February 26 ,2021
The A Partnership for National Unity + Alliance For Change (APNU+AFC) has moved to the Court of Appeal to challenge the High Court’s decision to nullify Election Petition 99 over noncompliance of service on the Second Named Respondent – David Granger.
The petitioners in the case – Monica Thomas and Brennan Nurse v the Chief Elections Officer, Keith Lowenfield and others – told the Appellate Court that they are dissatisfied with the January 18, 2021 ruling of the Chief Justice, Roxane George. “The Learned Chief Justice erred in law and misdirected herself when she misapplied the doctrine of strict compliance by holding that such compliance related to the contents of the Affidavit of Service instead of the filing of the Affidavit of Service in a timely manner,” the petitioners said as they laid their grounds before the Appellate Court.
Petition 99 sought to vitiate the results of the 2020 General and Regional Elections on the grounds that the Guyana Elections Commission (GECOM) failed to conduct free and fair elections in keeping with its constitutional requirements. The petitioners, through their battery of lawyers led by Senior Counsel Rex McKay and Attorney-at-Law Mayo Robertson, had intended to prove that the election was marred by widespread irregularities and cases of electoral fraud but the Chief Justice, in handing down her judgement, said the petition was short lived due to the issue of late service.
She explained that the initial petition documents indicated that Granger was served on September 25, 2020, outside of the stipulated timeframe. However, in a Supplementary Affidavit, Nurse told the Court that the APNU+AFC Representative was actually served on September 18, 2020 but this could not have salvage the case in the eyes of the Chief Justice.
But the petitioners told the Appellate Court that the Chief Justice misdirected herself. “The Learned Chief Justice erred in law and misdirected herself when she concluded that the interest to be considered in assessing the impact of Section 4 (2) of the National Assembly (Validity of Election) Act Chapter 1:04 is the interest in the outcome of a future Election as opposed to the interest in the election against which the Petition was filed,” Petitioners said.
Further, they said the Chief Justice ought not to have relied on the decision of Pompey J in the Eusi Kwayana v The Chief Elections Officer case of 1986, on the grounds that the decision in itself was erroneous. It is also being claimed that the Chief Justice misconstrued the judgement of George CJ in the case Payne & anor v. Hammond & Ors and Melville v Chief Elections Officer.
On the basis of these grounds, the petitioners are arguing that the petition should not have been dismissed due to the issues surrounding service on the Second Named Respondent. They said that not only did the Second Named Respondent indicated that he will not oppose the petition but the other 11 respondents were properly served.
They also submitted that the supplementary affidavit submit should have been accepted by the Court. “The Leaned Chief Justice 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 affected on the Second Named Respondent. In any event, such a ruling is inconsistent with the Court’s own order at the Court inviting the Petitioners to provide an explanation as to what she considered an apparent error in the original Affidavit of Service,” they said. Further, they are maintaining their initial position that Granger is not a proper and necessary party to the petition.