Columbia Commonwealth University LTD v National Council For Higher Education (Civil Cause 122 of 2016) [2017] MWHC 115 (16 May 2017)

IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 122 OF 2016 BETWEEN: LTD COLUMBIA COMMONWEALTH UNIVERSITY PLAINTIFF AND NATIONAL COUNCIL FOR HIGHER EDUCATION DEFENDANT CORAM: JUSTICE M. A. TEMBO, Gondwe, Counsel for the Plaintiff Chigoneka, Counsel for the Defendant Mtegha, Official Court Interpreter ORDER the defendant application This is this Court's restraining the plaintiff restraining university. the accreditation order on the plaintiff's from publishing determination from withdrawing university the defendant And also for an injunction the defendant of the plaintiff university. restraining the results pending of an accreditation of the summons for an injunction the accreditation process of the plaintiff from withdrawing for an order of injunction of The application w as contes ted by the defendant. s a public authority v ested with the power to accredit institutions of earning in this c The defendant i higher l Education A subject to the manda ct. The plaintiff is one of the ins titutions of higher te of the defendant in terms of accreditatio learning that is n. ountry and is created under the National Council for Higher is empowered to announce to the public by the Government to offer higher education informs the public that the qualifications as to which universities have in this country. obtained from accredited will be recognized as meeting the requisite standards for such The defendant been accredited Accreditation institutions qualifications. By originating proceedings seeking summons dated 14th April, 2017, the plaintiff commenced the following orders and declarations: 1. A declaration that the defendant to govern the performance which would be the basis for withdraw the withdrawal of the plaintiffs operations has no prescribed and general quality conduct standards assurance of higher education n status and as such of an accreditatio accreditation is wrong and illegal. 2. An order/declaration that the defendant is under a legal obligation under the provisions concerned verdict. Council of the National the actual party/plaintiff for Higher Education Act to give the to justify its on each parameter scores 3. An order/declaration that the defendant's conduct of withdrawing the status of the plaintiff University steps to be taken towards the attainment without informing it of the of the quality standards is accreditation specific illegal Act and thereby lacks legal basis. in terms of section 27(5) of the National Council for Higher Education 4. A permanent withdrawing order of an injunction be granted restraining its accreditation status of the plaintiff University. the defendant from 5. Any order or relief that the Court deems to be fit in the circumstances. The remedy sought defendant by the plaintiff is a permanent status the accreditation from withdrawing order of injunction the restraining of the plaintiff University. arose from the defendant's decision The action plaintiff meet/comply University following what the defendant with the minimum requirements to withdraw the accreditation of the to failure says was the plaintiffs for accreditation. mainly argued that the defendant's The plaintiff accreditati that have been communicated by the defendant to the plaintiff. on are not well defined and that in fact there are no minimum standards minimum standards for This Court was concerned counsel for the plaintiff university were agreed between counsel communicated accreditation with the alleged asked and specifically state of affairs for if indeed this country does not have minimum standards standards that and he changed to say that there are minimum The plaintiffs the defendant and universities in this country. criteria to assessment. that was however submitted that there are no assessment to the plaintiff as an institution that is subject The defendant agreed all universities communicated but that the assessment . to the plaintiff tha� there are minimum standards that were communicated to is confidential and is not criteria or other universities The Government, before the plaintiffs minimum standards accreditati noting that not all issues leading by the plaintiff on was restored . the establishment in 2010 following accreditation the plaintiffs failure to meet of the defendant, had initially withdrawn since its accreditation by Government in 2001. The to the plaintiff by the Government to withdrawal of accreditation in July, 2012 whilst had been addressed Then when the defendant was established plaintiff between 13th July and 6th August, 2015. A report available was supposed with the defendant. dated 23rd October, to the plaintiff, it carried out an institutional audit of the of the audit was made areas that the plaintiff to work on in order to meet the minimum standards for accreditation 2015, indicating directed audit report by the defendant, under directives iii of the institutional >In paragraph to submit a six to nine the plaintiff, within three months, clearly defendant improvement plan addressing the various weaknesses identified in the months' report. Further, in paragraph iv of the same report the defendant indicated to the an improvement plan within plaintiff that, in case the plaintiff three months or where the proposed plan in not adequate or unrealistic and unattained of Education plaintiffs the defendant registration would recommend to the Minister be withdrawn. to provide is unable that the the On 20th October, 2015 the defendant by the plaintiff. had suspended the recruitment of new students dated 1st April, 2016 the defendant approved plan as presented an improvement the plaintiffs In response to the audit report the plaintiff required. By letter improvement plan with a direction for a further the defendant. The validation The validation communicated suspension defendant of students a verification to the plaintiff. The defendant of recruitment conducted exercise of the improvement plan was done on 5th July, 2016. was to focus on specific areas that were clearly maintained also by the same letter until the by the plaintiff would subsist that of the plaintiffs proposed improvements. verification exercise of the same by 2016 the defendant advised the plaintiff that the had noted that the plaintiff The defendant improvement, and establish By letter dated 11th August, defendant of the defendant. and continuous and functioning Further, that based on the validation plaintiff