APNU/AFC bid to save election petition: Appeal Court questions whether dismissed petition should be heard by Full Court

Continuing a preliminary hearing on its jurisdiction to hear an election petition dismissed for procedural irregularity, the Guyana Court of Appeal on Thursday questioned whether the right of appeal in this matter lies with the Full Court.
Election petition #99 which was filed on September 15, 2020, was dismissed on January 18 by Chief Justice Roxane George, SC, as a result of the petitioners – Brennan Nurse and Monica Thomas’ – failure to effect service on the second-named respondent, former President David Granger within the prescribed time.
With the election petition, Nurse and Thomas were seeking to invalidate the results of the March 2020 National Elections, which they contend were conducted in violation of the laws. Based on the polls, they argued that it is Granger who should be declared the duly elected President of Guyana.

Chancellor of the Judiciary Justice Yonette Cummings-Edwards

As such, they further petitioned to have the court nullify the declaration of PPP/C Presidential Candidate Irfaan Ali as President. They are now appealing the Chief Justice’s ruling to the Court of Appeal.

No jurisdiction argument
Attorney General Anil Nandlall, SC, and Douglas Mendes, SC who are representing President Dr Irfaan Ali and Vice President Bharrat Jagdeo- who are among the named respondents- argued that the appellate court has no jurisdiction to hear the case.

Justice of Appeal Dawn Gregory

But Roysdale Forde SC, and John Jeremie, SC- who appear for the petitioners – argued that the court does have jurisdiction to entertain the matter under Article 123 of the Constitution and the Court of Appeal Act.

Justice of Appeal Rishi Persaud

However, Chancellor of the Judiciary Justice Yonette Cummings-Edwards and Justices of Appeal Dawn Gregory and Rishi Persaud, on Thursday, questioned whether the appeal on the procedural issue could have gone to the Full Court.
“No, it could not have gone to the Full Court,” Nandlall said in response to a question posed by Justice Persaud. Because of the special and unique jurisdiction conferred upon the High Court to hear an election petition, Nandlall argued that the Civil Procedure Rules and Full Court Act have no application in this case.
The Attorney General added, “That is why every case dealing with an election petition… 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.”
At a previous hearing, the Attorney General had reasoned that Article 163 of the Constitution bestows upon the High Court a peculiar jurisdiction to hear such matters. He, therefore, urged the appellate court to strike out the appeal as there is no statutory or constitutional jurisdiction given to that court to hear an election petition dismissed for procedural impropriety or any other reason not stated in Article 163 (1).
He said that Article 163 constitutes the complete code of how election petitions are to be determined, lists the types of issues that are to be raised by an election petition, and also limits the grounds upon which appeals flow from the determination of those issues.
“Article 163 limit 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.
Given the foregoing, he said that the Chief Justice held that the High Court has no jurisdiction to proceed to hear and determine the petition if one of those conditions precedent is not complied with. According to Nandlall, “In this case, the question was service and the court dismissed the petition on those grounds.”
He added, “The court never determined the questions which the petition raised to be determined which are the questions raised in Article 163 (1) from which Article 163 (3) says an appeal lies to the Court of Appeal upon the determination of those questions or orders consequential to the determination of those questions.”

As such, Nandlall argued that with those questions having not been determined, there is no right of appeal in any other statute nor the Constitution upon which lawyers for the petitioners can hinge their appeal.

Rejected contention
The Senior Counsel rejected Forde’s contention that when matters determined by the High Court do not fall under Article 163 an aggrieved party can file an appeal under the court’s ordinary jurisdiction.
“And he [Forde] says, that Justice George’s ruling since it did not determine the questions and not caught within the traditional election jurisdiction created under Article 163, he bifurcates and creates a new jurisdiction,” Nandlall said. The Attorney General noted that in over 200 years of jurisprudence, no court has ever interpreted Article 163 in the manner in which Forde is.
“The election jurisdiction, the reason why it is regarded as peculiar, extraordinary, exclusive, limited, these are the very characteristics that prevent any other rules or any other act or any other legislation to come and be part of the election laws jurisprudence,” the Attorney General added.

Full Court
Justice Cummings-Edwards then asked whether in the absence of any further provisions under Article 163 (4), in terms of filing an appeal, given the fact that the rules of the High Court specifically set out the procedure, if this matter should be properly entertained by the Full Court.
Responding to her question on Thursday, Nandlall said, “If we accept that this is a special jurisdiction, that this is an election court… When it sits to hear an election petition it is an election court, it is a special court exercising that special jurisdiction. The authorities in the Caribbean have established clearly that the Civil Procedure Rules, that the High Court Act do not apply…. Only that which applies is the Constitution.”
According to him, the jurisdiction to hear an election petition is constitutionally rooted, and this is so throughout the Caribbean. For example, he pointed out that Jamaica has amended its laws to allow for the Civil Procedure Rules to apply in limited ways to the election jurisdiction.
“But that came by a special amendment,” the Attorney General noted. He, however, said that this is not so in Guyana. “The National Assembly (Validity) of Elections Act has to be examined to see if it confers jurisdiction on the Full Court. And in my examination of same-both the Act and the Rules, I cannot [make] out such an interpretation,” the Attorney General noted.
The matter comes back up again on October 26, when other lawyers, including Jeremie, will make submissions regarding the Chancellor’s question. The Court of Appeal is also hoping to conclude arguments on the preliminary issue of jurisdiction that day.

Election petition #99 was dismissed 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.
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. (G1)