Duke St John-Paull Foote v University of Technology Jamaica and Another

• Jurisdiction: Jamaica
• Judge: Morrison JA,Phillips JA,Sinclair-Haynes JA
• Judgment Date: 31 July 2015
• Neutral Citation: [2015] JMCA App 27
• Docket Number: APPLICATION NO 47/2015
• Court: Court of Appeal (Jamaica)
• Date: 31 July 2015

[2015] JMCA App 27A

JAMAICA

IN THE COURT OF APPEAL

Before

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Mrs Justice Sinclair-Haynes JA (AG)

APPLICATION NO 47/2015

Between

Duke St John-Paul Foote

Applicant

and

University of Technology Jamaica (UTech)

1 ^st Respondent

and

Elaine Wallace

2 ^nd Respondent

John Thompson , Donovan Foote and Able-Don Foote for the applicant

Gavin Goffe and Jermaine Case instructed by Myers, Fletcher & Gordon for the respondents

EDUCATION LAW - Student - Declaration sought that University breached its contract - Student prevented from sitting examination and continuing with choice of courses - Whether matter of academic decision rather than a matter for legal process - Whether University in breach of contract - Jurisdiction of Visitor - Whether matter amounts to breach of Charter of Rights - Whether matter concerns internal policies and procedure of the University

Morrison JA

Introduction

1 The applicant was at all material times a student enrolled in the faculty of law of the — ^st respondent (“the university”). The — ^nd respondent (“the registrar”) is the registrar of the university.

2 The university was established by virtue of section 3(1) of the University of Technology, Jamaica Act (“the Act”), and its charter is set out in the first schedule to the Act. Pursuant to article 11(2) of the charter, the council of the university is vested with “general control over the conduct of the affairs of the University and shall have all other such functions as may be conferred upon it by the Statutes”.

3 Section 5 of the Act provides that the Governor-General, or the person for the time being performing the role and functions of that office, shall be “the Visitor of the University”. The section goes on to provide (in paragraph (b)) that, in the exercise of his visitorial authority, the Governor-General may, among other things, “hear matters referred to him by the Council”.

4 By a fixed date claim form filed on 20 January 2015, the applicant sought, among other things, a declaration that, by preventing him from sitting his December 2014 end-of-semester examinations, the university had breached its contract with him. By notice dated 9 February 2015, the respondents took the preliminary objection that the court had no jurisdiction to entertain the claim, because the matters complained of by the applicant fell within the exclusive jurisdiction of the visitor. On 3 March 2015, Lindo J (Ag) upheld the preliminary objection and dismissed the claim, with costs to the respondents to be agreed or taxed. The applicant's application for leave to appeal having been refused by the learned judge, he now renews it before this court.

The background to the application

5 By letter dated 20 August 2014, the applicant was advised by the university that he had been selected for admission to the university to pursue the degree of Bachelor of Laws in the academic year 2014–2015. The academic year was scheduled to commence on 25 August 2014. As requested, the applicant confirmed his acceptance of the offer of a place by paying the non-refundable enrolment commitment fee of $15,000.00 on 21 August 2014. Once this was done, the next step was for the applicant to complete the enrolment process, by selecting his modules (courses) and paying tuition fees for the first semester. For the first semester, the university's regular enrolment period, which commenced on 14 July 2014, was due to end on 22 August 2014. But it was subsequently extended to 30 September 2014 and then again to 15 October 2014, when enrolment was finally closed.

6 The university's Undergraduate Student Handbook 2014–2015 (‘the handbook’) offered three fee payment options to students. Options 1 and 2 required payment by the student of 100% of the total tuition costs for all modules selected by 22 August 2014 and 30 September 2014 respectively. Option 3 required payment of (i) a minimum of 80% of the total tuition costs of all modules selected by 30 September 2014; and (ii) all outstanding balances by 31 October 2014. The handbook also provided that ‘[o]nce registered with the minimum 80% payment, students will be allowed to sit final examinations’; and that ‘[s]tudents on this part payment plan are required to settle all outstanding balances by Friday October 31, 2014’. And then, under the rubric, ‘Penalties For Non-Compliance’, it provided that a student will be deemed to be in arrears if ‘an expected payment is not received on or before the due date’; and that students ‘who are in arrears may be de-listed’.

