Come June 14, 2021, the Guyana Court of Appeal will begin hearing arguments in the appeal filed on behalf of A Partnership for National United / Alliance for Change (APNU / AFC), challenging Chief Justice Roxane George’s dismissal of the party’s second election petition . for non-compliance with service action on former President David Granger.
The proceedings will start at 13:30h.
Known as election petition # 99, its petitioners are Nurse Brennan and Monica Thomas, who challenge the March 2020 General and Regional Elections result for which the PPP / C emerged winners. They are asking the High Court to declare Granger President of the exact elections they claim were held in violation of Guyana’s electoral laws and Constitution.
Attorney General and Minister of Legal Affairs Anil Nandlall, SC, has filed a Notice of Motion in which he requests that the party’s appeal against Justice George’s ruling be dismissed.
Nandlall argues that the Court of Appeal is not given statutory or constitutional jurisdiction to hear an election petition dismissed for procedural impropriety or for any other reason not stated in Article 163 (1) of the Guyana Constitution.
On January 18, 2021, Justice George rejected the election petition due to non-compliance with the operation of service as prescribed under Section 8 of the National Assembly (Validity of Elections) Act and Rule 9 of the National Assembly (Validity of Elections) Rules.
The Chief Justice found that the petition was not properly served on Granger – the named second respondent. The method of service is prescribed in Rule 9 (1) of the National Assembly (Validity of Elections) Rules, which imposes a statutory obligation on petitioners to operate a service within five days of service of the petition.
Petition # 99 filed on September 15, 2020, should have been presented to the former President five days later, which would have been September 21, 2020, since the fifth day – September 20, 2020 – be Sunday. However, in the Nurse service affidavit, it was stated that the petition, along with the relevant documents, was submitted to Granger on September 25, 2020 only – five days outside the statutorily prescribed period.
Following Justice George’s ruling, the petitioners filed a Notice of Appeal requesting that the decision be set aside and / or overturned, with costs awarded to them.
Irregular
Given that the Court of Appeal has no jurisdiction to hear an election petition rejected for non-compliance with an operating service, Solicitor General Nigel Hawke argued that, if the Court allowed a hearing on the matter, it would not only illegal but also irregular and unconstitutional. .
In an affidavit in support of the motion to dismiss the Notice of Appeal, Hawke ruled that appeals concerning an election petition are governed solely by Article 163 (3) of the Guyana Constitution, which sets out the circumstances in which such appeals may be. filing.
Among them, he outlined, a decision grants or denies permission to institute proceedings to decide any question referred to in Article 163 (1) of the Constitution.
According to the Solicitor General, the Chief Justice’s decision was not, and did not include, a decision on a question referred to in the above Article. On this note, he submitted that the jurisdiction of the Court of Appeal to hear an appeal against the decision of the High Court must be established in the Constitution and statute.
Like Nandlall, Hawke argues that “the Court of Appeal has no statutory or constitutional jurisdiction to hear an election petition dismissed for procedural impropriety or for any other reason not stated in Article 163 (1) of the Guyana Constitution.”
An overriding objective
Expressing dissatisfaction with the Chief Justice’s ruling, petitioners’ lawyers argue that Justice George, in rejecting the party’s election petition, failed to consider his overriding objective.
Lawyers for Nurse and Thomas argued that Justice George erred in law and misdirected himself by failing to recognize that the purpose of Rule 9 of the National Assembly (Validity of Elections) Rules, which requires the submission of an affidavit, is to verify that a service has been performed within the time prescribed by the statute and that an error in the affidavit does not affect its delivery.
They further argued that Justice George erred in law and misdirected himself by following the decision in Eusi Kwayana et al v Chief Returning Officer et al, whether the decision was in itself erroneous. According to the lawyers, Justice George again erred in law and misdirected himself in applying the doctrine of strict compliance by holding that such compliance was about the content of the service affidavit, instead of filing the service affidavit in time .
Further, the lawyers argued that the Chief Justice also erred in law and misdirected himself when he concluded that consent to file a supplementary affidavit of service was required to provide a more complete understanding of how service was affected former President.
In addition, it is argued that the Chief Justice erred in dismissing the entire election petition for non-service, although Granger informed the court that he would not oppose the election petition and that other appropriate and necessary respondents had been submitted from within the statutory. Time line.