IN THE HIGH COURT OF MALAWI
MISCELLANEOUS CIVIL CAUSE NUMBER 138 OF 2009
IN THE MATTER OF ORDER 53 OF THE RULES OF SUPREME COURT
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IN THE MATTER OF SECTION 16 OF THE STATUTE LAW (MISCELLANEOUS PROVISIONS) ACT 5:01 OF THE LAWS OF MALAWI
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IN THE MATTER OF THE DECISION OF COUNCIL OF THE UNIVERSITY OF MALAWI TO ADMIT STUDENTS INTO THE UNIVERTSITY OF MALAWI FOR THE 2009/2010 ACADEMIC YEAR BASED ON A QUOTA SYSTEM AND/OR BY TAKING INTO ACCOUNT DISTRICT OR REGION OF ORIGIN OF STUDENT AND NOT PURELY ON MERIT
- AND -
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
COUNCIL OF THE UNIVERSITY
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EX – PARTE: INNOCENT LONGWE…………..…………………1ST APPLICANT
WILFRED MKOCHI……………………………….2ND APPLICANT
CORAM: THE HONOURABLE MR JUSTICE J. S. MANYUNGWA
Mr Mwangomba, of Counsel, for the Applicants
Mr Kanyenda, Mr Makiyi of Counsel, for the Respondent
Mrs Kanyuka, Chief State Advocate, for the Respondent
Mrs E. Malani – Official Interpreter
R U L I N G
This is the respondent’s inter – partes summons to discharge leave to move for judicial review and the Order for Stay, which the two applicants herein obtained ex – parte on 7th September, 2009. The summons is taken under Order 53 rule 14 and order 32 rule 6 of the Supreme Court Practice1 and under the inherent jurisdiction of the High Court and is supported by an affidavit sworn by Mr Benedicto Wokomaatani Malunga, Registrar of the University of Malawi. The applicants oppose the summons and there is an affidavit in opposition sworn by Mr Happy Wongani Mangomba, legal practitioner for the applicants. Both parties also filed in their skeleton arguments to buttress their respective positions. The respondent is the Council of the University of Malawi which is the governing body of the University of Malawi and is inter – alia responsible for the management and administration of the University and exercises general control and supervision over all the affairs of University. It is a creature of the University of Malawi Act, Chapter 30:02. The two applicants, on the other hand are Innocent Longwe, who was a candidate who sat for his Malawi School Certificate of Education (MSCE) at Chaminade Secondary School in 2008, subsequently scored 23 points and he eventually sat for the University of Malawi Entrance Examinations in or about May 2009 and is currently waiting for his results. The 2nd applicant is a member of the University of Malawi by virtue of being a graduate of the said University and he holds a Bachelor of Education and a Master of Arts (Pure Logistics) from the University of Malawi. As such his membership is provided for by virtue Section 4(1) of the University of Malawi Act2. He is now Head of African Languages at Chancellor College
The applicants were represented at the hearing by Mr Happy Mwangomba, Legal Practitioner in the firm of Messrs Chibambo and Company, while the respondents were represented by Mr David Kanyenda and Mr Makiyi, both of Banda, Kanyenda, Makiyi and Associates and Mrs Kanyuka, Chief State Advocate, representing the Attorney General, who was appointed at the last minute to also act for the respondent.
On 7th September, 2009 the two applicants herein filed an Originating Motion for judicial review pursuant to Order 53 rule 2 of the Supreme Court Practice in which they sought leave to move for Judicial review, which leave was granted by my learned brother, Mbvundula J. However it appears from the court record that by a further Order made by the learned Mbvundula J at the time obtained an order for stay of the Respondent’s decision staying the respondents to implement the new system of selecting students into the University of Malawi based on district or region of origin popularly known as the “Quota” system, which is believed to be a departure from the earlier one based on merit, pending a further order of the court. Hence the respondent on 15th September, 2009 filed for an inter – partes summons to discharge the leave to move for judicial review and an order for stay that were obtained by the two applicants on 7th September, 2009 aforesaid. I heard the application on 3rd November, 2009 and reserved my ruling on the application to a later date as I needed time to consider the issues, research the law and the authorities cited. However, before a date for the ruling could be set, I had to go outside the country on official duties, hence my ruling today, and so the court regrets the inconvenience caused.
THE GROUNDS FOR THE SUMMONS:
In the summons to discharge the leave to move for judicial review, the respondents have advanced six (6) grounds upon which they pray that the court should discharge the leave to move for judicial review that was obtained by the two applicants, as well as the stay order
The said grounds are as follows:-
1. THAT, the application for leave to apply for Judicial Review was not made promptly or in any event within three months from the date on which the grounds for the application first arose.
2. THAT, the applicants lacked locus standi and or sufficient interest in the matter to which the application relates.
3. THAT, the applicants are guilty of suppression of material facts.
4. THAT, the Judicial Review proceedings are friovolous, vexations and an abuse of the process of the court.
5. THAT, the applicants are precluded from commencing these proceedings having voluntarily and wholly discontinued proceedings against the respondents based on similar facts.
6. THAT, the balance of convenience lies in favour of discharging the interim reliefs; the order of stay is detrimental to the smooth and good administration of the University of Malawi.
In his affidavit in support of the application to discharge leave to move for Judicial Review and the stay order, Mr Benedicto Wokomaatani Malunga deposed that he believed that an application to move for Judicial Review has to be made promptly and in any event within three months from the date when the grounds for application first arose. The deponent also deposed that he believed that the applicants are aggrieved with the decision of the respondent widening access to and participation in higher education among disadvantaged groups, and that the impugned decision was made by the respondents on 11th January, 2008 as is evident from exhibit “BWM1” which is a copy of the Minutes of 60th meeting of extraordinary meeting of the respondent held on 11th January, 2008 in the respondent’s Central Office confirming the same. The deponent further stated that upon due consultation with senate in compliance with the provisions of the enabling legislation, the impugned decision was confirmed at the respondents’ 62nd Extraordinary meeting as is evident from exhibit “BWM2” which are Minutes of the 62nd Extra – Ordinary Meeting of Council held in the Boardroom of the Central Office in Zomba at 14:30 hours on 3rd October, 2008. Those minutes at page 5, inter alia at paragraph 17/2008 minuted as follows:-
17/2008“Council further resolved that after consulting the senate, its next university selection would be based on the following approach:
Each district would have its best ten students in the University Entrance Examinations allocated places on merit,
The other remaining places would be allocated on district basis in relation to the size of population and in adherence to merit.
Those wishing to be admitted as non – residential candidates would be selected on the basis of having satisfied prevailing selection criteria.”
The deponent however states that the respondent elected to implement the change in the selection system in the following academic year, to wit 2009/2010 as is evident from exhibit “BWM3” which are minutes of the respondents’ 63rd Extraordinary meeting. The said exhibit at minute No. 44/2008 minuted as follows:-
“The Chairman welcomed members to the meeting and informed members that the got instructions after the last Council meeting that this year’s selection should be based on merit system as was the case in the past and that the selection based on equity consideration should be done next year to give room to the Selection Committee to discuss and understand the system and for the members of the general public to be sensitized for a year to the new system as is the tradition on University policy change.”
The deponent further states that the 2nd applicant commenced proceedings by way of judicial review on or about 21st October, 2008 in Miscellaneous Civil Cause No. 142 of 2008 as is evident from exhibit “BWM4”, which is Notice of Application for leave to apply for Judicial Review. However, on 3rd November, 2008 the said Judicial Review proceedings were voluntarily withdrawn by the 2nd applicant. The deponent further states that the instant proceedings were commenced on 7th September, 2009 and therefore contends that the application for leave to move for judicial review was not made promptly or within 3 months from the date when the grounds for the application first arose, and that accordingly therefore, the leave to move for judicial review that was granted ought to be discharged.
The deponent further contends that he verily believes that an applicant seeking to move for Judicial Review must posses sufficient or personal interest over and above general public interest.
The deponent further avers that he believes that based on the 1st applicant’s performance during Malawi School Certificate of Education (MSCE) and University Entrance Examination(UEE), the 1st applicant is ineligible for selection into the University of Malawi (UNIMA) either using the previous or the current system of selection of candidates into the University as the University of Malawi does not admit a male student or candidate into any of its residential programmes who has scored below 60% from the aggregate score of Malawi School Certificate of Education or “0” level equivalent examination and the score from University Entrance Examinations. The deponent further states that the cut-off point for male candidates in the last five academic years has been as follows:-
Year Cut – off Point
2008/09 - 63%
2007/08 - 65%
2006/07 - 67%
2005/06 - 71%
2004/05 - 69%
The deponent further states that the 1st applicant scored an aggregate of 57.5%, as he scored 66% during Malawi School Certificate of Education and 49% during University Entrance Examinations. The deponent exhibited exhibit “BWM5” but I think it is appropriately exhibit “BWM6” which is a Photostat copy bearing the 1st applicant’s results. Accordingly therefore, the deponent so depones that the change of the selection system will not in any way prejudice the 1st applicant’s rights, interests or expectations.
Furthermore the deponent contends that the 2nd applicant was not a candidate during the University Entrance Examinations, [UEE] as a matter of fact, so the deponent contends, the 2nd applicant is an employee of the respondent, and that accordingly he is in ineligible for selection into the University of Malawi. As such the change of the selection system does not in any way adversely affect or threaten or violate or prejudice the 2nd applicant’s rights, interests and/or expectations. Further, the deponent contends that the 2nd applicant did not even file any affidavit to apply for leave for Judicial Review, and that accordingly therefore the court lacks jurisdiction to hear and determine the instant proceedings.
The deponent further contends that he verily believes that an applicant for an ex – parte order is under an obligation to make the fullest possible disclosure of all material facts within his knowledge or which he could have known upon making reasonable inquiries. The deponent further contends that the applicants herein suppressed the fact that similar Judicial Review proceedings and an ex – parte order for stay similar to the current Ex – parte Order for stay based on the same facts and the same impugned decision were wholly and voluntarily discontinued in November, 2008. The 2nd applicant was also a party to those proceedings as is evident from exhibit “BWM7”, a Photostat copy of the Discontinuance Notice. Further, the deponent contends that had the applicants disclosed the facts contained in paragraph 6.2 herein, the court could not have granted the leave. The deponent therefore states that he believes that re – litigating the instant matter herein subsequent to the voluntary discontinuance amounts to an abuse of the court process and oppression of the respondent, and that the proceedings in the light of the respondent’s paragraphs 4, 5 and 6 herein are therefore frivolous and vexations. The deponent further states that he believes that the applicant also obtained an order of stay in the said discontinued proceedings which was couched in similar terms to the stay order in the instant proceedings as is clearly evident from exhibit “BWM7” which is a copy of the said order for stay in the discontinued proceedings. The deponent therefore contends that he believes that the applicants herein are not entitled to prosecute the instant proceedings having discontinued the earlier proceedings based on the same or similar facts.
