…says mix-up in date of service on Granger unsatisfactory
By Svetlana Marshall
Trinidad and Tobago’s Senior Counsel Douglas Mendes, while arguing that former President David Granger, a representative of the Partnership for National Unit + Alliance For Change (APNU+AFC) David Granger, is a necessary party to Election Petition 99, made a case, in the High Court, to have the Petition thrown out on the basis of defective service.
During his virtual presentation on Monday before Chief Justice (ag) Roxane George, Mendes, who is representing the Bharrat Jagdeo – the 4th Named Respondent, said the explanation proffered by the Petitioners – Monica Thomas and Brennan Nurse, is inconsistent, and fails to adequately prove that service was effected on Granger – the 2nd Named Respondent – on time.
The National Assembly (Validity of Elections) Act and Rules mandate that Respondents, in Election Petitions, be served within five days of the Presentation of the Petition, however, the initial petition documents indicated that Granger was served on September 25, 2020, outside of the stipulated timeframe. However, in a Supplementary Affidavit, Nurse told the Court that the APNU+AFC Representative was actually served on September 18, 2020.
In his building his case, Mendes pointed out that a total of three Affidavits filed indicated that Nurse effected service on Granger on September 25, 2020.
He said though the issue of defective service was first raised by the Chief Justice (ag) on October 22, 2020, it was not after several weeks that Nurse submitted to the Court via a supplementary affidavit that an incorrect date was stated.
“It was not until we filed an Application asking that the Petition be dismissed on the ground that there was late service, and we filed that on the 29th [October] and another 12 days elapsed, before an affidavit was filed seeking to correct the date of service,” Mendes told the Court.
He questioned why it took the petitioners approximately three weeks to inform the Court that the incorrect date was stated with regards to service on the 2nd Respondent.
“Now, if there was service on the 18th [September] then one would have expected that the Affidavit of Service that she was preparing at that point in time, would been an Affidavit of Service that said, that ‘I served on the 18th [September],’” Mendes reasoned.
In her Supplementary Affidavit, Nurse explained that while she had served Granger on September 18, it was not until September 24, 2020, while preparing her Affidavit of Service that she realized that he had not signed an Acknowledgment. According to her, on the very day, she returned to Granger and requested that he sign the acknowledgement.
“…upon returning to David Granger, the Second Named Respondent, I saw him sign and date the acknowledgments…but unfortunately [I] did not pay attention to the date placed on the acknowledgment by the Second Named Respondent,” Nurse stated. Nurse said had she paid keen attention, she would have realized that Granger had signed the incorrect date.
But Mendes submitted that the explanation offered to the Court is unsatisfactory, and as such, the petition should be dismissed.
However, Nurse and Thomas, through their battery of lawyers, had argued that there was nothing inconsistent. “The Fourth Named Respondent’s suggestion that there is some inconsistency between the Petitioners’ averment in their Affidavit of Service that they effected service, and that the Return of Service document by the person who physically hand delivered the Petition, is disingenuous, and fails to appreciate the meaning of the term “effected service” mentioned in Rule 9 (5). To effect service means to accomplish service,” the team of lawyers argued in their written submission.
NECESSARY PARTY
Further, while Thomas and Nurse, through their lawyers, have argued that Granger is not a necessary party to the Election Petition, Mendes told the Court that he is, regardless of whether he decides to oppose the Petition.
Referencing to Section 4 (2) of the National Assembly (Validity of Elections) Act, Mendes told the Court that contentions outlined in the Petition, which seeks to vitiate the 2020 Elections, conflict with the interest of the names of persons on the list for which Granger represents.
“So it matters not, that there be relief, which might favour, the persons on the list. It matters not that there are contentions in the Elections Petitions that might not conflict with the interest of the persons on the list. As long as there is a contention, the word is any contention, as long there is any contention in an election petition, which conflicts with the interest of persons on the list, arising out of the election, then the representative of the list, is a proper and indeed a necessary party to the proceedings,” he argued.
Attorney General Anil Nandlall, who had filed a Notice of Application for the dismissal of the Petition on the basis of late service, had put forward similar arguments on Monday during his virtual appearance. The case will continue on Tuesday, during which Nurse and Thomas’ lawyers will may oral submissions.
