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Jagdeo petitions CCJ to overturn default judgement

Vice President Dr Bharrat Jagdeo

Vice President Dr. Bharrat Jagdeo has moved to the Caribbean Court of Justice (CCJ), the country’s highest court, to have a default judgement overturned after his efforts at the local courts were rejected. He is concerned that the decision awarded against him in the case against former APNU/AFC government minister Annette Ferguson will harm his political career.

More than two years ago, High Court Judge Sandra Kurtzious entered the default judgement against Jagdeo after he failed to file a defence within 28 days, as prescribed by Art 12:01 (2) (d) of Civil Procedure Rules (CPR), of the filing of Ferguson’s claim, which was done in January 2020.

In addition, she awarded costs against Jagdeo in the sum of $75,000.

Jagdeo had mounted a challenge against the ruling at the Demerara Full Court.

However, the Full Court’s ruling was split, with Chief Justice Roxane George, SC, ruling that the default judgement should not be vacated, while Justice Priya Sewnarine-Beharry ruled that it should be vacated. Justice Kurtzious’s decision remained in effect in light of the divided opinion.

The two Judges also ordered him to pay $75,000 in costs.

Dissatisfied with the Full Court’s decision, the Vice President, through his lawyers, Devindra Kissoon and Natasha Vieira, sought redress at the Court of Appeal, which on September 4, issued its ruling, wholly rejecting his two motions and imposing costs upon him in the sum of $100,000.

In so doing, the Court of Appeal made the following findings in relation to the first motion: (i) by operation of Section 79 of the High Court Act there was no decision of the Full Court which could be appealed; and accordingly (ii) the Court of Appeal had no jurisdiction to grant an appeal, citing to the CCJ’s order in the Guyana Sugar Corporation Inc. v. Seegobin, there being no egregious errors, special circumstances or prospects of success.  With respect to the second motion, the Court of Appeal said that there was no basis to interfere with the Full Court’s decision to deny his application for the Full Court’s order to be recalled and the case remitted to three judges.

In addition, the Court of Appeal remitted the case to Justice Kurtzious for her to assess damages.

At the CCJ, Jagdeo complaints that the Court of Appeal fell into error when it found that it had no jurisdiction to adjudicate on an appeal from a divided Full Court, that the Full Court’s decision was not appealable since it was not a decision, and when it refused to interfere with the Full Court’s refusal to recall its order and remit the matter for a fresh hearing before three Judges.

“Not only do I have a real prospect of success given the Court of Appeal’s obvious errors of law, but this appeal concerns a point of law of general public importance, there being an egregious error of law i.e., the Court of Appeal’s erroneous determination that it has no jurisdiction to hear an appeal from a divided Full Court, which if allowed to remain on the record, will foreclose litigants from having a right to appeal the legal effect of a divided Full Court decision.”

In the High Court, Full Court, and Court of Appeal, he had submitted that the defences of justification, fair comment, qualified privilege, and the provisions of the Defamation Act were available to him. According to the Vice President, there has been a substantial miscarriage of justice, since he was deprived of an opportunity to appeal the propriety of the default judgement issued against him, and is now left without a remedy and no further appellate recourse.

“I face the threat of imminently having a money judgment entered against me, and but more importantly, having indelibly on the record a finding that I defamed the Intended Respondent [Ferguson’, which is patently inaccurate, especially in light of my defences. Such a finding will affect my standing in the public’s eye and have a damaging and long-lasting impact on my political career,” argued Jagdeo in his Affidavit in Defence filed with the regional court. He has requested the CCJ to stay the Court of Appeal’s decision pending his appeal hearing

In delivering her reasons for the default judgement, Justice Kurtzious had ruled that the Vice President did indeed defame the former Government Minister with his utterances.

In the claim filed by Attorney-at-Law Lyndon Amsterdam, Ferguson had complained that Jagdeo made untrue statements in which he questioned her acquisition of a house lot and the construction of her home at Eccles, on the East Bank of Demerara (EBD).

Having examined the statements made by the Vice President about Ferguson, Justice Kurtzious held that they were very serious allegations, as they suggested that she was corrupt and involved in misappropriation. To this end, the Judge held that as a result of Jagdeo’s statements, Ferguson stood to be prejudiced by suffering financial loss and injury to her character.

Meanwhile, the Judge had found that Jagdeo’s excuse for the non-filing of the defence was unreasonable. In explaining the reason for the non-filing of the defence, Jagdeo’s lawyers had submitted that his client’s then-lawyer, Attorney General Anil Nandlall, SC, had been preoccupied with the 2020 National Elections, and the constraints brought on by the COVID-19 pandemic had led to him inadvertently failing to file the defence, though it was drafted.

Before the Full Court, Ferguson’s lawyer had argued that inadvertence by counsel as a reason for non-compliance with the CPR cannot be countenanced as a reason for non-compliance. He had said that if that were to be allowed, all lawyers would advance such a reason as a ploy to get an extension. According to the lawyer, the elections were concluded on August 2, 2020, and right up to the time Jagdeo was served with the judgement order in April 2021 – more than half of a year later – there was no application filed by his lawyer for relief from sanctions, nor was there any request for an extension of time to file his defence.

Justice Kurtzious, in her ruling, had said that although the reasons proffered by the Vice President to justify his non-filing a defence were numerous, “they left the court unconvinced as to their accuracy and reasonableness.” She had noted that the time for filing a defence began to run from January 2020, and one year later, in January 2021, no steps had been taken to cure the default; and, more so, no evidence was provided to prove same.

The Judge had initially awarded $20M in damages to Ferguson but she later recalled that sum.

Ferguson was initially seeking more than $50M in damages from Jagdeo for libellous statements he had made on December 18 and 19, 2019. She had also filed a separate claim seeking more than $10M in damages from the Guyana Times newspaper, which she said had published the slanderous statements the Vice President had made about her.