CCJ to make decision on appeal over dismissed Guyana elections case

Jul 20, 2022 News

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Kaieteur News – A five-man panel of judges of the Caribbean Court of Justice Appeal (CCJ) on Tuesday sat through an almost five-hour long hearing of oral submissions from the government and opposition in the contentious case of the appeal over the dismissed elections petition.

The five justices that presided over the matter were: Justice Jacob Wit; Justice Peter Jamadar; Justice Winston Anderson; Justice Maureen Rajnauth-Lee and Justice Denys Barrow.

The A Partnership For National Unity + Alliance For Change coalition had filed the matters to challenge the results of the March 2, 2020 general elections. The elections petition was filed by Monica Thomas and Brennan Nurse. However, Chief Justice (Ag) Roxane George-Wiltshire threw out the matter and the two petitioners then challenged the Chief Justice’s decision at the Guyana Appeal Court (COA).

On December 21, 2021, the majority held that the COA has jurisdiction to entertain an appeal from the decision of Chief Justice George, who had dismissed the Election Petition # 99 of 2020 on the grounds of late service, non-service, or improper service – on former President David Granger.

The Appeal Justices had handed down a 2-1 decision. Chancellor of the Judiciary, Justice Yonette Cummings-Edwards and Justice of Appeal Dawn Gregory allowed the appeal, while Justice Rishi Persaud dissented from their position.

The consolidated appeal before the CCJ is one where Vice President, Bharrat Jagdeo and Attorney General, Anil Nandlall, SC, are challenging the decision of the Appellate Court that it has the jurisdiction to hear the appeal over the dismissed election petition case which was filed by the main opposition coalition.

Jagdeo and Nandlall are contending that the majority of the COA erred in law and had no jurisdiction to hear and determine the appeal; neither from statute, the Constitution nor does it have an inherent jurisdiction. In the matter, Trinidadian Senior Counsel Douglas Mendes, is appearing on behalf of Jagdeo, while Nandlall appears on behalf of the Government of Guyana – whereas, Attorneys Roysdale Forde, SC, in association with Selwyn Pieters and John Jeremie stood for Thomas.

On Tuesday, at the hearing of the consolidated appeals, before the oral arguments commenced – attorney-at-law Kashir Khan, representing another appellant in the case was not allowed to give oral submission because he had failed to meet the deadline to submit his written submissions, nor did he seek an extension of time from the court. The first to give their oral submission was the Attorney General, who cited that the appeal raises neat, narrow and quintessential issue of whether an appeal lies to the Appellate Court from a decision of a High Court judge dismissing an elections petition for want of service.

He argued that Article 163 (3) of the Constitution, speaks to an appeal shall lie to the COA from the determination by the High Court of any such questions or against any order made in consequence of such determination. “Now it is on common grounds that the petition raise

were not determined and therefore an appeal does not lie to the court of appeal as those questions has not been determined and that is the scheme of elections dispute legislation,” the Attorney General said.

 

Nandlall also made reference to a recent ruling by the CCJ, where it denied request to hear a Dominican election petition because the judgment by the trial judge was interlocutory and not final. Further down in Nandlall’s argument, Justice Jamadar intervened stating, “So if there is nothing that says how you appeal but the constitution gives a right of appeal then of course the court provides for a reasonable procedure, I am not troubled by that at all…”

He questioned the right that is being given at Section 163 (3) of the Constitution. “So let’s look at it, you agree that there must be a decision of the High Court?” to this the Attorney General responded, “Yes…”

Justice Jamadar pointed out that he is questioning whether or not there is a requirement on how to appeal. “Then if there is no requirement honourable attorney general we have to make sense of what 3 (a) covers constitutionally,” the judge stated.

Article 163 stipulates, “(3) An appeal shall lie to the Court of Appeal- (a) from the decision of a Judge of the High Court granting or refusing leave to institute proceedings for the determination of any question referred to in paragraph (1); (b) from the determination by the High Court of any such question, or against any order of the High Court made in consequence of such determination, (4) Parliament may make provision with respect to (a) the circumstances and manner in which and the conditions upon which proceedings for the determination of any question under this article may be instituted in the High Court and an appeal may be brought to the Court of Appeal.”

Justice Jamadar said too, “The constitution says what it says and the question in my mind is that section broad enough to say any dismissal or is it limited.”

Moreover, Senior Counsel Mendes made similar arguments like Nandlall. He argued that the COA has no jurisdiction over the matter and added that if the respondents had followed the procedure, the Chief Justice would have heard their petition case on its merit. Additionally, the lawyers for the respondents in their address to the court pointed to Article 163, but they argued that the language of the section gives the Appellate Court jurisdiction to hear the matter. At the end of the appellants and respondents submissions – Justice Wit informed the parties that the court will inform them of a date when a decision will be made.

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