Roald Nigel Adrian Henriques v Hon Shirley Tindall and Others

• Jurisdiction: Jamaica
• Judge: Harris JA,Dukharan JA,Hibbert JA (Ag)
• Judgment Date: 30 March 2012
• Neutral Citation: [2012] JMCA Civ 18
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 107/2010
• Date: 30 March 2012

Between

Roald Nigel Adrian Henriques

Appellant

and

Hon Shirley Tyndall, OJ

1st Respondent

and

Patrick Hylton

2nd Respondent

and

Omar Davies

3rd Respondent

Jamaica Redevelopment Foundation Inc

4th Respondent

and

Hon Justice Boyd Carey (Retired)

5th Respondent

and

Charles Ross

6th Respondent

and

Worrick Bogle

7th Respondent

and

Attorney General of Jamaica

8th Respondent

[2012] JMCA Civ 18

Before:

The Hon Mrs Justice Harris JA

The Hon Mr Justice Dukharan JA

The Hon Mr Justice Hibbert JA (Ag.)

SUPREME COURT CIVIL APPEAL NO 107/2010

JAMAICA

IN THE COURT OF APPEAL

JUDICIAL REVIEW - Prohibition - Certiorari - Declaration that 1st Defendant by virtue of his having been a delinquent borrower whose debt was acquired and handled by FINSAC is presumed to be affected by bias and is automatically disqualified from being a member and Chairman of the Commission - Whether counsel for the Commission is biased by virtue of being a member of the Board of an Intervened institution - Whether proceedings null and void

Allan Wood QC, Mrs Daniella Gentles-Silvera and Miguel Williams instructed by Livingston Alexander and Levy for the appellant

Mrs Nicole Foster-Pusey instructed by Michael Hylton and Associates for the 1 ^st respondent

Dave Garcia instructed by Michael Hylton and Associates for the 2 ^nd respondent

Michael Hylton QC and Kevin Powell instructed by Michael Hylton and Associates for the 3 ^rd respondent

Patrick Foster QC and Maurice Manning instructed by Nunes Scholefleld DeLeon & Co for the 4 ^th respondent

Dr Lloyd Barnett , Mrs Denise Kitson and Miss Sherese Gayle instructed by Grant Stewart Phillips & Co for the 5 ^th respondent

Paul Beswick and Miss Lisa White instructed by Director of State proceedings for the 6 ^th , 7 ^th and 8 ^th respondents

Harris JA

1 The appellant, by his appeal and the 1 ^st to 5 ^th respondents, by way of counter appeals, challenge a decision of the Full Court delivered on 2 September, 2010. The orders made by the Full Court were in the following terms:

‘1. An order of prohibition preventing the continuation of the Commission of Inquiry into the collapse of financial institutions in Jamaica in 1990's [sic] (hereinafter referred to as ‘the Commission’) as currently constituted with the 1 ^st Defendant a member and Chairman;

2. An order of certiorari quashing the decision of the 1 ^st 2 ^nd and 3 ^rd Defendants to continue with the hearings of the Commission.

3. An order of certiorari quashing the decision of the 1 ^st Defendant whereby he refused to recuse himself from the Commission.

4. A declaration that the 1 ^st Defendant by virtue of his having been a delinquent borrower whose debt was acquired and handled by FINSAC is presumed to be affected by bias and is automatically disqualified from being a member and Chairman of the Commission.

5. A declaration that counsel to the Commission by virtue of his, (a) having been a shareholder and a member of the Board of an intervened institution and (b) having been treated by FINSAC as a delinquent debtor is presumed to be affected by bias and is automatically disqualified from acting as counsel to the Commission.

6. The court refuses to declare the proceedings thus far to be null and void.’

2 On 29 July 2011 this court made the following order:

‘The appeal is allowed. The counter appeal of the 5 ^th respondent is dismissed. The counter appeal of the 1 ^st to 4th respondents is dismissed.’

The question of costs was reserved. A promise was made to reduce our reasons to writing. This obligation we now fulfil.

3 Sometime during the second half of the 1990s the failure of several financial institutions resulted in serious consequences for the financial sector. In an effort to salvage the sector, the then government incorporated four entities, namely: FINSAC Limited, FIS Limited, Refin Trust Limited and Recon Trust Limited. Their role, mainly, was to manage the fiscal process. The Financial Institutions Services Limited (FIS), by way of a vesting order, assumed several non performing loans from FINSAC. These loans were originally acquired by FINSAC from intervened institutions. Century National Bank and Jamaica Citizens Bank were among these intervened institutions. At the time of the acquisition by FIS, the 5 ^th respondent had an outstanding overdraft with Century National Bank. There is some dispute as to whether Bev Carey Associates (1985) Limited, a company (Bev Carey Associates) in which the 5 respondent and his wife were shareholders and directors, had outstanding debts with Jamaica Citizens Bank.

