State( On Application of Banda II) v Deputy Dean of Law of University of Malawi (Judicial Review Cause 6 of 2022) [2023] MWHCCiv 39 (10 March 2023)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION JUDICIAL REVIEW CAUSE NUMBER 6 OF 2022 BEFORE HONOURABLE JUSTICE KONDOWE BETWEEN THE STATE (ON APPLICATION OF HOPE CHAWALA BANDA ID .... CLAIMANT AND THE DEPUTY DEAN OF LAW, UNIVERSITY OF MALAWI sesieasaeveenss DEFENDANT CORAM: HONOURABLE JUSTICE MAUREEN KONDOWE Manda, Counsel for the Claimant Mablekisi, Counsel for the Defendant Miss I. Mabaso, Senior Court Clerk RULING L. BACKGROUND TO THIS RULING 1.1 By a Without-Notice Application for Permission to Apply for Judicial Review dated 20" June, 2022 the Applicant (amended to Claimant throughout this ruling) commenced this application against the Respondent (amended to Defendant 1 throughout this ruling). The application was allegedly brought against an alleged decision that the Defendant allegedly made contained in an alleged communication dated 15 June, 2022 that allegedly informed the Claimant that he was allegedly exempted from the List of Shortlisted Candidates to Sit for the 2022 Bachelor of Laws entrance examination. This application was brought pursuant to Order 19 RR. 20 and 23 Courts (High Court) Civil Procedure Rules, 2017 (quoted verbatim). This application was supported by a Sworn Statement that Verified the Facts the Claimant relied upon dated 20" June, 2022 which he swore. This court directed that the application would be heard with notice to the Defendant. The Defendant opposed this application. 2. JUDICIAL REVIEW APPLICATION FORM ALLEGATIONS The Judicial Review Application Form (Under Ord. 19 RR. 20(3) Courts (High Court) (Civil Procedure) Rules, 2017 (again quoted verbatim) showed that the Claimant brought this application against the decision that the Defendant allegedly made on the following alleged grounds: 2.1 The University of Malawi is an academic institution of higher learning that the University of Malawi Act No. 18 of 2019 (“the UNIMA Act”) [Cap. 30:02 of the Laws of Malawi] allegedly establishes; 2.2 Section 5 of the UNIMA Act allegedly obliges the Council of the University of Malawi to among others provide high quality university education in an accountable manner; 2.3. The alleged issue in this dispute is whether or not the Defendant correctly appreciated and discharged its duties under section 11(2)(g) of the UNIMA Act by exempting the Claimant from the List of Shortlisted Candidates Eligible to Sit for the 2022 Bachelor of Laws entrance examination; 2.4 The Claimant alleged that his position is that in the circumstances of this dispute the Defendant completely and remarkably failed to appreciate and/or discharge its duty; 2.5 It is on the alleged basis of the alleged failure of the Defendant to appreciate and/or discharge its duty that its decision is null and void under the law. It was allegedly made unconstitutionally, unreasonably and without justification; 2.6 The Claimant alleged that he is a Malawian citizen from Traditional Authority Malenga in Ntchisi District. He allegedly graduated from African Bible College. He allegedly applied for the Defendant’s 2022 Bachelor of Laws 2 2% 2.8 (LLB Hons) 2022 Intake. The Defendant allegedly shortlisted him and released its alleged List of Shortlisted Candidates on 1° June, 2022; Through a communication that the Defendant allegedly sent him on or about the 15" June, 2022 the Defendant allegedly notified the Claimant that he allegedly did not fulfil all the necessary requirements that permitted a candidate to be shortlisted to sit for the entrance examination. The alleged ground of this alleged non-fulfilment of all the necessary requirements was allegedly that the Claimant did not possess a degree with a credit; and The Claimant alleged that he allegedly possesses a degree with a distinction that the African Bible College allegedly awarded him. BACKGROUND TO THIS APPLICATION ad Siz 3,3 3.4 The Claimant alleged that the Defendant allegedly properly shortlisted him in its released Names of Shortlisted Candidates to Sit for the Bachelor of Laws entrance examination, The Claimant allegedly inferred from this alleged shortlisting that the Defendant had done all the necessary screening and vetting processes for these names including his to be allegedly released; The Claimant was allegedly shocked to note that the Defendant allegedly sent out another communication through which some unnamed people who were allegedly not shortlisted got added to the list. The Defendant allegedly also removed some unnamed people from the list. The Defendant allegedly stated that this was done due to irregularities in the screening process that allegedly got conducted; The Defendant allegedly informed the Claimant through an email dated 15" June, 2022 that his removal from the list was due to that his