Daniel Nyirenda v University of Zambia Council (Appeal No.56/2012) [2014] ZMSC 265 (18 August 2014)

Jl IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA Appeal No. 56/ 2012 {Civil Jurisdiction) BETWEEN: DANIEL NYIRENDA Appellant Respondent Coram: Wanki, JS, Lisimba, A/JS and Hamaundu, A/JS On the 4 th December, 2012 and 8 th August, 2014 I I For the Appellant: In person For the Respondent: Ms. Anne Changa, Legal Counsel, University of Zambia JUDGMENT Lisimba, A/ JS, - delivered the Judgment of the Court. Cases referred to: 1. Ridge Vs Baldwin {1961) 2 ALL ER 523. 2. Kenmuir Vs Hatting (1974) Z. R. 162? 3. Khalid Mohamed Vs The Attorney..:aeneral (1982) Z. R. 49. i . I J2 4. Zambia Electricity Supply Corporation Limited Vs David Lubasi Muyambango (2006) Z. R. 22. s. Wilson Masauso Zulu Vs Avondale Housing Project Ltd Z. R.172. (1982) Legislation referred to: t. The University Act No. 11 of 1999. This is an appeal against the Judgment of the High Court sitting at Ndola, dated the 6 th of April, 2011, in which the Court dismissed the Appellant's claim, challenging his expulsion from the University of Zambia, and the subsequent nullification of some of his examination results, by the Respondent. The Appellant, who was the plaintiff in the Court below, filed a Writ of Summons and Statement of Claim, in the High Court, on the 22nd of March 2010, claiming the following reliefs: r '(i) A declaration that the decisions of the Defendant communicated to the Plaintiff dated 23rd February . 2007 and 6 th July 2009 are null and void; (ii) An Order to compel the Defendant to release the Plaintiff's second semester results and award the degree; . (iii) Damages for economic loss of use of degree; (iv) Damages for loss of career prospects and economic anguish; J3 (v) Costs and interest incidental to this action; (vi) Any other remedy the Court may deem just.• The brief facts of the case are that the Appellant was a 4 th year student at the University of Zambia, in the School of Natural Sciences. On the 27th of October, 2006, the Dean of Students charged the Appellant with obtaining money by false pretenses and aiding students to fraudulently alter their sponsorship status, from self to GRZ sponsorship, contrary to Regulation 22 of the (Revised November 2005) General Rules and Regulations for students. The charge was contained in an internal memorandum (memo), which read as follows: "THE UNIVERSITY OF ZAMBIA OFFICE OF THE DEAN OF STUDENTS Internal Memorandum ========================~=========================== TO FROM DATE . . . . • • Daniel Nyirenda (99208407) C/O Agriculture, TP-16 Dean of Students 27th October 2006 SUBJECT: MISCONDUCT ------· ---------------------------------------------- ----------------------------------------------------- ... J4 It has been brought to my attention that you obtained money by fa'lse pretences and aided students to fraudulently alter their sponsorship status from self to GRZ sponsorship thereby defrauding the University in revenue from tuition fees.· This is a criminal activity which is contrary to Regulation 22 (Revised November 2005) of the General Rules and Regulations for students. Consequently, you are charged with breach of this Regulation. By copy of this memo, the student Board of Discipline is requested to hear your case without delay. H. Chiboola DEAN OF STUDENTS cc: Registrar Dean, School of Agricultural Science Deputy Registrar, Academic Affairs Secretary, Student Board of Discipline." Regulation 22, under which the Appellant was charged, reads as follows: "22. Thieving of any bind, misappropriation of funds, fraud and any criminal activity is prohibited on campus•. Later, the Appellant sat for his end of semester examinations, which were five (5) in total. Subsequently, when · .. JS the Appellant went to the University to check for his examination results, he was informed, by the Dean of the School he was studying under, that she had received a copy of a memo from the Dean of Students, dated the 23rd of February, 2007, and addressed to the Appellant, informing him that he was expelled from the University, following the determination of his disciplinary case by the Students Board of Discipline. The memo read as follows: "THE UNIVERSITY OF ZAMBIA - OFFICE OF THE DEAN OF STUDENTS Internal Memorandum ===================================================-- TO FROM DATE . . . . . • Daniel Nyirenda (99208407) C/0 Agriculture, TP-16 Dean of Students 23rd February, 2007 SUBJECT: EXPULSION ====================================================- With reference to a charge of misconduct and subsequent determination by the Student Board of discipline during its recent sitting on 2()th February 2007, please note that the Board found you guilty of obtaining money by false pretences and aiding · students to fraudulently alter sponsorship status contrary to Regulation 22 (Revised ,_ J6 November 2005} of the Rules for students registered in the University. Consequently, be informed that you are: Expelled from the University of Zambia indefinitely and that you are not permitted to register or utilize academic facilities henceforth. In view of natural justice, you are free to appeal against this sentence to the Vice-Chancellor within fourteen days from the date of this memo. By copy of this memo, the Dean of School of Agricultural Sciences and . the Academic Office are requested to ensure that