Dear Editor,
I would like to offer some observations on how Courts, particularly in the USA, would treat the application to overturn the High Court default judgment 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 judgment 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 judgment, especially since the Court did not explain how it arrived at the $20 million in damages. Ex parte judgments, 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 judgments 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 organizations, 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 commission. 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.
Yours faithfully,
Albert Baldeo, Queens, NY
Former Senior State Counsel,
Prosecutor, Police Legal Advisor and
Magistrate in Guyana
