“There must be finality to judicial decisions” – Chief Justice tells lawyers

Georgetown: “There must be finality to judicial decisions….Myriad persons cannot be permitted to engage the court with multiple applications regarding the same issue which has been decided, and shield behind the claim that they were not a party to the previous proceedings. To so permit would be to waste precious judicial time and resources. In short order – this cannot be allowed,” Chief Justice (CJ) Roxane George-Wiltshire said Monday in handing down her ruling on the Misenga Jones case.

Justice Roxane George-Wiltshire,Chief Justice (ag).

The Judge was adamant that persons cannot be allowed to waste the time and resources of the Court to revisit issues already sufficiently adjudicated.

The Chief Justice dismissed Jones’ application to invalidate the national recount, given that the reliefs sought were already decided in previous litigation by the Court of Appeal and the Caribbean Court of Justice (CCJ).

Key grounds in which the CJ rooted her decisions were the principles of stare decisis and res judicata. The first principle requires a Court to premise its litigation on precedents, and the latter dictates that if a matter has been adjudicated by a competent court, it cannot be re-litigated.

Expounding on res judicata, the Chief Justice quoted the CCJ in Garraway v Williams [2011] CCJ 12 (AJ), in which the Court stated “As is well known, the principle of res judicata is intended to give finality to judicial decisions. Literally, the term means that a matter has already been finally settled by judicial decision and is not subject to further appeal.”

George-Wiltshire determined that the Jones case constituted public interest litigation, “that is leading to a determination of ‘the status of a person or thing or the disposition of a thing, as distinct from a particular interest in it of a party to the litigation.’

In this case, the Chief Elections Officer (CEO), Keith Lowenfield, the judge said, was a party to the Ulita Moore case, which challenged the legality of the recount, and the Irfaan Ali appeal to the CCJ, which challenged the Appeal Court’s unlawful interpretation of Article 177 (2) of the Constitution of Guyana. Noting this, the Chief Justice said that the CEO is bound by the decisions in the Moore and Ali cases, whether or not he participated in the proceedings.

The Justice noted a precedent in one of her rulings, in which she applied the principle of issue estoppel, a sub-principle of res judicata, where a particular issue that was judicially determined in previous litigation between the parties has been raised again under a different cause. The Chief Justice pointed to her adjudication in Ram v Chief Election Officer et al FDA 1151/2019, in which she gave an interpretation of the CCJ decision in the consolidated appeals of Ram v AG & Ors (No. GYCV2019/009), Jagdeo v AG & Ors (No. GYCV2019/010) and Persaud v Reid & Ors (No. GYCV2019/011).

She stated “I applied the principle of issue estoppel in holding that the CCJ did not make an order that referred to, or included a date or period for the holding of elections following the successful no confidence motion. As such, apart from applying the doctrine of stare decisis, I concluded that res judicata applied to the claim by Mr. Ram and he was bound by the decision of the CCJ in this regard.”

 Meanwhile, the incumbent APNU+AFC Coalition has said that it will seek to take the Misenga Jones application adjudicated by Chief Justice Roxane George-Wiltshire to the next level of the Court system, the Court of Appeal.

The opposition PPP/C has, in turn, described this as an abuse of the judiciary, and has condemned it to failure.

Jones, an APNU+AFC surrogate, had approached the High Court hoping for the Chief Justice to pass down a judgment which would force the Guyana Elections Commission (GECOM) to rely on the ten district declarations as the basis on which a final declaration is made. Since Region Four Returning Officer Clairmont Mingo’s fraudulent March 13 declaration is included in the lot, Jones application – if it had been successful – would have handed a false national victory to the party she represents.

Jones’ action sought to invalidate the recount order, on grounds that the Chief Justice found to be “hopelessly flawed”.

Immediately after the judgment concluded, APNU+AFC candidate Roysdale Forde and member of Jones’ legal team, told the Court that the matter would be appealed. While the Coalition was not a formal party to the case, APNU+AFC campaign manager Joseph Harmon confirmed Forde’s intention, saying in a brief statement sent late last night that, “Our lawyers will engage at the next level of the Court System to ensure that our Constitution is respected and adhered to by all.”

Commenting on the ruling, Harmon stated, “It is disappointing that in its ruling today, in the case of Misenga Jones v GECOM et al, the Court has side stepped the issue of fraudulent ballots in the tabulated votes at the Recount.”

APNU+AFC has not proven a single case of electoral fraud, let alone the thousands it claimed there were. Kaieteur News had performed sustained investigations on those claims during the recount, and pressed the Coalition’s officials to provide proof several times. It yielded no results.

This was corroborated by the CARICOM Scrutineer Team, who rejected the public efforts to discredit the March 2 polls, and stated that no evidence was provided to substantiate the claims.

“We will continue to insist,” Harmon stated, “that Fraudulent Recount Votes cannot determine the will of the Guyanese People. Only valid votes can produce such a result… We remain steadfast in making our case for valid votes only.”

While the Coalition, including most recently, de facto President David Granger, has continued to allege fraud in the ballot boxes, they have so ignored the fraudulent result produced by Mingo in the Coalition’s favour. Mingo’s declaration had produced more than 15,000 ghost votes, which no one could account for, yet his declaration has been repeatedly endorsed by APNU+AFC.

Guyana’s apex court, the Caribbean Court of Justice had put the contention over “valid votes” to rest when, in its judgment in Irfaan Ali vs. Eslyn David et al, it ruled that the Representation of the People Act already determined that valid votes were votes so determined on the face of the ballots. The CCJ had ruled that the Appeal Court’s judgment, which sought to modify the definition of valid votes according to the Coalition’s intention, was unlawful.

In its statement on the matter, the PPP/C noted a section of the Chief Justice’s ruling, in which she stated, “there must be finality to judicial decisions. Myriad persons cannot be permitted to engage the court with multiple applications regarding the same issue, which has been decided, and shield behind the claim that they were not a party to the previous proceedings. To so permit would be to waste precious judicial time and resources. In short order – this cannot be allowed.”

The party stated, “The Chief Justice found that the issues litigated had already “been decided by superior courts” and signaled her intent to penalize Jones in costs.”

This, juxtaposed against the Coalition’s intention to appeal the decision, led the PPP/C to conclude that the Coalition is operating in abuse of the Court’s process.

The party stated, however, that it is confident that no attempt to thwart the will of the electorate will succeed.