APNU/AFC election petition #99: CCJ overturns CoA’s decision to hear case dismissed for improper service

The Caribbean Court of Justice (CCJ) has found that the Court of Appeal (CoA) of Guyana erred when it took jurisdiction to hear APNU/ AFC’s second election petition, which was dismissed by Chief Justice (ag) Roxane George, SC, on the ground of improper service on former President David Granger, and has therefore quashed the decision of the local appellate court.
The ruling by the Trinidad-based court effectively means that Justice George’s January 18, 2021 decision stands; that the CoA can no longer hear the case; and that the petitioners Monica Thomas and Brennan Nurse have exhausted all their rights to appeal.
Petition #99P/2020, which was filed pursuant to Article 163 of the Constitution of Guyana, challenged the results of the March 2, 2020 General and Regional Elections on the grounds that those elections were unconstitutional, null, void, and of no effect.
Ultimately, Thomas and Nurse had asked the High Court to declare that Granger was the duly elected President, and that President Dr Irfaan Ali was illegally in office.
The petitioners had contended that the elections were unlawfully conducted and/or that the results (if lawfully conducted) were affected or might have been affected by unlawful acts or omissions. The results of a national recount of all ballots cast showed that the PPP/C won the general elections with 233,336 votes over the Coalition’s 217,920 votes.
Dissatisfied with the Chief Justice’s ruling, the petitioners had filed an appeal to the CoA, which, by a 2-to-1 majority ruling on December 21, 2021, took jurisdiction to hear the matter; noting that, among other things, to oust the Appeal Court from hearing the appeal against the Chief Justice’s judgement would defeat the purpose of Article 163.
Vice President Dr Bharrat Jagdeo, in his capacity as General Secretary of the PPP/C, and Attorney General and Legal Affairs Minister Anil Nandlall, SC, had then appealed the CoA’s decision to the CCJ, arguing that the CoA has no jurisdiction to hear and determine the appeal; neither from statute, from the Constitution, nor does it have an inherent jurisdiction.
Accordingly, they had asked the apex court to overturn the CoA’s ruling.

Lacked jurisdiction
Delivering the CCJ’s majority ruling, Justice Winston Anderson said, among other things, that the regional court upheld Jagdeo and Nandlall’s argument that the CoA fell into error when it gave itself the authority to entertain the petitioners’ appeal.
The CCJ Judge explained that Article 163, the National Assembly (Validity of Elections) Act and the National Assembly (Validity of Elections) Rules establish a comprehensive regime for challenges to an election. As such, the election petition had to be determined in accordance with this framework, including whether there was compliance with the provisions for service of the petition.
Emphasising that Article 163(3) limits the right to appeal decisions of the High Court in election petitions to only two circumstances, the CCJ held that the Chief Justice’s decision to strike out the petition on the basis that there was improper/late service on Granger did not fall into either of those circumstances, and thus an appeal was not possible.
Senior Counsels Roysdale Forde and John Jeremie, who appeared for the petitioners, had argued that the Court of Appeal does have jurisdiction to entertain the matter under Article 123 of the Constitution and the Court of Appeal Act. Considering this, the two Senior Counsels had submitted that their clients had properly invoked the jurisdiction of the CoA to where an “automatic right” of appeal lay, as the High Court had determined and made its pronouncement on the election petition.
The CCJ, however, rejected their argument, stating, “Furthermore, jurisdiction could not be founded in Article 123 of the Constitution and Section 6 of the Court of Appeal Act, since the special elections jurisdiction created by Article 163 of the Constitution, the Act and Rules must prevail over the general “civil law proceedings” jurisdiction contemplated by Article 123 and Section 6(2) of the Court of Appeal Act.”
Further, the principle that general provisions of the Court of Appeal Act must yield to specific provisions in Article 163 is fundamental, the majority said, adding that any tension between Article 163 and Section 6(2) of the Court of Appeal Act concerning the election jurisdiction must naturally be resolved in favour of the Constitution.
According to the regional court, there may be a rare exception to the rule as to the Court of Appeal’s jurisdiction in order to maintain the integrity of the Constitution, a possibility it considered in Cuffy vs Skerritt. However, it noted that there was no real suggestion from the petitioners that the Chief Justice’s decision could support an argument that could possibly justify invocation of this exception.

