Jagdeo vs Ferguson: CCJ declares Guyana Court of Appeal can grant leave to hear appeal from evenly divided Full Court

Last Updated on Friday, 19 January 2024, 16:20 by Denis Chabrol

The Caribbean Court of Justice (CCJ) on Friday, 19th January granted the application for special leave in the case of Bharrat Jagdeo v Annette Ferguson.

The CCJ decided that the Court of Appeal of Guyana has jurisdiction to grant leave to hear an appeal from an evenly divided Full 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.

In Guyana, decisions or judgments made by High Court Judges can be appealed in the Full Court of Guyana which is a division of the High Court. An appeal of the Full Court decision is heard in the Court of Appeal of Guyana. Where two Judges sit in the Full Court, there may be an evenly divided bench and the parties must look to legislation to determine the course of any appeals.

The Applicant was Mr  Bharrat Jagdeo, who is the Defendant in libel proceedings in the High Court of Guyana filed by Ms Annette Ferguson. Default judgment was entered against Dr Jagdeo, and he applied to set it aside. He was unsuccessful and appealed to the Full Court. The appeal was heard by two Judges, and they were evenly divided. Dr Jagdeo 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.

Mr Jagdeo thereafter sought permission from the Court of Appeal to appeal the effect of the divided Full Court judgment. The Court of Appeal held that it did not have the power to grant leave since the Full Court had not delivered an appealable decision. Subsequently, Dr 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 that was pending before the High Court.

In a judgment authored by Justice Anderson, with which Justice Burgess concurred, the CCJ 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, that 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 the section 75 of the High Court Act.

This case was distinguished from the CCJ’s previous decision in Guyana Sugar Corporation v 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.

Justice Barrow authored a dissenting opinion which would follow the CCJ’s decision in Guyana Sugar Corporation Inv v Seegobin. He reasoned that where the decision of a single High Court judge is affirmed because there was an evenly divided Full Court on an appeal, there is no adjudication and so, there is no decision of the Full Court which can be subject to further appeal. On the point of whether the Applicant was entitled to a rehearing, he stated that there is no common principle in common law courts that determines whether the failure of a divided court to agree, should result in a rehearing or not.

The dissenting opinion concluded that the legislation provides for adjudication by two judges, but with the option to apply for good reason for a hearing by three judges. An applicant should know in advance, and it was a material consideration for an applicant that if their application resulted in an even division of the Full Court, that meant they could go no further. The legislation seemed to have contemplated that if there was an even division, the applicant would have failed to persuade two out of three High Court judges and should go no further. Based on the dissenting judgment, the application for special leave to appeal would be dismissed and costs awarded to the Respondent.

Having regard to the opinions expressed, the CCJ 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 the Applicant be stayed pending the final determination of this matter or until further order.

The matter was decided on written submissions by the Honourable Justices Anderson, Barrow, and Burgess. Devindra Kissoon and Natasha Viera acted for the Applicant. Lyndon Amsterdam acted for the Respondent.

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 Act1 (‘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 judgesof 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 1 Cap 3:02. 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 application.

On 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.

he 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 Act3 (‘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.