Dear Editor,
Benjamin E. Gibson was an indomitable lawyer. His indomitability gave us the landmark Guyanese trilogy of case law in Caribbean public law – Re Sarran, Re Langhorn, Re Chichester in the 1960s. In 2006 his indomitability gave us another. It is Griffith (Brent) v Guyana Revenue Authority and Another. It is a CCJ decision. It is reported at (2006) 69 WIR 320. The Griffith case tell us why, and gives us the reassurance, that the beleaguered PPP/C last ditch effort at frustrating the declaration of David. A. Granger as the winner of the 2020 GREs is doomed to fail.

Editor, in my last letter I craved your readers understanding of some highly legalistic stuff as I expounded on the valid votes aspect of our democratic constitutionalism (“neither the Chair, nor Gecom can direct the CEO” – GC Wednesday June 24th) the point cannot be stressed enough that no constitutional democracy countenances a presidency assumed on the basis of manifest fraudulent contrivances and machinations. And let me, in passing, be pelucidly clear: I am not for one moment suggesting that votes on ballot papers merely improperly stamped by some in efficient presiding officer, are not valid. Not at all. Such like irregularities, I apprehend, are not part of the tangled web of fraud.

But I must return to Griffith (Brent) v Guyana Revenue Authority and Another. Now, Brent Griffith was a customs officer. He was dismissed by the PPP/C government for his opposition politics. He challenged his dismissal in the Courts. In both the local High Court, and the Court of Appeal he lost. (I have always thought that Griffith case manifested a trivialization of constitutional public law in preference for private law conceptions on which basis Griffith lost, but, of course, this letter is no place for further elucidation on that aspect). For reasons, details of which are not apposite for the purposes of this letter, Griffith then sought SPECIAL LEAVE from the CCJ to appeal to the CCJ against the decision of the CoA. That special leave that Griffith (through his Counsel Gibson) applied for WAS OF THE SAME TYPE THAT Jagdeo and Irfran Ali has applied for to APPEAL TO THE CCJ against the final unappealable majority ruling of the CoA that the words “more votes cast” in article 172 (2) (b) means more valid votes. The CCJ REJECTED Griffith’s APPLICATION. It dismissed his motion.

The decision of the CCJ was unanimous. It was a strong Bench. (de La Bastide, P. Nelson, Pollard, Bernard, Wit, JJJJ.). This is what Nelson, J who delivered the judgment of the court said at para [23] viz “The Court, however always has the option of refusing special leave even in as- of- right cases, if it finds that the appeal has no realistic chance of success” and then concluding, the learned Justice says this at parag [56] viz “The applicant has not succeeded in demonstrating that his intended appeal has any real prospect of success by showing either…or that he has a constitutional right to natural justice in respect of the termination of his employment with the Revenue Authority. WE THEREFORE REFUSE TO GRANT HIM SPECIAL LEAVE TO APPEAL AGAINST THE DECISION OF THE COURT OF APPEAL” (emphasis mine). I submit that the Griffith case is an instructive, illuminating analogy. And so, I argue that both on principle, and on authority, the Jagdeo/Ali application for special leave is doomed. The ouster of the CCJs jurisdiction is in plain, unambiguous words, whether under article 177 (4); or whether one resorts to section 4 (3) of the CCJ Act, 2004. As Lord Diplock in the House of Lords when upholding arguments that no jurisdiction existed to hear an appeal, asked rhetorically in the instructive jurisdiction issue case of In re Racal Communications Ltd [1981] AC 374 at page 379 viz “What could be plainer than that”? Provisions materially similar to article 177 (4) and section 4 (3) were present in the re Racal case.

Editor, I, of course, dare not presume to tell the CCJ, that Griffith is it’s own landmark decision which, in principle cannot be distinguished from the Jagdeo/Ali application for special leave to appeal. Yet, I remind myself that as all lawyers and Judges alike knows, justice is not some cloistered virtue. I am merely endeavouring to make fair comment on a matter of profound public/national interest, concern and unease for we, the Guyanese electorate. And so, en passant, I stir these points: (i) is not the jurisdictional hurdle which Jagdeo/Ali has to surmount to persuade the Court to judiciously exercise its discretion in favour of granting then special leave, a legally insurmountable one?; (ii) is not the present case an obvious, stronger one for refusal than Griffith?; (iii) dos the doctrine of judicial precedent or stare decisis (i.e. let the decision stand) require the CCJ not to depart from Griffith but follow/apply it? (iv) does the words “exclusive jurisdiction” in art 177 (4) not operate, prospectively, to exclude the CCJ? These questions, only the CCJ can authoritatively answer.

I end with this: there is a saying in the legal profession: hard facts makes for hard cases. But I venture to suggest that viewed objectively, and with judicial detachment from the hard facts of the 2020 GREs, the CCJ is not called upon to decide a hard case at all. It is a simple case. It simply has no jurisdiction. The constitutional jurisdiction hurdle presented by article 177 (4) (even without having to invoke and rely further on section 4 (3) of the CCJ Act, 2004 for its clear intended non conferral of any appellate jurisdiction) is in my considered view, insurmountable. And the deeply entrenched doctrine of the supremacy of our Constitution (article 8) screams at us that the matter ends with the finality mandated by the supremacy of article 177 (4).

Regards,
Maxwell E. Edwards