degree was allegedly graded as a pass degree. It allegedly fell below the required qualification of allegedly at least a degree with a credit. The Claimant further alleged that he is an alleged holder of a Bachelor of Arts Degree in Mass Communication with a distinction; and The Claimant finally alleged that having allegedly submitted all the relevant documentation to fulfil the necessary requirements for an application to make the shortlist he had an alleged legitimate expectation that his name would appear on the shortlist and that he would be eligible to sit for the entrance examination. The reasons the Defendant allegedly gave the Claimant for its decision as recorded in the alleged communication to him dated 15" June, 3 2022 were allegedly false. The Claimant did not state any particulars of this alleged falsehood. The Defendant allegedly acted unreasonably. No reasonable person allegedly in their right senses could make such a decision after allegedly having carefully looked at the documents the Claimant submitted to the Defendant at its request. SOUGHT RELIEFS FOR THE APPLICATION FOR PERMISSION FOR JUDICIAL REVIEW 4.1 Through his Application for Permission to apply for Judicial Review dated 28" November, 2022 the Claimant sought the following reliefs against the Defendant: (a) A declaration that the decision of the Defendant contained in the communication sent by the Deputy Dean of Law dated 15" June, 2022 which allegedly exempted him from the List of Shortlisted Candidates Eligible to Sit for the 2022 Bachelor of Laws entrance examination is unconstitutional, unlawful, unreasonable and unjustifiable; (b) An order akin to certiorari quashing the decision of the Defendant; (c) If permission for judicial review is granted, an order for the expedited hearing of the motion for judicial review; (d) If permission to apply for judicial review is granted an order of injunction that the grant should operate as a stay of the decision of the Defendant until the final determination of this matter; (e) An order for costs; and (f) All necessary and consequential directions should be given and any further or other relief as this court deems just and appropriate in the circumstances of this case. APPLICATION OPPOSING SWORN STATEMENT ALLEGATIONS Through an Opposing Sworn Statement to the Application for Permission to apply for Judicial Review dated 22™ November, 2022 which Dr Enock Chilemba swore the Defendant alleged the following matters against the Claimant: 5.1 On 15'" November, 2022 the Defendant allegedly got served with the Claimant’s Application for Permission to apply for Judicial Review. The Claimant allegedly served the application on the Chairperson of the Law Intake 2022 Committee; 5.2 The Claimant allegedly applied as an external candidate to the University of Malawi for the LLB (Hons) 2022 Intake. He was allegedly requested to provide supporting documents for his alleged application which allegedly comprised the following: (a) Proof of Payment of Application Fees: (b) Copies of Certificates, Diplomas and/or Degrees; (c) Official Complete Transcript of Results; and (d) Letters from employers showing work experience in cases in which an applicant relied on years of work experience. The Claimant was allegedly an external candidate. As such he was allegedly in addition to the preceding alleged requirements allegedly also required to have a degree with a minimum credit pass or an overall GPA of 3.0: 5.3 The Law Intake 2022 Committee allegedly scheduled to meet on 26" May, 2022 to consider applications it received from both internal and external candidates for the alleged purpose of allegedly shortlisting them. During this alleged meeting the Law Intake 2022 Committee allegedly observed that a number of the alleged applicants had allegedly submitted their applications without the required supporting documents. Owing to this alleged observation the Law Intake 2022 Committee allegedly resolved to proceed to provisionally shortlist candidates for the LLB (Hons) and Diploma in Law programmes. Some candidates who allegedly applied without having submitted the required supporting documents were allegedly provisionally shortlisted. Others who were allegedly also in this same category of applicants were allegedly provisionally excluded from the shortlist pending their alleged submission and verification of completely updated documentation. The Defendant did not state the particulars of the criteria that was used to further classify these candidates in this way. The Defendant did also not state any particulars of the final decision that got made over these two classes of candidates and its legal or policy bases as regards their eligibility to sit for the entrance examination; 5.4 The Law Intake 2022 Committee allegedly informed all concerned alleged applicants about the need for them to allegedly provide some alleged