A lawyer for the main opposition New Democratic Party in the 2015 election petitions case says that the respondents’ application to strike out the petitions as improperly filed was “incorrect and wrong”.
Kay Bacchus-Baptiste made the claim at an NDP press conference on Thursday, two days after the Court of Appeal reinstated the petitions and sent them back to the High Court for hearing by a different judge.
The NDP is challenging the results of the vote in Central Leeward and North Windward in the Dec. 9, 2015 general election.
High Court judge, Justice Brian Cottle, last June, granted an application by lead attorney for the respondents, Dominican Senior Counsel, Anthony Astaphan, to throw out the petitions as improperly filed.
“I don’t know if the public really understands that that application he filed was incorrect. It was wrong. It was ultra vires,” Bacchus-Baptiste said.
She said that Astaphan, as the lawyer in the 2012 case of Ezechiel Joseph (the petitioner) and Alvina Reynolds (the respondent) in St. Lucia, had urged upon the court that application to dismiss a petition should be heard in open court.
“He was the lawyer who did it but he comes into our court and he urges the opposite; filed an incorrect application,” Bacchus-Baptiste said.
The respondents had, during an interlocutory hearing, asked that the petitions be thrown out as improperly filed.
But Cottle had refused the application, saying that it was premature, but it would be granted if made in open court at the beginning of a trial.
Bacchus-Baptiste said that while Justice Cottle had said the application was premature, she thinks that it was ultra vires.
“Premature was a mild word,” she said, adding that Cottle went on to hear an application that he said he had no jurisdiction to hear, and further commented that if the application were made in open court he would come to the same decision that the petition should be struck out for want of a proper surety.
“Now, that is what the Court of Appeal took umbrage with. You cannot have a judge say that come to me, file your application correctly, but if you file it, I am going to strike it out,” Bacchus-Baptiste said.
“The court of appeal thought that when you are dealing with matter like that, the judge should have rightly recused himself from hearing it.”
She said there were several reasons why the petitioners didn’t ask Cottle to recuse himself.
Bacchus-Baptiste said the foremost reason was that the judge had indicated to the petitioners that he was going to send the matter up, under Section 24 of the rule, to the Court of Appeal to be determined.
“And we were of the opinion that this is what would happen, but the respondents would not agree to send it up. I don’t think he needed them to agree but he decided he would hear the matter.”
She said another reason the petitioners didn’t ask the judge to recuse himself was because they were aware of the law that a motion to strike out had to be heard at the hearing of the petitions.
“And that was another error, in that it was held — we don’t even know how it was held. It was not held at the hearing of the petition. So, there were several grounds of appeal that we had.
“We were very confident that had we gone through all eight or nine grounds the Court of Appeal was going to agree with us.”
Bacchus-Baptiste said that, at Tuesday’s hearing, the court asked the appellants to address the issue of bias, adding that it was the petitioners’ opinion that if they addressed and won on that point, it would “blow the case out”.
“When we began arguing the matter, before we were finished, the judges stopped us and said they would take a break. We felt very good then because we realised they were with us. They took a break, they came back, they allowed Mr. Astaphan to continue, to finish his argument and when we came back, the judge said we are ready to make a ruling.
“It was unexpected for us because, generally, we expected that they might have reserved and given us a judgment after. But the judges, I think were so incensed about the facts of what happened that as our leader said here, they said that we presented a powerful case on apparent bias. And as a result, they sent the matter back to the High Court,” Bacchus-Baptiste said.