In his own opinion, however, CCJ Judge Denys Barrow agreed that the Court of Appeal lacked jurisdiction, but for different reasons. He argued that it must be considered that while exclusive jurisdiction is given to determine election petitions, the Court’s general jurisdiction is not excluded from operating when the issue being determined is not a question under Article 163(1).
In this case, he said, the Chief Justice’s decision to dismiss the petition as a nullity was an ordinary question of law regarding service as required under the National Assembly (Validity of Elections) Act and the National Assembly (Validity of Elections) Rules.
Article 163(4), he noted, gave power to Parliament to create legislation with respect to the High Court’s practice and procedure in relation to the jurisdiction and powers conferred upon it by or under Article 163 (4)(c).
“In crafting these legislative provisions, the Parliament of Guyana included Section 42 of the National Assembly (Validity of Elections) Act and Rule 21 of the National Assembly (Validity of Elections) Rules, which gave the court the same powers, jurisdiction and authority in election petitions ‘as if the proceedings were an ordinary action’,” he said.
He pointed out that these provisions are relevant to answering the question of whether the decision to dismiss the petition is subject to the High Court’s general jurisdiction in the same way as an ordinary action. In any event, several indications made it clear that the Chief Justice’s order dismissing the petition was an order of a High Court judge made in chambers, and for this type of order, no right of appeal is given to the Court of Appeal, according to section 6(2(a) (i) of the Court of Appeal Act, Justice Barrow added.
The result, he added, therefore was that the purported appeal against the dismissal by the Chief Justice of the petition as a nullity was itself a nullity, because there was no right of appeal to the Court of Appeal, to begin with.
In a separate opinion, CCJ Judge Peter Jamadar agreed with Justice Barrow’s decision, but further observed that, in Guyana, the deep basic structure and core constitutional values and principles to be found in Guyanese constitutionalism should guide a court when faced with choices as to multiple interpretations of statutory provisions.
Justice Jamadar reasoned that this is especially true in relation to provisions that implicate core constitutional values such as free and fair parliamentary elections.
He, nevertheless, suggested that the narrow jurisdictional issue in this appeal needs to be placed, contextualised, and understood through the lenses of democratic governance in Guyana, the role of the Courts, and the learning to be found from various constitutional authorities and authorities on the election petition jurisdiction.
Consequently, the CCJ allowed the appeal, set aside the decision of the Court of Appeal, and ordered that each party should bear its own costs.
Besides Justices Anderson, Barrow and Jamadar, Justices Maureen Rajnauth-Lee and Jacob Wit comprised the CCJ’s Bench.

Background
In a 2-to-1 majority ruling on December 21, 2021, the Court of Appeal took jurisdiction to hear an appeal against the acting Chief Justice’s decision to dismiss the election petition
based on improper service/ non-service on Granger, a respondent in the matter.
Acting Chancellor of the Judiciary, Justice Yonette Cummings-Edwards, and Justice of Appeal Dawn Gregory had ruled that to oust the Appeal Court from hearing the appeal against the Chief Justice’s ruling would defeat the purpose of Article 163 of the Constitution. The Chancellor had noted that although she had considered all the precedents relied on by Nandlall, they failed to invalidate the Court of Appeal’s jurisdiction to hear the appeal.
In a dissenting judgement, Justice of Appeal Rishi Persaud had ruled that considering the unambiguous language of that constitutional provision, as well as the fact that Justice George did not dismiss the petition on its merits, but rather because of procedural errors, a right of appeal did not lie to the Court of Appeal.

Service
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.
Having been filed on September 15, 2020, the petition should have been served on Granger five days thereafter, which would have been September 21, 2020, since the fifth day – September 20, 2020 – was a Sunday. But in Nurse’s Affidavit of Service, it was stated that the petition, along with the relevant documents, was served on Granger only on September 25, 2020 – five days outside of the statutorily prescribed period.
The acting Chief Justice, in striking out the petition on the basis that there was non-service, had pointed out that service within the time prescribed is a condition precedent to the hearing and determination of an election petition.
The petitioners contended that the elections were unlawfully conducted and/or that the results (if lawfully conducted) were affected or might have been affected by unlawful acts or omissions.
They had asked the High Court to declare that President Dr Irfaan Ali is illegally holding office. The results of a national recount of all ballots cast showed that the PPP/C won the general elections with 233,336 votes over the Coalition’s 217,920 votes.

Other petition
Earlier this month, the CoA announced that it would proceed with hearing the APNU/AFC’s other election petition, which was struck out by Justice George on April 26, 2021. In that matter, the petitioners argue that the Chief Justice committed several errors in law.
Filed by Claudette Thorne and Heston Bostwick, the petitioners are asking the election court to invalidate the results of the March 2020 election on the primary ground of serious non-compliance with the Constitution and electoral laws as they relate to the Guyana Elections Commission’s (GECOM’s) conduct over those elections. They contended that Section 22 of the Elections Law (Amendment) Act and Order #60, also known as the Recount Order, violated the Constitution.
But, in dismissing the election petition, the Chief Justice held that the petitioners failed to present evidence to support that the conduct of the elections contravened the Constitution and electoral laws. She ruled that neither Section 22 nor the Recount Order was ultra vires the Constitution, adding that Article 162 of the Constitution empowered GECOM to take whatever actions were necessary to conclude the elections, including embarking on a recount of all ballots.