Chief Justice (ag) Roxane George yesterday struck out an application by attorney Anil Nandlall, for mandatory orders compelling Cabinet including the President to resign on grounds that the application was an affront to the principle of precedent, and was wholly misconceived, vexatious, and an absolute abuse of process.
Nandlall was also ordered to pay to the State “substantial” costs in the sum of $500,000.
Nandlall had filed the application for orders on August 26, in which he claimed that though the issue of Cabinet’s resignation arose at the Caribbean Court of Justice (CCJ), it was not specifically considered through submissions and hearings, and that the CCJ omitted as opposed to refusing to order Cabinet’s resignation. The State, in its application, had said that the CCJ considered the issue and did not order Cabinet’s resignation, instead finding that it was to operate on a different footing. For this reason, the State asked that Nandlall’s application should be struck out on the grounds that it was an abuse of process and an affront to the principle of precedent.
The substantial costs awarded against Nandall are likely due to the fact that he brought the application despite his involvement in the no confidence appeal before the CCJ, and the fact that he had a front row seat to its determination.
The basis of the Chief Justice’s decision was that the issue raised by Nandlall was indeed a live one before the CCJ, which already pronounced on the matter in its June 18, 2019 decision upholding the December 21, 2018 motion of no confidence against the government. The Chief Justice said that a court of first instance, which she sat as, is “bound by the pronouncements and decisions of the CCJ pursuant to the doctrine of stare decisis or doctrine of precedent”.
Consequently Nandlall’s application was declared as wholly misconceived, vexatious, and an absolute abuse of process.
In his application, Nandlall had asked for an alternative order compelling government to give effect to the resignation of Cabinet, including the President, assuming that the resignation took effect by the operation of law upon the successful no-confidence vote on December 21, 2018, and for a conservatory order that Cabinet be stopped from meeting.
Delivering her judgment, the Chief Justice noted that the CCJ said that “…in mandating that the Government shall remain in office notwithstanding its defeat and the resignation of the President and Cabinet, Article 106 envisages that the tenure in office of the Cabinet, including the President, after the Gover-nment’s defeat, in on a different footing from that which existed prior to the no confidence vote.”
This language used by the CCJ, the Chief Justice said, made it “…evident that the effect of the NCM was the immediate resignation of Cabinet, but the Court clearly stated that notwithstanding this, the tenure in office of the Cabinet, including the President, as well as Government as a whole, `is on a different footing’ – is that of a caretaker mode consequent to the passage of the said NCM.”
The Chief Justice further said that in these circumstances “there could not have been, and cannot be any requirement for a mandatory order compelling Cabinet including the Government to give effect to the resignation of the Cabinet, including the President which occurred by the operation of law consequent on the NCM.”
Justice George said that “…given that the issue was a live one before the CCJ, a court of first instance sitting as I am, cannot say that the CCJ omitted to make an order which a party or counsel for a party thinks the Court should have made, moreso one that was actually sought; or that it somehow fell into error in its pronouncements or in its considerations of the effect thereof as the applicant has urged.”
The Chief Justice said that “the CCJ did not omit to pronounce on the issue as has been contended.” Instead, she said, the CCJ emphasised that it was making an important point in stating that the Cabinet including the President, and the government are to act as a caretaker or interim government.
Justice George said that as she said in a previous case, the pronouncements of the CCJ must be read dispassionately and objectively,” adding that “while the applicant may be dissatisfied with the conclusion of the CCJ, he cannot seek to overturn or reinterpret it by filing an application as is.”
The decision was welcomed by Basil Williams, Attorney General and Minister of Legal Affairs, who was present for the decision. Nandlall expressed an intention to appeal the decision as soon as possible. Nandlall said that he intends to take the matter all the way to the CCJ if necessary.
