ATTORNEY-GENERAL and Minister of Legal Affairs, Anil Nandlall, S.C., on Friday filed a Notice of Motion in the Court of Appeal seeking an Order to strike out the matter pertaining to Election Petition 99 of 2020.
In the High Court, the Chief Justice (ag), Roxane George, had described the submissions from lawyers representing the petitioners in said matter as “unmeritorious,” and had ruled that the petition is invalid on the basis that the second named respondent, David Granger, was served the petition after the prescribed time for service had expired — a procedural impropriety.
Subsequently on February 24, Attorney-at-Law Roysdale Forde, S.C. representing the petitioners Monica Thomas and Brennan Nurse, moved to the Court of Appeal to have the chief justice’s decision set aside.
In the court documents seen by this publication, Nandlall is seeking the Order on the grounds that the Court of Appeal does not have jurisdiction to hear and determine the appeal.
Nandlall in the motion contended that pursuant to Article 163 (3) of the Constitution of Guyana, an appeal in an election petition lies to the Court of Appeal accordingly:
From decisions in the High Court on the granting or refusing of leave to institute proceedings for the determination of any question referred to in Article 163 (1) of the Constitution.
And, the determination by the High Court of any question referred to in Article 163 (1) of the Constitution or any order made in consequence of such determination.
In these respects, he submitted that the decision of the chief justice (ag) is not a decision granting or refusing leave to institute proceedings for the determination of any question referred to in Article 163 (1); neither did it involve a determination of a question referred to in the same article.
Further, Nandlall contended that “the jurisdiction of the Court of Appeal to hear an appeal from a decision of the High Court in an election petition must be founded in the Constitution of statute.”
“There is no statutory or constitutional instrument granting jurisdiction to the Court of Appeal to hear an appeal of an election petition for procedural impropriety, or any other reason not stated in Article 163 (1) of the Constitution,” the Attorney-General stated.
In an affidavit in support of the motion, Solicitor-General Nigel Hawke also purported that the Court of Appeal entertaining the appeal pertaining to the elections petition would be “unlawful, irregular and unconstitutional.”
Hawke made his contention on the same grounds as the Attorney-General, noting that the jurisdiction in relation to an election petition is “peculiar and special and the principles of law and procedural rules and regulations attendant thereto are treated, interpreted and applied with a degree of rigidity which distinguishes this jurisprudence from any other.”
The appeal, among other things, is contending that the chief justice erred in law and misdirected herself when she misapplied the doctrine of strict compliance by holding that such compliance related to the contents of the Affidavit of Service instead of the filing of the Affidavit of Service in a timely manner.
Another ground claims that the chief justice erred and misdirected herself when she failed to consider the objective of the petition in making her decision on the content of the Affidavit of Service. A date has not been set by the Appeal Court for hearing.