PORT OF SPAIN, Trinidad, CMC – The Trinidad-based Caribbean Court of Justice (CCJ) Friday gave the green light to the Court of Appeal in Guyana to grant leave to hear an appeal from an evenly divided Full Court.
In Guyana, decisions or judgments made by High Court judges can be appealed in the Full Court of Guyana, 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 issue arose in the case between Guyana’s Vice President, Bharrat Jagdeo, the defendant in libel proceedings in the High Court of Guyana filed by opposition legislator Annette Ferguson.
Ferguson, a former minister of housing, had on January 9, 2020, filed a GUY$25 million (One Guyana dollar=US$0.004 cents) lawsuit for libel purportedly committed by Jagdeo when he was Opposition Leader. The High Court had issued a default judgment on March 11, 2023, because he had failed to defend himself.
But Jagdeo applied to have it set aside. He was unsuccessful and appealed to the Full Court. Two Judges heard the appeal, and they were evenly divided. Jagdeo then applied to the Full Court to recall the divided judgment and reassign the matter to an odd-numbered full-court bench, but that application was refused.
After that, Jagdeo sought permission from the Court of Appeal to appeal the effect of the divided Full Court judgment. The Court of Appeal held that it had no power to grant leave since the Full Court had yet to deliver an appealable decision.
Subsequently, Jagdeo sought permission to appeal to the CCJ, Guyana’s highest and final court. He asked the CCJ to determine whether he was entitled to appeal to the Court of Appeal and to stay the hearing to assess pending damages against him before the High Court.
In a two-to-one ruling, Justices Anderson and Burgess, 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 immunize the conclusion of a single judge of the High Court from the reach of judicial review. It must be consistent with the wording and objective of 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.
But Justice Barrow, who authored a dissenting opinion, 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 whether the Applicant was entitled to a rehearing, he stated that there is no common principle in ordinary law courts determining whether a divided court’s failure to agree should result in a rehearing.
The dissenting opinion concluded that the legislation provides for adjudication by two judges but with the option to apply for good reason for a three-judge hearing. 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, they could go no further.
The legislation 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 would be awarded to the respondent.
Having regard to the opinions expressed, the CCJ made several orders.
It said that the application for special leave is granted and treated as the substantive appeal and that the appeal be upheld, that the decision of the Court of Appeal that it has no jurisdiction to grant leave be reversed, 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 that the hearing for assessment of damages against the Applicant stays pending the final determination of this matter or until further order.
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