CCJ quashes CoA decision to hear dismissed election petition

The Caribbean Court of Justice (CCJ) has overturned a decision of the Court of Appeal (CoA) of Guyana in which it took jurisdiction to hear an election petition filed on behalf of the APNU/AFC that was dismissed by acting Chief Justice Roxane George, SC. The petition was dismissed on the grounds of late service, non-service or improper service on former President David Granger.

The apex court delivered its ruling on Wednesday morning, three months after it heard oral arguments in the case. The CCJ’s ruling effectively means that Justice George’s decision stands.

Monica Thomas and Brennan Nurse, who filed the election petition on behalf of the main Parliamentary Opposition, have now exhausted all their right of appeal. Nurse and Thomas had challenged the Chief Justice’s judgement at the Court of Appeal.

In a majority ruling, the local appellate court held that it had jurisdiction to hear an appeal against the decision of the acting Chief Justice.

Before the Court of Appeal, Vice President Dr Bharrat Jagdeo, in his capacity of General Secretary of the PPP/C and Attorney General Anil Nandlall, SC contended that the Court of Appeal had no jurisdiction to hear and determine the appeal; neither from statute, the Constitution nor does it have an inherent jurisdiction. As such, they asked that the petition be thrown out.

But the Court of Appeal ruled in favour of the petitioners. Dissatisfied with that court’s ruling, Nandlall, and Jagdeo in asking the CCJ to review the Court of Appeal’s decision repeated the same arguments they advanced before the Court of Appeal.

CCJ Judge Winston Anderson, in delivering the ruling, said that Nandlall and Jagdeo’s argument that the Court of Appeal had no jurisdiction to hear the matter, was upheld.

He explained that the election petition had to be determined in accordance with the framework of Article 163 of the Constitution which outlines that an appeal to the Court of Appeal lies from the decision of a High Court Judge granting or refusing reliefs to institute proceedings for the determination of any question referred to in Article 163 (1) or from a determination by the High Court of any such question or against any order of the High Court made in consequence of such determination.

Given that the Chief Justice dismissed the election petition because of procedural impropriety and not for any reason stated under Article 163 (1) of the Constitution, the CCJ held that Thomas and Nurse, therefore, had no right of appeal to the Court of Appeal. In the circumstances, the regional court allowed the appeal, quashed the decision of the Court of Appeal and ordered each party to bear their own costs.

Besides Justice Anderson, the CCJ Bench comprised Justices Jacob Wit, Maureen Rajnauth-Lee, Peter Jamadar, and Denys Barrow.

Filed on September 15, 2020, the election petition 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.

But according to Nurse’s affidavit, the petition along with the relevant documents were not served on the former President until September 25, 2020- four days outside of the statutorily prescribed period.

The election petition was filed at the Demerara High Court shortly after the results of Guyana’s 2020 election results were declared. The petitioners had argued that those elections were conducted unlawfully and that based on the polls; it is Granger, who should be declared the duly-elected President of Guyana for a second term.

They had also asked the High Court to declare that President Dr Ifaan Ali is illegally holding office. The national recount of all ballots cast at the March 2020 elections showed that the PPP/C won with 233,336 votes while APNU/AFC garnered 217,920 votes.