IN THE MALAWI SUPREME COURT OF APPEAL
AT BLANTYRE
MSCA CIVIL APPEAL NO. 17 OF 2000
(Being High Court Civil Cause No. 3473
of 1999)
BETWEEN:
THE
COUNCIL OF THE
UNIVERSITY
OF
MALAWI.......................................RESPONDENT
- and -
NASINUKU
I J SAUKILA............................................APPELLANT
MSCA CIVIL APPEAL NO. 32 OF 2000
(Being High Court Civil Cause No. 3475
of 1999)
BETWEEN:
NASINUKU
I J SAUKILA............................................APPELLANT
- and -
THE
COUNCIL OF THE
UNIVERSITY
OF
MALAWI.......................................RESPONDENT
BEFORE: THE HONOURABLE THE CHIEF JUSTICE
THE HONOURABLE MR
JUSTICE UNYOLO, JA
THE HONOURABLE MR
JUSTICE MTEGHA, JA
R Mhone, Counsel for
the Appellant
Mtambo, Counsel for
the Respondent
Mbekwani (Mrs),
Official Interpreter/Recorder
J U D G M E N T
Unyolo, JA
The parties in this
case are Nasinuku Saukila, as the plaintiff, and the Council of the University
of Malawi, as the defendant. As the
facts will show in a moment, there are two appeals in this matter. The first appeal was filed by the defendant
on 2nd May 2000 and the second appeal was filed by the plaintiff on
14th August 2000. To avoid
confusion, we shall refer to the parties by the initial titles rather than as
the appellant or respondent.
The plaintiff was
until November 1999 a 4th Year student at the College of Medicine of
the University of Malawi (hereinafter referred to as “the College”). Following a Disciplinary Committee meeting
of 13th October 1999, the plaintiff was on 5 th November
1999 expelled from the College on allegations of misconduct, namely,
drunken-ness, removing and breaking the portrait of the Chancellor of the said
University and removing notices from Notice Boards without permission. It was alleged that these incidents occurred
at the Kamuzu College of Nursing in Lilongwe.
The plaintiff was not
satisfied with the decision and he applied to the High Court for a review of
the same. The matter came before Hanjahanja,
J, and after hearing the parties and Counsel on both sides, the learned
Judge found that the Disciplinary Committee lacked the requisite quorum at the
hearing of the plaintiff’s case. He
found that there were only five members instead of seven, as required by the
University of Malawi Student Rules and Regulations. The learned Judge held that in the circumstances, the
Disciplinary Committee’s decision, expelling the plaintiff from the College,
was invalid, null and void. He went on
to say that the situation could not be cured by the “Doctrine of
necessity”. Accordingly, he allowed the
application and ordered that the plaintiff, unless expelled for other acts of misconduct
than those which were the subject of the judicial review, should be reinstated
and continue his studies at the College.
The facts
continue. On the same day the lower
Court’s ruling was delivered, the College wrote the plaintiff informing him that
he had been reinstated and further requesting him to appear before the
Principal of the College to answer the same disciplinary charges which were the
subject of the judicial review.
Thereupon, the plaintiff took out a Summons for an injunction to restrain
the College from holding the intended disciplinary hearing. In addition, he took out a Summons to have
the defendant Council’s chairman committed to prison for contempt of court, on
the basis that the defendant, through the College, had ignored the above-mentioned
ruling of Hanjahanja, J. The
subsequent proceedings came before Mkandawire, J, and after hearing
Counsel on both sides, the learned Judge was of the view that although the
letter informing the plaintiff about his reinstatement also requested him to
appear for another disciplinary hearing on the very charges that had been
framed previously, the College had not thereby failed to comply with the court
order made by Hanjahanja, J. The
learned Judge opined that having reinstated the plaintiff as advised in the
said letter, the College Principal was perfectly entitled, under the relevant
Rules and Regulations, to re-hear the matter.
The learned Judge held that the defendant Council’s chairman was not in
contempt of court, and he accordingly dismissed the plaintiff’s application.
With regard to the
first appeal against the ruling of Hanjahanja, J, the main issue is
whether the learned Judge was wrong in finding, as he did, that the
Disciplinary Committee convened by the College to hear the charges brought
against the plaintiff, was not quorate.
Dr Mtambo, Counsel for the defendant, argued before us that the learned
Judge failed to properly interpret the relevant Student Rules and Regulations.
It is common case that
the relevant Rules and Regulations are Clauses 11.1 and 11.2 of the University
of Malawi Students Rules and Regulations.
These provide as follows:
“11. STUDENT DISCIPLINARY COMMITTEE
11.1 The College Students Union Disciplinary
Committee is responsible for considering cases of misconduct and makes
recommendations to the Principal for a final decision. Provided where it is impractical to convene
the Disciplinary Committee, the Principal may consider the case and make a
decision after hearing the student.
