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A caution has been given to judges against engaging in “judicial activism” by a judge of the Court of Appeal.

The warning was given as three appellate court judges upheld the appeal of former government minister Jack Warner who, in 2018, was ordered to repay an alleged $1.5 million “loan” to UNC financier Krishna Lalla, and Real Time Systems Ltd.

Real Time – the company from which Lalla got the money – filed a lawsuit against the former UNC chairman trading as Dr Joao Havelange Centre of Excellence, Renraw Investments, CCAM and Company. The lawsuit sought to retrieve the “loan” given to Warner who was also a former FIFA vice president, before the general election campaign of 2007. Warner denied it was a loan and said several businesses were selected to receive financing from Lalla to assist the party in the 2007 general election.

In May 2018, Seepersad ordered Warner to repay the money, but the former FIFA vice president appealed.

On Friday, the three judges who sat on Warner’s appeal all agreed that Justice Frank Seepersad made material errors in his assessment of the evidence in coming to the conclusion that the money was advanced to Warner as a loan .

They allowed his appeal and set aside Seepersad’s order, including the repayment order.

However, two judges – Justices Gregory Smith and Charmaine Pemberton – found that certain statements made by Seepersad in his judgment, as it related to campaign financing, which were complained of by Warner, “in their entirety would lead to a real possibility” that the “trial judge’s personal views on the morality or ethics behind unregulated campaign financing coloured his views against a public official who accepted unregulated campaign funding.”

Smith and Pemberton said even if the appeal by Warner and his companies was not allowed on the main complaint, it would have been remitted for rehearing before another judge because of apparent bias.

Justice Judith Jones, however, did not agree with her colleagues on the apparent bias point, saying Warner was required to show more than a mere suspicion of bias on the part of the judge.

However, she said, “There is no doubt that the judge’s comments were unnecessary to what he was called upon to determine and added nothing to the conclusions he arrived at.

“The statements were made at the end of the judgement and are a prime example of what has come to be known as judicial activism,” she said, reminding that “judges have a duty to hear cases presented before them impartially and without prejudice.

“In order to discharge that duty, a judge should refrain from language or comments that may result in a reasonable apprehension that they may not be able to impartially adjudicate in that area of the law in the future.”

On whether Warner had established that the five cheques he received from Lalla were donations for campaign financing, Smith said the former politician had “established his case” that they were, and were not a loan to assist with liquidity problems. Warner’s lawsuit centred on a series of payments made to his companies between October and November 2007.

In his ruling, Seepersad said based on the evidence, on a balance of probabilities, “it was more likely than not,” Lalla advanced to Warner significant sums as part of a loan arrangement.

In his judgment, Seepersad said that all the evidence including e-mail correspondence between Lalla and Warner suggested the money was transferred as part of a loan arrangement.

“On a balance of probabilities, this court is of the view that Mr Warner may have wanted to portray an image to the UNC, that he was its main financier but to do so, he sourced finance from Mr Lalla, on the basis and expectation that the sums advanced, would be repaid upon his receipt of an anticipated payment of a US$10 million Fifa payment, due in February 2008,” Seepersad said in his 2018 ruling.

As part of his commentary in the judgment, Seepersad had said he was troubled by some of the contentions advanced in the case as it related to campaign financing.

“Money advanced to fund elections has for far too long played a central and dominant role in this Republic’s politics. In the absence of regulations, financiers can legitimately purchase goodwill and exercise undue influence over politicians and political parties.

“The absence of campaign finance regulations has led to a culture of kickbacks and corruption and although within the recent past some progress has been made by virtue of the enactment of procurement legislation and the appointment of the procurement board, the dire need for a proper regulatory framework has to be prioritised and election campaign finance reform should be effected as a matter of urgency,” the judge said.

Warner was represented by John Jeremie, SC, Keith Scotland, Asha Watkins-Montserin, and Jacqueline Chang. Real Time was represented by Neal Bisnath and Lydia Mendonca.