APNU/AFC’s dismissed election petition: CCJ opens arguments today in appeals filed by VP Jagdeo, Nandlall

The Trinidad-based Caribbean Court of Justice (CCJ) will commence hearing arguments at 10:00h today in Vice President Bharrat Jagdeo and Attorney General Anil Nandlall’s appeals against a decision of the Court of Appeal of Guyana in which it held that it had jurisdiction to hear an election petition dismissed for improper service.

During a case management conference in May, the panel of CCJ Judges had committed to hearing the case expeditiously, with Justice Jacob Wit stating, “We really want to hear this case before recess starts….”
The CCJ will go into recess on July 29, bringing an end to term three of the 2021/2022 judicial year. The regional court intends to “fully” hear the matter this morning and has promised to render its decision in the shortest possible time.
Additionally, former Chief Elections Officer (CEO) Keith Lowenfield was removed by the CCJ as a respondent to the appeals.
In a 2 to 1 majority ruling, the Court of Appeal of Guyana took jurisdiction to hear an appeal against Chief Justice Roxane George’s decision to dismiss election petition #99 based on improper service/non-service on the second-named respondent, former President David Granger.

The petition pursuant to Article 163 of the Constitution, which was dismissed on January 18, 2021, was filed on behalf of the APNU/AFC by Monica Thomas and Brennan Nurse and challenged the results of the March 2, 2020, national elections with the intent of having Granger declared the duly-elected President.
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, however, Justice of Appeal Rishi Persaud had said 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.
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 only served on Granger on September 25, 2020 – five days outside of the statutorily prescribed period.
At the Court of Appeal, Nandlall and Trinidadian Senior Counsel Douglas Mendes, who is representing Jagdeo, had argued that Article 163 of the Constitution bestows upon the High Court a peculiar jurisdiction to hear such matters.
They contended that there is no statutory or constitutional jurisdiction given to the Court of Appeal to hear an election petition dismissed for procedural impropriety or any other reason not stated in Article 163 (1).
According to the two Senior Counsel, 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 limits 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,” Nandlall had submitted.
“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,” the Attorney General had argued.
He added, “The [Chief Justice] 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 the petitioners can hinge their appeal.
But Roysdale Forde, SC, and John Jeremie, SC – who appear for the petitioners – 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.
Jeremie had previously submitted that his clients had properly invoked the jurisdiction of the Court of Appeal to where an “automatic right” of appeal lay as the High Court had determined and made its pronouncement on the petition.
The petitioners’ contention is 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 are also asking the 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.