the subject is prevented from writing the end of semester examinations immediately and also to nullify any results of any course taken hitherto. H. Chiboola DEAN OF STUDENTS cc: Ag Vice Chancellor Registrar Dean, School of Agricultural Science Deputy Registrar, Academic Affairs · Secretary, Students Board of Discipline. Assistant Dean of Students, Residences" J7 Under the penalties section of the Students' Rules and Regulations in question, at page 89 of the record of appeal, the penalty for violating Regulation 22 is stated. as follows: "22. For regulation 22, the student shall be expelled from the University and further action may be taben by the complainant or the police, or as the Student Board of Discipline may decide•. The Appellant appealed against his expulsion to the Vice Chancellor, and later to the Council of the University, but was unsuccessful. The Respondent later released, to the Appellant, his examination results for only three examination papers, which he had written prior to the 23rd of February, 2007. On the evidence before him, the trial Judge found the following facts: that the Appell~t's expulsion from the University of Zambia, by the Respondent, was in accordance with the law; that, from the date of his expulsion, on the 23rd of February 2007, the Appellant ceased to be a bona fide student of the Ui:iiversity of Zambia and, anything done by him in connection with his student status, after the date of expulsion, lacked legitimacy as all the privileges, rights and entitlements accruing to a student of the University· of Zambia came to an end; and that any J8 examinations that the Appellant wrote, after his expulsion, were null and void. Based on the above findings, the learned trial Judge dismissed the Appellant's claim and ordered each party to bear their own costs of the action. The Appellant has advanced five (5) grounds of appeal as follows: 1. The learned trial Judge erred in law and in fact when he found that the Students Disciplinary Committee at the University of Zambia could determine a matter against me "on the basis of information it had" (mere allegations) and without witnesses or even hearing me contrary to the rules of natural justice; 2. The learned trial Judge erred in law in his interpretation of the provision of Sections 37 (2) and 49 of the University Act No. 11 of 1999 and instead put an opinion that the Act did not intend to vest in the Minister powers to mabe (or prescribe) rules and regulations governing the internal discipline of students which are better left to .... the Dean of Students; 3. The learned trial Judge erred in fact when he decided that I had failed to show that any damages were occasioned to me as a .result of the University of Zambia withholding my final. year results and also when he found that the hearing date had been J9 communicated-to me in 2006 during a counseling session when this was not so and the Defendants never even alluded to that fact; 4. The learned trial Judge erred in fact and in law when he substituted his own assumption of dates as the dates he assumed I had written examinations and not the dates on the examination time-table; s. The learned trial Judge erred in law and in fact b!II' overloobing the fact that Senate was waiting to decide whether or not to nullify the results after being availed with legal advice, hence the Senate never made the final decision whether to nullify the results or not as at the time of the hearing of the matter in Court, and the Registrar acted ultra--vires his legal authority. Both the Appellant · and the Respondent filed written heads of argument into Court. Under ground one, the Appellant argued that the trial Judge should not have endorsed the decision of the .. Students Disciplinary Committee, as the same was based on allegations, without any evidence adduced, and the Disciplinary Committee acted contrary to its own terms of reference and procedure. The Appellant also cited the · case of Ridge Vs Baldwin 1 , and argued that an allegation must be investigated and there must be evidence to prove it; that in the present case, there .is no indication, in the minutes of the record of the disciplinary •. JlO proceedings, that the Disciplinary Committee deliberated on the allegations against the Appellant. Under ground two, the Appellant argued that the learned trial Judge erred in his interpretation of the provisions of Sections 37 (2) and 49 of the University Act No. 11 of 1999 under which the power to make or prescribe disciplinary or other rules and regulations, for a Public University, is vested in the Minister and not the Dean of Students; that the regulations, which were used to expel him from the University, were null and void, for lack of legal competence, as they were supposed to have been made by the Minister before being implemented by the Dean of Students; and that their usage against him was therefore, . unlawful. .. Under ground three, the Appellant argued that, by reason of his results being withheld, he· has suffered and continues to suffer damage, as he cannot get a job based on any University qualification; that the finding by the trial Judge that the Appellant. was given notice of hearing ·of his disciplinary case during the counseling session, was not supported by any facts as Jll neither the Appellant nor the Respondent gave such evidence in the Court below. The Appellant argued, under