Chief Justice strikes out APNU/AFC 2nd election petition for late service on Granger

The second election petition filed by the APNU/AFC challenging the validity of the 2020 General and Regional Election was on Monday dismissed by Chief Justice Roxane George for non-compliance with effecting service in accordance with the National Assembly (Validity of Elections) Act.

The petition was filed by Monica Thomas and Brennan Nurse. The Chief Justice, in her ruling, underscored that procedures for filing an election must be strictly complied with. The Chief Justice held 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.

Relying on several case laws from the Caribbean region, Justice George noted that non-adherence to the provisions requiring service within the stipulated time will result in the petition being nullified. She noted, too, that service out of time can be fatal to an election petition.

According to Justice George, the petitioners- Monica Thomas and Brennan Nurse– have sought to correct this error and “has failed miserably” since the evidence adduced by them was “manifestly unreliable.”  Among other things, Justice George said that it does not matter that Granger filed notices indicating that he will not file submissions opposing the petition.

Lawyers for the petitioners had asked the Chief Justice to overlook the deficiencies in the petition and proceed with hearing the substantive case. However, Justice George pointed out that Granger is a necessary party to the election petition, and as such, non-compliance with service cannot be overlooked. Having regards to the foregoing, Justice George held that late service on Granger amounts to non-service, which will lead to the petition being nullified by the court.

“I declare that the petition is a nullity and cannot proceed…this petition is therefore dismissed,” the Chief Justice asserted.  Court costs were awarded to the Respondents.

Claudette Thorne and Heston Bostwick have also filed an election petition on behalf of the APNU/AFC.  Justice George on Monday announced that the court will proceed with hearing this petition.

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 for an order nullify the declaration of Dr Irfaan Ali as President of Guyana.

Attorney General Anil Nandlall had filed a Notice of application asking that the petition be dismissed as the manner in which the petition, filed on September 15, 2020, was purportedly served on former President David Granger, the second-named respondent, was in breach of Section 8 of the National Assembly (Validity of Elections) Act and Rule 9 of the National Assembly (Validity of Elections) Rules.

According to Nandlall, there was no evidence to support the time at which the petition was served upon the former Head of State. He outlined that Section 8 of the National Assembly (Validity of Elections) Act stipulates that the respondent is to be served with the notice of the presentation of the petition, and of the nature of the security or proposed security, and a copy of the petition with supporting affidavit.

It states therein that within the prescribed time, not exceeding five days after the presentation of an election petition, the petitioner 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.  Nandlall 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.