…tells court Dipcon matter caught gov’t unaware, was outsourced by PPP

JUSTICE of Appeal, Dawn Gregory, will next week Wednesday hear an application for a stay in the order against Winston Jordan in his private capacity to pay some US$2.2M to Trinidad construction company, Dipcon, for monies owed by the Guyana Government.

The Attorney General Chambers has pointed out that the order handed down by High Court Judge, Priya Sewnarine Beharry, was erroneous and illegal as it named Jordan in his private capacity and not as the Minister of Finance. The chambers has since appealed the order, but has also moved to the court for a stay of its execution. Justice Sewnarine-Beharry had ordered Jordan to pay the money before July 8, 2019 or face imprisonment. The hearing for the stay comes up at 14:00hrs at the Court of Appeal, High Street, Georgetown.

Sewnarine-Beharry made the order on June 24, 2019, in the High Court which stemmed from a contempt motion filed on behalf of the company by Attorney-at-law, Timothy Jonas, in May of this year. The award to the company was first handed down by Justice of Appeal, Rishi Persaud, on October 21, 2015, and, while the government has challenged the award, Jonas moved to the court with contempt proceedings against Jordan. Solicitor General, Nigel Hawke, and his Deputy, Deborah Kumar, are representing Jordan in the matter. The affidavit in support of the summons for the stay of execution was sworn to by Deputy Financial Secretary of the Ministry of Finance, Dale Browne.

OUTSOURCING
In his affidavit, Browne reminded that the current government, in the first place, was not aware that the matter was outsourced to a private attorney-at-law and that judgement was granted and when this was discovered, the government sought to file leave to appeal out of time to the Court of Appeal but the application was refused by the Court of Appeal. Browne detailed that an application filed in the Caribbean Court of Justice was dismissed for failure to comply with procedural requirements under the rules and no extension of time sought and, as a consequence, the matter was never heard on its merits.

“I am informed by my attorneys-at-law and do verily believe that in the matter of Dipcon Engineering Services Limited – v – The Attorney General of Guyana and Minister of Finance, Action No. 2017- HC-DEM-CIV-FDA-1942, the Chief Justice (ag.) Roxane George ordered on the 18th day of December, 2017 that a writ or order nisi of mandamus granted directing the minister to pay the judgement of Justice Rishi Persaud. On the 12th November 2018 the Honourable Chief Justice (ag) Roxane George on an application to vary filed by the Appellant/Applicant refused to recall the order nisi that was made absolute on the March 1, 2018.”

On the same November 12, 2018 Chief Justice (ag) Roxane George ordered and directed that the Minister of Finance pay the aforesaid judgement sum of Rishi Persaud on before the January 15, 2019.

On December 3, 2018, the State filed an appeal to the Court of Appeal in Action 2017-HC-DEM-CIV-FDA-1942: Dipcon Engineering Services Limited v. Attorney General and Minister of Finance and on the 14th day of December 2018, the State filed an application for stay of the Order of the Honourable Chief Justice (ag) Madam Justice Roxane George before a single judge in chambers at the Court of Appeal.

Browne noted that the application for stay of execution was heard on December 19, 2018 before Her Honour Madam Justice of Appeal, Dawn Gregory, who ruled that the summons for stay of execution be dismissed on the basis of jurisdiction. The State, being dissatisfied with the ruling of Her Honour Madam Justice Dawn Gregory, filed a motion on January 29, 2019, seeking a discharge and/or variation of the ruling of the single judge in accordance with Order II Rule 16 (2) of the Court of Appeal Rules Chapter 3:01 of the Laws of Guyana.
“I am informed by my attorneys-at-law and do verily believe that no date has been fixed for hearing because the Full Bench of the Court of Appeal has not been constituted since there is no quorum of judges and this has delayed the hearing of the applications by the State. I am further informed by my attorneys-at-law and do verily believe that the Court of Appeal’s failure to hear the motion expeditiously is tantamount to a refusal of the Stay of Execution and has exposed the State to have the judgment being enforced against it before all the Appellate remedies can be exhausted.”

PRIVATE CAPACITY
Browne noted that on April 16, 2019 the respondent/applicant instituted contempt proceedings not against the Minister of Finance but against Winston Jordan in his personal capacity in 2019 – HC-DEM -CIV-FDA- 629. I attach hereto a copy of the Fixed Date Application as Exhibit “DB5”. “In the result on the June 24, 2019, Justice Priya Beharry erroneously purported to exercise jurisdiction in contempt proceeding brought against the Minister of Finance not as Minister, but in his private capacity as Winston Jordan in Fixed Date Application 2019-HC-DEM- CIV-FDA-629.”

Browne contends that Justice Sewnarine-Beharry erred and misdirected herself in law when she failed to appreciate that contempt proceedings were coercive in nature and that such an order could not be made against an officer of the State but in particular against the Winston Jordan privately when no act was done by Winston Jordan in his private and personal capacity for contempt to prevail against him.

According to Browne, the respondent/applicant concealed the full facts from the High Court that the substantive appeal and the application for stay are both pending before the Court of Appeal and that up to present no date has been fixed for hearing.

Attorney General Basil Williams told the Guyana Chronicle following the order by the court earlier this week that: “The ruling was erroneous and the judge committed a specific illegality when she made an order against the minister in his private capacity and not in his official capacity as Minister of Finance, thus robbing him of the protection he is entitled to under Section 14 of the State Liability and Proceedings Act Chapter 6:05 wherein no coercive order can be made against him.”

Williams told the Guyana Chronicle that he had raised the issue during the hearing in the matter on Monday morning. He believes that the applicant had deliberately filed the contempt motion proceedings against Jordan in his private capacity in an attempt to rob him of the privileges he enjoys under the act. “This is an abuse and so we will be filing a notice of appeal today,” Williams stated.