The Full Court of the High Court on Monday dismissed an appeal which was brought by Minister of Finance Winston Jordan, who had been found guilty of criminal contempt and ordered to be imprisoned for 21 days for non-payment of over US$2.2 million owed to Trinidad company Dipcon.
Throwing out the appeal, Justices Simone Morris-Ramlall and Diana Insanally found among other things that Jordan had deliberately and contumaciously refused to perform his obligation.
Just last week Justice Nareshwar Harnanan quashed a presidential respite granted to Jordan by President David Granger, who invoked his power under Article 188(1) (b) of the Constitution, in a bid to spare him from being sent to prison for 21 days.
On June 24th of last year, Justice Priya Sewnarine-Beharry held Jordan in criminal contempt for failing to pay over the US$2,228,400 in damages for breach of contract, together with interest which had been awarded to Dipcon since 2015.
In a terse statement following Justice Harnanan’s ruling last Thursday, the Ministry of Finance said it paid Dipcon in December, 2019.
It said that garnishee orders submitted by attorneys Anil Nandlall, Sasenarine Gunraj and the GRA were deducted after which the final sum was paid. It provided no details on the amounts involved.
In their ruling, Justices Morris-Ramlall and Insanally found that Jordan caused the court order to be thwarted and in so doing undermined and defied the administration of justice. “His actions tended to impair public confidence in the authority or integrity of the administration of justice,” the judges noted in their ruling.
Citing the reasoning in a number of precedents on which they relied, the judges said they found that Jordan was in criminal contempt, therefore upholding Justice Sewnarine-Beharry’s finding.
Jordan had contended that the finding of contempt constituted a coercive order against him in his private capacity, which he argued contravened Section 16 (b) of the State Liability and Proceedings Act, which prohibits such an order being made against him in his official capacity.
He further sought to contend that Justice Sewnarine-Beharry’s finding was in breach of sections 3 (6) and 14 of the Act, while stating that if he was in breach of his duty then the state would be liable, and the Attorney General the proper party.
Again relying on legal authorities, however, the Full Court found that in the circumstances of the case, the contention that the contempt order infringes the legislation to which Jordan pointed lacked merit.
The court said it did not find that the Attorney General was the proper party, given that it was a personal contempt charge and not a proceeding for the enforcement of the judgment order against the state.
The judges said that the case of The Attorney General of Guyana v Jardim is instructive on the point that prerogative writ proceedings are not civil proceedings in the context of the Act on which Jordan sought to rely and therefore the Attorney General is not the proper party to such proceedings.
They said that similarly, the contempt proceedings in the matter were instituted against the finance minister personally as the actual wrongdoer. “They are criminal in nature and by no means civil proceedings against the state,” the judgment read.
According to the ruling, they do not touch and concern civil rights and liabilities of the state and therefore the Attorney General could not have been the proper party against whom the matter should have been brought.
Consequently, the judges noted that Jordan, upon receipt of the letter from the Registrar, became obligated under section 14 of the Act while asserting that it was always the “individual” directed by statute and responsible for procuring payment of the judgment.
The judges said that though the judgment remains a liability of the state Jordan was personally responsible for performance of the act which would effect compliance by the state and his responsibility was strict.
“The finding of contempt related to his own unjustified default in breaching his statutory obligation. For this breach, he is subject to the coercive powers of the court,” the judges said.
Justice Morris-Ramlall noted from the judgment that Jordan had a duty towards the court in relation to procurement of payments of money judgments made against the state.
The breach of his statutory duty, she said, occurred while he was acting in his official capacity as Minister of Finance but he acted in excess of his lawful authority by refusing to perform that duty, while adding that his duty is personal and not one placed on the government as a whole.
Quoting from a case, she said, “Like the receiver, sequestrator or gaoler his failure to perform his personal statutory duty constitutes an interference with the course of justice.”
In the circumstances, the finding of contempt against Jordan in his personal capacity was upheld, and he was ordered to pay costs to Dipcon in the sum of $350,000.
Dipcon was represented by attorney Timothy Jonas.
While the Finance Minister was liable to be held in criminal contempt for non-payment, President Granger on July 8th 2019, invoking his power under Article 188(1) (b) of the Constitution, granted Jordan, both in his personal capacity and in his capacity as minister, “respite of the execution of the punishment until all appeals and remedies available to him and the state have been exhausted.”
Article 188 (1) (b) of the Constitution says that the president may “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.”
