Oral arguments began on Monday before the Caribbean Court of Justice (CCJ) in a challenge to Guyana’s Court of Appeal decision to entertain an appeal regarding an already dismissed election petition.
Lawyers on both sides spent well over four hours arguing for and against the Court of Appeal’s jurisdiction to hear the application which seeks to reverse the decision taken to dismiss the petition.
One lawyer, Kashir Khan, was not allowed to make any oral presentation even as the Court rejected his written submissions on the grounds that it was submitted late.
Guyana’s Attorney General Anil Nandlall, SC, and Trinidadian Senior Counsel Douglas Mendes argued along similar grounds, maintaining that Guyana’s Chief Justice (ag) Roxane George was following the law when she dismissed the petition on procedural grounds – late service on former president David Granger.
At least one CCJ Judge, Justice Peter Jamadar, sought to question on Monday why this was done when petitions usually take “an awfully long time”.
“What about this urgency to deal with these things quickly?” he quizzed.
But Nandlall and Mendes both responded, assuring the Court that there was no ulterior motive for urgency.
Guyana’s Appellate Court had ruled by a majority on December 21, 2021, that it has jurisdiction to entertain an appeal of the decision by Chief Justice (ag) Roxane George to throw out elections petition 99 on the grounds of late service, non-service, or improper service.
Both Nandlall and Mendes believe the two justices – Yonette Cummings-Edwards and Dawn Gregory – erred when they ruled.
Nandlall believes the recent CCJ ruling where it denied permission to hear an election petition appeal out of Dominica because the trial judge’s judgment was interlocutory and not final, is the most recent precedent for how the CCJ should handle this appeal put of Guyana.
“There is really no decision from which one can appeal… the petition is a nullity, the petition is defected and that constitutes a bar to the court entertaining the appeal, entertaining the matter itself.
“The Court of Appeal did not get it right because they sought to ground an appeal where one does not exist using the conventional provisions of the Court of Appeal Act,” Nandlall told the Court.
He said Guyana’s Court of Appeal fell into an error trying to use Article 123 of the Constitution to justify its decision to entertain the appeal to the dismissed petition.
Nandlall told the CCJ that they had the herculean and legally impossible task to create jurisdiction and warned that if they do they will fall into error.
The CCJ is Guyana’s final court and judgments from that court are deemed concluding.
Likewise, Mendes argued that had the procedure been followed, the petition would have been heard on its merit just as a second petition filed was heard.
He said the applicants knew of the possibility that the petition could be struck out for late service but moreover, he said Guyana’s Court of Appeal has no implied jurisdiction to hear the appeal and only has jurisdiction given to it.
“…and the framers of the Constitution defined that jurisdiction and did not include interlocutory matters.”
The third judge in the Guyana Court of Appeal ruling, Justice Rishi Persaud, ruled not to allow the appeal. During his ruling, Justice Persaud 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.
These were similar arguments put forward by the appellants on Monday.
The CCJ, under the supervision of Justice Jacob Wit, did not set a date for a decision on the matter but said all parties will be notified.