Arguing that former president David Granger is a necessary party to the two election petitions filed by the APNU+AFC which he heads, senior counsel Douglas Mendes says that the late service of the requisite documents on Granger is fatal to both petitions and they must therefore be thrown out.
Attorney Basil Williams SC who represents Granger, however, refutes that he is key to the proceedings and points to a notice recently issued by the former president informing that he does not intend to oppose the petitions and will furthermore abide by whatever ruling the court makes.
Mendes, however, says that the notice does not suffice and cannot automatically render Granger unnecessary to the proceedings.
These were the submissions made by the two counsel yesterday before acting Chief Justice Roxane George-Wiltshire SC who is currently hearing preliminary arguments in the petitions.
The Opposition Coalition has filed two petitions challenging the results of the March 2nd General and Regional elections which saw the People’s Progressive Party/Civic (PPP/C) winning the seat of government.
Mendes who represents PPP General Secretary Bharrat Jagdeo had previously argued that because Jagdeo and Granger were not served on time in accordance with prescribed rules, the petitions may themselves amount to a nullity.
He has since said that Jagdeo has in fact been properly served but that Granger was not.
Attorney General Anil Nandlall SC shares similar sentiments and called also for the petitions to be struck out for want of service on Granger.
Referencing Section 4 (2) of the National Assembly (Validity of Elections) Act, Mendes during his presentation yesterday said that Granger as representative of the list of candidates presented for the elections by the APNU+AFC is a key party and cannot oust himself.
Mendes said that the representative of a list is a respondent to any election petition if any contention in the petition conflicts with the interest of the names of the persons on that list; and that that representative is therefore a “proper and necessary” party to the proceedings.
He said that even if the petitioners are able to point to a specific relief which does not conflict with the interest of the persons on the list represented by Granger, it is insufficient as they must show that there is no contention in the petition which conflicts with those interests for them to succeed in their positon that Granger is not a necessary party.
Mendes said that Section 4 (2) focuses on the contentions in the petition and is not limited to the reliefs sought, but rather to the grounds on which the reliefs are being sought.
He then referenced Section 27 of the Act under which Granger issued the notice of his intention not to oppose the petition, stating that it speaks presumptively to respondents who are proper and necessary parties.
He said that while such a respondent may indicate that they are not opposing the petition, because they perhaps agree with a relief being sought or with the outcome being sought by the petitioner, they are nevertheless a necessary and proper party.
Mendes’ contention is that issuing a notice of intention not-to-oppose under Section 27 does not render you an unnecessary party to the proceedings. The test for this he said, is satisfied by Section 4 (2) alone.
Mendes argues that Granger’s reliance on the notice under Section 27 is therefore null.
The lawyer said that there are a plethora of conflicts in both petitions which clash with the interest of the persons on the APNU+AFC list, referencing what the main political opposition calls anomalies and irregularities by which they contend that polls were plagued and should be vitiated.
Against this background Mendes emphasized that Granger as representative of such a list of persons whose interest is so affected, is a necessary party to the petitions and begged the court to so find.
Mendes contends that the effect of the notice issued by Granger is limited to the description in Section 27 (2) to the extent that he shall not be allowed to appear or in any way act as a party in the petition but does not render him an unnecessary party.
Mendes then turned his attention to the issue of service. He said that on the assumption that the court finds Granger to be a key party, the issue of service then becomes important. He argues that this was effected out of time and is therefore fatal to the petition.
The lawyer said that the affidavits of service all show that Granger was not served on time and though the petitioners tried desperately to show otherwise, they have still not been able to so substantiate.
He said that while the petitioners sought to contend that there was an error on the affidavit which reflected a later date than the service was actually done, there was absolutely no attempt to bring that to the court’s attention, nor had there been any effort to correct the date discrepancy.
“Service within time has not been properly proved,” Mendes argued for which he said the court would be justified in dismissing the petitions for breach of the rules.
In his response to Mendes’ contention that Granger is a proper party to the petitions, Williams took the position that it was not his client who filed the petitions and so whether he was served on time or not is a determination to be made by the court.
He said that all Granger has done is to seek recourse in accordance with electoral laws by communicating his intention not to oppose. Williams said that the exercise of this right under Section 27 of the Act has nothing to do with the provisions under Section 4 (2).
As far as Williams is concerned, any respondent who has been brought to the court is entitled to exercise the right under Section 27 even as he stressed that his client does not wish to oppose the petition.
He said that in availing this right, his client under Section 27 (2) of the Act would simply not be participating in any way nor would he have to be served submissions and the like in the proceedings.
To the petitioners’ contention that Granger is not a necessary party to the proceedings, the Chief Justice sought to get Williams’ position on this issue and pointed out that he was dodging the question.
He sought to again reiterate that it was not Granger who had served the petitions but merely appears having been served or “purportedly” served and that his client will abide by whatever decision the court makes.
While Nandlall echoed the sentiments expressed by Mendes, he observed further that the fact that both petitions seek in the main to have Granger declared president is inconsistent with the petitioners’ very contention that the elections were not free and fair.
On this point he said that that particular relief being sought is a non sequitur as a matter of law while adding that if the court finds that the elections have to be vitiated by unconstitutionality “then the entire election goes.”
“Out of nothing cometh nothing,” he said.
The virtual hearing continues this morning at 9:30 when attorneys Roysdale Forde and Mayo Robertson who represent the petitioners in the first and second petitions respectively will make their submissions.
In the first petition, the Opposition—through petitioners Claudette Thorne and Heston Bostwick – wants the court to determine among other things, questions regarding whether the elections have been lawfully conducted or whether the results have been, or may have been affected by any unlawful act or omission and in consequence thereof, whether the seats in the National Assembly have been lawfully allocated.
In the second petition, petitioners Monica Thomas and Brennan Nurse are contending that the elections were unlawfully conducted and/or that the results, (if lawfully conducted), were affected or might have been affected by unlawful acts or omissions; but nonetheless argue that from those polls it is Granger who should be declared the duly-elected President of Guyana.
They are seeking to have the court nullify the outcome and to declare President Irfaan Ali to be illegally holding office.
The results of a national recount of all ballots cast showed that it was the PPP/C which had won the elections with 233,336 votes over the 217,920 which the coalition managed to secure.
