Dismissed election petition: Jagdeo, Nandlall seek leave to challenge ruling at CCJ

The content originally appeared on: INews Guyana

Caribbean Court of Justice

Vice President Bharrat Jagdeo, in his capacity as General Secretary of the PPP, and Attorney General Anil Nandlall, SC are seeking special leave from the Guyana Court of Appeal to appeal against a ruling of that very court to take jurisdiction to hear an election petition filed on behalf of the APNU/AFC that was dismissed by the Chief Justice for non-service.

They are also asking the Court of Appeal for a further stay of execution on its ruling, which was rendered on December 21, 2021, until the determination of their intended appeal at the CCJ.

A previous stay was granted by the court the very day the judgement was made; however, it expired on January 4, 2022. The request for a further stay of execution is to prevent the Court of Appeal from hearing the matter until the hearing and determination of the appeal that will be filed to the regional court.

On his weekly programme – ‘Issues in the News’ – Nandlall explained that the application for special leave to appeal is simply a procedural requirement that is set out in the CCJ Act, which entails the parties first seeking leave from the Court of Appeal to file an appeal to the CCJ.

“The leave is normally granted; it is not refused. The CCJ in judgements handed down prior has explained that the Guyana Court of Appeal performs a gatekeeping function; meaning that it cannot refuse you entry once you have a right of appeal,” the Attorney General explained.

No jurisdiction

According to him, the Court of Appeal does not have jurisdiction to refuse an application unless an appeal does not lie to the CCJ. Considering this, Nandlall noted, “We are satisfied that an appeal lies, so we have to go through the procedural requirements of going before the Court of Appeal to seek leave first… Because that is how the CCJ rules are structured.”

Advocating why they have the right of appeal, Jagdeo and Nandlall cited Section 7 of the CCJ Act, which states that an appeal shall lie to the CCJ with leave from the Court of Appeal from a decision of the Court of Appeal in any civil matter which, in the opinion of the latter court, the question is one that is of great general or public importance.

“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,” reads the Notice of Motion seeking leave to appeal that was filed by Jagdeo and Nandlall.

Highlighting why the court should further stay its ruling, they said, “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 [CCJ] would be rendered nugatory insofar as the orders granted by this court would take effect before the intended appeal is heard and determined.”

As such, Nandlall and Jagdeo requested the Court of Appeal to further stay its ruling so that the CCJ “can bring a resolution of these fundamental issues which concern the interpretation of the Constitution of Guyana, as well as issues integral to Guyana’s constitutional democracy.”

Moreover, they submit that their intended appeal to the CCJ is an “arguable one” with a “realistic prospect of success”.

Ruling

In a 2-1 majority ruling, the Court of Appeal ruled that it had jurisdiction to hear an appeal against a decision of Chief Justice Roxane George, SC, to dismiss election petition #99 based on improper service/non-service.

The majority ruling was delivered by the Chancellor of the Judiciary Yonette Cummings-Edwards and Justice of Appeal Dawn Gregory, SC, while Justice of Appeal Rishi Persaud had a dissenting judgement.
The petition filed by Monica Thomas and Brennan Nurse challenges the results of the March 2, 2020 General and Regional Elections with the intent of having David Granger declared as the duly-elected President.

In their ruling, Justices Cummings-Edwards and Gregory held that to oust the Appeal Court from hearing the appeal against the Chief Justice’s ruling would defeat the purpose of Article 163 of the Constitution of Guyana.

Justice Gregory said, “Parliament would not have left the matter for implication if a decision of the High Court was intended to be a final decision. Parliament would have so expressed. I don’t read the silence to provide an appeal procedure as a shutting out of the jurisdiction of appeal under that scheme — the National Assembly Validity of Election Act.”

As for the Chancellor, while she noted that she considered all the precedence relied on by the Attorney General, she said they failed to invalidate the Court of Appeal’s jurisdiction to hear the appeal.

Meanwhile, Justice Persaud said that considering the unambiguous language of that constitutional provision, as well as the fact that Justice George did not dismiss the petition on its merits, but rather because of procedural errors, a right of appeal did not lie to the Court of Appeal.

“In applying the application test here, it is clear that the order made by your Honour was interlocutory. Had her Honour ruled that the second respondent was not a necessary party or that service was in time, the petition would have proceeded to trial,” noted Justice Persaud.

The Justice of Appeal added, “In any event, there was no final determination of the dispute between the parties. In the circumstances, I would strike out the notice of appeal for want of jurisdiction.”

The petition which was filed on September 15, 2020 was dismissed on January 18, 2021 by the Chief Justice as a result of the petitioners’ failure to effect service on the second-named respondent, former President David Granger, within the statutorily prescribed time.

The manner of service is prescribed in Rule 9 (1) of the National Assembly (Validity of Elections) Rules, which imposes on the petitioners the statutory obligation to effect service within five days after the presentation of the petition.

Having been filed on September 15, 2020, the petition should have been served on Granger five days thereafter, which would have been September 21, 2020, since the fifth day – September 20, 2020 – was a Sunday.

But in Nurse’s affidavit of service, it was stated that the petition, along with the relevant documents, was only served on Granger on September 25, 2020 – five days outside of the statutorily prescribed period.

Nandlall had filed an application to have the petition struck out on the procedural irregularity, and succeeded before the Chief Justice.

At the Court of Appeal, he had argued that since Justice George never determined the questions raised in the petition, there was 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.

However, Senior Counsel John Jeremie and Senior Counsel Roysdale Forde, who are representing the petitioners, told the Justices of Appeal that an appeal to a dismissed election petition not only lies under Article 123 of the Constitution, but also the Court of Appeal Act.

Also, they argued that given that the Chief Justice’s ruling was a “final order”, it can be appealed against to the Court of Appeal.