Home Letters VP Jagdeo and lawyer Anil Nandlall should be excused for non-filing
I would like to offer some observations on how courts, particularly in the USA, would treat the application to overturn the High Court default judgement handed down by Justice Sandra Kurtzious, ordering Vice-President Bharrat Jagdeo to pay the former Housing Minister, Annette Ferguson, more than $20 million in damages for libel.
The judgement should be reversed, and a real trial held, on the following jurisprudential grounds, generally classified as “excusable neglect.”
(1) The matter was not decided on the merits, and hence cannot be said to be a valid judgement, especially since the court did not explain how it arrived at the $20 million in damages. Ex parte judgements, as this one is, are cloaked in secrecy and suspicion, having been obtained without hearing the other side’s evidence and arguments and abrogates the audi alteram partem rule, a firmly established rule of common law that a Judge or anyone exercising a judicial function must hear both sides of every case. Every party must have his day in court. This was not afforded Mr Jagdeo, who has since demonstrated that he was very eager to defend the case.
(2) Mistake, inadvertence, surprise, or excusable neglect of the party who failed to defend himself in the case can be established by the defendant Jagdeo. Courts in the US have been accepting the unprecedented COVID pandemic as a legitimate excuse, and granting reversals and/or stays of judgements accordingly.
(3) VP Jagdeo can also argue that the delay was caused by the collateral consequences of the epic struggle waged by him, his lawyer Mr Anil Nandlall, SC, the Caricom community, the United States, the European Union, Britain, Canada, The Carter Center, and other international groups, agencies and organisations, for the restoration of the right of the Guyanese people to freely elect a Government of their choice. Fair-minded people in Guyana and around the world, Opposition Leaders, world leaders and others denounced the initial results, released by the elections council. In short, this fundamental subversion of democracy and the rule of law would presumptively have been deemed to permeate the legal system, and affords another valid excuse for the defendant’s omissions to file his defence.
(4) The fact that an injunction seeking to muzzle the then Opposition Leader was earlier denied by the High Court seems to suggest that the plaintiff’s case may not have merit.
Truth is a complete defence to an action like this. If the statement at issue is substantially true, a defamation claim cannot succeed because a citizen and/or newspaper have the right to publish truthful information even if it injures another’s reputation. The defence of “fair comment on a matter of public interest,” may also be a possible defence.
This case can be summarily disposed of if the public records regarding land ownership confirm that the former Minister owns three plots of land at Eccles, East Bank Demerara (EBD), which she acquired while in Government. Of course, acquisition of properties and assets beyond one’s salaries have also triggered successful criminal prosecution in many parts of the world, including against mobsters and racketeers.
Some prosecutors have convinced juries of criminal liability based on circumstantial evidence to show increases in net worth that do not match an individual’s income, and therefore could only have come from ill-gotten gains, such as bribes, thefts, misappropriation etc.
In a murder case I prosecuted in 1983, I used this type of argument to convict two males who lured the deceased, Mr Jeeboo, to the backdam, under the pretext to “see how his crop is developing.” When they returned at sunset without him, and could offer no plausible explanation for his disappearance, his dead body was the inescapable result of murder, based on circumstantial evidence.
“Ladies and gentlemen, if two cats and a healthy mouse go into a forest, and only the two cats return, and cannot explain why the mouse was found dead, you can be sure, and draw the reasonable conclusion, that the cats killed the mouse.” Even their lawyers, the brilliant Doodnath Singh and Bernard DeSantos, SCs, could not save them from this logical theory.
The law can be a slippery slope.
(Former Senior State
Police Legal Advisor
and Magistrate in