By Kenton X. Chance
A lawyer for the government in the North Windward election petition has asked former acting High Court judge, Justice Stanley John to amend the ruling he handed down on March 21, dismissing the case after a full trial.
The request came in letters from Joseph Delves to registrar of the High Court, Andrea Young, on March 22 and March 27.
The March 22 letter came one day after the end of the appointment of Justice John as an acting judge in the Eastern Caribbean Supreme Court.
Justice John, a retired Trinidadian jurist, was contracted specifically to hear the election petition after Justice Esco Henry recused herself from the case last December.
The main opposition New Democratic Party had filed the petition challenging the announced victory of the ruling Unity Labour Party’s Montgomery Daniel in North Windward in the Dec. 9, 2015 general election.
The court also dismissed the opposition party’s challenge in Central Leeward.
In the letter, Delves pointed out that there is likely to be an appeal of the judge’s ruling and asked that Justice John provide reasons for ruling in the government’s favour on two points of the petition.
In the March 22 letter, Delves said he was writing on the advice of senior counsel to draw to Justice John’s attention that he omitted to give reasons for his rejection of two of the petitioner’s complaints.
The first complaint relates to the claim that there were 39 more ballots than there were counterfoils at polling station NWI, in North Windward.
Delves also wanted the judge to explain why he rejected the petitioner’s claim that there was no recount of the ballots the day after the election — contrary to the law.
The lawyer noted that this claim was advanced through Cheryl Sutherland but was denied by the returning officer, Ville Davis.
Sutherland, a teacher and resident of Sandy Bay, was co-opted — in keeping with the provisions of the law — to witness the final count in North Windward, presumably after none of the candidates or their agents turned up.
Davis, during his testimony, told the court he saw Sutherland as an independent person during the
Sutherland maintained during cross examination that there was no individual counting of the ballots during the Dec. 10, 2015 exercise.
The petitioner has claimed that there was no advertisement of the final count of the vote which the returning officer said took place on Dec. 10, 2015.
In his letter, Delves said:
“Given that there is very likely to be an appeal in this matter, and that the Court of Appeal would no doubt be assisted by His Lordship’s reasons, particularly on the question of why he seemingly rejected the evidence of Ms. Sutherland, I write to ask His Lordship to consider providing his supplementary reason on these issues.
“Please be good enough to bring this letter to the attention of His Lordship as a matter of urgency,” Delves further wrote in the letter, which was copied to Maia Eustace, instructing counsel for the petitioner.
Delves wrote a second letter to Young on March 27, asking whether Justice John had been in receipt of his dispatch of March 22 “and if so, respectfully, when the parties may expect his Lordship’s supplementary reasons”.
That letter was also copied to Eustace.
The allegation that there was no final counting of the votes was a central pillar of the North Windward petition.
Sutherland told the court that the exercise in which she participated
ended sometime after 2 p.m. — six hours earlier than Davis claimed.
Davis said the final count lasted until around 8:30 p.m. — or about 90 minutes after Gonsalves was sworn in as prime minister for a fourth consecutive term with a one-seat majority.
During the trial, Davis told the court that he had misplaced the Form 16 statements of the polls for all the polling stations in the constituency.
A “Form 16” is the document on which the presiding officer at each polling station records vital election information, including the number of ballots received and used, as well as the outcome of the vote at that polling station.
The Form 16 is used as a reference point during the final count which takes place the day after the vote.
During the trial in February, Sylvia Findlay-Scrubb who was elections chief at the time of the 2015 vote, told the court that she could not say “off the top of my head” if she received any Form 16s at all from North Windward.
Findlay–Scrubb, who retired as elections chief in April 2018, said she would only be able to verify that information if she goes into the ballot boxes.
The court has to approve reopening the ballot boxes after they are sealed after the final count.
However, Findlay-Scrubb has opposed applications to inspect the ballot boxes and the court has ruled in her favour in that regard.
During the trial, Findlay-Scrubb, who was Supervisor of Elections during the December 2015 poll, says she never knew until the filing of the Dec. 31, 2015 petitions that there was a claim that there were 39 excess counterfoils at polling station NWI.
She further said she made no enquires about what allegedly transpired.
Findlay-Scrubb, however, agreed with Keith Scotland, lead counsel for the petitioner, that the tally of the counterfoil and ballots, used or unused, should reconcile, because counterfoils come from ballots.
