APNU/AFC bid to save election petition: Appeal Court questions whether dismissed petition should be heard by Full Court

Continuing a preliminary hearing on its jurisdiction to hear an election petition dismissed for procedural irregularity, the Guyana Court of Appeal on Thursday questioned whether the right of appeal in this matter lies with the Full Court.

Election petition #99 which was filed on September 15, 2020, was dismissed on January 18 by Chief Justice Roxane George, SC, as a result of the petitioners – Brennan Nurse and Monica Thomas’ – failure to effect service on the second-named respondent, former President David Granger within the prescribed time.

With the election petition, Nurse and Thomas were seeking to invalidate the results of the March 2020 National Elections, which they contend were conducted in violation of the laws. Based on the polls, they argued that it is Granger who should be declared the duly elected President of Guyana.

Chancellor of the Judiciary Justice Yonette Cummings-Edwards

As such, they further petitioned to have the court nullify the declaration of PPP/C Presidential Candidate Irfaan Ali as President. They are now appealing the Chief Justice’s ruling to the Court of Appeal.

No jurisdiction argument

Attorney General Anil Nandlall, SC, and Douglas Mendes, SC who are representing President Dr Irfaan Ali and Vice President Bharrat Jagdeo- who are among the named respondents- argued that the appellate court has no jurisdiction to hear the case.

Justice of Appeal Dawn Gregory

But Roysdale Forde SC, and John Jeremie, SC- who appear for the petitioners – argued that the court does have jurisdiction to entertain the matter under Article 123 of the Constitution and the Court of Appeal Act.

Justice of Appeal Rishi Persaud

However, Chancellor of the Judiciary Justice Yonette Cummings-Edwards and Justices of Appeal Dawn Gregory and Rishi Persaud, on Thursday, questioned whether the appeal on the procedural issue could have gone to the Full Court.

“No, it could not have gone to the Full Court,” Nandlall said in response to a question posed by Justice Persaud. Because of the special and unique jurisdiction conferred upon the High Court to hear an election petition, Nandlall argued that the Civil Procedure Rules and Full Court Act have no application in this case.

The Attorney General added, “That is why every case dealing with an election petition… You will see a whole recitation of the historical orientation because it was a power only exercised by Parliament. It was a Parliamentary power, not a judicial power, so you cannot disconnect the historical evolution of the jurisdiction from its current state.”

At a previous hearing, the Attorney General had reasoned that Article 163 of the Constitution bestows upon the High Court a peculiar jurisdiction to hear such matters. He, therefore, urged the appellate court to strike out the appeal as there is no statutory or constitutional jurisdiction given to that court to hear an election petition dismissed for procedural impropriety or any other reason not stated in Article 163 (1).

He said that Article 163 constitutes the complete code of how election petitions are to be determined, lists the types of issues that are to be raised by an election petition, and also limits the grounds upon which appeals flow from the determination of those issues.

“Article 163 limit appeals to be filed from decisions coming from the High Court that are commenced by an election petition only to the determination of the questions identified in the Article.”

“The learned Chief Justice in her ruling struck out the petition on the ground that there was non-service. In her written decision, her honour stated that service within the time prescribed is a condition precedent to the hearing and determination of an election petition,” he submitted.

Given the foregoing, he said that the Chief Justice held that the High Court has no jurisdiction to proceed to hear and determine the petition if one of those conditions precedent is not complied with. According to Nandlall, “In this case, the question was service and the court dismissed the petition on those grounds.”

He added, “The court never determined the questions which the petition raised to be determined which are the questions raised in Article 163 (1) from which Article 163 (3) says an appeal lies to the Court of Appeal upon the determination of those questions or orders consequential to the determination of those questions.”

As such, Nandlall argued that with those questions having not been determined, there is no right of appeal in any other statute nor the Constitution upon which lawyers for the petitioners can hinge their appeal.

Rejected contention

The Senior Counsel rejected Forde’s contention that when matters determined by the High Court do not fall under Article 163 an aggrieved party can file an appeal under the court’s ordinary jurisdiction.

“And he [Forde] says, that Justice George’s ruling since it did not determine the questions and not caught within the traditional election jurisdiction created under Article 163, he bifurcates and creates a new jurisdiction,” Nandlall said. The Attorney General noted that in over 200 years of jurisprudence, no court has ever interpreted Article 163 in the manner in which Forde is.

“The election jurisdiction, the reason why it is regarded as peculiar, extraordinary, exclusive, limited, these are the very characteristics that prevent any other rules or any other act or any other legislation to come and be part of the election laws jurisprudence,” the Attorney General added.

Full Court

Justice Cummings-Edwards then asked whether in the absence of any further provisions under Article 163 (4), in terms of filing an appeal, given the fact that the rules of the High Court specifically set out the procedure, if this matter should be properly entertained by the Full Court.

Responding to her question on Thursday, Nandlall said, “If we accept that this is a special jurisdiction, that this is an election court… When it sits to hear an election petition it is an election court, it is a special court exercising that special jurisdiction. The authorities in the Caribbean have established clearly that the Civil Procedure Rules, that the High Court Act do not apply…. Only that which applies is the Constitution.”

According to him, the jurisdiction to hear an election petition is constitutionally rooted, and this is so throughout the Caribbean. For example, he pointed out that Jamaica has amended its laws to allow for the Civil Procedure Rules to apply in limited ways to the election jurisdiction.

