…Robertson tells Court
…says Jagdeo, AG cannot ignore Court Orders
By Svetlana Marshall
Attorney-at-Law Mayo Robertson, on Tuesday, vehemently opposed, what he described as a breach of the Orders of the High Court, and an attempt to have an early hearing on whether former President, David Granger, a representative of the A Partnership for National Unity + Alliance For Change (APNU+AFC), is a necessary party to the Election Petition Cases 88 and 99.
Tuesday’s virtual hearing, before Chief Justice (ag) Roxane George, was intended to address an application and submissions by Trinidadian Senior Counsel Douglas Mendes that his client, Bharrat Jagdeo – the fourth named respondent – was not properly served, but the application was not filed.
“Counsel for the Fourth Named Respondent was given limited permission to appear amicus before this Court and that permission was with respect to the filing on the issue of service and he chose not to do so,” Robertson told the Court.
He said that instead of addressing the issue of service in the cases of Monica Thomas and Brennan Nurse vs. the Chief Elections Officer and others (No. 88); and Claudette Thorne and Heston Bostwick vs. the Chief Elections Officer and others (No. 99) as provided for in the Case Management Conference (CMC) Order, Jagdeo, through his attorney, and the Attorney General Anil Nandlall, sought to bring to fore an issue, which the Court clearly indicated would be ventilated via oral arguments on November 30 and December 1, 2020.
The Attorney submitted that it was not for Mendes and the Attorney General to disregard the Orders of the Court, and file applications to address a totally different issue, outside of that which was permitted. He posited that such amounts to a breach of the Court’s Order.
He said in the very Order, issued on October 22, the Court set aside separate days for oral arguments to be made on many of the issues prematurely raised by Jagdeo and Nandlall. “These issues relate to service on the second named respondent [David Granger] and whether the second named respondent is a proper party to Petitions 88 and 99 pursuant to Section 4 (2) and in light of Section 27 (2) of the National Assembly (Validity of Elections) Act. Those issues are set to be ventilated in oral submissions on November 30 and December 1, 2020,” Robertson posited.
He submitted that the issues raised by both Mendes and the Attorney General, as was raised by the Court during the CMC on October 22, ought to be addressed next week, as initially ordered by the Court.
Mendes, while telling the Chief Justice (ag), that the decision on whether to proceed with the oral arguments is entirely up to her, reminded the Court that while appearing amicus during the CMC, he indicated that there was a possibility that an application to challenge the proceedings on the basis of non-service may not be made.
“I made it very clear that there is a possibility that the application would not be filed,” Senior Counsel Mendes said.
Having opted not to file an application on the issue of service on the fourth named respondent, the Trinidadian Senior Counsel said he used the opportunity to address the issue of service on the second named respondent – David Granger. But he made it clear that it was never his intention to breach the Orders of the Court.
“There was no intention to violate any Order of the Court; we didn’t understand your Order to say that no other application could be filed. We did understand the order granting us leave to file on the specific ground we had mentioned on the 22nd [October] but we did not understand it to prohibit us from filing any other application. Your Honour, if that was your intention, I humbly apologize for filing an application without your leave,” Mendes told Justice George.
The Chief Justice, in agreeing with Mendes, said the issue with respect to service on the fourth named respondent was provisional.
Initially, the Chief Justice had indicated that there was nothing stopping the Court from hearing oral arguments on whether Granger – the second named respondent – is a necessary party to the Petitions, adding that written submissions were already made and responses given.
But Robertson told the Court that such a move would place the petitioners at a disadvantage. Pointing to the CMC order, Robertson reminded the Court that the respondents in both petitions have until the end of today (November 24) to respond in writing to the submissions made by the petitioners.
Mendes and Attorney General, in agreeing with Robertson in part, told the Court that their submissions would be made later on Tuesday. Mendes, made it clear, however, that he intends to argue that Granger is a necessary party to the Petitions.
“My understanding of the law but I may be wrong, is that if the party, who was not served on time, is not a necessary party, then the court may, simply strike out that party to the proceedings and not strike out the entire petition. On the other hand, if the person, who was not served, in accordance with the Act and the rules is a necessary party, then the petition must be struck out,” Mendes reasoned.
Petitioners Thorne and Bostwick, through their battery of lawyers, have argued that Granger is not a necessary party but misjoinder.