outstanding documentation to this Committee after its 26" May, 2022 meeting. The Committee allegedly informed these concerned applicants that the deadline for them to submit the alleged outstanding documentation was allegedly 30 May, 2022. The Law Intake 2022 Committee allegedly observed that some applicants did not submit the requested outstanding documentation to it past its alleged set deadline of 30 May, 2022. The Committee allegedly then resolved to shortlist applicants based on the alleged documentation that was allegedly available at the time. It proceeded to allegedly publish the names of the candidates that it shortlisted on 1‘ June, 2022; 5.5 The Law Intake 2022 Committee allegedly received a list of queries and complaints following its alleged publication of the alleged list of the alleged shortlisted candidates. The alleged ground of these alleged queries and complaints was allegedly that those who allegedly queried the Committee and allegedly complained to it allegedly felt that they had allegedly been excluded from the alleged published List of Shortlisted Candidates when in their alleged view they allegedly satisfied the alleged entry criteria, Owing to that the alleged queries and complaints were many the Committee allegedly issued a notice allegedly dated 2™ June, 2022 to all alleged applicants. This notice allegedly spelt out an alleged complaint-handling procedure through which the alleged querying and complaining applicants were to allegedly submit their alleged complaints to the Committee. The alleged deadline for the submission of any alleged complaints was allegedly 6" June, 2022: 5.6 The Law Intake 2022 Committee allegedly met again on 7 June, 2022 to allegedly consider the alleged complaints and queries that it allegedly received from some applicants. One alleged query which the Committee considered was allegedly from an alleged shortlisted candidate who sought clarification on whether or not their name was correctly included on the alleged List of Shortlisted Candidates. They allegedly admitted to the Committee that they did not meet its requirements. Allegedly due to the queries outlined in sub paragraph 5.5 above the Committee allegedly decided to allegedly verify the alleged names of the shortlisted candidates that it allegedly published on 1* June, 2022. Through this alleged verification exercise the Committee allegedly discovered that 16 internal and 7 external candidates who had allegedly been shortlisted did not allegedly either meet its eligibility criteria or their applications were allegedly incomplete. This alleged incompleteness allegedly arose from that some alleged required documents were allegedly not submitted to it; 5.7 The Claimant was allegedly one of the 7 alleged external candidates. His alleged application allegedly had no transcript. The degree (unclear whether it was just a copy or a certified copy) that he allegedly submitted to the Committee allegedly never indicated its grading as regards whether it had been allegedly awarded to him with a pass, credit or distinction. The Committee allegedly had no way of establishing its grading in the alleged absence of the alleged transcript to show that it had allegedly been obtained with the alleged average mark of 65%. The Committee alleges that this is the alleged basis on which it allegedly removed the Claimant’s name from the alleged published List of Shortlisted Candidates; 6 5.8 The Committee allegedly issued a notice allegedly dated 9" June, 2022 to all alleged applicants through which it allegedly informed them of the alleged outcome of the alleged verification exercise. Candidates whom the Committee allegedly removed from the alleged shortlist were allegedly informed that the Committee would communicate with them. The Committee allegedly informed the Claimant about the alleged removal of his name from the alleged published shortlist by email dated 15‘ June, 2022. The Committee allegedly informed the Claimant that the alleged ground of his alleged removal was that he did not satisfy the alleged entry criteria. It was allegedly only in response to this alleged removal from the List of Shortlisted Candidates that the Claimant allegedly contended to the Committee that he allegedly passed his degree with a GPA of 3.74. He allegedly further contended to the Committee that he allegedly satisfied its entry criteria. The Claimant allegedly so contended to the Committee without allegedly having provided it with a copy of his alleged transcript or any evidence that he had ever submitted the alleged transcript; 5.9 The Committee allegedly informed the Claimant through its email to him dated 15" June, 2022 that despite his removal from the published List of Shortlisted Candidates he would still be allowed to sit for and take the entrance examination. The Committee allegedly informed him that this would be possible