CCJ overturns Appeal Court decision to entertain dismissed election petition

The Caribbean Court of Justice on Wednesday ruled that Guyana’s Court of Appeal does not have jurisdiction to hear the appeal filed against the decision of Chief Justice (ag) Roxane George, SC, to dismiss the APNU+AFC supported elections petition #99 brought by petitioners Monica Thomas and Brenan Nurse.

The Trinidad-based court, which is Guyana’s final court of appeal, ruled in favor of an application filed by Attorney-General Anil Nandlall, S.C., and Vice-President Dr. Bharrat Jagdeo as the General Secretary of the People’s Progressive Party Civic (PPP/C)

The ruling of the court was delivered by CCJ Judge, Winston Anderson who said that the Chief Justice’s decision to dismiss the petition for failure to comply with statutory requirements as a service was an exercise of “judicial discretion” pursuant to the power’s jurisdiction.

Additionally, they found that since the petition was dismissed on those grounds it cannot be appealed and the Appellate Court would be acting outside of its jurisdiction should it entertain the petition.

The dismissal could only be appealed if the Order by the Chief Justice was final to which Justice Anderson disagreed, saying it was not since she never dealt with the substantive content of the petition.

Justice Anderson said the language of the Validity of Elections Act and the Constitution is clear and is unable to attract ambiguity.

“Elections validity act and appeal such a decision does not lie in the Court of Appeal, but to the full court,” Justice Anderson said.

Among other things, he said that in Guyana, the deep basic structure and core constitutional values and principles to be found in constitutionalism should guide a court when faced with choices as to multiple interpretations of statutory provisions.

“This is especially true in relation to provisions that implicate core constitutional values, such as free and fair parliamentary elections…The narrow, jurisprudential issue in this case…needs to be placed contextualized and understood through the lenses of democratic governance in Guyana,” he said while delivering the Court’s ruling.

The APNU+AFC had moved to the Appeal Court to set aside the January 2021 ruling of the Chief Justice.

They contended that the Chief Justice erred on several grounds when handing down her ruling, including that she misdirected herself when she applied the doctrine of strict compliance with service of affidavit in a timely manner.

The Notice of Appeal also noted that an error was made when Justice George failed to consider the overriding objective of the petition in making her decision on the content of the affidavit of service.

In December 2021, the CoA in a 2-1 decision ruled that it has the jurisdiction, or power, to hear an appeal filed.

Both Nandlall and Trinidadian Senior Counsel Douglas Mendes believe the two justices – Yonette Cummings-Edwards and Dawn Gregory – erred when they ruled.

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.

An appeal for the second dismissed petition, Election Petition 88 of 2020, is currently before the CoA.