Appeal leg of APNU/AFC election petition case begins on June 14

In the space of four months, both election petitions filed on behalf of the APNU/AFC challenging the results of the controversial March 2020 General and Regional Elections have been dismissed by Chief Justice Roxane George, SC. The party has so far filed at least one appeal challenging the Chief’s Justice decision.

That appeal has to do with election petition #99- the election petition filed by Monica Thomas and Brennan Nurse that was dismissed on January 18, 2021, for non-compliance with effecting service on the second-named respondent former President David Granger.

Guyana’s election results are back in the court again- this time the Court of Appeal which has set June 14, 2021, to commence hearing arguments for and against the dismissal of election petition #99. From the outset, Attorney General Anil Nandlall, SC, said that the party’s election petition is “destined to fail and has since filed a motion asking the appellate court to dismiss the case.

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.

During her ruling, the Chief Justice emphasized that the procedures for filing an election must be strictly complied with, and failure to do so can be fatal. In doing so, Justice George cited case laws, in particular, Eusi Kwayana et al v. The Chief Elections Officer et al.

While lawyers for the petitioners tried to correct the deficiency, the Chief Justice  held that they “failed miserably” at doing so, since the evidence adduced by them was “manifestly unreliable.”

Dissatisfied with the decision of the High Court, Thomas and Nurse are asking the Appeal Court to overturn the Chief Justice’s ruling and to award them court costs.

In appeal documents seen by this publication, the petitioners contend that the Chief Justice erred in law and misdirected herself by following the decision in Eusi Kwayana et al v. The Chief Elections Officer et al which decision in itself was erroneous.

Among other things, the petitioners argue that Justice George erred in dismissing the entirety of election petition No. 99-P of 2020 on the reason of non – service on Granger when the former President notified the court that he will not oppose the said election petition and the fact that the 11 other proper and necessary respondents were served with the statutory timeline.

“The Chief Justice erred in law and misdirected herself when she failed to consider the overriding objective of the petition in making her decision on the content of the Affidavit of Service,” they submit.

According to them,  the Chief Justice again erred in law and misdirected herself when she concluded that leave was required to file a supplementary affidavit of service to give a more complete understanding of how service was effected on the former president.

In any event, Nurse and Thomas contend that the ruling of Justice George is inconsistent with the court’s own order at a Case Management Conference during which they were invited to provide an explanation concerning what the court found was an apparent error in the original affidavit of service.

The petitioners also contend that Justice George erred in law and misdirected herself by failing to recognise that the purpose of Rule 9 of the National Assembly (Validity of Elections) Rules, requiring service of an affidavit is to verify that service was achieved within the time prescribed by the statute and that an error in the affidavit does not affect the fact of service.

Meanwhile, Claudette Thorne and Heston Bostwick are the petitioners in election petition #88 which was dismissed by the Chief Justice on April 26, 2021. In nullifying the election petition, Justice George declared that the Guyana Elections Commission acted in full compliance with the Constitution of Guyana and electoral laws in its conduct of the March 2020 General and Regional Elections.

The APNU/AFC has signalled its intention to appeal this decision. However, checks made with the Court of Appeal revealed that no such documents have been filed as yet. The results of the March 2, 2020, General and Regional Elections were not declared until August 2, 2020.

 The five-month period was embroiled in controversy and litigation.