Trinidad Cement Ltd and TCL Guyana Incorporated v The State of the Co-Operative Republic of Guyana Defendant

• Jurisdiction: Caribbean States
• Judge: Nelson, J.A.,Saunders, J.A.,Wit, J.A.,Hayton, J.A.
• Judgment Date: 14 October 2009
• Court: Caribbean Court of Justice
• Docket Number: CCJ Application No. OA 2 of 2009
• Date: 14 October 2009

Caribbean Court of Justice

Nelson, J.A.; Saunders, J.A.; Wit, J.A.; Hayton, J.A.

CCJ Application No. OA 2 of 2009

Trinidad Cement Limited and TCL Guyana Incorporated

and

The State of the Co-Operative Republic of Guyana Defendant

Appearances:

The claimants by Dr. C. Denbow, SC Attorney-at-law.

The State of Guyana, by Mr. Nareshwar Harnanan, Attorney-at-law.

Civil practice and procedure - Application for extension of time for compliance with order — Failure by defendant to make full disclosure of material facts — Application dismissed.

REASONS FOR DECISION

1 On August 20, 2009 this Court declared that since October 2006 the defendant, the Co-operative Republic of Guyana, had been in breach of the provisions of Article 82 of the Revised Treaty of Chaguaramas (“the RTC”) by failing to implement and maintain the Common External Tariff (“CET”). The Court ordered that within 28 days of the date of its order Guyana must implement and thereafter maintain the CET in respect of cement from non-CARICOM sources. This Court recognised that, notwithstanding a re-imposition of the CET, Guyana had the right under the RTC to seek approval for a suspension of the CET by application to the Council for Trade and Economic Development (“COTED”) or, during the interval between COTED meetings, to the Secretary-General, pursuant to Article 83(2) and (3) of the RTC. Thus the order was made “without prejudice” to that right. Both parties were given liberty to apply to the Court in respect of matters arising out of the mandatory order to implement and maintain the CET within 28 days.

2 The defendant by an application dated September 22, 2009 sought the following orders: (a) a stay of execution of the order of August 20, 2009 (b) alternatively, an extension of time for compliance with that order and/or a variation thereof.

3 In response the claimants, Trinidad Cement Limited and TCL Guyana Incorporated, filed a Reply which invited the Court to refuse to hear the defendant's application or to dismiss it on the ground that the defendant was in contempt of the Court's order. In the alternative, the claimants sought an order postponing the hearing of the defendant's application of September 22, 2009 until the hearing and determination of the claimants' application dated and filed on October 6, 2009 for orders declaring that the Honourable Attorney-General of Guyana was in contempt of court in failing “to implement and give effect” to the order of August 20, 2009 (hereinafter referred to as “the Order”).

4 The Court invited counsel for Guyana to respond to the objections of the claimants. Counsel for Guyana pointed out that Guyana had approached the Court on September 16, 2009, a day before the time for compliance had expired, by way of a motion. Upon being informed that the procedure adopted was not in accordance with the Caribbean Court of Justice (Original Jurisdiction) Rules, 2006 the application was withdrawn and replaced by the present application filed on September 23, 2009. The application was made pursuant to the “liberty to apply” clause.

5 Counsel for the claimants objected that Guyana had consistently defied all requests to re-impose the CET in accordance with its obligations under the RTC and followed that up with refusal to obey the Order.

6 While there is great force in the submission of counsel for the claimants, refusal to hear a party – even a party in contempt – or dismissal of a party's application without a...