It will be fair to put UG residence re-allocation on hold – High Court

A February 9, 2023 ruling of the High Court presided over by Justice Francis Obiri continues to generate controversy.

This decision granted a request by some students that the University of Ghana puts its residence re-allocation policy on hold.

This new policy among other things seeks to convert the Commonwealth Hall into a Hall of residence for first-year students and graduate students.

The court also in a March 16 ruling declined a request by the University to cross-examine some of the students regarding certain claims they had made in court documents.

These two decisions form a key part of an application by the University asking that Justice Obiri recuses himself from the case because of his connection to the Commonwealth Hall Fraternity while a student.

Commonwealth Hall case: UG wants ‘Old Vandal’ judge removed from case, injunction quashed

JoyNews has sighted copies of these decisions that explain in detail why the judge arrived at these conclusions.

See full ruling on cross-examination of students;

IN THE SUPERIOR COURT OF JUDICATURE,

IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION “2”

HELD IN ACCRA ON THURSDAY, THE 9^TH DAY OF FEBRUARY 2023, BEFORE HIS LORDSHIP FRANCIS OBIRI

RULING

On 16^th January 2023, the Plaintiffs/Applicants (hereinafter called the Applicants) filed a motion before this Court.  The motion is seeking an order of interlocutory injunction restraining the Defendant by itself, its officers, servants, agents, and whatsoever manner:

• From going ahead/taking any steps to implement its new residency policy decided on 26^th October 2022 and captured in the minutes of the said meeting signed by Professor Awandare (Chairman) and Pascaline K. Songsore (Secretary) and forwarded to the Vice Chancellor by letter dated 10^th November, 2022.
• Mandatory order directed at the Defendant to remove from the Commonwealth Hall, all persons newly placed in residence in the Commonwealth Hall, pursuant to the 26^th October 2022 new residency policy.
• From in any manner interfering with the accrued residency rights of the Applicants and all continuing students of Commonwealth Hall, prior to the new policy.

The motion is supported by affidavit and exhibits.  I wish to quote the relevant paragraphs of the affidavit in support in this ruling.

