Dismissed election petition: Nandlall, Forde clash over Appeal Court’s jurisdiction

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The filing of a Notice of Motion by Attorney General Anil Nandlall, SC, for the Guyana Court of Appeal to strike out an appeal filed against the dismissal of APNU/AFC election petition #99 attracted strong arguments on Monday.

That petition 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. In the face of an appeal against the Chief Justice’s ruling, the Attorney General moved a motion to have the appeal struck out.

During a virtual hearing before Chancellor of the Judiciary Yonette Cummings-Edwards and Justices of Appeal Dawn Gregory and Rishi Persaud, Nandlall urged that the appeal should be struck out as 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.

Nandlall said that the decision being appealed arises out of an election petition which has been conferred with a “unique and peculiar” jurisdiction under Article 163. 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 noted that the Chief Justice held that the 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, 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, including Roysdale Forde, SC, 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.” And Nandlall reasoned 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 noted.

In the circumstances, Nandlall has urged the Court of Appeal to dismiss the appeal filed by the petitioners against the ruling of the Chief Justice.

Meanwhile, Forde submitted that the Constitution does not provide in Article 163 an exhaustive jurisdiction conferred on the Court of Appeal in relation to election petition matters. “The very Constitution by virtue of Article 123 which provides that the Court of Appeal can have jurisdiction additional to Article 163 provides the court with the jurisdiction to receive and determine the appeal filed in this matter.” Forde also said that the Court of Appeal Act under Section 6 (2) provides the right of appeal in relation to a final matter determined by the High Court.

According to the Senior Counsel, the election petition was dismissed based on an interlocutory determination and there are no provisions restricting appeals. Apart from the election jurisdiction, Forde, citing case laws, argued that an election petition constitutes a civil matter and as such is of the same character as that in regard to the hearing of appeals passed by ordinary civil courts.

Moreover, Forde pointed out that for the Court of Appeal to rule that it does not have jurisdiction to entertain the matter “would lend to arbitrary and possibly irrational judgements being made by a single Judge of the High Court incapable of having any review…It would be an unfortunate development.” As such, he urged the Appeal Court to take jurisdiction over the matter. Arguments will continue on July 29 at 9:30h.

Election petition #99 was dismissed 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 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.