From the Courts
July 4, 2017
NDP’s election petitions to proceed to trial

Although the recognizances provided in the New Democratic Party (NDP) election petitions were insufficient, the petitions themselves are not invalid; they will therefore proceed to trial.

This is the ruling of Justice Esco Henry, who delivered her judgement last Friday, June 30, at the High Court in Kingstown.

In her ruling, Justice Henry said it is “appropriate and just to afford the petitioners an opportunity to remove the objection [to the recognizances] by depositing a sum equivalent to the amount determined by the registrar.”

The judge therefore ordered that petitoners Lauron Baptiste and Benjamin Exeter shall each deposit $5,000 with the court on or before July 7, to make the security sufficient.

“If the deposit is not made to the court as directed and within the time specified, the petition shall stand dismissed,” Henry said.

Baptiste and Exeter, NDP candidates in the December 2015 general elections, had filed two petitions challenging the results in the North Windward and Central Leeward constituencies respectively, after the Unity Labour Party (ULP) won the elections by taking eight of the 15 parliamentary seats.

Lawyers for the government had argued that the petitions were invalid because the petitioners, rather than the sureties, had signed the recognizances.

In her judgement, Henry explained that matters of insufficiency are “merely directory and not mandatory, as they may be cured by court order if there is substantial compliance with the other aspects of the subrule, such as the execution of the recogizance….”

The judge found therefore “that such default is merely an irregularity and does not invalidate the recognizance. I am satisfied that the healing efficacy prescribed in rule 10(1) may be applied to remove such insufficiency.”

Justice Henry said once the money is deposited to the court office, the registrar, in consultation with the parties, is to fix a date for hearing of the petitions.

She also dismissed the motions of the respondents, which objected to the recognizances, saying the objections were filed long after the 10-day deadline for objecting.

The respondents in the matter are supervisor of elections Sylvia Findlay; successful ULP candidates Montgomery Daniel and Sir Louis Straker; returning officers Vil Davis and Winston Gaymes; presiding officers Veronica John and Kathleen Jeffers; and the Attorney-General.

“The evidence is that the respondents were served with the notices of the nature of the security on 7th January 2016. The motions objecting to the recognizances were filed on 14th April 2016, long after the 10-day deadline for objecting.”

Citing case law to show that the timelines in elections statues are mandatory, Henry said the statutes “operate strictly not only against the person depositing the security, but also the person objecting. The respondents in this case did not meet the strict timelines. Their motions must therefore fail and be dismissed.”

The petitioners had submitted that the Notices of Application to strike out on similar grounds are still subsisting on the record and have not been concluded by judgment, withdrawal, dismissal or striking out, and were therefore an abuse of the process of the court.

Justice Henry stated that the respondents could have withdrawn or discontinued their applications and replaced them with the motions on four different occasions.

“They did not. In this regard, it seems that their legal practitioners did not fully discharge their solemn duty to research and make themselves knowledgeable with the applicable laws and procedures…

“This default has led the parties to present similar arguments before Cottle J and this court on no less than three occasions….

“The respondents should have realized by 4th April 2016 when Cottle J made his first ruling or at the very latest when they filled their motions on 14th April, 2016; that the applications were inappropriate and procedurally irregular. They should have taken steps to discontinue or regularize them by then. Their failure to do so has remained unexplained. In the premises, I am satisfied that the petitioners have been unduly prejudiced and that the repondents motions constitute an abuse of the court’s process in the face of the pending notices of applications.”

The judge ordered the respondents to pay costs to the petitioners to be assessed if not agreed. Application for costs to be assessed, must be filed and served on or before July 31, 2017.

In 2016, Justice Brian Cottle threw out the petitions, ruling that they were improperly filed. However, a ruling of the Court of Appeal of the East Caribbean Supreme Court restarted the entire court process, after they upheld an appeal by the NDP that there was apparent bias on the part of Justice Cottle.