Judges dismiss contractors' $400m EMBD challenge – Face the court

FACE the court.

This is the view of Attorney General Reginald Armour, SC, as he commented on the Appeal Court throwing out on Tuesday, a case by several contracting companies which sought to have the $400 million cartel claim filed against them by the Estate Management Business Development Company (EMBD) dismissed.

He said the ruling means the contracting companies must now defend themselves in the High Court.

The case has been ordered to continue after the Court of Appeal dismissed an appeal against a judge’s refusal to throw out the EMBD’s lawsuit on the grounds that it (the EMBD) did not give particulars relating to allegations raised.

In a statement, Armour said had the group of contractors succeeded, they would not have been required to give evidence at trial. Now, he said, they will have take the witness stand and face cross-examination.

The contractors, as well as several others named in the claim, including former government minister Dr Roodal Moonilal, have been ordered to file their defences by March 20.

“I commend the long hard battle that has been fought by the management of the EMBD under the chairmanship of Mr Ronnie Mohammed and the work of the company’s legal team," Armour said in a statement on Tuesday.

Earlier in the day, four contracting companies and their principals lost their appeal against a judge's refusal to strike out the $400 million cartel case which centres on contracts awarded by the EMBD in the run-up to the 2015 general election.

On Tuesday, Justices of Appeal Charmaine Pemberton, Peter Rajkumar and Vasheist Kokaram dismissed the companies’ appeal.

This was the third panel of Appeal Court judges to hear the challenge to Justice James Aboud’s ruling in 2020.

The three judges were assigned to hear the matter afresh after Justice of Appeal Maria Wilson recused herself on June 29, the day before she and Justices of Appeal Nolan Bereaux and Mark Mohammed were expected to deliver their ruling.

Wilson’s decision stemmed from her brother attorney Fulton Wilson’s former appointment as a director of the EMBD board from 2015-2021, when the state-owed company filed the lawsuit against the companies and Oropouche East MP Moonilal.

In August 2020, Justice Aboud (who is now an Appeals Court judge) dismissed preliminary applications by the five contractors – TN Ramnauth, Namalco, Kallco, Mootilal Ramhit and Sons Contracting Ltd, and Fides Ltd – which sought to have the EMBD detail allegations against them so they could fairly mount their defence, or strike out the claims.

In June 2021, two Appeal Court judges heard the procedural appeal but were unable to arrive at a unanimous decision. The matter was referred to the full three-member panel of judges.

The lawsuit centres on 12 contracts for rehabilitating roads and infrastructure which were granted to five contractors before the 2015 general election.

Contractors TN Ramnauth, Mootilal Ramhit and Sons Contracting Ltd (Ramhit), and Kall Company Ltd (Kallco) initiated the proceedings against the state-owned special-purpose company for the almost $200 million balance owned on their respective contracts.

The EMBD countersued the contractors, claiming that they, as well as contractors Fides and Namalco, stand accused of conspiring with Moonilal, former EMBD CEO Gary Parmassar, former divisional manager Madhoo Balroop and engineer Andrew Walker to obtain contracts corruptly.

The parties in the counter-suit had previously agreed to abide by the Appeal Court’s ruling in the contractors’ appeal and will now be expected to file their various defences.

The EMBD’s case against the contractors was that they engaged in unlawful acts to secure the 12 contracts between May-August 2015.

In Tuesday’s ruling, Rajkumar, who delivered the unanimous decision, held that sufficient information was pleaded in the lawsuit to permit arguments at a trial. The ruling said an inference could be drawn relating to the losses the EMBD sustained in two of the contracts.

He also held that despite claims to the contrary, the EMBD had pleaded that the work performed by the contractors for another project was worthless and of no value.

He said while the pleadings for other contracts did not quantify the loss, it was “expressly pleaded that such actual pecuniary loss did occur.”

He continued, “There can be no doubt therefore that the appellants had been made aware, on the pleadings as they stand, that EMBD claims to have sustained actual pecuniary loss of the types identified as a result of the unlawful means conspiracy…"

“That loss, though not yet quantified – a different matter altogether – was the result of inflated prices, over certification, deficient and omitted works. The cause of action was complete and the trial judge was therefore clearly correct not to strike out that claim," Rajkumar said.

He also said there was “extensive pleading of highly unusual correlations in the bids submitted by the corporate appellants.

“They, therefore, have sufficient information to respond to allegations that the alleged concerted bids and claims were attributable to the corporate appellants,” he said, adding that enough had also been pleaded on the allegation of fraud, dishonesty and bad faith.

Also in June, the previous panel of judges upbraided Moonilal for statements he made about their handling of the case. They said Moonilal’s comments were “vulgar.” Moonilal commented on a previous statement by the Prime Minister about the case.

At a press conference on June 12, Dr Rowley alleged the Court of Appeal had ruled in the EMBD’s favour and that the defendants, including Moonilal, had to file their defences for the protracted case to go to trial.

Rowley made veiled references to a consent order that was entered during a hearing of the appeal, under which the defendants in the substantive case, who are not pursuing the appeal, agreed to file their defences within 45 days of the Appeal Court delivering its ruling.

Moonilal sought to question how Rowley could make pronouncements on the case before the court ruled, and questioned whether he was in “cahoots” with the members of the panel.

All three judges agreed that Rowley’s statement on the progress of the case was inaccurate.

At the appeal, the companies were represented by Ramesh Lawrence Maharaj, SC, Jagdeo Singh, Kiel Taklalsingh, Jamie Amanda and Karina Singh.

The EMBD was represented by David Phillips, KC, Jason Mootoo, SC, Savitri Sookraj-Beharry and Tamara Toolsie.