Barbara Gayle, Staff Reporter

People's National Party (PNP) candidate Phyllis Mitchell failed in her attempt yesterday to adduce fresh evidence to prove that the election petition she brought against Jamaica Labour Party Member of Parliament, Gregory Mair, was sent to him within the time specified by law.

In dismissing the application, the Court of Appeal described the notice to adduce fresh evidence as "defective". The court said the notice was defective because it did not refer to the source of the evidence.

The court also pointed out that the affidavit did not contain any statement from the person who sealed the relevant document, or any statement from the relevant person as to when it was received at the post office.

After the application was refused, attorney-at-law Abe Dabdoub began making submissions in the appeal which Mitchell has filed against a Supreme Court ruling that Mair was not properly served with the election petition.

Mitchell was relying on an affidavit from the Postmaster General which stated that the election petition was registered on October 9 last year to Mair, and was received at the Redwood Post Office, St. Catherine, on October 11. Mair did not collect the registered mail until October 31.

Lawyers representing Mitchell argued that the mail reached the post office within the 10-day period that the law stipulated an election petition must be served after it was filed in court.

Mitchell had filed the election petition in the Supreme Court on October 1. She contended that Mair had dual citizenship and was not entitled under the Constitution to be an MP. She claimed that Mair has Venezuelan citizenship.

Mair applied to the Supreme Court to have the election petition struck out on the grounds that he was not properly served. He said he was served while sitting in Parliament, and the law did not allow for civil processes to be served on an MP while Parliament was in session.

Mair not properly served

Senior Puisne Judge Marva McIntosh, after hearing evidence in chambers at the Supreme Court, ruled in November last year that Mair was not properly served. She also rejected the claim that Mair was served by registered mail.

Dabdoub submitted yesterday that there was nothing in the Senate and House of Representatives (Powers and Privileges) Act which prohibited the service of an election petition when the House was not sitting, or when Parliament had adjourned.

He said the election petition was left at Gordon House on October 1 last year at a time when Parliament was not sitting. He said that, by leaving the election petition at Gordon House, that would be Mair's usual or last known address. He said the address of an MP was Gordon House.

Dabdoub submitted that by leaving the election petition, which was addressed to Mair in the mailbox at Gordon House, Mitchell would have complied with the rules for service.

The hearing continues today before Justice Algernon Smith, Justice Karl Harrison and Justice Mahadev Dukharan.

barbara.gayle@gleanerjm.com