was expelled from Dedza Secondary School on allegation that he made a girl pregnant be re-admitted to the secondary school. In Miscellaneous Civil Application No. 47 of 1992, Richard Karol Kapile and Others -v- Council of the University of Malawi, Msosa, J. ordered the re-admission into Chancellor College of some students who were refused such admission following the closure of the College shortly before the end of the 2nd term. The present application is very similar to that of Richard Karol Kapile and Others. I am entitled to make a similar order.
I would, therefore set aside the respondent’s decision withdrawing the three applicants from the Malawi Polyterchnic. I order that the 1st and 2nd applicants be awarded Diplomas in Business Studies consistent with the passes which they obtained at the end of the third year in June 1992, and may, consistent with their academic performance and prevailing regulations and practice of the University of Malawi, be allowed to proceed to the fourth year to pursue a relevant degree course. In the case of the 3rd applicant, he must be granted a Diploma in Business Studies if the prevailing regulations and practice in the University permit a distinction or credit to compensate a marginal fail. In the event that the practice ceased to exist, the 3d applicant should be treated fairly like any other student who has obtained equivalent marks and who has not been the subject of a decision requiring that he be withdrawn from the University. The respondents are condemned to pay the costs of the present application.
PRONOUNCED in open Court this 18th day of January 1993, at Blantyre.
D.G. Tambala