Appeal Court questions whether bid to save election petition should be heard by Full Court

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Continuing a preliminary hearing on its jurisdiction to hear an election petition dismissed for procedural irregularity, the Guyana Court of Appeal on Thursday questioned whether the right of appeal in this matter lies with the Full Court.

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 – Brennan Nurse and Monica Thomas’ – failure to effect service on the second-named respondent, former President David Granger within the prescribed time.

Attorney General Anil Nandlall, SC, and Douglas Mendes, SC who are representing President Irfaan Ali and Vice President Jagdeo- who are among the named respondents- argue that the appellate court has no jurisdiction to hear the case. But Roysdale Forde SC, and John Jeremie, SC- who appear for the petitioners – argue that the court does have jurisdiction to entertain the matter.

However, Justice of Appeal Rishi Persaud on Thursday questioned whether the appeal on the procedural issue could have gone to the Full Court. “No, it could not have gone to the Full Court,” Nandlall said. Because of the special and unique jurisdiction conferred upon the High Court to hear an election petition, Nandlall argued that the Civil Procedure Rules and Full Court Act have no application in this case.

The Attorney General added, “That is why every case dealing with an election petition in the introductory, prefatory or … parts of any judgment… you will see a whole recitation of the historical orientation because it was a power only exercised by Parliament. It was a Parliamentary power, not a judicial power, so you cannot disconnect the historical evolution of the jurisdiction from its current state.”

At a previous hearing, the Attorney General had reasoned that Article 163 of the Constitution bestows on the High Court with a peculiar jurisdiction to hear such matters.

He, therefore, urged the appellate court to strike out the appeal as there is no statutory or constitutional jurisdiction given to that court to hear an election petition dismissed for procedural impropriety or any other reason not stated in Article 163 (1).

He said that Article 163 constitutes the complete code of how election petitions are to be determined, lists the types of issues that are to be raised by an election petition, and also limits the grounds upon which appeals flow from the determination of those issues.

“Article 163 limit appeals to be filed from decisions coming from the High Court that are commenced by an election petition only to the determination of the questions identified in the Article.

The learned Chief Justice in her ruling struck out the petition on the ground that there was non-service. In her written decision, her honour stated that service within the time prescribed is a condition precedent to the hearing and determination of an election petition,” he submitted.

Given the foregoing, he said that the Chief Justice held that the High Court has no jurisdiction to proceed to hear and determine the petition if one of those condition’s precedent is not complied with. According to Nandlall, “In this case, the question was service and the court dismissed the petition on those grounds.

In other words, he added, “the court never determined the questions which the petition raised to be determined which are the questions raised in Article 163 (1) from which Article 163 (3) says an appeal lies to the Court of Appeal upon the determination of those questions or orders consequential to the determination of those questions.”

As such, Nandlall argued that with those questions having not been determined, there is no right of appeal in any other statute nor the Constitution upon which lawyers for the petitioners can hinge their appeal.

The Senior Counsel rejected Forde’s contention that when matters determined by the High Court do not fall under Article 163 an aggrieved party can file an appeal under the court’s ordinary jurisdiction.

“And he [Forde] says, that Justice George’s ruling since it did not determine the questions and not caught within the traditional election jurisdiction created under Article 163, he bifurcates and creates a new jurisdiction,” Nandlall said. The Attorney General noted that in over 200 years of jurisprudence, no court has ever interpreted Article 163 in that manner.

“The election jurisdiction, the reason why it is regarded as peculiar, extraordinary, exclusive, limited, these are the very characteristics that prevent any other rules or any other act or any other legislation to come and be part of the election laws jurisprudence,” the Attorney General added.

Chancellor of the Judiciary Justice Yonette Cummings-Edwards asked that in the absence of any further provisions under Article 163 (4), in terms of the appeal, given the fact that the rules of the High Court specifically set out the procedure, if this matter should be properly entertained by the Full Court.

Responding to her question on Thursday, Nandlall said, “If we accept that this is a special jurisdiction, that this is an election court… When it sits to hear an election petition it is an election court, it is a special court exercising that special jurisdiction. The authorities in the Caribbean have established clearly that the Civil Procedure Rules, that the High Court Act do not apply….Only that which applies is the Constitution.”

According to him, the jurisdiction to hear an election petition is constitutionally rooted, and this is so throughout the Caribbean. For example, he pointed out that Jamaica has amended its laws to allow for the Civil Procedure Rules to apply in limited ways to the election jurisdiction.

“But that came by a special amendment,” the Attorney General noted. He, however, said that this is not so in Guyana. “The National Assembly (Validity) of Elections Act has to be examined to see if it confers jurisdiction on the Full Court. And in my examination of same-both the Act and the Rules, I cannot [make] out such an interpretation,” the Attorney General noted.

The matter comes back up again on October 26, when other lawyers will make submissions regarding the Chancellor’s questions. The Court of Appeal is also hoping to wrap up arguments on the preliminary point of jurisdiction that day.