if he believed that he satisfied the eligibility criteria, paid the requisite fee and provided all the documents that the Committee allegedly required. The Claimant was allegedly informed that in this case he allegedly needed to bring the originals of all the alleged required documents for verification. It was this alleged further verification that allegedly would have permitted the Claimant to sit for and write the entrance examination; and 5.10 The Claimant allegedly never presented himself with his alleged original transcript for the Committee to allegedly allow him to sit for and take the alleged entrance examination allegedly set for 21* June, 2022. He instead allegedly commenced this present application. The Committee is of the alleged view that in the circumstances the Claimant never utilized the alternative remedy that it allegedly informed him about. It was his own alleged failure that led to the Claimant not allegedly sitting for and taking the entrance examination. This is the alleged basis on which the Defendant opposes the Application for Permission to apply for Judicial Review, 5.11 Besides filing and serving the Opposing Sworn Statement to the Application dated 22 November, 2022 the Defendant also filed and served on the Claimant a 7 Notice of Preliminary Objection to his Application for Permission to apply for Judicial Review also dated 224 November, 2022. Through this notice the Defendant notified the Claimant that it had a preliminary objection to his application on the alleged ground that he had commenced these proceedings against an entity that is not known at law. The Claimant accepted service of the Notice of Preliminary Objection on 24" November, 2022. He orally responded to it during the hearing of the Application for Permission to apply for Judicial Review on 28" November, 2022. In his oral response he stated that Order 19 rule 23(2)(c) of the Courts (High Court) (Civil Procedure) Rules, 2017 Rules (“the 2017 Rules”) provides that an application made under sub-rule (1) of this Order must name as a defendant for an order about a decision the person who made or who should have made the alleged decision. The Defendant that the Claimant named in this application allegedly made the decision that is being challenged through these judicial review proceedings. In the alternative the Claimant stated that this court must make an order allowing him to amend the name of the Defendant so the current Defendant is substituted with and by the Council for the University of Malawi without him being ordered to pay costs if this court found the preliminary objection sustainable. The Defendant reiterated that a person who is named as a defendant in judicial review proceedings must allegedly be a person that the law recognizes as a person against whom court proceedings can be brought. The current Defendant is not established as a public office under the UNIMA Act. Section 8 of the UNIMA Act establishes the Council of the University of Malawi which is capable of suing and being sued in this name. The Defendant finally stated that the alternative prayer for an order of amendment that the Claimant made is allegedly without any legal basis. The UNIMA Acct is allegedly clear that service of any court process must be made on the Registrar of the University. No such service was allegedly made on the Registrar. THE EVIDENCE 6.1 In his Grounds on which Relief is sought dated 20" June, 2022 the Claimant produced and exhibited certified copies each of the alleged Shortlist of Candidates dated 1% June, 2022 marked ‘HB1’; Email dated 15" June, 2022 from the Defendant to the Claimant again marked “HB1”; an undated degree that the African Bible College allegedly awarded the Claimant allegedly for a Bachelor of Arts in Mass Communication marked “HB3” together with a covering letter dated 27" May, 2022 that the African Bible College allegedly wrote; Official Transcript of the Record of 8 Banda, Chawala Hope Student No. 17004 for the alleged attendance of this alleged University between August, 2017 and July, 2021; Outcome of the Verification Process Document dated 9" June, 2022 that the Defendant allegedly published and a Clarification Following Verification document dated 15" June, 2022. 