Vice President Bharrat Jagdeo and Attorney General Anil Nandlall SC are seeking leave from the Caribbean Court of Justice (CCJ) to appeal the ruling of the Guyana Court of Appeal that it has jurisdiction to hear the appeal of the dismissal of the Opposition APNU+AFC’s election petition which challenged the results of the March 2nd 2020 general elections.
In their separate notices of motion seeking permission to appeal, the two are asking the Trinidad-based court of last resort for Guyana, to stay the decision of the local appellate court.
Highlighting why they ought to be allowed to appeal, the VP and AG advance among other things, that Section 7 of the CCJ Act so provides and say also that the matter to be resolved is one of public interest/importance dealing with national elections which need a final determination.
On December 21st, last, the local appeal court in a majority 2-1 decision ruled that it has jurisdiction to hear the appeal of the petition. Acting Chancellor Yonette Cummings-Edwards and Justice of Appeal Dawn Gregory concurred with each other, while Justice of Appeal, Rishi Persaud dissented.
Previously, the Court had heard arguments from attorneys for the appellants and respondents as it related to the issue of jurisdiction and why it can and cannot hear the case.
Giving his decision on the matter, Justice Persaud stated that the court has no jurisdiction to hear the appeal as no final decision was made by the acting Chief Justice (CJ) at the High Court. Chief Justice Roxane George last January threw out the petition after finding that presidential candidate of the APNU+AFC, David Granger was not served on time.
Chancellor Cummings-Edwards during her ruling stated that the Chief Justice’s decision stood as an order on the petition along with the other issues of compliance. The Chan-cellor told the court that she was of the view that the CJ sat in the elections jurisdiction matter and also considered the validity of the said petition. As such she added that the decision made by the Chief Justice was a final order to which there exists a right of appeal as there was no decision on the petition.
It was on this note that the Chancellor stated that Article 163 (3) of the constitution states, “An appeal shall lie to the Court of Appeal – from the decision of a judge of the High Court granting or refusing leave to institute proceedings for the determination of any question.”
She opined that under the Court of Appeal Act, the Guyana Court of Appeal is conferred with jurisdiction to consider the dismissal of the petition.
Following its ruling, the local appellate court had granted a stay to facilitate any appeal to the CCJ. That stay expired last Tuesday as a result of which Jagdeo and Nandlall are seeking further stays pending the outcome of their appeals.
Like the AG, Jagdeo argues through his attorney that his intended appeal has a realistic prospect of success.
Through his battery of attorneys led by Trinidadi-an Senior Counsel Douglas Mendes, Jagdeo has expressed the view that the Guyana Court of Appeal was wrong in its finding, while stressing that it has no jurisdiction to hear the substantive appeal.
Mendes, who also represents now President Irfaan Ali—who was among the number of respondents listed in the action—had argued that the appeal court has no jurisdiction to hear the matter.
His contention has been that the purported appeal falls outside of the requirements created in Articles 163 (3) of the Constitution, and for this reason there is in the first place no appeal, and secondly, that the Court of Appeal has no jurisdiction to hear the matter.
Nandlall who was also listed as a respondent in the action, shared the sentiments expressed by Mendes.
The two attorneys had advanced that when the Chief Justice threw out the petition, that decision was not in relation to a final order of the court and is therefore not capable of being appealed.
Meanwhile attorney Roysdale Forde who represents the petitioners Monica Thomas and Brennan Nurse, argued that the court has jurisdiction to hear the matter.
The petitioners had appealed the ruling arguing that the Chief Justice erred in law among other things.
Thomas and Nurse were contending in their petition that the elections were unlawfully conducted and/or that the results (if lawfully conducted) were affected or might have been affected by unlawful acts or omissions. They nonetheless argue that from those polls it is Granger who should be declared the duly-elected President of Guyana.
In the other of the two petitions filed by the Opposition, which is also before the Court of Appeal, petitioners Claudette Thorne and Heston Bostwick want the Court to determine, among other things, questions regarding whether the elections have been lawfully conducted or whether the results have been, or may have been affected by any unlawful act or omission and, in consequence thereof, whether the seats in the National Assembly have been lawfully allocated.
On April 26, 2021, Chief Justice George threw out that petition also brought on behalf of APNU+AFC challenging the results of the March 2nd 2020 general elections.
She found that the recount order and section 22 of the election laws act did not contravene the constitution as had been argued by counsel for Thorne and Bostwick.