Further the deponent depones that the order of stay herein which was obtained by the applicant is similar or analogous to an interim injunction order in its effect and that he verily believes that when a public authority is prevented from exercising its statutory powers, the public interest of which that authority is the guardian, suffers irreparable harm. The deponent further contends that he verily believes that those who contest the constitutional validity of the statutory exercise of power must first comply with same pending the court’s determination. In this regard, the deponent, contends that the Order of Stay of execution operates to delay and derail the academic calendar in that first year students cannot be selected and/or admitted into the University of Malawi until conclusion of the instant matter, and that all continuing students in the respondent’s constituent colleges had since commenced their studies in the current academic year. Any further delays will therefore adversely affect the smooth administration of the current and subsequent academic calendars which in any event are already behind schedule. And the respondent therefore prays for an Order discharging the leave to move for Judicial Review herein that was granted to the two applicants; an Order discharging the Order of Stay herein plus costs of the instant proceedings.
As I indicated, the applicants vehemently oppose the respondent’s application to discharge the leave and Stay Order. In his affidavit in opposition to the respondent’s application, Mr Happy Wongani Mwangomba, the applicant’s legal practitioner deponed, upon the information given to him by the 1st and 2nd applicants that the 1st applicant clearly has sufficient interest to move the court for Judicial Review. Counsel Mwangomba states that the 1st applicant wrote his Malawi School Certificate of Education (MSCE) at Chaminade Secondary School in the year 2008 and that he scored 23 points. The 1st applicant then subsequently sat for the University Entrance Examinations (UEE) in or about May, 2009, results of which were, at the time of the hearing of this application, still being awaited. The deponent states that selection of students is part of the admission process that started with the writing of the University Entrance Examinations [UEE] and that in selecting the said students the respondent in fact applies its selection formular to all students who sat for the University Entrance Examinations. The deponent therefore avers that the results of the examination and selection for the 2009/10 academic year are yet to be released by the respondent. The deponent further states that just like any other student who sat for the University Entrance Examinations the 1st applicant has a legal right and a legal interest in the respondent’s decision to ensure that the respondent administers the whole process according to law and further contends that the 1st applicant being a candidate also has a legitimate interest and expectation that the respondent would handle the examination as well as the selection according to the law and rules laid down by the University in its academic calendar for 2008/2009 which the deponent exhibited as exhibit “HM1”
The said University Calendar at page 64 provides as follows:
“University of Malawi students are classified in five groups based on their entry status or type of study as follows:-
Normal Entry Students, Parallel Students, Mature Entry Students, Post – Graduate Students and Pre – Medical Students.
CATEGORIES OF ELIGIBLE CANDIDATES
Normal Entry Students are admitted into the University on government funding. Admission into the above category is limited by bed space. The University normally provides normal entry students with accommodation and meals. To qualify for this category candidates must sit for the University Entrance Examination in the case of undergraduate students. Prospective students under this category should apply to the University Office. Also, see link on criteria for selection for further details on the University Entrance Examinations.”
The deponent therefore contends that it is completely unethical, unprofessional, unreasonable, and malicious for the respondent to allege that the 1st applicant is ineligible to be admitted into the university before the results are officially released. The deponent states that in fact the respondent’s action in this regard defeats the implied duty of confidentiality owed to candidates.
As regards the 2nd applicant, the deponent states that the 2nd applicant is a legal member of the University of Malawi by virtue of being a graduate of the said University and the deponent exhibited exhibits “HM2” and “HM3” being copies of the 2nd applicants Photostat copies of Bachelor of Arts and Master of Arts degrees respectively obtained by the 2nd applicant from the University of Malawi. Thus, the deponent contends that the 2nd applicant’s membership in this regard is provided for under Section 4(1)(f) of the University of Malawi Act. Further, the deponent also states that the 2nd applicant is also a legal member of the University of Malawi by virtue of being a member as provided for under Sections 4(1)(i) of the said University of Malawi Act. [supra] As such, so the deponent contends, that as a personal legal member of the University of Malawi the 2nd applicant has a direct legal interest and legitimate expectation that the affairs of the University of Malawi shall be carried out in accordance with University of Malawi Act, the Constitution of the Republic of Malawi, any other law as well as rules laid down by the University of Malawi, including the Academic calendar. The deponent therefore contends that since the 2nd applicant is such a member, he has also a duty to ensure that the respondent complies with the High Court decision in the case of Mhango and Others V University Council of Malawi3, which decision, it is contended, outlawed the quota system. The deponent therefore contends that it is not correct that the 1st and the 2nd applicants do not have locus standi as the respondent’s decision contravenes their legal rights and interests as well as their legitimate expectations.
Further the deponent contends that it is not true that the decision being challenged by the applicants in this matter i.e. using the quota system for the 2009/2010 selection was made at the respondent’s 60th Extraordinary meeting that was held on January 11th, 2008. Counsel Mwangomba, as a matter of fact, avers that it is clear from minute 17/2008 that (a) The Respondent merely intimated to use the quota system for the next selection, to wit 2008/2009 (b) using the quota system for the 2008/2009 [which was the next selection after the 11th January, 2008 was subject to consultation with the senate, and the deponent exhibited exhibit “HM4”, which is a copy of the said minutes and the deponent avers that according to minute 23/2008 of exhibit “HM4” the issue had not been concluded, and therefore that it cannot be said that a decision had been made. The deponent further contends that in any case, the respondent never issued a “Press Release” to inform the general public about its wish to change the admission policy so that those that are affected should exercise their legal options, and therefore according to exhibit “HM4”, at minute 23/2008, the respondents deliberately and intentionally hid the issue from the public. The said minute 23/2008 of exhibit “HM4”, actually minuted as follows:
THE SENSITIVITY OF MATTERS DISCUSSED
23/2008 “The Chairman of Council reminded fellow members that the issue of changing policy on selection was a sensitive one, hence, before it was concluded, it would be premature for anyone to leak it to the Press
24/2008 The Chairman assured Council that all University Committees that needed to be informed about the change of policy on selection would be duly informed once all the preparatory work on the matter was over.”
As regards, the meeting of 3rd October, 2008, whose Minutes are contained in exhibit “HM6” of the appellants’ affidavit, the deponent contends that it is not true that at its 62nd Extra – Ordinary meeting held on 3rd October, 2008, the respondent confirmed any decision regarding the “Quota System”, and the deponent exhibited the said minutes as exhibit “HM5”
The respondent avers that the following is clear, viz
THAT the Chairman reported about intimation to introduce a new system of selecting students as is contained in Minute 38/2008.
That no study had been done to justify change of selection system as is contained in Minute 38/2008(1) and (2).
That Senate had not been properly constituted as reflected in Minute 38/2008(6) and Minute 39/2008.
That the respondent is being directed by Government (instead of exercising its statutory duty or power to change the system as is reflected in Minute 38/2008(15).
The deponent further avers that according to minute 41/2008 (3) of exhibit “HM5” the respondents proceeded to establish a sub – committee mandated with the task of refining the selection criteria that the respondents wanted to implement in the long run; and that further, the respondents resolved to give the Chairman time to consult with Government of its modified criteria for selection of students as is reflected by Minute 42/2008 and contends, that from the foregoing it is clear that the respondent did not therefore confirm the alleged system or at all. The deponent further contends on behalf of the two applicants that what the respondent did during the meeting of 3rd October, 2008 was to reverse its intimations, [and decision as there was none] made during the meeting of 11th January, 2008 to start using the new system during the next selection following to wit for 2008/2009 academic year, and that instead the current merit system was used, and the deponent exhibited exhibit “HM6” which is a Photostat copy of the “Press Release” issued by the University office of the University of Malawi dated 22nd October, 2008 which appeared in the 22nd October, 2008 which appeared in the Malawi News of week 25th – 31st October, 2008, which in part was in the following terms:-
“UNIVERSITY OF MALAWI
UNIVERSITY OF MALAWI PRESS RELEASE
2008/2009 SELECTION LIST
The University of Malawi is pleased to announce the results of the 2008 University Entrance Examinations [UEE] and names of candidates who have been selected to pursue various programmes of the University of Malawi for the 2008/2009 academic year as residential students.
The 2008 UNIMA selection was based on merit using the combined aggregate of the Malawi School Certificate Examination [MSCE] results and University Entrance Examinations’ results. Candidates selected to Kamuzu College of Nursing were further subjected to oral interviews meant to establish their interest in nursing.
A total of 3653 candidates sat this year’s UEE. Of this figure 2650 were males and 1003 were females. 3004 passed UEE and of these 2239 were males and 765 females. This year the University of Malawi has selected 974 candidates to enter into University as residential candidates while 384 are females and representing 50% of eligible female candidates.
The deponent further contends that it is not true that at the respondent’s meeting of 22nd October, 2008 the respondent made any decision to start implementation of the new policy in 2009 for the 2009/2010 selection and the deponent exhibited exhibit “HM7” which is a Photostat copy of the Minutes of the respondent’s Extra – Ordinary Meeting held in the Respondents’ Board Room of the Respondent on Wednesday 22nd October, 2008 and avers that it is clear from Minute 44/2008 of the said exhibit that the Chairman of Council simply informed members that he got instructions from Government after the meeting of 3rd October, 2008 that the so called new System had to be done later. The said exhibit “HM7” minuted at Minute 44/2008 as follows:-
44/2008 “The Chairman welcomed members to the meeting and informed members that he got instructions after the last Council meeting that this year’s selection should be based on Merit system as was the case in the past and that the selection based on equity consideration should be done next year to give room to the Selection Committee to discuss and understand the system and for members of the general public to be sensitized for a year to the new system as is the traditional on University policy change
45/2008 The Chairman further informed members that Government shall give further details regarding the implementation of the equity system and that meanwhile, the Council subcommittee that was formed to consider the refinement of the proposed policy should wait until Government communication on the same is received.”
