After losing his bid to appeal the US$2.2 million awarded to Trinidad road construction company Dipcon, which the government of Guyana now has to pay, Attorney General (AG) Basil Williams SC continues to maintain that there was no evidence of the file containing the judgement in his Chambers after he took office in May, 2015 and that the Special Organised Crime Unit (SOCU) will investigate what happened.
This was one of the grounds on which the AG was attempting to appeal the award and which the Caribbean Court of Justice (CCJ) said was not an excuse for failing to ask the Guyana Court of appeal for an extension to appeal, and thereafter asking for special leave to appeal to the regional court.
Williams on Thursday said he was confused as to why the CCJ would not recognise that the matter, which involved the interest of the public, “concerning funds from the IDB [Inter-American Development Bank],” presented “triable issues.”
According to Williams, even if the appellant fails to establish good and substantial reasons for being out-of-time, once the case is arguable and has merits, then the court is enjoined to look at it.
If this were done, the AG argued that the court would have seen that Dipcon was not entitled to the claim, as it is only the IDB which could have approved the “escalations provisions.
The funds, he said could only have been made payable with the consent of the IDB. He said that Dipcon’s pleadings showed that it received more money than the contractual sum.
On his claim of not knowing about the case after he assumed office, Williams was asked what prevented him from searching the electronic records. To this, he promptly exclaimed, “For what? To search where?”
He said that he took over the office of Attorney General and found that there was a “bad system” of record keeping, which his Chambers are now in the process of fixing.
He said that they are currently working on having an e-filing system, which would enable them to account for all files, but stressed that he inherited the “bad system.”
Williams said that the government is serious about the matter and revealed that it will be investigated by SOCU.
He said the government is of the view that no lawyer representing the state should be allowed to conduct himself/herself in a manner amounting to malfeasance, where they argue “for the other side, instead of for the state.”
The AG noted that $400 million—the local equivalent of the award—is a lot of money, and SOCU will conduct its investigations and the situation will be dealt with.
After being denied the request by the Court of Appeal to appeal the 2015 judgement awarded to Dipcon by then High Court Judge, Justice Rishi Persaud, the AG tried appealing the matter to the CCJ.
His appeal was against the Court of Appeal’s refusal to extend time for appealing after more than six months had passed since Justice Persaud’s judgment.
The regional court on Wednesday, however, among other things, ruled that Williams, [the appellant], failed to file an application to its court for special leave to appeal, pursuant to section 8 of the CCJ Act.
As a result, the court ruled that Justice Persaud’s October 21, 2015 judgment to Dipcon, for road and infrastructural works done under the former administration, remains intact. In early February, 2009, Dipcon Engineering, took the then PPP/C government to court, seeking to recover sums it said it was owed along with all other costs associated with the road construction and infrastructural works done in the Mahaica/Rosignol area.
‘Solely responsible’
Reacting to the judgement, former AG Anil Nandlall, who demitted office shortly after the APNU+AFC won the May 11, 2015 general and regional elections, stressed that Williams had already been appointed almost six months before the judgement was made.
Nandlall, therefore, questioned the reason why no appeal was filed against this judgment within the required six-week period prescribed by the law.
Among Williams’ reasons for failing to appeal in time, was that following a change in government in May, 2015, he was unaware of the existence of the pending case, and so was anyone else within the Attorney General’s or Solicitor General’s offices.
He said that he had only become aware of the judgement in January of 2016.
Noting that this was four months after the judgment was granted, and 11 months after he assumed office, Nandlall said that AG still blamed him for his ignorance of this judgment.
The former AG said that even after learning of Justice Persaud’s ruling, Williams took another few weeks before filing for an extension of time to appeal, which was done only in February of 2016.
Nandlall advanced that the matter reached to the CCJ because of Williams’ failure to provide “good and substantial reasons” to the Court of Appeal for an extension of time to appeal and to persuade the court that his intended appeal had prospects of success.
“As a result, the Court of Appeal refused to grant an extension of time,” Nandlall declared.
According to Nandlall, he was blamed for the High Court aspect of the matter, while retired acting Chancellor Carl Singh, was blamed for the Court of Appeal aspect “of a debacle for which the Attorney General was solely responsible.”
Nandlall said that given the CCJ ruling, it is yet to be seen upon whom Williams “will now cast blame,” while noting that taxpayers are now left pay the judgment of over two US$2 million.
Delivering Wednesday’s ruling, President of the CCJ Sir Dennis Byron said that while the state was granted leave to appeal before it by the Court of Appeal “as of right,” the appeal did not fall, as it should, within section 6(a) of the CCJ Act.
That section provides, “Where the matter in dispute on appeal is above a certain value an appellant has the right to appeal; it does not require the appellant to obtain permission.” Sir Dennis, however, noted that what the state was attempting to appeal was solely a procedural issue—that is, whether it should be granted an extension of time within which to appeal.
He said the situation, therefore, is that the Attorney General, had not filed an application to the CCJ for special leave to appeal, pursuant to section 8 of the CCJ Act.
Sir Dennis had said it was more than a curiosity that, while appreciating the ability of the court to grant special leave to prevent a miscarriage of justice, it failed to file an application for special leave.
The CCJ head had emphasised that while the court may be minded, “in a proper case,” to grant an extension of time to comply with the rules or excuse delay, it does so to avert a clear miscarriage of justice, but he noted that litigants are not free to ignore time limits and then seek refuge behind the “overriding objective.”
