The High Court does not have jurisdiction to hear the challenge mounted by former Attorney General Anil Nandlall, over the validity of charges levelled against him for the alleged theft of a quantity of Law Reports while he was in office, attorney Leslyn Noble argued on Thursday.
At a hearing before acting Chief Justice Roxane George-Wiltshire on Thursday afternoon, Noble who represents Superintendent Trevor Reid—the first-named respondent in Nandlall’s action, contended that contrary to advancements made by Nandlall’s attorneys, the court cannot hear the matter.
She submitted that since Nandlall’s application stems from an ongoing trial before the Magistrates Court, the High Court would not have jurisdiction to hear the matter as the case before the lower court is at an interlocutory stage.
The proper course, she argued, would be for the matter before the lower court to first conclude, before the Supreme Court can entertain any application for judicial review.
Early last December, lawyers for the former attorney general moved to the High Court to have the larceny charge levelled against him by the state thrown out, while also asking for a stay of the pending Magistrates Court proceedings, until a decision is made.
In citing Magistrate Fabayo Azore for numerous errors made during his trial thus far, Nandlall’s attorneys argue that the magistrate erred in law when she overruled his submission that the offence of “Larceny by a Bailee contrary to Section 165 of the Criminal Law Offences Act, Chapter 8:01” is not known to the Laws of Guyana and thereafter called on him to lead his defence.
The state is, however, contending that the charge was properly instituted.
Through his attorneys, Nandlall, contends that the decision made by the magistrate is contrary to, and in violation of Articles 40, 144(4) and 149(d) of the Constitution of Guyana, unlawful, illegal, without and in excess of jurisdiction, erroneous in law, unreasonable, null, void and of no effect.
He notes that while the particulars of the charge allege that between the 18th day of May, 2015 and the 29th day of May, 2015, that he was the Attorney General and Minister of Legal Affairs and in that capacity he was a bailee of 14 Law Reports of the Commonwealth, in fact, during this period, he did not hold either position and therefore could not have been the bailee.
Magistrate Azore is listed as the second-named respondent in Nandlall’s action and is being represented by the attorney general’s chambers.
Referencing case law authority on which she relied, Noble said it would be highly unsatisfactory for the High Court to intervene in the proceedings at this stage, while the matter is still ongoing before the Magistrates Court.
Additionally, she said that the High Court does not have the benefit of the evidence and facts of the case which the lower court would have been privileged to scrutinise during the criminal trial before it.
She noted that at this stage, it would be prudent if the Supreme Court did not intervene until after the full completion of the trial before Magistrate Azore. Against this backdrop, she said that the magistrate would have already, based on the evidence before her, established a prima facie case against the applicant when she called on him to lead his defence, and so the matter should be made to continue to its end.
“The application before this court is not subjected to judicial review,” she told the chief justice.
According to Noble, Nandlall has failed to specifically plead or prove that there has been any breach of his constitutional rights. She argued too that the applicant being called upon to lead a defence could not be construed as being adverse to him or amounting to a breach of his rights.
Questioning the injustice Nandlall complains about, Noble said that all he has done is to merely speak of a likelihood of injustice but has not pleaded or proved any violation of rights meted out to him.
Attorney Devindra Kissoon – one of a battery of Nandlall’s attorneys – argued however, that steps can be taken before hand to prevent a breach which is anticipated.
In response, Noble said that if the applicant were to be convicted at the conclusion of the trial, he has a right to appeal. “Merely asking him to lead his defence does not amount to a breach of any constitutional right,” she emphasised
With submissions on the point of jurisdiction having been completed, Justice George-Wiltshire has said that she will deliver her ruling on that issue, on January 21st.
Nandlall has asked the court for a stay of the Magistrates Court proceedings against him. This has, however, not yet been dealt with by the chief justice. The criminal matter, meanwhile, is scheduled to continue before Magistrate Azore on January 25th.
In his affidavit, Nandlall reiterates that in 2003, he commenced subscribing to Lexis Nexis, the publishers of the Law Reports of the Commonwealth and that during discussions with former President Donald Ramotar, immediately prior to being appointed Attorney General, “I requested that, as a condition of my service, the Government of Guyana take over the payment arrangements I had with Lexis Nexis (U.K.) …during my tenure as the Minister of Legal Affairs and Attorney-General.”
Nandlall states that after Ramotar agreed to this condition, he took up the position as Attorney General. When he demitted office, he said that payment arrangement ended.
He said that he learnt through the press of a special audit into the said Law Reports and on 16th November, 2015, he wrote the Auditor General after being contacted for a response in respect of the matter.
Ramotar, he said, also wrote the Auditor General on the matter.
Nandlall pointed out that although the Auditor General never implicated him in any wrongdoing in the 2012, 2013, 2014 and 2015 Auditor General’s reports, he was charged on April 27th, 2017.
According to him, his attorneys presented “copious” written submissions in support of the contentions made and the magistrate in a “one sentenced ruling” overruled those submissions and called upon him to lead his defence.
In the fixed date application, Nandlall’s lawyers are asking for a declaration that the charge is an offence unknown to the law, rendering it unlawful, illegal, null, void and of no effect and as such the magistrate has no jurisdiction to hear or continue to hear and determine it; an Order or Writ of Certiorari quashing the charge; a declaration that the magistrate committed an error of law in ruling that the prosecution established a case against him; a declaration that the magistrate committed an error of law by overruling the applicant’s no-case submission in respect of the offence and three Orders or Writs of Certiorari quashing the decisions made.
