Dominican Senior Counsel, Anthony Astaphan, says he was taken by surprise but was not outmanoeuvred by the lawyers who represented the main opposition New Democratic Party (NDP) in Tuesday’s election petitions hearing before the Court of Appeal.
“If I was outmanoeuvred by anybody, it would have been the court, but I can’t say that. The court didn’t outmanoeuvre me. The court made a decision, which I don’t criticise, but I am disappointed with, but I am surprised by the decision, at least on the issue of waiver,” he said on Boom FM on Thursday.
During a sitting in St. Lucia on Tuesday, the court granted an appeal by lawyers for the NDP against High Court judge, Justice Brian Cottle’s decision last June to throw out the petitions as improperly filed.
Citing apparent bias in Justice Cottle’s handling of the petitions, the Appeals Court sent the petitions back to the High Court for hearing before a different judge.
Astaphan, however, said he was not outmanoeuvred because bias was a ground for appeal.
He said he “taken aback that there was not time to object, when it think it was clear to all that there was sufficient time to object and secondly, that the court, most importantly, that the court, did not seem attracted or did not find these submissions of waiver attractive enough to have the appeal dismissed on the basis of bias…
“That took me by surprise. Nothing the NDP lawyers said or did — because we were there to either object or respond. But we felt that on the record, there was sufficient opportunity for objection and the record reflects the fullest participation …”
Astaphan said he does not know whether the Appeal Court, in arriving at its decision, relied on the evidence of the petitioners that they had no time to object to Justice Cottle’s handling of the petitions.
“We need to find out because the record shows that the judge, prior to the 16th of June, was not prepared to give directions for trial because he wanted to hear the motion to strike first and then give direction for trial.
“So I need to know whether the court considered things which were different to what was in the written submission, which formed the basis of the application for the appearance of bias.”
The NDP is asking the court to declare them winners in Central Leeward and North Windward or order fresh elections there.
Astaphan said the respondents are now preparing to appear before another judge.
“Depending on what ruling the Court of Appeal says, we may have to take another look at [that],” he said.
Astaphan, however, said the Appeal Court’s decision cannot be appealed, but, citing a case in Nevis, added that if a decision is based on matters not properly before the court, they can ask the Court of Appeal to revisit it.
He said the respondents were confident ahead of Tuesday’s court hearing but didn’t take the case lightly.
“We felt we were going to win but we worked on it assiduously, relentlessly… Our focus, clearly, was on the merits of the appeal,” he said.