6.2 In his Sworn Statement in Opposition to the Application to apply for Permission for Judicial Review dated 22"! November, 2022 the Defendant produced and exhibited uncertified copies of a Notice allegedly dated 2" June, 2022 which allegedly outlined a complaints handling procedure marked “EC1; a Notice allegedly dated 9 June, 2022 which allegedly informed all applicants about the alleged outcome of the alleged verification process marked “EC2” and a Notice allegedly dated 15‘ June, 2022 through which the Respondent allegedly informed all the applicants that they could allegedly still sit for and take the entrance examination if they allegedly brought original documents for verification marked “EC3”. The Respondent also produced and exhibited an unmarked Queries and Verifications Specific Case Document dated 2™ June, 2022. THE LAW 7.1 THE LAW ON JUDICIAL REVIEW 7.1.1 Section 108(2) of the 1994 Constitution of the Republic of Malawi (“the Constitution”) states that a High Court has original jurisdiction to review any law, and any action or decision of the Government for conformity with it. 7.1.2 Order 19 of the 2017 Rules deals with particular proceedings. Judicial review is dealt with in Order 19 rule 20(1) of these rules which states that it covers the review of- (a) a law, an action or a decision of the Government or a Public Officer for conformity with it; or (b) a decision, action or failure to act in relation to the exercise of a public function in order to determine- (i) its lawfulness; (ii) its procedural fairness; (iii) its justification of the reasons given, if any; or (iv) bad faith if any, where a right, freedom, interests or legitimate expectations of the applicant are affected or threatened. 7.1.3 Order 19 rule 20(2) of the 2017 Rules states that an applicant for judicial review must have sufficient interest in the matter to which it relates. Tk 7.1.4 Order 19 rule 20(3) of the 2017 Rules states that subject to sub-rule (3), an application for judicial review can only be commenced ex parte with the permission of this court. 7.1.5 Order 19 rule 20(5) of the 2017 Rules states that subject to sub-rule (6), an application for judicial review under sub-rule (3) must be filed promptly and must be made no later than 3 months of the decision. 7.1.6 Order 19 rule 23(1) of the 2017 Rules states that an application for judicial review must set out its grounds and must be supported by a sworn statement. 7.1.7 Order 19 rule 23(2)(c) of the 2017 Rules states that where an applicant seeks an order about a decision through an application made under sub-rule (1) they must name as a defendant the person who made or who should have made the decision. 7.1.8 Order 19 rule 23(3)(a) of the 2017 Rules states that an application for judicial review must be served on a Defendant within 28 days from the day of its filing. 7.1.9 Order 19 rule 24 of the 2017 Rules states that a defendant must within 14 days of service of the application for leave to move for judicial review on them file their defence supported by a sworn statement. OTHER LAWS OF RELEVANCE TO THIS RULING 7.2.1 UNDER THE CONSTITUTION 7.2.1.1 Section 25(1) of the Constitution states that all persons are entitled to education. 7.2.1.2 Section 43(a) of the Constitution states that every person has a right to lawful and procedurally fair administrative action which is justifiable in relation to reasons given where their rights, freedoms, legitimate expectations or interests are affected or threatened. 7.2.1.3 Section 43(b) of the Constitution further states that besides the right that its section 43(a) enshrines in it every person must also be furnished with reasons in writing for administrative action that affects or threatens their rights, freedoms, legitimate expectations or interests. 10 7.2.2 UNDER THE UNIMA ACT 7.2.2.1 Section 8(a) of the UNIMA Act establishes the Council of the University of Malawi. The Council is a body corporate with perpetual succession, a common seal and the capability to sue and to be sued in this name. 7.2.2.2 Section 11(1) of the UNIMA Act states that the Council is the governing body of the University. It has general supervisory responsibility over all the affairs of the University and its relations with the public. 7.2.2.3 Section 11(2) (g) of the UNIMA Act states that without prejudice to the generality of subsection (1) the functions of the Council are among others to select persons for entry into the University as students that a Selection Committee that the Statutes establish recommends to the Council. Part VIII of the UNIMA Act contains provisions for miscellaneous matters that concern this University. Of relevance to the present Application for Permission to apply for Judicial Review dated 22"! June, 2022 are sections 41(1) and 41(2)(b) of this Act. Section 41(1) of the UNIMA Act states that subject to this Act the Minister responsible for education prescribes Statutes for the proper governance and efficient administration of the University. Pursuant to section 41(7) of this Act proposed Statutes that the Minister responsible for education approves get published in the Gazette. Section 41(2)(b) of the UNIMA Act further states that without prejudice to the generality of subsection (1) Statutes provide for the creation of permanent committees of the Council, their membership, powers, functions or duties as the Council delegates. 7.2.2.4 Section 46(1) of the UNIMA Act provides for the UNIMA dispute resolution mechanisms for disputes that arise between the University and its members of staff as well as between the University and its students. 