Election petitions’ fate to be known in January 2021

…as APNU/AFC asks court to ignore “imperfections” in service

By Jarryl Bryan

Arguments in the election petitions’ case continued on Tuesday, with lawyers for petitioners Monica Thomas and Brennan Nurse urging acting Chief Justice Roxane George to overlook the deficiencies in the service of the second respondent and thus, spare their petition from being tossed out.

Taking the lead in this regard was Trinidadian Senior Counsel John Jeremie, who urged the High Court to disregard the date on the acknowledgement of service and focus on the date on the affidavit.
Based on the acknowledgement of service, former President David Granger, who is the second named respondent, was served on September 25, 10 days after petition 99 of 2020 was filed on September 15 and five days outside of the timeframe mandated by the National Assembly Validity of Elections Act. But the affidavit has Granger being served on September 18, which Jeremie insisted was the correct date.

“I propose to look at evidence before you. Not to inference. Not to suggestion. Not to evidence given from the Bar table. But to the evidence which is before this court. The fourth respondent (Vice President Bharrat Jagdeo, represented by Senior Counsel Douglas Mendes) alleges that acknowledgement of service reflects one thing, but that the body of the affidavit reflects another.”
“The affidavit is the evidence. The acknowledgement of service is not evidence. The acknowledgement is not what the law requires to be served. What the law requires to be served under rule 95 is an affidavit of service… that is complied with,” Jeremie informed the High Court.

Jeremie admitted that there are issues with the date of service, something he referred to as “imperfection”. However, he chalked this up to a mistake and urged the court to look past the contradictory dates.
“I accept on the face of it, that there is in respect of the acknowledgement of service, some confusion as to who actually handed over the documents. The proponents have clearly stated that they went as a team (to do service).”
While Jeremie accepted that there was an error in writing the date, he could not say, when asked by Chief Justice George, who made the error. The Chief Justice also pointed out that if there is an incorrect date, it would usually be the day before and not after. Jeremie admitted that this “may seem a bit strange”, but maintained this should not be a basis for throwing out the petition.

No explanation
Meanwhile, Senior Counsel Mendes noted that the petitioners’ efforts to explain the mix up in their supplemental affidavit have done little to clear up the contradiction. He noted that in the circumstance, it is impossible to ignore what the acknowledgement of service says and focus on the affidavit.
“There can’t be a curing of it. If you can cure it by maybe filing a supplementary affidavit to explain the contradiction. But there is no curing between what Mr Chan said in the affidavit and the document he signed. And he has left you with unreliable evidence, when in election petitions you must comply strictly with what the law says.”
Attorney General Anil Nandlall also lambasted the lawyers for the petitioners for proving unable to explain the mix up regarding the date of service and went on to reiterate that the Chief Justice should dismiss the petition.
“I say with the greatest respect to Mr Jeremie, he has not put forward satisfactory explanations or any explanation at all, that is meritorious as to the contention that we have raised. The subsequent affidavits they have filed, in trying to explain away the inconsistencies, were done after we identified them,” he said.
“Secondly, that affidavit itself has contradictions. We are not alleging fraud and perjury. We are simply making comments, as we are entitled to do, based upon the evidence they have presented. They have the responsibility of proving they have effected service within the prescribed time!” Nandlall added.
Following Nandlall’s oral argument, the Chief Justice adjourned the case until January 18, when she will rule and decide the fate of the second petition.
The petition in question, petition 99 of 2020, seeks to vitiate the March 2 General and Regional Elections and cause a new one to be called. However, Nandlall had filed an application since November 10, requesting the dismissal of this petition on the grounds that it was served in breach of the requirements under Section 2 of the National Assembly Validity of Elections Act.
Justice George herself had also raised concerns regarding the timing of the service of the petition during the previous case management hearing. In fact, she had pointed out that service of the petition on the second named respondent in the matters – APNU/AFC’s leader David Granger – was “out of time”.
She had pointed out that according to the rules, the petition must be served within five days of filing on the respondents, but the court records show that the petitions were served until September 25, 2020, when they were filed on September 15. The coalition’s side has, however, denied that service of the petition breached the rules. (G3)