‘We are going around in circles’
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Attorney-General and Minister of Legal Affairs, Mohabir Anil Nandlall
Attorney-General and Minister of Legal Affairs, Mohabir Anil Nandlall

-AG says during appeal hearing of dismissed elections petition

ATTORNEY-GENERAL and Minister of Legal Affairs, Anil Nandlall, S.C., on Tuesday, insisted that the Opposition’s appeal of the Chief Justice’s dismissal of Elections Petition 99 of 2020, is a waste of the Court of Appeal’s time.

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. They were asking the court to nullify the outcome of the March 2, 2020 General and Regional Elections, and declare that President Dr. Irfaan Ali is illegally occupying office.

The appeal is being heard by Chancellor of the Judiciary, Yonette Cummings-Edwards, and Justices of Appeal Dawn Gregory and Rishi Persaud.

During the last hearing,  Justice Persaud’s had inquired as to whether the appeal should have been filed in the Full Court of the High Court instead of the Court of Appeal.

APNU’s attorneys-at-law Roysdale Forde, S.C., and Trinidadian attorney, John Jeremie, S.C., had argued 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.

However, the AG in response had rejected the 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 submitted that based on the uniqueness of the case, like the Appeal Court, the Full Court also has no jurisdiction to hear the case.

As such, the Appeal Court had asked the parties to lay over written submissions and replies on this issue.

On Monday, Forde asked the court for time to file additional submissions in the case while Trinidadian Senior Counsel, Douglas Mendes, who is representing Vice- President Bharrat Jagdeo, asked the court to reject the request.

According to Mendes, Forde’s submissions that he had laid over to the court were mostly focused on the jurisdiction of the Appeal Court and not the Full Court as is required.

In brief oral remarks, Nandlall urged the judges to bring an end to the matter by ruling on the issue of jurisdiction since the case might be a “clog” in the judicial system.

“Respectfully, I believe we are going around in circles,” the AG said as he addressed the issue of whether the Full Court has any jurisdiction in appeal proceedings regarding election petition litigation

“ Our respectful answer to that question is a resounding No !” the AG said before explaining that, “ One would arrive at such a conclusion if one understands carefully the historical evolution of the jurisdiction, something that we have said over and over again, and the nature, extent and special limited aspect of that jurisdiction are being described repeatedly as ‘sui generis’. ”

The Attorney-General drew to the court’s attention Section 79 of the High Court Act, which reads “An appeal shall lie to the Full Court from any judgment given or order made by a single judge of the Court in the exercise of its civil jurisdiction in respect of which there is no appeal to the Court of Appeal.”  He submitted that one would interpret this section to mean that in the appeal of elections petitions matters,  the Full Court cannot exercise its civil jurisdiction.

“We have put forward court cases after cases explaining the nature and type of jurisdiction that was received by the High Court …but this is a jurisdiction that the court never had,” the AG said.

He explained that the Parliament of Guyana had given such power to resolve elections disputes to the High Court and when a decision is made in this “narrow” jurisdiction it can only be appealed at the Court of Appeal.

“One cannot wander outside of that narrow corridor…We cannot eke out a jurisdiction where one does not exist…Mr. Forde cannot confer jurisdiction where one does not exist,” the AG said.

Nevertheless, the Chancellor said that she believed that the matter was of national importance and the issues of all parties needed to be properly heard.

The Chancellor then adjourned the case until November 26 for report, after which a timeline for submissions and ruling will be set.

In January, Forde had moved to the Court of Appeal to have the Chief Justice’s decision set aside.

The appeal, among other things, is contending that she 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.

Aside from Jagdeo, the Coalition has named Chief Elections Officer (CEO) of GECOM, Keith Lowenfield, representatives of several political parties and former President, David Granger, as respondents.

In June, the Coalition appealed the second elections petition case, 88 of 2020, which was filed by Claudette Thorne and Heston Bostwick. That 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.

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