Mason (Vanessa) v The University of the West Indies

• Jurisdiction: Jamaica
• Judge: ANDERSON, J, HARRISON, J.A. , SMITH, J.A. , COOKE, J.A. , HARRIS, J.A.
• Judgment Date: 02 July 2009
• Neutral Citation: JM 2009 CA 4
• Judgment citation (vLex): [2009] 7 JJC 0202
• Date: 02 July 2009
• Court: Court of Appeal (Jamaica)
• Docket Number: CLAIM NO 2008 HCV 05999

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO 2008 HCV 05999

BETWEEN

VANESSA MASON

CLAIMANT

AND

UNIVERSITY OF THE WEST INDIES

DEFENDANT

BEFORE THE HONOURABLE MR. JUSTICE ROY ANDERSON

INJUNCTIONS - Student - Application for injunction to prevent student being excluded from university hall of residence - Whether justiciable in court - Whether jurisdiction of University Visitor exclusive - Whether jurisdiction of Court concurrent with University Visitor - Whether injunction mandatory or prohibitory - Whether in any event damages would be an adequate remedy

ANDERSON, J

In this action, the Claimant Vanessa Mason, a national of Trinidad and Tobago and a student of the University of the West Indies (the "UWI") seeks certain orders. The orders are set out below:

1 That the expulsion of the Claimant from Mary Seacole Hall, University of the West Indies, Mona Campus, Kingston 7 in the parish of Saint Andrew be suspended until the Claimant's claim is determined by this honourable court:

2 That the Defendant be restrained from expelling the Claimant from Mary Seacole Hall, University of the West Indies, Mona Campus, Kingston 7 in the parish of Saint Andrew;

3 That the Claimant be allowed to reside at Mary Seacole Hall, University of the West Indies, Mona Campus, Kingston 7 in the parish of Saint Andrew without interference or harassment from the Defendant their employees, servants or agents;

4 That the Defendant by their employees, servant, or agents be restrained from removing, damaging or interfering with the Claimant's property currently in situ at Mary Seacole Hall, University of the West Indies, Mona Campus, Kingston 7 in the Parish of Saint Andrew;

5 That there be such further and other relief as this Honourable Court may deem fit in all the circumstances;

6 Costs.

The Claimant in her affidavit dated the 20th day of December 2008 and filed on December 22, 2009, sets out the circumstances in which she is seeking redress. Her affidavit catalogues a series of events commencing with what appears to have been an altercation between the Claimant and another student and attempts by the university authorities to find a resolution. These attempts which I need not rehearse here, culminated in the Claimant receiving a letter dated the 5 ^th of December from Dr. Reynolds of the UVI advising her that she would be required to vacate the accommodation she was provided with in Mary Seacole Hall ("the hall") the hall of residence in which she had hitherto been a resident, in essence, counsel for the Claimant has sought to argue that this is a simple case of a breach of the contract which the Claimant had entered into with the University to be provided accommodation during the academic year 2008 to 2009. This application therefore was an effort to restrain the University from carrying out its attempt to exclude Miss Mason from accommodation in the hall.

The Claimant's notice of Application came before me of January 6, 2009 and I adjourned it for a full hearing on Monday, January 19, 2009, both because of the inadequacy of the tune available and the fact that the Defendant's counsel indicated that there was an authority which was dispositive of the issue that should be brought to the court. In preparation for that hearing the Claimant and the Defendant University were asked to file and serve submissions so that I would have had the benefit of these submissions before the hearing. I his was done.

By the time of the hearing on the 19 ^th , the Claimant had filed her Claim form and Particulars of Claim which set out the specific nature of her claim as well as the reliefs sought. In the particulars of claim the Claimant averred that she had entered into a contract with the Defendant for it to provide her with accommodation for the period August 2008 to May 2009 in the hall at the UWI. She alleges that she paid all the relevant hall fees and was allowed into occupation. On the 5 ^th December, 2008 the Claimant received a letter from the University authorities informing her that she should vacate the accommodations provided in the hall. She alleges that this is in breach of her contract in that the UWI failed to provide the accommodation as provided for in the contract and that in contravention of clause 19 of the contract of accommodation, it had effected that termination and had given no reason for the termination.

