APNU/AFC’s 2nd election petition thrown out

…as court orders GECOM to hand over SoPs, SoRs to Registrar for “safekeeping”

Citing the importance of the statutory timelines when it comes to election matters, Chief Justice Roxane George delivered the fatal blow on the second A Partnership for National Unity/Alliance For Change (APNU/AFC) election petition when she dismissed it owing to improper service.

Acting Chief Justice Roxane George

Petition 99 of 2020, filed on September 15, 2020, by APNU/AFC agents Monica Thomas and Brennan Nurse was asking the court to order the Chairman of the Guyana Elections Commission, Retired Justice Claudette Singh, to declare David Granger as the “duly elected President of Guyana.”
The declaration would be keeping in accordance with Article 177 of the Constitution.
Lawyers for the petitioners contended that GECOM unlawfully conducted the March 2, 2020 General and Regional Elections and that the outcome of those elections might have been affected owing to unlawful acts or omissions. It alluded to some of the findings of the 33-day long National Recount of the ballots and claimed that numerous discrepancies and irregularities were uncovered and as a result, the integrity of the entire electoral process was compromised.
Thomas and Nurse also claimed that GECOM failed in the execution of its mandate to supervise the registration of electors and the administrative conduct of the elections. In essence, the APNU/AFC duo wanted to vitiate the results of the March 2, 2020 General and Regional Elections and have Granger installed.

Not properly served
Chief Justice George found that the case was not properly served to former President David Granger, who is also the leader of APNU/AFC’s List of Candidates and named as the second respondent, according to the rules outlined in the National Assembly Validity of Elections Act.
“As [a] consequence, the late service of Petition 99 of 2020 on the second respondent amount to non-service on him. This would lead to nullification of petition 99p2020 ab initio, more so as the court has to consider this status quo at the time of service and not the proceedings or position of a party or parties adopted thereafter. This is to say from the time petition 99p2020 was served out of time on the second respondent as a necessary party, it was a non-starter,” the CJ posited.
Thomas and Nurse named Chief Elections Officer (CEO) Keith Lowenfield, David Granger – APNU/AFC, Horatio Edmonson – Federal United Party, Bharrat Jagdeo – People’s Progressive Party/Civic, John Flores – Liberty and Justice Party, Asha Kissoon – The New Movement, Vishnu Bandhu – United Republican Party, Adebin Kindi Ali – Change Guyana, Patrick Bourne – People’s Republic Party, Jonathan Yearwood – A New and United Guyana, Shazam Ally – The Citizenship Initiative, and Gerald Perreira of Organisation for the Victory of the People as respondents.
The Attorney General Chambers also joined the proceedings.
During the last hearing on November 30, 2020, Trinidadian Senior Counsel Douglas Mendes (representing the interest of Vice President Jagdeo and the PPP/C) argued that the late service of the petition to Granger – the second named respondent – serves as a ground for dismissal.
Based on the acknowledgement of service, former President David Granger, who is the second named respondent, was served on September 25, 10 days after petition 99 of 2020 was filed on September 15 and five days outside of the timeframe mandated by the National Assembly Validity of Elections Act.
However, lawyers for the petitioners had asked the court to overlook the deficiencies in the service of the petition on Granger, who is the second respondent and Head of the APNU/AFC’s List of Candidates, hence, spare their petition from being tossed out. They insisted that he was served on September 18 – in keeping with the statutory requirements.
“I have difficulties accepting the narrative of events as deposed to by the second petitioner and those who accompanied her to effect service on the second respondent. Even accepting an error in deposing to an event that was yet to occur, how is it that despite returning on September 24, the acknowledgement of service is not endorsed with this date, albeit September 24 would be outside the period permitted for service. If service was indeed effected on September 18, on their return to Mr Granger, great care should have been taken to ensure that this was correctly noted on acknowledgement of service given the importance attached to service of election petitions…it is also passing strange that either being served on September 18 or 24 that the second respondent would acknowledge service with a date of September 25,” CJ George said during Monday’s ruling.