“But that came by a special amendment,” the Attorney General noted. He, however, said that this is not so in Guyana. “The National Assembly (Validity) of Elections Act has to be examined to see if it confers jurisdiction on the Full Court. And in my examination of same-both the Act and the Rules, I cannot [make] out such an interpretation,” the Attorney General noted.

The matter comes back up again on October 26, when other lawyers, including Jeremie, will make submissions regarding the Chancellor’s question. The Court of Appeal is also hoping to conclude arguments on the preliminary issue of jurisdiction that day.

Non-service

Election petition #99 was dismissed owing to non-compliance with effecting service as prescribed under Section 8 of the National Assembly (Validity of Elections) Act and Rule 9 of the National Assembly (Validity of Elections) Rules.

The manner of service is prescribed in Rule 9 (1) of the National Assembly (Validity of Elections) Rules, which imposes on the petitioners the statutory obligation to effect service within five days after the presentation of the petition.

Petition #99 having been filed on September 15, 2020, should have been served on the former President five days thereafter which would have been September 21, 2020, since the fifth day – September 20, 2020 – was a Sunday.

However, in the affidavit of service of Nurse it was stated that the petition, along with the relevant documents, was only served on Granger on September 25, 2020 – five days outside of the statutorily prescribed period. (G1)

Lawyers in the appeal case over the first dismissed Election Petition argue over having case reinstated

Aug 01, 2021 News, Source - https://www.kaieteurnewsonline...ing-case-reinstated/

Kaieteur News – Lawyers in the appeal case to have the first dismissed Election Petition case reinstated, have raised contentions over the Appeal Court‘s jurisdiction to hear the matter.

From left: Trinidadian Attorney, Douglas Mendes and Attorney General, Anil Nandlall SC.

The first election petition #99 challenging the outcome of the March 2, 2020 elections was dismissed by Chief Justice Roxane George-Wiltshire, SC on January 18, last while the remanding election petition #88 was thrown out on April 26 2021 by the same judge. Both matters have since been appealed.

In his arguments before Justice of Appeal and Chancellor of the Judiciary Yonette Cummings-Edwards and Justices of Appeal Dawn Gregory and Rishi Persaud on Thursday, Attorney General (AG) and Minister of Legal Affairs, Anil Nandlall SC sought to shut any notion that the appeal should be heard.

His arguments were supported by lead counsel and Trinidad attorney Douglas Mendes who is representing the interest of President Irfaan Ali and Vice President Jagdeo who are among the named respondents in the matter.

Together, the lawyers faced off with attorneys John Jeremie and Roysdale Forde SC, both of whom are representing the interest of the petitioners, Monica Thomas and Brenan Nurse who on behalf of the A Partnership for Nation Unity + Alliance For Change (APNU+AFC) Coalition are seeking to challenge the validity of the March 02, 2020, national elections.

The petitioners are arguing that those elections were conducted unlawfully and that based on the polls, it is Granger who should be declared the duly-elected President of Guyana. However, their case titled Election Petition #99 was dismissed on January 18 by the Chief Justice due to their non-compliance with effecting service on former President Granger, himself.

Yesterday, Forde and Jeremie presented arguments towards having the case reinstated. The lawyers essentially argued that the Appeal Court has a right to hear and determine an appeal of an elections petition matter. The two Senior Counsel said that the right of appeal to a dismissed election not only lies under Article 123 of the Constitution, but also the Court of Appeal Act.

According to them, the ruling handed down by the Chief Justice is a temporary but final order, and therefore, it can be appealed to the appellate court.

The lawyers on the other side, held a different view. Nandlall argued vehemently that the appeal should even be entertained much less heard by the Appeal Court.

He submitted that the decision of the Chief Justice that is being appealed arises out of an election petition, which has been given an “extraordinary, special, limited and peculiar” jurisdiction under Article 163 of the Constitution of Guyana.”

The AG explained that the constitutional provision specifies the types of questions, which can be raised in an election petition but also limits the grounds upon which appeals flow.

Nandlall noted that in striking out petition #99, Chief Justice never determined these questions since the matter never even made it to trial. “Those questions having not been determined, there is simply no right to an appeal,” he argued.

Further, in response to a question by Justice Persaud as to whether the appeal could have been entertained at the level of the Full Court, given the peculiar tier system of Guyana’s judicial structure, Nandlall said because of the special and unique jurisdiction conferred upon the High Court to hear an election petition, Full Court Act would have no application in this case.

The Attorney General added too, “That is why every case dealing with an election petition in the introductory [stage], you will see a whole recitation of the historical orientation because it was a power only exercised by Parliament. It was a Parliamentary power, not a judicial power, so you cannot disconnect the historical evolution of the jurisdiction from its current state.”

“Article 163 limits appeals to be filed from decisions coming from the High Court that are commenced by an election petition only to the determination of the questions identified in the Article. The learned Chief Justice in her ruling struck out the petition on the ground that there was non-service. In her written decision, her honour stated that service within the time prescribed is a condition precedent to the hearing and determination of an election petition,” he submitted.

The Chief Justice in dismissing that election petition held that that service was not effected in accordance with Section 8 of the National Assembly (Validity of Elections) Act and Rule 9 of the National Assembly (Validity of Elections) Rules.

Section 8 of the National Assembly (Validity of Elections) Act states therein that within the prescribed time, not exceeding five days after the presentation of an election petition, the petitioner (s) shall in the prescribed manner serve on the respondent a notice of the presentation of the petition, and the nature of the security or proposed security, and a copy of the petition unless the court otherwise directs on the application of the petitioner. The appeal matter over the dismissed election petition is set to continue on October 26, 2021.