Lawyers in the appeal case over the first dismissed Election Petition argue over having case reinstated

Aug 01, 2021 News

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Kaieteur News – Lawyers in the appeal case to have the first dismissed Election Petition case reinstated, have raised contentions over the Appeal Court‘s jurisdiction to hear the matter.

The first election petition #99 challenging the outcome of the March 2, 2020 elections was dismissed by Chief Justice Roxane George-Wiltshire, SC on January 18, last while the remanding election petition #88 was thrown out on April 26 2021 by the same judge. Both matters have since been appealed.
In his arguments before Justice of Appeal and Chancellor of the Judiciary Yonette Cummings-Edwards and Justices of Appeal Dawn Gregory and Rishi Persaud on Thursday, Attorney General (AG) and Minister of Legal Affairs, Anil Nandlall SC sought to shut any notion that the appeal should be heard.
His arguments were supported by lead counsel and Trinidad attorney Douglas Mendes who is representing the interest of President Irfaan Ali and Vice President Jagdeo who are among the named respondents in the matter.

Together, the lawyers faced off with attorneys John Jeremie and Roysdale Forde SC, both of whom are representing the interest of the petitioners, Monica Thomas and Brenan Nurse who on behalf of the A Partnership for Nation Unity + Alliance For Change (APNU+AFC) Coalition are seeking to challenge the validity of the March 02, 2020, national elections.

The petitioners are arguing that those elections were conducted unlawfully and that based on the polls, it is Granger who should be declared the duly-elected President of Guyana. However, their case titled Election Petition #99 was dismissed on January 18 by the Chief Justice due to their non-compliance with effecting service on former President Granger, himself.

Yesterday, Forde and Jeremie presented arguments towards having the case reinstated. The lawyers essentially argued that the Appeal Court has a right to hear and determine an appeal of an elections petition matter. The two Senior Counsel said that the right of appeal to a dismissed election not only lies under Article 123 of the Constitution, but also the Court of Appeal Act.

According to them, the ruling handed down by the Chief Justice is a temporary but final order, and therefore, it can be appealed to the appellate court.
The lawyers on the other side, held a different view. Nandlall argued vehemently that the appeal should even be entertained much less heard by the Appeal Court.
He submitted that the decision of the Chief Justice that is being appealed arises out of an election petition, which has been given an “extraordinary, special, limited and peculiar” jurisdiction under Article 163 of the Constitution of Guyana.”
The AG explained that the constitutional provision specifies the types of questions, which can be raised in an election petition but also limits the grounds upon which appeals flow.
Nandlall noted that in striking out petition #99, Chief Justice never determined these questions since the matter never even made it to trial. “Those questions having not been determined, there is simply no right to an appeal,” he argued.
Further, in response to a question by Justice Persaud as to whether the appeal could have been entertained at the level of the Full Court, given the peculiar tier system of Guyana’s judicial structure, Nandlall said because of the special and unique jurisdiction conferred upon the High Court to hear an election petition, Full Court Act would have no application in this case.
The Attorney General added too, “That is why every case dealing with an election petition in the introductory [stage], you will see a whole recitation of the historical orientation because it was a power only exercised by Parliament. It was a Parliamentary power, not a judicial power, so you cannot disconnect the historical evolution of the jurisdiction from its current state.”
“Article 163 limits appeals to be filed from decisions coming from the High Court that are commenced by an election petition only to the determination of the questions identified in the Article. The learned Chief Justice in her ruling struck out the petition on the ground that there was non-service. In her written decision, her honour stated that service within the time prescribed is a condition precedent to the hearing and determination of an election petition,” he submitted.
The Chief Justice in dismissing that election petition held that that service was not effected in accordance with Section 8 of the National Assembly (Validity of Elections) Act and Rule 9 of the National Assembly (Validity of Elections) Rules.

Section 8 of the National Assembly (Validity of Elections) Act states therein that within the prescribed time, not exceeding five days after the presentation of an election petition, the petitioner (s) shall in the prescribed manner serve on the respondent a notice of the presentation of the petition, and the nature of the security or proposed security, and a copy of the petition unless the court otherwise directs on the application of the petitioner. The appeal matter over the dismissed election petition is set to continue on October 26, 2021.

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