June 15 ,2021
The Guyana Court of Appeal yesterday commenced hearing arguments on the preliminary point of its jurisdiction to hear the appeal filed by the main opposition APNU+AFC to the dismissal of one of its two petitions challenging the March 2nd, 2020 General Elections.
During the hearing yesterday, Trinidadian Senior Counsel Douglas Mendes who represents now President Irfaan Ali and Vice President Bharrat Jagdeo—who are among the number of respondents listed in the action—argued that the court has no jurisdiction to hear the matter.
Attorney Roysdale Forde SC who represents petitioners—Monica Thomas and Brennan Nurse—in whose names the coalition’s petition was filed has, however, argued that the appellate court does have jurisdiction to hear the matter.
Mendes contends that the purported appeal falls outside of the requirements created in Articles 163 (3) of the Constitution, and for this reason there is in the first place no appeal, and secondly, that the Court of Appeal has no jurisdiction to hear the matter.
Attorney General Anil Nandlall SC, who has also been listed as a respondent in the action shared the sentiments expressed by Mendes.
The two attorneys advanced that when the Chief Justice (CJ) threw out the petition which the petitioners are now hoping to appeal, that decision was not in relation to a final order of the court, and is therefore not capable of being appealed.
They argue that in accordance with 163 (3), it was only if the substantive petition had been heard in its entirety, then would it have fallen within the ambit of that provision and subsection four, which would have afforded the appellate court to hear and determine it.
Nandlall pointed out that the latter subsection does indeed provide for an aggrieved party to appeal an election petition, but said that it is subsection three which lists how such a matter becomes qualified for appeal.
He argued that it must be the very substance of the petition which would have been lost, that would allow for such a party to lay an appeal before the appellate court.
Given that the petition itself had not been heard and that the Chief justice dismissed it on grounds of late service, Mendes and Nandlall said that a ruling on that interlocutory issue could not be appealed to the Court of Appeal.
The also said that the CJ’s ruling was not in relation to a final order of the court and for such reasons again, the superior court would have no jurisdiction to hear the appeal.
Mendes said, too, that the petitioners cannot rely on the Court of Appeal Act itself which they have sought to do, to mount an appeal, since the matter, having according to him fallen outside of 163, would not qualify to be brought by the Act either.
Both the AG and Mendes have argued that the cases cited by Forde have been misapplied and have no application to the issue to be considered before the court.
Forde for his part has, however, argued that it could not be the state of the law that one were not entitled to an appeal, even in the circumstance as expounded by Mendes and Nandlall.
He argued that to begin with, not only is the right to appeal provided for by the Court of Appeal Act, but that Article 123 of the Constitution also gives the appellate court that jurisdiction to hear the case brought by his clients.
Contrary to the arguments advanced by his opponents, he said too that the ruling handed down by the Chief Justice, constitutes a final order and operates as such and can therefore be appealed.
He said that the respondents have failed to cite any authority substantiating their contention that the appellate court has no jurisdiction to hear the appeal.
The matter will be called again on July 29th, when arguments will continue.
The case is being heard by acting Chancellor Yonette Cummings-Edwards and Justices of Appeal Dawn Gregory and Rishi Persaud.
In January, Chief Justice Roxane George-Wiltshire SC threw out the petition after finding that APNU+AFC presidential candidate David Granger was not served on time.
Thomas and Nurse subsequently appealed the ruling, arguing, among other things, that the Chief Justice erred in law and misdirected herself by misapplying the doctrine of strict compliance and 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’ contention is that the elections were unlawfully conducted and/or that the results (if lawfully conducted) were affected or might have been affected by unlawful acts or omissions. They nonetheless argue that from those polls it is Granger who should be declared the duly-elected President of Guyana.
They were seeking to have the court nullify the outcome and to declare President Irfaan Ali to be illegally holding office.
The results of a national recount of all ballots cast showed that it was the PPP/C which had won the general elections with 233,336 votes over the coalition’s 217,920 votes.
The second of the petitions filed by the Opposition which they have since lost, is also before the appellate court. It has not been called as yet