Dr Bharrat Jagdeo v Annette Ferguson
| Jurisdiction | Caribbean States |
| Judge | Anderson J,Burgess J,Barrow J |
| Judgment Date | 19 January 2024 |
| Docket Number | CCJ Application No GY/A/CV2023/001 |
| Court | Caribbean Court of Justice |
[2024] CCJ 2 (AJ) GY
Mr Justice Anderson
Mr Justice Barrow
Mr Justice Burgess
CCJ Application No GY/A/CV2023/001
GY Civil Appeal No 103 of 2022
IN THE CARIBBEAN COURT OF JUSTICE
APPELLATE JURISDICTION
ON APPEAL FROM THE COURT OF APPEAL OF THE CO-OPERATIVE REPUBLIC OF GUYANA
Practice and Procedure — Appeal — Special leave — Application for special leave to appeal refusal of leave by Court of Appeal — Whether Applicant may obtain leave to appeal a split decision of the Full Court to the Court of Appeal — Court of Appeal Act, Cap 3:01
Ashbury Railway Carriage and Iron Co (Ltd) v Riche (1875) LR 7 HL 653; Bata Shoe Co Guyana Ltd v Commissioner of Inland Revenue (1976) 24 WIR 172 (GY CA); Chung v AIC Battery and Automotive Services Co Ltd [2013] CCJ 2 (AJ)(GY), (2013) 82 WIR 357; Darnley v Reid [2014] CCJ 20 (AJ) (GY), GY 2014 CCJ 11(CARILAW); Dublin, Wicklow and Wexford Railway Co v Slattery (1878) 3 App Cas 1155; Durant v Essex Co 74 US 107 (1868), 7 Wall 107; Guyana Sugar Corp Inc v Seegobin (GY CA, 8 December 2020); Jagdeo v Ferguson (GY CA, 4 September 2023); Jamaica Public Service Co Ltd v Samuels [2010] JMCA App 23; JJ v Child Care Board [2017] CCJ 6 (AJ)(BB), [2017] 3 LRC 390; Ledgister v Bank of Nova Scotia Jamaica Ltd [2014] JMCA App 1, JM 2014 CA 1(CARILAW); Neil v Biggers 409 US 188 (1972), 93 SCt 375; Persaud v Nizamudin [2020] CCJ 4 (AJ) GY; Prashad v Persaud [2022] CCJ 5 (AJ) GY; Singh v A-G of Guyana [2012] CCJ 2 (AJ) (GY), [2012] 80 WIR 382.
Guyana – Co-operative Societies Act, Cap 88:01, Court of Appeal Act, Cap 3:01, High Court Act, Cap 3:02, Income Tax Act, Cap 81:01.
J T Irvine, ‘The Case of the Evenly Divided Court’ (2001) 64 Sask L Rev 219.
Mr Devindra Kissoon and Ms Natasha M Vieira for the Applicant
Mr Lyndon Amsterdam for the Respondent
Anderson J ( Burgess J concurring)
Dissenting: Barrow J
The Applicant seeks special leave to appeal the decision of the Court of Appeal of Guyana delivered on 4 September 2023 in two consolidated civil matters. That decision was to refuse the Applicant leave to appeal to the Court of Appeal against a Full Court judgment where the two judges comprising the court gave divergent opinions. The Court of Appeal held that it had no jurisdiction to grant leave since there was no appealable decision from the Full Court. The Applicant requests that this Court determine that he is entitled to leave to appeal to the Court of Appeal and that this Court remits the matter to the Court of Appeal for a hearing of the intended appeal, or alternatively treat this application as the hearing of the appeal itself. The Applicant also asks this Court to stay the hearing for assessment of damages against him which is currently pending before the High Court.
On 9 January 2020, the Respondent filed proceedings in the High Court against the Applicant seeking damages for libel. The Applicant was served with the proceedings on 27 January 2020 and his Defence was due on 25 February 2020, less than one week prior to the scheduled 2 March 2020 national elections.
Unbeknownst to the Applicant, or his Counsel, on 24 February 2021, the Respondent applied for default judgment which was entered on 15 March 2021 and damages and costs were awarded to the Respondent without an assessment hearing. The order for default judgment was served on the Applicant on 30 March 2021.
The Applicant contends that the first time he knew of the default judgment was when the order was served on him on 30 March 2021. He alleges that he was informed by his Counsel that the Defence was drafted and placed on file before the deadline but was inadvertently never filed in the High Court due to Counsel's heavy commitments in the general elections campaign and because he had closed his office for several months in 2020 because of the COVID-19 pandemic. The Applicant and his Counsel believed that the Defence was filed, and that the matter was not yet fixed for case management.
