T&T companies suing Gov’t

–for money PPP refused to pay

NH International Limited in collaboration with Emile Elias and Company Limited, two Trinidadian companies has yet again approached the local judiciary to obtain redress following the Government of Guyana’s failure to pay over US$8, 354, 634.41 along with G$1,420, 497, 925.53, plus costs in the sum of US$104, 461 for works done since 1995.

The entity has made an application for an order to be directed to the Minister of Finance to show cause why a Writ or Order of Mandamus should not be issued pursuant to the provisions of Section 14 of the State Liability and Proceedings Act, Chapter 6:05, compelling him to perform his duty and by warrant under his hand, direct that the amount due under the award of David R. Haigh Q.C on August 15, 2003 be paid to it.

“Demand has been made on the Minister of Finance pursuant to Section 14 of the State Liability and Proceedings Act, Cap. 6:05 for payment of the said award without effect,” the applicant’s application stated.

According to the facts of the case, on January 18, 1995, NH International in joint venture with Emile Elias and Company Limited (NH/EE), the contractors, entered into a contract with the Government of Guyana for the execution of works known as the Lot 1 Georgetown to Timehri Main Road Rehabilitation Project for an initial contract price of $673, 015, 420.78.

During the execution of the said works disputes arose between NH/EE the contractor and the government on several issues of payment, extensions of time and additional works carried out by the contractor.
On April 16, 1998, NH/EE demanded payment from the Government in the sum of $517, 204, 170 being an amount certified by the engineer to be due and payable to NH/EE on the final certificate No. 30. The Government at the time, the People’s Progressive Party (PPP), did not make the payment.

The applicant then applied to the International Centre for the Settlement of Disputes (ICSD) to appoint an adjudicator to succeed ROHACEK who was appointed by the Government and had resigned.
On January 15, 2002, ICSD appointed David Haigh, Q.C as the sole adjudicator pursuant to the contract and in August 2003, he made his final award in favour of NH/EE which was amended by him on August 25, 2003.

That award was US$3,861, 498.90, and should be paid over by the Government of Guyana to the entity in the proportion of 22 per cent Guyana dollars and 78 per cent in US dollars, using the agreed exchange rate of G$131.66766 for US$1.

OBJECTED
The Government of Guyana, represented by Dr Fenton Ramsahoye, had objected to the appointment of Haigh Q.C. and his jurisdiction to hear and determine the dispute.
The entire amount now due and payable by the Government under the said award, together with interest as at August 31, 2017, is US$38, 354, 634.41 and G$1, 420, 497, 925.53 plus costs in the sum of US$104, 461 as calculated for later payment, in accordance with the finding of the arbitrator.

In his judgment, Haigh, Q.C said, “I have regretted that the Government of Guyana after the initial involvement on the jurisdictional issue chose not to participate actively in this adjudication process. It would have made my work easier if they had acted otherwise. I have attempted, nevertheless, whenever I thought it appropriate or just to do so, to reflect the positions taken either by the engineer of [the] GoG. I would commend NH/EE and Mr Peter Morris, in particular for their diligence and many courtesies. Their efforts and fairness greatly assisted me.”

Meanwhile, on February 19, 2007 on the application of NH/EE, Justice Jainaryan Singh (ag) granted leave to NH/EE to enforce in Guyana the said adjudication award made on August 15, 2003, for the aforementioned sum.
“The applicants have made several demands on the Government of Guyana through the Attorney General of Guyana and the Ministry of Finance but the Government of Guyana has refused, neglected and failed to pay the said award or any part thereof to the applicants,” the application by NH/EE through the Chambers of Rex McKay stated.

APPEAL
The Government of Guyana had appealed the decision of the High Court Judge, noting that Justice Singh erred in law in ruling that NH/EE be granted leave to enforce the award but that appeal was dismissed on June 21, 2013. An order of the Caribbean Court of Justice made on April 21, 2015 also dismissed an appeal filed by the Government of Guyana against the decision of the Court of Appeal.

In the appellate proceedings, by way of a preliminary objection, NH International Limited claimed that the Court of Appeal did not have jurisdiction to hear the appeal. The court having agreed with the company and the Attorney General appealed to the Caribbean Court of Justice (CCJ).

By way of an Originating Summons, the company had applied to a Judge in Chambers for leave to enforce the adjudication award.
The Court considered whether, in the circumstances, the Attorney General (AG) has an unfettered right of appeal to the Court of Appeal. The critical issue was whether the proceedings before the judge should be considered proceedings “in Chambers”.

The CCJ pointed out that the AG had been content to allow the matter to be dealt with in Chambers upon an Originating Summons as distinct from an Originating Motion. Consequently, it was too late for a court, in effect, to frustrate the proceedings on the technical submissions now being made by the Attorney General.

“More importantly, the Court reasoned that the Arbitration Act does not stipulate any particular procedure for enforcement of an award. As a result, the Court found that nothing precluded a Judge from hearing an application for leave to enforce an arbitral award in Chambers and that the relevant rules did not provide for a direct appeal from that hearing to the Court of Appeal,” an executive summary of the CCJ ruling said.

The Court also expressed disappointment in the length of time it took for a straightforward case to be resolved. It held that the preliminary objection must be upheld and the appeal dismissed. Justice Saunders noted that it was sad, the treatment of the matter which conflicted with the court’s duty to promote and support arbitration.

Meanwhile, as a result of Government’s default to pay, NH/EE has been advised that it is not competent in law for it to levy execution against the assets of the Government and should proceed by the legal procedure for payment, as set out in Section 14 of the State Liability Proceedings Act for statutory Mandamus directed to the Ministry of Finance.
On August 10, 2015, the Chambers of Rex McKay wrote to the Registrar of the Supreme Court (ag) Rasheed Mohamed requesting him to transmit to the Minister of Finance copies of the adjudication award of Haigh Q.C. made in favour of NH/EE.

“That the predecessor Government of Guyana for 12 years up to the time they were voted out of Government in 2015, had showed little or no respect for the sanctity of the law of contract and delayed the payment of the said award by instituting unmeritorious appeals with the sole and predominant purpose unlawfully and unconstitutionally to deprive the applicant of their just and lawful award,” the applicants stated.

In his affidavit, Emile Elias, the Executive Chairman of NH International and Emile Elias and Company Limited, both Trinidadian companies said on December 13, 2016 he wrote to the current AG Basil Williams S.C. offering without prejudice a settlement proposal of the said adjudication award made in favour of his company. He also wrote President Granger this year, on June 6 requesting an opportunity to discuss with him a completely fresh approach towards an amicable settlement of the said award.

In response, the President had acknowledged receipt of the missive and said he was awaiting advice from the AG and Minister of Finance on the matter. The Executive Chairman said too that he believes the move to deny and deprive NH/EE the “fruits of our judgment for more than 14 years, is a denial of our constitutional rights which runs counter to the Court’s constitutional decision-making powers.

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