…after lawyer was forced to withdraw challenge on technicality
By Svetlana Marshall
Chief Justice (ag) Roxane George, on Tuesday, upheld a Notice of Application by the Attorney General Anil Nandlall for the dismissal of Election Petition 99. Attorney-at-Law Mayo Robertson, who had appeared virtually on behalf of the petitioners in the case – Monica Thomas and Brenna Nurse vs the Chief Elections Officer, Keith Lowenfield and others – had pleaded with the Court to dismiss the Notice of Application, but the Chief Justice (ag) objected.
“I will not strike out the application,” Chief Justice George said, noting that while the Attorney General did not have to file an application, there was no harm done. The majority of the issues identified in Nandlall’s application had been raised by the Court during the Case Management Conference on October 22.
In his Notice of Application, Nandlall, submitted that the First and Second Named Respondents in Petition 99 were served in breach of Section 8 of the National Assembly (Validity of Elections) Act and Rule 9 of the National Assembly (Validity of Elections) Rules. He said such violations jointly and severally amounts to non-service, and in the circumstances, the Court cannot proceed to hear the petition.
But Robertson, in his oral submissions, said the application for the dismissal of Election Petition 99, ought to be struck out for two primary reasons – the Attorney General was not granted permission to file the application and secondly, the Notice of Application, being a creature of the Civil Procedure Rules (CPR), was not contemplated by the National Assembly (Validity of Elections) Act or Rules.
“The court did not grant the Attorney General permission to file an application. The order was specific, the Attorney General was granted permission to file submissions; so he decided, without the permission of the court, to file an application,” Robertson argued.
Further, he said while Rule 21 (B) stipulates that all interlocutory matters be heard and dispose of by a judge in chamber, the concept of a judge in chamber is unknown to the new CPR regime. Robertson emphasised that Election Petitions are governed by the National Assembly (Validity of Elections) Act and Rules.
In response, the Attorney General, while admitting that he exceeded the leave granted by the Court, said he had received permission from the Court to lay over submissions on the issue of defective service of the petition. Further, he said there was nothing extraneous in his application that is alien to the record of the court.
“The purpose of the intervention of the Attorney General was to assist the Court. If I’m to file an application to buttress the submission, in my effort to assist the court, how can that be inimical to the interest of justice? How can that be prejudicial to the interest of any respondent? All I am trying to do is to assist the court,” the Attorney General argued.
Weighing in on the issue of procedure, Nandlall said there are areas that the National Assembly (Validity of Elections) Rules are silent on such as leave to issue the petition and application for extension of time to serve.
Nandlall said like him, the petitioners had relied on the procedures outlined in the CPR to solicit leave from the Court to issue the petition. “I have no difficulty if the Court is prepared to rule that I have approached the court by the wrong procedure, and that’s fatal, then certainly one of the petition will go, well actually all of them will have to go,” he told the Court. He said Robertson cannot approbate and reprobate.
But while Robertson attempted to argue that his use of the CPR is entirely differently, the Chief Justice (ag) cautioned him that he cannot approbate and reprobate.
“But, if it is that his application has to go then your foundational applications, so to speak, would also have to go,” CJ told Robertson, while adding that his submission is untenable.
To salvage his case, Robertson told the Court that he would not pursue the application on the basis of the non-compliance of the rules but rather on the basis that Nandlall’s application was not authorised by the Court. But Chief Justice George-Wiltshire reminded him, that he too did not comply with the strict orders of the Court.
“Similarly, in your submissions, you were not supposed to attach documents which were already filed but you did… What goes for the goose will have to go for the gander, and you have produced what I considered to be voluminous submissions, by adding documents that have already been filed in the court,” the Chief Justice (ag) said.
On that note, the Chief Justice (ag) announced that the Notice of Application filed by the Attorney General will not be struck out.
