— Attorney-General argues
ATTORNEY-GENERAL and Minister of Legal Affairs, Anil Nandlall, S.C., on Thursday, said that the Guyana Court of Appeal does not have jurisdiction to hear and determine the appeal of APNU+AFC’s Election Petition 99 of 2020.
On January 18, 2021, Chief Justice (Ag) Roxane George had struck out Elections Petition 99 of 2020, which had been filed by Monica Thomas and Brennan Nurse, on the grounds that the elections were unlawfully conducted and/or that the results were, 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 declare that President Dr. Irfaan Ali is occupying the seat of office illegally.
The appeal was presided over by Chancellor Yonette Cummings-Edwards, and Justices of Appeal Dawn Gregory and Rishi Persaud.
APNU’s attorneys-at-law Roysdale Forde, S.C., and Trinidadian John Jeremie, S.C., during their argument had contended that the Appellate Court has jurisdiction to hear the appeal of the petition. Jeremie had even asked the court to reinstate the petition, which was thrown out by the CJ on procedural grounds.
According to Forde and Jeremie, the CJ’s ruling was a final order, which can be appealed. They’d also contended that the petitioner’s right of an appeal lies under Article 123 of the Constitution of Guyana, and the Court of Appeal Act.
However, the AG has rejected the Coalition lawyers’ contentions, saying that the court of appeal does not have jurisdiction to hear the case, since the matter was thrown out by the High Court, and no evidence was heard.
Nandlall added that the jurisdiction of the Court of Appeal to hear an appeal from a decision of the High Court in an election petition must either be found in the Constitution or a Statute.
Additionally, 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.
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 the foregoing circumstances, he submitted that the decision of the CJ 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.
The AG said, “One would have expected, therefore, that Mr. Forde and Mr. Jeremie would have examined the learned chief justice’s judgement, and point to us where she determined one of the questions that they ask her to determine.”
NEVER WENT TO TRIAL
Nandlall said that the jurisdiction of the High Court was not “invoked” to answer this question in the petition, since the matter never went to trial, and was thrown out.
“Those questions having not been determined, there is simply no right to an appeal,” the AG said, as he further dismantled the lawyers’ arguments.
He also chided the lawyers for using case laws from Kenya and South Africa to argue their case, given that they are radically different from rules and law in Guyana and the Caribbean.
“Unless the appeal is conferred, then it does not exist,” the AG said.
Nandlall’s argument was agreed upon by Trinidadian Senior Counsel Douglas Mendes, who is representing Vice- President Bharrat Jagdeo, Attorney-at-Law Kashir Khan and Timothy Jonas.
In response to Justice Persaud’s enquiry as to whether the appeal should have been filed in the Full Court of the High Court instead of the Court of Appeal, the attorney-general said that based on the uniqueness of the case, like the appeal court, the full court has no jurisdiction to hear the case also.
As such, the case has been adjourned until October 26, during which time the parties involved are required to lay over written submissions and reply.
In January, Forde had moved to the Court of Appeal to have the Chief Justice’s decision on Petition 99 of 2020 set aside.
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 is 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.
The Coalition has named several respondents, including Chief Elections Officer (CEO) of GECOM, Keith Lowenfield; Vice-President Bharrat Jagdeo; and representatives of several political parties. Former President, David Granger, is also named as a respondent. In June, the Coalition appealed the second elections petition, which was filed by Claudette Thorne and Heston Bostwick. The petition was dismissed on April 26 by the CJ, on the grounds of serious non-compliance with the Constitution of Guyana, and electoral laws as it relates to GECOM’s conduct of those elections. The Chief Justice held that the petitioners failed to present evidence to support that the conduct of those elections contravened the Constitution and electoral laws.