AG moves to strike out notice of appeal for 1st elections petition case

May 09, 2021 News

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Kaieteur News – Attorney General, Anil Nandlall S.C has filed submissions to strike out the Notice of Appeal (NoA) for the first election petition case filed on behalf of the A Partnership for National Unity + Alliance for Change (APNU +AFC) Coalition after it was dismissed by Chief Justice (ag), Roxane George-Wiltshire, SC.
The submissions follow a NoA, which was filed on February 24, 2021. The CJ dismissed one of the APNU+AFC’s election petitions (99/P) for procedural non-compliance of service on former President David Granger last January.
In the NoA, attorney-at-law and APNU+AFC Parliamentarian, Roysdale Forde, who represents petitioners, Monica Thomas and Brennan Joette Natasha Nurse, has expressed dissatisfaction at the decision and are now asking for it to be set aside by the Court of Appeal.
They contended that the Chief Justice erred on several grounds when handing down her ruling, including that she misdirected herself when she applied the doctrine of strict compliance with service of affidavit in a timely manner. The Notice of Appeal also noted that an error was made when Justice George-Wiltshire failed to consider the overriding objective of the petition in making her decision on the content of the affidavit of service.
In response, Attorney General (AG) Nandlall has asked the Appeal Court to strike out the Notice of Appeal on the ground that the Appeal Court does not have the jurisdiction to hear and determine such matters.
He submits as part of his contentions, that it is trite law that the first duty of any Court is to satisfy itself on its jurisdiction. In this regard, the AG cited the case of Re: Barakat’s Application (2009) in which a ruling was delivered at the Court of Appeal of Guyana.
That ruling noted “…it is the first duty of any Court, whether of first instance, or on appeal, before adjudicating upon any given cause or matter, to satisfy itself on its jurisdiction and, if the Court is of the opinion that it does not possess jurisdiction, in whatever manner any given matter may be brought before it, it is the duty of the Court, whether the question of jurisdiction, is the subject of formal appeal or of its own motion to pronounce accordingly.
As such, the AG said, “We find it necessary to say, that a practice, no matter how seemingly well-established it may be, which is contrary to the intent or prescription of the law, is not a legally justifiable reason for a court to assume that is has jurisdiction in any cause or matter. Every court of its own motion must satisfy itself of its jurisdiction.”
Nandlall contended further that, “The view that the court’s jurisdiction is a restricted one is not novel.”
He said it has been long recognised and made clear in cases such as the Guyanese High Court decision of Gladys Petrie v The Attorney General and others that the Court’s jurisdiction in this regard is not at large and not “inherent”.
“The jurisdiction is derived from the Constitution. The Constitution specifies that this jurisdiction is as ordained by Parliament. What is prescribed by Parliament in this regard must strictly be followed by the courts. This means that, for example, the time limitations set out in legislation governing the presentation and progression of an election petition are construed as condition precedents to the validity of the petition,” the AG continued.
To support his argument, AG Nandlall cited the ruling in Ezechial Joseph v Alvin Reynolds, which said, “In keeping with the strict approach, our courts have generally insisted that the provisions in elections legislation must be strictly complied with …”
The decision noted too that, “our election courts have consistently stated that they have little or no discretion to waive non-compliance with the applicable statutory requirements. Accordingly, the consistent result is that failure to comply is fatal to the petition rendering it a nullity, unless the court finds that the failure goes to form.”
“The jurisprudence in our courts states that time and other electoral proceedings, statutory requirements are conditions precedent to instituting a proper electoral challenge, which are mandatory and peremptory. The election court has no power to extend time or allow amendments filed out of time unless election legislation so provides,” the AG said in his submission.
Meanwhile, Nandlall noted he previously sought an order to dismiss Election Petition 99 of 2020, over noncompliance or in breach and in violation of Section 8 of the National Assembly (Validity of Elections) Act, Chapter 1:04, Laws of Guyana, and Rule 9 (1) of the National Assembly (Validity of Elections) Rules Chapter 1:04.
He said that, on the 18th January, 2021, the Chief Justice delivered her decision striking out Petition 99 of 2020 on the ground that the Petitioners failed to personally serve Granger in compliance with Section 8 of the National Assembly (Validity of Elections) Act Chapter 1:04 and Rule 9(1) of the National Assembly (Validity of Elections) Rules. In the course of her judgment, Nandlall noted that the Chief Justice reviewed a plethora of authorities, from various common law jurisdictions, which authoritatively laid down the guiding principles of the law on the issue.
“These authorities clearly establish that non-conformity with procedures in respect of elections petition is fatal; that compliance with these formalities are construed as conditions precedent to the validity of the petition; and more importantly, that the court has no jurisdiction, to hear and determine petitions which are affected by procedural non-compliance (s),” he said.
The Chief Justice dismissed a second APNU+AFC elections petition (88/P) case last month after ruling that petitioners Claudette Thorne and Heston Bostwick could not satisfy the court that the elections laws had been breached in the March 2, 2020 elections recount process. The Coalition leadership has said that it will appeal that decision as well.

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