The A Partnership for National Unity + Alliance For Change (APNU+AFC) is confident that it will win the appeal, challenging Chief Justice Roxane George’s decision to throw out the Election Petition, which was intended to prove that there was widespread electoral fraud and discrepancies during the March 2020 General and Regional Elections.
In her January 18 ruling in the case – Monica Thomas and Brennan Nurse v the Chief Elections Officer, Keith Lowenfield and others (Petition 99) – the Chief Justice said the Elections Petition was short lived due to late service on former President David Granger – the Second Named Respondent. But the APNU+AFC is contending that the High Court’s decision was bad in law.
On the sideline of a meeting at the Guyana Police Force’s Headquarters on Friday, APNU+AFC Member of Parliament, Roysdale Forde, S.C, said the coalition is confident of a win.
“We found, the decision, in our opinion, not in keeping with our perception of the law and in fact, objectively not in keeping in with what the law actually requires, so we have filed the appeal, and we are quite confident that we will be victorious upon the hearing of that matter,” the Senior Counsel told reporters.
The Chief Justice, in her ruling, had said because Granger was a necessary party to the proceedings he ought to have been served with all of the legal documents within the specified timeframe as outlined by the National Assembly (Validity of Elections) Act and Rules but Forde, who is the lead attorney for the coalition, believes that the former President was not essential to the case.
“First, we believe that the joinder of Mr. Granger, the Second Named Respondent, did not render him an essential or necessary party to the Election Petition. Therefore, the fact of whether he was served within the period or not, should not have affected the validity of the elections petition,” the Senior Counsel posited.
However, at the heart of the preliminary election case was the period in which the former President was served. The National Assembly (Validity of Elections) Act and Rules mandate that Respondents, in Election Petitions, be served within five days of the presentation of the Petition, however, the initial petition documents indicated that Granger was served on September 25, 2020, outside of the stipulated timeframe. However, in a Supplementary Affidavit, indicated that he was actually served on September 18, 2020 but the submission was not accepted by the Court.
“We felt that before the Court there was the affidavit evidence, the supplementary affidavit evidence which indicated clearly that Mr Granger was served within the five day period as required, and we did file the Affidavit,” Forde told reporters. Further, he contended that leave was not required for the Supplementary Affidavit to be filed.
In its application to the Court of Appeal, the APNU+AFC, through the petitioners, told the Court that the Chief Justice erred in law and misdirected herself when she misapplied the doctrine of strict compliance in addressing the issue of service.
Further, they said the Chief Justice ought not to have relied on the decision of Pompey J in the Eusi Kwayana v The Chief Elections Officer case of 1986, on the grounds that the decision in itself was erroneous. It is also being claimed that the Chief Justice misconstrued the judgement of George CJ in the case Payne & anor v. Hammond & Ors and Melville v Chief Elections Officer.
On the basis of these grounds, the petitioners are arguing that the petition should not have been dismissed due to the issues surrounding service on the Second Named Respondent. They said that not only did the Second Named Respondent indicated that he will not oppose the petition but the other 11 respondents were properly served.
They also submitted that the supplementary affidavit should have been accepted by the Court. “The Leaned Chief Justice erred in law and misdirected herself when she concluded that leave was required to file a Supplementary Affidavit of Service to give a more complete understanding of how service was affected on the Second Named Respondent. In any event, such a ruling is inconsistent with the Court’s own order at the Court inviting the Petitioners to provide an explanation as to what she considered an apparent error in the original Affidavit of Service,” they said.
Petition 99 sought to vitiate the results of the 2020 General and Regional Elections on the grounds that the Guyana Elections Commission (GECOM) failed to conduct free and fair elections in keeping with its constitutional requirements.
