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Anil Nandlall

Attorney General Anil Nandlall SC

November 20 ,2020

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In his submissions calling on the court to strike out the election petition filed by the main APNU+AFC Opposition contending that the March 2nd elections were unlawfully conducted, Attorney General Anil Nandlall SC is arguing that service of this petition had not been properly effected.

The Coalition has filed two petitions challenging the results of the March 2nd General and Regional elections which saw the People’s Progressive Party/ Civic (PPP/C) winning the seat of government.

Nandlall’s submissions are in relation to the second petition filed by Monica Thomas and Brennan Nurse who are contending that the elections were unlawfully conducted and/or that the results, (if lawfully conducted), were affected or might have been affected by unlawful acts or omissions.

Preliminary hearings on the issue of service in both petitions are set for next Tuesday before acting Chief Justice Roxane George-Wiltshire SC.

Senior Counsel Douglas Mendes who represents now-President Irfaan Ali and Vice President Bharrat Jagdeo—who are among the respondents in the petitions, had raised at a case management conference last month, the preliminary issue that because his client Jagdeo was not served on time in accordance with prescribed rules, the petitions may themselves amount to a nullity.

In his submissions, the AG who is also listed as a respondent adopts Mendes’ position that service had not been effected in accordance with law.

Nandlall argues that petition two was served contrary to Section 8 of the National Assembly (Validity of Elections) Act (NAVEA) and Rule 9 of the National Assembly (Validity of Elections) Rules (NAVER) in so far as there is no evidence in respect of the time the petition was served upon the several respondents in the matter.

On the issue of whether service had been properly effected, the AG submits that according to Section 8 of the NAVEA respondents are to be served with the notice of the presentation of the petition, and of the nature of the security or proposed security, and a copy of the petition with supporting affidavit.

He then goes on to state that on the manner of service, Rule 9(l) of the NAVER imposes on the petitioners the statutory obligation to effect service within five days after the presentation of the petition.

He said that with the second petition having been filed on September 15th, it should have been served on all respondents five days thereafter, while noting that the petitioners failed to comply with the laws.

Noting Nurse’s affidavit which he said deposed that service was effected on former President David Granger—also a respondent—on 25th September, Nandlall underscored that this service was effected four days outside the statutorily prescribed period in respect of the second petition.

The AG submits that in those circumstances, since the petitioners failed to personally serve Granger in compliance with the stipulated law, their petition ought to be dismissed. 

Authorities

Nandlall said that his submission is in keeping with authorities which demonstrate that election petition jurisdiction and the principles of law related thereto are sui generis, in that the jurisdiction is considered peculiar and special and the principles of law, and procedural rules and regulations attendant thereto are treated, interpreted and applied with a degree of rigidity which distinguishes its jurisprudence from any other.

The AG said that a reason for this is the need to have election disputes resolved with dispatch so that the composition of Government and Parliament can be known and be allowed to function, at the earliest.

Referencing case law also, the AG said that the petitioners’ failure to serve the petition documents on Granger of the APNU+AFC within the time prescribed by the NAVER “was fatal to the petition, and that as a consequence, the petition ought to be dismissed.

Nandlall said that on the issue of the special jurisdiction, history is replete with examples where courts have nullified election petitions for failure to comply with service provisions.

Again citing case law authority, the AG said that the failure of the petitioners to serve all of the petition documents upon the Chief Election Officer, who is also listed as a respondent, is also fatal to the petition and must consequently be dismissed.

Nandlall submits that a condition precedent for proceeding with petition two was compliance with section 8 and Rule 9; while stating that the satisfaction of such a condition was necessary to invoke the court’s jurisdiction to proceed.

He then argues that consequently, the petitioners’ failure to comply with the law as to service means that they have failed to satisfy a critical condition, and in those circumstances, the court cannot proceed to hear the petition.

The AG stressed that service provisions in election petition laws are mandatory and are supported by case law which he cited.

He said, too, that no power is given to the court to extend time for the filing of an affidavit of service under Rule 9 and that therefore, Section 4l of the Interpretation and General Clauses Act would have no application and cannot be called in aid by the petitioner.

According to Nandlall, whether the Rule was mandatory or discretionary, service was effected late and no application was made to extend time to serve the petition documents on Granger. As such, he said that the jurisdiction of the court is affected, “so that it cannot proceed with and must therefore dismiss” the petition.

He then adds that the failure to serve the petition documents on the Chief Election Officer Keith Lowenfield and Granger was ipso facto fatal to the Application.

Thomas and Nurse are being represented by attorney Mayo Robertson.

The Coalition filed two petitions challenging the results of the March 2nd General and Regional elections which saw the People’s Progressive Party/ Civic (PPP/C) winning the seat of government.

The results of a national recount of all ballots cast showed that it was the PPP/C which had won the elections with 233,336 votes over the 217,920 which the coalition managed to secure.

In the first petition, the Opposition—through petitioners Claudette Thorne and Heston Bostwick – wants the court to determine among other things, questions regarding whether the elections have been lawfully conducted or whether the results have been, or may have been affected by any unlawful act or omission and in consequence thereof, whether the seats in the National Assembly have been lawfully allocated.

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