AG files motion to strike out APNU/AFC’s appeal against dismissal of election petition

…unconstitutional, irregular for Appeal Court to hear case – Solicitor General

“There is no statutory or constitutional jurisdiction to the Court of Appeal to hear an election petition dismissed for procedural impropriety or any other reason not stated in Article 163 (1) of the Constitution of Guyana.”

This is according to Attorney General and Legal Affairs Minister Anil Nandlall, SC, in a motion to strike out a Notice of Appeal challenging the dismissal of APNU/AFC’s second election petition.
The motion was filed on Friday with the Guyana Court of Appeal. On January 18, 2021, acting Chief Justice Roxane George, SC, dismissed election petition #99 that was filed by Brennan Nurse and Monica Thomas owing to non-compliance with effecting service as prescribed under Section 8 of the National Assembly (Validity of Elections) Act and Rule 9 of the National Assembly (Validity of Elections) Rules.
Justice George found that the petition was not properly served on former President David Granger, the second-named respondent. Justice George, in arriving at her decision, among other things, relied on the decision in Eusi Kwayana et al v The Chief Elections Officer et al No 205 of 1986 and noted that given the guidance outlined in this case, the procedures for the filing of an election petition must be strictly complied with, otherwise it can result in its dismissal.
The manner of service is prescribed in Rule 9 (1) of the National Assembly (Validity of Elections) Rules, which imposes on the petitioners the statutory obligation to effect service within five days after the presentation of the petition. Petition #99 having been filed on September 15, 2020, should have been served on the former President five days thereafter which would have been September 21, 2020, since the fifth day – September 20, 2020 – was a Sunday.

However, in the affidavit of service of Nurse, it was stated that the petition, along with the relevant documents, was only served on Granger on September 25, 2020 – five days outside of the statutorily-prescribed period. Following Justice George’s ruling, the petitioners filed a Notice of Appeal asking that the decision be set aside and/or reversed with costs awarded to them.

No jurisdiction
In an affidavit in support of the motion for dismissal of the Notice of Appeal, Solicitor General Nigel Hawke contended that the Court of Appeal has no jurisdiction to hear an appeal from a decision of the High Court in an election petition.

In doing so, Hawke reasons that appeals regarding an election petition are governed exclusively by Article 163 (3) of the Constitution of Guyana which sets out the circumstances under which such appeals can be filed. Among them, he deposed, includes a decision granting or refusing leave to institute proceedings for the determination of any question referred to in Article 163 (1).
According to the Solicitor General, the decision of the Chief Justice was not, and did not involve a determination of a question referred to in the aforesaid Article. He submitted that the jurisdiction of the Court of Appeal to hear an appeal from a decision of the High Court must be founded in the Constitution of Guyana and statute.
Like Nandlall, Hawke, too contended “that there is no statutory or constitutional jurisdiction to the Court of Appeal to hear an election petition dismissed for procedural impropriety or any other reason not stated in Article 163 (1) of the Constitution of Guyana.”
Having regards to the forgoing, Hawke contended, “That in the circumstances, permitting the [appeal] to proceed would be unlawful, irregular and unconstitutional.”

Overriding objective
Nurse and Thomas have expressed dissatisfaction with the ruling of the Chief Justice and are seeking to have it overturned at the Court of Appeal. Lawyers for APNU/AFC are contending that Justice George, in dismissing the party’s second election petition, failed to consider its overriding objectives.
In a Notice of Appeal, lawyers for the petitioners contend that the acting Chief Justice erred in law and misdirected herself by failing to recognise that the purpose of Rule 9 of the National Assembly (Validity of Elections) Rules, requiring service of an affidavit, is to verify that service was achieved within the time prescribed by the statute, and that an error in the affidavit does not affect the fact of service.

They moreover contend that Justice George erred in law and misdirected herself by following the decision in Eusi Kwayana et al v The Chief Elections Officer et al No 205 of 1986, which decision in itself was erroneous. According to the lawyers, Justice George again erred in law and misdirected herself when she applied the doctrine of strict compliance by holding that such compliance related to the contents of the affidavit of service instead of the filing of the affidavit of service on time.

Further, the lawyers argue that the Chief Justice also erred in law and misdirected herself when she concluded that leave was required to file a supplementary affidavit of service to give a more complete understanding of how service was effected on the former President.
The petitioners’ legal team argued that the foregoing is inconsistent with a ruling at a case management conference in which their clients were invited to provide an explanation in relation to what the court considered an apparent error in the original affidavit of service.
Additionally, it is also being argued that the acting Chief Justice erred in dismissing the entire election petition for non-service even though Granger notified the court that he would not oppose the election petition and that the other proper and necessary respondents were served with the statutory timeline.

Petition #88
APNU/AFC has another election petition before the High Court.
In Petition #88, the petitioners are Claudette Thorne and Heston Bostwick. This petition seeks to challenge the legitimacy of the elections, which a recount showed that the People’s Progressive Party/Civic won.
Justice George has fixed April 7, 2021, to commence hearing submissions in this case.
In keeping with an order handed down by the Chief Justice, the Chief Elections Officer Keith Lowenfield has handed over all Statements of Poll (SoPs) and Statements of Recount (SoRs) to the Registrar of the High Court for safekeeping.