• That by a Letter of Admission dated the 20^th of December, 2021, the 5^th Plaintiff was admitted into the Defendant University to pursue a four (4) year full time study leading to the award of a degree in Bachelor of Arts in Education. (I attach herewith marked as exhibit A, is a copy of the 5^th Plaintiff’s letter of Admission in verification)
• That Exhibit A is in essence a replica of the admission letters of all the applicants except for the names, the addresses, images of the students and the courses offered to study.
• That upon the University’s direction, I applied for and was awarded residence at Commonwealth Hall which is one of the five (5) traditional halls of the university pursuant to which I proceeded to complete registration formalities after which I took residence in the hall. (I attach herewith marked as Exhibit B a copy of the 5^th Plaintiff’s Residence Allocation letter in verification.
• That allocation of halls of residence is on competitive basis and even if allocated, is time-restricted and in terms of costs, the traditional halls are preferred and the most sought after.
• That the alternative to the traditional halls is the University of Ghana Enterprises Limited halls residency which is nearly thrice the cost of the traditional halls. (I attach herewith marked as Exhibit C and C1 copies of the schedule of provisional residential fees for 2022-2023 academic year for traditional halls and the university of Ghana Enterprises Limited schedule of fees for the 2022-2023 academic year in verification.
• That had we being allocated residence in the University of Ghana Enterprises Limited Halls; we could not have taken it for the reason that we cannot afford the charges that come with residence of those halls.
• That by a long-standing residence arrangement and practice of the University, once a student takes up residence in the traditional halls, the student has a right of residence in that hall for the duration of the course of study, subject to proven breach of an existing regulation of the University, punishable by loss of the right of the residence in the hall.
• That documentary evidence of the residency policy and the practice of the University being that residency in halls cover the duration of the course can be seen in the University’s published residency policy notice dated, the 7^th of December, 2021 titled “Notice of Student Residency in University Managed Halls; 2021/2022 academic year”. (I attach herewith marked as exhibit D is a copy of the document titled “Notice on Student Residency in University Managed halls; 2021/2022 Academic year in verification).
• That by items 1 and 2 of Exhibit D, the residency board of the University underscored its residency policy and practice and its recognition that a deviation of the long-standing policy and practice of residence in halls being for the duration of the course can only be prospectively done on conditions expressly spelt out in the offer of accommodation to new students.
• That the other applicants are resident students of Commonwealth Hall who I met upon taking residence in the hall and who I have lived in the hall with for the period of the academic year spanning January 2021 to September 2022 when the academic year came to an end.
• That I am advised and verily believe same to be true that with our allocation of residence at Commonwealth Hall, (Hall) a right of residence for the duration of our respective courses accrued to me and the other applicants subject only to the loss of our right of residence on a proven breach of a pre-existing rule of the University’s basic law punishable by loss of the right of residence.
• That I and my colleague applicants successfully completed our academic work and went temporarily out of the residence when the University went on Summer Vacation with a reasonable expectation of returning to our residence in early January, 2023 to continue our courses.
• That on the 28^th of December 2022, I received via WhatsApp messaging a link from some colleagues on one of our group platforms. When I followed the link, it led me to a notice from the University that said the following:” Following the University Council’s approval of new residential arrangements for the 2022/2023 academic year, you have been reallocated a bed in a different hall of residence. Kindly follow the steps below to accept your offer and secure a bed”. The notice then directed that I log in for my newly allocated hall and room number. (I attach herewith marked as Exhibit E an image of the notice that the link led to captioned of the “New Residential Arrangement academic year” in verification.)
• That I was to discover well after the fact that the university had sent an email to me and the other applicants on 14^th of December 2022 in which they advised that the university council had approved recommendations of the residence board for changes to student residence arrangement in reaction to repeated incidences of violence involving students. (I attach herewith marked as exhibit E is a copy of the print out of the email titled Arrangements for students’ residence from 2022/2023 academic year in verification)
• That by bullet point one of, the new arrangement advised by the University, the other Applicants and I were informed that with effect from the start of 2022/2023 academic year, “All continuing students of Commonwealth Hall and continuing male students of Mensah Sarbah Hall will not return to these halls or to any of the traditional halls. They are to be randomly assigned to available rooms in any of the UGEL and private hostels. Continuing female students of Mensah Sarbah Hall and students with special needs in both halls will not be affected by this measure”.
• That our enquires carried out sometime in the beginning of the year revealed that the changes in residence policy were decided by a meeting of the Residence Board of the University which took place on the 26^th of October 2022.  The minutes of which were forwarded to the Vice-Chancellor of the University by the Pro-vice Chancellor (Academic and Students Affairs) by a letter dated the 10^th of November 2022. (I attach herewith marked as Exhibit G and G1 the cover letter dated the 10^th of November 2022 and the minutes of the meeting of 26^th of October 2022 respectfully for ease of reference in verification)
• That by the statute of the university of Ghana, the Residence Board of the university is the primary body responsible for student residence matters and by convention, the university has the following representation for each traditional hall of residence:
• Head of Hall (Hall Master)
• Senior Tutor
• President of the Junior Common Room
• That in breach of the age long, well established, and hallowed convention of the university. The three representations of Commonwealth Hall were not invited to the Residence Board meeting of the 26^th of October, 2022.
• That the fact of the failure to invite the statutory and conventional representations of Commonwealth Hall, the hall was unrepresented and was not heard as a principal party adversely affected by the policy decision.
• That the decision contained in exhibit G1 which is the basis of the policy to truncate our rights of residence in the Commonwealth Hall for the duration of our courses has created the invidious and unjust situation where I and the other applicants who do not have even the remotest connection to the so-called disturbances are now being punished without as much as even being accused much more heard on alleged wrong-doings that we know nothing about.
• That the issues tabled at the meeting on 26^th October 2022, the failure to invite our hall representatives and the gleefulness with which the university has trumped due process, good conscience, our right to be heard and the snatching away of our accrued rights of the residence of the hall suggest that the meeting of 26^th October 2022 was convened mala fides with a pre-conceived goal to victimize the hall and its residents.
• That I am advised and verily believe same to be true that the Defendant did not act in accordance with its own laws when it purportedly made the decision it is seeking to implement as its new residence policy.
• That I am also advised and verily believe same to be true that the decision to truncate the right of residence of continuing students of Commonwealth Hall was made in gross disregard of the Defendant’s own statutes and conventions and without due process.
• That the avowed intent of the Defendant is to implement the new residency policy and infringe on the accrued rights of the Plaintiffs and their colleagues.
• That I am further advised and verily believe same to be true that I can in the circumstances seek an order of interlocutory injunction to restrain the Defendant from implementing the new residency policy and also seek in the same application a mandatory order directed at the Defendants to remove those it has wrongfully placed in the hall in the implementation of the residence policy and for the status quo to be maintained pending the trial of the instant suit.

