Keith Gardner v Christopher Ogunsalu
| Jurisdiction | Jamaica |
| Judge | T. Hutchinson, J |
| Judgment Date | 24 January 2020 |
| Date | 24 January 2020 |
| Docket Number | CLAIM NO. 2018HCV01853 |
| Court | Supreme Court (Jamaica) |
[2020] JMSC Civ 8
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. 2018HCV01853
Faith Gordon instructed by Hugh Wildman & Co the for Claimant
Ronald Paris and Melissa Cunningham instructed by Paris & Co for the Defendant/Applicant
Application to set aside Default Judgment — Whether incorrect procedure adopted in applying for default judgment-defamation — actionable remarks — defences of merit.
T. Hutchinson, J (AG.)
This is an Application filed on behalf of the Defendant Mr. Christopher Ogunsalu on the 22nd of January 2019, in which he seeks the following orders from the Court
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1. That the Order (for Default Judgment) granted on October 26th, 2018 be set aside.
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2. That the Defendant be granted an extension of time to file his defence within 7 days of the order sought herein.
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3. That the costs of the Application be costs in the claim.
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4. Such further and other relief as this Honourable Court may see fit.
His application relates to a claim which filed was on May 14th, 2018 by Mr Keith Gardner in which he seeks to recover damages from the Defendant for defamation among other orders which are outlined as follows;
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a. General Damages – inclusive of damages for loss of reputation
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b. An injunction to restrain the defendant whether by himself, his servants and/or agents or otherwise howsoever from publishing or causing to be published the said words or any of them or any similar words defamatory of the Claimant or any words to the effect
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c. Interest (on the award)
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d. Costs and Attorneys Costs
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e. Any other relief the Court deems fit
The Claimant is the Director of Security for the University of the West Indies, Mona Campus as well as the Western Campus. He served in the JCF for over 40 years when he retired at the rank of Assistant Commissioner and he is also a qualified Attorney-at-Law. The Defendant Christopher Ogunsalu is a Lecturer at the University of the West Indies.
On the 8th of May 2018 the Defendant sent an article to the Claimant by email which copied in a number of personnel attached to the teaching and administrative staff of the University of the West Indies (UWI). The Claimant particularises that the following extracts in that email were defamatory in character;
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I. Dear Mr Gardner, it is such a shame that you have the audacity to reply to my email in the manner that you did.
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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.
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III. Yes Justice is blind and that is why the University of the West Indies will be blind to not dismiss you from office even after you yourself confirmed that because you cannot see you are unable to do your work, thus further confirming that you are a major security risk to us. If I became successful in my application for the post of Principal, one of my intentions was to neat up campus security which means you will be sent off.
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IV. This is my freedom of speech and my freedom to express myself and what is going on in my head.
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V. Do not fool this university about some upcoming surgery which you claim will be successful (why do you want to see again when you refuse to see mentally)
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VI. Who are you to say that your upcoming surgery will correct your long lost vision? Are you now God or are the hands of the surgeon. It is likely that the spirit of those that may have died by way of your actions will misdirect the hands of the surgeon into a no-restoring direction. That is how surgery works.
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VII. You have now exposed yourself to this academic community that you are a little child with cheese ziz in the left hand and biscuit in the right hand and still crying for breast milk from mummy.
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VIII. Now where is the missing report that I have asked you to furnish to this university authority, so that I can have them protected. My boy is smart. He says that he will discredit me as a father if I do not expose you on this missing report.
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IX. I wish you all the best in you upcoming surgery, despite everything. I also wish to let you know that one of the best eye surgeon in the world is in Cameroon and she is the wife of a dentist I trained and mentored and currently work with. We can help you at no cost but promise not to try to kill my son again.
It was outlined in the Particulars of Claim that the words used in relation to the Claimant meant and were understood to mean;
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a. The Claimant was a cold blooded murderer who was freed by a jury.
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b. The Claimant had committed several acts of murder and is likely to commit murder again
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c. The Claimant is not a fit and proper person to hold the position of Director of Security at the UWI by virtue of his past record as a murderer.