Findlay-Scrubb, who retired from the elections chief post last year April, was asked if, in layman’s terms, the practical effect of having 39 excess counterfoils means there were 39 ballots unaccounted for.
She said: “If, in fact, that did happen.”
Judge’s ruling ‘fundamentally and fatally flawed’
Last week, Kay Bacchus-Baptiste, an NDP senator and lawyer in the North Windward petition, told iWitness News that Justice John’s ruling was “fundamentally and fatally flawed”.
“All I can say now is that his judgement is fundamentally and fatally flawed because he not only did not address the 39 more counterfoils than ballots, he ignored the evidence that there was no final count,” said Bacchus-Baptiste, who is the petitioner’s wife.
“He did not even treat with Ville Davis’ evidence and what he changed as opposed to what Cheryl Sutherland said,” the lawyer told iWitness News.
She was referring to the fact that Davis, just before being cross examined, amended his witness statement to ascribe to other electoral workers action that he had earlier said he had taken.
For example, whereas he had initially said that he collected all the ballot boxes, he amended his witness statement to say that Gradie King had collected half and he collected the other half.
Bacchus-Baptiste also said that the judge had “totally ignored the fact that there was no Form 16 at all in North Windward.
“Three very, very salient points he has ignored. And, it is fundamentally flawed. You can’t cure that…”
‘perfect grounds for appeal’
She further said that the judgement is “irrational”.
“He has not really looked at the petitioner’s case in North Windward. It is a fatal flaw. It opens up perfect grounds for appeal on which we should succeed.”
Bacchus-Baptiste said the petitioner is planning to appeal.
“We are working on the appeal.”
She said that an appeal was being considered in the North Windward petition.
The NDP also failed in its bid to overturn the election results in Central Leeward in a petition filed by its candidate, Benjamin “Ben” Exeter.
Bacchus said that she could not comment on what course of action was being considered regarding that petition.
iWitness News has since learned that the NDP has decided to appeal the judge’s ruling in both petitions.
Bacchus-Baptiste pointed to what she said were errors in the judge’s ruling on the Central Leeward petition, including declaring valid ballots that did not have the presiding officer’s officiating marks or initials.
“To me, he made a very wrong decision in declaring those invalid ballots as valid. I don’t know how the learned judge could arrive at that because not even the respondents are saying that they are valid and he has declared that they are valid,” Bacchus-Baptiste told iWitness News.
“He did not treat with the invalidity and what would be the result of the invalidity of so many persons being disenfranchised. It was just such an amazing decision.”
Did not see anywhere in this article where the Gov’t lawyer asked the judge to change the ruling as per the headline
YES SIR…….IT SAID DELVES ASKED THE JUSTICE TO SUPPLEMENT ITS RULING BY GIVING REASONS .
Read again JP. Remember the matter is already dispensed with so any request from the government lawyer to alter or to amend as Delves is requesting is changing the ruling.
CHANGING AND SUPPLEMENTING IS TWO VERY DIFFERENT DEFINITIONS .
……..SO IS MISREPRESENTATION , LOL
Thank you Al.
Mischief spotted!
Like any good journalist, Kenton Chance often uses deliberately equivocal (but not necessarily fake) headlines to attract the attention of his readers. Moreover, in our semi-literate society, many readers only glance at the headlines.
If you don’t believe me on either point, ask his journalism instructors.
1. Judge John is no longer an Acting Supreme Court Justice so probably does not have the legal authority to act,
2. I’m not sure that Judge John was required to address every single inconsequential point raised by the Petitioners’ lawyers. The court proceedings show that the Respondents addressed all these issues and that at the end of the day none of them affected the final results in North Leeward, namely that Montgomery Daniel got more votes than Lauron Baptiste.
As for the discrepancy between ballots counted and counterfoils, we know that many of the election officials, mostly teachers, can’t count anything but money:
Q: “Teacher, how much are 42 ballots plus 15 ballots?”
A: “64 ballots, please.”
Q: “Teacher how much are $42 plus $15 dollars?
A: “$57, please.”
As for the discrepancy between Ville Davis and Cheryl Sutherland, this is a typical “he said, she said” between an election officer and someone pulled off the street to observe the final count, a figure that corresponded to the preliminary count whose detailed discussion in the judgment by Jusitce John is hardly grounds for overturning the election.
