The Caribbean Court of Justice (CCJ), on Monday, heard arguments spanning almost four hours in Attorney General Anil Nandlall, SC and Vice President Dr Bharrat Jagdeo’s consolidated appeal against a ruling of the Guyana Court of Appeal.
In the majority judgement, the appellate court held that it had jurisdiction to hear an appeal against a decision of Chief Justice Roxane George, SC, dismissing election petition 99 filed on behalf of the APNU/AFC on the grounds of late service, non-service or improper service.
The petition was filed by Monica Thomas and Brennan Nurse at the Demerara High Court shortly after the results of Guyana’s 2020 election were declared, challenging the validity of those elections.
The petitioners are arguing that those elections were conducted unlawfully and that based on the polls, it is former President David Granger, who should be declared the duly-elected President of Guyana for a second term.
Ultimately, they are asking the court to declare that President Dr Ifaan Ali is illegally holding office.
The Chief Justice had dismissed the petition on the ground that the petitioners did not comply with the rules for effecting service on the former President David Granger, one of the many respondents.
Filed on September 15, 2020, the petition 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 Nurse’s affidavit, 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.
At the CCJ, Nandlall contended that the Court of Appeal erred in law and had no jurisdiction to hear and determine the appeal; neither from statute, the Constitution nor does it have an inherent jurisdiction.
Since the Chief Justice “never determined” the questions raised in the petition because the matter never went to trial, and because the petition was dismissed for procedural impropriety or any other reason not stated under Article 163 (1) of the Constitution, Nandlall argued that the Chief Justice’s decision is not final but rather, interlocutory.
For this reason, he contended that there is no statutory or constitutional jurisdiction to the Court of Appeal to hear APNU/AFC petition.
He reasoned that the petition is a nullity and defected and this constitutes a jurisdictional bar to the Court of Appeal hearing the matter. As such, he submitted that the appeal court fell into error when it used Article 123 of the Constitution to confer it with jurisdiction.
Given that an election petition is given an “extraordinary, special, limited and peculiar” jurisdiction under Article 163 of the Constitution to be heard by the election court [High Court], the Attorney General maintained that the appellate court has no jurisdiction to entertain an election petition that never went to trial.
The Senior Counsel submitted that an election petition is part of a statutory code that is over 300 years old that was handed down to Commonwealth nations by Her Majesty’s government through colonial rule.
He relied on Cuffy and others v Skerrit and others, a case that was recently decided by the CCJ.
In this case, the regional court dismissed an application for special leave to appeal against the decision of the Court of Appeal of the Eastern Caribbean Supreme Court in relation to 10 election petitions which challenged the results of the last general elections in Dominica.
The CCJ found that the trial Judge did not determine the merits of the petitions. In other words, he did not reach the stage where he would have determined the question of whether a candidate was validly elected or not.
Instead, the CCJ noted that the Judge struck out the petitions on procedural grounds. Subsections (ss) 40(6) and (7) of the Constitution of Dominica only permits appeals against a final decision in law.
Accordingly, the CCJ held that the decision of the trial Judge was not final, but interlocutory and therefore dismissed the matter.
Jagdeo’s lawyer, Douglas Mendes, SC submissions mirrored those of Nandlall. He reiterated that an election petition invokes a special jurisdiction of the High Court– one that is distinct and different from its ordinary/constitutional jurisdiction.
Considering the foregoing, he argued that the Court of Appeal of Guyana does not have implied jurisdiction but rather a jurisdiction that is given to it by the Constitution or law.
Mendes said that the framers of the Constitution, having addressed their minds to what jurisdiction to give the Court of Appeal, did not give it jurisdiction to hear and determine appeals against interlocutory decisions stemming from an election petition.
Senior Counsel John Jeremie, for the petitioners’, argued 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.
Unlike Nandlall and Mendes, he said that the ruling handed down by the Chief Justice is a final order, and therefore, it can be appealed to the local Court of Appeal.
It is his position that Article 163 of the Constitution does not expressly state that the High Court is a final jurisdiction in matters set out under that constitutional provision.
The CCJ Bench comprised Justices Jacob Wit, Winston Anderson, Maureen Rajnauth-Lee, Peter Jamadar and Denys Barrow. When the court is ready with its judgement, the parties will be notified.