President David Granger and Attorney General Basil Williams have been listed as the first and second defendants in an action filed by Trinidad engineering company DIPCON. The court proceeding, filed last month, challenges the President’s issuance of a grant of respite pardoning Minister of Finance Winston Jordan from imprisonment for 21 days over failure to honour a US$2.2M judgment which the company was awarded in 2015 by High Court Judge Gino Persaud.
Both the Court of Appeal and Caribbean Court of Justice (CCJ) dismissed appeals filed by the State in this matter which reinforced the judgment of Justice Persaud. The payment was still not made and DIPCON applied for and was granted an Order of Mandamus by the Chief Justice compelling the minister to pay the monies on or before January 15, 2019. This was not forthcoming and DIPCON filed contempt of court proceedings against the minister.
On June 24, 2019, High Court Judge Priya Sewnarine-Beharry issued a contempt of court order against Minister Jordan for him to pay the monies to the company or before July 08, 2019 or be imprisoned for 21 days. Justice Sewnarine-Beharry had considered that Justice Gino Persaud handed down a judgment in 2015 for DIPCON to recover the monies from the State and government over infrastructural works under the previous government and the fact that two appeals were thrown out.
Jordan then appealed the decision of Justice Sewnarine-Beharry to the Full Court which held that his application for a stay of the contempt order had no merit. The Full Bench comprising of Justices Simone Morris-Ramlall and Diane Insanally, therefore, dismissed the appeal. Jordan was saved from imprisonment by a grant of respite granted by the President on July 08, 2019 which was published in the Official Gazette and signed by Minister of State Dawn Hastings.
According to Article 188 (1) (b) of the Constitution of Guyana, the President has the powers to issue such a grant of respite. Section 188 (1) states: The President may — (a) grant to any person concerned in or convicted of 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.
However, DIPCON contends through its lawyers Timothy Jonas, Dennis Paul and Sadia Ramnarine that the President’s decision to issue the grant of respite is so flawed in law that it amounts to a nullity and is improper, unreasonable, irrational and ultra vires and in excess of jurisdiction. The company further contends that no reason or respectable argument has been or can be advanced in support of the President’s decision.
Against this backdrop, it 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.
According to DIPCON, Jordan has “deliberately and contumaciously refused and failed to comply under Section 14 of the State Liability and Proceedings Act of 1984” to honour the court judgment as well as an award of $3M in court costs. In this regard, the company argues that the minister is liable for criminal contempt. They say that there is no proper explanation as to why the monies have not been made since it has already been approved by Cabinet for that purpose.
Williams has appealed the decision of the Full Court to the Court of Appeal where he challenges the jurisdiction of a High Court Judge to issue a contempt order against a minister. DIPCON, on the other hand, contends that the contempt proceedings were filed against Jordan, a mere individual, and not the government.
Among other things, the Attorney General contends that 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.
DIPCON’s challenge to the President’s issuance of a grant of respite pardoning Minister Jordan from jail time comes up for hearing on Monday, September 23, 2019, before Justice Nareshwar Harnanan at the High Court in Demerara.