ground four, that there was no evidence to support the findings, by the trial Judge, that there was a minimum of two clear days allowed between the courses he wrote; and the assumption, by the trial Judge, that the Appellant wrote his last three examination papers after his expulsion was wrong. In ground five, the Appellant argued that the nullification of his examination results by the Respondent was unlawful. Citing Sections 22 and 23 of the University Act, the Appellant argued that the results at the University of Zambia may only be nullified by the Senate of the University, which is the University's supreme academic authority, and only on grounds of fraud on the part of the affected candidate; that in the Appellant's case however, no evidence. was presented, in the Court below, to show that a decision to nullify the results was ever made by the Senate; that the University Act does not provide for the cancellation of examination results where a candidate had lawfully written examinations but "expelled" before processing of results. J12 In response, the Respondent argued, under ground one, that the trial Judge was on solid ground when he found that the Respondent's Student Board of Discipline had authority to determine the Appellant's case in his absence, based on the information available to it, under regulation 27 as the Appellant refused or neglected to present himself for the hearing without reasonable excuse. Under ground two, the Respondent supported the interpretation, by the trial Judge, of Sections 37(2) and 49 of the University Act and his finding that the said provisions were not intended to vest powers to make student regulations in the Minister but rather in the Dean of Students. The Appellant also argued that Section 37(2) does not restrict the powers of the Dean of Students as given by ·section 37( 1) of the Act and that Section 49, on the other hand, confers upon the Minister, the power to fill in the gaps, if any, where the powers under Section 37 have not been fully executed, to act only if no authority is named to exercise a particular power. Under ground three, the Respondent argued that, in the Court below, the Appellant failed to discharge the onus, which lay J13 on him, to show that damage had been occasioned to him by the Respondent's refusal to release his final year results. The case of Kenniuir Vs Hatting2 was cited to support the argument that the Supreme Court will be reluctant to disturb findings of fact by the trial Court which had the opportunity to see and hear the witnesses speak. It was also argued that the Appellant decided not to appear for the hearing before the Student Board of Discipline and could not claim not to have known about the disciplinary hearing. Under ground four, the Respondent argued that the onus was upon the Appellant to show that he wrote all his examination papers before his expulsion on the 27th of February 2007. That, according to the Appellant's own evidence, in the Court below, out of the five courses he was permitted to sit for, he wrote examinations only in three courses prior to the 23rd of February, 2007. Under ground five, the Respondent argued that this ground was misconceived as there was evidence that the Senate made a final decision that the Appellant was entitled to the results for the three examination papers he wrote before the 23rd of February· J14 2007, and nullified the results for those he wrote after that date. It was also argued that the Appellant was duly expelled by a legitimate body and, as such, anything done by him after the 23rd of February 2007, purporting to be a student, was null and void as he did not enjoy any such status after the said date. We have considered the grounds of appeal filed in this case, the evidence in the Court below, the arguments by both parties and the authorities cited. In ground one, the Appellant has raised two issues. Firstly, that the finding of the Students Board of Discipline, that the Appellant was guilty of the offence with which he was charged, was not supported by any evidence and was arrived at contrary to the Board's own terms of reference. Secondly, that the Board's decision was made without hearing the Appellant. · Regarding the first issue, it is trite law that "he who alleges must prove". The rationale behind this is that, whenever an allegation is made, the onus is on the maker of the allegation to prove the allegation. This is the position even where the defence of the party, against whom the allegation is made, has completely failed. In this regard, we want to reiterate our decisi+on in Khalid e JlS Mohamed Vs The Attorney-General3 where we held that a plaintiff cannot automatically succeed whenever a defence has failed; he must prove his case. According to the evidence in this case, the Appellant was charged with contravening regulation 22, of the general rules and regulations for students, by the Dean of Students of the University of Zambia. The evidence also shows that the Student Board of Discipline heard and determined the Appellant's case, in his absence, and recommended that he be expelled. Items 9.0 to 9.2 of the excerpt of the minutes of the disciplinary proceedings, dated the 20th of February 2007, at page 50 of the record of appeal, read as follows: . "9.0 Case No. 3 Name: Nyirenda Daniel- Absent. Comp. No: School: Agricultural Sciences Year of Study: · 4 th year 9.1 The student was given one month's notice on 18th January 2007 through the Dean of his school, but he did not respond at the expiry of the notice on 18th February 2007. The notice is herewith . attached. A messenger Mr. Kasokota attempted to J16 serve him with a notice of hearing on l 9 th February 2007 but he refused to either sign it or receive it as seen from the attached unsigned notice. The accused was spoken to by the secretariat urging him to appear before the Board but he ignored the advice. 