High Court decision final on election petition matter

High Court decision final on election petition matter – CCJ rules

Oct 20, 2022 News

Kaieteur News – The PPP/C Guyana Government has secured victory at the Caribbean Court of Justice (CCJ) after the court found inter alia that the Guyana Court of Appeal (COA) had no right to entertain the elections petition which was dismissed by Chief Justice (Ag.) Roxane George-Wiltshire over of late service on A Partnership for National Unity + Alliance For Change (APNU+AFC) Representative of the List, David Granger.

CCJ Justice Jacob Wit

The majority of the panel of the CCJ, Justices Winston Anderson, Maureen Rajnauth-Lee and Jacob Wit found that the Court of Appeal possesses no Jurisdiction to entertain an appeal from the dismissal of an Election Petition on the ground of late/non-service on an interested party.

The majority indicated that under the constitutional provision no appeal lay from the striking out of an Election Petition. In dissenting opinions, Justices Denys Barrow and Peter Jamadar ruled that the Full Court possessed the Jurisdiction to entertain an appeal where an Election Petition was dismissed for non/late service on an interested party. Justices Barrow and Jamadar opined that Section 42 of the National Assembly Validity of Elections Act conferred the Full Court with Jurisdiction to entertain such an appeal.

CCJ Justice Winston Anderson

In delivering the decision on Wednesday, the CCJ’s Justice Winston Anderson stressed that the High Court has exclusive jurisdiction to hear and determine elections petition matters. He explained that although, Article 163 of the Constitution gives the right to Appeal- a decision of the High Court, dismissal on the grounds of a technicality does not fall within that right. “It could not be accepted, that proceedings which began in the High Court under this exclusive, exclusionary and special jurisdiction dealing with elections petition suddenly transmogrified into ordinary civil law proceedings on appeal,” Justice Anderson said in delivering the ruling.

CCJ Justice Maureen Rajnauth-Lee

The CCJ Judge said that because Mr. Granger was who was a “right and proper party” in the petition in the matter, he should have been served within the stipulated five days as set out by the Constitution. Justice Anderson said election petition matters must be resolved in strict compliance with the Constitution.

“Neither is it, permissible to depart from or import into by implication a jurisdiction not created in the article… The Court emphasised that article 163 (3) circumscribes the right to appeal decisions of the High Court in elections petition to only two circumstances. The Chief Justice struck out the petition on the basis that there was improper or late service on Mr. Granger. Her decision did not fall into either of these two circumstances and thus no appeal was possible,” Justice Anderson noted.

The majority of the CCJ panel of five disagreed with the Guyana Court of Appeal, finding that it lacked jurisdiction to entertain the appeal. The Court emphasised that Article 163(3) of the Constitution limits the right to appeal decisions of the High Court in election petitions to only two circumstances. one, an appeal from a decision of the Judge granting or refusing leave to institute proceedings to determine questions stated in Article163(1) of the Constitution and two, an appeal from the determination of any of those questions in Article 163(1) or an order made in consequence of such determination.

CCJ Justice Denys Barrow

CCJ Justice Peter Jamadar

The Attorney General and Mr. Jagdeo argued that the Chief Justice’s decision did not fall into either circumstance. Therefore, Ms Thomas and Ms Nurse had no right to appeal the decision.

However in dissenting opinions, Justices Barrow and Jamadar ruled that the Full Court possessed the Jurisdiction to entertain an appeal where an Election Petition was dismissed for non/late service on an interested party.

Justices Barrow and Jamadar opined that Section 42 of the National Assembly Validity of Elections Act conferred the Full Court with Jurisdiction to entertain such an appeal. Consequently, the CCJ majority set aside the decision of the Court of Appeal to hear the case.

Last year, Monica Thomas and Brendan Nurse, the duo who filed the case on behalf of the main Opposition Coalition had challenged the Chief Justice’s decision at the Guyana Appeal Court (COA). The majority of Judges at the COA held that they had jurisdiction to entertain an appeal from the decision of Chief Justice George, who had dismissed the Election Petition # 99 of 2020.

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. That was successfully challenged by Jagdeo and Nandlall.

Jagdeo and Nandlall had contended 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.

At the Trinidad based Appellate Court, they challenged the decision of the Guyana Appellate Court to hear the appeal over the dismissed election petition case. The CCJ therefore delivered the ruling against a decision of the Court of Appeal of Guyana in which it held that it has jurisdiction to hear the appeal of the election petition dismissed for improper service. The Court also ordered that each party should bear its own costs.