The deponent therefore contended that taking a directive from Government does not mean that the Council took a decision at all and that therefore the said exhibit “HM7” does not in any way show that Council made such a decision or passed a resolution to implement the new system from the 2009/ 2010 academic year, and exhibit “HM7a” was exhibited to buttress this point and avers that it proves yet another directive in respect of the 2009/2010 admission. The said exhibit “HM7a” is a Photostat copy of a letter dated 3rd September, 2009 from the Secretary for Education, Science and Technology, Ministry of Education, addressed to the Executive Director, Tiveta, Lilongwe.
Ministry of Education
3rd September, 2009
The Executive Director
Attention: Mr Y Alide
INTRODUCTION OF AN EQUITABLE SYSTEM FOR ADMITTING STUDENTS TO PUBLIC UNIVERSITIES AND OTHER TERTIARY INSTITUTIONS
I am writing to inform you that the Government has adopted a new policy of admitting students to public universities and other tertiary institutions so that the inequitable distribution of opportunities to tertiary education and training can be addressed.
The equitable system for admitting students to tertiary institutions will work as described below:
Students on full Government Scholarship will be admitted as follows:
A guaranteed number of ten (10) places for qualified and deserving students will be reserved for each district.
Blantyre, Lilongwe, Mzimba and Zomba districts will be classified into two zones, namely Urban and Rural districts, with each zone or category being guaranteed 10 places
The balance of the available places will be distributed on merit basis according to population rations of districts of origin
(d) For the districts that would not be able to contribute a total of guaranteed required minimum of 10 qualified candidates, the remaining places would be put into the general pool and awards for such places would be redistributed to other districts, based on the equity system, according to population ratios of the districts concerned.
Non – residential students (students not on government scholarship) will be admitted purely on merit and ability to pay, as is currently the case.
You are, therefore, advised to implement the new system with effect from 2009/2010 academic year.
B. H. Sande
SECRETARY FOR EDUCATION, SCIENCE AND TECHNOLOGY
The deponent further avers and contends that there is no evidence whatsoever that the public was ever sensitized on the matter as stated in Minute 44/2008 of exhibit “HM7” and further that according to Minute 45/2008 the Chairman instructed the sub – committee tasked to refine the selection criteria to stop its work until Government communication on the matter was received, and that it is therefore illogical to alleges that at that meeting of 3rd October, 2008 the respondent resolved to implement the new system in 2009 when there was no such system in place as the said sub – committee had not yet finished its work and details on the same from the Government were being awaited.
The deponent therefore stated that the grounds of the Judicial review herein in fact arose on or about the 1st September, 2009 when, Council, according to the deponent, bulldozed the Selection Committee to use the quota system. It is further stated that the applicants applied and got leave for Judicial Review on 7th September, 2009 which was only 7 days from the date the grounds arose. The deponent further contends that it is therefore unconscionable for the respondent to be deliberately withholding information from the public it is supposed to serve and then make allegations about expiry of time, and that there has never been any press release from the respondent advising the public about its decision on the new system of admitting students.
As regards the issue of suppression of material facts, the deponent contends that the 1st applicant was not involved in Miscellaneous Civil Cause Number 142 of 2008 and that therefore he could not be expected to be commenting on it in his affidavit in the instant proceedings on proceeding, to which he was not privy. It is further stated that the proceedings in Miscellaneous Civil Cause Number 142 of 2008 were instituted to challenge the respondent’s decision to review selection that had already been done and to admit students into the University of Malawi for the 2008/2009 academic year based on quota system and/or district of origin of students. The Photostat copy of letter from Dr E. Y. Sambo vice Principal, addressed to Deans of Faculty (Education, Humanities, Science and Social Science) and the Acting Registrar, dated 10th October, 2008 was exhibited as exhibit ‘Hm8’. The said letter reference No. CC/VP/4/5 read as follows:-
University of Malawi
P.O. Box 280
To: Deans of Faculty (Education, Humanities,
Science and Social Science)
FROM: THE VICE PRINCIPAL
DATE: OCTOBER, 10, 2008 Ref. CC/VP/4/5
At the Council’s meeting on 10th October, 2008 it was decided to re – view the selection of candidates into the University of Malawi for the 2008/2009 intake.
You are, therefore, asked to participate in the selection meeting to be held at University Office Board Room on Monday, 13th October, 2008 at 09:00 a.m.
Dr E. Y. Sambo
Dean of Postgraduate Studies and Research
Dean of Students
Dean of Law
The deponent therefore avers that as evidenced from exhibit “HM5” and “HM6” the respondent reversed its wish to use the quota system in admitting students for the year 2008/2009 academic year. The deponent further states that Miscellaneous Civil Cause Number 142 of 2008 was discontinued after the respondent reversed its decision, and that this reversal of the decision meant that there was no decision to be reviewed by way of Judicial Review Proceedings. Further, the deponent contends that over and above evidence of such reversal as is contained in exhibits “HM5” and “HM6’, the respondent through its Chairman also personally told the 2nd applicant and the entire nation through the press that the respondent was not proceeding with the new system. The deponent exhibited exhibit “HM9”, which is the front page of the nation Newspaper Vol. 15 No. 215 dated Friday 24th October, 2008, with the title UNIMA SELECTS 974 ON MERIT. As a matter of fact the deponent further contends, that even the President of the Republic of Malawi himself did tell the nation through his then press Officer that the so called quota system was not going to be implemented and that consultations with all stakeholders would have to be made before introduction of a new system and exhibit “HM9” was exhibited. The said exhibit is a Photostat copy of the front page of The Nation Newspaper Vol. 15 No. 211 of Monday 20th October, 2008, entitled “Bingu misunderstood on equitable University Selection.”
The deponent therefore contends on behalf of the applicants that it is clear that proceedings that were meant to challenge a decision to admit students for the 2008/2009 academic year using the quota system [which decision was eventually reversed by the respondent] is not in any way material to the present proceedings which is dealing with the decision made on or about 1st September, 2009 to admit students for the 2009/2010 academic year using the quota system notwithstanding undertakings that this system would not be introduced pending thorough consultations with all stakeholders.
On the point that the applicants are abusing the court process, the deponent contends that this is not correct at all as the two applicants are not re – litigating the matter on similar facts. The deponent states that as had already been deponed, Miscellaneous Civil Cause No. 142 of 2008 was challenging the system in selecting students for the 2008/2009 academic year, and that in the process as evidenced by exhibit “HM5”, “HM6”, “HM7” and “HM9”, that decision was reversed and as such there was no need to continue with the Judicial Review. The deponent therefore avers that it would have been absurd to press for Judicial Review of a decision that had been reversed by the decision maker. Further, the deponent contends that the instant case seeks to review the respondent’s decision to admit students for the 2009/2010 academic year using the quota system or new system, and that therefore this decision and that made for the 2008/2009 [which was subsequently reversed] are not the same. The deponent further contends that in any case, the 1st applicant was not party to Miscellaneous Civil Cause No. 142 of 2008 and he can not rightly be accused of re – litigating the matter at all.
On the issue that these proceedings are frivolous and vexatious, the deponent avers that it is clear from the Notice of Application for leave to apply for Judicial Review and the grounds thereof as well as the affidavit verifying facts relied on that there are real or substantial issues including that of discrimination that need to be looked into by the court vis – a – vis the respondent’s decision herein. The deponent therefore contends that the court needs to examine whether the respondent has followed the law and as such the deponent contends that these proceedings are not frivolous and vexatious.
On the issue of the discontinuance, that the earlier proceedings were voluntarily withdrawn, the deponent contends that Miscellaneous Civil Cause No. 142 of 2008 and the instant proceedings are not based on similar facts and further that Miscellaneous Civil Cause No. 142 of 2008 had to be discontinued because the respondent, as earlier on stated reversed its decision to admit students for the 2008/2009 academic year based on the new system. The deponent further states that in the instant proceedings the applicants are challenging the respondent’s decision to admit students for the 2009/2010 academic year using quota or so called new system. The deponent also contends that in any case the doctrine of issue estoppel does not apply to judicial review proceedings.
On the issue of balance of convenience, the deponent avers that the paramount issue in this case is whether the respondent are following the law in exercising its statutory duty, not convenience. The deponent further contends that it would not be convenient for the respondent to proceed to admit students using the new system before this matter is concluded, and that if that were to be done, and eventually the court finds in favour of the applicants it would mean that the University would have to re-do the selection using the Merit System. The deponent further argues that thus students who would have been admitted using the Quota System but did not qualify under the Merit System would in that case have to be withdrawn. The students who qualified under the Merit System but left out because of the use of the Quota System would have to be admitted, and that by then some students who would not be affected by reverting to the Merit System would have gone a head with their studies and so, by to time the students who were previously left out because of the use of the Quota System go into college they would find their colleagues far ahead of them in their studies. This then deponent contends, would create chaos, and that the deponent verily believes that the balance of convenience lies in maintaining the status quo.The deponent further states that in any case the court that granted leave to move for Judicial Review proceedings ordered that the proceedings be expedited and that this therefore entails that hearing of this matter would be fast – tracked. The deponent therefore depones that actually it is the respondents who are in fact, now delaying proceedings by bringing an application like the one now before this court. Further, the deponent contends that in any case if there is any delay to be caused, then it is the respondent that has itself to blame for deliberately ignoring a court decision on the point, as the respondent already did implement a similar system in the 1987/88 Academic Year as is evident from exhibit “HM11” which is a cutting of Malawi News Vol. No. 3, which unfortunately is undated or does not show the date. The deponent depones further that, however, that that system was challenged in the High Court case of Mhango and Otheres V University Council of Malawi4, and that the judge in that case declared that the system which applied then which is similar to the one being advanced now was discriminatory and the deponent therefore contends that it is baffling that the respondent is doing the same thing that was already declared illegal by the court and that in essence the respondent is in contempt of Court. On these premises therefore, the deponent prays on behalf of the two applicants herein that the respondent’s summons must fail and should be dismissed with costs.
