AG asks Appeal Court to dismiss case challenging dismissal of APNU/AFC election petition

Attorney General and Legal Affairs Minister Anil, Nandlall, SC, has filed a motion asking the Guyana Court of Appeal to dismiss an appeal filed by Monica Thomas and Brennan Nurse, who are challenging the dismissal of the second election petition they filed on behalf of the APNU/AFC.

On January 18, Chief Justice Roxane George, SC, ruled in favour of an application filed by Nandlall in which he asked that the election petition be thrown out for non-compliance with effecting service on the second-named respondent former President David Granger in accordance with Section 8 of the National Assembly (Validity of Elections) Act and Rule 9 of the National Assembly (Validity of Elections) Rules.

Dissatisfied with the decision of the High Court, Thomas, and Nurse moved to the Appeal Court asking that the Chief Justice’s ruling be reversed and that costs be awarded to them.

In support of their application, they contend that the Chief Justice erred in dismissing the entirety of election petition No. 99-P of 2020 on the reason of non – service on Granger when the former President notified the court that he will not oppose the said election petition and the fact that the 11 other proper and necessary respondents were served within the statutory timeline.

The petitioners 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 No. 205 of 1986, which decision in itself was erroneous.

“The Learned Chief Justice erred in law and misdirected herself when she failed to consider the overriding objective of the petition in making her decision on the content of the Affidavit of Service,” they submit.

In any event, Nurse, and Thomas contend that the ruling of Justice George is inconsistent with the Court’s own order at a Case Management Conference during which they were invited to provide an explanation concerning what the court found was an apparent error in the original affidavit of service.

The petitioners also contend 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.

However, Nandlall in the motion, submits 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. Against this backdrop, the Attorney General has asked the Court of Appeal to strike out the appeal against the Chief Justice’s ruling.

Nandlall is further asking the court to award costs and any further orders, the court deems just.

In her ruling, the Chief Justice said that the petition and the relevant documents were served outside of the statutory five days period on former President David Granger- the second-named respondent.

She noted that that procedures for filing an election must be strictly complied with. Relying on several case laws from the Caribbean region, in particular, Eusi Kwayana et al v. The Chief Elections Officer et al, Justice George noted that non-adherence to the provisions requiring service within the stipulated time can be fatal to an election petition.

While lawyers for the petitioners tried to correct the deficiency, the Chief Justice  held that they “failed miserably” in doing so, since the evidence adduced by them was “manifestly unreliable.” “I declare that the petition is a nullity and cannot proceed…this petition is therefore dismissed,” the Chief Justice said in dismissing the election petition.

Claudette Thorne and Heston Bostwick have also filed an election petition on behalf of the APNU/AFC.  Justice George has announced that she will go ahead and hear arguments in this petition in April 2021. In that petition, the petitioners are asking the court to set aside the results of the March 2020, General and Regional Elections as it was held unlawfully.

They are also asking the court to nullify the declaration of Dr. Irfaan Ali as President of Guyana