Myrie (Matt) v University of the West Indies Faculty of Medical Sciences and Others

• Jurisdiction: Jamaica
• Judge: BROOKS, J.
• Judgment Date: 04 January 2008
• Judgment citation (vLex): [2008] 1 JJC 0401
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2007 HCV 04736
• Date: 04 January 2008

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. 2007 HCV 04736

IN CHAMBERS

BETWEEN

DR. MATT MYRIE

APPLICANT

AND

THE UNIVERSITY OF THE WEST INDIES

1 ^ST RESPONDENT

AND

THE UNIVERSITY OF THE WEST INDIES FACULTY OF MEDICAL SCIENCES

2 ^ND RESPONDENT

AND

DEAN OF THE FACULTY OF MEDICAL SCIENCES (PROFESSOR ARCHIE MACDONALD)

3 ^RD RESPONDENT

AND

PROFESSOR DENISE ELDEMIRE-SHEARER (CHAIR FMS, COMMITTEE FOR GRADUATE STUDIES)

4 ^TH RESPONDENT

AND

PROFESSOR HORACE FLETCHER (CHAIRMAN OBSTETRICS AND GYNAECOLOGY SPECIALITY BOARD)

5 ^TH RESPONDENT

AND

THE UNIVERSITY HOSPITAL BOARD OF MANAGEMENT

6 ^TH RESPONDENT

^{st rd th th th}

^nd

Education - University created by Royal Charter which provides for a Visitor - Whether jurisdiction of the Court ousted thereby

Practice and Procedure - Application for Mandatory Injunction for University to permit student to sit examinations - Whether student's case unusually strong and clear

EDUCATION LAW - Visitor - Jurisdiction created by University's Royal Charter - Whether jurisdiction of the court ousted thereby

CIVIL PROCEDURE - Injunction - Mandatory injunction - Application for university to permit student to sit examinations - Whether student's case unusually strong and clear

BROOKS, J

1 The University of The West Indies (UWI) is this country's oldest university. It has a faculty of medical sciences which administers the teaching and study of subjects leading to degrees in medicine at both first degree and graduate levels. Dr. Matt Myrie is a graduate of the UWI and is enrolled as a graduate student in its Doctor of Medicine (DM) programme. He has successfully completed Part I of the programme.

2 During the morning of November 15, 2007 Dr. Myrie sat an examination denominated Paper 1 of Part II of the UWI's DM programme. When he returned in the afternoon to sit Paper 2 of Part II, he was barred from the examination room by the invigilator and the UWI's security guards. This, on the basis, they alleged, that he was ineligible to sit the Part II examinations.

3 Further portions of the Part II examinations were scheduled to be held on the 29 ^th November, 2007. Fearing that he would also be barred from sitting those examinations, Dr. Myrie brought this application for an injunction. He sought orders that he be permitted to sit the examinations and that the UWI also allow him to sit the paper, from which he had been previously barred. Dr. Myrie asserted that he had been provided with all the indicia of an eligible examination candidate and had been allowed to sit Paper 1. On those bases he said that he had been led to have a legitimate expectation that he would have been allowed to sit the entire examination.

4 Mr. Shelton, on behalf of the UWI, resisted these applications. He submitted, as a preliminary point, that this court had no jurisdiction to hear the application because the UWI's Charter provided for a visitor and it was the visitor to whom Dr. Myrie should have applied for relief. Mr. Shelton submitted that, in any event, Dr. Myrie was ineligible to sit these examinations on the basis, among others, that he had failed to submit, in time, course-work which is a necessary pre-requisite for sitting the examinations. As a consequence, he was not entitled to the injunctive relief which he sought.

5 The issues to be decided are firstly, whether the jurisdiction given to the visitor in the UWI's Charter could oust the jurisdiction of this court, and secondly, if the court had jurisdiction, whether Dr. Myrie's claim met the requirements to allow for a grant of a mandatory injunction.

