AN application seeking an order to set aside the default judgement obtained against Vice-President, Dr. Bharrat Jagdeo, which was granted without the knowledge of Jagdeo and his Attorneys-at-Law, and in their absence, was filed on Thursday in the High Court.
The default judgement stemmed from libel proceedings filed on January 9, 2020, by former Minister of Housing, Annettee Ferguson, who served under the A Partnership for National Unity + Alliance For Change (APNU+AFC) administration.
The proceedings resulted from statements made by Jagdeo alleging that Ferguson had acquired significant wealth in only two years of being the housing minister, and used her public office to acquire several plots of lands at Eccles, East Bank Demerara on which she was constructing a mansion, which was published in the Guyana Times Newspapers.
Marshals of the High Court, on March 30, served upon the Office of Vice- President, Bharrat Jagdeo, an Order of Court which stated that Default Judgement was granted on March 11, 2021, against him in the sum of $20,000,000, along with costs in the sum of $75,000.
When the proceedings were filed, Jagdeo was represented by the current Attorney- General and Minister of Legal Affairs, Anil Nandlall, S.C, who appeared at the hearings for injunctions which were also applied for in proceedings, filed the required affidavits, and made legal submissions.
Subsequently, on February 25, 2020, the court dismissed the applications filed for injunctions after considering the affidavits and hearing the legal submissions made. Jagdeo pleaded the defence of justification and fair comment in his affidavits.
On or about February 24, 2020, a defence on behalf of Jagdeo became due under the Rules of Court; however, that defence, though prepared was inadvertently never filed due to a series of exceptional circumstances which resulted in Jagdeo and his legal team being unreservedly occupied.
Attorney-at-Law, Devindra Kissoon, representing Jagdeo, in the Notice of Application, is also praying for an Order dismissing Ferguson’s Statement of Claim on the basis of delay.
He noted in the application that between January 9, 2020 and February 24, 2021, no action was taken by Ferguson, and accordingly, the matter ought to have been dismissed for delay.
IMPROPER AND IRREGULAR
That should have been done in accordance with the mandatory provisions of the Supreme Court of Guyana, Civil Procedure Rules (CRP) Part 16, Kissoon contends. Noting accordingly, due to the failure to do so, the issuance of the Default Judgement was improper and irregular.
“For this reason alone, it is respectfully submitted that the Order ought to be set aside and the Statement of Claim dismissed,” Kissoon submitted to the court.
Further, Kissoon is contending that Ferguson did not fulfill the requirements necessary for the granting of a default judgement.
He noted that Ferguson failed to alert the Court that she has filed identical proceedings against the Guyana Times Newspapers, which seeks damages against the Guyana Times arising out of the identical comments.
“Not only the matter would have been relevant to the Court concerning the assessment of damages, but as a matter of law, the filing of two defamation matters arising out of the same facts and circumstances is improper and impermissible,” the application noted.
He further posited that in accordance the CPR Section 12.01(3)(b), default judgement ought not to have been granted since the claim against Jagdeo could not properly be dealt with separately from the claim against the Guyana Times.
“Since the claim was for an unspecified sum of damages, the Court ought not have issued a default judgement for a sum certain, but rather, ought to have set the matter down for an assessment and inviting the Applicant [Jagdeo] to a hearing, warranting the setting aside of the Order,” Kissoon noted.
The application explained that despite counsel representing Jagdeo appearing in relation to the injunctions in the matter, Jagdeo was not informed of the application for a Default Judgement in the matter, in breach of 1.01 and 1.02 of the CPR.
“Had counsel been informed, the appropriate applications would have been sought to enable the filing of the defence, so that the matters in controversy would have been dealt with justly giving effect to the overriding objective, and in the circumstances, the Court ought not to have exercised its discretion to grant default judgement without notice, CPR 12.02(1) being discretionary in this regard,” the application noted.
It added that moreover, Ferguson’s attorney knew or ought to have known that Jagdeo was represented by Nandlall, and ought to as a matter of professional courtesy informed Nandlall that he intended to file an application for a default judgement prior to doing so as to afford an opportunity for a defence to be filed.
Section 12.03 of the CPR provides that the Court may, on its own initiative or upon application, make an order setting aside or varying a Default Judgement. Further, 12.03(2) provide that an application to set aside a default judgement may be made within 28 days of the judgement being served.
Accordingly, Kissoon acknowledged the failure to file the defence on behalf of Jagdeo within the stipulated time, and listed a plethora of reasons to explain the reason for the failure, which was of no intentional fault of Jagdeo.
The defence was due to be filed a mere week prior to the March 2, 2020 General and Regional Elections; Jagdeo and Nandlall had both been immersed with responsibilities pertaining to the elections.
Jagdeo was at the time the General Secretary of the People’s Progressive Party/Civic (PPP/C) and Leader of the List of Candidates for the PPP/C, while Nandlall was an Executive Member of the PPP/C, Legal Adviser to the PPP/C, a Candidate on the List, as well as the party’s Assistant Chief Elections Scrutineer.
They both had multiple responsibilities in relation to and in connection with the impending elections, including meeting with the Guyana Elections Commission (GECOM), meeting with international observer teams, planning and preparing for Election Day as well as campaigning across the country.
Further, the fiasco that accompanied the March 2, 2020 General and Regional Elections, included a series of unforeseen events, a string of lawsuits pertaining to the elections and a national recount.
The first case of the COVID-19 virus was detected in Guyana on March 11, 2020, which led to drastic measures being employed to stem the spread of the virus, including the closure of the operations of the Court’s Registries and lawyers’ chambers.
Kissoon is alternatively seeking an order to allow Jagdeo to file a defence to proceedings within seven days of the date of the granting of this application, and extending the relevant case management timelines to allow the applicant to properly defend the claim.
And an interim order staying the enforcement of the judgement against Jagdeo, pending the hearing and determination of the application; costs; and other orders the Court may deem fit.
Jagdeo, through his attorney, intends to defend the proceedings, relying on fact, that the statements he uttered were not defamatory, and the defence of justification, fair comment, qualified privilege and the provisions of the Defamation Act Cap 6:03 apply.