The Applicant contends that these exceptional circumstances constitute a reasonable explanation for failing to file a Defence and that there was no intention to disregard the court's process. The Applicant further contends that he appeared in earlier interlocutory proceedings in the matter and the trial judge should have exercised a discretion to require a hearing of the application for the default judgment and/or at the very least, order that the application for the default judgment be served on the Applicant or his Counsel.
On 1 April 2021, the Applicant filed in the High Court, an urgent application to set aside the default judgment and an affidavit in support containing a draft Defence. He proffered that he had meritorious defences and if allowed to lead evidence, would establish that the statements made were not defamatory and were true. The High Court heard and refused the application on 16 April 2021 but withdrew its award of damages and ordered those damages be assessed by written submissions.
On 17 June 2021, the Applicant filed a Notice of Appeal in the Full Court appealing the High Court decision and requesting that the decision and default judgment be set aside and reversed in its entirety. The Full Court was equally divided, and this automatically upheld the High Court decision pursuant to s 75 of the High Court Act 1 (‘the High Court Act’).
On 19 May 2022, Counsel for the Applicant made an oral application to recall the divided judgment and sought reassignment of the matter to an odd-numbered Full Court bench. The application was refused thus closing all avenues by the Applicant to the Full Court.
On 27 May 2022, in the Court of Appeal, the Applicant filed a Notice of Motion for leave to appeal the effect of the divided Full Court judgment.
On 1 June 2022, the Applicant filed a fixed date application in the Full Court for an extension of time to file a fresh appeal of the High Court decision or, alternatively, for the Full Court judgment to be recalled and reassigned to a bench of three judges of the Full Court. This application was dismissed on 11 July 2022 and costs were awarded against the Applicant.
On 22 July 2022, in the Court of Appeal, the Applicant filed a second Notice of Motion for leave to appeal to the Court of Appeal, this time for leave to appeal the Full Court's dismissal of the fixed date application. The Applicant's motions were consolidated and in the decision on 4 September 2023, alluded to at [1], the Court
of Appeal wholly rejected both motions and imposed costs upon the Applicant. The first motion failed on the ground that there was no appealable Full Court decision, and the Court of Appeal had no jurisdiction to grant an appeal, there being no egregious errors, special circumstances or prospects of success. 2 The second motion failed as there was no basis to interfere with the decision of the Full Court to deny the fixed date applicationOn 8 September 2023, the Applicant filed an application for special leave to appeal in this Court on the main grounds that the Court of Appeal erred (a) in finding that it had no jurisdiction to hear an appeal from a divided Full Court, and (b) in failing to overturn the Full Court's refusal to either recall its divided judgment and remit the matter to three fresh Full Court judges or grant an extension of time to file a fresh appeal if no decision had in fact been rendered by the Full Court. The Applicant seeks to reverse the Court of Appeal's decision and/or have it set aside; that leave to appeal in the Court of Appeal be granted, that the matter be remitted to the Court of Appeal for a hearing of the appeal on its merits or alternatively, that the default judgment be set aside.
On 12 October 2023, this Court ordered the parties to file written submissions on issues surrounding the appealability of split decisions of the Full Court to the Court of Appeal.
The Applicant submitted that an appeal from a final order in a summary proceeding is to the Full Court and that s 6(2)(a)(i) of the Court of Appeal Act 3 (‘the Court of Appeal Act’) contains a jurisdictional barrier which prevents an appeal of an interlocutory order to the Court of Appeal. He further submitted that there is no dispute that the High Court's order refusing to set aside the default judgment was interlocutory, that refusal being appealable to the Full Court. As such, a resulting divided Full Court does not give the Court of Appeal jurisdiction to hear an interlocutory appeal from a trial judge.
The Respondent submitted that there is no provision in the Court of Appeal Act for special leave to appeal a decision of the Full Court or more particularly a split between two judges sitting in the Full Court. According to the Respondent, s 75(2) of the High Court Act shows that the legislature did contemplate circumstances where there was a split decision in the Full Court on appeal from the Magistrate's Court but in the case of a split in the Full Court from a decision of a High Court judge, the legislators merely stated that the decision of the single judge shall stand. As such, the High Court Act should be interpreted as proscribing appeals to the Court of Appeal from split decisions in interlocutory appeals.
The statutory framework applicable to this case consists primarily of provisions in the High Court Act and the Court of Appeal Act. Section 75 of the High Court Act sets out the Constitution of the Full Court with a proviso governing split decisions. This section reads:
75. (1) There shall be a division of the High Court styled “The Full Court of the High Court” in this Act referred to as the Full...
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