…ruling tentatively set for next Monday
Kim Kyte-Thomas, the attorney representing the Guyana Elections Commission (GECOM) in the case filed by the Chief Election Officer (CEO) Keith Lowenfield, made a last minute application on Wednesday for the Commission to layover an amended motion, which seeks the dismissal of Lowenfield.
In early July, Lowenfield filed legal proceedings against the Elections Commission, challenging a motion tabled by Election Commissioner Sase Gunraj to have him dismissed with immediate effect, and in the absence of fair hearing.
When the case Keith Lowenfield-v-the Guyana Elections Commission came up in the High Court on Wednesday before Justice Jo Ann Barlow, Kyte-Thomas, at the last minute, sought the Court’s permission to layover an amended motion, which was reportedly submitted to the Guyana Elections Commission.
The initially motion sought to have Lowenfield dismissed with immediate effect, however, according to Kyte-Thomas, the amended motion is now seeking to have the Chief Elections Officer “dismissed with notice.”
“Circumstances may have overtaken some of what the applicant’s fears are and I am wondering if, out of an abundance of caution you would permit me to file a supplementary affidavit just to lay over that amended motion because the applicant as I understand it and even as I sit here, and out to fairness to all involved, the applicant’s fear is in relation to summary dismissal and as we have pleaded, there is now an amended motion, which really involves Clause 9 of the Contract, which is no longer summary dismissal but really which speaks to dismissal with notice,” Kyte-Thomas told the High Court during a virtual hearing.
However, Nigel Hughes – the attorney representing Lowenfield – sought an undertaking from Kyte-Thomas that GECOM would not proceed with the summary dismissal of Lowenfield. He told the Court that based on his information, summary dismissal is still included in the amended motion.
“The amended motion, still includes summary dismissal and it hasn’t been laid over with GECOM as yet from my instructions but even if it were…if it still includes summary dismissal then I believe your honours will still be engaged next week in the delivery of a decision,” Hughes told the Court.
The High Court Judge, in response, pointed out that though Kyte-Thomas alluded to the amended motion in the Affidavit in Answer filed, she did not find it necessary to affix the document. Nonetheless, Justice Barlow permitted Kyte-Thomas to submit a supplementary affidavit to exhibit the amended motion.
Justice Barlow, throughout the hearing, made it clear that the Court will only rely on material before it.
“The court wishes to make clear that it will only act on material that is before it, not material that may have come to its attention by some tangential means. So all I am concerned with is the motion that is exhibited to the applicant’s affidavit in support of his Fixed Date Application, and in that affidavit certain issues are raised, and in that motion certain issues are raised,” the judge had earlier said.
After filing his FDA, Lowenfield filed an application for interlocutory injunction restraining GECOM from proceeding with any further hearing of the Motion for his dismissal, in which Gunraj and Shadick seek to participate in the deliberations on their own complaint.
During Wednesday’s hearing, Hughes clarified that the issue is not whether or not the Commission can dismiss an employ but rather that the CEO is entitled to a fair hearing.
Justice Barlow had also asked whether the case brought by Lowenfield was premature. In response, Hughes said: “Madam, this is entirely a contractual issue, and a party to a contract where there is an anticipated breach can actually apply to the court for the court’s intervention to prevent the breach where it is anticipated and it is our contention that based on the statements of the Commission or its members, that it intended at the time of this application to pursue a particular route.”
Kyte-Thomas also indicated to the Court that GECOM would be utilizing its Affidavit in Answer filed as its Affidavit in Defence in the substantive matter. Submissions are due on Thursdays, and the Court has set August 9, 2021 for ruling.