As for the absence of the Form 16 statements, they were clearly and erroneously placed in the ballot boxes. An appeal court, if they feel that this is a critical issue, may rule to open the boxes to prove this elementary point.
C. Ben none of your explanation holds any water to those of us that have the facts. The Form 16 was not put into the ballot box and no one of intelligence has said so. If that is the case and the boxes have not been opened then how did the form 16 magically appear just before the trial? You also mention the discrepancy between Cheryl Sutherland and Ville Davis. If you were an NDP supporter instead of a big ULP supporter you could have said that the “he said she said” is between someone hand-picked by the ULP and an unbiased person off the streets. You sure know how to use your writing skill to try to manipulate the dumb.
You mean changing the “contents” of the ruling, not the ruling itself which can only be changed by the court of appeal.
WHILE I LIVED IN SVG I RETAINED DELVES AS MY PERSONAL LAWYER , WHICH I WAS VERY SATISFIED AND IS A HARD WORKING MAN OF INTEGRITY . THIS LETTER ON HIS PART IS VERY INTERESTED AND CANT HELP TO WONDER WHATS THE MOTIVE BEHIND IT AT THIS POINT .
THE FACT REMAINS YOU CANNOT APPEAL SUCH RULING ON …..” YOU HAD SOUR GRAPES ” SO YOU WANT TO RETRY THE CASE OR LITIGATE YOUR CASE OVER IN THE APPEALS COURT . THIS IS NOT GROUNDS FOR APPEAL .
FURTHERMORE IF BY CHANCE ANY OF THE ABOVE “EVIDENCE” WAS TAKEN INTO ACCOUNT ….WHICH IM SURE IT WAS BY THE PRESIDING JUSTICE……NONE OF IT WAS EGREGIOUS ENOUGH TO WARRANT AN OVERTURN OF THE ELECTION RESULTS PERIOD.
NDP BLUNDERED THEIR OWN CASE FROM BEGINNING IN 2015 TO END MARCH 2019 . WITH THEIR INCOMPETENT OVERPAID LEGAL TEAM.. IMAGINE THAT ALMOST FOUR WHOLE YEARS AFTER WHERE ANOTHER ELECTION IS FEW MONTHS AWAY . NOW YOU WANT TO OPEN ANOTHER CHAPTER IN THIS SAGA . TO PROVE WHAT , THAT YOU CAN WIN A COURT BATTLE ??? OR TO BOOST LAWYERS EGOS ??? OR IS IT ONCE AGAIN TO REJUVENATE THE BASE ??? NONE OF THESE REASONS ARE ACCEPTABLE AND THE CITIZENS DESERVE BETTER REPRESENTATION .
TURN A NEW CHAPTER AND REPRESENT THE CITIZENS IN THIS NEW UP COMING ELECTIONS , ARMED WITH POLICIES AND NEW AGENDAS TO LOOK FORWARD TO RATHER THAN SINGING ONE BROKEN RECORD OVER AND OVER ABOUT ELECTION PETITION .
That judge need to disbarre intrest of conflict.. As a learn lawyer and a Judge he should have examined the petitioners case carefully without bias. Money is the root of all evil.
Where there are so many substantiated irregularities and inconsistencies by witnesses’ evidence on both sides of this case. To expect any Justice to provide detail reasons for rejecting some complaints are impractical even by ‘The Learned Judge’ or the ‘Wizard of Oz.’
The most productive and proactive measures that you’ll (NDP & ULP) can do at this point, is to put effort on campaigning along with a process-review resolution to those identified irregularities of the past elections.
Kenton Chance says, “Bacchus-Baptiste said the petitioner is planning to appeal.
Two sentences later Kenton Chance says:
“She [Bacchus-Baptiste] said that an appeal was being considered in the North Windward petition.”
Isn’t there a clear contradiction between the two statements?
What is the fundamental difference between planning and considering?
Isn’t it the norm that if your are not satisfied with a Judge’s ruling that you appeal The judgement? What is this about an attorney writing to the judge to change his ruling? Am I missing something here?
Constructive criticism I applauded but C.Ben-David it seems as though you always have a beef with Kenton. You will soon have his baby. But Kenton has thick skin to the extent that tyour unwarranted criticism will be deflected like the water that fall of the feathers of a duck.