APNU/AFC appeals Chief Justice’s dismissal of elections petition

More than one month after Chief Justice Roxane George, SC, dismissed the second election petition filed by the APNU/AFC challenging the results of the March 2, 2020, General and Regional Elections, the petitioners, Monica Thomas and Brennan Nurse have now moved to the Guyana Court of Appeal asking that the decision of the trial court be set aside. The Notice of Appeal was filed on Wednesday by Coalition lawyers.

On January 18, 2021, Justice George ruled in favour of an application filed by Attorney General and Legal Affairs Minister Anil Nandlall, SC, 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.

Section 8 of the National Assembly (Validity of Elections) Act states therein that within the prescribed time, not exceeding five days after the presentation of an election petition, the petitioner (s) shall in the prescribed manner serve on the respondent a notice of the presentation of the petition, and the nature of the security or proposed security, and a copy of the petition unless the court otherwise directs on the application of the petitioner.

Rule 9 (1) of the National Assembly (Validity of Elections) Rules states that the petitioners have the statutory obligation to effect service within five days after the presentation of the petition.  In his application, Nandlall had pointed out that the petition 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.

But according to an affidavit by Nurse, 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.  Having regards to the circumstances, Nandlall urged the court that the petition ought to be dismissed.

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.

Dissatisfied with the decision of the High Court, Thomas and Nurse are asking the Appeal Court to overturn the Chief Justice’s ruling and to award them court costs. In support of their application, they contend that the Chief Justice 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.

Among other things, the petitions argue that Justice George 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 with the statutory timeline.

“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. According to them,  the Chief Justice again erred in law and misdirected herself when she concluded that leave was required to file a supplementary affidavit of service to give a more complete understanding of how service was effected on the former president.

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.

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.