Nkole v Council of the University of Zambia and Ors (2023/HPF/206) [2023] ZMHC 6 (8 May 2023)

IN THE HIGH COURT FOR ZAMBIA AT THE FAMILY COURT DIVISION HOLDEN AT LUSAKA (Civil Jurisdiction) -Rl- 2023/HPF/206 IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER OF: SECTIONS 3 (1 ) AND 28 OF THE CHILDREN'S CODE ACT NO. 1 2 OF 2 0 2 2 SECTIONS 4, 6(1) (D) (E) (F), 24, 2 5(1), (2 )(B)(P) OF THE HIGHER EDUCATION ACT NO. 4 OF 2013 SECTIONS 2, 4 (A) (D) (P) OF THE LAW ASSOCIATION OF ZAMBIA CHAPTER 31 OF THE LAWS OF ZAMBIA THE VIOLATION OF THE RIGHT TO EDUCATION OF LAW STUDENTS AT THE UNIVERSITY OF ZAMBIA ON ACCOUNT OF ACUTELY INADEQUATE LEARNING FACILITIES DUE TO OVERENROLMENT AN ORDER FOR THE UNIVERSITY OF ZAMBIA COUNCIL TO PROVIDE THE SCHOOL OF LAW STUDENTS WITH THE REQUISITE AND CONDUCIVE FOR LEARNING FACILITIES LEARNING SUITABLE AN ORDER THAT THE SCHOOL OF LAW REVERTS TO A NON ADMITTING SCHOOL STATUS SO AS TO ENABLE THE SCHOOL TO DETERMINE AND QUALITATIVELY ADMIT STUDENTS TAKING INTO ACCOUNT ITS LIMITATIONS OF RESOURCES BETWEEN S IDNEY MUTALE NKOLE AND COUNCIL OF THE UNIVERSITY OF ZAMBIA HIGHER EDUCATION AUTHORITY TH LAW ASSOCIATION OF ZAMBIA ATTORNEY GENERAL PETITIONER 1 ST RESPONDENT 2 ND RESPONDENT 3RD RESPONDENT 4rn RESPONDENT BEFORE HONOURABLE LADY J USTICE M. CHANDA ON THE BTHDAY OF MAY2023 APPEARANCES For the petitioner: For the 1 s1 respondent: Mr. Bright Chilu fya Ka lu ba of Lewis Nath an Advocates Ms. Towe la Nkhoma in-house Counsel of the University of Zambia (UNZA) . RULING -R2 LEGISLATION REFERRED TO: J · RDER 2 /L/ I Ji' Tl IE EDITORIAL NOTES or TH E WHITE BOOK 2. SHEPHERD HOLMES LTD V SANDHAM (1 970) 3 ALL ER 402 3 . MKUSHI CHRISTIAN FELLOWSHIP TRUST LIMITED (HOLD OUT AS CHENGELO SCHOOL) V HENRY MUSONDA APPEAL NO . 178 OF 2005 4 . NOITINGHAM BUILDING SOCIETY V EURODYNAMICS SYSTEMS (1 993) F. S. R. 468 5 . DORABE CAWASYI WARDEN V COON! SARAB WARDEN AIR 1990 SC 867 6. MEGHU MIAN V KISHUN RAM, AIR 1954 PAT 477 7. HAMMAD AHMED V ABDUL MAJEED & ORS CIVIL APPEAL NOS. 3382- 3383 OF 2019 9 JULY, 2019 This is a ruling on an application for an interim order compelling the 1s t respondent to find suitable learning spaces for the University of Zambia Law Students. The applicant in his affidavit set out that he had commenced proceedings on behalf of the Law students at the University of Zambia by way of a petition seeking redress for the violation of their right to education. He stated that the violation arose from the failure or neglect to find enough learning spaces to accommodate the huge number of students that the 1st Respondent had enrolled. He averred that because of inadequate learning spaces at the 1 st Respondent's institution, every lecture time presented risks of near stampede circumstances as students jostled for seats, a situation that threatened the students' safety, health and compromised the quality of legal training. The deponent averred that some students who did not find seats, sat on the floor or stood throughout the duration of lectures while others t d and followed' lectures from outside due to the lack of hep ess y s oo 1 1 -R3· spac · H av rred fur ther th a t lhere was a huge number of Sludents who failed lo k eep up with the h a rsh learning en vironm ent and t h e indignity associated with legal training at the University of Zambia and decided to stay away from attending classes because they could not b ear with the inhuman e and degrading environment that the 1 s L respondent had subjected them to. It was d eposed that the chronicled plight of the law students at the University of Zambia required urgent measures to arrest the state of continuing deprivation and violation of the right to education of the law students. He stated that if the interim order was not granted to halt and arrest the situation at · the university, the concerned students would suffer irreparable damages that could not be aton ed for by damages from the court as they will be ill-equipped to sit for their examinations. He also stated that the University was scheduled to commence mid-year examinations in the months of June and July while end of year examinations were in November, 2023. He explained that failing a course or courses in the School of Law led to grave consequences of b ein g sent on part-time and losing government sponsorship for t hose on loan. sch emes. He said tha t the huge potential prejudice and damage could be forestalled by the Court granting the said Order to reverse and halt th e injustices that the law students were subjected to. He stated that the p lummeting of the standards of legal training at the University, which was the high est institution of learning in the country, was a m a tter of public concern requiring u rgent solutions which included the court granting the order sought. He said that the -R4- r spoDtlent would not suffer any preJudice if the Court granted the rder. The 