“The second respondent has not sought to clarify what occurred, given what appeared to be his signature acknowledging service, which is dated September 25, 2020. And I must state categorically that the document exhibited as the acknowledgement of service by Mr Granger is part and parcel of the evidence and cannot be treated as mere surplusage,” she added.
The CJ added that the presumption of regularity cannot be applied to this case since there are a number of irregularities that arise with the acknowledgement of service by Granger and the deposition of the persons serving the documents.
“Having been pointed out by the court on October 22, 2020, that service was out of time, the petitioners have sought to correct this error and have failed miserably. The evidence produced is manifestly unreliable and cannot be acted on to prove that the second respondent was served on September 18, 2020. The presumption of regularity which the petitioners seek rely on in relation to service on the second respondent has been rebutted by the very evidence they have produced…I have therefore concluded that the second respondent was not served within the 5-day period required by the rules for doing so,” the Chief Justice found.

Necessary party
One of the arguments proffered by lawyers for the petitioners is that Granger is not a necessary party to the proceedings and that late service cannot be a ground for dismissing the petition.
However, Granger gave notice of intentions not to oppose the petition on November 26. The notice read: “take note that I the undersigned respondent do not intend to oppose the above petition pursuant to the provisions of Section 27(1) (a) and (2) of the National Assembly (Validity of Elections) Act Cap 1:04 and rule 25 of the National Assembly (Validity of Elections) Rules Cap 1:04.”
Nandlall argued that by virtue of the notice, Granger effectively considered himself as a necessary party and one that is properly named.
The CJ found that Granger was properly named and a necessary party since he not only represents himself but also everyone on the list he heads. She added that by filing the notice of no contention, though done prematurely, Granger accepted himself as a proper party but also pointed out that while respondents may conclude they are proper parties, the court can disagree.
“The contentions regarding the validity and application or implementation of Order 60 of 2020 by GECOM and the invalidity of votes cast and or counted and recounted could result in a reduction rather than in an increase in the votes and allocation of seats to the APNU/AFC in a trial of a petition. As [the] situation definitely in conflict with the interest of the list that the second respondent represents.
“I have perused elections petitions cases that have been filed over the years in Guyana, in all of them the parties that secured seats in the National Assembly were always considered necessary parties through their representatives in elections petitions. The situation is no different in this case, therefore, the submission that none of the parties who secured seats should be considered a necessary party is preposterous, to say the least. Similarly, the seemingly opposite position advanced is equally absurd,” the CJ found.

Chief Justice George also ordered that the Chief Elections Officer Lowenfield and by extension the Guyana Elections Commission hand over all Statements of Poll (SOPs) and Statements of Recount (SoRs) to the Registrar of the Supreme Court for safekeeping.
The order was made after Attorney Mendes reminded the court that the Representation of the People Act allows the CEO to destroy all elections documents after a 12-month period has elapsed. That 12-month period would be up on March 2, 2021.
Noting that the trial of the APNU/AFC’s one surviving election petition would fall after that time has elapsed, Mendes asked the court to have the documents placed in the custody of the Registrar to preserve its integrity.
However, citing the voluminous nature of the documents and the fact that the court does not have the storage capacity to accommodate such, CJ George instead ordered that the integrity of the documents be preserved and that the CEO not destroy them.
Additionally, Attorney Kashir Khan asked that the contentious SoPs and SoRs – which amount to just over 5000 pages – be placed in the custody of the Registrar as a guaranteed safe place.
The orders were made and are expected to be served on GECOM and the CEO shortly.
The APNU/AFC’s first petition, filed on August 31, 2020, by Claudette Thorne and Heston Bostwick will go ahead. The petition seeks to challenge the legitimacy of the elections which resulted in the People’s Progressive Party/Civic’s Presidential Candidate Dr Irfaan Ali being sworn in as President.
The Chief Justice gave lawyers for the petitioners until February 12 for written submissions while the respondents have until March 5 to present their submissions. Additionally, the petitioners’ legal team have until March 19 to file rebuttals.
The case will be called again on April 7 at 09:15h. (G2)