Derek Achong

derek.achong@guardian.co.tt

The Na­tion­al In­fra­struc­ture De­vel­op­ment Com­pa­ny (Nid­co) has been or­dered to pay over $26 mil­lion in com­pen­sa­tion to a con­tract­ing com­pa­ny, whose op­er­a­tions were dis­rupt­ed af­ter some of its land was ac­quired for the con­struc­tion of the San Fer­nan­do to Point Fortin High­way. 

De­liv­er­ing a de­ci­sion, late last month, High Court Judge West­min James or­dered the com­pen­sa­tion for Jokhan Gen­er­al Con­trac­tors Ltd. 

The law­suit cen­tred around Nid­co’s com­pul­so­ry ac­qui­si­tion of some of the com­pa­ny’s land at San Fran­cique Road, Pe­nal. 

In May 2015, the com­pa­ny, which is cur­rent­ly un­der re­ceiver­ship, agreed to trans­fer 5.11 acres of its larg­er plot af­ter it was paid ap­prox­i­mate­ly $23 mil­lion by Nid­co. 

The com­pa­ny filed the case as it claimed that Nid­co failed to ho­n­our a sep­a­rate agree­ment in which it agreed to pay it over $48 mil­lion in com­pen­sa­tion for dis­rup­tion of its op­er­a­tions al­leged­ly caused by the high­way con­struc­tion. 

It claimed that it lost out on rental in­come from com­pa­nies in the en­er­gy sec­tor, was forced to re­lo­cate as­pects of its op­er­a­tions and suf­fered diminu­tion in val­ue of the land it re­tained. 

In its de­fence, Nid­co claimed that the pur­port­ed of­fer re­lied on by Jokhan was not bind­ing as it was made un­der a mu­tu­al mis­take of fact and/or law and was sub­ject to fi­nal ap­proval. 

It al­so claimed that the com­pa­ny re­mained in oc­cu­pa­tion of the ac­quired lands, which were not used for the high­way, and could not claim com­pen­sa­tion for in­ju­ri­ous af­fec­tion or dis­tur­bance. 

Jus­tice James was called up­on to as­sess the com­pen­sa­tion af­ter the com­pa­ny ob­tained judg­ment against Nid­co by mu­tu­al con­sent. 

While Jus­tice James said that Nid­co was bound by the con­sent or­der, he said that it was en­ti­tled to chal­lenge the spe­cif­ic loss­es claimed by Jokhan. 

“While the De­fen­dant is pre­clud­ed from deny­ing that com­pen­sa­tion is re­cov­er­able un­der the heads iden­ti­fied in the Con­sent Or­der, the De­fen­dant re­mains en­ti­tled to chal­lenge whether par­tic­u­lar al­leged loss­es were causal­ly con­nect­ed to the ac­qui­si­tion, whether such loss­es were too re­mote, and whether the amounts claimed were prop­er­ly proved,” Jus­tice James said. 

He al­so ruled that phys­i­cal dis­pos­ses­sion af­ter the ac­qui­si­tion was not rel­e­vant as the land was law­ful­ly trans­ferred. 

He found that the com­pa­ny proved that the val­ue of its re­tained land di­min­ished as its op­er­a­tions were af­fect­ed by the ac­qui­si­tion al­though it did not have ex­ten­sive ev­i­dence on the ex­tent of such. 

“In the Court’s judg­ment, this sev­er­ance ma­te­ri­al­ly af­fect­ed the op­er­a­tional co­he­sion, ac­ces­si­bil­i­ty and flex­i­bil­i­ty of the re­tained lands,” he said. 

“A pur­chas­er ac­quir­ing the re­tained lands af­ter the ac­qui­si­tion would no longer ac­quire a sin­gle in­te­grat­ed in­dus­tri­al com­pound ca­pa­ble of un­re­strict­ed heavy in­dus­tri­al cir­cu­la­tion, but rather frag­ment­ed parcels di­vid­ed by a high­way cor­ri­dor with ma­te­ri­al­ly re­duced op­er­a­tional ef­fi­cien­cy and com­mer­cial at­trac­tive­ness,” he added. 

Based on the lack of ev­i­dence, he did not grant the full sum claimed by the com­pa­ny and in­stead as­sessed what was rea­son­able based on the ev­i­dence be­fore him. 

Jus­tice James utilised val­u­a­tion re­ports pre­pared be­fore and af­ter the ac­qui­si­tion as he ruled that the com­pa­ny should be com­pen­sat­ed $4,433,356.01 for the diminu­tion in val­ue of the land. He al­so ruled that it was en­ti­tled to $21,787,237.73 for com­mer­cial dis­tur­bance as its op­er­a­tions were clear­ly af­fect­ed by the ac­qui­si­tion. 

“The fact that some phys­i­cal oc­cu­pa­tion or resid­ual in­dus­tri­al ac­tiv­i­ty con­tin­ued does not negate the ex­is­tence of dis­tur­bance loss­es where the ev­i­dence demon­strates that the in­te­grat­ed com­mer­cial and rev­enue-gen­er­at­ing ca­pac­i­ty of the prop­er­ty was ma­te­ri­al­ly im­paired by the ac­qui­si­tion and high­way scheme,” he said. 

In as­sess­ing the com­pen­sa­tion, Jus­tice James utilised an ad­just­ed main­tain­able in­come of $4,357,447.55 and a mul­ti­pli­er of five. 

“The Court em­pha­sis­es that this ap­proach is not in­tend­ed to pro­duce math­e­mat­i­cal ex­ac­ti­tude. Rather, it rep­re­sents a prac­ti­cal eval­u­a­tive ex­er­cise di­rect­ed to­ward achiev­ing fair com­pen­sa­tion on the avail­able ev­i­dence while avoid­ing both spec­u­la­tion and un­der-com­pen­sa­tion,” he said. 

He al­so or­dered Nid­co to pay five per cent in­ter­est on the dam­ages from Oc­to­ber 2014 to the date of the judg­ment and Jokhan’s le­gal costs for the lit­i­ga­tion. 

Jokhan was rep­re­sent­ed by Ian Ben­jamin, SC, Pierre Rud­der, Stephen Singh, and Sarah Sinanan. Nid­co was rep­re­sent­ed by Dou­glas Mendes, SC, Ravin­dra Nan­ga, SC, and Sav­it­ri Ma­haraj.