Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

A mul­ti-mil­lion dol­lar car­tel case brought by the Es­tate Man­age­ment and Busi­ness De­vel­op­ment Com­pa­ny Ltd (EM­BD) against a group of con­trac­tors, for­mer of­fi­cials and for­mer hous­ing min­is­ter Dr Roodal Mooni­lal is one step clos­er to go­ing on tri­al. 

De­liv­er­ing a judge­ment yes­ter­day morn­ing, Ap­pel­late judges Char­maine Pem­ber­ton, Pe­ter Ra­jku­mar, and Vasheist Kokaram dis­missed an ap­peal from the con­trac­tors over the re­fusal of for­mer High Court judge and cur­rent Ap­pel­late Judge James Aboud to strike out the case against them at a pre­lim­i­nary stage. 

If the con­trac­tors do not mount a suc­cess­ful fi­nal ap­peal to the Unit­ed King­dom-based Privy Coun­cil, the Ap­peal Court’s rul­ing means that the case can now go on tri­al be­fore Jus­tice Frank Seep­er­sad. 

Jus­tice Ra­jku­mar, who de­liv­ered the pan­el’s de­ci­sion, ruled that EM­BD had prop­er­ly plead­ed that it suf­fered ac­tu­al pe­cu­niary loss as a re­sult of the al­leged un­law­ful means con­spir­a­cy be­tween the con­trac­tors and state of­fi­cials. 

He not­ed that al­though EM­BD did not quan­ti­fy the loss­es it in­curred when it filed the case, it could do so when it goes to tri­al. 

“If or when the re­port re­ferred to in the re­spon­dent’s plead­ing be­comes avail­able the re­spon­dent may choose to fine-tune its case by amend­ment,” he said. 

“This is not the same thing as amend­ing it to com­plete the cause of ac­tion which is now al­ready com­plete,” he added. 

Jus­tice Ra­jku­mar al­so re­ject­ed claims that EM­BD’s plead­ings did not prop­er­ly give par­tic­u­lars link­ing the con­trac­tors to the pur­port­ed con­spir­a­cy so they could mount their de­fences. 

“Iden­ti­fi­ca­tion of per­sons named as the di­rect­ing mind and will of each of the com­pa­nies is not re­quired in the cir­cum­stances in or­der for the ap­pel­lants to plead to the al­le­ga­tion of con­spir­a­cy, giv­en that the al­leged­ly rigged bids could not have sub­mit­ted them­selves, and the in­fer­ence of au­tho­ri­sa­tion of the above acts is con­sis­tent with an in­fer­ence of knowl­edge, ap­proval and in­ten­tion iden­ti­fied with the cor­po­rate ap­pel­lants them­selves rather than any in­di­vid­ual rogue em­ploy­ees,” he said. 

Jus­tice Ra­jku­mar al­so stat­ed that the plead­ed case did not need to show the sub­jec­tive knowl­edge of the par­ties. 

“That is be­cause the plead­ed ac­tions of the ap­pel­lants, re­gard­less of the names of any in­di­vid­u­als there­in, are ar­guably on­ly con­sis­tent with their be­ing the prod­uct of con­scious, de­lib­er­ate, and in­ten­tion­al ac­tion by a con­trol­ling mind or will with­in each ap­pel­lant com­pa­ny, de­signed to dis­hon­est­ly ex­tract pay­ments from EM­BD to which they were not en­ti­tled,” he said. 

The sub­stan­tive law­suit cen­tres around 12 con­tracts for the re­ha­bil­i­ta­tion of roads and in­fra­struc­ture 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 owed on their re­spec­tive con­tracts.

The EM­BD coun­ter­sued the con­trac­tors claim­ing that they, as well as con­trac­tors Fides and Na­mal­co, con­spired to­geth­er with 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, the EM­BD is seek­ing a se­ries of de­c­la­ra­tions against the par­ties in­clud­ing one on the il­le­gal­i­ty of the con­tracts.

The con­trac­tors’ ap­pli­ca­tion to strike out the case was re­ject­ed by Jus­tice Aboud in Au­gust 2020. 

Aboud ruled that EM­BD had pre­sent­ed suf­fi­cient pre­lim­i­nary facts to 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. 

The ap­peal over Jus­tice Aboud’s de­ci­sion was con­sid­ered by the Ap­peal Court twice be­fore yes­ter­day’s rul­ing. 

In 2021, Ap­pel­late judges Mi­ra Dean-Ar­mor­er and Ron­nie Boodoos­ingh failed to ar­rive at an agreed de­ci­sion af­ter con­sid­er­ing their ev­i­dence and sub­mis­sions.

In June, last year, Ap­pel­late Judge Maria Wil­son re­cused her­self from the case a day be­fore she and her col­leagues jus­tices Nolan Bereaux and Mark Mo­hammed were ex­pect­ed to rule on the ap­peal. 

Her de­ci­sion, which led to the case be­ing con­sid­ered by a third ap­pel­late pan­el, was based on her broth­er at­tor­ney Ful­ton Wil­son serv­ing on the EM­BD board be­tween 2015 and 2021. 

In a press re­lease is­sued yes­ter­day, At­tor­ney Gen­er­al Regi­nald Ar­mour, SC, praised the judge­ment as he high­light­ed por­tions. 

“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,” he said. 

“These ef­forts re­flect on the Gov­ern­ment’s con­tin­u­ing com­mit­ment to in­sist that wrong­do­ers are brought be­fore our courts to ac­count and that cor­rup­tion will not pay,” he added. 

The con­trac­tors were rep­re­sent­ed by Ramesh Lawrence Ma­haraj, SC, Jagdeo Singh, Kiel Tak­lals­ingh, Jamie Aman­da, and Ka­ri­na Singh. 

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