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Esco Henry

Justice Esco Henry has recused herself from the election petitions case. (iWN file photo)

High Court judge, Justice Esco Henry will on Friday hand down her decision on an application by the government to dismiss the opposition New Democratic Party’s (NDP) election petitions as improperly filed.

Henry is also expected to give her decision on a counter application by lawyers for the NDP that the motion to strike is an abuse of the process.

A lawyer involved in the matter confirmed to iWitness News on Monday that the High Court earlier that day informed parties that the ruling will be handed down on Friday.

The judge will give her decision on the upper floor of the courthouse building in Kingstown, where she heard arguments from May 2 to 5.

The NDP has filed the petitions challenging the outcome in Central Leeward and North Windward in the December 2015 general elections.

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Electoral officials say that those seats were won by the Unity Labour Party (ULP), headed by Prime Minister Ralph Gonsalves, which won eight seats in the 15-member Parliament to take a fourth consecutive term in office.

The remaining seats went to the NDP.

Regional and hemispheric observers say that the results reflected the will of the electorate, but the NDP, citing what it says were irregularities, is asking the court to declare its candidates the winners or order fresh elections in Central Leeward and North Windward.

In the May hearing, Senior Counsel Anthony Astaphan said that the respondents wanted the court to determine whether the security given on behalf of the petitioners are in strict conformity with the relevant section of the election law.

The respondents have argued that the petitions are not valid because the petitioners themselves, rather than their sureties, signed the recognizances.

They are, therefore, arguing that the petitions should be dismissed as invalid.

Astaphan asked the court to determine whether an ambiguity has arisen in view of what he said was an admission by Ben Exerter — who is challenging the Central Leeward results — and what Astaphan said was a concession by lead counsel for the petitioners, Queen’s Counsel Stanley “Stalky” John, of a valid complaint.

The petitioners have presented affidavits indicating that the sureties – Daniel Cummings and Curtis Bowman — understood what they were committing to when they signed the recognisances.

Astaphan, however, asked the court to determine if the petitions are entitled to rely on evidence of the intent of the securities.

The senior lawyer said that the respondents deny that any such ambiguity has arisen in the case, but wanted the court to pronounce on the matter.

After presenting legal arguments in response, lead counsel for the NDP, Queen’s Counsel Stanley “Stalky” John suggested to reporters that Astaphan was taking from the Representation of the Peoples Act (RPA) and the Election Petitions Rules, the elements that he thinks supports his case, but was, in so doing, undermining the premise of his motion.

“The foundation of their case is that the law (RPA) and the regulation and the statutes (Election Petitions Rules) must be interpreted strictly and there is a form in which recognizance is proscribed under the rules,” John told reporters.

“They say that you can’t use the rules to deviate from the Act in any way: neither add to it nor vary it in any way. They say you have to follow the act and the Constitution. But they say that in so far as the form for the recognizance, that is strict, like the act.”

He accused the respondents of conveniently choosing from the rules what they say are strict, even though they are saying that the rules are not part of the law.

“That is the foundation of their case,” John told reporters.

“Then, they say in relation to how the recognizance should be, you must go strictly according to the act.”

John said he took the court through the elements and provision of the Act that ordain how the recognizance should be.

“And there is nothing in the act to confirm with some of the things they are saying should be in the act. So, the two pillars of their case, the act must be strictly interpreted and the form must be strictly followed, are a little wobbly now. But, no doubt, they will straighten it out by the time we come back next time and restore the soundness of their challenge,” he said.

Lawyers for both sides have long suggested that they would appeal if the court does not rule in their favour.

The election petitions were initially heard by Justice Brian Cottle, who ruled in June 2016 in favour of the respondents and threw them out as improperly filed.

The Court of Appeal, on March 7, reverted the case to the High Court for hearing before a different judge, having ruled that Cottle showed apparent bias in his decision to throw out the petitions as improperly file.

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