WHEN the matter of the private criminal charges brought against him has made its passage through the Court, Chief Elections Officer (CEO), Keith Lowenfield, should bring a tort of malicious prosecution against those who took him to court without probable cause and with malicious intent.
This is the advice of Leader of the Alliance For Change (AFC), Khemraj Ramjattan, who made the remarks on Sunday in response to the ill-preparedness of the lawyers who brought the said case against Lowenfield on July 24.
After bail in the sum of $450,000 had been granted to the CEO on three charges relating to alleged fraud and misconduct, the prosecutors, through their Attorney-at-Law, Glenn Hanoman, told the Court that they still had some 800 statements to gather from various witnesses.
They asked for a month-long adjournment to do so but the Court granted them up until mid-August. One of Lowenfield’s attorneys, Nigel Hughes, said that it was evident that the prosecutors were not ready and had merely set out to bring politics into the courtroom.
In his opinion, Ramjattan said that no forthcoming evidence on such serious charges should have resulted in the matter being thrown out by the Magistrate, Faith McGusty.
“It is an abuse of the process. You do not have statements on the file that can produce a charge, in accordance with the regular law as we know it, and you still proceed to the Court to prosecute? That’s persecution, that’s not prosecution. Although we do have a right to bring private criminal charges in Guyana, I believe, strongly, that absolutely — at the time when they brought these charges — not having the evidence it ought to have been dismissed,” he said while on an APNU+AFC programme.
On the programme it was noted that back in June 2020, one day before the High Court was set to rule in a contempt case – Reeaz Holladar v. Returning Officer for Region 4 Clairmont Mingo and others, Anil Nandlall – the applicant’s attorney, withdrew the matter over lack of sufficient evidence.
Though not handing down her ruling in the matter, Chief Justice (ag) Justice Roxane George-Wiltshire said that “the evidence is very, very deficient” and, in effect, would have wasted the Court’s time.
On the programme, Ramjattan said that not only do the prosecutors lack evidence but they have brought a case against a Constitutional office holder who, at all times, did his legitimate duty as CEO, according to the Law and Constitution.
Lowenfield has explained that, if he is to conduct his duties in keeping with the Constitution and law, the National Recount cannot form the basis of a declaration.
Drawing attention to Section 84 of the Representation of the People Act (ROPA), he pointed out that Returning Officers are required to make their respective declarations, and the CEO, in accordance with Section 96 of the Act, is required to consider the declarations in the preparation of his Elections Report.
It is on this basis that he submitted his last Elections Report to the Commission on the basis of the 10 declarations made in March 2020.
Coming out of the Magistrates’ Court on Friday, Attorney-at-Law, Nigel Hughes, had stated that Hanoman made many political and personal statements about the CEO, as if he were attempting to make the Court into a “forum for a political battle”.
Ramjattan, in calling for the CEO to bring a tort of malicious prosecution against his current prosecutors said that he agreed with the position of Hughes.
He said: “I agree with him because, obviously, it is being thus done. We should not allow that, quite frankly. However, I believe also, the lawyers should file — immediately after — a malicious prosecution litigation at the High Court for damages…as soon as this thing has ended because it was obviously malicious and it is obviously wrong. I think substantial damages would be awarded in favour of Mr. Lowenfield.”
In dealing with the law, malicious prosecution occurs when one party has knowingly, and with malicious intent, initiated baseless litigation against another party. This includes both criminal charges and civil claims, for which the cause of action is essentially the same.
Generally, any malicious criminal proceeding that lacks probable cause — regardless of whether the claimant was tried or even indicted — may give rise to a malicious prosecution claim.
Ramjattan iterated: “You don’t, for criminal charges where the proof is ‘beyond reasonable doubt’, do that to a Constitutional office holder. It is an absolute abuse of process and I believe that the Magistrate should have revisited it on that day, if not earlier, or the lawyers should go to the High Court with an abuse of process piece of litigation.”