9.2 THE BOARD'S DETERMINATION The Board noted that the student had no proper reasons for him to fail to appear before the Board and found him guilty of violating regulation 22 and 27 and therefore, recommended expulsion from the university and to bar him from writing his examinations". Regulation 27 referred to in the determination of the Students Board of Discipline, quoted above, reads as follows: •27. Students who fail to attend a meeting of the Student Board of Discipline without proper reason shall commit an offence•. In his Judgment, the learned trial Judge, in the Court below, stated that: • ... After considering the minutes referred to, I form the view that they are but a summary of the proceedings of the meeting rather than a full account of the deliberations thereof. That J17 notwithstanding, I am unable to agree with the Plaintlffts argument because, I believe that. the Board had received information regarding the alleg_ations against him upon which, tabing ~II circumstances into consideration, It was able to mabe the decision that it did... In this case, the Student Board of Discipline considered the Plaintlffts case on · the basis of the information it had and came to the conclusion that the Plaintiff had committed the offence as alleged and In addition, the offence under regulation 27 under penalties, for which they needed no witness•. We do not agree with this observation by the trial Judge. The record of the disciplinary proceedings, which was part of the Respondent's evidence, in the Court below·, is the only evidence on record, and a reflection of what transpired during the determi_nation of the Appellant's case by the Student's Board of discipline. In addition, under the penalties section of the students' rules and regulations in question, whereas the penalty for contravening regulation 22, which we quoted earlier in_ this judgment, is expulsion from the University, the penalty for violating regulation 27 is expressed, at page 89 _ of the record of appeal, in the following terms: • . 27. For regulation 27, the case shall be held In absentia and a appropriate decision may be made by the Student Board of · Discipline and communicated accordingly • J18 In our view, the Students Board of Discipline is empowered, under the above quoted provision, to proceed to determine a disciplinary case, in the absence of the affected student, and make a suitable decision, in the circumstances of the case. We want to indicate here, as we have stated before in several of our decisions, including Zambia Electricity Supply Corporation Limited Vs David Lubasi Muyambango4 , where we held that it is not the . function of the Court to interpose itself as an appellate tribunal within the domestic disciplinary procedures to review what others have done. The duty of the Court is to examine if there was the necessary disciplinary power and if it was exercised .properly. It is our view that, the Respondent, acting through the Dean of Students, having charged the Appellant with an offence under regulation 22, essentially made an allegation against him and had an obligation to present evidence before the Students Board of Discipline to prove the said allegations. Looking at the evidence on record, we find that the Respondent has the .power to expel any student from the University, who is guilty of contravening regulation 22 of the students' rules and regulations in question. We also find that the Students Board of Discipline· is empowered, ' - J19 under the penalties section of the rules, to proceed to determine a disciplinary case, in the absence of a student who has notice of the disciplinary hearing but who, for no good cause, does not attend at the hearing. We have noted from the record of the disciplinary proceedings which we have quoted in this judgment, · that the Appellant refused to accept service of the notice of hearing of his case from Mr. Kasokota, a messenger. We hold the view therefore, that the Respondent gave the Appellant the chance to be heard. The Respondent however, failed to discharge the evidential burden of proving the disciplinary charge which it raised against the Appellant as no evidence was presented to support the charges namely that the Appellant obtained money by false pretences and aided students to fraudulently alter their sponsorship status from self to GRZ sponsorship. From the excerpt of the minutes of the disciplinary proceedings, which we referred to earlier, the findings of the Students' Board of Students that the Appellant was guilty of the offence with which he was charged appears to have been based simply on the Appellant's failure to attend at the disciplinary J20 hearing. This is highly irregular because the power which is conferred on the Students Board of Discipline by its Terms of Reference, to proceed. to determine a disciplinary case in the absence of a student facing a