ISSUE(S) FOR DETERMINATION:
The main issue(s) for determination in these proceedings is whether or not the Order for leave to move for Judicial Review and the Order for stay that were granted to the applicants ex-parte by my brother Judge, Mbvundula J, on 7th September, 2009 should be discharged and/or vacated as was argued by the respondents and their legal practitioners, or whether the respondents summons for the discharge of leave to move for judicial review and stay order should be dismissed as was contended by the two applicants herein and their legal practitioners.
However, before I delve into my reasoning and legal analysis of the issues before me I wish to express the court’s sincere gratitude to both counsel for the applicants and counsel for the respondents for the able manner in which they presented their respective clients arguments, for the illuminating submissions that they made both orally and in writing and for the invaluable legal authorities that they presented to the court. The court is really indebted. I must however state that I may not, during the course of this ruling, be able to reproduce all their submissions. This will not be out of disrespect to counsel but it will be due to reasons of brevity. I shall however always bear the said submissions in any mind throughout this ruling and where possible I shall have recourse to them.
The law is clearly that it has always been open to a respondent, like in the instant case, where leave to move for judicial review was granted ex-parte, to apply to this court for the grant of leave to be set aside. Order 53 of the Supreme Court5 has actually stated that such applications are however discouraged and should only be made where the respondent can show that the substantive application will clearly fail.
Furthermore, it appears that under Order 32 rule 6 the High Court has inherent jurisdiction to set aside orders. The said Order 32 rule 6 is in the following terms:-
“The court may set aside an Order made ex-parte”
Moreover Michael Fordham in his Judicial Review Handbook6 has said:-
“The court has power to set aside leave previously granted but will do so only in very clear cut cases.”
See also: R V DPP Ex-P Camelot plc7. Thus the jurisdiction to set aside leave is generally regarded as having its origin in Order 32 above-cited. According to the learned authors de Smith, Woolf and Jowell in their book Judicial Review of Administrative Action8 they have stated at page 667 as follows:
“Where leave has been granted, a respondent may apply to set aside the grant of leave on the grounds that the application discloses absolutely no arguable case or that there had not been frank disclosure by the applicant of all material matters of both fact and law. However, except in very clear cases such applications are not looked on with favour by the courts.”
An application to set aside leave must be made promptly after the person concerned has discovered the grant of leave. See R V Eurotunnel Developments Ex-parte Stephen9. The power of this court to set aside leave, already given, is covered by several English authorities. See R V Secretary of State for Home Developments ex-p Begum10, R V Secretary of State for Home Department ex-p Khalid Al-Nafeesi11 and R V Secretary of State for Home Department ex-p Chinoy12
The learned author Richard Gordon Q,C in his book Judicial Review: Law and Procedure13 has stated as follows on setting aside the grant of leave
“(a) where leave to apply for judicial review has been granted ex-parte (and whether the matter is civil or criminal) it appears to be open to the respondent to apply to the court to set aside the order granting leave.
(b) Such application must be made timeously. If it is not made before the substantive hearing it has been held that there is no point in making the application at all, since it saves no costs and is to no one’s advantage.
(c) A setting aside application ought only to be made in the most exceptional circumstance, and should, if possible be made to the judge who granted it. In R V Westminister City Council ex-parte Zestfair Limited14 Otton J observed that the jurisdiction to set aside an order granting leave to apply for judicial review
‘should be exercised only in very special circumstances such as fundamentally misconceived proceedings [i.e. where the court has no jurisdiction] or where leave has been granted where there has been either fraud on the part of the applicant…. Or non-disclosure of a material fact or facts, or where there is any misconception of law’
On an application to set aside this court is constrained by the same need as the original leave application to try not to defeat the purpose of Order 53 procedure by going into the case in more depth than is necessary to consider the arguability of the substantive judicial review. See R V Arthur Young (a firm) Ex-p Thamesdown BC15 On the other hand if the judge is satisfied after hearing argument, that the substantive motion for judicial review must fail, the jurisdiction to set aside leave (already granted) should be exercised. See R V Secretary for Home Department ex-parte Begum16 (supra).
In R V WEA Records Limited V Visions Channel 4 Limited17 Lord Donaldson of Lymington M R emphasized that it was difficult if not impossible to envisage circumstances in which it would be appropriate to appeal against an order made ex-parte without first applying to have it set aside.”
It further follows that where given, the other party normally the respondent, may apply to the court to have the leave set aside because the application discloses absolutely no arguable case or because the applicant has made no frank disclosure of material aspects of the law. In the case of R V Lloyds of London Ex – parte Briggs18 Mann L. J. stated as follows concerning the duty to explain the precise basis of an application to set aside:
“Where it is sought to set aside leave to move for judicial review which has been granted then as a matter of practice the grounds upon which it is sought to set aside leave must be specified with particularity. The jurisdiction to set aside is one which is sparingly exercised and the reasons for invoking that jurisdiction in a particular case must be specified.”
Further in R V Secretary of State for the Home Department ex-parte Begum (supra) McGowan, J had this to say at p115 of the judgement
“I agree with (Counsel) that this is a jurisdiction that should be very sparingly exercised.”
See also R V Secretary of state for the Home Department Ex-p Sholola19 endorsed in R V Crown Prosecution Service Ex-p Hogg20 and further in R V Customes & Excise Commissioners Ex-p Eurotunnel21 it was stated that:
“[I]t is obvious that the whole purpose of leave stage would be vitiated if the grant of leave were to be regularly followed by an application to set it aside.”
And in Brenden V Brighton Borough Council22 the court stated that the legal profession should pause long and hard before making such applications. Where the court, however, finds that there is no arguable case fit for further consideration, then the court should not grant leave to move for judicial review. It was stated in R V Secretary of State for the Home Department Ex-p Ruck Shanda Begum23, that:
“It is provided, in perfect that where the court is convinced that there is no arguable case fit for further consideration it should not grant the application for leave for judicial review.”
Further, in the case of The State V Secretary to Treasury, Interteck Testing Services Ex-p J Mponda and 50 Others24, the learned Mkandawire, J had this to say:
“The Court has inherent jurisdiction to set aside Orders including orders granting permission to apply for judicial review which have been made without notice being made to the defendant as was the case herein. The authority in point is R V DPP ex-p Camelot plc25.
Further, three learned authors namely Michael Supperstone QC. James Goudise QC and Sir Paul Walker in their joint text entitled “Judicial Review”26 have stated that:
“The purpose of permission stage [otherwise also known as “leave stage”] is to ‘protect public bodies against weak and vaxations claims’. See the dictum of Lord Bingham in R V Secretary of State for the Environment ex-p Eastway27. The precise test as to when permission should be granted has been variously stated but there is no doubt that at the bottom the question is as to whether there is an arguable case which merits full consideration at a substantive hearing ... In addition to the arguability of the substantive case, consideration should also be given to whether any of the discretionary restrictions on remedies in judicial review are applicable, whether the defendant is indeed a public body and whether judicial review provides the appropriate forum for the claim.”
Thus, it is undoubted that the requirement for leave in judicial review cases, in my view, is justifiable on the nature of the remedy and the subject matter of the application namely, Public Administration, or legally speaking public law. As was stated in the case R V Secretary of State for the Home Department Ex – p Chebalak28:
“The requirement that leave be obtained before a substantive application can be made for relief by way of judicial review is designed to operate as filter to exclude cases which are unarguable. Accordingly, an application for leave is normally dealt with on the basis of summary submissions. If an arguable point emerges, leave is granted and extended argument ensures upon the hearing of the substantive application.”
The point was even expressed more succinctly by my learned brother judge Mwaungulu, J in the case of The State V Minister of Finance ex – p SGS Malawi Limited29 when he said at page 9 of his judgement:
“Leave ensures screening for deserving cases to avoid inundation and allowing public administration to continue at least expeditiously, where matters are unfit for judicial review. Moreover, the leave requirement ensures that at an early stage, the appropriate method merited by the law and a factual complexion accompanies the proceedings. Where leave is granted the judge will have considered pertinent matters including of course, the two general considerations.”
The learned judge went further
“This in my judgement means no more than that for every such case where leave initially given is to be set aside, the judge must consider the matter deliberatively. The standard of circumspection is no less for obvious cases than it is for deserving judgement that winnows the grain from the chaff. It is clear that cases either way, namely where leave should be clearly granted or refused, little or no difficulty arises. In unclear cases the court must in my judgement incline towards sustaining the leave given unless, of course, there are compelling reasons for acting contrawise.”
I thus would agree with Potani J, when he stated that the purpose of the requirement for leave is essentially two-fold in the case of The state V The Governor of the Reserve Bank of Malawi Ex-p Finance Bank of Malawi30. This is what the learned judge said at page 2 of his judgement
“[T]he purpose of the leave requirement is essentially twofold. Firstly, to eliminate at an early stage any frivolous, vexations or hopeless applications for judicial review without the need for substantive inter – parties judicial review hearing. Secondly, to ensure that an application is only allowed proceeding to substantive hearing if the court is satisfied that there is a case fit for further investigation and consideration.”
The point was also put, perhaps more vividly, by Lord diplock in the case of R V Inland Commissioners, Ex – parte National Federation of Self – Employed and Small Business Limited31 that the requirement of leave is there to:
“[P]revent the time of the court being wasted by busy bodies with misguided and trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceeding for judicial review of it were actually pending even though misconceived.”
The learned authors de Smith, Woof and Jowell in their book Principles of Judicial Review32 also make an edifying exposition of the rationale for leave in judicial review proceedings and this was also quoted with approval by Potani J in the case of State V The Governer of Reserve and Minister of Finance Ex – p Finance Bank of Malawi [supra] as follows:
“The permission stage in Order 53 Proceedings serves a number of purposes. Firstly, it may safeguard public authorities deterring or eliminating clearly ill-founded claims without the need for them to become party to litigation. The requirement may also prevent administrative action being paralyzed by pending but possibly spurious legal challenge. Secondly, for the High Court, the permission procedure provides a mechanism for the management of the growing judicial review case load. A larger proportion of applications can be disposed off at the permission stage with minimum use of the court’s limited resources. Thirdly, for the applicant, the permission stage far from being an impediment to access to justice may actually be advantageous since it enables the litigant expeditiously and cheaply obtain the views of the High Court judge on the merits of his application.”
