ATTORNEY-AT-LAW and Member of Parliament, Sanjeev Datadin, gave an absorbing presentation on the Freddie Kissoon Show last Wednesday on two shortcomings in Guyana’s jurisprudence. It would be advisable if all members of the lower and higher bench of the judiciary, all lawyers and law students and Guyanese in general, digest what Mr. Datadin had to say.
The Caribbean Court of Justice (CCJ) has ruled in relation to a case from Guyana that courts in Guyana cannot make decisions based on a technicality, but on the merits of the case. On March 17, the CCJ rebuked the three tiers of the justice system in Guyana – the High Court, the Full Court and the Court of Appeal – for dismissing a case on the basis of procedural irregularities rather than on the real essence of the matter, that is, the actual merits of the case. In this specific instance the matter was Harry Panday versus Malcolm Panday in a family dispute over a sum of 733,000 American dollars.
Based on that judgement it means lower courts in Guyana have to fall in line and allow trials to proceed even if there were technical faults involved. Mr. Datadin opined that litigation in front of the courts should not be dismissed because one party has made a procedural error.
Mr. Datadin explained that failure to offer a response within a specified time frame results in judgement against a defendant. He said this is wrong because the defendant may have a very justified reason for late filing. Datadin suggests failure to meet a deadline should result in a fine but not a default judgement.
To my mind, the point here is commonsense. Doctors, businesspeople, army officers, Ministers of Government, police officers are busy people. Why should they lose a case because they didn’t file a response in time? This is a blatant denial of justice. Imagine in a dispute involving immense acres of land, one party loses all of those assets because of a technicality. What happens if based on the merit of the case the land actually belonged to the defendant?
How can the court award dozens of millions of dollars because the defendant didn’t file a writ in time in a libel case? How can that be right? People in Guyana across the political spectrum have suffered default judgement involving dozens of millions. Two libel cases stand out – Vice-President Jagdeo versus then PNC parliamentarian, Annette Ferguson and Vincent Alexander versus Vishnu Persaud. Both had judgement against them because of technical glitch.
I agree with Mr. Datadin. Failure to meet a deadline should result in a fine. The defendant should be given a chance and if on the second time, it happens again then a larger fine should be imposed. If on the third occasion, the defendant defaults again then one can understand judgement against him/her. Certainly not on the first failure.
The second point in the weakness of Guyana’s jurisprudence as pointed out by Mr. Datadin is the area of libel laws. The reason for the existence of libel is for the courts to compensate for the suffering and damage you have endured because of a false statement published about you. The plaintiff must and the emphasis is on MUST, provide the court with evidence of damage.
The case of ex-marine, Zachery Young versus CNN, is very instructive and the courts in Guyana should take its cue from that case. CNN claimed that Mr. Young ran a business of extracting money from people he facilitated in leaving Afghanistan. Young sued and won because he was able to prove to the court how he was damaged. He proved to the courts that security contracts he had were terminated after the CNN report because he was portrayed as a rapacious person.
In the case of Catherine Hughes versus Vice President Jagdeo over the word, “low-life”, the judge said that she has to weigh the evidence of damage to character. In other words, the plaintiff, Hughes, has to show evidence of how she suffered. What has gone on in the courts of Guyana in libel writs is unprecedented injustice.
How can the plaintiff sue for damage of character without showing evidence of that damage? Someone published that John Brown is a homosexual. Brown’s wife sought a divorce after publication. Brown can show that after publication his wife sued for divorce thus providing the court with evidence of damage.
The raison d’être for libel is damage, loss and suffering. When it is publicly said that you are an incompetent bank manager and you sue and you are not demoted and is still the bank’s manager, then, how have you been damaged? There must be evidence of damage. If a judge doesn’t ask for that evidence, then his/her competence is in question.
DISCLAIMER: The views and opinions expressed in this column are solely those of the author and do not necessarily reflect the official policy or position of the Guyana National Newspapers Limited.