1st res d , pon ent s affidavit \Vas sworn by the l s1 respondent's Registrar, Theresa Chipulu Chalwe. The deponent averred Lhat in 2 020/2021 academic year, unprecedented enrollment of about 8,034 registered first year students the University of Zambia saw an with 751 students being admitted in the School of Law. That the increase in the student numbers was a result of the introduction of the Remodelling Income Generation (RIG) Initiative whose drive to grow students' numbers in an effort for the University to be self-sustaining. She averred that the introduction of RIG saw a change m the admissions system to on-spot admissions which resulted m the increase of students' admissions. She averred further that the unprecedented numbers were attributable to the growing demand for education m Zambia and the pronouncement by the government of the Republic of Zambia to not leave anyone behind which was evident in the increase of government bursaries given to the universities. That the school of law had 265 first year students, 4 13 second ye'ai students, 202 third year students and 103 fourth year students. She exhibited the registration statistics as exhibit "TCCl ". Miss Chalwe asserted that the increase m the number of registered students meant that the university needed to upscale its teaching facilities . However, there was a breakdown in communication between the time the student classes were supposed to have commenced and -RS- ~ available teaching facilities . That this Jed to a situation were school f law students would have to have class in a fully packed lecture theate r. She stated that the 1st respondent however , qu ick.ly identified ways of correcting this anomaly and commissioned two state of the art learning lecture theaters to manage the new numbers which could accommodate approximately 380 students and student from the school of law were] using these facilities. She produced the school of law timetable indicating the venue for lectures and pictures of the n ewly commissioned lecture theaters as exhibit "TCC2". She further stated that the 1st respondent on or about 31 st March, 2023 commissioned another lecture th eatre at the Graduate School of Business with a combined sitting capacity of 550 students whos e use would be extended to the school of law. She produced a picture of the newly commissioned lecture theater as exhibit "TCC3". That in a ddition to this, the 1s t respondent with the support of Africa Development Bank and the Ministry of Education, is building an ultra modern teaching and learriing complex with a combined sitting capacity of 800 which was at 95% completion. She referred to the picture of the building marked as exhibit "TCC4". That the 1st respondent through the support of the World Bank was also constructing another facility which would be able to accommodate about 180 students and the school of law had been given land where other learning facilities and infrastructure would be built. -R6- ~ add ed that apart f . ident had a blended . ✓Ia Online platforms called rom the phys1cal Jearning theatres, the system of learning where lectures were could .~modate 1000 students at a given time. She said that module module-meet which ;m1tted the recording of lectures which are later shared with the .:;tudents and all learning materials are posted on this platform and could easily be accessed by the students. That further measures by the 1st respondent to manage and control the learning environment in the school of law led to the drastic reduction in the on-spot admissions. from the admitted 75 1 students in 2020 /2021 academic year to ·only 150 students in the 2 022/2023 which numbers could be supported by the teaching facilities at the University. It was the deponent's averment that the 1st respondent had changed its admissions system from on-spot admission which was first come, first serve basis so long as the minimum entry requirements were met to admissions on m erit basis, and the total number of adm issions being informed by the recommended numbers of students by the school. That the 1st respondent had demonstrated that it cared to give the best education for its students by all the measures that had been highlighted. She asserted that the 1st respondent had also demonstrated that it was in control of managing and ensuring that student learning centers were suitable and adequate. That the application was therefore misplaced as -R6- Miss C h alwe added that a part from the physical learning theatres, the 1 sL r espondent had a b lended system of learning where lec tures were h eld via online platforms called module-meet which could accommodate 1000 students a t a given time. Sh e said that module permitted the recording of lectures which are la ter sh ared with the stu dents and all learning materials are posted on this platform and could easily b e accessed by the students. That