By Feona Morrison
DIPCON, a Trinidad engineering company which was contracted to do massive road works in Guyana, has taken President David Granger to court over his issuance of a respite in the Official Gazette pardoning Finance Minister Winston Jordan from 21 days imprisonment over failure to pay the more than US $2.2 million judgment which was awarded to the company since 2015.
In October 2015, Justice Gino Persaud had ruled that DIPCON recover the sum from government as monies due to the engineering company for infrastructural works done under the previous administration. Obviously dissatisfied with the judgment of Justice Persaud, Attorney General Basil Williams filed an appeal with the Court of Appeal.
The appeal was a belated one and the Court of Appeal dismissed it. But Williams then sought redress from the Caribbean Court of Justice (CCJ) where he contended that there were good reasons for the late filing.
For one, the Attorney General submitted to the regional court that the matter was handled by a private attorney and the State was not notified of the judgment until months after it was delivered. The CCJ, too, dismissed the appeal noting that it was not filed within the prescribed time limit.
Notwithstanding these, the monies were still not paid and DIPCON by way of an action applied to the court and was granted an Order of Mandamus by Chief Justice Roxane George directing that the monies be made to DIPCON on or before January 15, 2019. This was not forthcoming and DIPCON instituted contempt of court proceedings against the Minister.
On June 24, Justice Priya Sewnarine-Beharry issued a contempt order to have Minister Jordan imprisoned for 21 days if he fails to pay the monies to DIPCON on or before Monday, July 8. Following the contempt order, Attorney General Williams appealed to the Full Court to set aside and/or reverse the order of Justice Sewnarine-Beharry.
However, the Full Court, in a ruling dated July 5 held that Williams’s application had no merit and dismissed the appeal and even rejected a stay of the contempt order which was requested by Williams. But four days later, the President issued a Grant of Respite in the Official Gazette signed by Minister of State Dawn Hastings which gave Jordan in his personal capacity, and as the Minister of Finance, respite of the execution of punishment imposed on him by the judge.
Under Prerogative of Mercy at Article 188(1) (b) of the Constitution of Guyana, the President has the powers to issue such a grant of respite. According to Section 188 (1) The President may— (a) grant to any person concerned in or convicted if any offence under the law of Guyana, a pardon, either free or subject to lawful conditions; (b) grant to any person a respite, either indefinite, or for a specified period, of the execution of any punishment imposed on that person for such an offence.
Anyway, the grant of respite remains in effect until all appeals and remedies available to the Finance Minister and the State have been exhausted. In its newest proceedings filed on July 18, DIPCON is asking the court to issue an Order of Certiorari to President Granger quashing the decision of the said President to grant Jordan a respite for the indefinite period terminating upon the expiry of all appeals from the execution of the punishment of imprisonment for 21 days imposed by the High Court judge.
In fact, DIPCON contends that the President’s decision is so flawed in law that it amounts to nullity and is improper, unreasonable, irrational and ultra vires and in excess of jurisdiction. The company contends that no reason or respectable argument has been or can be advanced in support of the President’s decision.
In its Fixed Date Application, DIPCON has listed Attorney General Basil Williams and President David Granger as the first and second named defendants jointly and severally.
According to the court document, in its request for a court order compelling the minister to pay the judgment, DIPCON in a letter dated December 25, 2018 to the Registrar of the Supreme Court, conveyed the order made by Justice Persaud to the Minister who it contends became obligated under Section 14 of State Liability and Proceedings Act of 1984 to direct, by warrant under his hand, that the judgment amount be paid.
DIPCON submitted that on July 8, the Ministry of Finance through its officials informed DIPCON that it had prepared a cheque payment of the judgment in accordance with the contempt order issued by Justice Sewnarine-Beharry and even invited the company to visit the Ministry of Finance at 3pm the same day to uplift the payment which would have averted the punishment of imprisonment of the Minister.
DIPCON’s lawyers, Timothy Jonas, Dennis Paul and Sadia Ramnarine, have always maintained that while the court did not have jurisdiction to issue a coercive order against the government, the contempt proceedings were filed against Jordan, a mere “individual” and not the government. As it is, the lawyers are insisting that Jordan is liable for criminal contempt since he has “deliberately and contumaciously refused and failed to comply under Section 14 of the State Liability and Proceedings Act of 1984.”
The lawyers have argued that there are no reasons as to why the judgment and $3 million in court costs cannot be paid since Cabinet has already approved the sum for that purpose. Williams, on the other hand, had challenged the jurisdiction of the High Court to issue such an order against a Minister.
In an appeal of the Full Court’s decision to the Court of Appeal, he contended that Justice Sewnarine-Beharry misdirected herself in law when she exercised jurisdiction to hear the application of contempt against the Minister in his private and personal capacity as Minister of Finance for alleged monies owed by the State and Government to DIPCON.
Further, Williams noted that among other things Justice Sewnarine-Beharry erred and misdirected herself in law when she failed to appreciate that contempt proceedings were coercive in nature and such order could not be made against Jordan in his private capacity, since no act was committed by the Minister in his private capacity. It is also Williams’s argument that Jordan in his capacity as Minister of Finance fell under government
Among other things, the Attorney General contends that the Full Court erred and misdirected itself in law when it refused to grant the stay of execution of the order for contempt made by Justice Priya Sewnarine-Beharry on June 24, 2019 for the imprisoning of the Finance Minister for 21 days for failure to pay the judgment.
The Attorney General also argues that the Full Court erred and misdirected itself in law when it ordered that Jordan being sued in his personal capacity while still being Minister of Finance could not be represented by the Attorney General, pursuant to the provisions of the State Liability and Proceedings Act Chapter 6:05 of the Laws of Guyana.
DIPCON’s challenge against the President and Attorney General comes up for arguments on September 23 at 13:30 hours before Justice Nareshwar Harnanan.
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