Senior Counsel McKay
November 22 ,2020
The application for the dismissal of Election Petition 99 by Vice President, Bharrat Jagdeo, is deeply flawed, and ought to be thrown out, Senior Counsel Rex McKay told the High Court, in the petitioners’ defense.
Senior Counsel McKay forms part of a battery of lawyers representing the petitioners in the case – Monica Thomas and Brenna Nurse vs the Chief Elections Officer, Keith Lowenfield and others. The other members of the legal team are: Attorneys Mayo Robertson, Khemraj Ramjattan, Darren Wade, Gary Best and Geeta Chandan-Edmond.
In the case, the attorneys intend to argue that the Guyana Elections Commission (GECOM) failed to conduct free and fair elections in keeping with its constitutional requirements and as such, the results of the 2020 General and Regional Elections, as declared by GECOM, be vitiated but Jagdeo – the fourth named respondent and representative of the People’s Progressive Party/Civic (PPP/C) – wants the petition to be dismissed based on ‘technicality.’
Senior Counsel McKay, and his team of lawyers, in their written submission, told the Court that while permission was granted for Jagdeo, through his lawyers, to question the validity of service on him, the Notice for Dismissal did not address such an issue.
“The CMC Order gave Counsel what they requested and that was limited permission to participate in these proceedings to challenge service on the Fourth Named Respondent. This application should therefore not be entertained until Counsel make it clear that they are no longer appearing amicus in this case to challenge service on the Fourth Named Respondent,” the battery of lawyers said.
The lawyers said in any event, the Notice to Dismiss is procedurally flawed, and without merit. Senior Counsel McKay told the Court the pith and substance of the Notice to Dismiss is that the Petitioners’ Affidavit of Service failed to comply with the Act and the Rules, however, such contention is weak.
To support his argument, the Senior Counsel pointed to Rule 9 (5) of the Rules, which states that: “The Petitioner or his agent shall, as soon as may be after service has been effected in accordance with any provisions of this rule, file in the registry an affidavit of the time ad manner of such service.”
The Senior Counsel and his team of lawyers said the language of each Affidavit was very clear, and the Petition was served together with the Notice of Security for Costs and the Notice of Presentation of the Petition. It was pointed out that the Jagdeo, through his lawyers, never denied receiving a copy of the Petition together with the Notice of Presentation and Notice of Security for Costs.
“His suggestion that the First, Eight, Ninth, Tenth and Eleventh named respondents were not served with the Notice of Presentation of the Petition and Notice of Security for costs is merely conclusory and that conclusion is based on a false premise and more importantly is not supported by Affidavit testimony from any of those respondents,” the lawyers argued.
Further, they argued that Jagdeo’s reliance on what he refers to as “Return of Service” is misplaced and does not indicate a breach of Rule 9 (5). According to them, Return of Service is not required by Rule 9 (5) and is mere surplusage. “It is a mere clerical formality required for the lawyer’s chambers record. As a matter of fact, in Eusi Kwayana and Rupert Roopnarine v The Chief Elections Officer, Hugh Desmond Hoyte No. 205 of 1986 Pompey J. ruled that “Return of Service” could not be used as a substitute for the statutory requirement of an Affidavit of Service,” the Legal Counsel pointed out.
“The Fourth Named Respondent’s suggestion that there is some inconsistency between the Petitioners’ averment in their Affidavit of Service that they effected service, and that the Return of Service document by the person who physically hand delivered the Petition, is disingenuous, and fails to appreciate the meaning of the term “effected service” mentioned in Rule 9 (5). To effect service means to accomplish service,” the team of lawyers argued.
It was also noted that the Service on the second named respondent, David Granger, was effected in a timely manner as required by law. They clarified that the Second Named Respondent was not served on September 25, 2020 but on September 18 as indicated in the supplementary affidavit.
“Even in the unlikely event that the Court were not to be persuaded by the Petitioners Supplementary Affidavit on the issue of date of service, the untimely service on the second named Respondent, a part who is not a necessary and or proper party is not an act that goes to the whole root of the petition so as to make the petition void,” McKay and team argued.
Oral arguments in the case will be heard on Tuesday, November 24 at 9:30hrs, before Chief Justice (ag) Roxane George-Wiltshire.