Judge to rule on whether she has jurisdiction in hearing Nandlall challenge to books charge
On January 3rd of the New Year, acting Chief Justice Roxane George-Wiltshire SC, will rule on whether she has jurisdiction to hear the challenge mounted by former Attorney General Anil Nandlall, over the validity of charges levelled against him for the alleged theft of a quantity of Law Reports while he was in office.
Requesting that both sides satisfy her that she does have jurisdiction to hear the matter, the chief justice at a hearing on Friday morning heard from Senior Counsel Neil Boston—one of a battery of Nandlall’s attorneys.
When the case is called again on January 3rd, the court will hear presentations from attorney Leslyn Noble for Superintendent Trevor Reid who is listed as one of the respondents in Nandlall’s action.
The chief justice said that on that day she will thereafter rule on whether or not she has jurisdiction to hear the matter.
Earlier this month, lawyers for the former attorney general moved to the High Court to have the larceny charge levelled against him by the state thrown out, while also asking for a stay of the pending Magistrates Court proceedings, until a decision is made.
In citing Magistrate Fabayo Azore for numerous errors made during his trial thus far, Nandlall’s attorneys argue that the “justice of this case” demands that his application for a stay of the proceedings in the lower court be made urgently.
The chief justice has, however, not yet addressed Nandlall’s stay application, which is likely to be done after her ruling on the issue of jurisdiction.
With the matter before the lower court set to continue closer to the end of January, 2019 and not earlier as had been previously fixed, the chief justice at a hearing on December 13th indicated that the stay application would not have been dealt with at that point but a little later on.
In his application, which lists Magistrate Azore as the other respondent, Nandlall is asking for the matter before her to be stayed until the hearing and determination of the Fixed Date Application which challenges the validity of the charge.
Pointing out that the date for Nandlall to lead his defence was rescheduled from January 8th, 2019 to December 6th, 2018, his lawyers had said they were fearful that unless restrained, the magistrate would proceed to hear and determine the matter, thereby defeating and rendering futile the application.
That matter has, however, since been adjourned to January 25th.
In his application, Nandlall argues among other things, that hat the magistrate erred in law when she overruled his submission that the offence of “Larceny by a Bailee contrary to Section 165 of the Criminal Law Offences Act, Chapter 8:01” is not known to the Laws of Guyana.
He argues that the decision made by the Magistrate is contrary to, and in violation of Articles 40, 144(4) and 149(d) of the Constitution of Guyana, unlawful, illegal, without and in excess of jurisdiction, erroneous in law, unreasonable, null, void and of no effect.
He notes that while the particulars of the charge allege that between the 18th day of May, 2015 and the 29th day of May, 2015, that he was the Attorney General and Minister of Legal Affairs and in that capacity he was a bailee of fourteen Law Reports of the Commonwealth, in fact during this period he did not hold either positions and therefore could not have been the bailee.
In his affidavit, Nandlall reiterates that in 2003 he commenced subscribing to Lexis Nexis, the publishers of the Law Reports of the Commonwealth and that during discussions with former President Donald Ramotar, immediately prior to being appointed Attorney General, “I requested that, as a condition of my service, the Government of Guyana take over the payment arrangements I had with Lexis Nexis (U.K.) …during my tenure as the Minister of Legal Affairs and Attorney-General.” Nandlall states that after Ramotar agreed to this condition he took up the position as Attorney General. When he demitted office, he said that payment arrangement ended.
He said that he learnt through the press of a special audit into the said Law Reports and on 16th November, 2015 he wrote the Auditor General after being contacted for a response in respect of the matter.
Ramotar, he said, also wrote the Auditor General on the matter.
Nandlall pointed out that although the Auditor General never implicated him in any wrongdoing in the 2012, 2013, 2014 and 2015 Auditor General’s reports, he was charged on April 27th, 2017.
According to him, his attorneys presented “copious” written submissions in support of the contentions made and the magistrate in a “one sentenced ruling” overruled those submissions and called upon him to lead his defence.
In the fixed date application, Nandlall’s lawyers are asking for a declaration that the charge is an offence unknown to the law, rendering it unlawful, illegal, null, void and of no effect and as such the magistrate has no jurisdiction to hear or continue to hear and determine it; an Order or Writ of Certiorari quashing the charge; a declaration that the magistrate committed an error of law in ruling that the prosecution established a case against him; a declaration that the magistrate committed an error of law by overruling the applicant’s no-case submission in respect of the offence and three Orders or Writs of Certiorari quashing the decisions made.