— CJ describes arguments by lawyers of APNU+AFC in throwing out second election petition
— GECOM ordered to produce statements of poll, statements of recount
By Navendra Seoraj
CITING what she described as “unmeritorious submissions” from the lawyers representing petitioners, Chief Justice (ag), Roxane George, has ruled that the elections petition, 99 of 2020, is invalid on the basis that the second named respondent, David Granger, was served the petition after the prescribed time for service would have expired.
Through this petition, Petitioners, Monica Thomas and Brennan Nurse, had argued that the elections were unlawfully conducted and/or that the results, were affected or might have been affected by unlawful acts or omissions.
Their intention, as such, was for the court to nullify the outcome of the March 2, 2020 General and Regional Elections and to declare that President, Dr. Irfaan Ali, is occupying the seat of office illegally.
The Chief Justice, however, struck out this petition since it was not filed in consonance with the rules outlined in the National Assembly Validity of Elections Act.
It is the entrenched principles of elections law that the provision regarding time must be strictly complied with, as non-adherence to the requisite timeliness was held by courts to result in the nullification of election petitions.
Justice George, in her ruling, said there is a plethora of cases in the English-speaking Caribbean, which confirm that non-adherence to the provision requiring service of all required documents within the statutory time, would result in petition being nullified and dismissed.
This was the case of Joseph and Brown (1994), Mohabir and Cuffy (2015), Joseph and Reynolds (2012), and Brown and Gibson (1994).
Petition, 99 of 2020, which was filed on September 15, 2020, should have been served on Granger five days thereafter. However, according to an affidavit by Nurse, it was served to Granger on September 28.
It was on those grounds that Attorney General and Minister of Legal Affairs, Anil Nandlall, had filed an application seeking to have this petitions struck out, since it does not comply with Section two of the National Assembly Validity of Elections Act.
The initial affidavits of service were filed by the petitioners on September 29, 2020. But, those affidavits, which were all dated September 24, 2020, ‘strangely’ stated that service to the second respondent was effected on September 25, 2020.
“…The documents should have been served on or before September 21, 2020, therefore, September 25 would be outside of the statutory five-day period required for service. The petitioners conceded that the affidavit of service was served on September 25, and it would mean that it was not served within the required time,” Justice George said.
The petitioners, who were represented by Trinidadian Senior Counsel, John Jeremie, in recognising the gravity of their error, filed a supplementary affidavit on November 11, 2020, seeking to negate the September 25 date. He explained that service was effected on September 18, 2020.
Trinidadian Senior Counsel, Douglas Mendes, who represented Vice-President, Bharrat Jagdeo, however, objected to this on the basis that no permission was sought and that the filing, which was done after two months of the filing of the affidavits, violated critical rules.
To this end, the Chief Justice ruled that permission should have been sought, so those affidavits could not be relied on as proof of the timely service to the second respondent.
“Realising the gravity of their obvious error and having been pointed out by the court, the petitioners have sought to correct this error and have failed miserably… the evidence is manifestly unreliable and cannot be acted to prove that the second respondent was served on September 18, 2020,” Justice George ruled.
She concluded that Granger, who was the Presidential Candidate for APNU+AFC in the March 2, 2020 General and Regional Elections, was not served within the five-day period required by the rules.
Additionally, Justice George rejected arguments put forward by lawyers representing the petitioners who claimed that Granger was added as a misjoinder and that he is not a necessary party, so should be struck out.
However, after careful analysis of Section 4(2) Chapter 104 of the Constitution and two precedential cases, the Chief Justice ruled that Granger is a “necessary party” to the matter.
In responding to arguments on this matter from lawyers representing the petitioners, Justice George said: “This situation is no different [from the precedential cases], therefore, the submission that none of the parties, who secured seats in the National Assembly should be considered a necessary party, is preposterous, and the opposite position also advanced is equally absurd that those representatives for whom no person named on their list are elected are also not persons required to be served.”
She further ruled that the local elections are not restricted to national elections which determine presidency and members of Parliament, but also apply to regional representation. So, to exclude the representative [Granger] of a list which commands 31 of 65 seats in the National Assembly and a list which has representatives on Regional Democratic Councils (RDCs) would be to deny the voice of a representative of a large number of electors.
“Focus cannot be placed on him alone, but as a representative of the list of candidates… he does not only represent himself, he is a necessary party to the election petition, 99 of 2020,” Justice George ruled.
It is for this reason that the late service of the petition on the second respondent amounts to non-service and led to the nullification of 99 of 2020. The same, however, could not be said for petition 88 of 2020, which will be heard in the court.
In delivering her ruling on this matter, the Chief Justice said: “The same cannot be said for petition 88 of 2020, as the procedures in filing and serving were fully complied with… indeed, to permit 99 of 2020 to proceed would be a disservice to the petitioners who ensured they complied.”
In the first petition, 88 of 2020, Petitioners Claudette Thorne and Heston Bostwick want the court to determine among other things, questions regarding whether the elections have been lawfully conducted or whether the results have been, or may have been affected by any unlawful act or omission and in consequence thereof, whether the seats in the National Assembly have been lawfully allocated.
Attorneys Mendes and Kashir Khan requested that, in moving forward with this petition, certain documents such as Statements of Polls and Statements of Recount, which are in the possession of the Guyana Elections Commissions (GECOM), must be lodged for safekeeping with the registrar of the court.
Mendes specifically reminded the court that the Representation of the Peoples Act allows the Chief Elections Officer (CEO) to destroy all elections documents after a 12-month period would have elapsed.
The Chief Justice agreed to the requests and granted an order for the Statement of Polls (SOPs) and Statements of Recount (SORs) be submitted to the court. There are 2, 339 Statements of Polls.
Subsequent to the March 2, 2020, in the same month, High Court Judge, Franklyn Holder, had refused an application made to him for GECOM to produce Statements of Poll for District Four.
Following a slew of legal challenges and international intervention, a recount was convened and the figures showed that the PPP/C received 233,336 votes while the APNU+AFC coalition got 217,920 votes.
Both the SOPs and SORs are expected to serve as evidence when the petition comes up in the court for hearing.
Justice George has given Attorney-at-Law Roysdale Forde, who is representing the petitioners, until February 12 to file his submissions and the respondents, including the Attorney General, until March 19, to file submissions in reply. The parties must return to court on April 7, 2021, barring any directions by e-mail.