The motion was served on the Respondent on 17^th January 2023 at 12:50 p.m.  The return date for the motion was 7^th February 2023.  On 7^th February 2023, when the case came up for hearing, the Defendant/Respondent (hereinafter called the Respondent) had not filed any affidavit in opposition.

The Court granted the Respondent’s counsel leave to file affidavit in opposition if any by 2 pm on 8^th February 2023.

The Respondent filed its affidavit in opposition on 8^th February 2023 at 2:40 p.m.  I wish to quote the relevant paragraphs in this ruling:

• I am advised by Counsel and verily believe same to be true that the instant application for interlocutory injunction is frivolous, vexatious, incompetent and without merit and has no basis in law.
• That the said application is moot and dead upon arrival as the Respondent complied with and implemented the Respondent council’s policy on residence on December 28, 2022, prior to the filing of the instant application.
• I deny that the Respondent has implemented any decision of the University dated October 26^th, 2022. The said decisions which were recommendations of the Residency Board forwarded to the Academic Board of the Respondent, subsequently became the Respondent University Councils policy on the residency of all students which policy by the Respondent Council is sanctioned by law to implement amidst other rights and powers.

10.    I deny the deposition in paragraph 10 of the Applicants’ affidavit in support that the cost of residence at University of Ghana Enterprises Limited Hall is nearly thrice the cost for the traditional halls.

1. I deny paragraphs 11 and 12 of the Applicants affidavit in support and say that the residency of students of all the halls including Commonwealth Hall and Mensah Sarbah Hall terminated at the end of the academic year 2021/2022 as has been the policy of the Respondent University. As such, at the commencement of the academic year 2022/2023, and in the absence of an offer of allocation and or re-allocation of rooms to students for the academic year, no student could claim residency in any hall of the Respondent University. No student has a right of residence perse in a hall of residence in the sense that he/she is automatically to a room and a bed.
2. I deny paragraphs 13 and 14 of the Applicants’ affidavit in support and say that the University reserves and has always reserved the right to amend or change its policies including the residence policy. That the communication referred to in paragraph 13 was itself a change in residence policy at that time. The University reserved the right to change the policy as indicated in exhibit D.

17.   I deny paragraphs 18, 19 and 20 of the Applicants’ affidavit in support and says, no such hardships or inconveniences will be visited upon students as nearly all continuing students have accepted re-allocations of halls made to them by the Respondent and have paid for same, in any case, the Respondent has indicated its willingness to support all students who have financial challenges related to taking up the new residency.

18.    I deny paragraphs 23, 24 and 25 of the Applicants affidavit in support and say that by their own showing, Exhibit G was a communication requesting the recommendations of the residence board to be brought to the attention of the Academic board for consideration, clearly evidencing that the recommendations of the residency board were not final.

• The re-allocation of Commonwealth Hall and Mensah Sarbah halls to freshmen is a lawful residential policy of the Respondent Council made within the boundaries of the law and not a punitive measure meted against a targeted group.

25.    In response to paragraph 37 of the affidavit in support, I say that 3^rd party rights have already accrued in the halls as per the Applicants own showing, new students have already been allocated to the rooms in Commonwealth and Sarbah Halls and are already in actual occupation of the rooms. A complex web of interest has already been created.

• I am advised by counsel and believe same to be true that this Court may not consider the prayer of the Applicants in paragraph 38 of the Affidavit in support unless it has heard and considered the interest of the innocent students who are currently in occupation, who the Applicants pray that they be removed from their current accommodation. That to do so will not only be unfair but it will also be unjust.

