Lawyers for the APNU/AFC are contending that Chief Justice Roxane George, SC, in dismissing the party’s second elections petition filed by Brenan Nurse and Monica Thomas, failed to consider the overriding objective of the petition. Led Roysdale Forde, SC, the lawyers have now moved to the Guyana Court of Appeal asking that the decision of Justice George be set aside.
They are also asking that costs be awarded to their clients.
On January 18, 2021, Justice George dismissed the petition owing to non-compliance with effecting service as prescribed under Section 8 of the National Assembly (Validity of Elections) Act and Rule 9 of the National Assembly (Validity of Elections) Rules. The Chief Justice found that the petition was not properly served on former President David Granger, the second-named respondent.
The Chief Justice, in arriving at her decision, among other things, relied on the decision in Eusi Kwayana et al v. The Chief Elections Officer et al No. 205 of 1986, and noted that given the guidance outlined in this case, the procedures for the filing of an election petition must be strictly complied with, otherwise it can result in the dismissal of the petition.
The manner of service is prescribed in Rule 9 (1) of the National Assembly (Validity of Elections) Rules which imposes on the petitioners the statutory obligation to effect service within five days after the presentation of the petition. The petition having been filed on September 15, 2020, should have been served on the former President five days thereafter which would have been September 21, 2020, since the fifth day – September 20, 2020 – was a Sunday.
However, in the affidavit of service of Nurse, it was stated that the petition along with the relevant documents were only served on Granger on September 25, 2020- five days outside of the statutorily prescribed period.
In a Notice of Appeal filed Wednesday, lawyers for the petitioners contend that the Chief Justice erred in law and misdirected herself by failing to recognise that the purpose of Rule 9 of the National Assembly (Validity of Elections) Rules, requiring service of an affidavit is to verify that service was achieved within the time prescribed by the statute, and that an error in the affidavit does not affect the fact of service.
They contend that the Chief Justice erred in law and misdirected herself by following the decision in Eusi Kwayana et al v. The Chief Elections Officer et al No. 205 of 1986, which decision in itself was erroneous.
According to the lawyers, Justice George again erred in law and misdirected herself when she applied 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 on time.
Further, the lawyers claimed that Justice George 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 effected on the former President.
They contend that this is inconsistent with the court’s ruling at a Case Management Conference in which their clients were invited to provide an explanation in relation to what the court considered an apparent error in the original affidavit of service.
It is also being contended that the Chief Justice erred in dismissing the entire election petition for non-service on Granger even though the former President notified the court that he will not oppose the election petition and that the other proper and necessary respondents were served with the statutory timeline.
APNU/AFC has another election petition before the court. The petitioners, in this case, are Claudette Thorne and Heston Bostwick. The Chief Justice has fixed April 7, 2021, to commence hearing submissions in this case.
In keeping with an order handed down by the Chief Justice, the Chief Elections Officer Keith Lowenfield, and by extension, the Guyana Elections Commission (GECOM), has handed over all Statements of Poll (SoPs) and Statements of Recount (SoRs) to the Registrar of the High Court for safekeeping.
This petition seeks to challenge the legitimacy of the elections, which following a recount, showed that People’s Progressive Party/Civic won.
