ALMOST three weeks after the Court of Appeal (CoA) 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, Attorney-General, Mohabir Anil Nandlall, S.C, has sought leave to take the matter before the Caribbean Court of Justice (CCJ).
In the notice of motion filed on Monday at the Kingston-based CoA, the Attorney General is seeking an order granting leave to appeal the December 21, 2021, decision. By way of a majority ruling, the court said it has jurisdiction to entertain an appeal challenging Chief Justice Roxane George’s decision to dismiss the said petition on the grounds of late service, non-service or improper service.
The AG is also praying for a stay of execution of the CoA’s judgement.
According to his grounds for the application, he said that the intended appeal is a matter of public interest, which touches and concerns matters of the 2020 General and Regional Elections and as such, are proceedings of great general and public importance.
Additionally, he claims that the intended appeal is an arguable one with a realistic prospect of success on the issue of whether the Honourable Court has jurisdiction to hear the civil appeal.
According to Nandlall, the Appeal Court has a duty to protect the integrity of appeals so that they are not rendered nugatory before they are heard and determined.
As such, he is asking the Appeal Court to grant the reliefs sought so that there may be a resolution of these fundamental issues which concern the interpretation of the Constitution, as well as, issues integral to Guyana’s Constitutional democracy.
The initial appeal case was filed in January 2021, by Roysdale Forde, S.C., the attorney for APNU+AFC and Trinidadian attorney, John Jeremie, S.C. Among other things, they contended that the CJ 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.
On December 21, 2021, in a 2-1 decision, the Chancellor of the Judiciary, Yonette Cummings-Edwards, and Justice of Appeal, Dawn Gregory said that the Court of Appeal has jurisdiction to hear and determine the appeal filed.
The Chancellor, in her ruling, said that the decisions of the Chief Justice were 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.
She also ruled 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.
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 CJ 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.
In the case, Nandlall had argued 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.
Aside from Dr. Bharrat Jagdeo, the coalition named Chief Elections Officer (CEO) of GECOM, Keith Lowenfield, representatives of several political parties and former President, David Granger, as respondents in the appeal.
In June last, the coalition appealed the second election 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 they relate 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.