7 The applicant did not pay 100% of his fees, which the university calculated to be $246,310.00, by the dates stipulated in options 1 and 2. It is accordingly common ground that he fell under option 3. While the applicant's position was that the total due from him was $230,000.00, nothing now appears to turn on this difference.

8 The applicant's first payment on account of fees, a payment of $100,000.00, was made on 10 October 2014. He then made a second payment of $130,000.00 on 30 October 2014 and, by his reckoning, this completed the payments due from him for fees for the first semester. The university took no issue with the date of the applicant's first payment (it having been made within the extended enrolment deadline). However, it considered that the applicant, having paid only $100,000.00, which was less than the 80% due as at that date under option 3, had not completed the enrolment process and was therefore not enrolled for the first semester. This is how the registrar articulated the university's position (at para. 11 of her affidavit filed on 28 January 2014):

“As a result of the [applicant's] failure to pay all, or at least 80% of his school fees by October 15, 2014, he did not complete the enrolment process and was thus not enrolled as a student of UTech for the semester. The deadline of October 30, 2014 to pay the balance owed is only applicable to enrolled students, that is, students who have satisfied the requirement of paying at least 80% of their fees by the deadline, which in this case was extended to October 15, 2014.”

9 On or about 1 November 2014, the applicant, who had up to that time been attending classes in his chosen modules, discovered that he had been de-listed from the university. The practical result of this was that since, as the registrar explained (at para. 12 of her affidavit), “[o]nly enrolled students are allowed to sit exams at the University”, the applicant fell to be barred from sitting the end-of-semester examinations scheduled to commence on 2 December 2014. This was confirmed by the registrar at a meeting with the applicant and his parents in early November 2014.

10 On 18 November 2014, aggrieved by the university's stance, the applicant commenced an action in the Supreme Court by way of a fixed date claim form against the university and others (“the first action”). The applicant's claim was for a declaration that, in the light of his payment of $130,000.00 on 30 October 2014, the university had acted in breach of the terms and conditions contained in the handbook. Also on 18 November 2014, the applicant filed an ex parte notice of application for court orders seeking an interim order restraining the registrar from preventing him —

“…from attending classes, using the library's facilities AND accessing the UTECH online PORTAL for information necessary for him to prepare for his assignments, presentations, and impending examination scheduled to be written in December, 2014.”

11 That same day, 18 November 2014, without notice to the university, the application was heard and granted by Lindo J (Ag), in the terms sought, for a period of seven days. The matter was then adjourned to 25 November 2014 for an inter partes hearing. By letter dated 20 November 2014, explicitly in response to this order, the university invited the applicant to attend at its office of admissions to ‘complete the necessary documentation to add the modules that [he] would be pursuing during Semester 1 Academic Year 2014/2015 as part of [his] LLB Course of Study’. This notwithstanding, on 24 November 2014 the university filed an acknowledgement of service indicating its intention to defend the applicant's claim.

12 On 25 November 2014 (the return date fixed by the judge for the inter partes hearing), the applicant discontinued the first action, “after the [university] had complied with the Court Order by relisting [him], giving [him] Financial Clearance, access to the University online portal and an Examination Card and a Timetable to do[the] Exams Scheduled for Academic Year 2014/15 in SEM — ”. As a result of the first action being discontinued on 25 November 2014, the interim injunction, which would have in any event expired on that date, therefore fell away completely. Accordingly, in an immediate response to this development, the registrar sent a letter dated 28 November 2014 to the applicant:

“I write to confirm that you filed a Notice of Discontinuation of [the first action] on Tuesday November 25, 2014, the date on which the interim injunction against the University expired, without appearing before the judge or seeking permission from the court as required by the rules of court. No extension was given.

Consequently, please note that the status quo reverts to that which existed prior to the Order of the Court. This would mean that all the steps that the University took in observing the provisions of the Order of the Court will be discontinued. It also means that you will not be able to sit the examinations in the AY 2014/2015 Semester 1 Final Examinations.”

13 In the result, the applicant was not allowed to sit the December 2014 examinations, despite the fact that the university sent him the first semester final examination timetable (by e-mail dated 28 November 2014); and a...