Tsui v NUL (CIV/APN 219 of 83) [1983] LSCA 92 (30 September 1983)

IN THE HIGH COURT OF LESOTHO In the Application of : CIV/APN/219/83 MOTSELISI TSIU Applicant vs N. U. L. Respondent REASONS FOR JUDGMENT Filed by the Hon. Acting Judge Mr. Justice J. L. Kheola on the 30th day of September. 1983. The applicant is applying to this Court for an order in the following terms :- 1. Declaring that Motselisi Tsiu, the applicant herein has satisfied all the requirements for the degree of Bachelor of Laws of the National University of Lesotho. 2. Directing the National University of Lesotho, the respondent herein, to confer upon the applicant, forthwith the degree of Bachelor of Laws. 3. Directing the respondent to pay costs of this application. 4. Granting the applicant such further or alternative relief as to this Court may seem just. 5. Dispensing with the periods of Notice required by the Rules of Court on the grounds of urgency /of this - 2- of this application. In her affidavit the applicant says that during May, 1983 she sat for the examinations for the final year Bachelor of Laws degree of the respondent. On or about the 8th May, 1983 the respondent communicated to her in writing that she had obtained a "D" symbol in each of the six courses one had set for in the examination. The communication was duly signed by Mr, Maope who is a tutor in the Law Faculty, She goes on to say that symbol "D" in terms of Regulation 16.16 of respondent's Regulations published in the calendar for 1982-83, signifies that a candidate has obtained a pass in that subject. The respondent, through its Registrar, subsequently informed hey verbally that notwithstanding the contents of the communication in writing (Annexure A to the founding affidavit), she had, in fact not satisfied the requirements of the LL. B programme. She says that in the meantime, basing herself on the respondent's official notification of her examination results, she had successfully applied for the post of Crown Counsel in the Law Office and she is presently ocoupying that post. She says that her employers have given her notice that they are about to terminate her appointment because of the respondent's refusal to confer LL. B degree upon her. The respondent filed four opposing affidavits made by Mr. J. M. Putsoane (Registrar of the Respondent), Mr. Khotso Liphoto (Administrative Assistant), Professor Umesh Kumar (Dean of the Faculty of Law) and Mr. Kelebone Maope (Deputy Dean of the Faculty of Law). In his affidavit Mr. Putsoane says that in terms of section 22 of /the National - 3- the National University Act No. 10 of 1976 it is the Senate that approves the results of the examinations not the Faculty of Law whose power is to consider and report to the Senate about the applicant's results. He says that the results which were communicated to the applicant were not her final results and were prematurely communicated to the applicant by the Deputy Dean of the Law Faculty. He admits that the applicant is quite right that he querried her claim to an LL. B degree because Senate had not approved her results because the Law Faculty had not recommended what degree she should be awarded if she had satisfied the academic requirements. He goes on to say that he cannot agree that the applicant's failure to graduate on the 1st October, 1983 would prejudice her because her dissertation has already been sent to the external examiner. Students who are informed of their results late usually get a certificate from him to the effect that they are entitled to a degree. All emplcyers and Universities have up to now accepted this as sufficient. Mr, Khotso Liphoto has given an extract from the Senate minutes which reads as follows: "Senate minute 83/70 concerning report from the Faculty of Law paper S 83/60 which I recorded reads as follows and I quote:- "The following students submitted their dissertations (L 607) late. The dissertations were sent to the external examiner in Harare Zimbabwe and have not come back. If the results do not come within a reasonable time the students will not graduate. Those students are Seholoholo, Maqutu and Tsiu." The decision of Senate was that those students will not graduate unless the results are received from the external examiners." /This - 4- This meeting was on the 21st September, 1983. In his affidavit Professor Kumar says that the problems of the applicant were brought about by her failure to comply with Regulation 16.131 (c) which requires that the final draft of dissertation be submitted in typed form by the 31st March in the year in which the student seeks to graduate. The applicant submitted her dissertion dated May, 1983 which was received in the Faculty of Law in June, 1983, after all the external examiners had left. The internal examiners gave her"D". He says that at this stage the Faculty of Law cannot recommend to Senate that she be awarded a degree because only when they have the final result can they recommend her for the appropriate division of LL. B degree in terms of the Regulations. Mr. Maope states that as soon as he saw the internal mark he altered the records and put the internal mark on Annexure "A" and sent the copy to the Registrar (Academic) for filing of record. He says that the results were to go to the Senate when complete. Unfortunately some one by mistake let applicant have a copy prematurely. Annexure "A" is incomplete in that it does not show the result nor does it disclose Senate's decision. In her replying affidavit Applicant admits that she did not submit her dissertation in time, but she puts the blame on the Faculty of Law because there were problems in the Faculty with the typing of the Dissertations. She submitted her dissertation on the 23rd May, 1983 and the external examiner was due to leave Roma on the 26th May, 1983. I must point out that there is nothing in the /Regulation - 5- Regulation 16.14 which suggests that the typing of the dissertations shall be done by the Faculty of Law, It reads as follows : "(c) The final drafts of dissertations shall be submitted in typed form by the 31st day of March in the year in which the student seeks to graduate," So if the applicant failed to submit her dissertation timeously she cannot be heard to say that the delay was due to the problems in the Faculty of Law, unless she can show that it was the duty of the Faculty of Law to type the dissertations. She has not done so. And if it was the duty of the Faculty of Law to do so why only three student are blamed for having failed to submit their dissertations timeously. I do not see how the problems in the Faculty affected only the applicant in a class of about eighteen students. In my view the applicant failed to submit her dissertation timeously and that was her own fault and she cannot now try to shift the blame to the Faculty of Law. She must bear all the consequences of her failure to comply with the