On Thursday morning, the Court of Appeal heard further arguments on the preliminary point of its jurisdiction to hear an election petition dismissed for procedural irregularity and is hoping to conclude on October 26.
Election petition #99 was dismissed on January 18 by Chief Justice Roxanne George as a result of the petitioners’ non-compliance with effecting service on the second-named respondent former President David Granger.
That petition was filed by Monica Thomas and Brenan Nurse on behalf of the APNU/AFC and it challenged the validity of the March 02, 2020, national elections.
The petitioners are arguing that those elections were conducted unlawfully and that based on the polls it is Granger who should be declared the duly-elected President of Guyana.
While Attorneys-at-law Roysdale Forde SC and John Jeremie, SC who represent the petitioners argue that the appellate court does have jurisdiction to hear the matter, Attorney General Anil Nandlall, SC argues that the court has no jurisdiction to entertain the matter.
Nandlall submitted that the decision of the Chief Justice that is being appealed arises out of an election petition which has been given an “extraordinary, special, limited and peculiar” jurisdiction under Article 163 of the Constitution of Guyana.
He said this constitutional provision lists the types of issues that are to be raised in an election petition and also limits the grounds upon which appeals flow from the determination of those issues.
Nandlall said that the Chief Justice, in striking out the petition for non-service, emphasised that that service within the prescribed time is a condition precedent to the hearing of an election petition, and if such procedures are not followed then the court cannot proceed to hear the matter.
Nandlall noted that the Chief Justice never determined the questions raised in that petition since the matter never went to trial. “Those questions having not been determined, there is simply no right to an appeal,” he argues.
Having regards to the foregoing, Nandlall argued there is 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.
Forde and Jeremie, however, argue that the Attorney General failed to cite any authority to substantiate his argument that the Court of Appeal lacks jurisdiction to hear the matter.
The two Senior Counsel said that the right of appeal to a dismissed election not only lies under Article 123 of the Constitution, but also the Court of Appeal Act.
According to them, the ruling handed down by the Chief Justice is a final order, and therefore, it can be appealed to the appellate court.
The Chief Justice in dismissing that election petition held that service was not effected in accordance with Section 8 of the National Assembly (Validity of Elections) Act and Rule 9 of the National Assembly (Validity of Elections) Rules.
Section 8 of the National Assembly (Validity of Elections) Act states therein that within the prescribed time, not exceeding five days after the presentation of an election petition, the petitioner (s) shall in the prescribed manner serve on the respondent a notice of the presentation of the petition, and the nature of the security or proposed security, and a copy of the petition unless the court otherwise directs on the application of the petitioner.
Rule 9 (1) of the National Assembly (Validity of Elections) Rules states that the petitioners have the statutory obligation to effect service within five days after the presentation of the petition.
Having been filed on September 15, 2020, election petition #99 should have been served on the former President five days thereafter which would have been September 21, 2020, since the fifth day – September 20, 2020 – was a Sunday.
But according to an affidavit by Nurse, the petition along with the relevant documents were not served on the former President until September 25, 2020- four days outside of the statutorily prescribed period.