S v Council of the University of Malawi (Judicial Review 67 of 2015) [2017] MWHC 132 (12 May 2017)

IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY JUDICIAL REVIEW NUMBER 67 OF 2015 BETWEEN: THE STATE AND COUNCIL OF THE UNIVERSITY OF MALA WI RESPONDENT EXPARTE DANIEL MKW AILA APPLICANT Coram: JUSTICE M. A. TEMBO, Hara, Counsel for the Applicant Mauluka, Counsel for the Respondent Mtegha, Official Court Interpreter ORDER order on the applicant's be converted This is this court's herein proceedings under Order 53 rule 9 (5) Rules of Supreme Court and give consequential directions converting as under Order 28 rule 8 Rules of Supreme Court when summons proceedings application into a writ of summons proceedings by analogy originating review as provided to writ proceedings. that the judicial The applicant sought leave ex parte to commence judicial review proceedings. The case of the applicant academic when he was a student at the Polytech that he failed to graduate his final year project in the 2012/2013 module or dissertation respondent. He of the is basically to complete nic, one of the colleges year after failing f d that he had not been formally inormed of his result in that academic indicate year. academic module. In the 2013/2014 project also working at Blantyre academic year. By then the academic year had already year, the applicant was told that he had to re-do the was started. The applicant Print so he decided to defer the project to the next year, the applicant academic In the 2014/2015 dissertation. His case is that he was authorized because not graduate without Polytechnic authorization and therefore could not be allowed to graduate. the respondent and that he had in fact voluntarily ruled that he embarked on the dissertation withdrawn from the sought to be re-registered to do so. Later the applicant could to do his The applicant sought leave for judicial of granting rawal. applicant on account of voluntary withd to do the dissertation and then refusing review of the putative authorization respondent's to assess the decision the applicant acted irrationally, If leave were granted respondent sense. He also will seek a like order to certiorari respondent's in bad faith and unreasonably quashing will seek a declaration for being unreasonable. decision that the putative in the Wednesbury the putative the leave sought. the applicant's This Court perused refuse leave to be made inter partes. See Note 53/14/ 55 to Order 53 rule 14 Rules of Supreme papers and was not sure whether to grant or for As per the procedure, this Court ordered Court. the application The putative respondent for leave. was served notice of hearing of the inter partes summons the applicant At the hearing of this Court that the judicial herein review proceedings to apply for leave but sought an order be converted into a writ of did not proceed as provided summons proceedings Court and that this Court give consequential 28 rule 8 R proceedings to writ proceedings. directions ules of Supreme Court when converting ori by analogy as under Order ginating summons under Order 53 rule 9 (5) Rules of Supreme indicated that he sought the order converti ng the proceedings he was of the view that the matter should be reviewed on the holistically The applicant because merits. The putative respondent the leave hearing proceed the proceedings sought by the applicant. objected to this course of action and instead insisted that since no proper reason was given for the conversion of This Court agrees of judicial 9 (5) Rules of Supreme Court. with the applicant that it has power to indeed to order conversion review proceedings to writ proceedings as provided under Order 53 rule for judicial review seeks relief However, this Court notes that it can order the convers10n application injunction or damages, in an application for judicial sought in an action Court. Supreme if this Court considers review, sought where the in the form of a declaration, an that such relief should not be granted but might have been granted if it had been begun by writ. See Note 53/14/87 to Order 53 Rule 14 Rules of of conversion by the case of Chisa v Attorney of judicial review proceedings General A good example is afforded Court ordered that the matter proceed was deemed inappropriate defendant which affected the plaintiffs public duties. [1996] MLR 80, in which the by writ after the remedy of judicial review n of the was challenging to under private law as opposed in that case did not owe the applicant any public law because the plaintiff law. The respondent the decisio rights to writ proceedings There is however no indication case that the reliefs granted perfectly is properly seeking on an application within to challenge that the applicant for judicial to this Court in the circumstances seeks to obtain from this Court should not be reliefs are The applicant's review. intended of the present the realm of judicial review on the facts of the case. The applicant in exercising of the respondent the decision its powers under public Malawi Act. law as it discharges its mandate under the University of In the case of Chisa v A page 92-93 t hat, ttorney General, M waungulu JA, as h e then was, noted at review be refused should which point to disputation in this case. There of facts on the matter. reason affidavits why judicial There is a further are countermanding These disputations appropriate Derbyshire Lowry in Roy v Kensington by trial can be best resolved where the facts are accepted. County Council; ex parte Noble [1990] and Chelsea of the action. A judicial of Woolf LJ in R v review is The remarks FPC. Woolf ICR 808 were cited by Lord LJ said: at this stage the court is not concerned but the question as to whether dealt with or not it was a matter review, for judicial with the merits of the which could be it is right that I on an application that an affidavit "Although application, appropriately should indicate Cobb, who was the director county director council, why it has adhered least it can be said, having regard application review evidence cross-examination. in which he purports which would require -unsuita1'le because from 1987 to April 1988 and who is now a consultant was filed on behalf and treasurer of Derbyshire to give an explanation I draw attention to its decision. to the contents of the affidavit, of the council by Mr Eric County Council and of the as to on behalf of the council at because, to that affidavit that the present is one which is unsuitable it clearly for disposal involves investigation on an application for judicial of and of fact and a conflict discovery a conflict and would involve Cross-examination review, which can be resolved but in the ordinary way judicial resorting and discovery without can take place on an application for judicial review is designed to deal with matters to those proceedings." Lord Lowry's comments on this statement are humbling: "The concluding the subject, the rules, jurisdiction." observations, remind us that oral evidence are not part of the ordinary on by a Judge who is an acknowledged authority for by catered and discovery, of the prerogative stock-in-trade although on the present There is no indication discovery judicial argument review procedure. In fact, counsel that the facts on this matter that there is going to be a need for of the abandonment the proposed for the applicant oral during remarked in dispute. matter to warrant or cross-examination are not really Therefore, state of the applicant's the only issue is whether papers on the ex parte applicatio n for leave. leave should be granted or not in view of the by the applicant The application the �erits is therefore not well to deny the that the matter should be reviewed on holistically putative respondent protection of the leave procedure. taken as it is not well supported in the circumstances For that reason, proceed with the inter partes this Court agrees with the putative respondent that this matter must review. hearing for leave to apply for judicial Made in chambers at Blantyre this 1 ih May 2017. I - -