Arguments continue in case to reinstate the elections petition which was dismissed
As petitioners, backed by the APNU+AFC Coalition, continue their bid to have a dismissed election petition reinstated, new arguments on the Court’s jurisdiction and processes have arisen.
Attorney General and Minister of Legal Affairs Anil Nandlall, SC, maintains that the Appellate Court has no jurisdiction to entertain the petition. He is supported in his contention by Trinidadian Senior Counsel Douglas Mendes who is representing Vice President Bharrat Jagdeo in the case.
But with that argument on the table, a new question has arisen.
Should the appeal have gone to the Full Court instead of the Court of Appeal, given the peculiar tier system of Guyana’s court structure?
But Nandlall and Mendes believe the question, although of interest, is not one that is necessary at this stage.
According to Mendes, the petition (#99) was dismissed on procedural grounds and as such it cannot be appealed.
Mendes’ point was further elucidated by Nandlall who said that there can only be an appeal after a determination of a matter and there was none in this case.
“We never got there, they did not manage to cross the procedural hurdle which is required by the law as a fundamental prerequisite.
“The jurisdiction of the [High] Court was not even invoked to determine the question,” Nandlall said.
It is for this reason that the lawyers have argued that the question on whether the matter should have been appealed to the Full Court is of no consequence because no appeal, whether to the Full Court or the Court of Appeal, should be entertained because of the reason for which the petition was dismissed.
Petition #99 was dismissed because former President, David Granger, was not served within the required five-day timeline to do so.
The question of an appeal to the Full Court was egged on by Justice Dawn Gregory and Justice Rishi Persaud with the Chancellor indicating that it was necessary to “dive into the issue.”
Mendes has asked the Court to submit in writing “a more confident and well thought out answer”. He along with all other Counsels who wish to further argue the point in writing has 21 days to make those submissions after which the attorneys representing the petitioners will respond within 21 days.
The case will continue on October 26, 2021 where according to Chancellor Yonnette Cummings Edwards, arguments in the petition should wrap up.
But ahead of those written submissions, Attorney Kashir Khan and Timothy Jonas have both added their voice to the argument, agreeing with Mendes and Nandlall that the question of an appeal to the Full Court, while important, was irrelevant.
Khan said as he understands it from his reading of the case law, failure to serve within the required time frame is not a mere irregularity but a fatality to the case.
He further explained that the question of an appeal to the Full Court would mean that the case was still alive.
“But that is not so… failure to serve is not a mere irregularity. That is the end of the matter and it closes the door to the matter even going to the Full Court.
“The matter cannot engage the attention of the full court,” Khan said.