High Court dismisses APNU+AFC election petition

Last Updated on Monday, 18 January 2021, 23:00 by Denis Chabrol

Chief Justice Roxane George-Wiltshire on Monday ruled that one of the election petitions which challenge the actual  results that were declared was dismissed because  that petition was served late to Representative of the List for A Partnership for National Unity+Alliance For Change (APNU+AFC), David Granger.

“The late service of P 99/2020 on the second named respondent amounted to non-service on him, This would lead to the nullification of petition 99 P 2020 ab initio (from the beginning) more so as the court has to consider the status quo at the time of service  and not the proceedings or positions of party or parties adopted thereafter. This is to say from the time that petition 99 P of 2020 was served out of time on the second respondent as a necessary party, it was a non-starter,” she said.

That petition would have been key for APNU+AFC to prove that there were certain omissions to reconcile the votes found in ballot boxes to prove its case that there had been massive fraud by the then opposition People’s Progressive Party (PPP) and that there had been massive voter impersonation of deceased persons and migrants.

Monica Thomas and Brennan Nurse had wanted the court to find that the elections were unlawfully conducted due to unlawful acts or omissions such as discrepancies and irregularities resulted in a fraudulent vote.

However, the High Court found that the petitioners personally served A Partnership for National Unity+Alliance For Change (APNU+AFC) Representative of the List, David Granger and that he had signed the wrong date on a court document related to the filing of the election petition.

The facts are that the petition was filed on September 15, 2020, and the required documents ought to have been served on or before September 21, 2020 excluding the Sunday that could not be legally counted. All of the respondents, except Mr. Granger, were served on either September 16 or 17 and the dates of service were filed on September 29, 30 and  October 1, 2020. The initial affidavits of service that were filed on September 29 revealed that the  petition was served on September 25. Supplementary dates of service were subsequently filed.

The affidavit of service for Mr. Granger was filed on September 29 but dated September 24 “strangely stated” that the documents were served on September 25, the Chief Justice said. She added that an acknowledgment of service was signed by Mr. Granger on September 25, but they should have been served on or before September 21. She said the petitioners conceded that he was served on September 25, but without the Court’s permission filed supplementary affidavits on November 11 to negate the September 25 by stating that service was effected on September 18.  “There is no proof of service on the second respondent within the statutory timeline of five days after filing of the required documents,” she said.

The Judge added that the supplementary affidavits state that Mr. Granger signed the acknowledgement of service on September 24 and not September 25, but that would also be outside the deadline. “If service was effected on September 18, on their return to Mr. Granger, great care should have been taken to ensure that this was correctly noted in the acknowledgement of service, given the importance attached to the service of election petitions,” she said. The Chief Justice stopped short of raising any suspicions about the date stated by Mr. Granger. “It is also passing strange that, having been served on September 18 or 24, that the second respondent would acknowledge service with a date of September 25,” she added. The Chief Justice said such a slip was “unacceptable” given the stringent time-lines that are required.

The Chief Justice flayed the petitioners for attempting to convince the court that Mr. Granger was no longer a necessary party to the petition. She noted that that could not be the case because his list of candidates includes the 31 parliamentary seats that were declared as the coalition’s and that APNU+AFC also won seats in the Regional Democratic Councils.  “It is clear that these unmeritorious submissions were contrived to provide cover to the submission that the second respondent is not a proper and necessary party,” the Chief Justice said.

She reasoned that APNU+AFC’s  List of Candidates Representative could not be excluded because that would “deny a voice to representatives of a large number of electors.” She said Mr. Granger does not only represent himself.

However, the High Court Judge upheld the other petition that challenges the constitutionality of the National Vote Recount Order No.60 that had allowed for the recount of the votes that had been cast on March 2, 2020 general elections.

Justice George-Wiltshire said the petitioners and the respondents would now have to proceed to file their arguments. She appreciated that there were certain factual issues would have to be advanced by the Guyana Elections Commission about the origin of Order 60, after she heard an enquiry from GECOM’s lawyer, Arun Gossai.

The High Court Judge decided to allow the submissions rather than make any orders  because the case is more a legal one than an evidentiary one.

The Judge gave Attorney-at-Law Roysdale Forde, for the petitioners, until February 12 to file his submissions and March 5 for the respondents including the Attorney General as well as submissions in reply on or before March 19.

She said the parties must return to court on April 7, 2021, barring any directions by e-mail. She would also advise whether the court would ask for evidence or more written submissions.