June 25 2019
Justice Priya Sewnarine-Beharry yesterday ruled that Finance Minister Winston Jordan is to be jailed for 21 days if he fails to comply with a previously issued court order to pay Trinidad construction company Dipcon the more than US$2 million owed to it by the government for road construction works.
Justice Sewnarine-Beharry noted that in her ruling she had considered the 2015 judgment of Justice Rishi Persaud, who after a trial awarded US$2,228,400 to Dipcon, and an order of mandamus subsequently issued by the Chief Justice that the sum be paid.
The judge said she observed that no stay had been granted on the previous court orders and she also reminded that an appeal does not operate the same as a stay.
She said it had even been submitted by counsel for Jordan, the respondent, that Parliament had approved finances so that the judgment could be honoured.
The judge said that not only has Jordan failed to attend all the hearings set before her but that she found that he had both the actus reaus and mens rea for contempt of the court orders, which can be proven beyond reasonable doubt.
In all the circumstances, Justice Sewnarine-Beharry ordered that Jordan pays over to Dipcon the US$2,228,400 owed on or before July 8th, failing which he is to be imprisoned for 21 days.
In addition, the judge imposed court costs to the construction company in the sum of $3 million, which has to be borne by Jordan.
Further to that, Justice Sewnarine-Beharry denied Attorney General (AG) Basil Williams a stay he had been seeking to her ruling. According to the AG, they intend to appeal.
Counsel for Dipcon, Timothy Jonas, had questioned the reason for a stay, arguing that the money can be paid, particularly since it had already been approved by Parliament for that purpose.
Ahead of yesterday’s ruling, Williams had sought to argue on Jordan’s behalf that since he was a minister of government, the court could not make a coercive order against him as the court has no jurisdiction to make such orders against the government.
According to the AG, Dipcon’s application for the contempt of court order against Jordan was therefore “misconceived” and amounted to an abuse of process.
Jonas, however, said that while a court indeed has no jurisdiction to issue coercive orders against the government, Jordan was not the government, but a mere “individual,” against whom the contempt proceedings were mounted by his client. It is Jordan who is in “criminal contempt,” for not giving effect to Justice Persaud’s October 21st, 2015 judgment, Jonas stressed.
Jonas said that as a matter of fact, the state had not even been listed as a party to the proceedings.
Referencing case law, the attorney said that ministers of government are not the state, and can be held in contempt.
Williams, however, took issue with this position, arguing that in his capacity as Minister of Finance, Jordan fell under the umbrella of the government. He said, too, that the AG, who was also listed as a respondent, was government’s legal representative.
Jonas noted that both the Guyana Court of Appeal and the Caribbean Court of Justice had upheld Justice Persaud’s ruling, yet Jordan had repeatedly acted in defiance of all those judgments.
On this point, Jonas submitted that Jordan, by his actions, was clearly attempting to frustrate the process of the court.
Dipcon has asked the court to grant an administrative order compelling the minister to pay.
According to the grounds listed in Dipcon’s application to the court, by letter dated December 28th, 2015, the Registrar of the Supreme Court transmitted the order made by Justice Persaud to the minister, who “thereupon became obligated… to direct, by warrant under his hand, that the amount awarded thereby to be paid.”
It was stated that the minister, in breach of his statutory obligation, “deliberately and contumaciously refused and failed to comply with his obligation” under the State Liability and Proceedings Act and has subverted the said order of court to pay the said judgment or any part thereof to Dipcon, the applicant.
By way of action instituted on December 8th, 2017, Dipcon applied to the Court and on March 1st, 2018, obtained an Order of Mandamus issued by the Chief Justice (CJ) directing the respondent to perform his obligation and direct the payment of the judgment to the applicant.
Despite being served with that order, payment was not forthcoming.
According to Dipcon, the minister “has deliberately and contumaciously refused and failed to comply with his obligation and with the said Order, and the judgment of 21st October, 2015….”
It was further stated that upon the failure by the respondent to comply with the Order of Mandamus, the applicant applied to the Court and on November 12th, 2018, was granted an Order by the CJ directed to the respondent to obey the Order of Mandamus on or before January 15th, 2019. The money still was not paid.
The court was asked for the awarded sum together with interest calculated at the rate of 6 per cent per annum from February 10th, 2009 to October 21st, 2015, and thereafter at the rate of 4 per cent per annum until fully paid, along with costs in the sum of $1.2 million.