Christopher Ogunsalu v Keith Gardner
| Jurisdiction | Jamaica |
| Judge | D Fraser JA,Straw JA |
| Judgment Date | 25 March 2022 |
| Neutral Citation | JM 2022 CA 35 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2020CV00008 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA Civ 12
THE HON Miss Justice Straw JA
THE HON Mr Justice D Fraser JA
THE HON Mrs Justice G Fraser JA (AG)
SUPREME COURT CIVIL APPEAL NO COA2020CV00008
IN THE COURT OF APPEAL
Written submissions filed by Paris & Co for the appellant
Written submissions filed by Hugh Wildman & Company for the respondent
(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)
I have read, in draft, the judgment of my brother D Fraser JA. I agree with his reasoning and conclusion and have nothing to add.
Dr Christopher Ogunsalu, the appellant, seeks to appeal the order of T Hutchinson J (Ag), (as she then was), made on 24 January 2020, whereby the learned judge refused to set aside the default judgment against him granted to Mr Keith Gardener, the respondent, on 26 October 2018, in relation to a claim for defamation. The learned judge also refused the application of the appellant for an extension of time to file his defence.
Mr Gardener is the Director of Security at certain campuses at the University of the West Indies (‘the University’) in Jamaica. Mr Gardener is also a retired member of the Jamaica Constabulary Force, having served for 40 years. At the time of his retirement, he was an Assistant Commissioner of Police. On 14 May 2018, Mr Gardener filed a defamation claim against Dr Ogunsalu, a lecturer at the University's Mona campus. The circumstances giving rise to that claim were that, on 8 May 2018, Dr Ogunsalu, sent emails to Mr Gardener and copied numerous senior level employees of the University (‘the recipients’). Mr Gardener alleged that the emails contained defamatory statements which injured his reputation and caused him to suffer loss, damage and expenses. He sought damages for the injury to his reputation as well as an injunction to prevent Dr Ogunsalu or his servants and/or agents from publishing any further defamatory content relating to him, among other reliefs.
Dr Ogunsalu filed his acknowledgment of service, however, he did not file a defence to Mr Gardener's claim. Consequently, Mr Gardener applied for judgment in default of defence against Dr Ogunsalu. The hearing for the default judgment was held on 26 October 2018, in the absence of Dr Ogunsalu. Mr Gardener was successful in his application. It was stipulated that damages were to be later assessed.
Dr Ogunsalu became aware of the default judgment on 30 October 2018. On 22 January 2019, he applied to set it aside and for an extension of time to file his defence. In his proposed defence, he avers that he misunderstood his attorneys' instructions that he had to formalise their retainer before the defence could be filed on his behalf and was of the mistaken belief that one would have been filed. He states that the error was unintentional and when he became aware of this mistake, he instructed his attorneys so that a defence could be filed on his behalf. He also indicates that he filed the application to set aside the default judgment as soon as reasonably possible. He asserts that he has a real prospect of successfully defending the claim.
Dr Ogunsalu's proposed defence outlines that the email was but one of a number of other emails directed to Mr Gardener, who was the University's head of security. The proposed defence also states that the recipients were interested in the University's security and were aware of the incidents complained of. Additionally, Dr Ogunsalu insists that the words contained in the email, when considered in the entire context, were understood by the small group of recipients, as just vulgar abuse; and there was nothing to suggest that the words were defamatory. He maintained that his conduct of sending the email stood in stark contrast to the publication, by Mr Gardener, of the claim in the media.
The learned judge heard the application to set aside the default judgment on 26 November 2019. On 24 January 2020, she refused the application to extend time to file the defence, directed that the matter should proceed to assessment and granted Mr Gardener costs of the application. She, however, granted leave to appeal her order refusing the application to extend time.
