Dear Editor,
The appeal hearing in the Pink Suitcase High Court hearing continued on Wednesday May 19, 2010 at 1.30 pm before the Honourable Justices George and Ramlall. At this hearing Mr Doodnauth Singh SC who is appearing together with Ms Sonia Joseph, Senior State Counsel for the DPP began addressing the court making preliminary submissions to the court that they had no jurisdiction to hear the matter. The basis for the Senior Counsel’s submissions is that Counsel for the applicants, Mr Nigel Hughes, invoked the wrong jurisdiction in bringing the action, as such he has no standing before the court and the court has no jurisdiction to hear him. Mr Hughes erroneously brought the action under Order 10 Rule LVIII of the Rules of the Supreme Court of England 1883 Act; an act which is no longer being used in Guyana since 1955, and there is the Court of Appeal decision of Patterson and Another v Elections Commission where this point was discussed by acting Chancellor, the Honourable Mr Justice Carl Singh.
The applicants are relying on the decision of Barry Dataram but Senior Counsel Mr Singh argued that in the decision of Barry Dataram a fundamental error in law was made and the Full Court cannot rely on such an erroneous decision as relied on by the applicants; that even though aspects of the UK 1883 procedure could be used, the UK Rules of 1883 could not be used. Only aspects which are not provided for in our legislation may be used. The rules were never accepted in Guyana and there was no similarity between the 1883 Order 58, r. 10 and the Guyana Order 46 r. 16 and no question of substitution of the Full Court for the Court of Appeal; one Order deals with a right of appeal to the Court of Appeal in the UK, whereas, the other Order deals with the right of appeal to the Full Court in Guyana; that it was erroneous and inapplicable for the Full Court to substitute one court for the other. An examination of the judgment will show that it was erroneous. The applicable procedure for Guyana is therefore Order 46 rule 10.
While the Judges noted that the applications in the rubric made reference to the Rules of Guyana as well, Senior Counsel Mr Singh argued that the only reason for such a placement in the rubric by the applicants was that they are interpreting the specific British Order 58 rule 10 as being part of the general Rules of the High Court of Guyana and therefore leaving out Order 46, rule 16 which is fatal. One cannot infer or transport this omission to mean Order 46, rule 10. The applicants have approached the court on a non-existing rule.
The British Order 58 was never available as part of the Laws of Guyana. The practice that developed applied to the 1906 Rules not the 1883 Rules says Senior Counsel Mr Singh. This entire procedure was discussed in Court of Appeal decision of Patterson and Another v Elections Commission which quoted several other decisions of the Court of Appeal.
Further the affidavit attached to the application has no evidence of bias or mala fide (bad faith) on the part of the DPP and as a result her advice to the police on the charges which were instituted by the police is not reviewable by any court; hence, there is no legal merit in the application.
The applicants’ action is an appeal from Writs of Mandamus and Certiorari made to the Honourable Madame Justice Dawn Gregory-Barnes on April 7, 2010 and which were refused by the Honourable Madame Justice Dawn Gregory-Barnes on April 9, 2010. Counsel for the applicants then made an application to the Full Court for the identical redress which was refused by the Honourable Madame Justice Dawn Gregory-Barnes.
When this action continues on Tuesday May 25, 2010 it is expected that Senior Counsel will continue with his submissions elaborating on this point as well as others in support of his submission that the Full Court has no jurisdiction to hear the application before it.
Yours faithfully,
Shalimar Ali-Hack
Director of Public Prosecutions