Let me at this juncture take the opportunity to mention that the court is of course very much alive as to the danger of being dragged into the determination of matters that are meant, if at all, to be determined at the substentative judicial review proceedings. Having sounded that warning however, the court has nevertheless to consider whether or not in the light of the grounds and issues raised by the respondents in their summons for the discharge of leave, and discharge of order for stay the case for the two applicants herein does deserve to go for the substantive judicial review. In reviewing a particular decision, or in other words failure to perform a public duty, or acting outside its powers the court is concerned to evaluate fairness or to put it differently, the court is concerned with reviewing not the merits of the decision in respect of which an application for judicial review is made, but the decision-making process itself. The point was well put by Lord Hailsham L.C. in the leading case on judicial review namely in Chief Constable of North Wales Police v Evans33 wherein he stated as follows:-
“It is important to remember in every case that the purpose (of the remedy of judicial review) is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the merits in question”
At this point it is worthwhile to state that the instant proceedings before me at this stage are not about the merits and demerits of the quota system, which I think is a misnomer, as to me the acronym, Equitable Access to Higher or Tertiary Education sounds more befitting. These proceedings are about whether or not the court should discharge the leave that was granted to the applicants ex - parte. Clearly, the court in judicial review proceedings does not act as a court of appeal but will interfere with the decision of the public authority if it was made in excess of its jurisdiction or power conferred by the enabling law. Judicial review will generally lie in these four broad categories (1) where there is want or excess of jurisdiction (2) where there is an error of law on the face of the record (3) where there is failure to comply with rules of natural justice and (4) where the public body’s decision or action is unreasonable in the Wednesbury sense.
ANALYSIS OF THE LAW AND THE ISSUES:
It was argued by Mr Kanyenda, lead counsel who was assisted by Mrs Kanyuka and Mr Makiyi, all appearing for the respondent that two interim orders that were obtained by the two applicants ex – parte namely the order for leave to move for judicial review and the order for stay should be discharged and or vacated by this court on the basis of the six grounds that the respondents advanced in their summons for discharge. I shall now proceed to deal with the six grounds in the order they appear in summons.
On the first ground, Mr Kanyenda, argued and submitted that the orders for leave to move for judicial review and the order for stay should be discharged because the application for leave to apply for Judicial review was not promptly made or that in any event it was not made within three months from the date on which the grounds for the application first arose. Mr Kanyenda submitted that primarily an applicant must apply for leave promptly and further argued that the three months requirement in Order 53 rule 4, is as a matter of fact, secondary, as the requirement in Order 53 rule 4 is simply promptitude. This is because, according to Counsel and pursuant to Form 86A that the two applicants filed they say that they are aggrieved with the respondent’s decision to widen access to higher education, which according to counsel, was made on 11th January, 2008 and Counsel relied on exhibit “BWM1” which are minutes of the respondents’ meeting and that this decision was then confirmed at the respondent’s subsequent meeting of 3rd October, 2008. Counsel Kanyenda therefore contended that when the two applicants herein became aware of the respondent’s decision, they then commenced judicial review proceedings in Miscellaneous Civil Cause Number 142 of 2008 on 21st October, 2008. However, on 3rd November, 2008 the said proceedings were voluntarily withdrawn by the 2nd applicant only for the applicants to re - commence the proceedings on 7th September, 2009. Counsel therefore contended that the applicants became aware of the respondents decision in as early as October 2008. Counsel therefore submitted that by the applicants commencing the proceedings 11 months down the line, this meant that the proceedings were neither commenced promptly nor in any case were they so commenced within 3 months as stipulated in Order 53 and that the two applicants therefore are guilty of delay and so based on this ground alone, the orders for leave and stay should be discharged.
Mr Mwangomba, counsel for the two applicants in replying to Mr Kanyenda’s submission argued that it is not correct to say that the decision being challenged in this matter was made on 11th January, 2008 as alleged by counsel for the respondents. Counsel further submitted that according to S10 (1) (a) of the University of Malawi Act, the law requires that before determining any question relating to the Academic Policy of the University Council the respondent is required to refer such matters to the senate, and that according to the case of Charles Mhango and others V The University Council of Malawi34 the word ‘shall’ is mandatory and that failure to comply with the requirement in Section 10 (1) (a) of the University Act would therefore invalidate the matter in issue. I would come back to the above case very shortly, but for now let me address the issue as to whether there was delay on the issue on the part of the applicants in applying for leave to move for judicial review.
The first port of call, in my view, is Order 53 rule 4 of the Supreme Court Practice is in the following term: Order 53 rule 4
An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.
Where the relief is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when the grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.
Paragraph (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.”
According to paragraph 53/1-14/31 of the Supreme Court Practice an application for leave to move for judicial review must be made promptly and the catchword is promptly, which in this context means as soon as practicable or as soon as the circumstances of the case would allow, and in any event such applications must be made within three months from the date when grounds for the application first arose. See Order 51 r 4. For this purpose therefore time starts to run from the date when the grounds for the application first arose. In the particular case of an application for an order for certiorari in respect of any judgement, order conviction or other proceeding, the date when the grounds for application first arose will be taken to be the date of that judgement, order, conviction or proceeding. See Order 53 rule 2. The learned of authors of the Supreme Court Practice further state:
“It is sometimes thought than an applicant for judicial review is always allowed 3 months in which to make his application for leave, and provided that he lodges it within that period leave can not be refused on the grounds of delay. This is not so. The primary requirement laid down by the rules, r4 (1) is that the application must be made “promptly” followed by the secondary provision …“and in any event within three months.” Thus there can be cases, where even though the application for leave was made within the 3 months period leave might be refused because on the facts the application had not been made promptly,”
This was the case in Independent Television Commission ex-p TV NI Ltd35 It follows that the fact that an application for leave has been made within the three months’ period does not necessarily mean that it has been made promptly. There could be cases where even though the application for leave was made within the three months period, the applicant would nevertheless have to seek an extension of time, because, on the facts, he had not acted promptly. Further in RV Dairy Produce Quota Tribunal for England and Wales ex-p Caswell36 the Court of Appeal held that where an applicant has failed to apply for leave promptly or within three months at the latest, but the judge at the leave stage grants the applicant an extension of time, good reasons having been shown, it is not open to the applicant to argue at the substantive hearing that there has not been undue delay. The fact that the application for leave was not made promptly, or within three months at the latest carries with it the inevitable consequences of undue delay, even where the applicant has shown good reason for it and extension has been granted; and it is open to the court hearing the substantive application for judicial review to refuse relief on the grounds of ‘Substantial hardship’ or ‘detriment to good administration’.
In the instant case the respondent contends that the decision by which the applicants say they are aggrieved with was made on 11th January, 2008 as is evident from exhibits ‘BWM 1’ which are minutes of the respondents’ meeting which decision the respondent further contend was confirmed at a subsequent meeting of the respondent dated 3rd October, 2008. On the other hand it is contended on behalf of the applicants that this assertion is not borne out or is not at least supported by the minutes of the minutes of the said meeting contained in the respondent’s exhibit “BWM 1”, which was also exhibited as the applicant’s exhibit “HM4’, as Minute Number 17/2008 only minuted that Council further resolved that after consulting the senate, its next University selection would be based on the following approach…..(a) Each district would have its best 10 students in the University Entrance Examinations allocated places on merit. (b) That the other remaining places would be allocated on district basis in relation to the size of population and in adherence to merit (c) Those wishing to be admitted as non-residential candidates would be selected on the basis of having satisfied prevailing selection criteria. The next selection was one for 2008/2009 academic year which as a matter of fact was done on 2nd October, 2008. As such based on the foregoing the applicants contend that, no decision was made as the respondent merely intimated to use the new system of selection for the 2008/2009 selection, which in the minutes is referred to as “the next selection.” The applicants root their argument on this footing in section 10(1) (a) of the University of Malawi Act. The said Section is in the following terms:-
S10 – (1) “The Council shall be the governing body of the University and shall be responsible for the management and administration of the University and of its property and revenues, and, shall exercise general control and supervision over all the affairs of the University including its relations with the public, and without prejudice to the generality of the foregoing, the functions and powers of the Council shall include the following powers and functions
to govern, maintain, administer, dispose of and, save as hereinafter provided, to invest all the property, money, assets and rights of the University, to manage the businesses and all other affairs whatsoever of the University and to enter into any engagement and to accept obligation, and liabilities without any restrictions whatsoever, in the same manner in all aspects as an individual may manage his own affairs:
Provided that before determining any question relating to the matters aforesaid which affects the Academic Policy of the University, the Council shall refer such matters to the Senate, if it has not previously been considered by the Senate and shall take into consideration any recommendation or report thereon by the Senate.”
In support of their argument, the Counsel for the applicants relied on the case of Mhango and Others v University Council of Malawi [supra] which I said I would revert to. In that case the applicants who were University students had been admitted to the University on non-residential basis and so they challenged the University Council’s decision to admit them on non-residential basis and selection of students to the University on basis of district of origin other than on merit. The applicants in that case considered the selection criteria discriminatory and without merit, and so they applied for judicial review asking the court to declare the decision of the University Council ultra vires and that the University Council fettered its powers under the University Act when it adopted a government directive to change the selection criteria from merit to district of origin. Further the applicants argued that the Council had not complied with its statutory obligation to consult the Senate on matters of academic policy. It was held by Mtegha J, in dismissing the applicant’s application:
That the University Council adopted government directive without making its own decision on the issue in accordance with University of Malawi Act and therefore fettered its powers under the valid Act.
The Council had implemented an academic policy without consulting the Senate as it was required under the Act.
The decision to base University selection on district quota other than on merit was discriminatory and of no solid foundation.
The decision to admit students on non-residential basis was in conformity with the University calendar and was valid as it did not disturb the students’ studies or bring any hardship.
A court may grant leave to apply for judicial review out of time. However the respondent had failed to prove that the delay in making the application for judicial review was detrimental to good administration or that granting the order would cause substantial hardship to the respondents. On the other hand, the delay of three to four years was inordinate and unjustifiable therefore the application was dismissed.
I wish to comment on the Mhango Case as follows. To begin with it is a case that is not binding on me as it is a High Court decision, it is merely persuasive. Secondly, that case is clearly distinguishable because unlike the situation in the instant case, that decision came at the end of the hearing of the judicial review, whilst in the instant case, the proceedings are for the determination of the court whether or not to discharge leave to move for judicial review that was granted to the respondents. In other words, the court here is not concerned with the merits and demerits of whichever system of the selection the respondents are going to choose, but whether or not to discharge the leave for judicial review that was granted to the applicants.
