With written submissions from the parties already laid over, the Court of Appeal will this morning begin hearing oral arguments in the appeal filed by APNU+AFC candidate Ulita Grace Moore, who is challenging the Full Court’s decision earlier this week to discharge injunctions which had halted preparations for a recount of votes cast at the March 2nd polls.
Given the national importance of the case, the court has indicated its desire to expedite the proceedings. Against this background, written responses to submissions tendered yesterday must be prepared and served on the parties involved no later than 6 this morning.
Signaling its intentions to render its decision shortly after the hearing today, the appellate court has instructed attorneys that their presentations should be no longer than 30 minutes.
Speaking to the media following yesterday’s hearing, attorney Anil Nandlall renewed the opposition PPP/C’s calls for a recount, even as he emphasised that there is nothing hindering the Guyana Elections Commission (GECOM) from conducting that process.
On this point he noted that there has been no stay of the Full Court’s decision. “No injunction exists. None has been applied for. No stay of execution of any sort has been applied for,” he stressed.
He expressed the view that the litigation is only being used to stall the electoral process.
Arguing that the Full Court made several errors in law, one of Moore’s attorneys, Roysdale Forde, is, however, hoping that the appellate court would set aside the decision.
He said he also expects that the GECOM Chairperson retired Justice Claudette Singh will honour what he said she has always maintained, “that she will await the hearing of the process.”
Forde said he found it amazing that after High Court Judge Franklyn Holder had ruled that he had jurisdiction to hear Moore’s case, the Opposition felt it proper to appeal to the Full Court, yet when his client does same, it is seen as stalling the process.
He said that the judicial system recognises further appeals, even as he observed that whenever the opposition obtains a victory and the other side appeals they view it as stalling the process, but when it’s the other way around, the opposition fully utilizes the appellate process.
Asked whether in the absence of a stay from the Court of Appeal GECOM is free to go ahead with deliberations regarding the report presented by Chief Election Officer (CEO) Keith Lowenfield for final declarations, Forde answered in the affirmative.
He said that that report had been presented to the GECOM Chair since March 14th upon which she could have acted, even as he questioned the reason behind the issue of proceeding with a recount at this stage.
He questioned why only a recount can be considered and also why the report cannot be presented to the Commission.
He said that Justice Singh currently has three options—to consider the report, a recount, or to await the outcome of the court proceedings.
Counsel said that citizens are free to decide what would be the best route to take, while noting that there are still proceedings pending before the court. He said when his client had legal proceedings pending in her favour, neither the Chairperson nor the Commission presented the report.
Forde said that the decision of the Full Court does not logically indicate that a recount should be done when there are legal proceedings still pending.
He advanced, too, that in Justice Holder’s ruling declining jurisdiction of the matter filed by Jagdeo who wants declarations of results for Region Four (Electoral District Four) vitiated, the judge said that the judge found the declaration to have been a proper one.
On this point Forde said that there is no issue before the court regarding that March 13th declaration made by Returning Officer (RO) for that district, Clairmont Mingo.
He said that the GECOM has to recognize a decision by the court that that declaration is a valid one, even as he questioned the merit of a recount on this basis.
Referencing contempt of court proceedings which the opposition had filed, Forde said that this too would serve no purpose given that Justice Holder has not invalidated Mingo’s declaration, having found that the RO complied with the law, and that any other challenge would have to be by way of an elections petition.
When asked whether he would approach the Caribbean Court of Justice (CCJ)—Guyana’s final appellate court—if his client is defeated at the Court of Appeal, Forde said it is a part of the legal system, even though he said that the decision is ultimately his client’s.
According to him, contrary to public opinion, the case is not driven by Moore’s lawyers.
The case before the Court of Appeal is being presided over by Justices of Appeal Rishi Persaud, Dawn Gregory and High Court judge Brassington Reynolds.
Nandlall represents Opposition Leader Bharrat Jagdeo who is challenging the case brought by Moore. Jagdeo’s position has been that Moore’s matter ought to have come by way of elections petition and not judicial review as it had been filed before Justice Holder.
The Full Court, comprising acting Chief Justice Roxane George-Wiltshire SC and Justice Nareshwar Harnanan, endorsed this position on Tuesday, dismissing Moore’s case and at the same time discharged injunctions she had been granted by Justice Holder which halted preparations for a recount.
Delivering the judgment, the Chief Justice said that Moore’s challenge could only have been brought in an elections petition as opposed to an application for judicial review. As a result, the court threw out her case and discharged the injunctions she had been granted by Justice Holder which halted the recount.
Moore, in her application for judicial review, had contended that GECOM could not order a recount based on an Aide Memoire signed by President David Granger and Jagdeo.
President Granger had contacted CARICOM’s Chair, Prime Minister of Barbados Mia Mottley, and agreed for a recount to be done following controversy over the tabulation of the votes cast for Region Four, which opposition parties as well as international and many local observers say was not done in a transparent and credible manner.
An independent high-level team from CARICOM had then traveled to Guyana to supervise the recount, however this was aborted after Moore filed her application and was granted an injunction against the recount.
The opposition PPP/C’s position has been that Mingo did not, as required by law, use the statements of poll (SOPs) to tabulate the results he eventually declared.
In an affidavit dated March 20th, the GECOM Chair had given an undertaking following a ruling delivered by Justice George-Wiltshire that should there be discrepancies in the SOPs called by Mingo with those held by political parties, then such discrepancies would be noted at the end of the process if they could not be addressed then, and she would endeavour to facilitate a recount at the level of the Commission.
