Dismiss APNU/AFC 2nd election petition appeal – AG tells court

Attorney General and Minister of Legal Affairs, Anil Nandlall has moved to the court to strike out an appeal filed by A Partnership for National Unity/Alliance For Change (APNU/AFC) against the dismissal of election petition number 99 of 2020, which was thrown out of the High Court back in January due to late service.
According to Nandlall’s submissions, the Court of Appeal lacks the jurisdiction to hear APNU/AFC’s appeal for its dismissed petition. In January, acting Chief Justice Roxane George had dismissed election petition number 99 of 2020 due to its late service.
APNU/AFC subsequently appealed. However, Nandlall contended in his submissions that Article 163 of the Constitution of Guyana does not allow appeals of decisions made on the basis of technicalities.

“Article 163 (3) (a) provides for an appeal to be filed against a decision of a Judge of the High Court granting or refusing leave to institute proceedings for the determination of any question referred to in Article 163 (1) of the Constitution. It is clear that Article 163 (3) (a) is not relevant to this appeal,” the Senior Counsel submitted.
“Article 163 (3) (b), however, is of fundamental importance. It provides for a right of appeal to the Court of Appeal “from the determination of the High Court of any such question, or against any order of the High Court made in consequence of such determination,” the submission added.
According to the AG, the Court of Appeal would have had this jurisdiction had the election petition been heard and a decision made based on Article 163. In this respect, he urged that the appeal, which he called unlawful and unconstitutional, be dismissed.
“It is must be excruciatingly clear by now that in Petition 99 of 2020, the learned Chief Justice did not determine any of the questions provided for and contemplated by Article 163 (1) (a), (1) (b) (i), (ii), (iii), (iv) and Article 163 (c) and (d) of the Constitution.”
“In the circumstances, it is respectfully submitted that this Honourable Court lacks jurisdiction to entertain the instant appeal from the decision dismissing Election Petition No 99 of 2020, for procedural impropriety, as no such jurisdiction is provided for under the Constitution or any other law,” Nandlall submitted to the court.

The petition
Petition 99 of 2020, filed on September 15, 2020, by APNU/AFC agents Monica Thomas and Brennan Nurse, had asked the court to order the Chairman of the Guyana Elections Commission (GECOM), Retired Justice Claudette Singh, to declare David Granger as President.
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, prior to the ruling, Trinidadian Senior Counsel Douglas Mendes (representing the interest of Vice President Jagdeo and the PPP/C) and Attorney General Nandlall, had argued that the late service of the petition to Granger served as grounds for dismissal.
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 had also insisted that he was served on September 18 – in keeping with the statutory requirements. However, Chief Justice George had dismissed the petition on the grounds that it was not properly served to former President Granger.
Granger, who is also the leader of APNU/AFC’s List of Candidates and named as the second respondent, was served on September 25, 10 days after petition 99 of 2020 was filed on September 15 and five days outside of the legal timeframe 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 Chief Justice had posited when she delivered her ruling.