could resume recruitment continue the defendant's it may revoke the status been violated. minimum standards. of the plaintiff compliance to monitor had significantly implemented directed the plaintiff to embrace a culture governance structures ensure appropriate a special office for quality assurance and the three preceding exercise of students. Further, the resolutions of quality are in place and enhancement. the directions would that the defendant with its own improvement plan and by the plaintiff The defendant if it appears added that at any point in time plan had that the improvement The defendant plaintiff admission authorizing defendant's D during argument indicated of students the that it has no record that it advised of assessing the save for the purpose to resume recruitment practices of the plainti ff. However, there is clear communication resumption of recruitment r Golden Msilimba in the form of letter th August, 2015. by the plaintiff from the of students dated 1 i Then on 31st October, 2016 the defendant meeting the plaintiff and directed on 24th and 25th October, 2016, it had considered the accreditation report for a re-assessment in order to clarify some issues. wrote the plaintiff advising that at its then carried out an accreditation re-assessment The defendant between 16th and 20th January, communicated to the plaintiff by the defendant 2017. The results by letter of this re-assessm 2017. dated 7th April, of the plaintiff ent were The result of the accreditation re-assess of the plaintiff defendant. implement The defendant then indicated its own improvement plan. ment was the withdrawal of the accreditation failed to meet the minimum standards set by the that the plaintiff had also failed to because the plaintiff gave a detailed The defendant representat registering the plaintiff. the failure of the plaintiff ions on to the defendant list of areas that the plaintiff must look into and make as the defendant was in the process of de­ The list is long and one of the issues that appears there is to meet the required ratio of part -time to full-time staff. that this re-assess misrepresented The plaintiff however contends that the plaintiff misrepresented allegation is unsupported by the communication advising about the re-assessme itself, ment was based on the allegation to the defendant. matters certain were not communicated And that the To the contrary, dated 31st October, to the plaintiff. this nt being letter matters 2016. main complaint The plaintiffs the minimum standards and therefore of its accreditation withdrawal is unfair and not lawful. is also that it does not know how it scored on each of its view is that the process followed in part the defendant argued mainly that the plaintiff >On its with its own improvement ne'ed to comply in withdrawal of accreditation warned of the consequences of the has been notified plan and that failure to do so would result . Consequently, that at every point the plaintiff was its own improvement to implement of a failure plan. This Court is aware of the applicable the plaintiff and the defendant. applicant discloses will not try to plaintiff shows that there is a serious a good arguable law on interim injunctions The court will grant an interim where the The court claim to the right he seeks to protect. by both as submitted injunction determine the issues on affidavit but it will be enough if the evidence to be tried. question is that the court is required The result only. All that needs to be shown is that the claimant's and reality. Beyond that, it does not matter if the claimant's per cent or 20 per cent. See Mothercare per Megarry V-C at p. 474; Alfred Dunhill Ltd v Sunoptic Megaw LJ at p. 3 73. to investigate the merits to a limited cause of action has substance chance of winning is 90 Ltd v Robson Books Ltd [ 1979] FSR 466 SA [1979] FSR 337 per extent to be tried, then the court will consider has shown {hat he has a good arguable claim and that there is a serious If the plaintiff the question question remedy to either party if the injunction be an adequate it turns out later that the court should have arrived at a different decision on the granting remedy and defendant injunction Mkw amba v Jndefund order of would be able to pay them, an interlocutory of plaintiffs claim. See of the strength Where damages at common law would be an adequate should be refused, irrespective of the injunction. is granted or vice versa and Ltd [1990] 13 MLR 244. damages would whether case and damages are not an adequate Where there is an arguable will then have to consider whether the balance of convenience of the interim order of injunction. See Kanyuka 2003 (High Court) 30 of 2001 both citing WLR316. favours th civil cause number 58 of MSCA Civil Appeal Number Ltd [1975] the famous American Cynamid Co. v Ethicon ); Tembo v Chakuamba (unreported v Chiumia remedy, the court e granting is whether The first question good arguable claim to the right it seeks to protect. this Court has to resolve the plaintiff has disclosed a that there are no minimum standards that it is complaint is to meet or that the same are not fairly defined. that there are minimum standards initial The plaintiffs supposed admitted higher education. tion. pr�viders of higher educa on what the plaintiff The plaintiff however must do as it offers These standards have been agreed between the defendant and The main claim of the plaintiff regard to the scores that the plaintiff is however that there was no evaluation got on the accreditation with criteria herein. re-assessment The defendant argued that it had notified the defendant that all the while the accreditation minimum standards standards. would be withdrawn if the plaintiff and its own improvement of the plaintiff plan towards failed to meet the meeting the minimum The defendant however conceded that its evaluation criteria used during the defendant's m eetings. is confidential and is does not agree with issue to go to trial in relation This Court triable process which the plaintiff defendant that there are no triable seeks to protect. in this matter. the plaintiff issues that on the affidavit evidence there is a to the plaintiffs' right to a fair accreditation Rather this Court agrees with the was seriously is clear that the plaintiff The affidavit evidence that it was necessary to withdraw its accreditation recruitment plaintiff improves by the defendant institutions. its set up so as to meet the minimum standards in consultation The accreditation was restored