Bharrat Jagdeo vs Annette Ferguson: VP Jagdeo successful at CCJ in bid to appeal default libel judgment

A ruling from Guyana’s Court of Appeal: that it lacked jurisdiction to consider an appeal from an evenly-divided Full Court, has been overturned by the Caribbean Court of Justice (CCJ). The regional court’s 29-page ruling was handed down on Friday, January 19, 2024.

This CCJ ruling stemmed from a libel claim that former APNU/AFC Government Minister Annette Ferguson had filed against Vice President Dr Bharrat Jagdeo, in which High Court Justice Sandra Kurtzious had entered a default judgment against Jagdeo, and had awarded Ferguson damages and costs in the amount of G$20M in January 2020.
Unbeknownst to Jagdeo and his counsel, Ferguson had filed an application for default judgment on February 24, 2021. That judgment against him was entered on March 15, 2021, when Justice Kurtzious had noted in her decision that Ferguson’s application for a default judgment was completely within the CPR’s purview, notwithstanding claims to the contrary by Jagdeo’s lawyers; and that Ferguson’s lawyer had met all the prerequisites for the award under the CPR.

Justice Kurtzious had initially awarded Ferguson $20 million in damages and $75,000 in costs; but, in this judgement, she had recalled the sum awarded for damages and had fixed a hearing for the assessment of damages.

Divided ruling
Jagdeo had then mounted a challenge against this ruling at the Demerara Full Court.
However, the Full Court’s ruling was split, with Chief Justice Roxane George, SC, ruling that the default judgment should not be vacated, and Justice Priya Sewnarine-Beharry ruling that it should be vacated.
Jagdeo had then applied to the Full Court for a recall of the divided judgment and for the matter to be reassigned to an odd-numbered Full Court bench, but that application was refused.
Dissatisfied with the Full Court’s decision, the Vice President, through his lawyers Devindra Kissoon and Natasha Vieira, had sought redress at the Court of Appeal; which, on September 4, 2023, issued its ruling: wholly rejecting his two motions and imposing $100,000 in costs upon him.

The Court of Appeal had made the following findings in relation to the first motion: (i) By operation of Section 79 of the High Court Act, there is no decision of the Full Court which can be appealed; and accordingly (ii) The Court of Appeal has no jurisdiction to grant special leave to appeal, as per the CCJ’s order in the matter of the Guyana Sugar Corporation Inc vs Seegobin, there being no egregious errors, special circumstances or real prospects of success.
With respect to the second motion, the Court of Appeal had said 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 had remitted the case to Justice Kurtzious for her to assess damages.

CCJ
Subsequently, Jagdeo sought permission to appeal to the CCJ. He asked the CCJ to determine: whether he was entitled to appeal to the Court of Appeal; and to stay the hearing for assessment of damages against him, which was pending before the High Court.
At the CCJ, Jagdeo complained that the Court of Appeal had fallen into error when it found that it had no jurisdiction to adjudicate on an appeal from a divided Full Court; that the Court of Appeal had fallen into error when it found that the Full Court’s decision was not appealable, since it was not a decision; and that the Court of Appeal had fallen into error 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.
In a judgment authored by CCJ Judge Winston Anderson, with which CCJ Judge Andrew Burgess concurred, it was held that section 75 (2) of the High Court Act should be interpreted to mean that where there is an evenly divided Full Court, the appeal to the Full Court is dismissed, and that the original High Court decision stands as the decision of the Full Court. Accordingly, the CCJ held that the decision is subject to the regime of appeals as set out in the Court of Appeal Act.
“A contrary interpretation would forever immunise the decision of a single judge of the High Court from the reach of judicial review, and would be inconsistent with the wording and objective of Section 75 of the High Court Act,” the CCJ reasoned.
In a summary of its judgment, the CCJ explained, “This case was distinguished from the CCJ’s previous decision in Guyana Sugar Corporation vs Seegobin, in which there was an attempt to appeal against the decision of one of two judges in a divided Full Court. In that case, it was held that divided decisions are not directly appealable to the Court of Appeal.”
CCJ Judge Denys Barrow has, however, issued a dissenting judgment.

CCJ orders
Having regard to the opinions expressed, the CCJ has ordered that: (i) The application for special leave be granted and treated as the substantive appeal, and that the appeal be upheld; (ii) That the decision of the Court of Appeal: that it has no jurisdiction to grant leave, be reversed; (iii) That the case be remitted to the Court of Appeal for consideration whether to grant leave to appeal in all the circumstances of the case; and (iv) That the hearing for assessment of damages against Jagdeo be stayed pending the final determination of this matter, or until further ordered.

Good prospects of success
“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 [Ferguson], which is patently inaccurate, especially in light of my defences,” Jagdeo argued in an affidavit before the Trinidad-based court of last resort, as he complained of the Court of Appeal’s decision to deny him the opportunity to appeal.
He expressed belief that the judgment would damage his reputation; have a long-term negative effect on his political career; and that his appeal has good prospects of success.
In the High Court, Full Court, Court of Appeal, and before the CCJ, he had submitted that the defences of justification, fair comment, qualified privilege, and the provisions of the Defamation Act were available to him. Therefore, he was seeking to vacate the default judgment.
This case has stemmed from utterances Vice President Jagdeo made at a press conference regarding Ferguson’s acquisition of a house lot and construction of her home at Eccles, East Bank Demerara (EBD).
Ferguson has been represented by Attorney-at-Law Lyndon Amsterdam. (G1)