AG asks High Court to strike out APNU/AFC election petition due to late service on Granger

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Attorney General Anil Nandlall

Attorney General and Legal Affairs Minister Anil Nandlall has filed an application asking the High Court to strike out an election petition filed by Monica Thomas and Brennan Nurse which seeks to challenge the validity of the March 2, 2020 General and Regional Elections. The petition is requesting that the A Partnership for National Unity/Alliance For Change (APNU/AFC) be declared winners of those elections.

In his application, Nandlall has taken issue with how the petition, filed on September 15, 2020, was purportedly served on former President David Granger, the second-named respondent. The Attorney General contends that the petition was served late, which is contrary to Section 8 of the National Assembly (Validity of Elections) Act and Rule 9 of the National Assembly (Validity of Elections) Rules.

He submitted that there was no evidence in respect of the time at which this petition was served upon the respondent. According to Nandlall, Section 8 of the National Assembly (Validity of Elections) Act stipulates that the respondent is to be served with the notice of the presentation of the petition, and of the nature of the security or proposed security, and a copy of the petition with supporting affidavit.

APNU/AFC Leader David Granger

It states therein that within the prescribed time, not exceeding five days after the presentation of an election petition, the petitioner shall in the prescribed manner serve on the respondent a notice of the presentation of the petition, and the nature of the security or proposed security, and a copy of the petition unless the court otherwise directs on the application of the petitioner.

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. Nandlall pointed out that the petition 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, he noted that it was stated that service was effected on Granger on September 25, 2020, which is four days outside of the statutorily prescribed period. In light of the foregoing, the Attorney General submitted that Thomas and Nurse failed to personally serve Granger in compliance with the relevant laws. As a consequence of this non-compliance, Nandlall argues that the petition ought to be dismissed.

Chief Elections Officer Keith Lowenfield

Concerning service on Chief Elections Officer Keith Lowenfield, the first-named respondent, Nandlall said it was void and, therefore, ineffective since it is not in compliance with Rule 9 of the National Assembly (Validity of Elections) Rule.

According to him, Lowenfield was only served with one of the three required documents. He said that the Chief Elections Officer was only served with a copy of the election petition, instead of a copy of the petition, Notice of Presentation of the Petition, and Notice of Security of Costs.

“When the manner of service is ineffective and not effected as prescribed by the Act and the Rules, then the petition must be dismissed,” the Attorney General argued as he urged the court to dismiss the petition.

“The court cannot embark upon an inquiry to determine whether Trevor Chan or the petitioner effected service of the petition and it is contended that this, therefore, amounts to non-service of the petition. The court’s jurisdiction is not inherent or at large and whatever latitude the court enjoys is specifically circumscribed by legislation.”

The APNU/AFC has another election petition before the court. The petitioners in this case are Claudette Thorne and Heston Bostwick. Both petitions are being heard before acting Chief Justice Roxane George at the High Court in Demerara.

Owing to the COVID-19 pandemic, the proceedings are being held virtually and are live-streamed via the Supreme Court of Judicature Guyana Facebook and YouTube pages.