The United National Congress (UNC) has filed its appeal over the dismissal of its election petition for the district of Lengua/Indian Walk before the Court of Appeal.
On Wednesday afternoon, High Court Judge Marissa Robertson dismissed the petition, which was filed by the party after the Local Government Elections on August 14 last year.
In its notice of appeal, filed yesterday afternoon, the party’s lawyers raised 11 grounds under which they claimed Justice Robertson erred in making her decision on the petition.
They claimed that she made several errors in considering the evidence and legal issues before her.
The petition was based on what transpired in two successive recounts for the district when PNM candidate Autly Granthume was announced as the winner over UNC candidate Nicole Gopaul on election night.
Granthume initially received 1,430 votes compared to Gopaul’s 1,425. At the end of the first recount, both candidates were found to have received 1,428 votes.
However, a special ballot in favour of Gopaul, which would have broken the tie, was rejected by the presiding officer due to the failure of the returning officer to place their initials on it.
A second recount yielded the same result as the first, with the Elections and Boundaries Commission (EBC) declaring that a by-election was required.
The pending petition meant that incumbent chairman of the Princes Town Regional Corporation remained in office, as a new chairman can only be elected after the councillor for the district is determined, despite the UNC securing the nine remaining districts which make up the corporation.
In the event that the party does not successfully challenge Justice Robertson’s decision before the Court of Appeal, a by-election will have to take place.
Under the Representation of the People Act, election petitions are only heard by the local courts, with no possibility of a final appeal before the country’s highest court, the United Kingdom-based Privy Council.
In determining the case, Justice Robertson ruled that the EBC properly followed the provisions of the Elections Rules in rejecting the ballot.
“Collectively, these provisions speak to the importance of the existence of the initials of the Returning Officer to verify that the ballot as being the one which was previously issued by the Returning Officer for the election in question,” she said.
While Justice Robertson considered the fact that the Statement of Poll suggested that all ballots issued were numerically accounted for, she noted that such accounting could not confirm that the disputed ballot was initially issued by the Returning Officer.
She also rejected submissions from the party that the Returning Officer could have corrected the issue.
“This court has determined that there is no corrective procedure in the Election Rules to treat with a special ballot which does not contain the initials of the Returning Officer,” Justice Robertson said.
“A court cannot cure a defect which the rules themselves do not contemplate,” she added, as she noted that only Parliament could address the issue by amending the legislation.
Despite the findings, Justice Robertson did criticise the EBC for also claiming that the UNC did not properly challenge the rejected ballot on election night when it first responded to the petition.
Stating that the EBC did not clearly outline the reasons for its decision, Justice Robertson said: “In this regard, the commission ought to have presented its reasons with a greater degree of precision to provide not only the enquiring candidate with a fair opportunity to consider their options but also for greater transparency in the electoral process.”
“Such standards are required to be maintained even when the timelines are stringent,” she added.
Justice Robertson noted, however, that the EBC’s failure did not prejudice the petition.
The UNC also filed a petition over the EBC’s handling of the Arima Northeast district.
However, the petition was dismissed at a preliminary stage by High Court Judge Frank Seepersad over claims by the EBC over procedural errors in filing it.
In the application, the EBC contended that the petition, pursued by UNC candidate Jairzinho Rigsby, should have named PNM candidate Kim Garcia, who was declared the winner after a recount and verification exercise, as the respondent.
Although Justice Seepersad ruled that that petition was hopelessly flawed as a result of the error, he was careful to note that his finding did not mean that Rigsby’s complaints were frivolous.
He suggested that the EBC should consider a critical and comprehensive review of its current processes based on Rigsby’s complaints.
The UNC was represented by Anand Ramlogan, SC, Jayanti Lutchmedial, Kent Samlal, Saddam Hosein and Natasha Bisram. Deborah Peake, SC, and Ravi Heffes-Doon represented the EBC.
The PNM was represented by Michael Quamina, SC, Ravi Nanga, Celeste Jules and Adanna Bain.