11.2 The College Students Disciplinary Committee
shall normally comprise the following:
(1) Vice Principal - Chairperson
(2) College Registrar or Assistant Registrar or
Administrative Assistant who shall also be secretary
(3) Warden
(4) Students College Union Advisor
(5) Matron/Home sister
(6) 4 students representatives from the College
Union
(7) One-co-opted member of staff”
Dr Mtambo submitted
that the two provisions are different and deal with different matters. With respect, we do not agree. The two provisions, in our view, deal with
the same subject matter. Condensed,
what the two provisions are saying is that, what is called “The College
Students Union Disciplinary Committee” was set up to be responsible for considering
cases of indiscipline and misconduct involving students and to make appropriate
recommendations to the Principal of the College for a final decision. The composition of the Disciplinary
Committee is set out in Clause 11.2.
This Clause provides for a total of ten members of the Disciplinary
Committee. There is then a rider that
where it is not possible to convene the Disciplinary Committee, the College
Principal may hear the case himself and make a decision. It is clear from the ruling appealed from
that the learned Judge correctly understood this to be the purport of the two
provisions.
As we have seen, the
Principal proceeded by way of convening the Disciplinary Committee. Clause 12.1 of the Student Rules and
Regulations provides that two-thirds of the members of the Disciplinary
Committee shall form a quorum at any meeting.
We have seen that the total membership of the Disciplinary Committee
under Clause 11.2 is ten members;
two-thirds of this is seven members.
It was not in dispute that only five members attended the Disciplinary
Committee meeting that expelled the plaintiff from the College. It was stated some four members, namely, the
student representatives, decided at the eleventh hour to pull out from the
Disciplinary Committee and consequently they did not attend the meeting. Whatever was the reason, it is clear that
with only five members attending the meeting, the Disciplinary Committee was
not quorate. In the circumstances, the
learned Judge’s finding on this aspect cannot be faulted.
A secondary issue is
whether the learned Judge was wrong in finding that the “Doctrine of necessity”
referred to in the Press Trust case, MSCA Civil Appeal No. 92 of 1996,
was not applicable to the present case.
As we have just said, four student members of the Disciplinary Committee
resigned from the Disciplinary Committee just before the Disciplinary Committee
was convened. It was the defendant’s
case that the four students did so deliberately, in order to frustrate the
College’s intention to convene the disciplinary hearing. The learned Judge observed that he
understood the Press Trust case as laying down the principle that once a quorum
is formed at the beginning of a meeting, the withdrawal of some members,
thereby reducing the quorum, would not invalidate the proceedings subsequent to
the withdrawal of the other members, or the resolutions made during such a
meeting. He said that the Press Trust
case could be distinguished on the facts from the present case, where there was
no quorum, even at the very beginning of the meeting. To say, as Counsel for the defendant submitted, that the learned
Judge said that the Doctrine of necessity was restricted only to this scenario,
is putting words into the learned Judge’s mouth. He did not say that.
To conclude on this
aspect, it might be useful to say here that the Press Trust case appears to be
misunderstood. The Doctrine of
necessity was not part of the ratio decidendi of that case. The case was decided on other grounds. The remarks which the court made in that
case, vis-a-vis, the doctrine of necessity, were only obiter. We thought we should make this comment in
case the defendant was trying to pray in aid of the doctrine of necessity using
the Press Trust case. Actually, it is
difficult to understand how Counsel for the defendant thinks that the doctrine
of necessity, properly understood, would apply to the facts of the present
case. All in all, the defendant’s
submission on this point has no merit and it must fail.
We now turn to the
second appeal. As indicated, the appeal
on this particular aspect is by the plaintiff against the ruling of Mkandawire,
J. Several grounds of appeal were
filed. Paraphrased, these are, firstly,
that the learned Judge erred in finding that the defendant did not comply with
the order of the lower court directing that the plaintiff should be
reinstated. It was also contended that
the learned Judge omitted to consider that Hanjahanja, J had actually
directed that the plaintiff should be reinstated, unless expelled for other
acts of misconduct than those which formed the subject matter of the judicial
review in the present case; and that
consequently the learned Judge erred in holding that the College was entitled
to re-hear the very charges that had been brought against the plaintiff. Secondly, it was argued that the learned
Judge erred in finding that the plaintiff did not want to answer the disciplinary
charges. Finally, it was argued that
the learned Judge misdirected himself in law in not
considering the effect of the interlocutory
injunction order which restrained the defendant from conducting further
proceedings.
With regard to the
first point, we have indicated that after the order of the plaintiff’s
reinstatement was made, the College wrote the
plaintiff advising that he had been reinstated and inviting him to
appear before the Principal to answer the same charges. It was argued for the plaintiff that the
purported reinstatement was a mere sham, intended to ensuring that the
plaintiff was brought within reach of the defendant to be retried. It was further contended that it was not
open to the College to re-hear the case in the light of the order of Hanjahanja,
J, which expressly stated that the plaintiff could be expelled from the
College only for other charges than those which were the subject of the
judicial review.
