Confusion reigns as COA stays dismissal of APNU/AFC supporter’s appeal

…Jagdeo calls on GECOM to act with urgency

Some lawyers were left totally flabbergasted on Thursday when the Court of Appeal, in a 2-1 decision, agreed to grant a stay of its dismissal of the appeal brought by APNU/AFC’s Misenga Jones, challenging the Chief Justice’s ruling on the validity of the Elections Recount Order.

Appellate Judge, Justice Rishi Persaud

On Thursday, Appellate Justices Dawn Gregory and Rishi Persaud, in association with High Court Justice Priya Sewnarine-Beharry, unanimously dismissed the appeal that sought to overturn Chief Justice Roxane George’s decision in a case initially filed by Jones, in which Jones had been seeking to compel the Guyana Elections Commission (GECOM) to utilise the 10 declarations made by the Returning Officers as the basis for announcing the winner of the March 2 elections.
Following dismissal of the case, one of Jones’s lawyers, APNU/AFC Candidate Roysdale Forde, requested a stay of the court’s non-existent orders for three days. He submitted that the stay was to review the judgement of the court, as well as to consider the way forward and advise his client accordingly.
In arguing for granting of the stay, Forde furthered that while they are aware that the issue of the declaration of the elections result hinges on the proceedings, the court is inclined to grant them the stay since it did so in the Eslyn David et al matter.

Appellate Judge, Justice Dawn Gregory

In the David case, attorney Kashir Khan had made an application for a stay of three days following the 2-1 ruling that interpreted the constitutional phrase “more votes are cast” to mean “more valid votes are cast.” The difference in that case is that the court made orders, whereas, in Jones’s matter, it dismissed her appeal and ultimately upheld CJ George’s ruling that the issues were res judicata and the Recount results should form the only basis for the declaration of the March 2 General and Regional Elections’ results.
However, this raised the eyebrows of at least one of the Judges, who questioned, through the Court’s President, Justice Gregory, whether Counsel was asking that the dismissal of the appeal be delayed.

No orders
This, however, did not sit well with several lawyers; namely, former Attorney General Anil Nandlall, who represented PPP/C General Secretary Bharrat Jagdeo and Presidential Candidate Irfaan Ali; Kim Kyte-Thomas, representing GECOM Chair, Retired Justice Claudette Singh; Sanjeev Datadin, representing Dr Vishnu Bandhu of the United Republican Party; and Timothy Jonas, representing The New Movement.
All the attorneys reminded the court that no orders were granted, and therefore there was nothing requiring a stay.
Nandlall posited that in the David matter, the Court had made orders, and it was the effect of those orders that was stayed. He noted that, in this case, the matter is dismissed and there is nothing that could possibly be stayed.
He added that, by granting a stay, the court would effectively leave the appeal pending, since they would be putting a hold on their decision to dismiss the matter.

GECOM must proceed
Furthering on what was put forward by Nandlall, Attorney Kyte-Thomas categorically objected to the application for a stay to be granted. She told the court that the Elections Commission must be allowed to get on with its work, since it has been almost 5 months since Guyanese went to the polls.

“All that has happened is the dismissal of a frivolous and vexatious appeal, and that is our position. The work of GECOM must be completed, Your Honours. If we continue like this, when will we have election results, 2025? This is untenable…we are objecting to the application,” Kyte-Thomas said on behalf of the GECOM Chair.

No appeal as yet
Meanwhile, building on the arguments of both Kyte-Thomas and Nandlall, Datadin argued that under Sections 6, 7 and 8 of the Caribbean Court of Justice Act, all appeals to that court require leave or special leave. He noted that there is no guarantee that will come to being, because there are no filings before that court at the time the application for stay was being made.
He reminded that, in the case of David, the CCJ was approached with an application for special leave and for mandatory orders compelling GECOM from going ahead with the declaration of the results. He noted that there is nothing that could justify the Court of Appeal granting such a stay when no coercive orders had been made.

