Sunday, October 17, 2021

UTG Staff Association Asks Court of Appeal to Set Aside High Court’s Decision

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By Yankuba Jallow & Fatou O. Barrow

The University of The Gambia Faculty and Staff Association (UTGFSA) have filed a notice of appeal before the Gambia Court of Appeal seeking the appeals court to set-aside the high court ruling which restrained them from carrying out their planned sit-down strike.

The UTGFSA were sued by the University of the Gambia (UTG) and the Attorney General after they (UTGFSA) organised an extra-ordinary congress and agreed to hold a sit-down strike staring 15th September 2021. 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 high court ordered the members of the UTGFSA to refrain from embarking on a sit-down strike. The high court decision came through an ex-parte application (meaning in the absence of the UTGFSA) and it was delivered a day before the scheduled day for the start of the protest. 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). Now, the UTGFSA have taken the matter before the Gambia Court of Appeal seeking an order setting aside the high court ruling against them.

On the first ground of appeal, the UTGFSA said the Court erred in law and wrongly proceeded with the UTG and AG’s civil matter without its civil jurisdiction during vacation been properly and competently invoked by the UTG and AG. On the particulars of error, the UTGFSA said there was no competent application before the high court which properly invoked the civil jurisdiction of the court during vacation as provided under the Rules of the high court. They said there was no compliance with Order 4 Rule 6, First Schedule of the Rules of the High Court and it consequently robbed the court of its competent jurisdiction to hear and determine the civil cause or matter during the vacation. They are saying the non-compliance with this provision renders the entire court proceedings null and void. They said the high court failed to have regard and apply Order 4 Rule 6 of the High Court Rules.

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On the second ground of appeal, the UTGFSA said the court erred in law when it held that “it is therefore my considered view that the applicants [UTG and AG] have fully complied with Order 4 Rule 6 of the High Court Rules”. According to the particulars of the error, the UTGFSA said Order 4 Rule 6 1st Schedule of the Rules of the High Court requires the filling of summons for a civil cause or matter to be heard or tried during vacation. They argued that the UTG and AG did not file summons, but instead file an ex-parte motion seeking their matter or cause [case] to be heard during the vacation contrary to the provisions of Order 4 Rule 6 of the High Court Rules. They argue that the ex-parte motion cannot properly and competently invoke the civil jurisdiction of the high to hear civil cause or matter during vacation. They said the high court judge misconceived the provisions of Order 4 Rule 6 of the High Court Rules adding he should have dismissed the suit for being incompetent.

On the third ground of appeal, the UTGFSA said the high court judge erred in law when he said the Labour Act is applicable to public servants (including them) without averting his mind on the constitutional and statutory definitions of public servants. In support of this ground, the UTGFSA said section 3 of the Labour Act excludes the application of the Act to the civil service of The Gambia. They said the high court judge misconceived the definition of civil service as provided under section 2 of the Public Service Act and its relation with section 3 of the Labour Act. They said the high court decision is not based on any maintainable law.

On the fourth ground of appeal, the UTGFSA said the high court judge erred in law and misdirected himself when he held that the originating summons filed by the UTG and AG is competent and refused to strike it out. In support of this ground, the UTGFSA said the originating summons filed by the UTG and AG was inconsistent and failed to comply with the provisions of Order 26 Rule 4 2nd Schedule of the High Court Rules. They said the originating summons was defective both in form and substance thereby rendering it incompetent. They said the high court judge ought to have declared the originating summons incompetent and strike it out.

On the fifth ground of appeal, the UTGFSA said the high court judge erred in law and misdirected himself when he failed to hold the UTG and AG suit was inappropriate to be commenced by way of originating summons. They said the high court judge failed to avert his mind to the principles and law that originating summons is used where a party is seeking interest under a deed, will or other written instruments for the determination of construction arising under the instrument for declaration of his interest. They said originating summons are used to commence non-hostile proceedings and non-contentious actions where the facts are not likely to be in dispute. They said the UTG and AG case does not fall within Order 27 of the Rules of the High Court which permits the use of originating summons. They said the UTG and AG case is not appropriate under the Originating Summons procedure.

On the sixth ground, the UTGFSA said the high court judge failed to avert his mind to the fact that non-compliance with the Rules of the court is abuse of process. They said the UTG and AG failed and refused to comply with the Rules of the High Court, adding the suit was not instituted in accordance with due process and Rules of the court thereby amounting to abuse of process.

On the seventh ground, the UTGFSA said the high court failed to hold that the proceedings with the hearing and determination of the UTG and AG originating summons would amount to a breach of their (UTGFSA) right to fair-hearing. In support of this ground, they said no notice was served on them as required by Order 26 Rule 6 2nd Schedule of the Rules of the High Court.

On the eighth and final ground of appeal, the UTGFSA said the ruling of the high court is against the weight of evidence.

In another appeal case, also before the Court of Appeal, the UTGFSA want the Court of Appeal to set-aside the high court ruling which held that it cannot set-aside its own decision. Also, they want the Court of Appeal to make order setting aside, varying or discharging the high court orders against them on a motion ex-parte for being unconstitutional and illegal.

On the first ground of appeal, the UTGFSA said the high court judge erred in law when it failed to set-aside, vary discharge its ex-parte orders for injunction against them made on the 14th September 2021. In support of this ground, they said the ex-parte orders were wrong in law as they were made to last till the determination of the case. The UTGFSA said an ex-parte order cannot be mad to last till the determination of the matter, but instead within a short time when the party affected can be heard. They said the ex-parte orders dated the 14th September 2021 by the high court were a violation of their right to fair-hearing.

On the second ground of appeal, they said the high court judge erred in law and misdirected himself when he said he has no power/jurisdiction to set-aside the decision of another high court judge. In support of this ground, the UTGFSA said Order 41 Rule 1 (c) as amended by the High Court Rules empowers the high court to set-aside or nullify its decision or judgment for lack of jurisdiction, illegality or unconstitutionality. They said the high court judge misconceived this provision and wrongly applied it.

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