28.   I deny paragraphs 40 and 41 of the affidavit in support and say that the status quo presently is the already allocated residency of Commonwealth and Mensah Sarbah halls to freshmen who have already paid and occupied these halls and the re-allocation of other halls of residence to continuing students including the applicants both done prior to the filing of the instant application.

• The grant of the instant application will adversely affect the Respondent as well as all students both freshmen and continuing students who have already been allocated rooms and taken residency in the various halls pursuant to the Residency policy of the Respondent.

The court decided to give its decision based on the documents filed in support and in opposition to this application.  Afterall, there is no law which says, a motion can only be decided when it has been moved formally.  Once the return date is due which in this case was 7^th February, 2023, the court can decide the application as per the documents filed.

See: REPUBLIC v COURT OF APPEAL; EX PARTE EASTERN ALLOY CO. LTD [2007-2008] 1 SCGLR 371

Injunction implies an order of a court directed at a party to do or refrain from doing a specific act which may be continuing or is yet to commence.

The Black’s Law Dictionary, 9^th Edition, with Bryan A. Garner as editor in chief defines injunction as follows: “A Court order commanding or preventing an action. It goes further to state that in a general sense, every order of a court which commands or forbids is an injunction; but in its accepted legal sense, an injunction is a judicial process or mandate operating in personam in which upon certain established principles of equity, a party is required to do or refrain from doing a particular thing”.

It further defines preliminary injunction as “a temporary injunction issued before or during trial to prevent an irreparable injury from occurring before the court has the chance to decide the case. It is also called interlocutory injunction”.

The Osborn Concise Law Dictionary, 8^th Edition defines Injunction as “an order or decree by which a party to an action is required to do or refrain from doing a particular thing”.

Injunction is a matter of judicial discretion by the court and not as of right. The Black’s Law Dictionary, 9^th Edition, defines judicial discretion as “the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law. A court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right”. The same judicial discretion is sometimes described as legal discretion.

In the exercise of judicial discretion, the 1992 Constitution of Ghana gives the parameters within which such powers are to be exercised. Article, 296 (a) and (b) of the 1992 Constitution provide that:

296 “Where in this Constitution or in any other law discretionary power is vested in any person or authority-

1. that discretionary power shall be deemed to imply a duty to be fair and candid;
2. the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall in accordance with due process of law”.

See: DJAN v YEBOAH-AFARI [2013] 62 GMJ 127 CA

Injunction under our civil jurisdiction in cases pending before the High Courts and the Circuit Courts are regulated by Order 25 or C.I.47.

Order 25 rule (1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) provides the procedure for dealing with interlocutory injunctions.

The order is as follows:

“25 (1) the Court may grant injunction by an interlocutory order in all cases in which it appears to the Court to be just and convenient to do so, and the order may be made either unconditionally or upon such terms and conditions as the Court considers just”.

Order 25 Rule (1) thus gives discretionary power to the court to grant injunction where it deems it just or convenient to do so.

Further, Order 25 Rule 1 (2) requires a party to an action to apply for the grant of injunction before or after trial of the action whether a claim for injunction was included in the party’s writ, counterclaim or third party notice.

Order 25 Rule 1 (3) requires an applicant or a party seeking an injunction to attach to the motion paper and the supporting affidavit, a Statement of Case containing full arguments and the legal authorities to be relied on.

Order 25 Rule 1 (4) enjoins a respondent who desires to oppose the application to file an affidavit in opposition as well as Statement of Case containing full argument and legal authorities to be relied on.

See: SRAHA v AGBOSU [2013] 63 GMJ 108 CA

The Applicants and the Respondent in this case have complied with all the provisions under Order 25 Rule 1(1), (2), (3) and (4) of C.I. 47.

I have already indicated in this ruling, that the grant or refusal of interlocutory injunction is within the discretion of the court. It is not a matter of right by a party but a discretionary order by the court.

See: AGYEI & ORS. v SIMILAO [2012] 1 SCGLR 127

Again, the law is settled that the court will always be guided by the following principles to determine whether to grant or refuse an application for interlocutory injunction.