It is useful to recall here that although the Claimant says she was not given any reason for determining her residence in the Mary Seacole Hall in the letter of December 5, 2008, nevertheless, her affidavit which is before the court provides considerable information as to the purported basis of the termination. Of course, for the purposes of this judgment. I offer no opinion as the justification or otherwise of the basis of that decision.

In her "Particulars of Loss", the Claimant claims

Further, the reliefs which she seeks are stated to be, inter alia.

It should be noted en passant, that it is common ground that the Claimant has been out of the jurisdiction from before Christmas in 2008 and will not return to the jurisdiction until January 22, 2009.

Counsel for the Defendant University Mr. Kelman, submitted on preliminary point that the Claimant ought not to be allowed to bring this suit against the University because the Charter of the University provided for resolution of disputes between or among members of the University by the Visitor, as provided for by the Charter. Accordingly, the jurisdiction of the court was excluded in matters of this kind involving the UWI's domestic matters.

By way of clarification, it should be noted that the Claimant's counsel in her submission specifically disavowed any attempts here by the Claimant to seek judicial review of the decision to terminate the Claimant's accommodation or the processes by which any such decision had been arrived at. She submitted that the Claimant's cause of action "does not concern the disciplinary process embarked upon by the Defendant, or the status of such matters, or whether they are subjected to the court's power to look at those issues upon an application for judicial review. Further, the Claimant's cause of action does not rely on the status of the disciplinary process as a basis for terminating the contract. The Claimant's cause of action rests on whether the letter of December 5, 2008, can terminate the contract and nothing more . (Emphasis mine)

Just for purposes of completeness, the letter of December 5, 2008, is set out below:

Miss Vanessa Mason

Mary Seacole Hall

The University of the West Indies

Mona Campus

Dear Miss Mason.

He: Expulsion from Mary Seacole Hall

Documents pertaining to the captioned matter were referred to the Campus Legal Officer for advice, the Legal Officer stated that he has examined the allegations in your letter and also the points raised by Miss Fara Brown, Attorney-at-Law, who wrote to me on your behalf.

I note your expressions of breach of specific aspects of the Charter of Hall Principles and Responsibilities. I also note that you did not comply with Appendix B of the said Charter which states that a student in disagreement with the decision of a Disciplinary Committee may, within seven days of die decision "appeal in writing to the Director of Student Services."

After the matter was directed to me, an appointment was set for you to meet with me on October 10 at 8:30 a.m. to deal with the matter. You did not keep the appointment. You came to see me only after an e-mail dated October 14, 2008 from the Deputy Principal, addressed to you indicated "the Director of Student Services and Development should be the person to raise the matter with before coming to me." He suggested in the e-mail that you should see me on that day or the following day, as I would not be available to see you on Thursday and Friday.

The discussion with you was not completed when you came to see me on Wednesday, October 15, due to a previous appointment that I had, I asked you to put your concerns in writing and gave you an appointment for October, 23 at 1:30 p.m. to discuss the concerns. Again, you did not keep the appointment, nor submit the written concerns.

Subsequently to the foregoing, in an effort to bring closure to the matter, you were invited to attend a meeting with the Hall Disciplinary Committee for the matter to be reheard. You did not attend, but was represented by Ms. Fara Brown, Attorney-At-Law who stated that she was attending the meeting in the capacity as "a friend". It was reported that the meeting had to be aborted on account of unacceptable behaviour displayed by Ms. Brown.

Based on the advice of the Campus Legal Officer with respect to the above matters, it is agreed that you vacate the Hall as of Monday, December 22, 2008, pending further investigation of this matter. You are required to comply with this directive.

Kindly acknowledge receipt of this correspondence by signing the attached copy.

Yours sincerely,

Thelora Reynolds, PhD

Director, Student Services and Development

In submitting that the court should uphold the preliminary objection and decline to hear the matter, Mr. Kelman cited the Charter of the U.W.I. which appointed Her Majesty Queen Elizabeth II as "Visitor". Clause 6 of the Charter is in the following terms"

We, Our Heirs and Successors, shall be and remain the Visitor and Visitors of the University and in the exercise of the Visitorial authority from time to time and in such manner as We or They shall think fit may inspect the University, its buildings, laboratories and general work, equipment, and also the examination, teaching and other activities of the University by such person or persons as may be appointed in that behalf.

The Visitor, in his submission, is the arbiter of all internal university matters, The Charter provides at clause 3 that: "The University shall be both a teaching and examining body and shall, subject to this our...