4 In October, 2008, a commission of enquiry was established. By instruments of appointment dated 24 October 2008 and 12 January 2009 respectively, the Governor General, in pursuance of the Commissions of Enquiry Act, nominated the 5 ^th , 6 ^th and 7 ^th respondents to conduct the inquiry. The terms of reference of that inquiry are as follows:

‘(i) To examine the circumstances that led to the collapse of several financial institutions in the 1990s with particular regard to:

(a) the extent to which these circumstances were directly influenced by domestic or external factors;

(b) Government's fiscal and monetary policies;

(c) the management practices and role of [sic] Board of Directors of the failed institutions;

(d) the performance of Government's regulatory functions.

(ii) To consider what actions, if any, could have been taken to avoid this occurrence and to evaluate the appropriateness of the actions which were taken by the authorities in the context of Jamaica's economic circumstances and in comparison to intervention by the State in other countries which have had similar experiences;

(iii) To review the operations of FINSAC in relation to the delinquent borrowers and to determine whether debtors were treated fairly and equally;

(iv) To review the probity and propriety in FINSAC's management, sale and/or disposal of assets relating to delinquent borrowers;

(v) To review the terms and conditions of the sale of non-performing loans to the Jamaica Redevelopment Foundation;

(vi) To review the practices of the Jamaica Redevelopment Foundation in the treatment of delinquent borrowers and, in particular, the management, sale and/or disposal of their assets;

(vii) To assess the long term impact of the collapse of these institutions on the economy and on the businesses and individuals whose loans were involved as well as the economic and social impact of the actions taken by the Government with regard to the savers, depositors and investors of the failed institutions?

(viii) To review the steps that have subsequently been taken and make recommendations as to what further steps should be taken to prevent a recurrence of such widespread collapse of financial institutions and the resulting hardships.’

5 At the material time, the 1 ^st respondent was the financial secretary, vice chairman and subsequently chairman of the board of directors of FINSAC Limited and FIS. The 2 ^nd respondent was the managing director for FINSAC and FIS. The 3 ^rd respondent was the Minister of Finance and Planning having the responsibility for the financial sector. The 4 ^th respondent was, for a substantial part of the applicable period, the managing director of National Commercial Bank which acquired, by way of purchase, several debts from FINSAC.

6 The Commissioners commenced sitting on 22 September 2009. A letter dated 31 December 2009, under the hand of the 1 ^st to 4 ^th respondents' attorneys-at-law, was transmitted to the secretary of the commission, in which they expressed some disquiet as to the 5 ^th respondent's eligibility to continue participation in the proceedings. No written response was received. At a sitting of the commission on 19 January 2010, the 5 ^m respondent acknowledged receipt of the letter of 31 December and indicated as follows:

‘The Solicitor General has advised that there is no factual substratum on which one can arguably base a claim on actual or perceived bias, or that the matters, the subject of the Enquiry cannot be heard in accordance with the doctrine of fairness. We will now proceed.’

7 Following this, the 1 ^st to 4 ^th respondents/attorneys-at-law endeavoured to make submissions highlighting certain concerns which they had, but the 5 ^th respondent refused to hear them. The disappointment in not being afforded an opportunity to express their unease, led the 2 ^nd respondent's attorney-at-law to send the following letter to the secretary of the commission on 20 January 2010:

‘Re: Commission of Enquiry re Financial Institutions in Jamaica

I refer to my letter of January 19, 2010, and the events earlier that day.

On January 19, 2010, the Commission indicated a decision in respect of the issues that had been raised concerning the Chairman. Hon. Michael Hylton, O.J., Q.C. invited the Commission to reconsider the position, and the invitation was declined. However, the Chairman later indicated that an opportunity could at some time be provided for counsel to be heard on the issues. These are differing positions, and I should be grateful if the Commission would clarify whether counsel may indeed be heard soon on the matter.

Given the nature of the issues raised, they ought to be addressed before the sittings continue. As the Commission is scheduled to sit tomorrow, January 21, 2010, commencing at 9:30 a.m., I write to request that if the Commission is willing to hear counsel on the issues, we be heard at that time, I am copying Mr Hylton, Mrs Minott- Phillips and Mrs Foster-Pusey, who join me in this request.’

8 No response to the letter was received. The inquiry continued. The 1 ^st to 4 ^th respondents, still being dissatisfied with the state of affairs, on 16 February 2010, sought and obtained leave to apply for...