Senior Counsel Roysdale Forde on Monday clashed with the Attorney General, Anil Nandlall and Senior Counsel Douglas Mendes over the jurisdiction of the Court of Appeal to hear an appeal challenging the High Court’s decision to nullify Election Petition 99 over noncompliance of service on the Second Named Respondent – David Granger.
The petitioners in the case – Monica Thomas and Brennan Nurse v the Chief Elections Officer, Keith Lowenfield and others – in their application told the Appellate Court that they are dissatisfied with the January 18, 2021 ruling of the Chief Justice, Roxane George. “The Learned Chief Justice erred in law and misdirected herself when she misapplied the doctrine of strict compliance by holding that such compliance related to the contents of the Affidavit of Service instead of the filing of the Affidavit of Service in a timely manner,” the petitioners said as they laid their grounds before the Appellate Court.
On Monday, Senior Counsel Roysdale Forde appeared virtually before a panel of Judges led by Chancellor of the Judiciary, Justice Yonette Cummings Edwards, on behalf of the petitioners, while Senior Counsel Douglas Mendes appeared behalf of Leader of the People’s Progressive Party/Civic (PPP/C)- Bharrat Jagdeo – who is among respondents in the case.
Mendes from the onset argued that the appellate court had no jurisdiction to hear the appeal. He argued that the appeal is not covered under Article 163 (3) of the Constitution, and as a consequent, the Court has no jurisdiction.
A similar line of argument was put by the Attorney General and Minister of Legal Affairs, Anil Nandlall, S.C – another respondent in the case. He submitted that Article 163, in listing the types of issues to be addressed in an Election Petition, limits the grounds upon which appeals can flow.
Further he said Article 163 also authorizes Parliament to make rules regarding how an election petition is to be heard and determined and how appeals are to be filed. It was under Article 163 that the National Assembly passed the National Assembly (Validity of Elections) Act, however, Nandlall said the Parliament did not make any additional rules or statutes which pertain to or govern the appeals which flow from questions identified and listed in Article 163.
The Attorney General told the Appellate Court that the High Court never addressed the substantive issues identified by the petitioners, but struck out the petition on the ground of non-service.
“In other words, your Honor, the court never determined the question which the petition raised to determined, which are the questions listed in Article 163 (1), from which Article 163 (3) says an appeal lies to the Court of Appeal upon the determination of those questions or orders consequential to the determination of those questions. Those questions having never been determined your honor, there is simply no right of appeal. There is no other statue or the constitution upon which my friend can hinge this appeal,” Nandlall reasoned.
However, Forde told the appellate judges that while the Constitution specifically confers upon the Court of Appeal jurisdiction to entertain appeals in specified circumstances as set out in Article 163 of the Constitution in relation to Election Petitions, it also confers on the Court of Appeal by Article 123 (1) of the Constitution, “such jurisdiction and powers as are conferred on those Courts respectively by this Constitution or any other law.”
Article 123 (1) of the Constitution states: “There shall be for Guyana a Supreme Court of Judicature consisting of a Court of Appeal and a High Court, with such jurisdiction and powers as are conferred on those Courts respectively by this Constitution or any other law.”
He further submitted that the Court of Appeal Act also provides the right of appeal in relation to a final matter determined by the High Court. It was on this note that Forde rejected arguments by both Mendes and Nandlall that he had conceded that the appellate court has no jurisdiction under Article 163 of the Constitution to hear the case.
To support his case, Forde had pointed to among other cases, the case of Samuel Kamau Macharia and another v. Kenya Commercial Bank Limited and another [2012], in which the Supreme Court of Kenya had ruled that “A Court’s jurisdiction flow from either the Constitution or legislation or both.”
Oral arguments in the case will continue on July 29, 2021.
