After dramatic exchange 24-hour stay granted

Jul 31, 2020 News

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– Appeal Court judges to decide on court costs

There was a dramatic exchange following the judgment of the Court of Appeal yesterday in the appeal of the Chief Justice’s ruling in Misenga Jones vs. GECOM, et al. Co-counsel for the appellant, Roysdale Forde, asked that the Court stay its judgment for three days. The application was widely opposed. A stay of 24 hours was granted instead.
Forde said that the issues are of national importance and pointed to a stay being granted by the Court in the case of Eslyn David vs. GECOM. But several respondents responded, siding with the view of two Justices of the Court, that the litigation is abusive.
Attorney-at-law Anil Nandlall, responding for the People’s Progressive Party Civic (PPP/C), said that there was nothing to stay as no orders were granted. He said that some sort of an order was made in David’s case and that the effect of that was stayed at the time.
“Here,” Nandlall said, “the appeal filed by the appellant has been dismissed.”
President of the Court, Justice Dawn Gregory asked that attorney for the Chair of GECOM, Kim Kyte-Thomas, respond, as the Court’s judgment had placed the matter of the elections declaration squarely back into the hands of GECOM.
“I fully endorse what Mr. Nandlall has said to the Court,” Kyte-Thomas said. “Your honour, nothing has been granted, there is nothing to be stayed. All that has happened is a dismissal of a frivolous and vexatious appeal. And that is our position. The work of GECOM must be completed, your honours. If we continue like this, when will we have election results? 2025? This is untenable… We are objecting to the application, your honour,” Kyte-Thomas added.
Attorney for the 12th respondent, Sanjeev Datadin, chimed in and endorsed Nandlall’s argument.
However, he went on to point out that under the Caribbean Court of Justice (CCJ) Act, “an appeal that will go to the CCJ requires leave or special leave under Sections 6, 7 and 8.”
The lawyer said, “We don’t know whether that will in fact come into being. There has been no application filed, and in any event, if Mr. Forde would like to receive the benefit of any interim orders, as was the case in David, you have to file your application and the approach should in fact be made to that Court [the CCJ], not to this Court.”
He submitted that Forde’s request could not be granted.
Attorney-at-law Timothy Jonas, for the 11th respondent, spoke next and endorsed Datadin’s argument, then made other arguments in opposition to the application for a stay. He said that if the Court did have the jurisdiction and it granted the stay, it would depend on whether the Court found there to be live issues sufficient for a meaningful appeal. He held the view that the Court did not, as two Justices noted that the litigation constituted an abuse of the Court’s processes.
He also explained that what the CCJ granted in Eslyn David vs. GECOM, et al was a mandatory order on an interlocutory basis, not a stay.
Responding to these arguments, Forde said that it is not a case in which the Appeal Court is being asked to “put its head in the sand” to pretend there are no judicial or constitutional consequences to its judgment. He pointed again to Eslyn David vs GECOM, et al for which an application was orally made for a stay and it was granted prior to the application being filed to the CCJ.
Finally, Forde said that the determination that there are no good grounds for an appeal, or that the matter may be frivolous, cannot “destroy” the application for the stay at this stage.
Justice Gregory consulted with her colleagues and they both rejected the application for the three-day stay. She said that she was prepared to grant a short stay of one day, but that the Court’s majority decision stood.
At this juncture, Jonas asked that the Court consider the question of costs, to which Nandlall responded, suggesting a “conservative sum of $2M”. This was endorsed by Attorney for the 9th respondent, Kamal Ramkarran, who asked that costs be paid to all respondents before anything further is filed. Datadin endorsed the submissions of Nandlall and Ramkarran on costs.
Though all thought that the matter of the stay had been rejected and settled, the Attorney General’s co-counsel, Maxwell Edwards, interrupted the conversation to say that his system was disconnected and that he did not get a chance to make his submission on the stay.
Justice Gregory explained that the Court had already decided on the stay, but Edwards said that he would like for his submission to be completed for the record.
During his submission, Edward said that the arguments of Nandlall and Jonas are incorrect in law and pointed to another matter adjudicated by the Court “unanalogous to this one”, in which he said a stay was granted.
He added that Nandlall is well aware of the case in question. In response, Nandlall said to Edwards, “Mr. Williams should have permitted you to speak at the appropriate time.”
Edwards then wondered out loud if there were any “shenanigans” going on which prevented him initially from making his submission on the stay. Nandlall said that he would respond to Edwards’ argument if the Court would rehear the matter.
In umbrage to Nandlall’s earlier comments, Edwards said, “Mr. Nandlall, Mr. Williams does not have to permit me to speak. I am co-counsel in this matter with the learned Attorney General and I have been assigned certain duties, certain roles and this is one of them. So please don’t interrupt me.”
Justice Gregory interjected at that point to tell Edwards that his submission will be reflected on the record.
The Court then revisited the question of the stay, based on Edwards’ request for a “very short stay”.
Justice Gregory reminded that the Court placed the matter back into the hands of GECOM, which is why she had asked Kyte-Thomas to weigh in on the request for a stay.
“Kyte has held out that she is rejecting this application,” the Court’s President said.
Edwards then argued that this matter is one of fundamental and supreme constitutional importance, to which the Court decided to grant a stay of one day.
Justice Priya Sewnarine-Beharry interjected at that point to ensure it is on the record that the decision to grant the stay was not contributed to by her.
“For the record, I must say that is not my decision. My decision is to refuse the application for a stay. I would just like that to be noted on the record,” she said.
Justice Gregory then noted for the record that two judges, herself and Justice Rishi Persaud, are prepared to grant a stay for one day, expiring within 24 hours. Nandlall and his lead counsel, Douglas Mendes, attempted to seek clarity, but the Court moved on to the issue of costs.
Forde’s co-counsel, Mayo Robertson, protested the settlement of costs for all respondents, explaining that the appellant only instituted proceedings against four respondents. He said that the remaining respondents joined, and opined that it would be grossly unfair to expect the appellant to award costs in their favour.
The Court’s President responded that the Court would hear submissions on costs and that a decision would be likely after three days.

 

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