On January 18th acting Chief Justice Roxane George-Wiltshire SC will deliver her ruling on whether the two election petitions filed by A Part-nership for National Unity + Alliance for Change (APNU+AFC) will be thrown out or not.
The judge made the announcement following the conclusion of arguments yesterday morning.
Arguing on behalf of the petitioners in both matters, Trinidadian senior counsel John Jeremie said that contrary to arguments made by the attorney general and attorney for PPP/C General Secretary Bharrat Jagdeo, service of the petition was effected within time and so the petitions should not be dismissed.
He contended, too, that former president David Granger is not a necessary party to the petitions and so they cannot be thrown out even if service was effected on him out of time—though Jeremie’s contention is that Granger was served on time.
The main 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.
Jagdeo’s lawyer Douglas Mendes SC of Trinidad has argued that because the second petition was served late on Granger whom he contends is a key party to the proceedings in both matters, both petitions ought to be thrown own.
He has also taken issue with the manner of service on Chief Election Officer (CEO) Keith Lowenfiled who is also a respondent in the matters.
Attorney General (AG) Anil Nandlall shares Mendes’ contentions.
During his submissions yesterday, Jeremie argued that both Granger and Lowenfield were served within the prescribed time while crediting what he described as the “confusion” with the date of service to clerical errors.
Against this background he urged the court to rely on the affidavit of service on which he said the correct dates have been annotated as the evidence of service, and not the return-of-service document.
This prompted the Chief Justice to enquire from Jeremie whether it was not standard procedure to examine all the relevant documents as a whole—that is, both the affidavit of service and accompanying exhibits such as the return-of-service.
Jeremie advanced that in accordance with Rule 9 (5) of the National Assembly (Validity of Elections) Rules, the law requires the affidavit to be used as evidence of service and not the document acknowledging service.
Jeremie said that in accordance with the Rules, the affidavit of service requires the manner and time of service to be stated, and that the “un-contradicted” evidence before the court shows that this was complied with.
He said that the affidavit of service is the statutory document required to establish evidence of service and it is the contents therein on which the court must rely and not any other exhibit/document accompanying it.
Jeremie submitted that if there is a contradiction as regards the evidence, then the court must treat the exhibits as being subjected to what is contained in the actual affidavit.
The Chief Justice observed that on important issues such as those connected with an elections petition, accuracy of the dates recorded is of paramount importance. Jeremie concurred, but pointed out that human errors are sometimes made.
Also making submissions yesterday was attorney Mayo Robertson—one of the battery of lawyers representing the petitioners in the second petition.
He sought to add to Jeremie’s arguments that Lowenfield had been properly served.
Robertson said that in relation to the CEO, it is proved that service had been effected on him within the required five-day period and so there is no issue of the effect of defective service on Lowenfield.
The lawyer said that the issue is whether the person would have been served within the five days and that in this case Lowenfield was so served. He said that what the court ought to be concerned with is the fact that service was carried out, and not the form it took in relation to that effected on the CEO.
Also making a presentation was the Attorney General who took issue with the petitioners’ non-explanation as to why they listed Granger as a respondent in their action when their contention now is that he is not key to the cases.
Nandlall contends that the petitioners cannot now just simply say that Granger was wrongly named.
On this point he argued that having made the former president a respondent, counsel for the petitioners ought to have been aware of the ramifications of that and what is required by Section 4 (2) of the National Assembly (Validity of Elections) Act.
On this issue of service, Nandlall said that having examined the record presented by the petitioners, it contains several inconsistencies which they (the respondents) are entitled to note, even as he argued that Jeremie has not advanced satisfactory explanations worthy of merit regarding the contentions raised on service.
According to Nandlall, even the subsequent affidavits filed by the petitioners in their attempt to “explain away” the inconsistencies, are themselves fraught with inconsistencies. He said that based upon their record presented, it is defective and contravenes the Rules.
The AG said that the petitioners have failed dreadfully to explain away the deficiencies.
During his presentation on Monday, Mendes 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.
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.
Mendes’ argument is that because Granger is a necessary party to the two petitions 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 stating further that they will abide by whatever ruling the court makes.
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.
