-says it has jurisdiction to entertain case

IN a two-one decision, the Court of Appeal has ruled that it has the jurisdiction to hear and determine the appeal filed to challenge the dismissal of APNU+AFC’s Election Petition 99 of 2020.

While delivering their separate rulings on Tuesday afternoon, the Chancellor of the Judiciary, Yonette Cummings-Edwards, and Justice of Appeal, Dawn Gregory said that the Guyana Court of Appeal has jurisdiction to hear the case.

However, Justice of Appeal, Rishi Persaud disagreed as according to him, the applicants, Monica Thomas and Brennan Nurse, had no right to appeal since there was no final decision by Chief Justice (ag) Roxane George, who had dismissed the application in January on the grounds of serious non-compliance. At the time, the matter was before the High Court.

He also ruled that the Full Court of the High Court does not have jurisdiction to entertain the appeal and therefore ruled that the appeal was dismissed.

Towards the end of the hour long virtual hearing, the Chancellor granted a two-week stay of the ruling, after Trinidad Senior Counsel Andrew Mendes, who is representing President Irfaan Ali and Vice-President Bharrat Jagdeo and Attorney General Anil Nandlall S.C., requested time to decide whether they should approach the Caribbean Court of Justice (CCJ).

The Chancellor, in her ruling, said that the decisions of the Chief Justice was a final order on both the election petition and a preliminary issue of compliance.

She further contended that Article 163 of the Constitution states that an appeal to the Court of Appeal can be made from the decision of a judge of the High Court granting or refusing leave to institute proceedings for the determination of any question.

“In my view, the Honourable Chief Justice sat in the elections jurisdiction of that matter and considered the validity of the petition…determined that validity in relation to whether or not the proceeding could go on, and the Chief Justice dismissed that proceedings,” she said.

Since the Chief Justice’s decision was a final order, the Chancellor said that the petitioners  have a right to an appeal since there was no decision on the petition itself.

“I conclude therefore, the Court of Appeal is conferred with jurisdiction under the Court of Appeal Act and Article 125 of the Constitution to consider the dismissal of the petition,” she said.

She added that the Full Court of the High Court does not have the power to hear the appeal of an election petition dismissal for want of compliance. She said it is a power Parliament should consider conferring upon the Full Court.

“Perhaps the time is right for its consideration…It could be said too that given the need for expedience in the hearing of election petitions as interlocutory matters are not provided for, as the same may be dealt within the main proceedings on an appeal. However, in the instance case, the matter haven’t been determined whether considered as a preliminary matter, there is no substantive appeal in the circumstance for the issue first to be determined under the provision of the Court of Appeal Act,” she added.

Meanwhile, Persaud contented that the matter was thrown out for non-compliance and as such cannot be heard by the Court of Appeal.

“There is no right to appeal to this court against the decision of the High Court, which is not a final decision,” the judge said.

During a previous hearing, Nandlall had submitted 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 said that based on the uniqueness of the case, like the Appeal Court, the Full Court also has no jurisdiction to hear the case.

The Attorney-General had said to the court, that according to 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 election petition 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 had 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. [Roysdale] Forde cannot confer jurisdiction where one does not exist,” the AG said.

In January, Forde, S.C., the attorney for APNU+AFC and Trinidadian attorney, John Jeremie, S.C., 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, 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 claims that the conduct of those elections contravened the Constitution and the country’s electoral laws.