By Yankuba Jallow & Fatou O. Barrow
Justice Landing Sanneh of the high court has on Wednesday, 29th September dismissed an application brought by the University of The Gambia Faculty and Staff Association (UTGFSA) seeking to set-aside the interim injunction made against them.
The high court on the 14th September 2021 issued an interim injunction order against UTGFSA, its executive and members from embarking on a sit-down strike. The interim injunction here means the court ordered the UTGFSA to refrain from embarking on a sit-down strike.
UTGFSA wanted the high court to set-aside its own decision made on the 14th September 2021 restraining them from embarking on a sit-down strike and ordering them to call off the sit-down strike. The staff association argued that the order of interim injunction made against them was illegal, unconstitutional and a violation of their right to fair-hearing.
Justice Landing Sanneh said he cannot set-aside, vary or discharge the orders of another high court judge since they both have the same powers. The vacation judge declined to grant the motion as he dismissed the application by the UTGFSA. He said the orders of his colleague judge (Justice Momodou S.M. Jallow) can only be set-aside by an appellate court (Gambia Court of Appeal).
“I cannot declare his [Justice Jallow’s] decision unconstitutional, or vary or discharge it,” he said.
He said his court lacks the powers to set-aside or vary the orders of a fellow high court judge because they both have coordinate jurisdiction – meaning the same powers.
The Lawyer for the Association, Sheriff Kumba Jobe said interim injunction of an “ex-parte” motion cannot be made to last till the end of the case. SK Jobe, as he is renowned in the legal fraternity, said the high court, as per its rules, can set-aside its own decision based on lack of jurisdiction, unconstitutionality and illegality. He added that his clients’ right to fair-hearing was infringed, adding the interim injunction was a travesty of justice. He relied on some case laws including Gambian cases in his argument.
Lawyer Kimbeng Tah for the Attorney General and University of The Gambia said some of the paragraphs in-support of the UTGFSA affidavit were legal arguments and conclusions which is contrary to the provisions of the Evidence Act on the rule of writing affidavit. An affidavit is a written statement confirmed by oath or affirmation, for use as evidence in court.
He said the UTGFSA motion is weak, adding the court can only set-aside the injunction if the orders were obtained fraudulently or for lack of jurisdiction.
Justice Landing Sanneh in his ruling said it is a well-established principle in law that an “ex-parte” interim injunction cannot be made to last till the determination of a case. However, he said he cannot vary the judgment of his colleague high court judge as he lacks such powers. The Judge agreed with Lawyer Tah that some of the paragraphs in the UTGFSA affidavit in-support of the motion have legal arguments and conclusions. However, he said the UTGFSA application should be given the merit it deserves and thus, allowed the affidavit in-support to be used as he relied on section 87 of the Evidence Act.
He dismissed the application by the UTGFSA on merit that he cannot grant what they ask for. He said he lacks the jurisdiction to set-aside the decisions of the high court. He reminded the parties in the case that the status quo remains and the previous order of the high court is still in effect.
He returned the file back to the Chief Justice for reassignment to another judge to deal with the main case (originating summons).