AG: EMBD Privy Council loss means nothing for cartel claim against Moonilal

ATTORNEY General Reginald Armour says the recent Privy Council ruling instructing the Estate Management and Business Development Company Ltd (EMBD) to pay Junior Sammy Contractors Ltd (JSCL) $82.8 million will have no impact on the civil case involving Roodal Moonilal and EMBD.

The EMBD took its case to the Privy Council after losing its appeal over a judge’s decision to grant summary judgment to JSCL over unpaid work.

The Appeal Court, in 2022, ruled that former High Court Judge Mira Dean-Armorer was not wrong to award the contractor a default judgment over EMBD’s inability to defend its case.

In its October 29 ruling, the Privy Council dismissed the EMBD’s appeal and said Dean-Armorer correctly entered summary judgment in the contractor’s favour.

The legal dispute concerned a contract for the Caroni Savannah Residential Development which JSCL was awarded in February 2015 after submitting a $231 million tender.

JSCL sued EMBD after only seven of 13 interim payment certificates (IPCs) were paid. The payments were halted amid an investigation as to whether the works were done as cited by JSCL.

Moonilal, Housing Minister from 2010 - 2015, bashed the government over the multi-million dollar defeat and suggested the case had political undertones.

Moonilal is the subject of a cartel claim by EMBD which alleges he, along with former EMBD officials and three contractors, conspired to corruptly obtain contracts for the rehabilitation of roads and infrastructure granted before the September 2015 general election.

He said in a statement, “We have said that this was politically motivated and the most expensive witch hunt in history. And they did not catch a witch.”

Moonilal defended his term as Housing Minister saying, “When we were in office we ensured that decisions were properly and legally taken, institutions were robust and oversight was compulsory.

“Decisions were taken on the basis of independent assessments and recommendations.”

He said taxpayers paid millions for the “rum shop argument” advanced by the EMBD against Sammy.

EMBD argued that JSCL could not pursue the action, as it had assigned the outstanding payments, which are the subject of the lawsuit, to ANSA Merchant Bank.

Armour said, however, this was a valid point and noted the Privy Council spent almost a third of its 107-paragraph-long ruling addressing this issue.

“The Privy Council spent 36 paragraphs examining this issue before it finally construed that the section 23, subsection 7 of the Supreme Court of Judicature act as applied to those documents did not constitute an absolute charge. And therefore Junior Sammy could properly have brought the case against the Privy Council.

“That was what is known to us lawyers and what is accepted by any common sense person as a strong, arguable case. And the EMBD had every right to take that point all the way to the Privy Council and to ask for a ruling on it.”

Moonilal added JSCL being awarded summary judgment in the High Court meant the EMBD’s defence was “so weak.”

“Today, five law lords of the Privy Council ruled, with no dissenting judgment, that the EMBD claim of fraud was ‘fanciful and speculative.’

Armour defended the EMBD saying it was a strong appeal.

“This was not a frivolous appeal by the EMBD. This was a serious appeal. There were serious issues of law to be addressed.”

He said EMBD had been prudent and responsible and denied the company had wasted taxpayers’ money. “In the interest of fairness and prudence, they paid to Junior Sammy what they conceded was his right. And they paid the disputed balance into court to be put into an interest bearing account so that at the end of the day when the case was determined that money would be allocated to the rightful owner. That money with the interest that it has earned, will now be paid over from the court.”

Armour also defended the amount spent in legal fees after Moonilal claimed it to be in the millions and asserted it “could have provided food cards for the hungry, medicines to the poor at run-down hospitals, jobs for our desperate youth and help for small businesses.” Armour said, “It is always a judgment call on the seniority and number of lawyers you will retain to defend or advance a particular case and it is expected that the judgment call to select the attorneys will be responsible.”

Armour emphasised the ruling had no bearing on the other case involving Moonilal.

“Nothing pronounced on by way of the Privy Council in that matter involving the EMBD and Mr Junior Sammy’s company affects the merits of the case that the EMBD is going to trial on in the cartel claim against Dr Moonilal or any of the other defendants in that matter.”

Asked how confident he was about the EMBD’s chances of success in the other matter involving Moonilal, Armour said the evidence has already spoken for itself.

“I have seen the documentation and I know the EMBD not only did a significant audit but they have amassed a significant amount of expert evidence which is now going to be presented to the courts. In fact, it was that expert evidence which persuaded the High Court, Court of Appeal and Privy Council judges to dismiss the claim brought by the contractors to say this case could not succeed in a trial.”