1. Whether the Applicant has a legal or equitable right at law which the court must protect by maintaining the status quo ante until the final determination of the case.
2. Whether on the balance of convenience, the Applicant will suffer irreparable injury or greater harm which could not be adequately compensated in damages if the application is not granted.
3. Whether the applicant case is not frivolous nor vexatious.
4. Whether on the face of the affidavits and the exhibits, there is the need to maintain the status quo ante pending the determination on case.
5. Whether the application discloses a prima facie case, for the purposes of preserving the status quo or to hold the circumstances surrounding the matter in dispute in the action.
6. Whether there are serious questions of law to be tried at the hearing.
7. Whether it will be fair, just and or equitable to grant same.

See: VANDERPUYE v NARTEY [1977] 1 GLR 428 CA

OWUSU v OWUSU-ANSAH & ANOR [2007-2008] 2 SCGLR 870

METTLE v LANDS COMMISSION [2008] 1 GMJ 190 CA

BRAM-LARBI v THE REGISTRAR & 2 ORS [2010] 28 MLRG 148 CA

PETERSON v KUSI [2010] 26 GMJ 83 CA

CENTRACOR RESOURCES LIMITED v BOOHENE [1992-1993] 4 GBR 1512 CA

NANA BONSIE & ORS v AGYENIM BOATENG & 3 ORS [2012] 52 GMJ 206 CA

18^TH JULY LIMITED v YEHANS INTERNATIONAL LIMITED [2012] 1 SCGLR 167

Again, injunction can also be granted to prevent a party from not complying with a valid subsisting order of a court of competent jurisdiction.

See: MICHAEL ANKOMAH-NIMFAH v JAMES GYAKYE QUAYSON & OTHERS (NO.2) [2022] 176 GMJ 446 SC

The law recognizes that, there may be situations where an interlocutory application can dispose of the substantive matter where the justice of the case so demands. However, those glaring cases are limited. In those situations, the facts are normally undisputed. It is therefore trite law, that in interlocutory applications, adjudicators must avoid making definitive findings on disputed issues particularly where the facts are not only material but for some reasons obscure or highly contentious.

See: IN RE BOB KWAME & CO. LIMITED; GYINGYI v BERNARD AND ANOTHER [1989-1990] 1 GLR 87 CA  

At this stage, I am only seized with the affidavit evidence and the pleadings and not the oral evidence. However, it is both the pleadings and the oral evidence which make up a case.

My duty at this stage is to examine the substantive application in this case, the affidavit in opposition etc., as well as the exhibits attached. I will then consider whether the Applicants have a right at law or in equity and, whether their claim is not frivolous or vexatious, and should be protected until such time that the injunction order may be dissolved by the court.

See: NATIONAL LOTTERY AUTHORITY v AIRTEL GHANA [2011] 36 GMJ 190

The law is also settled, that even a person in possession of a property can be restrained by injunction from disposing such property.

See: IN RE YENDI SKIN AFFAIRS: YAKUBU II v ABDULAI [1984-1986] 2 GLR 231 SC

I have considered the pleadings, the affidavits, the Statement of Case as well as the annexures by both parties. I am satisfied that there are triable issues to be tried in the main case. For example;

1. Whether the Applicants ought to have appealed against the decision of the Respondent, dated 26^th October 2022 to the Appeal’s Board of the University of Ghana or were right in coming to court.
2. Whether the Applicants were heard before the 26^th October 2022 decision was taken by the Respondent’s Residency Board.
3. Whether the Applicants acquired equitable rights as resident students of Commonwealth Hall, and if so whether that right can be revoked unilaterally by the Respondent.

I am also satisfied, that the Applicants application is neither frivolous nor vexatious and raises serious questions of law for determination.

However, having considered the above factors, the next important factor to consider is balance of convenience. The question to pose is whether damages would be an adequate remedy if the application for injunction is granted or refused?

In the case of NDEBUGRE (NO.1) v THE ATTORNEY-GENERAL, AKER ASA & CHEMU POWER COMPANY LIMITED (NO.1) [2013-2014] 2 SCGLR 1134, the Supreme Court per Akamba JSC held at page 1138 as follows “it is a basic principle of injunction law, that prima facie, a court will not grant an injunction to restrain an actionable wrong for which damages are the proper remedy”.

