Appeal Court says has jurisdiction to hear case on dismissal of APNU+AFC election petition
In a majority decision, the Guyana Court of Appeal yesterday ruled that it has jurisdiction to hear the appeal of the dismissal of the opposition APNU+AFC’s election petition which challenged the March 2, 2020 general elections.
During the hearing yesterday, Chancellor of the Judiciary (Ag) Yonette Cummings-Edwards and Justice of Appeal Dawn Gregory asserted that the Court of Appeal has jurisdiction to hear the appeal of the petition, while Justice of Appeal, Rishi Persaud did not agree.
Previously, the court had heard arguments from attorneys for the appellants and respondents as it related to the issue of jurisdiction and why it can and cannot hear the case.
Giving his decision on the matter, Justice Persaud stated that the court has no jurisdiction to hear the appeal as no final decision was made by the acting Chief Justice at the High Court. Chief Justice Roxane George in January threw out the petition after finding that presidential candidate of the APNU+AFC, David Granger was not served on time
While the court was also expected to make a decision as to whether the appeal should have been laid to the Full Court of the High Court, Justice Persaud stated that the Full Court also does not have jurisdiction to hear the matter as it was thrown out for want of compliance
Chancellor CummingsEdwards during her ruling stated that the Chief Justice’s decision stood as an order on the petition along with the other issues of compliance. The Chancellor told the court that she is of the view that the CJ sat in the elections jurisdiction matter and also considered the validity of the said petition. As such she added that the decision made by the Chief Justice was a final order to which there exists a right of appeal as there was no decision on the petition.
It was on this note that the Chancellor stated that Article 163 (3) of the constitution states, “An appeal shall lie to the Court of Appeal - from the decision of a judge of the High Court granting or refusing leave to institute proceedings for the determination of any question.”
She opined that under the Court of Appeal Act, the Guyana Court of Appeal is conferred with jurisdiction to consider the dismissal of the petition. On the issue of whether the Full Court could have heard such an appeal, the Chancellor agreed with Justice Persaud that the Full Court does not have authority to hear the appeal of an elections petition which was dismissed.
As a result of the decisions made by the appeal court yesterday, the court agreed to issue a stay in the proceedings for the named respondents to decide if they will appeal to a higher court or allow the appeal here to proceed.
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—had argued that the appeal court has no jurisdiction to hear the matter.
Mendes’ contention has been 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 had advanced that when the Chief Justice threw out the petition, that decision was not in relation to a final order of the court, and is therefore not capable of being appealed.
They have argued that in accordance with 163 (3), an appeal would only have been permitted if the substantive petition had been heard in its entirety.
Meanwhile attorney Roysdale Forde who represents the petitioners Monica Thomas and Brennan Nurse, argued that the court has jurisdiction to hear the matter.
The petitioners had appealed the ruling arguing that the Chief Justice erred in law among other things.
Thomas and Nurse were contending in their petition 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 Ali to be illegally holding office.
In the other petition, which is also before the Court of Appeal, petitioners Claudette Thorne and Heston Bostwick want the court to determine, among other things, questions regarding whether the elections have been lawfully conducted or whether the results have been, or may have been affected by any unlawful act or omission and, in consequence thereof, whether the seats in the National Assembly have been lawfully allocated.
On April 26, 2021,
Chief Justice (acting) George threw out the petition brought on behalf of APNU+AFC challenging the results of the March 2nd 2020 general elections.
She found that the recount order and section 22 of the election laws act did not contravene the constitution as had been argued by counsel for Thorne and Bostwick.