@Former Member posted:@ Django, can you show us evidence if that court case against Budhoo. I cannot find same.
A F C loses petition battle for seat at last elections
http://guyanachronicle.com/201...at-at-last-elections
Feb. 17 2010
Dismissed because of non-compliance of technical requirements
PETITIONER Walter Melville of the Alliance for Change (AFC), who had petitioned the Court alleging among other things, that his party was robbed of the Linden seat, lost his court battle on a technical ground yesterday.
Agreeing with Attorney-at-Law, Mr. Anil Nandlall, for Mr. Donald Ramoutar, representative of the People’s Progressive Party/Civic, one of the six respondents, the Acting Chief Justice found that there was non-compliance to the technical requirements which the court found to be mandatory and fatal.
In the High Court of the Supreme Court of Judicature, the Petitioner questioned an election to the National Assembly under the National Assembly (validity of elections) Act Chapter 104.
The Elections were held on August 28, 2006.
Replying to submissions made for and on behalf of the Petitioner, Lawyer Anil Nandlall said, “In the oral submissions I previously made in these proceedings, I emphasized that when the High Court is dealing with an election petition, it is exercising a special jurisdiction. I submitted that in the exercise of this special jurisdiction, the court is not possessed of the inherent and residuary power and discretion with which it is endowed when it exercises its common law or equitable jurisdiction.
The Petitioner’s submissions contain a detailed discussion on whether the provisions of the National Assembly (Validity of Elections) Act Chap. 104 (as they pertain to elections petition) are mandatory or directory.
Referring to another case, Mr. Nandlall went on to submit, “The fact that no evidence has been heard does not affect the general principle. The court in the present case did not refuse jurisdiction, it decided in its peculiar jurisdiction that the petitions were defective. As a result, the petitions were dismissed. A dismissal based on a procedural matter is nonetheless a decision in an election petition, even where the matter has not proceeded to the hearing of evidence”
On the question of service, Mr. Nandlall had submitted, “ It is respectfully submitted that not only was there non-service of the notice of presentation of the election petition and notice of the nature of the proposed security, the election petition was served outside of the time prescribed for service thereof as provided for by rule 9 (1) of the National Assembly (Validity of Elections) Rules, further no affidavit of Service has been filed stating the time and manner of service as required by rule 9 (5) of the said rules
“From the court’s flyleaf, the election petition was presented on the 6th November, 2006, and served on the 23rd day of November 2006, as per the Marshal’s return of service, that is, outside of the five days period prescribed.
“As I have submitted earlier, non-compliance with these statutory requirements, though formal in nature, are fatal in respect of elections petition.
“In conclusion, having regard to the several non-compliances which afflict this petition, I respectfully submit that the petition is incurably bad and I respectfully urge this Court to dismiss the same with costs.”
After the dismissal of the petition for causes similarly requested by Mr. Nandlall, Attorney-at-Law Mr. Stephen Fraser gave notice of Appeal.
AFC election petition case begins anew
Counsel for Ramotar alleges procedural flaws
The long-delayed Alliance For Change (AFC) election petition case over a Region 10 parliamentary seat came up for hearing before Chief Justice (ag) Ian Chang yesterday after sitting undetermined in the High Court for three years.
Challenging the AFC on what he argued was its failure to meet certain preconditions in the filing of the petition, attorney Anil Nandlall, said the party flouted a number of procedural requirements and called on the court to declare the petition a nullity and or alternatively, strike it out.
The AFC petition had been originally filed in 2006 following the general elections. Chief Justice Chang recently set a date for hearing and indicated a readiness to have the matter determined.
Justice Chang yesterday questioned whether Nandlall’s preliminary points on procedural flaws speak to the validity of the petition or the court’s jurisdiction. But the attorney said that he was outlining the breaches to point to non-compliance with the rules and hence invalidity.
Nandlall, who has entered an appearance for PPP General Secretary Donald Ramotar [the representative on the party list of candidates], raised the issue of procedural breaches in his preliminary submissions and argued extensively that the AFC’s petition lacks legality. Ramotar was present in court yesterday.
Nandlall argued that requirements as set out in the National Assembly Validity of Elections Act Chapter 1:04 and specific appended rules which were cited had not been followed. The petition was filed outside of the period stipulated, counsel said, arguing it fell short by one day. He contended that the party also failed to serve a notice of presentation of petition on the respondent Ramotar as well as a notice of security for costs. No affidavit of service of the petition was filed, Nandlall said, adding “none has been filed onto today”. He continued, “What may appear to be trivial procedural requirements actually carry fatal consequences for the petition”.
Further, Nandlall argued that the specific petition before Justice Chang invoked a special jurisdiction of the court as expressly created by Article 163 of the Constitution. He said that arguments may be raised about the breaches having no effect on the essential issues of the petition, but contended that in its special jurisdiction the court ought to consider the impact of such breaches.
Senior Counsel Ashton Chase, who is appearing for GECOM, was expected to submit his preliminary objections yesterday, but instead he informed the court through written correspondence of his unavoidable absence. AFC attorneys led by Stephen Fraser are expected to respond following Chase’s submissions.
It would be the second time that the High Court is hearing the AFC’s election petition. The case was initially heard by then Chief Justice Carl Singh but no decision was handed down, and later became tangled up in the backlog of High Court cases. The case file also went missing earlier this year and Justice Chang had called on the AFC to reconstruct the file for fresh proceedings to begin – the party agreed but the file was later found.
AFC member Walter Melville filed the petition on behalf of the party concerning the Region Ten parliamentary seat shortly after the 2006 general elections.
The AFC has said publicly there had been no determination of the Region Ten seat following the 2006 elections though it possessed certified statements of poll showing that the party had won the seat.
Party leader Raphael Trotman said the party had won more votes than the People’s Progressive Party/Civic in Region Ten. He added that the seat should have therefore been assigned to the AFC.
Trotman noted that the Guyana Elections Commission (GECOM) made an announcement that the PPP/C had won the seat following the elections and that Prime Minister Samuel Hinds was named as the elected PPP/C representative for the seat.
He said too that Chairman of GECOM, Dr Steve Surujbally then acknowledged that there was a miscalculation. The AFC filed its election petition soon after when it was made known that GECOM could not legally change any announcements that it had publicized, and that the result could only be ordered changed in a court of law.