The Court of Ap­peal has re­served its de­ci­sion on an over $1.3 bil­lion law­suit over un­paid con­tracts for in­fra­struc­ture works in south Trinidad done over a decade ago. 

Ap­pel­late Judges Ron­nie Boodoos­ingh, Pe­ter Ra­jku­mar and Ge­of­frey Hen­der­son said they need­ed time to con­sid­er their de­ci­sion af­ter hear­ing lengthy sub­mis­sions from lawyers for the State-owned Es­tate Man­age­ment and Busi­ness De­vel­op­ment Com­pa­ny (EM­BD) and Na­mal­co Con­struc­tion Ser­vices, this week. 

In the ap­peal, both com­pa­nies chal­lenged find­ings made by High Court Judge Ricky Rahim in 2022 when he sought to re­solve the law­suit brought by Na­mal­co. 

Judge Rahim or­dered on­ly over $400 mil­lion in com­pen­sa­tion for Na­mal­co as he par­tial­ly up­held EM­BD’s de­fence and counter-claim over an al­leged “con­spir­a­cy” be­tween the con­trac­tor and a for­mer se­nior EM­BD of­fi­cial.  

In the law­suit, filed in 2016, Na­mal­co was seek­ing com­pen­sa­tion for its un­paid con­tracts for in­fra­struc­ture works at projects at Cedar Hill, Roops­ingh Road, Pe­tit Morne, and Pic­ton Mon­key Town. 

In de­fence of the claim, EM­BD con­tend­ed that the com­pa­ny’s in­voic­es were in­flat­ed and the work did not meet the re­quire­ments set by EM­BD. 

EM­BD al­so al­leged that sev­er­al sup­ple­ment con­tracts for the projects award­ed by its for­mer chief ex­ec­u­tive of­fi­cer See­bal­ack Singh should be void­ed, as he (Singh) did not have the re­mit to ap­prove such. Na­mal­co was ini­tial­ly seek­ing pay­ment for six con­tracts but two were split from the case as they fell un­der a sep­a­rate law­suit brought by the gov­ern­ment against it and four oth­er con­trac­tors. 

In the car­tel claim, EM­BD is claim­ing the con­trac­tors con­spired with the com­pa­ny’s for­mer of­fi­cials to ob­tain con­tracts in Sep­tem­ber 2015. 

For­mer hous­ing min­is­ter and cur­rent En­er­gy and En­er­gy In­dus­tries Min­is­ter Dr Roodal Mooni­lal, for­mer EM­BD CEO Gary Par­mas­sar, for­mer di­vi­sion­al man­agers Mad­hoo Bal­roop and An­drew Walk­er are list­ed as par­ties in that claim, which is yet to go on tri­al be­fore Jus­tice Frank Seep­er­sad. 

In the judg­ment, Jus­tice Rahim ruled that the court had the pow­er to con­sid­er chal­lenges to the va­lid­i­ty of In­ter­im Pay­ment Cer­tifi­cates (IPC) sent by Na­mal­co for pay­ments to be made based on abate­ment or diminu­tion in val­ue. 

How­ev­er, he ruled that the IPCs un­der the orig­i­nal agree­ments could not be fault­ed by EM­BD be­cause Na­mal­co did not pro­vide suf­fi­cient doc­u­men­ta­tion to but­tress its claims. 

Jus­tice Rahim al­so ruled that de­ci­sions on the ini­tial agree­ments made by the Dis­pute Ad­ju­di­ca­tion Board (DAB), ap­point­ed by both par­ties, were bind­ing, con­clu­sive and in­ca­pable of be­ing the foun­da­tion of EM­BD’s le­gal chal­lenge. 

De­spite find­ing that EM­BD was li­able for its re­main­ing bal­ances on the ini­tial con­tracts, Jus­tice Rahim in­val­i­dat­ed the sup­ple­men­tal agree­ments which raised the Roops­ingh Road and Pe­tit Morne projects by ap­prox­i­mate­ly $185 mil­lion and $129 mil­lion, re­spec­tive­ly. 

While Jus­tice Rahim ruled that Singh breached his fidu­cia­ry du­ty by ap­prov­ing the sub­stan­tial con­tracts when he on­ly had the clear­ance to ap­prove con­tracts un­der $1 mil­lion, he not­ed that the is­sue was cured by the fact that EM­BD’s then board sub­se­quent­ly ap­proved the agree­ments. 

How­ev­er, Jus­tice Rahim stat­ed that the agree­ments had to be void­ed as the ev­i­dence in the case showed that Singh and Na­mal­co were en­gaged in an un­law­ful means con­spir­a­cy to in­flate the con­tracts. 

“No oth­er in­ten­tion is ap­par­ent on the ev­i­dence and this re­mains the sole rea­son­able in­fer­ence of in­ten­tion to be drawn hav­ing re­gard to the fact that the sums claimed have since been shown to be much more than that which ob­tained un­der the orig­i­nal award and which would have been rea­son­ably claimable for new work even at new prices as set out,” Jus­tice Rahim said. 

“This is­sue has been scru­ti­nised by this court and has caused much dis­qui­et as there ap­pears on the ev­i­dence to be a lurk­ing sus­pi­cion of agree­ment,” Rahim said.

Na­mal­co was rep­re­sent­ed by Richard Mil­lett, KC, Roger Kawals­ingh, Ash­ley Roopchans­ingh, Ka­ri­na Singh, and Leon Kalicha­ran. 

EM­BD was rep­re­sent­ed by Jonathan Ac­ton Davis, KC, George Hay­man, KC, Col­in Kan­ga­loo, SC, Christo­pher Reed, and Danielle In­gle­field.