AG says court has no jurisdiction to hear application

Mabaruma Mayor, 5 NDC Chairmen battle

The Attorney General Chambers on Friday filed affidavits in answer to the court action challenging the appointments of the Mayor of the new Mabaruma municipality and five Neighbourhood Democratic Councils (NDC).

Two weeks ago, People’s Progressive Party (PPP) Executive Secretary Zulficar Mustapha filed six ‘Writs of Certiorari, Prohibition and Mandamus’ at the High Court after Minister of Communities Ronald Bulkan stepped in to select five NDC chairmen and a mayor for Mabaruma following ties in the local government elections of chairmen and a mayor.
The court actions seek to nullify the selection of Kervin Crawford as Chairman (and Gail Thomas as Vice Chairman) of the Gibralter-Fyrish NDC; Audrey Thomas as Chairman of the Industry-Plaisance NDC; Peter Livingstone as Chairman (and Royan Junior Thomas as Vice Chairman) of the Malgre Tout-Meer Zorgen; Carol Nurse as Chairman (and Wilbert Vhypius as Vice Chairman) of the Woodlands-Bel Air; Gershon Clarke as Chairman of the Woodlands-Farm; and the selection of Rupert Henry Smith as Mayor (and Astrille Gammell as Deputy Mayor) of the Municipality of Mabaruma.
The matters were heard by Justice Diana Insanally during which she granted a series of Orders requested including an Order or Rule Nisi of Certiorari quashing the decision of Minister of Communities Ronald Bulkan to select the above persons.
The orders were granted on the grounds that it is contrary to and in violation of Municipal and District Councils Act Chapter 28:01 and the Local Government Act Chapter 28:02, and is in excess of and without jurisdiction, made in bad faith, is unreasonable, arbitrary, capricious, based upon irrelevant and improper considerations, mala fide, malicious, vindictive, unlawful, ultra vires, null, void and of no legal effect.
However, in the Affidavit in Answer filed by Permanent Secretary of the Ministry of Communities, Emil McGarrell, it was stated that the Court had no jurisdiction hearing the matter since it was not filed in the proper form.
“I am advised by my Attorney-At-Law and verily believe that this Honourable Court has no jurisdiction to hear this application which is by Notice of Motion and not by the prescribed form of Elections Petition,” he stated.
The Permanent Secretary supported his claim by making reference to Section 28 of Chapter 28:02, which incorporates the provisions of the Local Authorities (Elections) Act, Chapter 28:03. This piece of legislation outlines that “the proper procedure to determine whether a Chairman has been validly elected is the same as that of Councillor which is by way of Election Petition to the High Court”. He also cited Section 13(9) of Chapter 28:01 of the Local Authority Act, which says any questions on the validity of the election of a Mayor or Deputy Mayor shall be determined by the Court, and Section 146 of Part IV of the Local Authorities (Election) Act Chapter 28:03 (2), which states that every such reference shall be by an Elections Petition. According to McGarrell in the legal documents, in an application of Prerogative Writ the applicant must disclose all material facts to enable the Court to determine whether to grant the Orders Nisi being requested. He noted that in relation to Clarke, Nurse (as well as Vyphius) and Crawford (as well as Thomas), Mustapha failed to disclose to the court that they had already commenced performing the functions of Chairman (as well as Deputy Chair). While he further failed to disclose that Livingstone (as well as Thomas), Audrey Thomas and Smith (as well as Gammell) had already taken their respective Oaths of Office prior to the granting of the Orders Nisi.
The Permanent Secretary went on to state that even if the court finds that Bulkan acted ultra vires the provisions of the Local Government Act Chapter 28:02 in these appointments, it does not prevent these persons from performing functions in their respective offices de facto.
McGarrell added too that even if the court were to find that the Overseers and Town Clerk acted ultra vires the provisions of Section 13 in summoning a second meeting of the Councillors to resolve the equality of votes of the first meeting, then “they acted on the ground of necessity”.