Election petition goes to CCJ as Appeal Court grants leave, stays decision
In a decision handed down on Tuesday, Attorney General Anil Nandlall, SC, and Vice President Bharrat Jagdeo have been granted leave by the Court of Appeal, to head to the Caribbean Court of Justice (CCJ) and appeal the court’s decision to hear the election petition filed by Monica Thomas.
Chancellor of the Judiciary, Yonnette Cummings-Edwards made the decision to grant Nandlall, SC and Jagdeo – in his capacity as People’s Progressive Party (PPP) General Secretary – leave to appeal to the CCJ, the decision of December 21, 2021, to hear the election petition number 99.
In addition to granting leave to appeal to the higher court, the December decision by the Court of Appeal to hear the election petition, will remain stayed until the CCJ makes a determination in the matter. Speaking to this publication following the decision, Attorney General Anil Nandlall noted that the State always had a right of appeal to the CCJ.
“In places where there is a right of appeal to the Caribbean Court of Justice, a leave of the Court of Appeal which is requisite, is granted almost automatically. The Caribbean Court of Justice, in earlier judgements, have made that position clear.”
“It is a principle of law that every court has a duty to protect the integrity of legal proceedings that are pending before it. Having regard to those legal principles, I am not surprised that the Court of Appeal granted the leave to appeal, as well as the stay of execution that was being sought,” the Attorney General added.
The applicants were also given 90 days to provide a list of the documents that will be used in the appeal, as well as 90 days to lodge a security of $750,000 with the court. Nandlall gave an idea of what were some of the paperwork that have to be presented to the court, as well as when his side will be looking to file their appeal.
“Know that the procedural hurdles have been cleared, we will file the appeal and the other relevant document, within the shortest possible time… we first have to file the notice of appeal, which will include our grounds of appeal. And then file the records of appeal within 90 days, as ordered by the court,” Nandlall said.
Previously, Nandlall and Trinidadian Senior Counsel Douglas Mendes on behalf of Jagdeo who is the representative of the PPP List of Candidates, had argued to the Court of Appeal that the petition’s dismissal by the High Court due to late service could not be appealed.
The Court of Appeal handed down a 2 to 1 majority ruling that it had 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, within the statutorily prescribed time.
The petition which was dismissed on January 18, 2021, was filed by Monica Thomas and Brennan Nurse and challenges the results of the March 2, 2020 national elections with the intent of having Granger declared the duly-elected President.
The majority ruling was delivered by the Chancellor of the Judiciary Yonette Cummings-Edwards and Justice of Appeal Dawn Gregory, SC, while Justice of Appeal Rishi Persaud had a dissenting judgement.
In their ruling, Justices Cummings-Edwards and Gregory held 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 of Guyana.
As for the Chancellor, while she noted that she considered all the precedence relied on by the Attorney General, she said they failed to invalidate the Court of Appeal’s jurisdiction to hear the appeal.
Meanwhile, Justice 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. (G3)