-affidavit for CCJ appeal says AG was unaware of judgment in good time
Attorney General (AG) Basil Williams is seeking leave from the Guyana Court of Appeal (GCA) to approach the Caribbean Court of Justice (CCJ) in a case where the state is fighting a US$2.2m judgment in favour of Trinidad road construction company, Dipcon.
The case will raise questions about continuity between governments and the records system at the AG’s Chambers as an affidavit filed in support of Williams’ application to the GCA says he was unaware of the award against the state within the timeframe permitted for an appeal.
Williams acceded to office in May of 2015 and on October 21, 2015, Justice Rishi Persaud passed judgment in favour of Dipcon in a case pertaining to the MahaicaRosignol road project. In an affidavit in support of Williams’ application for leave to appeal to the CCJ, Senior Legal Adviser at the AG’s Chambers Judy Stuart averred that Williams only became aware of the judgment against the state in January of 2016.
In her affidavit, Stuart said that during the budget debate in February, 2016, Williams further learnt of the award from Leader of the Opposition Bharrat Jagdeo. Stuart deposed that upon becoming aware of the order, Williams conducted an investigation and learnt that the state’s case against Dipcon had been handed over by then Attorney General Anil Nandlall to private lawyer Roysdale Forde.
Stuart, in her affidavit, said that Forde supplied Williams with a copy of the proceeding in March, 2016, and Forde further stated that no appeal had been filed on behalf of the AG. Stuart stated that as a consequence, a motion with an affidavit in support was filed on May 12th, 2016 on behalf of the AG with the GCA seeking an extension of time within which to file a notice of appeal out of time against Justice Persaud’s judgment.
According to Stuart’s affidavit, on January 18th, 2017, the Full Bench of the GCA refused the order sought by Williams. As a result, Williams is seeking leave to appeal the GCA decision pursuant to section 6(a) and 7(a) of the Caribbean Court of Justice Act, Act No. 16 of 2004. The AG is also applying for an order for the stay of execution of Justice Persaud’s judgment pending the determination of the appeal.
In her affidavit, Stuart said that Williams first became aware of the judgment in January 2016 when an attorney at law laid over a court order for the payment of $400m with the Ministry of Finance. She further swore that the Minister of Finance did not furnish the AG with details on the judgment, name of the attorney of law or the parties to the litigation that generated the court order.
She said that she has been advised by her attorneys at law that the application to the GCA for leave to appeal to the CCJ ought to be granted in light of the grave issues of public interest.
“These issues include the economic effect of this judgment on the Cooperative Republic of Guyana and more specifically in relation to the State’s abilities to engage international donor agencies,” Stuart stated.
She added that she was advised that the AG assumed office in May, 2015 and as a consequence required some time to determine what matters were in Chambers and their status. She said that Williams will contend that as a result of the file being assigned to private counsel and the change in personnel in the post of Attorney General “there was unavoidable delay in making the application for extension of time.”
In his judgment, Justice Persaud had ordered the government to pay Dipcon Engineering, US$665, 032.17 as payment owing for road building and construction works.
Justice Persaud also ordered that the government pay Dipcon the sum of US$1,563,368.50 for increased costs it incurred for those works, together with interest on both amounts, at a rate of 6% per annum from February 10th 2009, to October 21st, 2015 and thereafter at the rate of 4% per annum until fully paid.
Additionally, Justice Persaud ordered that the government pay the engineering company, $1.2M in costs. Justice Persaud also ordered a stay of execution for six weeks.
In early February, 2009, Dipcon took the government to court, seeking to recover the sums it said were owing, along with all other costs, such as the court saw fit to impose.
According to Stuart’s affidavit, the AG who is named the applicant, and Dipcon, the respondent, entered into written agreement on March 5th, 2003, for the latter to execute specified road construction and infrastructural works in the Mahaica/Rosignol area.
According to Stuart, in the terms of the agreement, a lump sum payment of US$20,258,664.22 was to be paid to Dipcon for the works; and that a reasonable sum was to be agreed between the parties to compensate Dipcon for increases in its costs for performing the said works, resulting from general inflation conditions during the course of construction.
Williams details in his affidavit that it was a term of the agreement that the works be rendered by Dipcon over an extended period, and that the lump sum be paid by the government to the engineering company in monthly installments during the course of construction, after receiving invoice for
payments from Dipcon, for work performed during the preceding month on an estimated pro-rata basis, and that the company would be paid the full balance of the said lump sum upon completion of the works.
In accordance with the agreement, Williams said that Dipcon executed the works and invoiced the government in respect of the US$20,258,664.22, and the company was paid US19,593,632.05 being the balance of the said lump sum payment due owing and payable by the government.
There was no mention in Stuart’s affidavit about the sum to be agreed between the two sides for general inflation.
In September of 2015, a month before Justice Persaud’s judgment, former President Jagdeo had stated that he had offered help to President David Granger over ongoing court cases to mitigate any liability to the state.
“… We don’t want the government to lose those … cases based on bad legal representations because it will cost the treasury billions of dollars and us as taxpayers, people of this country,” he said of his first meeting with President Granger and members of his cabinet. There appeared to be no progress in this offer after this.