Dismissed election petition: AG asks CCJ to further stay Appeal Court ruling

With the Guyana Court of Appeal ruling in December that it has jurisdiction to hear an election petition filed by the APNU+AFC that was dismissed for procedural irregularities, Attorney General Anil Nandlall, SC has now moved to the Caribbean Court of Justice (CCJ) seeking a further stay of that ruling.

In a Notice of Motion seen by this publication, it was stated that the CCJ granted a stay of the Court of Appeal’s ruling on December 21, 2021, the very day the ruling was rendered. But with the stay having expired on January 4, 2022, the Attorney General noted that it is necessary to seek a further stay of the proceedings pending the intended appeal.

“The intended appeal is a matter of public interest which touches and concerns national, general and regional elections and as such, are proceedings of great general and public importance,” the Notice of Motion reads. Moreover, Nandlall submits that the intended appeal is an “arguable one” with a realistic prospect.

The AG tells the CCJ: “This honourable court has a duty to protect the integrity of appeals so that they are not rendered nugatory before they are heard and determined. Unless the status quo ante is preserved, the intended appeal before the [court] would be rendered nugatory, insofar as the orders granted by this court would take effect before the intended appeal is heard and determined.”

Considering the aforementioned reasons, Nandlall urged the CCJ to grant the further stay so that there may be a resolution of these fundamental issues which concerns the interpretation of the Constitution of Guyana, as well as, issues integral to Guyana’s constitutional democracy. It is likely that the regional court will consider Nandlall’s application by the end of this week.

In a 2-1 majority ruling on December 21, 2021, the Court of Appeal ruled that it had jurisdiction to hear election petition #99 which had been dismissed on January 18, 2021, by Chief Justice Roxane George, SC for procedural irregularities. Chancellor of the Judiciary (ag) Justice Yonette Cummings-Edwards and Justice of Appeal Dawn Gregory, SC had concurring judgements while Justice of Appeal Rishi Persaud delivered a dissenting judgement.

Election petition #99– filed by Monica Thomas and Brenan Nurse on behalf of the APNU+AFC- challenges the validity of the March 02, 2020. The petitioners are arguing that those elections were conducted unlawfully and that based on the polls, it is David Granger who should be declared the duly-elected President for a second term.

However, the Chief Justice dismissed the petition on the ground that the petitioners did not comply with the rules for effecting service on the second-named respondent former President David Granger.

Having been filed on September 15, 2020, election petition #99 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.

At the Court of Appeal, Nandlall and Senior Counsel Douglas Mendes had argued that the appellate court had no jurisdiction to entertain the matter. In fact, the Attorney General reasoned that an election petition is given an “extraordinary, special, limited and peculiar” jurisdiction under Article 163 of the Constitution.

Since the Chief Justice “never determined” the questions raised in that petition because the matter never went to trial, the Attorney General contended 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.

Senior Counsel John Jeremie and Senior Counsel Roysdale Forde who are representing the petitioners, however, argued at the Court of Appeal, that Nandlall failed to cite case law authorities to substantiate his argument. The two Senior Counsel insist that the right of appeal to a dismissed election not only lies under Article 123 of the Constitution, but also the Court of Appeal Act.

According to them, the ruling handed down by the Chief Justice is a final order, and therefore, it can be appealed to the Court of Appeal.