In the instant case, it is clear in minute 17/2008 of exhibit “BWM 1” that the respondent resolved that after having consulted the Senate the decision would of course be implemented, and further in Minute 41/2008 of the minutes of 3rd October, 2008 the respondents agreed on the way forward, which was that the respondents would proceed to implement the new system of selection, and that as had been submitted by Counsel for the respondents, there was a consultative process after the meeting of 11th January, 2008, a report was made which was laid before the respondent’s meeting of 3rd October, 2008, and so as minute 44/2008 shows in the minutes of 22nd October, 2008 the respondents merely agreed to defer implementation otherwise a decision to change the system of selection had already been as such it is my finding that the applicants became aware of the respondents decision in the year 2008 and not September, 2009, hence their desire then to move for judicial review as the decision was never reversed, only that it was its implementation that was deferred. In these circumstances, I find just like it was in the Mhango case that the applicants are guilty of inordinate delay, in that they did not bring the application for judicial review promptly or in any case within three months as required by the law. Even if one were to find to the contrary, the respondents’ application, would succeed, in any view, on another front and this brings me to the second ground.
The respondents have contended that the applicants lack locus standi and or luck sufficient interest in the matter in which the application for judicial review relates. According to practice Note 53/14/24 of the Supreme Court Practice, the overriding rule governing the standing or locus standi of the applicant to apply for judicial review is that the court must consider that he has a ‘sufficient interest’ in the matter to which the application relate. If the applicant has a direct or personal interest in the relief which he is seeking, he will very likely be considered as having a sufficient interest in the matter to which the application relates. If, however, his interest in the matter is not direct or personal, but is a general or public interest, it will be for the court to determine whether he has the requisite standing to apply for judicial relief. The learned authors of the Supreme Court Practice, state that’ clearly the formula “sufficient interest” is not intended to a class of persons popularly referred to as a ‘private attorney general’ who seeks to champion public interest in which he is not himself directly or personally concerned under the guise of applying for judicial redress.
Further, Michael Fordham in his book entitled Judicial Review37 states that the procedural rules expressly frame standing or locus standi to be demonstrated at the leave stage. In the case of R V Inland Revenue Commissioners ex-p National Federation of Self-Employed and Small Businesses Limited38 Lord Diplock stated:
“Rules (3) (5) specifically requires the court to consider that the applicant has a sufficient interest in the matter to which the application relates. So this is a ‘threshold’ question in the sense that the court must direct its mind to it and form a prima facie view about it upon the material that is available at the first stage. The prima facie view so formed, if favourable to the applicant, may alter on further consideration in the light of further evidence that may be before the court at the second stage, the hearing of the application for judicial review itself.”
It was further stated at p 642:
“The need for leave to start proceeding for remedies in public law is not new. It applied previously to applications for prerogative orders, though not to civil actions for injunctions or declarations. Its purpose is to prevent the time of court being wasted by busy bodies with misguided or trivial complaints of administrative error and to remove the uncertainty in which public officers and authorities might be left as to whether they would safely proceed with administrative action while proceedings for judicial review of it were actually pending even through misconceived”
In our local jurisdiction, the question of sufficient interest or locus standi has been dealt with by the Supreme Court. In the case of Civil Liberties Committee V Minister of Justice and Registrar General,39 the Supreme Court stated:
“After conducting a survey of the current Legal position and status of locus standi in the area of public law in the United States of America and some Commonwealth countries, it is now pertinent to examine current status of the law relating to standing on the local scene. The starting point would be the Malawi. Supreme Court of Appeal case The Attorney General V The Malawi Congress Party and Others40 In a lucid and eloquent judgement Mtegha J.A stated at p39:
‘The Constitution expressly provides of tests of locus standi so as to identify those persons who can and who can not institute proceedings for breaches of the Constitution. The relevant sections are S15 (2), 41 (3) AND 46 (2). locus standi is a jurisdictional issue. It is a rule of equity that a person can not maintain a suit or action unless he has an interest in the subject of it, that is to say, unless he stands in a sufficient close relation to it so as to give him a right which requires protection or infringement of which he brings the action.”
The learned judge continued:
` “Dr Ntaba and Mr Chimango can not rely on Section15 (2) of the Constitution as they have no sufficient or any interest in the alleged violation of human rights of which complaint is made. Nor can the respondents place reliance on Section 46 (2) of the Constitution. Although it is true that this provision refers to a person complaining that a fundamental right or freedom has been infringed, this can not mean that any person can complain about an infringement affecting another person otherwise it would conflict with the provisions of Section15 (2) of the Constitution.”
And in the case of The President of Malawi and Another V Kachere and
Others41, again learned Mtegha JA stated:
“A person who has no sufficient interest in the matter has no right to ask the court of law to give him a declaratory judgement. He must have a legal right or substantial interest in the matter in which he seeks a declaration.”
I must say that these are decisions of the Malawi Supreme Court of Appeal which are binding on this court and I fully agree with their Lordships’ reasoning. A similar approach was also adopted by the High Court in the case of the United Democratic Front V The Attorney General,42.
Now in opposition to the respondent’s arguments on this point, the appellants have averred that they have sufficient standing. With the due respect, I do not think so. The applicants have relied on the dictum of Tambala JA in the case of Civil Liberties Committee and The Minister of Justice V Registrar General43, which in my view was not quoted in full. At page 8 of the judgement, Tambala JA stated referring to the cases Richards and Another V Governor General and Attorney General44 and Australian Conservation Foundation V The Commonwealth45
“Clearly the two cases establish that, in the field of public law, a private plaintiff can establish standing to bring an action if he can show that the conduct or decision of the defendant adversely affects his legal right or interest. A strong belief or conviction that the law generally or a particular law should be observed, or that conduct of a particular kind should be prevented is not sufficient to ground standing. They also establish that an ordinary member of the public who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. The two cases further express the view that a strong desire to enforce public law as a matter of principle or as part of an effort to achieve the objects of a particular organization and to uphold the values which it was formed to promote is not sufficient to establish locus standi to commence an action. Finally the two cases from the countries of the Commonwealth, support the view that, in public law, locus standi in jurisdictional issue.”
It goes without saying that what Counsel for the applicants contended as being legal position on the issue of locus standi in Malawi is not and can not be correct; it is erroneous and misleading. Why I’m I saying this? The Supreme Court after quoting the judgement of Mtegha J in the Attorney General V The Malawi Congress Party46and others, and also The President of Malawi and Another V Kachere and Others47 proceeded at p9 to say:
“It is clear that the principles which the courts in Malawi follow in determining whether locus standi exists, as illustrated by the three cases which we have examined are very similar to those expressed in the case of Richards and Another V Governor General and Another48 and also the case of Australian Conservation Foundatis V The Commonwealth49 but the cases of Attorney General V Malawi Congress Party and Others and The President of Malawi and Another Kachere and Others, stress the Constitutional requirement to show ‘sufficient interest’, for the purpose of establishing standing.”
I must say that my views on this aspect are in full resonance with those expressed by the Supreme Court. In the instant case, the 1st applicant scored an aggregate of 57.5% and the University of Malawi does not admit a male student who has scored below 60% from the aggregate score of the Malawi School Certificate of Education or O level, and the score from University Entrance Examinations [UEE]. Thus, the 1st applicant is ineligible for selection into the University of Malawi, as he scored 66% during Malawi School Certificate of Education and 49% during the University Entrance Examinations, and that accordingly a change in the selection system of students into the University of Malawi as proposed by the respondents would not in any way prejudice him nor his rights. This is because, in my view, the 1st applicant does not have a direct or personal interest substantial interest or what is called a legal right. As for the 2nd applicant, it is worthwhile to note that he was not a candidate during the University Entrance Examinations, and as such he too is ineligible for selection into University of Malawi and that the change in the selection system would not in any way adversely affect neither violate nor prejudice his rights, interests or expectations. Moreover the 2nd applicant did not even file any affidavit in reply to apply for leave to move for judicial review and it is therefore surprising in what capacity he wants to address the court. He is someone who is riding on the back of the applicant and he want to address the court through the back – door, for he neither filed an affidavit nor jointly swore an affidavit with the 1st applicant. Accordingly, it is my most considered view, that the two applicants have not demonstrated that they have sufficient interest to move the court for judicial review, remember ‘sufficient interest’ has been said to be interest which is over and above general interest. Consequently I hold that the two applicants lack locus standi.
I now turn to the issue or the ground as to whether the two applicants herein are guilty of suppression of material facts. It was submitted by Mr Kanyenda, for the respondents that when the applicants applied for leave to move the court for judicial review, they wilfully suppressed the fact that similar judicial review proceedings, as well as an order for stay were commenced and obtained respectively in Miscellaneous Civil Cause Number 142 of 2008 The State and Council of the University of Malawi ex-p Wilfred Mkochi and Ulunji Banda. The respondents further contended that also suppressed was the fact that those proceedings were wholly and voluntarily withdrawn, of course without the leave of the court. On the other hand, Mr Mwagomba for the applicants contended and submitted that the instant proceedings are not similar to those in Miscellaneous Civil Cause Number 142 of 2008, and that therefore the applicants can not be accused of suppression of material facts. It was further contended by Mr Mwangomba that the applicants in Miscellaneous Civil Cause No. 142 were challenging the decision or conduct of the respondents to use the quota system in the 2008/2009 Academic selection. Furthermore, it was argued that the respondents later reversed the said decision, and so the applicants in that case withdrew the proceedings. Counsel also contended that the applicants in Miscellaneous Civil Cause Number 142 of 2008 were different from the applicants in the instant case, so they do not see any materiality of facts which they are said to have been suppressed. With all due respect to Counsel this is being preposterous. I will shortly demonstrate why this it is important; why an ex – parte applicant at the leave stage has the duty to make a full and frank disclosure.