7.2.2.5 Section 47 of the UNIMA Act states that court process and other documents must be served on the Council by serving the Registrar defined in section 2 of the Act as the Registrar that is appointed under the authority of section 22 of this Act. 7.2.2.6 Section 48(1) of the current UNIMA Act repealed a previous UNIMA Act. Despite this repeal section 48(2)(a)(i) of this Act states that any Statute or Regulation made under the repealed Act in force immediately before the ll commencement of this Act remains in force unless it conflicts with this Act and is deemed to be a Statute or Regulation made under this Act; and (ii) may be replaced, amended or repealed by a Statute or Regulation made under this Act. 8. DETERMINATION OF THE APPLICATION OF THE CLAIMANT 8.1 There are two issues that this court needs to determine in this application. These are whether the Claimant should be granted the permission to commence judicial review proceedings against the Defendant as he prays or his application should be dismissed with costs as the Defendant prays. The Defendant urged this court to reflect upon and also determine the Preliminary Objection dated 22"! November, 2022 that got filed in this application. The Defendant grounded this preliminary objection on the first alleged issue that the Defendant is an entity that is not recognized at law. The Claimant should allegedly have brought this application against the Council of the University of Malawi. The second alleged issue was that the service of the court process issued in this application was allegedly improper. The Claimant allegedly served this court process on the Defendant. He should have allegedly served it on the Registrar of the University of Malawi. The Claimant did not file any skeleton arguments. The Defendant filed and served Skeleton Arguments in support of the Preliminary Objection dated 22" November, 2022. The Defendant also filed Skeleton Arguments in Opposition to the Application for Permission to Apply for Judicial Review also dated 22" November, 2022. This court considers that this preliminary objection is not sustainable in the circumstances of this present application at this stage of these proceedings. This court therefore grants the Claimant the permission he sought to commence judicial review proceedings against the Defendant and allows his application with some directions from this court for the following reasons: 8.2.1 In opposing this application the Defendant alleged that the Claimant brought these proceedings against a party that is not known at law. The Defendant also alleged that there was no effective service of the process of this court the Claimant having allegedly served it on the Defendant and not the Registrar of the University of Malawi in compliance with a provision of the UNIMA Act which Counsel for the Defendant did not specifically quote during the oral hearing of this application on the admitted ground that she had forgotten it. Counsel for the Defendant urged this court not to grant the prayer the Claimant made for an order for permission to amend his application so that he substitutes the Defendant with the Council of the University of Malawi given the 12 alleged manner in which the Claimant allegedly carried out and allegedly effected the service of the court process. The Claimant submitted that he proceeded this way based on Order 19 rule 23(2)(c) of the 2017 Rules which states that if a decision is challenged through judicial review proceedings it is the decision maker that should be named as a defendant. This court observes and understands in the specific context of this application and its contentious issues as they relate to the Preliminary Objection dated 22™ November, 2022 that the law that must be borne in mind and interpreted is that which is contained in sections 11(1),11(@2)(g), 41(1), 41(2)(b), 41(7) and 47 of the UNIMA Act. It is so ordered. Section 11(1) of the UNIMA Act states that the Council is the governing body of the University of Malawi with general supervisory responsibility over all the affairs of this University and its relations with the public. Section 11(2)(g) of the UNIMA Act states that the functions of the Council are among others to select persons for entry into the University of Malawi as students. Statutes of this University allegedly establish a Selection Committee which recommends these persons to the Council. Section 41(1) of the UNIMA Act states that subject to this Act the Minister responsible for education prescribes these Statutes to ensure the proper governance and efficient administration of this University. Section 41(2)(b) of the UNIMA Act states that it is these Statutes that provide for the creation of permanent committees of the Council, their membership, powers, functions