On the heels of an agreement to pay Surinamese company Rudisa US$6.22 million, the Guyana Government will soon be faced with a bill from Trinidad construction company NH International Ltd for the sum of $2.8 billion in a case dating back to 2007 and recently ruled on by the Caribbean Court of Justice (CCJ).
Following a dispute between NH International and the Guyana Government, an adjudicator was appointed and awarded the sum of US$11.7 million plus $411.3 million in favour of the Trinidadian company. The company then applied to a judge in Chambers for the enforcement of the adjudication award. Such leave was granted by Justice Singh on February 19, 2007 but it took another eight years before the matter was finally settled and the CCJ criticised the long delay in its ruling.
In its ruling issued in April this year, the CCJ noted that the respondent company, NH International Limited had entered into a contract with the Government of Guyana for the construction of a roadway. The agreement provided for the settlement of disputes arising out of the contract. This process included the appointment of an Adjudicator and an Arbitrator who could hear appeals from the Adjudicator’s decision.
After disputes arose between the parties, an Adjudicator was appointed. The adjudicator later gave an award in favour of NH International for the sum of US$11,719,717.02 and $411,302,140.59. The company, by way of an Originating Summons, then applied to a Judge in Chambers for leave to enforce the adjudication award and this leave was granted by Justice Singh on 19 February 2007.
The Attorney General then appealed the decision of the Judge to the Guyana Court of Appeal but, by way of a preliminary objection, NH International asserted that the Court of Appeal did not have jurisdiction to hear the appeal.
The CCJ said that the proceedings before it were solely concerned with the merits of this preliminary objection. It asked itself, “Does the Attorney General have a direct or unfettered right of appeal to the Court of Appeal the order giving leave to enforce the Award of the Adjudicator?”
In its ruling, the CCJ said that Section 6(2)(a)(i) of the Court of Appeal Act gives a right of appeal, inter alia, to orders that are final and that are not made in Chambers. It noted that the company submitted that the order in question was not a final order but it is unnecessary for this Court to decide that issue. The critical question, the CCJ said, was whether the proceedings before the judge should be considered proceedings “in Chambers”. If they were, then the preliminary objection made by the NH International must be upheld because the Attorney General would not have had the direct right of appeal to the Court of Appeal.
The CCJ noted that the Guyana Court of Appeal heard the preliminary objection and agreed with NH International that these were indeed proceedings held in Chambers. The Attorney General however argued that the Court of Appeal was wrong.
Noting the submissions of the AG, the CCJ said “Even if any of them has merit, the problem that confronts the AG is that when Singh J embarked upon the proceedings in Chambers upon an originating Summons, none of these points were made to the judge. The AG was content then to allow the proceedings to be begun by Originating Summons and for the matter to be dealt with in Chambers. It is too late in the day now for a court to frustrate the proceedings on the basis of these technical submissions when the matter has already been heard on the merits. If a matter that ideally should have been begun by Originating Motion was, without objection, commenced and concluded at first instance by Originating Summons, it would be entirely inappropriate for a court 8 years later to rule those proceedings, in effect, a nullity. A court would take advantage of the provisions of Order 54 to treat the non-compliance or irregularity as having been waived. The ethic conveyed by Order 54 is that litigation is not a game where parties should be permitted, willy-nilly, to frustrate the hearing of a case on its merits because of some technical procedural flaw.”
The CCJ also contended that Section 13 of the Arbitration Act does not stipulate any particular procedure for the enforcement of an award except that it may be enforced in the same manner as a judgment or order. Citing Order 41 rule 5(3), the CCJ said that nothing therefore precludes a judge from hearing an application for leave to enforce an arbitral award in Chambers.
“Before closing, the Court cannot but note that the question for determination in this case was a straightforward one and we are extremely disappointed that it has taken such a long time for the matter to be resolved. We have previously drawn attention to the direct correlation between efficiency and expedition in the delivery of justice on the one hand and a country’s economic development on the other. There was no good reason for this case to have meandered its way to this court some 8 years after it was heard by Justice Singh. This was a case involving the enforcement of an arbitral Award. Arbitration is a mode of dispute settlement that litigants often consciously choose in preference to litigation through the courts because of the convenience, finality and expedition of the arbitral route. Sadly, the treatment of this matter conflicted with the court’s duty to promote and support arbitration,” the CCJ declared.
It dismissed the Attorney General’s appeal with costs to be taxed fit for two senior counsel and a junior, if not agreed.
Appearing for the Attorney General was Roysdale Forde while Edward Luckhoo SC, Rex McKay SC and Robin Stoby SC appeared for NH International Limited in joint venture with Emile Elias and Company Limited.