The position at law is that an ex-parte applicant for leave to move for judicial review is under an important duty to disclose to the court all material facts and matters and these include even matters pointing against the grant of leave or relief. In the case of R V Leeds City Council ex-p Hendry50 it was stated that it is of fundamental importance that applications for judicial review should be made with full disclosure of all material available to the applicant Latham, J in that case stated as follows:-
“[T]his is a case which I can properly use in order to send a message to those who are making applications to this court reminding them of their duty to make full disclosure: failure to do this will, result in appropriate cases in the discretion of the court being exercised against an applicant in relation to the grant of relief.”
1. “The duty of the applicant is to make a full and frank disclosure of all material facts.
2. The material facts are those which it is material for the judge to know in dealing with the application as made; and materiality is to be decided by the court and not by assessment of the applicant or his legal advisors.
3. The applicant must make proper enquiries before making the application …The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made such enquiries.
4. The extent of the enquiries which will be held to be proper and therefore necessary must depend on all the circumstances of the case.
5. If material non-disclosure is established the court will be astute to ensure [deprivation of an ex-parte injunction or any relief] obtained thereby.
6. Whether the fact complained of is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues and that non-disclosure was innocent is an important consideration but not decisive.
7. It is not for every omission that the injunction or other relief so obtained will be automatically discharged … The court has discretion.”
Thus the rationale for the law requiring an ex-parte applicant to make full and frank disclosure is not difficult to appreciate. Sir Thomas Bringham talking about the importance of full and frank disclosure in the case of Fitzegerald v Williams53 said:
“In seeking an ex-parte relief an applicant must disclose to the judge any fact known to him which might affect the judge’s decision whether to grant relief or what relief to grant. It is no answer for an applicant who falls down on his duty to show that the relief would have been granted anyway even had he complied with this duty. The courts have traditionally insisted on strict compliance with his rule as affording essential protection to an absent defendant and as applications for ex-parte relief have multiplied so the importance of complying with the duty grown … the judge has then to exercise his own judgement whether in all the circumstances, the interests of justice are best served by discharging, or maintaining or varying the order. In making this judgement he will have regard to the importance of securing compliance with the fundamental principle but he must have regard also to the significance in the context of the particular case of the facts which had not have been disclosed when they should have been.”
Similar views were also made by Warnington, L.J. in R V Kensington Income Tax Commissioners Ex-p Princes Edmondde Polignac54 who made an illuminating exposition of this principle of the law, when he, on page 506 postulated as follows:
“It is perfectly well settled that a person who makes an ex-parte application to the court that is to say, in the absence of the person who will be affected by that which the court is being asked to do – is under an obligation to the court to make the fullest possible disclosure of all material facts within his knowledge and if he does not make that fullest possible disclosure then he can not obtain any advantage from the proceedings and he will be deprieved of any advantage he may have already obtained by means of the order which has thus been obtained by him.”
Further in the case of Beese V Woodhouse55 it was stated:
“The party making an ex-parte application for an injunction or other relief should show utmost good faith and the doctrine of uberrimae fedei in effect applies to such cases.”
This duty on the applicant to make full and frank disclosure extends to disclosure of facts and documents and even to legal principles and authorities and as such counsel should not expect even experienced judges to be seized of all relevant legal principles, and authorities and should cite cases relied upon and adverse to the application as per Lotham, J in R V Secretary of State for Home Department ex-p Li - Bin shi56 and R V Secretary of State for Home Office Ex-p Shahina Begum57
In the instant case, it is clear that the 2nd applicant was also an applicant for judicial review in Miscellaneous Civil Cause No. 142 of 2008, and that he was also aware that the said proceedings were voluntarily withdrawn, nevertheless he never disclosed this when he was making the application for leave to move for judicial review. Furthermore, as for the 1st applicant if he had made proper enquiries he would have come to know that a similar application was made in 2008, and that the same was withdrawn. This is so because it is same counsel … or at least the same legal firm of Messrs Chibambo and Company that represented the second applicant in miscellaneous Civil Cause No. 142 of 2008. Further, the 1st and 2nd applicant are applicant in the instant proceedings and in my view it is inconceivable that the 1st applicant would not have known that there was a similar application in 2008. Surely, if he had made proper enquiries he would have known this. As such, these were material facts that should have been disclosed to the judge before leave was granted, and it clearly does not lie in the applicant’s month to say that they do not see materiality of the issue for material facts are those which it is material for the judge to know. Consequently, based on the foregoing, I do find that there was material – non-disclosure or that material facts were suppressed.
I now turn to the ground as to whether the judicial review proceedings are frivolous vexations and an abuse of the court process. It was argued and submitted by Mr. Kanyenda, Counsel for the respondents that looking at the factual background obtaining in the instant proceedings, that it is similar to that in Miscellaneous Civil Cause No. 142 of 2008, and that in that regard therefore the applicants conduct of the current proceedings amounts to being frivolous vexatious and an abuse of the process of the court. Mr Mwangomba on the other hand argued and submitted on behalf of the applicants that in as far as this ground is concerned the respondents rely on Order 18 r 19 (1) of the Supreme Court which applies where there are pleadings and that according to practice Note 53/14/37 there are no pleadings in Judicial review. Furthermore, it is contended that a closer reading shows that it applies to proceedings commenced by a Writ of Summons. Thus counsel further contended that it is not true that the applicants are re-litigating the matter as the 1st Applicant was not a party in the 2008 proceedings, and further that the decision that was being challenged in that case was actually reversed so there was no reason to proceed with the judicial review.
In law by the term or words “Frivolous or vexatious” are meant cases which are obviously frivolous or vexations or obviously unstainable as per the dictum of Lindley L.J in the case of Attorney General of Ducky of Lancaster V 18 N.W. Ry58 In the case of Higgings V Woodhall59, Lord Halsbury LC stated thus.
“But judicial discretion must be used in determining whether the proceedings are vexatious.’ The pleadings must be ‘so clearly frivolous that to put it forward would be an abuse of the process of the court”.
It could as well be the case that the term or words ‘frivolous or vexatious’ may as well be confined to cases where there are pleadings. However the learned authors of the Supreme Court Practice have that at Par 18/19/31 that the expression ‘frivolous’ or ‘vexatious’ includes proceedings that are an ‘abuse of the process’ see E.T. Mailen Ltd V Robertson60. While this may be the case that the term ‘frivolous’ or ‘vexatious’ applies generally to proceedings begun by writ, it is the principle ‘that a matter is ‘abuse of the process of court’ that has a wider application, and in my view it undoubtedly applies even to applications for judicial review. The position at law is that a court has powers under its inherent jurisdiction where there appears to be “an abuse of its processes”. The term ‘abuse of court process’ connotes that the process of the court must be used bona fide and properly and must not be abused. Thus, the court will prevent the improper use of its machinery, and will in a proper case summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. See Castro V Murray61 per the dictum of Bowen LJ at 63. The categories of conduct rendering a claim frivolous, vexatious or an abuse of the process of the court are not closed but depend on all the relevant circumstances and for this purpose consideration of public policy and the interests of justice may be material.
In the instant matter before me the second applicant was also an applicant in Miscellaneous Civil Cause No. 142 of 2008, which matter was voluntarily withdrawn albeit without the leave or blessing of the court. It is clear therefore in my opinion, that by applying for judicial review in the instant matter on grounds that are akin to those in Miscellaneous Civil Cause No. 142 of 2008, the applicants are in effect abusing the process of the court, which abuse the court under its inherent jurisdiction will always jealously guard. To say the truth, even the 1st applicant can not reasonably state and so I find that the applicants are not li-litigating in the instant matter for it is clear that by commencing the instant matter subsequent to the voluntary discontinuance amounts to an abuse of the court process and oppression of the respondent. So too was it an abuse of court process to obtain an order of stay similar to the earlier order.
I now turn to the 5th ground, as to whether the applicants are precluded from commencing these proceedings, having voluntarily and wholly discontinued proceedings against the respondents based on similar facts. The respondents submit that this should be so while the applicants contend that it can not be said that the proceedings in the instant matter, are similar to those in Miscellaneous Civil Cause No. 142 of 2008.
Order 21 rule 4 of the Supreme Court Practice provides as follows on the effect of a discontinuous.
Order 24 r 4 “Subject to any terms imposed by the court in granting leave under rule 3 the fact that a party has discontinued an action or counter-claim or withdrawn a particular claim made by him therein shall not be a defence to a subsequent action for the same, or substantially the same cause of action.”
Although the discontinuance of an action to the withdrawal of part of a claim without leave is prima a facie no bar to subsequent action for the same cause of action see The Kronprinz62 where a distinction between discontinuous and dismissal is pointed out at p259, discontinuous, may however be a bar to a further action if the relevant limitation period has expired on the date a party seeks to revive the discontinued matter. In the instant case, as I have already found, the time frame for lodgement of an application for leave long expired. The applicants are thus therefore, in my considered view, precluded from commencing the present proceedings.
Finally let me now deal with sixth and last ground as to whether or not the balance of convenience lies in favour of discharging the interim reliefs; that the order of stay is detrimental to good administration of the University of Malawi. Mr Kanyenda, Counsel for the respondent is arguing this ground submitted that the balance of convenience lies in favour of discharging the interim reliefs and further contended that actually the order of stay is detrimental to the good order and smooth running of the University of Malawi. In essence, Counsel implored that the order of stay which the applicant obtained is analogous to an interim injunction in terms of its effect in that the respondents who are a statutory body have been restrained from discharging their statutory duties, and that in the respondent, view it was proper for this court to consider authorities regarding interim orders whose effect is to prevent a statutory body from executing its duties. Counsel further submitted that the respondents should therefore be allowed to fulfil their statutory mandate without interference, and further that we ought to be mindful that as a result of the interim reliefs that were granted to the applicants the academic calendar of the respondents has been derailed in that freshment can not be admitted into the University of Malawi. It was further contended and submitted by Counsel that the balance of convenience tilts in favour of discharging the order of stay and that it in any case the order of stay was detrimental to the smooth running of the University of Malawi. In reply to this submission, Mr Mwangomba for the applicant contended that on a closer reading of the interim reliefs obtained by the applicants show that, they did not obtain an order of injunction but an order for stay and so it would be wrong to talk of an injunction and so the principles applicable to an injunction should not and would not apply here. Further, Counsel Mwangomba contended that the applicants are not challenging any statutory or parliamentally enactment at all but are challenging the decision of the respondent. So there is no injunction at all, or that in the alternative this is a court of law, not convenience and that even then, it is more convenient to preserve the status quo that allowing the respondent to proceed with selections; Further Counsel submitted that the principle of detriment to good administration is not applicable to Malawi, as it is specific to Section 31(6) of the Supreme Court Act, 1981 of England
I would agree with Counsel Mwangomba that the applicants indeed did not obtain an order of injunction against the respondent but an order of stay. However, this is as far as this court can go, because as I understood the respondent’s argument, the issue was not that the applicants obtained an order of injunction, but that the order of stay that the applicants obtained was analogous or akin to an order of injunction, in that the respondents by that order are restrained from carrying on their statutory mandate or duties.