or duties as the Council delegates. Section 41(7) of the UNIMA Act allows the Minister responsible for education to publish proposed Statutes that are approved in the Gazette. It is the considered opinion of this court that these provisions of the UNIMA Act raise questions of law about the lawfulness or otherwise of the admission procedures that the Law Intake 2022 Committee employed when it shortlisted the Claimant, removed him from a published Shortlist of the Candidates who were to sit for the 2022 Law Intake entrance examination, verified, reverified and seemingly endlessly reverified his application. This court finds that the delegated authority if any on the basis of which this Committee proceeded this way with its decision-making process over the admission application the Claimant allegedly submitted to it, its legal basis if any and whether or not it was lawfully exercised by this Committee are the compelling matters in this application that justify the grant of the permission to apply for judicial review to the Claimant so these matters are fully conclusively interrogated. It is so ordered. 8.2.2 According to the UNIMA Act the Council of the University of Malawi works through committees. Section 41(2)(b) of this Act speaks about the Statutes as the legal 13 basis on which permanent committees of the Council are created. These Statutes also allegedly spell out the membership, powers, functions or duties of any created permanent committees. This court is keenly aware that in the context of this present application neither the Claimant nor the Defendant raised any issues relating to these Statutes although the repealed UNIMA Act contains them. This court notes that a critical question of law that arises relates to whether or not there are any legal implications for the present application that stem from the fact that when the Claimant filed and served this application on the Defendant he used and relied on Order 19 rule 23(2)(c) of the 2017 Rules. The Claimant clearly departed from the legal requirements of sections 8(a), 11(1) and 47 of the UNIMA Act which have already been extensively outlined in this ruling in this respect. Order 19 rule 23(2)(c) of the 2017 Rules which requires that judicial review applications must name as a defendant the person who made the decision that is challenged requires the interpretation of this court given the position of the law in the UNIMA Act in the substantive hearing of this application. It is so ordered. This important contentious matter in this application persuaded this court to grant the Claimant the permission to judicially review the alleged decision that the Defendant allegedly made so that there is clarity on this procedural issue. It is so ordered. 8.2.3 This court observed that the Defendant alleged that the Law Intake 2022 Committee classified alleged applicants who did not submit required supporting documentation for their applications for admission into the Law Faculty into two groups. These alleged two groups allegedly comprised those whom it provisionally shortlisted and those whom it excluded from the provisional shortlisting. The Claimant appears to have fallen into the latter group. This court considers that this alleged classification that this Committee admitted resulted in not only the differential treatment of these applicants but also these alleged two different decisions as regards the eligibility of these applicants to sit for and take the entrance examination into the Law Faculty is another ground on which the grant of the permission to apply for judicial review is justified. The constitutionality of the decision-making process of the Law Intake 2022 Committee that led to these alleged differing decisions is a question of law that the substantive hearing of this application ought to consider. It is so ordered; and 8.2.4 In arriving at this decision this court noted that neither the Claimant nor the Defendant produced and exhibited certified copies each of the initial alleged 14 advertisement for the 2022 Law Intake and the alleged actual complete application that the Claimant allegedly submitted to the Defendant. Neither party to this application also produced and exhibited the Rules and Regulations if any that governed the relationship of the Claimant as an alleged 2022 Law Intake entrance examination applicant/candidate and the University of Malawi whether contractual or not on whose legal basis this relationship was intended to come into being. Section 46(1) of the UNIMA Act which deals with in-house dispute resolution is clear that its dispute resolution mechanisms apply to contractual relationships that exist either between the University of Malawi and its member(s) of staff or between this University and a student. This is what makes resort to judicial review proceedings by candidates such as the Claimant in the present application of paramount importance. It also inevitably makes the right of a candidate such as the Claimant in this present application to access any court of law with jurisdiction for final settlement of legal issues in compliance with section 41(b) of the Constitution imperative. It is so ordered. 