The first pertinent
question to be answered is whether, where an applicant succeeds to have the
decision of an administrative body, such as the College in the present case,
set aside on judicial review, there could be another hearing or re-hearing on
the same facts. The answer to this
question may be in the affirmative, depending on facts. For example, where the administrative body’s
decision was attacked on judicial review on the basis that there was a failure
to comply with the rules of natural justice, like a failure to give a
respondent an opportunity to be heard, the administrative tribunal could
properly re-hear the matter after affording the respondent such
opportunity: see Ridge vs
Baldwin (1964) AC 40; see also De
Verteuils (1918) AC 557. In our
judgement, the same is true where, as in the present case, the irregularity was
merely that the administrative tribunal lacked a quorum at the meeting where
its decision was made. In such a case,
the tribunal would properly re-hear the matter.
But reverting to the
present case, we have seen that Hanjahanja, J directed that the
plaintiff should be reinstated “unless expelled for other misconduct than the
subject of the judicial review”. The
question is whether the learned Judge was right in making this last limb of the
order, beginning with the word “unless”.
With respect, we are unable to support this part of the order, since, as
we have already held, it was open to the College to re-hear the plaintiff’s
case. Further, by adding the last limb,
it appears to us that the Judge had made a decision on a substantive issue
which, as we all know, is not the purpose of judicial review, and in any case,
he did so without hearing the parties on this issue.
This brings us to the
contention that Mkandawire, J erred in finding that the plaintiff did
not want to answer disciplinary charges.
Looking at the facts as a whole, we are unable to find fault with the
learned Judge’s finding on this point.
It is significant to note that the plaintiff brought the judicial review
proceedings, complaining about the procedure that was followed by the
Disciplinary Committee, in that it was not quorate. Another issue he raised in the affidavit he swore in support of
the application was that he was not given a chance to cross-examine the person
who laid the disciplinary charges against him.
It has been noted that the second inquiry was going to come before the
College Principal. The question of
quorum would not therefore arise again.
Further, the second inquiry was going to afford the plaintiff the
opportunity to cross-examine the person he wanted to cross-examine. But as it happened, the plaintiff instead
chose to go back to court for an injunction.
And even before the injunction proceedings were heard, he filed a
Summons for contempt of court, the subject of the second appeal. Matters appear to have been complicated
unnecessarily by those proceedings.
We have considered the
submission that the reinstatement of the plaintiff was a mere sham, considering
that the letter that communicated the news of the plaintiff’s reinstatement
also requested him to appear for another disciplinary hearing before the
College Principal. It was contended
that in order to comply with the court order, the College should have allowed
the plaintiff to attend classes pending the disciplinary hearing, which the
College did not do. The defendant
explained this, saying that the College was on recess at that time. It appears to us that this indeed was the
case, and that the College opened several weeks later, on 2nd
May 2000.
On these facts, we are
of the view that the learned Judge’s finding that the College complied with the
court order made by Hanjahanja, J cannot be faulted. We have given careful consideration to the
part of the learned Judge’s order which stated that the plaintiff should be
reinstated “unless expelled for other acts
of misconduct than
those which were
the subject of
the Judicial Review”. But as we
have already indicated, that part of the order was wrong in law.
We now turn, finally,
to the contention that the learned Judge misdirected himself in law by not
considering the effect of the interlocutory injunction which restricted the
defendant from conducting further proceedings.
With respect, we do not think the plaintiff’s contention is made
out. It is noted that the interlocutory
injunction order in question, which was made by Twea, J on 9th
April 2000, was granted for a period of seven days only, pending the hearing of
an inter-parties application. That
application was not immediately pursued and, apparently, it has not been heard
to this day. Clearly, the interlocutory
injunction order had lapsed, having not been renewed by the time Mkandawire,
J was seized of this matter. The
learned Judge cannot, therefore, be criticised.
To sum up, both
appeals must fail, and are dismissed save that, for the reasons already given
above, the “unless” part of Hanjahanja, J’s order must, and is hereby,
set aside. But the learned Judge’s
order quashing the Disciplinary Committee’s decision expelling the plaintiff
from the College and directing that he be reinstated is upheld. It is however open to the College to re-hear
the plaintiff’s case if it is still inclined to do so.
The orders of the
courts below with regard to costs are upheld.
In this court each party is to pay its own costs.
DELIVERED in Open Court this 4th
day of June 2001, at Blantyre.
Sgd ................................................
R A
BANDA, CJ
Sgd ................................................
L E
UNYOLO, JA
Sgd ................................................
H M
MTEGHA, JA