further measures by the 1 sl respondent to manage and control the learning environment in the school of law led to th e drastic reduction in the on-spot admissions . from the admitted 75 1 students in 2020/2021 academic year to ·only 150 students in th e 2022/2023 which numbers could be supported by the teaching facilities at the University. It was the deponent's averment that the i s l respondent had changed its admissions system from on-spot admission which was first come, first serve basis so long as th e minimum entry requirements were met to admissions on m erit basis, and the total number of admission s being informed by the recommended numbers of students by the school. That the 1 sl respondent h ad demon strated that it cared to give the best education for its students by all the measures that had been highlighted. She asserted that the 1st respondent h ad also demonstr ated that it was in control of managing and ensuring that student learning centers were suitable and adequate. That the applicatjon was therefore misplaced as ·R7- 1 st \ be soughl lo achi ve. r spond nt h ad already implemen ted tha t which il purportedly That she had b een advised by h er a dvocates th a t the applicant had not disclosed full and material facts in this matter to warrant th granting of the application and that h e, as a con cerned p erson , sh ould h ave in fact engaged the 1s t respondent before m aking this a pplica tion lo appreciate all measures that h a d b een put in place . In winding up, she averred that this was an injunction application , a nd that there were established principles that guided the cour t in exercising its discretion to grant or deny interim injunctions and Lha l the applicant's reasons did not meet the established principles for the application to be granted. The applicant filed an affidavit in reply to the affidavit in opposition on 27th April, 2022 in which he basically averred that there were currently a lot of children aged between 1 7 and 18 years old enrolled at the University to whom the Children's Code Act applied by virtue of the definition of the word "child" in the Constitu tion of Zambia. He listed the children who were among those referred to and their computer numbers as follo ws: Deborah Manda - 2021405133 ; Macho Golfa - 2022068777; Luyando Simenti - 2022034601; Esther Nalumino - 20222007441 ; and Palo Lungu - 20222434315. He asserted that h e had disclosed fu ll facts and reasons both in the affidavit in support and the affidavit in reply to warrant the grant of the instant application. He added that the application was not vexatious as ' RS- 11 s01.,1gh l lo en h a n ce the p rotect ion a nd enforceme nt ol the cll ilclrc n 's rights provided by th e lav. When th e m a tt er came up for h earing, c.ouns<:l for the applicant a nd for the l bt res pondent was before cou1 l. Th<'y indicH tC'cl tha t they would rely on th e affidavits filed as well as th e skeleton ar6>Umcn ts ilnd made some oral submission s before cou rt. I will not reproduce the skekton argum ent s or the ora l submissions but I wiU make reference to them wh ere n eces sary. It is cons idered my opinion that with the applicant h aving identified at least five s tudents on behalf of whom he is making this application, the issue of litigating for u niden'tified children as r aised in the skeleton arguments and submis sions by counsel for the 1s t respondent has been put to rest. In so doing, the lingering doubt of wheth er th is court h as juris diction to entertain this a pplication has b een laid to rest and n eed no further determination. Having said tha t , I must m ention that I agree with counsel for th e 1st responden t's submission U1al wha t the applicant is in fact seeking from this court amounts lo a manda tory inju nction as defined at page 759 of th e titled the Zambian Civil Procedure Commentary and Cases . I h owever need to point out tha t despite it being an injunction, the principl es tha t govern the gra nt of a m anda tory injunction differ from th ose for determining an injunction of a proh ibitory n a ture. Under Order 29/ L/ 1 of the Editorial Notes of the White Book1 it is provided th at: -R9- The Court has jurisdiction upon an interlocutory application to grant a mandatory injunction directing that a positive act should be done to repair some omission or restore the prior position by undoing some wrongful act but it is a ve·r exce tional form of relief. [Underlined for emphasis1 Further, the court in the case of Shepherd Holmes Ltd v Sandham2 stated that: ... the applicant's case has to be 'unusually strong and clear' before a mandatory injunctio n will be granted ... [Underlined for emphasis] ln the case of Mkushi Christian Fellowship Trust Limited (Hold Out as Chengelo School) v Henry Musonda3 , the Supreme Court opined that an interlocutory mandatory injunction should not be granted