Judge rules against inspection of ballot boxes

The ruling by Judge Esco Henry not to allow the inspection of the ballot boxes of the Central Leeward constituency has left one side very pleased and the other disappointed, but the election petitions remain set to go to trial.

Henry gave her ruling on Tuesday, dismissing the motion by the New Democratic Party (NDP) which sought to have the 15 ballot boxes of the Central Leeward constituency used in the 2015 general elections inspected. The motion was meant to be supplementary to the election petition case, filed by Benjamin Exeter, NDP candidate for Central Leeward against respondent, successful Unity Labour Party(ULP) candidate, Louis Straker.

It was filed on June 29, 2017, and seeks permission to have all documents used in the elections in this constituency delivered to the Registrar of the High Court, and all ballot papers inspected, for clarification on allegations the NDP are making, regarding, among other things, defective ballots and preprinted ballots.

The issue, which began and ended the application, was that Judge Henry was obligated to determine if allowing the motion would be an abuse of the court process.

Counsel for the respondent Anthony Astafan had raised this issue, comparing the 2017 motion to a motion made by the NDP in 2015. He had submitted, the judge said, “the 2017 application is seeking substantially the same or similar orders to those claimed in the 2015 application… that they are both grounded in the same counts…that the Motion and supporting affidavits contain no new evidence or fact that has come to light since the hearing by Cottle J.(Justice Brian Cottle) of the earlier motion for inspection.”

Henry noted the law principles on abuse of process that, “Parties involved in matters before the Court must ensure that they lay out their whole case at the first available opportunity…. If a party fails to do so due to negligence, inadvertence, or even accident, he will not except in special circumstances, be permitted to re-litigate with the identical party(ies), the same issues or any part of the case which he could have made in the earlier proceeding.”

Therefore, the judge compared the motion from 2015 with that of 2017, to see whether matters raised in the motion at hand could have been raised in 2015.

It was found that the motions were similar on many accounts and that where new allegations were made, the evidence was that they could have been made in 2015 by Exeter.

For example, it was noted that the allegation that the ballots were pre-printed with the official mark or stamped by the presiding officers was made by Exeter in 2017, but not in the 2015 motion, and no reason had been given to the court as to why it had not.

Therefore, the court held that to allow the motion would be an abuse of the court process and “The petitioner Benjamin Exeter shall pay costs to the respondents Winston Gaymes (returning officer), Kathleen Jeffers (presiding officer), Sir Louis Straker and Sylvia Findlay-Scrubb(Supervisor of Elections) to be assessed if not agreed.”

She asked that the Registrar set the date for the trial of the election petitions.

The decision saw raised spirits in representative for Central Leeward, Straker, who expressed his confidence in the votes placed in 2015 to the media. The politician, who said that he was relieved, stated, “It’s very difficult to disenfranchise the people of Central Leeward; have what they did on December the 9th come to naught?”

“You have to bear in mind, you know, that I have been in five elections, three of them were under the NDP administration, only two under the ULP. I have no question in my mind that the people of Central Leeward have spoken through the ballots,” he further commented.

“I am confident that what the people of Central Leeward have done on the 9th of December 2015, remains valid and would continue to remain valid to the end of the term that they have elected me for,” he ended.

Counsel for the respondent Grahame Bollers also indicated that they were “very pleased” with the results, and that “the judgment validates all our arguments that we posed before the judge.”

However, Dr Godwin Friday, Leader of the Opposition, reiterated the NDP’s intention to see the matter to the end, saying, “What we’re seeking here..is to give the people of this country a chance to change the Government, which is what they’re asking for….

“If they (the ULP) feel that the people placed confidence in them in the 2015 elections, well come and do so now, clear the air…and that is what they’re afraid to do,” he commented.

“Irrespective of what happens in the court, there is something else happening in the court of public opinion, and the people are making their judgment as to the performance of this Government, and the judgment that they have made is that, this Government, their time has expired,” he concluded, as he called for “free and fair elections.”

Friday was preceded in his comments by counsel for the petitioners Stanley ‘Stalky’ John QC, who revealed, “Well, of course, we would have hoped that the judge would have ordered inspection, so there is some disappointment.”

Regardless, the QC stated that they would be moving forward with the trial and that what they would do next was to “assess the extent to which it impacts on the merits of the trial.”

They remain resolved he said to, “ensure, as we have been doing, that we continue to prepare ourselves, and do the best we can, those of us who are representing the petitioners in this matter.”(KR)