Majority decision at Court of Appeal to hear elections petition
The Court of Appeal in a 2-1 decision on Tuesday afternoon ruled that it has the jurisdiction, or power, to hear an appeal filed against a January decision of Chief Justice (ag) Roxane George to throw out an elections petition brought by Monica Thomas and Brenan Nurse.
Justice Rishi Persaud was the dissenting judge. Justices Yonette Cummings-Edwards and Dawn Gregory allowed the appeal.
The Court agreed to “stay” or put a hold on its decision for two weeks so the respondents can determine whether they will go to the Caribbean Court of Justice (CCJ) for final determination or if they will allow the appeal to go ahead.
The Chief Justice threw out the petition of Thomas and Nurse on procedural grounds, namely that the petition was served late to David Granger, Representative of the List for A Partnership for National Unity+Alliance For Change (APNU+AFC).
Thomas and Nurse filed their petition claiming that the March 2 elections were unlawfully conducted due to unlawful acts or omissions such as discrepancies and irregularities and they want the courts to determine that President Irfaan Ali was illegally sworn in.
But the Chief Justice had dismissed the case because she said that from the time the petition (99 P of 2020) was served out of time on Granger it was a “non-starter.”
Thomas and Nurse appealed the decision at the Court of Appeal.
In his ruling, Justice Persaud felt the crux of the matter lay in the consideration of Article 163 (3) of the Constitution within the context of electoral laws and schemes.
Article 163 (3) states that an appeal to the Court of Appeal can be made “from the decision of a Judge of the High Court granting or refusing leave to institute proceedings for the determination of any question.”
Justice Persaud said the language of the article is crystal clear and is unable to attract ambiguity.
Since he said the Chief Justice did not hear the “question” or merits of the petition but rather dismissed it on the basis of late submission, there was nothing to appeal.
Justice Cummings-Edwards, the Chancellor (ag) of the Judiciary, did not agree. She felt that the Chief Justice sat in an elections court and considered the validity of the petition in relation to whether it could go on.
She felt that the ruling of the Chief Justice was not simply on the procedural issue itself but on the petition as a whole and hence she said the ruling was a final one on the actual petition. Therefore, she determined that the Court of Appeal has jurisdiction to entertain the appeal.
Thomas and Nurse, through their attorneys, had argued that the Chief Justice erred in law and misdirected herself by misapplying the doctrine of strict compliance when she ruled the affidavit needed to be filed in a timely manner.
Attorney General Anil Nandlall SC, one of the respondents, had argued that it was only if the substantive petition had been heard that it could have been heard in the Court of Appeal.
Nandlall and Trinidad Senior Counsel Andrew Mendes, representing President Irfaan Ali and Vice President Bharrat Jagdeo, had argued that since the ruling was on procedural grounds only, it would therefore be an “interlocutory” ruling and not a “final” ruling on the petition itself and therefore could not be heard in the Court of Appeal.
Justice Gregory, like the Chancellor, disagreed, saying that because the ruling disposed of the entire substantive petition, a right of appeal could be allowed.