Stay in judicial review proceedings is covered by Order 53 r 3 (10) of the Supreme Court Practice, which provides as follows:-
Order 53 r 3 (10) “Where leave to apply for judicial review is granted,
If the relief sought is an order of prohibition or certiorari and the court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the court otherwise order,
If any other relief is sought, the court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ”.
See also: R V Secretary of State for Education and Science ex-p Avon County Council63. Thus the order of stay in judicial review proceedings is ancillary to the Order granting leave to move for judicial review, and it follows that once the order of leave to move for judicial review has been set-aside or discharged, the order of stay would naturally fall off.
Now, there was heavy gunfire between the two parties regarding the dictum of Tambala JA in the case of Dr Bakili Muluzi V The Director of the Anti-Corruption Bureau64 which was cited by the respondents and which case the applicants contended was not applicable to the issue at hand. At page 8 the learned Justice of Appeal stated
“The traditional test for the exercise of the courts discretionary power to grant an interlocutory injunction pending the final decision of an action was laid down in American Cynamide Case. It is an established and well understood test. Later some Canadian Cases laid down a simpler and clearer test which is essentially a minor modification of the American Cynamide’s test. The Canadian approach involves three tests much like the American Cynamide test. The first in a preliminary and tentative assessment of the merits of the case, to discover if the applicant has established that there is a serious question to be tried in his action. If it becomes clear that his action is frivolous or vexatious, the application for injunction must be dismissed. The second test is to decide whether the applicant would, unless the interlocutory injunction is granted, suffer irreparable damage, that is harm which is difficult or not susceptible to be compensated in damages. If an award for damages would adequately compensate the plaintiff who seeks an interim injunction, the application for the interlocutory relief must be dismissed; and the third test called the balance of convenience and which ought perhaps to be called appropriately the balance of inconvenience is a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction pending a decision on merit”
See Manitoba (AG) V Metropolitan and Stores Ltd65 in:
“Where there is a Constitutional challenge of a statute and an interlocutory injunction is sought against a public authority or law enforcement agency which is party to the action, the Canadian authorities reveal other relevant principles such principles guide the courts in deciding whether to exercise their discretion to grant or refuse the interlocutory relief pending the final decision on merits and they are as follows:-
In Morgentaler V Ackroyd the following observation was made:
“In my view therefore, the balance of convenience normally dictates that those who challenge the Constitutional validity of laws must obey those laws pending the court’s decision. If the law is eventually proclaimed unconstitutional then it need no longer be complied with, but until that time, it must be respected and this court will not enjoin its enforcement.”
Further, in the case Attorney General of Canada V Fishing Vessel Ownsers Association of BC66 it was said:
“When a public authority is prevented from exercising its statutory powers, it can be said in a case like the instant one, the public interest of which that authority is the guardian suffers irreparable harm”
The position is clear that the case dealt with injunctions where there was a Constitutional challenge of the validity of the law, which is not the issue in the instant case which is a stay. However, I would agree that in terms of effect, its consequences are the same as if the applicants had obtained an injunction. In my own considered view, I think the balance of convenience heavily tilts in favour of discharging the stay order obtained herein, because, whichever system of selection is used by the respondents it is only those students who merit qualification for selections into the University that would be selected. I therefore discharge and/or set aside the order of stay.
In these circumstances and by reason of the foregoing, I am satisfied that the respondents’ summons to discharge the order of leave to move for judicial review and the stay order obtained thereby should succeed. Consequently, I discharge the order for leave to move for judicial review which was obtained by the two applicants herein on 7th September, 2009. As the order for leave to move for judicial review has been discharged the order for stay can not stand. As such, I also discharge the order for stay of the respondent’s decision.
As regards costs these normally follow the event, and since the respondents have succeeded in their summons on all the grounds, I order that the costs of these proceedings be borne by the applicants. I so order..
Made in Chambers at Principal Registry, Blantyre this 21st day of January, 2010.
Joselph S Manyungwa
1 Supreme Court Practice, 1999 Edition
2University of Malawi Act, Chapter 30:02 of the Laws of Malawi
3 Mhango and Others V University Council of Malawi  16 (2) MLR 605
4Mhango and Otheres V University Council of Malawi [supra]
5 Order 32 r 6 of the Supreme Court Practice 1999 Edition
6 Michael Fordham Judicial Review Handbook 2nd Edition 1997 p21 p245
7 R V DPP Ex-p Camelot  10 Adm. Law Rep 93.
8 desmith, Woolf and /Jowell, Judicial Review of Administrative Action 5th edition, Sweet and Maxwell 1995
9 R V Eurotunnel Developments Ex-p Stephen  73 PRCR1
10 R V Secretary of State for Home Developments ex-p Begum  1 LR 110, 112F
11 R V Secretary of State for Home Department ex-parte Khalid Al-Nafeesi,  COD 110
12 R V Secretary of State for Home department ex-p Chinoy  COD 381
13 Richard Gordson QC Judicial Review Law and procedure, London, Sweet & Maxwell 1996 p 144 -145
14 R V Westminister City Council Ex-p Zeitfair (Unrep) 11March, 1987
15 R V Arthur Young (a firm) ex-p Thomesdown BC  COD 392
16 R V Secretary for Home Department Ex-p Begum [supra]
17 R V WEA Records Limited V Visions Channel 4 Limited 1WLR 721
18 R V Lloyds of London Ex-p Briggs  11MM 135
19 R V Secretary of State for the Home Department Ex-p Sholola  Imm AR 135
20 R V Crown Prosecution service Ex – p Hogg  6 Admin LR 778
21 R V Customs and Excise Commissioners Ex – p Eurotunnel  CLC 392
22 Brendan V Brighton Borough Council The Times, 24th July, 1996
23 The Secretary of State for the Home Department Ex – p Ruck Shanda Begum
24 The State V Secretary to the Treasury, Interteck Testing Services Ex – p J Mponda and 51 Others Miscellaneous Civil Cause No. 172 of 2006
25 R V DPP Ex – p Camelot 1997 10 Admin Law Rep
26 J Michael Supperston QC, James Goudie QC, Sir Paul Walker Judicial Review, 3rd Edition, Butterworths, p551
27 R V Secretary of State for the Environment Ex – p Eastway 1WLR 2222 at 2227
28 R V Secretary of State for the Home Department Ex – p Chebalak  1WLR 890
29 The State Minister of Finance Ex – p SGS Malawi Limited Miscellaneous Civil Cause Number 40 of 2003
30 The State The Governor of the Reserve Bank and the Minister of Finance Ex – p Finance Bank of Malawi Miscellaneous Civil Cause No. 127 of 2005
31 R V Inland Commissioners, Ex – p National Federation of Self – Employed and Small Business Ltd  AC 617 at 642
32 De Smith, Woolf and Jowells, Principles of Judicial Review, London Sweet and Maxwell 1999.
33 Chief Constable of North Wales Police V Evance  1WLR 1155 at 1160
34 Charles Mhango and others v The University Council of Malawi [supra[
35 Independent Television Commission ex-p TV NI Ltd, “The Times”, December, 1991, CA
36 RV Dairy Produce Quota Tribunal for England and Wales ex-p Caswell  IWLR 1089; [1989 3 AIIER 205
37 Judicial Review [supra[ at p446
38 Inland Revenue Commissioners ex-p National Federation  AC 617
39 Civil Liberties Committee v Minister of Justice and Registrar General MSCA Civil Appeal No. 12 of 1999
40 The Attorney General V The Malawi Congress Party and Others MSCA Civil Appeal No 22 of 1996
41 The President of Malawi and Another V Kachere and Others, MSCA Civil Appeal No. 20 of 1995
42 United Democratic Front V The Attorney General, Civil Cause No. 11 of 1994
43 Civil Liberties Committee and The Minister of Justice V Registrar General [MSCA] Civil Appeal No. 12 of 1999.
44 Richards and Another V Governor General and Attorney General Commonwealth Law Bulletin Vol. 2 April, 1990 p446 - 448
45 Australian Conservation Foundation V The Commonwealth  146 CLR, 493
46 Attorney General v The Malawi Congress Party [supra]
47 The President of Malawi and Another v Kachere and Others [supra]
48 Richards and Another V Governor and Another Commonwealth Law Bulletin Vol 162 April, 1990 at p446 - 448
49 Australian Conservation Foundatis V The Commonwealth  146 V 493
50 R V Leeds City Council ex-p Hendry  6 Admin LR 439
51 R V Lloyds of London ex – p Briggs  5 Admin LR 698
52 Brinks Mat Ltd V Elcombe  1 WLR 1350 at 1356F
53 Fitzegerald V Williams  2 WLR at 454
54 R V Kensington Income Tax Commissioners Ex-p Princes Edmondde Polignac  I KB 486, 506
55 Beese V Woodhouse 5 LT 802, 803
56 R V Secretary of State for Home Department ex-p Li Birn shi  COD 135
57 R V Secretary of State for Home Office Ex-p Shahina Begum  OCD 176
58 Attorney Generaql of Ducky of LancasterV 18 N.W. RY  3 CU. 274
59 Higgings V Woodhall  6 TLR 1
60 E.T. Mailen Ltd v Robertson  ICR 72
61 Castro v Murray  10 Ex 213
62 The Kronprinz  12 App Case 256 at 262
63 R V Secretary of State for Education and Science ex-p Avon County Council  1QB 558
64 Dr Bakili Muluzi V The Director of the Anti-Corruption Bureau MSCA Civil Appeal No. 17 of 2005
65 Manitoba (AG) V Metropolitan and Stores Ltd  Can L II 79 scc
66 Attorney General of Canada V fishing Vessel Owners Association of BC  1FC 791