disciplinary charge, does not waive . the onus which is, by law, placed on the Respondent to exercise its disciplinary powers justifiably and for a good cause. Item No. 2.0 of the excerpt of minutes of the disciplinary proceedings of the Students Board of Discipline, at page 47 of the record of appeal, specifies the terms of reference as follows: •2.0 TERMS OF REFERENCE 2.1 To investigate the truthfulness or falsity of the alleged offences 2.2 To afford the accused students an opportunity to be heard 2.3 To call witnesses to testify where necessary 2.4 To mabe recommendations to the dean of students affairs in line with the provisions of the rules and regulations for living on campus• In our view, the above stated terms of reference are intended to serve two purposes. Firstly, to enable the Students Board of Discipline gather facts or evidence to establish whether or not the J21 offences which the affected students ar_e alleged to have committed were actually committed. This should be done by taking evidence and hearing witnesses, with information relevant to each case, as well as each student charged with a disciplinary offence; and Secondly, to recommend, to the Respondent, through the Dean of Students, appropriate disciplinary action to be taken in every disciplinary case, based on the findings of facts of each case. In the case of Ridge Vs Baldwin1 , which was cited by the Appellant, Streatfeild J, observed that an authority exercising power in its quasi-judicial capacity must exercise the power fairly and bona fide and observe the principles of natural justice. We find it unnecessary to recount the rules of natural justice here. Suffice to state that in the present case, the Students Board of Discipline determined the Appellant's case under the provisions of regulation 27 of the students' rules and regulations in question. However, its decision was not supported by any evidence to prove the charge against the Appellant. Therefore, we agree with the Appellant's argument that, in determining the Appellant's case, the Students Board of Discipline · acted in disregard of its own terms of reference and procedure, as captured under terms of reference No. No. 2.1, 2.3 and 2.4, which require the ♦ J22 investigation of the truthfulness of the allegations, the calling of witnesses and the recommendation of appropriate disciplinary action on the facts of each case. In terms of our decision in the Muyambango Case4 and the principle in the Ridge Vs Baldwin case1 therefore, we find that, although the Students Board of Discipline followed the procedure under regulation 27 of the students' rules and regulations in issue, its finding of guilt and the resultant recommendation of expulsion, against the Appellant, was not supported by evidence of the allegations against him. For this reason, we find that the decision by the Respondent to expel the Appellant from the University was unjustified and therefore, unlawful. Ground one therefore succeeds. Under ground two the Appellant challenges the validity of the regulations under which he was expelled from the University by the Respondent on grounds that they are null and void as they were not made by the Minister, as provided under Sections 37 and 49 of the University Act. Section 37 provides as follows: J23 "37. (1) The Deans, Directors, the Librarian and the Dean of Students shall exercise disciplinary control over students in public universities, in schools, institutions, bureaux, departments, the library and similar bodies and halls of residence respectively ••• Provided that in the case of exclusion from study or use of any facility of the university, rustication or expulsion of a student, a student may appeal to the Vice Chancellor. (2) Subject to any disciplinary procedures prescribed in any regulations made under this Act, any appeal against any penalty imposed under subsection (1) shall be lodged, in writing with the Vice-Chancellor within fourteen days of the imposition of the penalty, but the . penalty shall remain effective while the appeal is pending. (3) Where a student is aggrieved with any decision of the Vice- Chancellor the student may appeal to the Council. As for Section 49 of the Act, it reads as follows: "The Minister may, by statutory instrument, prescribe anything which may be prescribed under this Act and in respeet of which no other prescribing authority is specified, and may in libe manner mabe regulations for the better carrying out of the provisions of · this Act. J24 From our reading of the prov1s1ons quoted above, we hold the view that, Section 37(2) gives effect to the powers vested in the Dean of Students, under Section 37(1), to exercise disciplinary control over students in public Universities. Such powers shall be subject to any disciplinary procedures prescribed in any regulations made under the Act. In terms of Section 49, the Minister is empowered to make or prescribe regulations, in respect of anything where no other authority is specifically empowered to prescribe any regulations, which may be required to be made, under the provisions of the Act. Although the powers of the Minister under Section 49 appear to be supplementary in nature and are intended to fill in the gaps to cover situations . where no other authority is specifically mandated to make regulations under the Act, we find that there is no specific provision empowering any other