The Guyana Court of Appeal yesterday continued to hear arguments both supporting and opposing its jurisdiction to hear the appeal filed by the main opposition APNU+AFC to the dismissal of one of its two petitions challenging the March 2nd, 2020 General Elections.
Attorney General Anil Nandlall SC for the state, and Trinidadian Senior Counsel Douglas Mendes who represents now President Irfaan Ali and Vice President Bharrat Jagdeo—who are among the number of respondents listed in the action—reiterated their stance that the appellate court has no jurisdiction to hear the matter.
Meanwhile, Senior Counsel John Jeremie who leads a battery of attorneys for petitioners—Monica Thomas and Brennan Nurse—in whose names the coalition’s petition was filed has, however, maintained their position that the court does have jurisdiction to hear the matter.
The proceedings commenced with submissions from Jeremie who argued that they had properly invoked the jurisdiction of the superior court to where an automatic right of appeal lay as the High Court had determined and made its pronouncement on the action filed by his clients.
“Not so,” Mendes and Nandlall have argued however.
While arguing in turn, the lawyers contended on common ground that the case had failed to satisfy basic procedural prerequisites for it to have even been considered appealable to the Court of Appeal.
Their contention is that because the High Court had not determined any of the questions provided for in Article 163 (1) of the Constitution, there is no appeal that can be mounted before the appellate court.
Jeremie argued that with the Chief Justice having disposed of the matter, the Court of Appeal now has the jurisdiction to hear an appeal.
As they had previously advanced, however, Mendes and Nandlall contended that when the Chief Justice (CJ) threw out the petition, that decision was not in relation to a final order of the court, and is therefore not capable of being appealed.
They reiterated their position that in accordance with 163 (3), it was only if the substantive petition had been heard in its entirety, then would it have fallen within the ambit of that provision and subsection four, which would have afforded the appellate court to hear and determine it.
Jeremie argued that the CJ’s ruling constituted a final order and therefore an appeal lies to the court.
Mendes said, however, that the questions in 163 (1) must first have been determined which had not been done, as the High Court had not gotten to that point—having thrown out the petition for late service.
He said that striking out a petition on that ground is not something that can be appealed, while he pressed Jeremie rhetorically to show one instance where in the Chief Justice’s ruling she determined any of the questions provided for in Article 163 (1).
Nandlall in support then submitted that there must first have been a determination of those questions before there could be an appeal; while noting that the petitioners have “failed to cross that constitutional hurdle,” and are therefore “out of court.”
Those he said, are conditions precedent to the laying of an appeal.
He echoed Mendes’ point, too, that the decision of the chief justice was not in relation to a final order, while adding that an appeal to an election petition is in nowhere near the same as ordinary appeals and therefore the “ordinary jurisdiction of the Court of Appeal is not applicable.”
Referencing case law pronouncements, Nandlall said that if the Court has no jurisdiction “it must down tools.”
The Bench—comprising acting Chancellor Yonette Cummings-Edwards and Justices of Appeal Dawn Gregory and Rishi Persaud have signaled their desire to have canvassed, the issue of an appeal to the Full Court.
The parties will lay over submissions to the Court on this point which will be argued on October 26th when the case is called again.
In January, Chief Justice Roxane George-Wiltshire SC threw out the petition after finding that APNU+AFC presidential candidate David Granger was not served on time.
Thomas and Nurse subsequently appealed the ruling, arguing, among other things, that the Chief Justice erred in law and misdirected herself by misapplying the doctrine of strict compliance and holding that such compliance related to the contents of the affidavit of service instead of the filing of the affidavit of service in a timely manner.
The petitioners’ contention is 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. They nonetheless argue that from those polls it is Granger who should be declared the duly-elected President of Guyana.
They were seeking to have the court nullify the outcome and to declare President Irfaan Ali to be illegally holding office.
The results of a national recount of all ballots cast showed that it was the PPP/C which had won the general elections with 233,336 votes over the coalition’s 217,920 votes.
The second of the petitions filed by the Opposition which they have since lost, is also before the appellate court. It has not been called as yet.
