Finding that the Court of Appeal (CoA) of Guyana erred when it took jurisdiction to hear APNU/AFC’s second petition that was dismissed by Chief Justice (ag) Roxane George, SC on the ground of improper service on former President David Granger, the Caribbean Court of Justice (CCJ) on Wednesday quashed the decision of the local appellate court.
The ruling effectively means that the Trinidad-based court of final resort upheld Justice George’s ruling dated January 18, 2021, and that the petitioners—Monica Thomas and Brennan Nurse—have now exhausted all their right of appeal.
The petition pursuant to Article 163 of the Constitution of Guyana challenged the results of the March 2, 2020, General and Regional Elections—on grounds that those elections were unconstitutional, null, void, and of no effect.
Ultimately, Thomas and Nurse had asked the High Court to declare that Granger was the duly-elected President and that President Dr Irfaan Ali was illegally in office.
The petitioners contended that the elections were unlawfully conducted and/or that the results (if lawfully conducted) were affected or might have been affected by unlawful acts or omissions. The results of a national recount of all ballots cast showed that the PPP/C won the general elections with 233,336 votes over the Coalition’s 217,920 votes.
The appeal to the CCJ against the CoA’s ruling was filed by Vice President Dr Bharrat Jagdeo, in his capacity as General Secretary of the PPP/C and by Attorney General and Legal Affairs Minister Anil Nandlall, SC.
Delivering the Caribbean Court of Justice’s ruling was Justice Winston Anderson who, among other things, said that the regional court upheld Jagdeo and Nandlall’s argument that the CoA had no jurisdiction to hear and determine the appeal; neither from statute, the Constitution nor does it have an inherent jurisdiction.
According to the CCJ, Article 163 of the Constitution limits 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 that constitutional provision.
The apex court held that the Chief Justice’s decision demonstrated that the petitioners’ appeal was not a question of validity under Article 163 (1) but rather an ordinary question of law regarding service pursuant to the National Assembly (Validity of Elections) Rules.
With those questions having not been determined, the CCJ held that the petitioners had no right of appeal in any other statute nor the Constitution upon which they could have appealed Justice George’s ruling. In light of the foregoing, the CCJ allowed the appeal filed by Jagdeo and Nandlall and ordered that each party bear their own costs.
In a 2 to 1 majority ruling on December 21, 2021, the Court of Appeal took jurisdiction to hear an appeal against the acting Chief Justice’s decision to dismiss the election petition
based on improper service/non-service on Granger, a respondent in the matter.
Acting Chancellor of the Judiciary Justice Yonette Cummings-Edwards and Justice of Appeal Dawn Gregory had ruled 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. The Chancellor had noted that although she had considered all the precedents relied on by Nandlall, they failed to invalidate the Court of Appeal’s jurisdiction to hear the appeal. In a dissenting judgement, however, Justice of Appeal Rishi Persaud had ruled 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.