The Supreme Court, again in the case of WELFORD QUARCOO v ATTORNEY-GENERAL & ANOR [2012] 1 SCGLR 259 per Date-Bah JSC in explaining balance of convenience held at page 260 that “the balance of convenience, of course, means weighing up the disadvantages of granting the relief against the disadvantages of not granting the relief. Where the relief sought relates, to a public law matter, particular care must be taken not to halt action presumptively for the public good, unless there are very cogent reasons to do so, and provided also that any subsequent nullification of the impugned act on omission cannot restore the status quo”.

See also, GHANA INDEPENDENT BROADCASTERS’ ASSOCIATION (NO.1) v ATTORNEY-GENERAL AND NATIONAL MEDIA COMMISSION (NO.1) [2017-2020] 1 SCGLR 498

RANSFORD FRANCE (NO.1) v ELECTORAL COMMISSION AND ATTORNEY-GENERAL [2012] 1 SCGLR 689

HARUNA IDDRISU & 2 ORS v ATTORNEY-GENERAL WRIT NO. J1/19/2022, DATED 4^TH MAY, 2022 SC

Coming back to the case before me, from exhibit B, the 5^th Applicant, and the other Applicants as they have averred in their affidavit in support were offered residential accommodation in Commonwealth Hall by the Respondent. 

There is no indication on exhibit ‘B’ that it was to last for a year.  Exhibit ‘B’ is coming from the Respondent.  It is on the letter heard of the Respondent.  There is no indication that it was forged or procured by the Applicants by recourse to fraud.

Exhibit B is an official record and therefore presumes to be authentic, genuine, and properly done under sections 37, 148 and 162 of the Evidence Act, 1975 (NRCD 323).

See: JOHN DRAMANI MAHAMA v NANA ADDO DANKWA AKUFO- ADDO [2021] 171 GMJ 473

BROBBEY & OTHERS v KWAKU [1995-1996] 1GLR 125 SC

DUPAUL WOOD TREATMENT & ANOTHER v ASARE [2005-2006] SCGLR 667

Again, per exhibit D, the Respondent informed the Applicants and others who were in residence that they would not lose their residency before they finish their courses.

It is trite law that when one gives a tacit assurance to another and the innocent party relies on it, the one who gave the promise will be estopped subsequently, by his conduct from denying the existence of the promise or the assurance given earlier to the innocent party. This type of estoppel has received statutory and case law blessings.  It is provided under Section 26 of the Evidence Act as follows:

“Except as otherwise provided by law, includes a rule of equity, when a party has, by his own statement, act, omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest in any proceedings between that  party or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest.”

See also, AFRIKANIA MISSION CHURCH v SEBA CONSTRUCTION LTD [2013] 59 GMJ 176 CA

AGO SAI & OTHERS v KPOBI TETTEH TSURU II [2010] SCGLR 762

NARTEY v MECHANICAL LLOYD ASSEMBLY PLANT LTD [1987-88] 2 GLR 314 SC

T.K.  SERBEH & CO LTD v MENSAH [2005-2006] SCGLR 341

OBENG & OTHERS v ASSEMBLIES OF GOD CHURCH, GHANA [2010] SCGLR 300

Furthermore, I am of the view that exhibits B and D have created some equitable rights on behalf of the Applicants as to their residential accommodation which was offered to them by the Respondent which must be protected.

Again, granted that the Respondent intends to create any right on behalf of fresh students who are to be at Commonwealth Hall, that right should not override the earlier equitable right obtained by the Applicants by virtue of exhibits B and D. 

The law is settled that when two equitable rights are created, the first in time must prevail. And as in this case, the right created or conferred on the Applicants for years must prevail over any right which is yet to be created or was created few weeks or months ago in favour of fresh students.

I am also of the view, that the anxiety, the trauma that will be caused to the Applicants who were in residence at Commonwealth Hall, University of Ghana if their residential status is changed contrary to exhibits B and D will be greater than those who are yet to take up residence or who are fresh students. 

As to whether the Respondent’s Residency Board resolution dated 26^th October 2022 and the letter referencing it dated 10^th November 2022 have any basis in law or not would be considered during the trial. 

However, in the meantime, considering all the exhibits or the annexures as well as the pleadings, I am of the humble view, that the inconvenience which would be caused to the Applicants and all continuing students of Commonwealth Hall, University of Ghana if the application is not granted would be greater than the inconvenience which would be caused to fresh students if the application is granted. 