with the plaintiff was suspended. that the on condition t4at have been set wanting in its set up in 2010. And in 2015 student and other higher education by the defendant, the defendant gave a chance to the plaintiff plan. Then the plaintiff As rightly submitted to come up with an improvement plan. The plaintiff failed to implement its improvement plan. One improvement to full time of the areas the plaintiff failed to meet was the required ratio of part-time staff. This is a critical issue with regard comes up in all the correspondence on 7th April, 2017. accreditation resting with the last communication to the faculty at any university. This is issue came up with its own withdrawing The argument minimum standards does not appear convincing to this Court. scoring criteria is not relevant in this matter. Such a scoring relevant if the un on the by the plaintiff that it needs to be given a scoring criteria This is because a criteria would be iversities were being rated. So, for example must meet minimum standards it either meets them or fails to Where a university meet them. There is no need for scoring the same on a card or something by the plaintiff. that was clearly pointed plaintiff attain of any kind. The standard accredited. out to the plaintiff by the defendant failed to meet the minimum standards it is clear that the plaintiff failed to failure on a scale to be ratio and there is no need to rate the plaintiffs on the issue of ratio of part-time to full time staff as one area where the is minimum. One has to meet that standard the required as suggested Since minimum standards have to be met the plaintiff, assessment herein ignored whatever strides the minimum standards. it was expected to achieve, time staff. The point is that the plaintiff the plaintiff it cannot argue that the re­ had made towards realizing failed to achieve the least that to full among other examples, on the ratio of part-time issue raised Since there is no triable injunction to the defendant as prayed for by the defendant. was granted by this Court in this matter cannot subsist and the application for injunction by the plaintiff to go to trial the ex parte is dismissed with costs Consequently, that the injunction is also vacated. This Court will therefore balance the question in the circumstances. of convenience not consider of adequacy of damages and The other issue that arose at the hearing commencement of the proceedings in this matter. was the propriety of the mode of This Court noted that the matter herein under public law being the National Court asked the parties summons as opposed to by judicial review. involves the defendant's Council of Higher Education it on the propriety to address exercise of powers Act. As such, this of proceeding by originating '8 submitted The plaintiff declaratory judgement mode regardless of the nature and that the law permits of the respondent that in this case it is claiming one to use the originating to the action. in the form of a reliefs summons correctly The plaintiffthen 3 AIIER 1124 the House of Lords in England as per Lord Diplock to mode of commencement of proceedings with regard (1982) as follows public law matters submitted that according to O'Reilly v Macl�man involving stated Now that those disadvantages to Applicants have been removed and all remedies for infringements of rights protected by public law can be obtained on an application for Judicial Review, as can also remedies for infringement of rights under private law if such infringements should be involved, it would in my view as a general rule be contrary to public policy and an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities. My Lords, I have described this as a general rule, for, though it may normally be appropriate to apply it by the summary process of striking out the action there may be exception paricularly where the validity of the decision arise as a collateral issue in a claim for infringement of a right of the Plaintiff arising under private law or where none of the parties objects to the adoption of the procedure by writ or originating summons. should Whether there should be other exceptions. in my view, at this stage in the developmen t of procedural law, be left to be decided on a case to case basis; a process that your Lordship will be continuing in the next case in which judgement is to be delivered today (see Cocks v Thanet DC [1982] 3AII ER 1135). that, in the present then submitted objection The plaintiff preliminary raised the issue. propounded raised defendant and agreed followed case, the defendant rather on the mode of commencement falls clearly this matter as the exception in O'Reilly the because Particularly, it just as to the mode of commencement, rather compel And that this should did not raise a it was the Court that with the observation And that therefore by Lord Diplock no objection v Mackman. of the court. within ame as an excepti this Court to treat the s preserve -the action till the final determ ination of the same. on to the general rule and allow to raised actually of this Court. The defendant the observation it was wrong for the plaintiff fairness of the decision an objection The defendant to seek to challenge, taken under public of the defendant law. has filed submissions by originating to the effect that summons, the to the mode of commencement following This Court finds without herein available matter. following to the defendant that the defendant objects to the continuation of the proceedings the safeguards as a public of the judicial review process in this law function body exercising its public that are The objection to the general taken up by the defendant in O Reilly rule as described v Mackman. clearly takes this matter out of the exception In view of the defendant's improperly commenced herein the proceedings summons instead are found to have been l review. ofby judicia by originating objection to the plaintiff's Contrary summons proceedings defendant. Supreme Court. See Muluzi and Another v Malawi Electoral Constitutional this Court cannot convert proceedings submission, review by the as rightly be cured under Order 2 Rules of the Cause No. 1 of 2009 and practice cannot The error in commencement into judicial Note 53/14/33. submitted Commission originating The originating improper commencement of the proceedings. summons is struck out and injunction also declined on the basis of Costs normally follow the event and shall be for the defendant. Made in chambers at Blantyre this 16th May 2017.