Attorney Jonas noted that while he agrees with the arguments put forward by Datadin, the issue also raises the question of the Appeal Court’s decision.
“The concept of executing an order using the machinery of the court to enforce that order, there is no order made by this court or the court below which prompts any requirement for using the machinery of the court to execute. As Mr Datadin said, given that no appeal is extant, and leave to appeal is required, there is, Your Honours having ruled, nothing jurisdictionally to permit any order. Even if there was a coercive order in existence, there is nothing jurisdictionally to permit a stay, because there is no leave granted yet for the appeal, and therefore there is no proceeding in being,” Jonas argued.
He furthered that the Court has no jurisdiction to grant a stay to a non-existent order, and reminded that two Justices – Sewnarine-Beharry and Persaud – had already ruled that Jones’s appeal is tantamount to an abuse of the court’s process.
At this point, Justice Gregory seemingly assumed authority and said that she is prepared to grant the stay, but for only 24 hours; the two other Justices denied the application. At that time, the issue was ruled upon and the application was dismissed.
However, what left the lawyers stunned was the decision to revert to arguments and revisit the decision.
Attorney Maxwell Edwards, who is co-counsel for the Attorney General, used technical issues as the reason to get the court to revisit its decision, since the decision was being delivered virtually. He explained that he was cut off mid-way, and argued that the Appeal Court, in a previous case, under similar circumstances, dealt with the issue of a stay, and that the court is bound by its decisions as an intermediate court.
This caused Justice Gregory to revert and overturn the decision of the court and grant a 24-hour stay. But that did not come without tension, since Justice Sewnarine-Beharry held out that she would not be granting such a stay.
The reverting of the decision flabbergasted the attorneys, and when Trinidadian Senior Counsel Douglas Mendes, who represented Jagdeo and Ali, asked for clarification, Justice Gregory just proceeded to ignore him and offer no clarification.

Meanwhile, PPP/C General Secretary Bharrat Jagdeo explained that he watched in shock at the Court granted the stay to non-existing orders. He noted that the application was made on the pure fact of desperation on the part of Roysdale Forde, since he and that team are doing everything to further delay the declaration of the results.
“…we were shocked to see how the court tolerated the nonsensical arguments that were proffered to justify this stay, and the court did not answer the question from Senior Counsel Mendes when he asked pointedly at the end what precisely are you staying, because there is no decision of the court,” Jagdeo said in a video statement.
He added that he was appalled at the meandering back and forth, as well as the changing of decisions to accommodate the APNU/AFC.
“I was very appalled, looking at it and how a court can be so indecisive in a matter of such importance,” he said.

GECOM needs to act
Jagdeo welcomed the decision to dismiss the appeal, and posited that based on the Court’s ruling, it is the Elections Commission that has the power in relation to the final declaration, and not Lowenfield. He noted that the power is now squarely back in the hands of GECOM, and that commission should act.
“Justice Singh is under no obligation to respect any stay when nobody is clear what the stay is about, given that the Court of Appeal dismissed the appeal of the riggers. I would urge the Commission and Justice Singh to act urgently. The country has waited long time,” the former President said.
Jagdeo said that among the clear decisions enforced in the ruling is that the Commission has the sole authority to manage the electoral process. He noted that barring a few disagreements on the process, the Court made it clear that it does not have any jurisdiction to interfere with the work of the Commission. He reminded of the decision of the Court that Lowenfield is just an employee/functionary of the commission, and must follow its directives.
Additionally, Jagdeo noted that all of the judges pointed to the decision of the CCJ, which said the National Recount stands, and that the order establishing the Recount (Order 60) could only be challenged through an elections petition.
He also reminded that the Court upheld the ruling of the Chief Justice: that GECOM cannot resurrect the March 13 declarations by the 10 Returning Officers, since the National Recount results have overtaken that process.
In relation to the recount process, Jagdeo reminded that Justice Gregory contended that Lownefield was in charge of the recount process which was carried out at one location, and hence there should be no difficulty for him to tabulate the recount figures and present same to the Commission for declaration. (G2)