By way of notice of appeal filed 30 January 2020, Dr Ogunsalu appealed the learned judge's decision and filed the following grounds of appeal:
“a. The learned judge erred in finding that the words complained of at paragraph 10 (ii) of the Particulars of Claim could not be said to be vulgar abuse and as such the proposed defence has no real prospect of success. In so finding she failed to consider that the words should not be considered in isolation but having regard to the entire publication as well as the circumstances of the publication and the likely inferences to be drawn from same by the persons to whom the publication was made. The learned judge failed to address her mind to the limited nature of the publication and the special knowledge that the audience had as to the fact and circumstances surrounding the said publication. All recipients of the email [were] persons who due to their position held at [the] University of the West Indies, Mona Campus would be aware of the security issues at the University and have an interest in the said security issues.
b. The learned judge erred in finding that [Dr Ogunsalu] did not have a good explanation for failing to file his defence in time and thus had not [satisfied] [r]ule 13.3 of the CPR in that the explanation offered by [Dr Ogunsalu] was a reasonable one. Further, or in the alternative, the learned judge failed to address her mind to the fact that the absence of a good reason for failing to file a defence is not in [and] of itself fatal to an application to set aside a default judgment.”
In passing, it is observed that these grounds offend rule 2.2(5)(a) of the Court of Appeal Rules (‘CAR’), which provides that grounds of appeal are to be set out concisely.
The issues arising from the grounds may be summarised as follows:
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1. Whether the learned judge erred in finding that the words complained of (at paragraph 10(ii) of the particulars of claim) were not vulgar abuse and as such the proposed defence has no real prospect of success;
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2. Whether the learned judge erred in finding that the applicant did not have a good explanation for the failure to file the defence in time; and
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3. Even if the finding at 2 was correct, did the learned judge fail to consider that the absence of a good reason for the failure to file the defence was not automatically fatal to the application to set aside the default judgment.
The law is well settled that an appellate court must not lightly interfere with a first instance judge's exercise of discretion. On appeal, a judge's exercise of discretion cannot be interfered with, merely because members of the appellate court would have exercised their discretion differently, had they been in the position of the lower court. Therefore, it is only if it is determined that the learned judge was palpably wrong in her assessment of the law, the facts or aspects of mixed law and facts, that this court will disturb her finding (see Hadmor Productions Limited and others v Hamilton and others [1982] 1 All ER 1042, approved and applied in The Attorney General of Jamaica v John MacKay [2012] JMCA App 1).
At paragraph 10(ii) of the particulars of claim, Mr Gardener extracted the following words from one of Dr Ogunsalu's emails. The extract reads:
“ii Yes Justice is blind, that is why a blatant, cold blooded murder [sic] can be set free by the Jury to now be mingling and toying with an academic community of which I am part of its builders.”
Mr Gardener, at sub-paragraphs 11 a) and d) of the particulars of claim, complain that those words, in their natural and ordinary meaning, meant that he was a cold blooded murderer who the jury freed and that he was not fit and proper to be connected with the University. The chapeau of paragraph 11 and sub-paragraphs a) and d) outline that:
“11. The words in their natural and ordinary meaning in relation to [Mr Gardener] meant and were understood to mean:
a) That [Mr Gardener] is a cold blooded murderer who was freed by a jury;
…
d) [Mr Gardener] is not a fit and proper person to be associated with the University of the West Indies.” (Italics and emphasis as in original)
The learned judge ruled that those words at paragraph 10(ii) of the particulars of claim are not vulgar abuse. The learned judge reasoned that the words clearly meant that Dr Ogunsalu was suggesting that Mr Gardener unjustifiably killed his wife and the ordinary reasonable reader would have interpreted the words as Mr Gardener did at paragraphs 11 a) and d). The learned judge also found that what was in the public domain was that Mr Gardener was charged with murder and the jury acquitted him; but that was not Dr Ogunsalu's narrative. Instead, the judge determined, that when the emails are considered in their totality, Dr Ogunsalu's statements suggested the meaning that Mr Gardener ascribed to them. The learned judge therefore concluded that Dr Ogunsalu's defence does not have a reasonable prospect of success.
Counsel for Dr Ogunsalu contended that the words complained of were a subset of the emails sent between Dr Ogunsalu and Mr Gardener and copied to the recipients. Counsel posited that those recipients were also interested in the University's security and the emails outlined security issues...
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