Two Appeal Court judges have failed to come to a consensus in an appeal over a colleague’s refusal to dismiss the multi-million dollar cartel claim against a group of contractors because of a lack of particulars against them. Parties in the case involving the State-owned Estate Management and Business Development Company Ltd (EMBD) were on Tuesday notified, via email, that Appellate Judges Mira Dean-Armorer and Ronnie Boodoosingh had failed to arrive at an agreed decision after considering their evidence and submissions. The procedural appeal will now have to be heard by a three-member panel. The lawsuit centres around 12 contracts for the rehabilitation of roads and infrastructure, which were granted to five contractors before the September 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. EMBD countersued the contractors claiming that they, as well as contractors Fides and Namalco, conspired together with former housing minister Dr Roodal Moonilal, former EMBD CEO Gary Parmassar, former divisional manager Madhoo Balroop and engineer Andrew Walker to corruptly obtain the contracts.
It also claimed that the parties agreed to facilitate the contractors receiving preliminary payments for the work which was allegedly overpriced and substandard and utilised a loan, meant to pay for other legitimate contracts, to make interim payments to the contractors.
Through the lawsuit, EMBD is seeking a series of declarations against the parties including one on the illegality of the contracts. In the appeal, the contractors are challenging the decision of former High Court judge and current Appellate Judge James Aboud, who refused to strike out the case because EMBD did not provide sufficient particulars on its allegations against them. Aboud ruled that EMBD had presented sufficient preliminary facts, which should be determined by the court at an eventual trial.
“Someone has to explain at the appropriate time in a way that is sensible how it is that these unusual patterns, oddities, and inconsistencies can exist other than by collusion by contractors,” Aboud said.
Presenting submissions in the appeal earlier this year, British Queen’s Counsel David Phillips said his client would not commission expensive forensic reports until the preliminary legal issues were resolved.
“We have been the victim of a calculated and sophisticated conspiracy…A sophisticated conspirator leaves no trace,” Phillips said.
He also noted that Aboud’s decision did not mean that that lawsuit could not be successfully defended by the contractors at trial.
“He (Aboud) was not saying that the case would succeed at trial. He was saying the case could succeed at trial,” Phillips said.
Presenting submissions on behalf of the contractors, Senior Counsel Ramesh Lawrence Maharaj claimed that the State company had to provide particulars that it suffered pecuniary losses through his clients’ alleged conduct in order to pursue the unlawful means conspiracy lawsuit against them.
Maharaj claimed that the alleged deficiencies in the case as pleaded proved that EMBD did not conduct a proper and thorough investigation before initiating it.
He also suggested that the requested information was vital as each of their clients had to submit defences to individual allegations leveled against them.
Since Aboud has been elevated to the Court of Appeal, the case has been transferred to High Court Judge Frank Seepersad, who is awaiting on the outcome of the appeal to proceed with the case.
Contractors TN Ramnauth, Mootilal Ramhit and Sons Contracting Ltd (Ramhit) and Kall Company Ltd (Kallco) are also being represented by Jagdeo Singh, Kiel Taklalsingh, and Karina Singh. Namalco was represented by Roger Kawalsigh.
Anand Ramlogan, SC, Alvin Pariagsingh, and Ganesh Saroop represented Moonilal, who did not join in either the application to strike out the case or the corresponding appeal. Walker was represented by Jayanti Lutchmedial.
EMBD is also being represented by Jason Mootoo, and Savitri Sookraj-Beharry.