State lawyers have served notice that they will profusely oppose attempts by attorney-at-law, Ruggles Ferguson to get a full panel of Court of Appeal Justices to overturn a decision taken by a single Appeal Judge last month in a matter involving sacked Supervisor of Elections, Judy Benoit and Governor-General, Dame Cecile La Grenade.
Benoit is trying to get the law courts to review the decision taken by Dame Cecile last year to remove her from the post following complaints from the one year old Keith Mitchell-led New National Party (NNP) government.
The State is smarting from a victory over Ferguson when a single judge of the Court of Appeal ruled in favour of arguments put forward by Solicitor-General, Dwight Horsford who appeared for the Governor-General in the court matter.
A state official told this newspaper that the Ferguson application before the Court of Appeal “will be trenchantly opposed by the Solicitor General on behalf of the GG”.
The two sides appeared before Justice of Appeal Louis Blenman on January 21 after challenges were reportedly made by Horsford to an order made by high court judge, Justice Paula Gilford granting Benoit permission to file for judicial review of the GG’s decision to remove her from the performance of the functions of the office of Supervisor of Elections.
The Judge is said to have made the order on legal papers submitted to her by Ferguson acting on behalf of Benoit and without hearing either side, defense or Counsel for the GG.
According to a legal source, the rules permit the judge to do so “if she considers it desirable or appropriate to so do”.
The NEW TODAY understands that the order was made on the November 14, 2013 but the court did not communicate the decision about the order to either parties, as well as failed to draw the order up or have it served on the parties.
“So neither the GG or Benoit knew that leave was granted”, said the official.
He added that what was rather intriguing is that the application for leave was dated by the Supreme Court Registry as having been heard on November 28, 2013.
The records will show that on November 25, 2013, Ferguson served Dame Cecile with an application for leave and two days later Horsford filed “a Notice of Objection to the application for leave” and put forward his written arguments.
The registry then notified the two sides on November 28, 2013 that the Benoit matter was adjourned to December 12, 2013 for hearing before Justice Gilford in High Court No. 2.
This newspaper that on the day in question, Ferguson was on his feet making oral arguments in support of leave when the Judge interrupted him.
A source who asked not to be named said the judge “sent for her note book and when she got the note book advised the parties counsel that she already granted leave and apologised for not sending out a leave order”.
The court official said: “The Solicitor General (Horsford) inquired of her (the judge) what the order stated; she read out the order and her reasons for the order granting leave to Benoit. The Solicitor General again inquired whether the leave order contained the usual 14 day condition for a claim to be filed in pursuance of leave and whether he would be able to have sight of a copy of the order. The Judge replied that the order would be made available that same day.
“The Solicitor General then indicated to the judge that in light of the order made on the 14th November, 2013 the dimension of things changed. The Judge then indicated that she would set the order to take effect from that day, the 12th December, 2013 and would make the order conditional upon Benoit filing a claim within 14 days of the order”, he added.
According to information reaching THE NEW TODAY, the Benoit matter took another twist when on December 16, 2013, the Solicitor General was served with an order dated December 12, 2013 which indicated that leave was granted on that date.
The source said that as far as Horsford was concerned this was “contrary to what the judge said in court that it (the order) was made on 14th November, 2013”.
He went on: “The Solicitor General filed for leave to appeal to the Court of Appeal on the essential grounds that the Judge having prior to the 12th December 2013 made an order granting leave conditional on Benoit filing a claim within 14 days of that order, there was nothing for the judge to adjudicate again on the 12th December, 2013”.
The legal official pointed out that Horsford was taking the position that since Justice Gilford had already granted leave on the application, “there was no longer a pending application before (her) to grant leave on”.
He noted that the grant of leave is by the Civil Procedure Rules of Court and conditional upon action being taken within 14 days of the leave and that order dies at the end of that period.
“….In any event, the order granting leave expired and could not be revived or revisited. Even if it hadn’t expired, the order made on the 14th November 2013 could not be extended because the rules of court do not permit the judge to do so”, the official quoted Horsford as saying.
In his ruling, the Court of Appeal Justice ruled in favour of Horsford by siding with his arguments that Dame Cecile had a realistic prospect of succeeding on an appeal and that the Judge in the lower court had no jurisdiction to extend the time within which to comply with the original grant of leave.
“The Justice of Appeal therefore granted the GG leave to appeal Justice Gilford’s order by which Benoit was granted leave, treated the GG’s application for leave to appeal as the appeal itself and allowed the appeal”, the source said.
“The result is that Benoit’s proceedings in the High Court against the GG have been removed. Benoit’s proceedings have been shut down … by a procedural point taken before the Court of Appeal”, he added.
In the wake of this ruling by the Court of Appeal, Ferguson acting for Benoit has taken steps to seek a review of the ruling by a three member panel of the Court of Appeal justice.
Ferguson is arguing that since his client (Benoit) did not know of the original order of Justice Gilford made on November 14, 2013, she was not bound by it and it was a mere administrative error which the court could correct as it did by the order of December 12 2013.
A date is still to be set for hearing of the matter before the full Justices of Appeal.