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d. The Claimant by virtue of his past is a security risk to the UWI.
On the 31st of May 2018, the Defendant, through Counsel, filed an acknowledgment of service outlining an intention to defend the Claim but took no further action.
On the 15th of August 2018, the Claimant filed a notice of application for Court Orders seeking Judgment in default of a defence pursuant to Rule 12.10(4).
On the 26th of October 2018 Judgment in Default of Defence was entered against the Defendant and on the 22nd of January 2019, the Defendant, having learned about the Default Judgment on the 30th of October 2018, filed this application for court orders to have same set aside and seeking an extension of time to file his defence.
The application which was supported by an Affidavit sworn to by the Defendant with draft defence attached is made on the following grounds;
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a. The Applicant has applied to the Court as soon as is reasonably practical after finding out about the order made on the 26th of October 2018.
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b. The Applicant has a good reason for his failure to file his defence within the stipulated time.
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c. The Applicant has a real prospect of successfully defending the claim.
In respect of this application, the Defence has sought to persuade the Court on two separate limbs that the Defendant should be afforded the opportunity to present a defence in this matter. The first limb of this application states that in the order made on the 26 th of October 2018 the Court had merely granted permission to enter default judgment but did not pronounce the form of judgment in keeping with rule 12.10(4). It was submitted that there being no judgment entered against the Defendant he was not required to apply to set aside judgment.
It was also submitted that the Defendant at this stage only needed to ask the Court for an extension of time within which to file his Defence, the applicable rule being rule 10.3(g). Reliance was also placed on case law as Counsel noted that it has been established that in determining whether to extend time to file a Defence the Court should have regard to the period of delay, the merits of the defence and any prejudice to either party – Mary Chandler v Patrick Marzouca [2016] JMSC CIV 3.
In putting forward this submission, Mrs Cunningham-Cuff noted that a Court tasked with dealing with this type of application should also consider that where there has been a procedural default even if unjustifiable, particularly when no prejudice has been deponed to by the Claimant, the litigant ought not to be denied access to justice – Phillip Hamilton (executor in Estate of Arthur Roy Hutchinson v Federick Flemmings etal [2010] JMCA Civ 19.
In respect of the delay in filing a defence it was submitted that the period of delay was not inordinate. It was also stated that the explanation given for the failure shows that it was not due to wilful delay or default on the defendant's part. It was also submitted that the affidavit and draft defence reveal that Mr Ogunsalu has a defence of merit. In concluding the submissions on this limb, Counsel asserted that the grant of an extension to file the defence would not be prejudicial to the Claimant but it would be wholly prejudicial to the Defendant if he were prevented from defending the claim.
In respect of the submissions in the alternative, that is, that the judgment entered should be set aside on the basis that the defendant has a reasonable prospect of successfully defending the claim, Counsel relied on Rule 13.3(1) and (2) of the CPR. Reference has also been made to the Affidavit in support and the Draft defence which are said to raise issues suitable for determination at a trial.
In identifying the issues to be determined by this Court, Counsel outlined them to be as follows;
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a. Are the words complained of in paragraph 10 of the Particulars of Claim capable of bearing the meaning ascribed to them by the Claimant in paragraph 11 of the Particulars.
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b. Whether the words complained of were understood to bear the meanings ascribed to them.
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c. Whether the words complained of are defamatory or capable of bearing a defamatory meaning.
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d. Whether the defendant can rely on the defence of vulgar abuse in respect of 10(ii) and (vi).
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e. Whether on items 10(iii) words were fair comment on a matter of public interest.
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f. In respect of 10 (viii) whether the words are true in substance and in fact.
At paragraph 4 of the affidavit filed in support of this application, the Defendant outlined that although he had been advised by his attorneys to formalize their retainer and give instructions for a defence he misunderstood these instructions as he did not appreciate that he had to attend their office to do so before a defence could be prepared and filed, as he believed he had done enough to enable the preparation of a defence.
On the issue of delay, at paragraph 5 of the same affidavit the defendant deponed that on the 30th...
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