Court declines to dismiss appeal in 2001 Election petition
Stabroek News
June 11, 2003
The Court of Appeal last week denied the application for a motion by the Chief Election Officer to strike out the March 26, 2002 appeal by Veronica Delph against the dismissal of her election petition by Chief Justice Carl Singh.
The motion was filed on November 6, by counsel for the Chief Election Officer, Ashton Chase SC on the grounds that the notice of appeal was not filed within the prescribed time for such appeals; that Delph’s attorney, Basil Williams, who filed the appeal had no authority to act as attorney nor was he authorised to file an appeal; and that the appeal was in a non-existing cause since the rubric referred to “Elections holden, on the 15th day of December 1997” instead of the 19th day of March, 2001.
The application by the Chief Election Officer had its origin in an injunction granted Delph, preventing the CEO from destroying all the documents and papers from the March 19, 2001 elections as he indicated he would do by the weekend of October 12, 2002 as there was no trace of any appeal documents at the Supreme Court Registry. Before his decision to destroy the documents by October 12, Delph’s counsel provided the CEO with receipts for the filing fees and marshal service.
The CEO had been advised by counsel in September 2002 that he could destroy the documents since no appeal was pending in any court from the dismissal of Delph’s petition.
In dismissing the application, the Court addressed the argument that the notice of appeal was served on the Chief Election Officer out of time (the Court Marshall served the appeal on the CEO 5 1/2 months after the prescribed time). It concluded “... it is pellucidly clear that the hearing of the petition is governed by the provisions of the Act as opposed to an appeal which is governed by the Court of Appeal Act Cap 3:01” and “The service of the notice of appeal from an election petition is regulated by the Court of Appeal Act Cap 3:01, which gives the Court jurisdiction to extend time.”
As such the Court concluded that it is “of the view that there is no provision in the Act or elsewhere that marshal service is necessary for the service of a notice of appeal for an election petition (and) should one rely on such service for the notice of appeal then one cannot be faulted.”
With regard to the contention that Williams had no authority to act as attorney or to file an appeal, the Court found that since authority was given to Roysdale Forde and Sean Allicock, who argued the case in the High Court and “despite the fact that they sought leave to withdraw from the case, their authority would continue until the hearing and determination of the appeal while Mr Williams who was later authorised would be an additional counsel. Therefore, for all intents and purposes, Mr Williams was duly authorised.”
With regard to the incorrect rubric, the Court concluded that the date on the rubric was a mistake and noted that the notice was filed on March 26, 2002, exactly two weeks after the petition was dismissed and “the majority of the interested parties ... served on the 26th would establish that the appellants always had an intention to prosecute the appeal.”
It concluded too that because the matter was one of national importance it was most befitting for the court to exercise its discretion and grant an extension of time to the applicant under Order 1 Rule 8 to serve the Notice of Appeal.
