Appeal Court to hear arguments in dismissal of APNU+AFC’S election petition on June 14

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Come June 14, 2021, the Guyana Court of Appeal will commence hearing arguments in the appeal filed on behalf of the A Partnership for National United/Alliance For Change (APNU/AFC), challenging Chief Justice Roxane George’s dismissal of the party’s second election petition for non-compliance with effecting service on former President David Granger.

The proceedings will commence at 13:30h.

Known as election petition #99, its petitioners are Brennan Nurse and Monica Thomas, who are challenging the outcome of the March 2020 General and Regional Elections for which the PPP/C emerged winners. They are asking the High Court to declare Granger as President from the very elections they claim were conducted in violation of electoral laws and the Constitution of Guyana.

Attorney General and Legal Affairs Minister Anil Nandlall, SC, has filed a Notice of Motion in which he is asking that the party’s appeal against the ruling of Justice George be dismissed.
Nandlall is contending that there is no statutory or constitutional jurisdiction conferred on the Appeal Court to hear an election petition dismissed for procedural impropriety or any other reason not stated in Article 163 (1) of the Constitution of Guyana.

On January 18, 2021, Justice George dismissed the election petition owing to non-compliance with effecting service as prescribed under Section 8 of the National Assembly (Validity of Elections) Act and Rule 9 of the National Assembly (Validity of Elections) Rules.

The Chief Justice found that the petition was not properly served on Granger – the second named respondent. 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.

Petition #99 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, 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.
Following Justice George’s ruling, the petitioners filed a Notice of Appeal asking that the decision be set aside and/or reversed, with costs awarded to them.

Irregular

Given that the Court of Appeal has no jurisdiction to hear an election petition dismissed for non-compliance with effecting service, Solicitor General Nigel Hawke contended that should the Court permit the hearing of the matter, it would not only be unlawful but also irregular and unconstitutional.

In an affidavit in support of the motion for dismissal of the Notice of Appeal, Hawke deposed that appeals regarding an election petition are governed exclusively by Article 163 (3) of the Constitution of Guyana, which sets out the circumstances under which such appeals can be filed.

Among them, he outlined, is a decision granting or refusing leave to institute proceedings for the determination of any question referred to in Article 163 (1) of the Constitution.
According to the Solicitor General, the decision of the Chief Justice was not, and did not involve, a determination of a question referred to in the aforesaid Article. On this note, he submitted that the jurisdiction of the Court of Appeal to hear an appeal from a decision of the High Court must be founded in the Constitution and statute.

Like Nandlall, Hawke is contending “that there is no statutory or constitutional jurisdiction to the Court of Appeal to hear an election petition dismissed for procedural impropriety or any other reason not stated in Article 163 (1) of the Constitution of Guyana.”

Overriding objective

Expressing dissatisfaction with the ruling of the Chief Justice, lawyers of the petitioners are contending that Justice George, in dismissing the party’s election petition, failed to consider its overriding objective.

Lawyers for Nurse and Thomas contended that Justice George erred in law and misdirected herself by failing to recognise that the purpose of Rule 9 of the National Assembly (Validity of Elections) Rules, requiring service of an affidavit, is to verify that service was achieved within the time prescribed by the statute and that an error in the affidavit does not affect the fact of service.

They further contended that Justice George erred in law and misdirected herself by following the decision in Eusi Kwayana et al v The Chief Elections Officer et al, which decision in itself was erroneous. According to the lawyers, Justice George again erred in law and misdirected herself when she applied the doctrine of strict compliance by holding that such compliance related to the contents of the affidavit of service, instead of the filing of the affidavit of service on time.

Further, the lawyers argued that the Chief Justice also erred in law and misdirected herself when she concluded that leave was required to file a supplementary affidavit of service to give a more complete understanding of how service was effected on the former President.

Additionally, it is also being argued that the Chief Justice erred in dismissing the entire election petition for non-service, even though Granger notified the court that he would not oppose the election petition and that the other proper and necessary respondents were served within the statutory timeline.