authority to prescribe any regulations; neither is any "other prescribing authority" specified in the Act. · The Dean of Students and other . officers stated in Section 37( 1) have not clearly been conferred with the power to prescribe any regulations. On the other hand, Section 49 clearly shows that the power to make regulations are vested in the Minister .who J25 "may in libe manner mabe regulations for the better carrying out of the provisions of this Act .... " For the foregoing reasons, we do not agree with the trial Judge's conclusion that under the Act the Dean of Students has the power to prescribe any regulations. By the same token we do not agree with the trial Court's suggestion that the rules and procedures governing internal discipline of students are supposed to be made by the Dean of Students because such rules and procedures must be prescribed in the regulations made by the Minister pursuant to Section 49 as read with Section 37(1) of the Act. The role of the Dean of Students is merely to enforce the rules and procedures as prescribed in the regulations. We find merit in ground two. Both grounds three and four are against findings of fact by the learned trial Judge. Under ground three, the Appellant raises two issues. Firstly, he challenges the findings of fact by the trial Judge; that he failed to demonstrate that damage was occasioned to him by reason of the Respondent withholding his results; and Secondly, that he was given notice of hearing of his case during a prior counseling session which he attended. Ground four, on the .. other hand, is against the findings of fact, by the trial Judge, regarding the dates on which the Appellant wrote his last two examination_ papers. Before we address the issues raised under these two grounds, we want to echo what we said, about our reluctance to interfere with findings of fact made by the trial Court, in the case of Wilson Masauso Zulu Vs Avondale Housing Project Ltd5 , .. · where we held that: •Before this Court can reverse findings of fact made by the trial Judge, we would have to be satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial Court acting correctly could reasonably mabe•. Regarding the first issue raised under ground three, it is trite law that a party who makes a claim must prove that he is entitled to it. In this case, the Appellant claimed, among other things, damages for economic loss of use of degree; and damages for loss of career prospects and economic anguish. However, as the trial Judge rightly observed, the Appellant led no evidence, in • J27 the Court below, to support his claims and to prove that he had actually suffered damage as claimed. The second issue, under ground three, centers on the question whether or not the Appellant had notice of hearing, of his disciplinary case, by the Students Board of Discipline. The evidence on r·ecord is that one Kasokota, a messenger, took a notice of hearing· to the Appellant but he refused to accept· ·and sign for it. We are, therefore, satisfied that the Appellant was presumed to have received the notice. We find that ground three has no merit. Coming to ground four, we want to state from the onset that, according to the evidence on record, no specific dates were given by either the Appellant or the Respondent as to which exact dates the Appellant wrote his last two examinations. The trial Judge observed in his Judgment, in this regard, at page 20 of the record of appeal, that: "I note that the letter of expulsion is addressed to the Plaintiff and dated 23rd February 2007. Unfortunately, neither side could state when the plaintiff wrote his last examination". • ... The trial Judge further observed, in his Judgment, at page 21 of the record of appeal, that: "The closest indicator of how the Plaintiff wrote his examinations is the memo from the assistant Dean (UQ) in the School of Agricultural Sciences addressed to the Acting Deputy Registrar Academic Affairs. This memo lists the three courses whose results were subsequently released to the Plaintiff indicating the dates on which the same were written. I have loobed at the intervals . between the dates of the courses and deduce that a minimum of two clear days was allowed between the courses. That would mean that having written a course on the 21st of February 2007, it is unlibely _ that he would have written the last two courses the following day on the 22nd of February 2007, to beat the date of expulsion, 23rd February 2007. I would therefore, conclude that the Plaintiff wrote the last two courses on or after the date of expulsion.• We want to mention here that in this jurisdiction, the Judge plays the role of an unbiased adjudicator who listens to both parties present their case and then comes to a conclusion within the bounds of the law. The Judge does so by listening to the parties involved in order to find the facts of the case, applying the relevant law to the facts and then giving a reasoned Judgment. In the present case, both parties gave no oral evidence as to which · specific dates the Appellant wrote his examinations. The only • .. J29 piece of evidence, which was before the trial Judge, relating to the examination dates, was the memo which the Judge referred to in the portion ~f his Judgment which we have quoted above. The Appellant's evidence, under cross examination in the Court below, at pages 102 and 103 of the