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Former President David Granger, representative of the A Partnership for National Unity + Alliance For Change (APNU+AFC), is not a necessary party to Election Petition 88, and as such, it ought not be nullified or dismissed, Senior Counsel Roysdale Forde has argued.
Senior Counsel Forde, who is part of a battery of lawyers representing the petitioners – Claudette Thorne and Heston Bostwick, made his written submissions ahead of today’s (Tuesday, November 24) hearing, which is intended to address preliminary issues arising out of Petitions 88 and 99. Both petitions seek to vitiate the results of Guyana’s 2020 General and Regional Elections.
It was Chief Justice (ag) Roxane George-Wiltshire, who, during last month’s Case Management Conference (CMC), had expressed concerns that reliefs sought in both Petitions 88 and 99 appear to be in conflict with Section 4 (2) of the National Assembly (Validity of Elections) Act, which states that a respondent is a person representing a list whose interest conflicts with the petitioners. Therefore, the issue at hand, is whether Granger’s interest conflicts with the petitioners. The former president is the second named respondent in the case Claudette Thorne and Heston Bostwick v the Chief Elections Officer, Keith Lowenfield and others (Petition 88).
In his submission, Senior Counsel told the Court that Section 4 (2) of the National Assembly (Validity of Elections) has not been breached.
“It is submitted that the joinder of the Second Named Respondent as well as other Respondents who are representatives of the List of Candidates that were allocated any seats in the National Assembly are not necessary and or proper parties to the Election Petition. Their joinder amounts to a misjoinder. It is further submitted that a misjoinder does not constitute a contravention of Section 4 (2) of the National Assembly (Validity of Elections) Act, Cap. 1:04 and consequently cannot render the Election Petition liable to be dismissed,” Forde argued.
He further submitted that since Granger is not a proper party to the Election Petition, no issue arises with respect to Section 27 (2) of the National Assembly (Validity of Elections) Act.
In support of his argument, the Senior Counsel cited the cases of Eusi Kwayana et al v. The Chief Elections Officer et al (1986) and Winston Payne v. Roy Hammond (1986). Referencing to the judgement made by Chief Justice Kenneth George, as he then was, Forde pointed out that the judge ruled that the Act requires that the representative of a list of candidates be made a respondent if the interest of any person named in that list conflicts with any contention in the election petition.
“…I construe the word ‘conflict’ in the section to mean not only a clash, but also an incompatibility with the interest of such person,” C.J George had ruled. Senior Counsel Forde told the Court that Granger is not a Representative of such a List of Candidates for Election.
Further, the Senior Counsel pointed out that Section 4 (2) of the National Assembly (Validity of Elections) Act sets out two conditions for joinder of parties to an Election Petition. “These are: (1) As a Respondent, the representative of such List of Candidates for election as comprises the names of persons with those interests arising out of the election any contention in the election petition conflicts; and (2) If the Petition complains of any act or omission on the part of the Commission, or any member thereof, or any such person as is mentioned in Article 162 (1) (b) of the Constitution, the Chief Election Officer shall, for the purpose of this Act, be deemed to be a Respondent and, if it questions the qualification of any person to be elected to the National Assembly, he or she shall, for the said purposes, be deemed a Respondent,” Forde pointed out.
Further, he cited the Indian case of K. Kamaraja Nadar v. Kunju Thevar and others (1958), in which the Court concluded that Petitions were liable to be dismissed as the Petitioners failed to join as Respondents, Candidates, who the Court found were necessary parties as required by Section 82 of the Indian Representation of the People Act.
Iterating that in the case of Petition 88, Granger is not a necessary party, Forde referenced to the case of Ajit Singh v State of Bihar, in which, the Court ruled that a misjoinder of parties cannot be equated with non-joinder of parties. The case of Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore & others (1964) was also cited.
“Having regard to the above cited authority, it is clear that even if the Second Named Respondent ought not be named as a Respondent in this Election Petition, it does not amount to a nullity of the petition as a whole and or render it liable to be dismissed. It follows, therefore, even if the Second Named Respondent should not be so named it is open to the court to strike out his name or make any necessary amendments to give effect to the provision under the Act,” the Senior Counsel told the Court.
The respondents in the case have up until today (November 24) to submit their response. In this particular case, oral arguments will be heard on November 30 and December 1.
However, today, the acting Chief Justice, will hear arguments with respect to an application for the dismissal of Election Petition 99 by Vice President, Bharrat Jagdeo, the fourth named respondent.
Senior Counsel Rex McKay, who forms part of a battery of lawyers representing the petitioners in the case – Monica Thomas and Brenna Nurse vs the Chief Elections Officer, Keith Lowenfield and others- in his written submission, said Jagdeo’s application is deeply flawed.