Appeal Court to rule on EMBD $m case on June 30THE future of the Estate Management Business Development (EMBD)’s multi-million-dollar cartel claim trial against five contractors for alleged bid-rigging, bribery and collusion just before the 2015 general election will be known on June 30.
On May 26, Justices of Appeal Nolan Bereaux, Mark Mohammed and Maria Wilson reserved their decision on an appeal by four of the contractors against a judge’s preliminary ruling in August 2020, which gave the EMBD the green light to pursue its claim.
In August 2020, Justice James Aboud dismissed preliminary applications of the five contractors – TN Ramnauth, Namalco, Kallco, Motilal Ramhit and Co and Fides Ltd – which sought to have the EMBD detail the allegations against them so that they could fairly mount their defence, or strike out the claims.
Justice Aboud also had before him EMBD’s lawsuit against Oropouche East MP Dr Roodal Moonilal, as well as a consolidated case in which three companies sued EMBD over unpaid contracts for upgrading and rehabilitating access roads on Caroni lands and two contracts for rehabilitation works, totalling over $300 million.
The EMBD claims the work done was defective and overpriced. In a counter-suit, the state entity is seeking to recoup money paid to the contractors.
The EMBD’s claim against Moonilal also includes former EMBD chief executive Gary Parmassar; former divisional manager at EMBD Madhoo Balroop; Andrew Walker; and companies Fides Ltd, Namalco Construction and LCB Contractors.
However, in its appeal, lead attorney for the contractors who appealed Aboud’s ruling, Ramesh Lawrence Maharaj, SC, argued that the judge was wrong to dismiss his clients’ application to strike out the EMBD’s claim on the two contracts since the pleaded case lacked particulars of the allegations.
The contractors had also asked for more details to enable them to properly defend themselves.
In his ruling, Aboud found the allegations against the contractors were “sufficiently pleaded,” and also held that there was compelling evidence of collusion in what the EMBD advanced in its 1,556-plus-page statement of case. He said the contractors “ought to fully understand” the allegations to allow them to plead their defences.
In June 2021, the procedural appeal was heard by two Appeal Court judges, however, they were unable to arrive at a unanimous decision so the matter was referred to the full three-member panel of judges.
Maharaj argued that Aboud erred in law by not striking out the claim of alleged unlawful means conspiracy and by not finding that the EMBD’s case did not provide adequate information about the allegations and evidence to support them. He also said the EMBD should not be allowed to rely on hearsay evidence.
Maharaj said a claim that did not disclose a cause of action should be struck out as an abuse of process. Maharaj further contended that Aboud did find there was a deficiency in the pleaded case but disregarded it, instead giving the EMBD an opportunity to cure any deficiency at the case-management stage.
However, he said since the allegations related to actions in 2014/2015, nine years have elapsed which is outside the four-year limitation period for bringing any action.
“The appellants are forced to defend a claim that is not actionable and one which is outside the statutory limits.”
In his response to the appeal, EMBD’s King’s Counsel David Phillips admitted the EMBD’s case was not “straightforward."
He said Aboud correctly exercised his discretion and it was not for the Court of Appeal to reconsider the issue on its own. He also said further information could be provided during disclosure when witness statements are filed in preparation for trial.
"If we were three weeks away from the trial, I would have understood his concerns," he said.
"We are not at the conclusion of pleadings. We are at the start," he added.
Phillips admitted that his client was allowed a degree of latitude by the judge as the claim involved a complex case with allegations of fraud.
“When you are dealing with a case of fraud you are given more latitude," he said, admitting that the statement of case was mainly primary facts since the nature of the alleged acts was concealed and the judge could draw inferences when comparing what allegedly transpired to normal commercial practises.
As he delved into some of the evidence in the EMBD’s claim, Phillips claimed the contractors claimed $400 million for work that should have cost half the amount.
Also during the hearing, Phillips informed the judges that those parties which did not appeal Aboud’s ruling – everyone other than Ramhit, Fides and Kallco – had agreed to file their defences 45 days after the court rules based on its findings.
Aboud has since been made an Appeal Court judge and the case has been reassigned to Justice Frank Seepersad who has to await the outcome of the appeal to determine if the claim proceeds.
https://newsday.co.tt/2023/05/27/appeal ... n-june-30/
