Gail Alexan­der

Se­nior Po­lit­i­cal Re­porter

Con­trac­tors who yes­ter­day lost their ap­peal to strike out the Es­tate Man­age­ment Busi­ness De­vel­op­ment Com­pa­ny Lim­it­ed’s (EM­BD) case against them–and the par­ties in the re­lat­ed ac­tion in­clud­ing UNC deputy leader Roodal Mooni­lal–will now have to file de­fences and pro­ceed to tri­al, says At­tor­ney Gen­er­al Regi­nald Ar­mour.

For­mer UNC hous­ing min­is­ter Mooni­lal said he was anx­ious­ly await­ing his day in court as the cas­es are “po­lit­i­cal­ly mo­ti­vat­ed”.

Both spoke fol­low­ing yes­ter­day’s Court of Ap­peal judg­ment. This in­volved con­trac­tors TN Ram­nauth and Com­pa­ny Lim­it­ed, Kall Co Lim­it­ed, and Mooti­lal Ramhit and Sons Con­tract­ing Lim­it­ed ver­sus EM­BD.

 Ar­mour said, “The con­trac­tors in these mat­ters and the par­ties in the re­lat­ed ac­tion in­clud­ing Mr Roodal Mooni­lal (the first de­fen­dant in CV 2017-04214), now, more than six years af­ter EM­BD filed its plead­ings, will have to file their de­fences and pro­ceed to tri­al,”

Amour not­ed that in a unan­i­mous 38-page judg­ment, the Court of Ap­peal dis­missed the con­trac­tors’ ap­peal against the Au­gust 6, 2020, de­ci­sion of Jus­tice James Aboud (as he then was).

The con­trac­tors had sought to over­turn Aboud’s dis­missal in the High Court of their ap­pli­ca­tions to strike out EM­BD’s case or to com­pel EM­BD to pro­vide fur­ther par­tic­u­lars of its plead­ing.

Ar­mour added, “Had they suc­ceed­ed they would not have been re­quired to give ev­i­dence in the High Court to de­fend them­selves against EM­BD’s claims, which they now must do.

“The case has been or­dered to con­tin­ue to tri­al in the High Court and the con­trac­tors and their ‘con­trol­ling minds’ (those deemed as hav­ing sig­nif­i­cant in­flu­ence over them) will now take the wit­ness stand.”

Ar­mour com­mend­ed the “long hard bat­tle fought by EM­BD  man­age­ment un­der the chair­man­ship of  Ron­nie Mo­hammed” and the work of the com­pa­ny’s le­gal team.

Re­spec­tive de­fences have to be filed on or be­fore March 20.

Ar­mour said the con­trac­tors had tried to ar­gue in the Court of Ap­peal that EM­BD’s case as plead­ed and filed in 2017 was de­fi­cient­ly plead­ed and did not con­tain suf­fi­cient de­tail to per­mit them to know the case they had to an­swer.

He not­ed that EM­BD’s case against the con­trac­tors, “... Is that they en­gaged in acts of un­law­ful means con­spir­a­cy, dis­hon­est as­sis­tance, and know­ing re­ceipt, based on al­le­ga­tions of bid-rig­ging and cor­rup­tion in the ten­der, award and ad­min­is­tra­tion of 12 con­tracts en­tered in­to in the pe­ri­od May to Au­gust 2015.

“In de­liv­er­ing the court’s judg­ment, Mr Jus­tice of Ap­peal Ra­jku­mar had re­gard to, among oth­er things, EM­BD’s plead­ing of text and email ex­changes among an of­fi­cial of EM­BD and some of the par­ties, and EM­BD’s analy­sis of the cor­re­la­tion and odd­i­ties in the bids sub­mit­ted by the con­trac­tors.”

 “The Court of Ap­peal held that, ‘There can be no doubt that any of the ap­pel­lants could be un­aware as to what is be­ing claimed against them and the ba­sis there­of, or would be un­able to plead there­to.’ Fur­ther, that ‘there is no pos­si­ble ar­gu­ment that the facts plead­ed here were equiv­o­cal or con­sis­tent with some­thing oth­er than dis­hon­esty be­cause they point dis­tinct­ly in this case to dis­hon­esty,’” Ar­mour not­ed.

On the ques­tion of whether in­suf­fi­cient pri­ma­ry facts had been plead­ed by EM­BD, Ar­mour said the Court of Ap­peal held that suf­fi­cient pri­ma­ry facts had been plead­ed to per­mit the in­fer­ence if proven at tri­al, that:

 (a) there was a car­tel arrange­ment among the ap­pel­lants;

 (b) that the car­tel arrange­ments, in­clud­ing the se­lec­tion of the con­trac­tors to ten­der, and the rig­ging of their bids, were the prod­uct of an agree­ment and con­spir­a­cy among them, de­lib­er­ate­ly em­barked up­on, with full knowl­edge and par­tic­i­pa­tion of each with the in­ten­tion to ben­e­fit them­selves at the ex­pense of EM­BD;

(c) the ac­tions and ac­tiv­i­ties of the ap­pel­lants as iden­ti­fied were on­ly com­pat­i­ble with an in­fer­ence that they were the prod­uct of a con­trol­ling mind and will, in each of the cor­po­rate ap­pel­lants;

(d) there was an in­ten­tion to cause EM­BD ac­tu­al pe­cu­niary loss.

    Mooni­lal: These are po­lit­i­cal­ly mo­ti­vat­ed cas­es

 UNC deputy leader Mooni­lal, who had fea­tured in a re­lat­ed (2017) ac­tion as first de­fen­dant to EM­BD’s claim, was not a par­tic­i­pant in the 2020 mat­ter on which yes­ter­day’s judg­ment was giv­en.  

Com­ment­ing on the judg­ment, Mooni­lal said, “As you know, I wasn’t a par­tic­i­pant in these pro­ceed­ings. I await the next step by those who took the ac­tion. I anx­ious­ly await my day in court since these are civ­il po­lit­i­cal­ly mo­ti­vat­ed cas­es launched by the PNM and not the Di­rec­tor of Pub­lic Pros­e­cu­tions.

“Row­ley has spent in ex­cess of $100m on these mat­ters and he will have to ac­count ul­ti­mate­ly. I main­tain that the le­gal fees in civ­il mat­ters must be paid, not from the tax­pay­er, but from the pen­sion and gra­tu­ity of  Row­ley, Young and oth­ers. I am will­ing to ad­vise on the  change of law so that po­lit­i­cal per­se­cu­tion is deemed an un­law­ful act against the State.”