Appeal Court rules it has jurisdiction to hear dismissed election petition
– stays decision for two weeks; AG says Govt will appeal
The Court of Appeal has ruled that it has jurisdiction to hear an appeal against a ruling of the High Court to dismiss election petition #99. However, the door has been left open for this decision to be challenged before the Caribbean Court of Justice (CCJ) with a two-week stay.
This election petition challenging the results of the March 2, 2020 General and Regional Elections, had been dismissed back in January by acting Chief Justice Roxane George. On Tuesday, the Court of Appeal decided in a 2 to 1 decision that they had the jurisdiction to hear an appeal of the dismissal of the petition.
Acting Chancellor of the Judiciary Yonette Cummings-Edwards and Justice Dawn Gregory ruled in favour of this, while Justice Rishi Persaud determined that the Appeal Court has no jurisdiction.
Article 163 (3) of the Constitution states that “An appeal shall lie to the Court of Appeal (a) from the decision of a Judge of the High Court granting or refusing leave to institute proceedings for the determination of any question referred to in paragraph (1) and (b) from the determination by the High Court of any such question or against any order of the High Court made in consequence of such determination.”
In his decision, Justice Persaud pointed to Article 163 (3) and noted the unambiguous language of the Constitution. And since Justice George did not dismiss the election petition on its merits but rather, because of procedural errors on the part of the applicants, Persaud noted that the appeal does not meet the threshold to be heard in the Court of Appeal.
“In applying the application test here, it is clear that the order made by your honour was interlocutory. Had her honour ruled that the second respondent was not a necessary party or that service was in time, the petition would have proceeded to trial.”
“In any event, there was no final determination of the dispute between the parties. In the circumstances I would strike out the notice of appeal in civil appeal #21 of 2021 for want of jurisdiction,” Persaud said.
The Chancellor and Justice Gregory disagreed. In Justice Gregory’s case, she was of the view that shutting out an appellate procedure would defeat the purpose of Article 163 of the Constitution.
“Parliament would not have left the matter for implication, if a decision of the High Court was intended to be a final decision. Parliament would have so expressed. So, I don’t read the silence to provide an appeal procedure as a shutting out of the jurisdiction of appeal under that scheme, that is the National Assembly Validity of Election Act,” she explained.
Further, the chancellor stated that she considered all the precedence cited in the submissions by Mendes and Nandlall but felt that it failed to invalidate the Court of Appeal’s jurisdiction to hear the appeal.
However, the Chancellor acceded to a request from Trinidad-based Senior Counsel Douglas Mendes, to stay the decision for two weeks while they decide whether to appeal the ruling at the Caribbean Court of Justice. Mendes was joined in this application by Guyana’s Attorney General Anil Nandlall. There were no objections by the opposing side.
Meanwhile, Nandlall in an interview after the ruling maintained that the Court of Appeal has no jurisdiction to hear the appeal. He noted that this petition was dismissed by the Chief Justice on the grounds that it was not served properly. And it should therefore stay dismissed, especially when one considers precedents set in courts across the Caribbean and the commonwealth.
“The Government’s reaction is one of disappointment. We feel that the learned Judges erred… the two of them. And we are convinced that the Guyana Court of Appeal has no jurisdiction to hear or determine the appeal before it,” Nandlall said.
“If one is to go back to the challenge to the 1968 election. That petition was dismissed on technical grounds. The 1973 election was challenged by an election petition. That also was dismissed on a procedural, preliminary ground. The 1985 elections were challenged by an election petition. That was dismissed on the ground of, among other things, non-service.”
Nandlall noted that none of these cases were appealed at the Court of Appeal, because the Constitution of Guyana is clear. He noted that Tuesday’s ruling undoes the clarity of all those set precedents. The Attorney General made it clear that the Government will appeal the Court of Appeal’s decision.
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’ failure to effect service on the second-named respondent, former President David Granger within the statutorily prescribed time. In the face of an appeal against the Chief Justice’s ruling, Nandlall had moved a motion to have the case struck out.
The 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.