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….Chief Justice says Granger was a proper party and ought to have been served on time
By Svetlana Marshall
Chief Justice, Roxane George on Monday dismissed a key elections petition application that detailed evidence of voter fraud at the March, 2020 elections here on the grounds that one of the parties was not served with notice of the court action on time.
George nullified Petition 99 on the citing that there was noncompliance of service on the Second Named Respondent – David Granger – who she concluded was a proper and necessary party to the petition.
“Realising that the gravity of their obvious error, and having it pointed out by the Court on October 22, 2020, the petitioners have sought to correct this error and have failed miserably. The evidence produced is manifestly unreliable and cannot be acted on to prove that the Second Respondent was served on September 18, 2020,” the Chief Justice said as she handed down her ruling.
Petition 99 – Monica Thomas and Brennan Nurse vs. the Chief Elections Officer and others – sought to vitiate the results of the 2020 General and Regional Elections on the grounds that the Guyana Elections Commission (GECOM) failed to conduct free and fair elections in keeping with its constitutional requirements. The petitioners, through their battery of lawyers led by Senior Counsel Rex McKay and Attorney-at-Law Mayo Robertson, had intended to prove that the election was marred by widespread irregularities and cases of electoral fraud but during the Case Management Conference (CMC) in October, 2020, the issue of defective service surfaced.
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.
However, the Chief Justice, in her ruling, stated that from the onset all required documents should have been served on or before September 21, 2020, and as such, September 25, 2020 was outside of the statutory five days period for service. Further, she ruled that the Supplementary Affidavit ought not to have been filed without permission from the Court. She was keen on pointing out, that the Supplementary Affidavit correcting the date was only filed after the issue was raised by the Court, and subsequent concerns by the Fourth Named Respondent Bharrat Jagdeo and an application by the Attorney General Anil Nandlall for the Petition to be dismissed on the basis of defective service, and represents a breach of Rule 9 (5).
“These affidavits cannot be relied on as proof of the required time of service on the second respondent. Even if accepted, late filing of these supplementary affidavits would not be in compliance with the provisions of Rule 9 (5) regarding the timeliness with which such affidavits are to be filed,” the Chief Justice stated.
Further, she pointed to other irregularities within the supplementary affidavits, and made it clear that she had difficulty accepting the narrative of events detailed by the second petitioner with regards to the date and time of service.
A NECESSARY PARTY
Having determined that there was noncompliance of service, the Chief Justice set out to determine whether Granger was a proper and necessary party to the petition. During the preliminary hearings, Thomas and Nurse, through their lawyers, had argued that Granger was not a necessary party to the Election Petition, but Jagdeo’s Attorney, Senior Counsel Douglas Mendes had argued that regardless of whether or not Granger opposes the petition, he was a necessary party.
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.
On Monday, the Chief Justice upheld the arguments that Granger was a necessary respondent, explaining that while the petition may not have conflicted with Granger’s interest as the Presidential Candidate of the A Partnership for National Unity + Alliance For Change (APNU+FC), it conflicted with the interest of those on the list for which he represents, and who would have taken up seats in the National Assembly and the Regional Democratic Councils (RDCs).
“I agree with the submissions on behalf of the Fourth and Eleventh Respondents and the Attorney General that what is required is a determination that no contention is in conflict with the interest of the list which the Second Respondent represents,” the Chief Justice said.
She said to Section 4 (2) of the National Assembly (Validity of Elections) Act stipulates that parties, who contest an election must be given an opportunity to be heard, and failure to serve them properly would constitute a breach that would result in the nullification of a petition.
“Importantly, the elections are not restricted to National Election, which determines the presidency and the allocation of seats in the National Assembly but apply to regional representation in the National Assembly as well as Regional Elections. Indeed to exclude the representative of a list, which commands 31 of 65 seats in the National Assembly and a List, which has representatives on Regional Democratic Councils as declared in the Official Gazette of August 20, 2020, would be to deny voice to representatives of a large number of electors,” the Chief Justice reasoned, as she nullified the petition.
However, she ruled that while Petition 99 did not comply with the requirements for service, Petition 88 did, and as such the Court will proceed to hear it. “The procedure of filing and service for this Petition (88) was complied with,” she posited.
In that Petition – Claudette Thorne and Heston Bostwick vs. Chief Elections Officer and others – the petitioners intend to provide that not only was Order No. 60 invalid but also that the Law – Section 22 of the Elections Laws (Amendment) Act on which it was created, is unconstitutional and conflicts with the Representation of the People Act.