8.3 Given the matters highlighted in sub paragraphs 8.2.1 through 8.2.4 of this ruling this court dismisses the Preliminary Objection dated 22"! November, 2022 and grants the prayer the Claimant made for permission to commence judicial review proceedings against the Defendant. It is so ordered. This court declines given the various notable contentious issues of law that arise in this application that the substantive hearing is set to determine to grant the Claimant the prayer for an order to amend his application by substituting the current Defendant with the Council of the University of Malawi. It is so ordered. This court confirms that the substantive hearing will proceed on the basis of the documents that are currently on the file of this court and those that have been directed to be filed and served in this ruling. This court directs the Claimant to file with this court and serve on the Defendant the certified copies of the advertisement on the basis of which he allegedly submitted his application to the Defendant and the alleged submitted full application within 7 days from the date of the delivery of this ruling. It is so directed. This court directs the Defendant to also file with this court and serve on the Claimant the Rules and Regulations, Statutes and/or the institutional policy or policies if any on the basis of which the Law Intake 2022 Committee allegedly made the alleged decision to shortlist and remove the Claimant from the alleged published Shortlist of Candidates for the 2022 Law Intake within 7 days from the date of delivery of this ruling. It is so directed. Pursuant to Order 19 rule 24 of the 2017 Rules this court directs 15 that the Defendant is at liberty to file and serve its defence if any to the application that the Claimant served on it within 14 days from the date of this ruling. It is so directed. This court grants the Claimant the order that the hearing of these judicial review proceedings must be expedited. This matter shall proceed to a Scheduling Conference on a date that this court will fix after the service of the defence if any. It is so directed. The Claimant is directed to take out a notice for this anticipated Scheduling Conference pursuant to Order 14 rule 2(1) of the 2017 Rules. It is so directed, This court declines to grant the Claimant an order of injunction that would have the effect of a stay of the decision of the Defendant that he sought and prayed for in the event his application for permission to commence judicial review proceedings succeeded. Order 19 rule 22(a)(b) and (c) of the 2017 Rules outlines the matters that this court may consider in deciding whether or not this order should be granted to the Claimant. This court will decide whether or not the Claimant is entitled to this sought relief after the substantive hearing of this application. It is so ordered. 8.4 Section 30 of the Courts Act [Cap. 3:02 of the Laws of Malawi] states that costs of court proceedings are in the discretion of a court. Order 31 rule 1(a)(b) and (c) of the 2017 Rules amplifies this issue. Order 31 rule 3(1)(a) of the 2017 Rules states that this court has discretion as regards whether or not costs must be paid by one party to another. Order 31 rule 3(1)(b) of the 2017 Rules states that this court has discretion to decide the amount of any payable costs. Order 31 rule 3(1)(c) of the 2017 Rules states that this court has discretion to decide when costs must be paid. Order 31 rule 3(2) of the 2017 Rules states that where this court decides that costs must be paid, an unsuccessful party is ordered to pay the costs of a successful party. This court exercises its discretion on costs to order that each party shall bear its own costs of this application. It is so ordered. 9. THE RIGHT OF APPEAL OF THE PARTIES AGAINST THIS DECISION This court has allowed the Application for Permission to commence Judicial Review Proceedings with directions for the reasons stated in this ruling. This court notes that owing to this decision this matter shall proceed to a substantive hearing of the application to judicially review the decision the Defendant is alleged to have made. This court considers that an opportunity to appeal to the Supreme Court of Appeal shall arise for both parties at the conclusion of the substantive hearing for the judicial review proceedings and the delivery 16 of its judgment should any party to this application be dissatisfied with it on any legitimate grounds of appeal. It is so ordered. Delivered at Mzuzu this .......6.40Teeceseee- day of... MLABCH on. 2023 M. KONDOWE JUDGE 17