6 At the hearing of the application, I reserved my ruling on the preliminary point and heard the submissions in respect of the substantive application. In light of the urgency of the matter, I made an oral ruling in respect of both issues. I now set out the reasons for my decisions.

7 The jurisdiction of the UWI's visitor

8 The UWI had its origins in 1948 as a College of the University of London. It achieved full university status when it was established by Royal Charter on 2 ^nd April, 1962. By the Charter, the persons, who are from time to time its members, "are constituted and incorporated into one Body Politic and Corporate with perpetual succession...". A new Charter was issued on 25 ^th August, 1972. It confirmed the status of the institution which had been created by the 1962 instrument. Clause 6 of each Charter provides that her Majesty Queen Elizabeth II, her Heirs and Successors, "shall be and remain the Visitor and Visitors of the University". However, except for an express intention to inspect, neither of the Charters nor any of the statutes established thereunder provide any further guidance as to the duties or the authority of the visitor. It is therefore to the common law that we are obliged to look for enlightenment on the role of the visitor. All references hereafter shall be to the 1972 Charter ("the Charter").

9 The office of visitor has its origins in the law regarding corporations. The office has particular relevance in respect of eleemosynary corporations. "Eleemosynary corporations are those established for the perpetual distribution of the free alms or bounty of the founder to such persons as he has directed." ( Tudor on Charities 8 ^th Ed. page 371) The principle behind the existence of the office of visitor, briefly stated, is that the founder of an eleemosynary corporation, whether it be a charity, educational institution or otherwise, is entitled to provide the laws by which the object of his bounty are to be governed. He is also entitled to establish himself or some other person whom he may appoint, as the sole udge of the interpretation and application of those laws. That sole judge is referred to as a visitor.

10 In outlining the jurisdiction of visitors, the learned editors of Halsbury's Laws of England, 4 ^th Ed. Reissue Volume 15 (1) at paragraph 495, state in part:

"...the visitor has untrammelled power to investigate and right wrongs done in the administration of the internal laws of the foundation. A dispute as to the correct interpretation and fair administration of the domestic laws of the university, its statutes and its ordinances falls within the jurisdiction of the visitor, subject to the supervisory jurisdiction of the High Court, and therefore the court usually lacks jurisdiction in the first instance to intervene. However a decision of the university visitor may be amenable to judicial review."

11 In Regina v. Lord President of the Privy Council ex parte Page [1993] AC 682, Lord Griffiths, in explaining the function and antiquity of the office of the visitor stated at p. 694A:

"For three centuries the common law courts have recognised the value of the visitor acting as the judge of the internal laws of the foundation and have refused to trespass upon his territory.... The value of the visitorial jurisdiction is that it is swift, cheap and final."

12 In that case Lord Browne-Wilkinson also explained the jurisdiction of the visitor and the court's view of that office. He said at page 695G – 696B:

"It is established that, a university being an eleemosynary charitable foundation, the visitor of the university has exclusive jurisdiction to decide disputes arising under the domestic law of the university. This is because the founder of such a body is entitled to reserve to himself or to a visitor to whom he appoints the exclusive right to adjudicate upon the domestic laws which the founder has established for the regulation of his bounty. ...

Those propositions are all established by the decision of this House in Thomas v. University of Bradford [1987] A.C. 795 which held that the courts had no jurisdiction to entertain such disputes which must be decided by the visitor. However the Thomas case was concerned with the question whether the courts and the visitor had concurrent jurisdictions over such disputes. In that context alone it was decided that the visitor's jurisdiction is "exclusive". Thomas does not decide that the visitor's jurisdiction excludes the supervisory jurisdiction of the courts by way of judicial review."

13 Further explanation of the court's stance was given by Lord Woolf MR at paragraphs 29 and 31 of the case of Joan Elizabeth Clark v University of Linconshire and Humberside, [2000] 1 WLR 1988, when he said:

"The court, for reasons which have been explained, will not involve itself with issues that involve making academic judgments....

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