if it has the effect of determining the substantive issue at interlocutory stage . The principles to consider fo~ the grant of a mandatory injunction where accu rately explained by. Chadwick J , in the case of Nottingham Building Society v Eurodynamics Systems4 as follows: The overriding consideration was first which course is likely to involve the least risk of injustice if it turns out to be "wrong" in the sense o f granting an interlocutory injunction to a party who fails to establish his right at trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial ... Secondly, the Court must keep in mind that an order which requires a party to take some positive step at an interlocutory stage may well carry a greater risk of injustice if it turns out to have been wrongly -RlO· made than an order which merely prohibits action, thereby preserving the status quo ... Thirdly, it is legitimate where a mandatory injunction is sought to consider whether the Court does feel a high degree of assurance that the Plaintiff will establish his right, there may be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory stage ... Furthermore, in the case of Dorabe Cawasyi Warden v Cooni Sarah Warden5 the Supreme Court of India held that for a grant of interim m andatory injunction the following test mus t b e complied with: (a) The plaintiff has to demonstrate a strong case for tria l is, it s hould be of a standard high er than that of a primafacie case; (b) The plaintiff has to lay-bare that the gra nt of ma nda tory injunction is necessary to prevent irreparable loss or serious injury, which cannot be compensated in terms of money; and, (c) The balance of convenience is in favour of the plaintiff as against the defendant. Ma ndatory injunctions are sometimes ava iled of as reliefs in the nature of 'quia timet' that is , in a proper case, ma nda tory injunction may be granted when there is a threat of infraction of the plaintifrs right before the infraction has actually occurred. (case Law: Meghu Mian v Kishun Ram, Air6). The Honourable Apex Court while dealing with the issue whether an interim mandatory injunction can b e granted in a suit, h eld: m Hammad Ahmed v Abdul Majeed & Ors7 . that "the balance of the case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of Course, su ch would be rare and exceptional cases. The Court would -Rll ,ant su ch an inlcrim r lief only if satisfied tha t withholding of it would ;>rick the con science of t.he Court and do violence 1 o lh sens of justice, resulting in injustice being perpetua ted thro ughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously, such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hards hip. The conduct of the parties shall also h ave to be seen and the Court may put the parties on such terms as may be prudent". In the present case the question which arises is would the withholding of the grant of such an interim relief result in injustice being sustained throughout the hearing. Upon hearing both parties and examining the evidence presented it is common ground that in the 2020 / 2021 academic year the University of Zambia in a bid to mobilise resources for operations over enrolled and admitted 75 1 students in the school of law. It is plain from the exhibits adduced by the 1s t respondent that as at 16th March, 2023 there are only two lecture theaters that can accommodate about 380 students available for u se by the law school. In as much as the measures put in place by the , 1st respondent to manage and control the learning environment in the school of law are commendable, they are still inadequate. This is so because the available lecture theaters with the sitting capacity of 380 students cannot sufficiently accommodate the total number of 413 registered second year students as shown in exhibit "TCCl" ·R12· In lighl of Lh s findings 1 am of th consid ·r d vit w thnt if the mt I m1 ord r is nol granl d lo remedy the, situation , the concerned st11duits are lik ly to suff r irr parable damage t hut could not b · atoned for by damages as they will be ill quipped to sit for th ir exumination. I a m also satisfied that refusing . of the interim relief would p11ck the conscience of the Court in that the best interest of the children with regard to access to education will not be adequately safeguarded . In my opinion the injury complained of is pressing as well as immediate and could result in an injustice being perpetuated throughout the hearing. Thus, it is ordered that the application for an interlocutory relief to compel the 1s t respondent to secure suitable learning spaces , for the affected law students at the University of Zambia, which learning spaces shall be inspected, approved and declared fit for learning by the 2nd , 3rd and 4th respondents is hereby granted. I order accordingly. Dated at Lusaka this 8th day of May, 2023. Mwamba Chanda Judge L