Regulations of the respondent. The National University of Lesotho was constituted by National University Act No. 10 of 1976. Section 13 (1) provides : "The Council shall be the supreme governing body of the University." Section 22 reads : "The Senate shall be the principal academic authority of the University and shall, subject to the supreme /control - 6- control of the Council and to the Statutes, regulate and superintend the education of, examination of, granting of degrees and diplomas to, and the discipline and welfare of students in the University. Statute 29 (2) (a) and (e) provide as follows : "(2) Each Faculty shall have the following powers and duties : (a) To consider and report to the Senate upon all matters relating to the studies within its scope, including the prescription of books, the definition of courses, and the examination of students. (b) (c) (d) (e) To recommend to the Senate the award of degrees, diplomas, certificates, and other named awards and distinction of the Faculty." I have quoted at full length the above provisions of the Act and the Statute because they clearly set out the most important organs of the respondent. They also set out the procedure that has to be followed before a degree is conferred upon a student. The Faculty of Law conducts the examinations and marks the papers and awards grades. This job is done by the internal examiners of the University. The papers are then sent to the external examiner who reviews the grades given by the internal examiner and then he makes his recommendations to the Faculty of Law. The marks given by the external examiner are final and the Faculty shall then make a recommendation to the Senate in terms of Statute 29 (2) (a) (e). The degree is granted by the Senate in terms of /section — 7— section 22 of the National University Act of 1976. In this application the applicant does not claim that the results which were communicated to her by Annexure "A" are the grades that have been given to her by the external examiner after reviewing the grades awarded to her by the internal examiner. She does not claim that the Faculty did make a recommendation to the Senate that she deserves to be granted a degree. She has deliberately avoided to mention that the grades appearing in Annexure "A" particularly those regarding L607 have been recommended by the Faculty of Law to the Senate so that a degree can be conferred upon her. Instead she is basing her claim on the principle known as Estoppel. Estoppel has been described as "a weapon of defence and not of offence." (See Randor's Trustee v. Beatley and Co., 1935 T. P. D, 358, at page 364). I do not think that in a case of this nature estoppel can found a cause of action because conferment of degrees upon students is based on certain academic standards which have to be attained by the students before they can claim this honour. It is not something that one can obtain by mere technicalities because that would seriously lower the standards. The respondent has convinced me that the grade in L607 appearing in Annexure "A" has not been reviewed by the external examiner due to the fact that the applicant submitted her dissertation too late. It had to be sent to Harare where the external examiner lives. At the moment it has not come back. I am convinced that Annexure "A" was sent to the applicant by mistake and that it is not the final grade that the applicant has obtained. The onus is on the applicant to prove on a balance of probabilities that she has obtained a "D" symbol in L607, that the symbol was awarded to her by the external examiner, /that the - 8- that the Faculty of Law has made the necessary recommendation to the Senate and that the Senate has approved that a degree be conferred upon her. She cannot rely on an obvious mistake and then ask this Court to direct the respondent to confer upon her forthwith the degree of Bachelor of Laws. The Court has got not such power at all. It can direct the respondent in a case where there is proof that the applicant has satisfied all the requirements I have mentioned above and where the University is withholding the release of the results or conferment of the degree for other reasons which the Court may find to be invalid or unreasonable. The conduct of examinations is a matter exclusively within the jurisdiction of the respondent through its Faculty of Law and the Senate; if a student is aggrieved by the decision of an internal examiner the right procedure is to appeal to the Faculty Board, from there he can appeal to the Senate and finally to the Council which is the supreme governing body of the respondent. The applicant has not followed these channels and therefore she cannot be said to have exhausted all the local or internal remedies which were readily available to her. In her affidavit applicant says that she is making this application as a matter of urgency in view of the fact that respondent's graduation ceremony will be held on Saturday the 1st October, 1983. I have already said that applicant should blame herself for having failed to submit her dissertation timeously. This Court cannot make the declaratory order sought by her because she is basing her claim on an obvious mistake against which she asks that the respondent be estopped. The Court cannot do that even if there was proof of gross negligence on the part of the respondent in communicating internal results to the applicant. The reason is simple: conferment of a degree /upon - 9- upon a student can only be done where a student has fulfilled the requirement of that degree. It can never be based on estoppel against an obvious mistake made by the respondent. The respondent says that because of respondent's refusal to confer upon her the degree of LL. B she has been given notice by her employers that they are going to terminate her appointment thus causing her irreparable harm and prejudice. If she can prove negligence on the part of the respondent I think she will be entitled to damages she has suffered as a result of her expulsion. There is no doubt that even in a claim of damages she will be faced with formidable evidence that on the face of it Annexure "A" is not a complete document. The respondent's witnesses say it does not show "Results" and what degree (division) has to be conferred upon the applicant. For the purposes of this case I do not think it is necessary for me to make a finding on that point. I must emphasize that the Courts have no power to interfere in the way a university conducts its examinations and the conferment of degrees. (See 'Maseabata Ramafole v National University of Lesotho 1980(2) L. L. R. 412; Thorne v University of London (1966) ALL E. R. 338). I come to the conclusion that this application cannot be granted and it is accordingly dismissed with costs. A C T I NG J U D G E. 3 0 th September, 1983. For Applicant For Respondent : Mr. Maqutu : Mr, Sello