Trinidad construction company Dipcon has moved to the courts for Finance Minister Winston Jordan be held in jail for failing to pay it the US$2,228,400.67 it was awarded since 2015.
Justice Rishi Persaud handed down the judgement in the company’s favour on 21st October, 2015 but Jordan it is claimed has failed to take steps to effect payment. As a result, lawyers for Dipcom have applied to the court for an administrative order to compel the minister to pay.
According to grounds listed in Dipcon’s application to the court, by letter dated 28th December, 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 has 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, pay the said judgment or any part thereof to the applicant.
The application noted that by way of action instituted on 8th December, 2017, the applicant applied to the Court and on 1st March, 2018 obtained an Order of Mandamus issued by the Chief Justice directing the respondent to perform his said obligation and direct the payment of the judgment to the applicant.
The CJ’s order was served on the respondent and he at all material times had knowledge of it and of its terms and effect, and he “has deliberately and contumaciously refused and failed to comply with his obligation and with the said Order, and the judgment of 21st October, 2015…” Dipcon’s legal team argued.
It was further argued that upon the failure by the respondent to comply with the said Order of Mandamus, the applicant applied to the Court and on 12th November, 2018 was granted an Order by the CJ directed to the respondent to obey the said Order of Mandamus on or before 15th January, 2019.
This new order was also served on the Minister.
In this regard, the lawyers said that the Minister by failing to comply with Justice Persaud’s order has “knowingly and deliberately” prejudiced the administration of justice and obstructed the function of the Honourable Court despite its March 1, 2018 Order of Mandamus of 1st March, 2018 directing the minister to pay the judgment.
The court was asked for the awarded sum together with interest calculated thereon at the rate of 6% per annum from 10th February, 2009 to 21st October, 2015 and thereafter at the rate of 4% per annum until fully paid along with costs in the sum of $1,200,000.
Chartered Accountant, Harryram Parmesar, who is the Receiver/Manager of Dipcon in his affidavit explained that on February 9, 2009 proceedings commenced for the payment of US$2,228,400.67 (or its equivalent in Guyana dollars at the Republic Bank Selling rate of exchange) at the date of payment being the balance in the sum of US$665,032.17 due owing and payable by the Government to the Dipcon for road building and constructions works undertaken by the company under an Agreement dated 5th March, 2003 with the Government, together with the sum of US$1,563,368.50 due owing and payable by the Government to the plaintiff for increased costs incurred at the request of the Government in the course of undertaking the said road building and construction works.
He explained that Dip-con was forced to move to the court 42 months after Justice Persaud handed down his judgment because of non-payment.
It was pointed out that in an Affidavit in Defence sworn by Ayana McCalman on 27th February, 2018, on the instructions of the respondent it was explained that the payment of the judgment requires the approval of Cabinet; that no funds are available in the Consolidated Fund to pay the judgment; that the judgment was fraudulently obtained, and that ‘the matter’ is under investigation by the Guyana Police Force.
“Unsurprisingly, the learned Chief Justice ruled that the Affidavit of Defence has no merit whatsoever, and struck out portions thereof …”, Parmesar said adding that the Chief Justice then issued an Order of Mandamus directed to the respondent as Minister of Finance to pay the said judgment, interest and costs, together with costs of proceedings in the sum of $500,000.
In this regard, he asked the court to infer from the said Affidavit of Ayana McCalman the intention of the respondent not to pay the judgment by all and any means, and therefore to subvert the administration of justice and undermine the process of the court.
According to the affidavit, the respondent continued in his default and the judgment remained unpaid notwithstanding the said Order of Mandamus. As such on May 8, 2018, Dipcon applied to Justice George, to impose a timeframe for compliance by the respondent, having been advised by lawyer Timothy Jonas that such a timeframe in the Order was a pre-requisite to successful contempt proceedings against the Minister for his defiance of the order of court.
That application, returnable for 24th May, 2018, was duly served on the respondent, and came up to be heard before the learned Chief Justice on 24th May, 2018.
On that date, State Counsel appeared and served Jonas with an Affidavit in Answer, which contended for the first time that the judgment should not be paid for the reason that the Commissioner General on behalf of the Guyana Revenue Authority had determined to garnish the judgment sum under the provisions of Section 102 of the Income Tax Act.
The respondent argued before the learned Chief Justice and sought to avoid his obligation to pay the said judgment to Dipcon by propounding that the effect of a garnishment letter was that the taxes claimed therein by the GRA should be paid first to the GRA out of the judgment sum before the balance is paid to Dipcon.
“This argument was summarily rejected by the Court, and by Order dated 12th November, 2018 the Court directed to the respondent to obey the said Order of Mandamus dated 1st March, 2018 by directing payment to Dipcon of the Judgment on or before 15th January, 2019,” Parmesar said.
Further, it was pointed out that while respondent continues in default of the orders directed against him and is in criminal contempt of the said judgment of 21st October, 2015, Dipcon has no other means to enforce payment given the immunity of the State from levy proceedings by a Marshal. “…there is no other recourse and the actions of the respondent have undermined the process of the Court,” he stressed.