record of appeal, is that he did not recall the exact date on. which he wrote his last examination although it was before his expulsion. He also stated that, prior to the 23rd of February, 2007, he had written examinations in three courses. In our view, if the . Appellant wrote examinations in five courses, out of which three were written before the 23rd of February, 2007, we find that the trial Judge came to the right e. conclusion when he found that the Appellant wrote his last two examinations after the 27th of-February, 2007. We have found no perversion or misapprehension of facts on the part of the learned trial Judge; neither is there absence of relevant evidence to support his findings in this regard. We find no merit in ground four. Under ground five, the Appellant challenges the nullification of his examination results, by the Respondent, on grounds that it .. ... ,.. HO was not done by the Senate of the University and not on grounds of fraud on his part, as provided by Sections 22 and 23 of the University Act. Section 22(1) which establishes the Senate provides as follows: "(1) There shall be a Senate for a public university which shall be the supreme academic authority of the university. Section 23 spells out the powers of the Senate. In particular, and of relevance to this appeal, Section 23(3) provides that: "The Senate may deprive any person of any degree, diploma, certificate or other award of the university which has been conferred upon such person if, after due enquiry, the person is shown to have been guilty of fraudulent or dishonourable conduct in obtaining that award. In our view, the issue relating to the nullification of the Appellant's examination results, in the Court below, was whether or not the Appellant was a bona fide student of the University of Zambia, at the time he wrote the examinations whose results . were nullified, and not whether or not there was fraud on his part, in sitting for the said examinations. In his Judgment, at page 19 of the record of appeal, the trial Judge stated that: J31 "So having found that the Plaintiff's expulsion was in accordance with the law, it follows that he ceased to be a bonafide student of the University of Zambia effective the date of his expulsion. ... anything done by the Plaintiff in connection with student status · . after the expulsion lacbed legitimacy as all the privileges, rights ' and entitlements accruing to a student of the University of Zambia came to an end. Subsequently, any examinations that he wrote after his expulsion are null and void.• As the trial Judge rightly observed, a student who has been expelled by the University loses all his rights, entitlements and privileges, which he would ordinarily be entitled to claim, by virtue of his student status. This includes, among other things, the right to sit for and write examinations set by the University for its students. In the case of the Appellant, his expulsion from the University was effected on the 23rd of February, 2007, although the letter which communicated the same only reached the intended recipients, including the Appellant, much later after the Appellant had even written all his examination papers. In addition, according to the undisputed evidence of DW 1 on record, as well as item 12.2 of the minutes of the meeting of the Senate of the 3 rd of July, 2009, at page 69 of the record of appeal, a ~ecision was made, by the Senate Examinations Committee, to • J32 nullify the Appellant's examination results, based on the letter from the Dean of Students. Further, it was OW l's undisputed evidence in chief, that the Appellant was informed, by letter from the Respondent dated the 27th of July, 2009, about the decision of the Senate to uphold the • nullification of his results, and when the Appellant appealed for the release of his results, the Respondent, upon advice of its in house Legal Counsel, released the results for the three · cour;~s which the Appellant wrote prior to the 23rd of February, 2007. We are, therefore, satisfied that, on the evidence on record the Senate did make a decision to nullify the results. However, because of the view we have taken, under ground one, that the Appellant's expulsion was unlawful, we hold consequently, that the decision to nullify his results by the Senate, for the two courses which he wrote after the 23rd of February, 2007, on the basis of his expulsion, was also unlawful. We find ground five has merit. All in all, grounds three and four have failed while grounds one, two and five have succeeded. Therefore, we allow this appeal and the determination of the Court below, that the Appellant's J33 expulsion was 1n accordance with the law and that the examinations he wrote, after the date of his expulsion, are null and void, is set aside: We enter judgment for the Appellan! and order the Respondent to release to the Appellant, with immediate effect, all his examination results. Further, we order the Appellant to confer upon the Appellant the appropriate award, provided his results meet the requisite criteria for the said award. We award costs to the Appellant both in this Court and the Court below. / i I _I . /~ ,-i ... - - L . .. j ·/·f1 ~- ? ,----------- ------------------------ , ~ .,. , ...... .. - M. E. WANKI SUPREME COURT JUDGE .. • • , .... - .. M. LISIMBA AG. SUPREME COURT JUDGE E. M. HAMAUNDU AG. SUPREME COURT JUDGE .. ,.. - ·