Lawyers for the government and elections petitioners battled for nearly five hours yesterday before the CCJ on whether a decision on a petition, which had not been determined on its merits, could be appealed to Guyana’s Court of Appeal.
The top court is to set a date for its ruling.
‘Having not been determined on its merits, the election petition filed by the Opposition APNU+AFC to the March 2nd, 2020 general elections cannot be appealed, and therefore the Guyana Court of Appeal has no jurisdiction to hear such an appeal.’
That was the thrust of the arguments advanced by counsel for Vice President Bharrat Jagdeo and Attorney General Anil Nandlall SC, who are challenging the decision of the local appellate court giving itself jurisdiction to hear the appeal filed by the petitioners.
During the hearing yesterday before the Caribbean Court of Justice (CCJ) which will now be considering the case laid before it by Jagdeo and Nandlall, the Appellants’ reliance was heavy on a Dominican case recently decided by the CCJ which found that an election petition not decided on its merits could not be appealed.
This position was the common thread running through the arguments advanced by Appellants; though one of the judges on the five-member panel sought to caution that the two cases were not identical and the differences needed to be appreciated.
Strongly refuting the arguments for Jagdeo and Nandlall, however, was Senior Counsel John Jeremie who led the legal team of petitioners Monica Thomas and Brennan Nurse; advancing their stance to be that the local appellate court had rightly assumed jurisdiction because the law so allows.
To the Appellants’ reliance on the case which was filed against the Elections Commission of Dominica, Justice Peter Jamadar—one of the judges on the CCJ panel hearing the local appeal—said that the two cases were not “on all fours” as there were distinguishing features.
On this point the Judge noted that the CCJ did not limit appeals to Article 163(3) of the Constitution of Guyana and in that sense said that the Dominican case was not applicable to the Guyana case.
The local appellate court in a majority decision had ruled that given Article 163(3) which 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 in paragraph (1);” as well as its own Act, clothed it with jurisdiction to hear the appeal mounted by the petitioners.
Nandlall and Senior Counsel Douglas Mendes who represents Jagdeo have, however, argued that since the decision of acting Chief Justice Roxane George SC was not in relation to a final order of the Court it was incapable of being appealed and that the Guyana Court of Appeal therefore has no jurisdiction to hear the matter.
Their contention is that the purported appeal falls outside of the requirements created in Article 163(3) and for that reason there is in the first place no appeal.
They advanced that in accordance therewith, an appeal could only have been permitted if the substantive petition had been heard in its entirety in accordance with Article 163(1) which requires the determination of specific questions on the full hearing of the substantive petition on its merits.
At the hearing which lasted just under five hours, Nandlall in his address, as he had done in the court below, argued vehemently that an election petition not determined on its merits and from which a final order of the court was not made, cannot be appealed.
He said the ruling of Chief Justice George highlighted that the impact and legal effect of the procedural requirement for service in a specified time not having been met, affected the validity of the petition itself, thereby nullifying it.
The AG argued that the defective nature of the appeal therefore constitutes a “jurisdictional bar” to the appellate court then entertaining an appeal. Against this background he said that the Court of Appeal got it wrong in assuming jurisdiction to hear the case on an appeal.
He said that the Guyana Court of Appeal’s reliance on the conventional provisions of its own Act which ordinarily protects the right to appeal and Article 163(3) was misplaced.
His position is that the petitioners failed abysmally in establishing their right to an appeal; given the special and exclusive jurisdiction with which the High Court is clothed to fully hear election petitions; therefrom only, an appeal would lie to the Court of Appeal.
Nandlall then opined that the “valiant and desperate attempts to carve a jurisdiction” for the appellate court to adjudicate on the matter “are simply futile and cannot be countenanced.”
Sharing the sentiments expressed by the Attorney General, Mendes reiterated that the decision of the High Court Judge would had to have been pursuant to a final order, before an appeal could have been made to the Court of Appeal.
Regarding a question from Justice Jamadar which was also posed to Nandlall, Mendes said that the significant importance of Article 163(3) in the context of an election petition allows for an appeal to the Court of Appeal, only where the specific questions in 163(1) would have been fully heard and determined in the petition.
He said that the specific reference to “leave” in 163(3) without any provision requiring a party to apply for leave, could have been that the framers of the Constitution assumed “that there was a requirement somewhere,” that an application could be made for leave.
From that assumption he said it could have been the reason that the framers then said that if leave was refused or granted then there would be a right of appeal to the Court of Appeal; which he said would then be consistent with subsection (b) of 163(3) which he argued requires the appeal to be from a full and final determination of the questions listed in 163(1).
He said that by implication, this would then exclude appeals on any question not relating to the merits of the petition.
The AG appeared initially hard-pressed to provide an answer to Justice Jamadar’s enquiry, but would eventually say that he had not considered that particular provision relevant at all to the case, while moving to quickly point out that there were, however, legal authorities to substantiate the position he advanced, though he agreed with the response provided by Mendes.
Jeremie in his rebuttal address to the court held to the ruling made by the Court of Appeal, that not only did its own Act allowing a right of appeal operate, but 163(3) as well, which provides for such leave, as was the ruling of that court.
To the arguments advanced on behalf of the Appellants that there is no appeal for want of the questions in 163(1) not having been determined, Jeremie said that Article 163(3) ought to be given a wider interpretation for appeals to be allowed where the petition is not determined on its merits.
He urged the CCJ to so find, while advancing that Article 163(3) had to be read in tandem with Article 123(1); which provides for a Supreme Court and a Court of Appeal with powers conferred on each respectively.
As was his team’s position before the lower court, Jeremie maintains that the local appellate court has jurisdiction to hear the appeal and was right in so finding.
He is asking the CCJ to affirm that decision.
With the hearing now completed, Justice Jacob Wit announced that the Court will consider the arguments and send notices announcing when it will render its decision.
In addition to Justice Jamadar, the other members of the Bench hearing the appeal are Justices Maureen Rajnauth-Lee, Denys Barrow, Winston Anderson and Wit who sat as Chairman/President.
On December 21st, last, the local court of appeal in a majority 2-1 decision ruled that it has jurisdiction to hear the appeal against the throwing out 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.
Chief Justice George had previously thrown out the petition, after finding that presidential candidate of the APNU+AFC, David Granger was not served on time.
Thomas and Nurse’s contention has been 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.