Of course, equity and good conscience will even suffice that it would be inconvenient to dispossess one who is already in possession or who has been in possession for months or years than one who is yet to be in possession or who has been in possession for some few days or weeks.

I am of the considered view, that it will be fair and just to grant the application pending the determination of the case.

Consequently, I hereby restrain the Respondent, either by itself, or its officers, assigns, privies, agents, workmen or anybody working under the Respondent’s instructions from going ahead to implement the decision of the Respondent per its Residence Board emergency meeting, dated 26^th October 2022 against the Applicants and all continuing students of the Commonwealth Hall of the University of Ghana. 

The status quo as to the continuing students of Commonwealth Hall, should be maintained as it used to be before the meeting of the Residence Board of the Respondent, dated 26^th October 2022.

This order is to be in force until the final determination of the case. The effect is that the residential status of the continuing students of Commonwealth Hall University of Ghana should not be disturbed until the final determination of the case.

All the Applicants are to file one undertaking that if they lose the case, all of them will compensate the Respondent with an amount of GH¢30,000.00. The application therefore succeeds.  No order as to cost. 

 SGD.

FRANCIS OBIRI

 JUSTICE OF THE HIGH COURT      

See full ruling on the injunction:

THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE COMMERCIAL DIVISION “2”

HELD IN ACCRA ON THURSDAY THE 16^TH DAY OF MARCH, 2023

BEFORE HIS LORDSHIP FRANCIS OBIRI

–

RULING

I have read the documents filed in this application by the Respondents/Applicants for leave to cross examine the deponent in the contempt application.  I have also heard the submissions for and against the application by the lawyers for the parties. 

Under Order 38 rule 2(3) of C.I.47 upon which the application to cross examine the deponent to the contempt application is anchored, the court has discretion whether to grant it or not.

Secondly, it is trite law that a deponent to an affidavit in support of an application under Order 20 of C.I.47 must be able to disclose his source of information.  The deponent even need not be a party to the application.  The requirements as to the contents of affidavit or the capacity of a deponent to swear to an affidavit under Order 20 of C.I.47 is applicable to all applications.

Order 50 of C.I.47 which is on committal for contempt does not provide a different criterion as to who can depose to an affidavit in contempt proceedings.  And if the framers or the makers of C.I.47 wanted an application under Order 50 of C.I.47 to have different criteria, they would have stated so expressly.   That is why even a law clerk can depose to an affidavit on behalf of a client his firm represents.  The deponent only must disclose his source of information which he believes to be true.

See: 18^TH JULY LTD v YEHANS INTERNATIONAL LTD [2012] 1 SCGLR 167

What the law mandates a deponent to do is not to withhold material facts.

See: THE TRUST BANK LTD v G. K. APPIAH AND SONS LTD AND OTHERS [2011] 2 SCGLR 894

In this case, the deponent to the affidavit is one of the applicants and not even someone who is not a party in respect of the application.

Again, it is the law that an application belongs to the applicant and not the deponent to the affidavit.  Therefore, the deponent to an affidavit need not be one who has capacity to bring the application.

Consequently, in an application to invoke the jurisdiction of the court, the capacity of the deponent to the affidavit may not be necessary.  What is relevant is the capacity of the Applicant.

See: THE REPUBLIC v HIGH COURT (COMMERCIAL DIVISION) ACCRA, EX PARTE NANA OWUSU AFRIYIE AND ANOR (FIRST ATLANTIC BANK – INTERESTED PARTY) [2021] 172 GMJ 424 SC

Even in strict criminal cases, a deponent to an application need not be the party in the case.  The deponent must only disclose information based on what he knows to be true.  There is no law which says, if a party swears to an affidavit on his behalf and on behalf of another person, he should attach any document as evidence of consent from the other Applicant or person.

I am therefore of the view that the court will not honour the invitation extended to it by the Respondents Applicants to grant their application under Order 38 of C.I.47.  The application fails and same is dismissed.  The case is adjourned to 3^rd April, 2023 at 12:00 noon

                                 SGD.

                           FRANCIS OBIRI

                  JUSTICE OF THE HIGH COURT      

Source: Ghana News