By Prior Beharry
THE Court of Appeal dismisses an interlocutory appeal brought by five contractors against the Estate Management & Business Development Company (EMBD) on Tuesday.
The contractors had filed the appeal against the decision of then High Court judge James Aboud who refused to grant the contractors’ application that EMBD’s claim against them should be dismissed because it was not properly pleaded or that the Court should order EMBD to provide further particulars before they can file their defences.
EMBD has brought a claim against these contractors – TN Ramnauth & Company, Taradath Ramnauth, Kallco Limited, Motilal Ramhit & Sons Contracting and Fides Limited – along with another contractor Namalco Construction Services, then EMBD line minister Roodal Moonilal, its then CEO Gary Parmassar and two other employees Madho Balroop and Andrew Walker.
EMBD claims that with the aid of these EMBD’s employees the contractors entered into a “cartel” arrangement whereby they conspired to obtain and did obtain 12 contracts at inflated amounts leading up to the 2015 general elections. EMBD is claiming over $200 million. The contracts were for paving former Caroni (1975) Limited roads and infrastructure works at two residential developments, Exchange 111 and Picton 111.
The ruling, delivered by Justices of Appeal Peter Rajkumar, Charmaine Pemberton, and Vasheist Kokaram, means that these contractors must file their defences in the substantive matter at the High Court. The Court of Appeal ordered that the defences are to be filed by 20 March 2024.
In August 2020, the High Court dismissed the contractors’ applications that sought details of the allegations made by EMBD to mount their defences or strike out the claims against them. When the applications were dismissed, they appealed to the Court of Appeal. This interlocutory appeal put the case on hold until Tuesday’s ruling.
The Court of Appeal, initially comprising Justice Mira Dean-Armorer and Justice Ronnie Boodoosingh, first heard the appeal but had to refer it to be heard afresh by another panel in early 2021 since they could not come to a unanimous decision. The matter then came up before Justice Nolan Bereaux, Mark Mohammed and Maria Wilson, but it had to be abandoned after Justice Wilson recused herself because her brother, Fulton Wilson, was a member of the board of directors of EMBD when the company decided to take legal action against the contractors.
The final appeal panel, comprising Justices Rajkumar, Pemberton and Kokaram, ruled on Tuesday after hearing arguments in December last year and reserving their decision.
In a release shortly after the Appeal Court’s ruling Attorney General Reginald Armour, SC, said that the contractors argued that EMBD’s case was deficiently pleaded, lacking sufficient detail. EMBD’s case accuses the contractors of engaging in acts of unlawful means conspiracy, dishonest assistance, and knowing receipt, particularly involving bid-rigging and corruption in the tender, award, and administration of 12 contracts between May and August 2015, he said.
The appellate judges found that EMBD adequately pleaded its case, allowing the contractors to file a defense in relation to all 12 contracts. The contractors had contested that EMBD’s counterclaim should be struck out or that further particulars be provided, especially regarding the Exchange 111 and Picton 111 contracts.
The appeal court said that while EMBD had not quantified its losses for those contracts, it had identified the heads of damage – inflated prices, over-certification of works, and deficient and omitted works – and therefore the contractors had enough facts to file their defences.
EMBD was represented by David Phillips, KC, Jason Mootoo, SC, Tamara Toolsie and instructed by Savitri Sookraj-Beharry of Pollonais Blanc de la Bastide & Jacelon. The contractors’ team was led by Ramesh Lawrence Maharaj, SC, Jagdeo Singh, Kiel Taklalsingh, Jamie Amanda Maharaj and instructed by Karina Singh of Fortis Chambers.
The matter will now go to Justice Frank Seepersad in the High Court following the Court of Appeal’s decision.
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