Ke­jan Haynes

Lead Ed­i­tor- News­gath­er­ing

Busi­ness mag­nate Emile Elias and his com­pa­ny NH In­ter­na­tion­al have been or­dered to pay full le­gal costs to En­er­gy Min­is­ter Dr Roodal Mooni­lal af­ter the High Court dis­missed a defama­tion claim linked to com­ments made dur­ing a 2016 po­lit­i­cal meet­ing.

Jus­tice Joan Charles threw out the case and al­so or­dered NH to cov­er Mooni­lal’s costs for se­nior and ju­nior coun­sel.

The mat­ter stemmed from state­ments Mooni­lal made at a Unit­ed Na­tion­al Con­gress lo­cal gov­ern­ment meet­ing where he ques­tioned the award of a $145 mil­lion Hous­ing De­vel­op­ment Cor­po­ra­tion (HDC) con­tract to NH In­ter­na­tion­al. He re­lied on an in­ter­nal HDC val­u­a­tion re­port and raised con­cerns about the pro­cure­ment process.

In his re­marks at the time, Mooni­lal said the con­trac­tor “came sixth in the rank­ing” and sug­gest­ed the process re­flect­ed se­ri­ous ir­reg­u­lar­i­ties.

He al­so re­ferred to what he de­scribed as “the biggest cor­rup­tion scan­dal” in­volv­ing the ten­der, and ques­tioned how a com­pa­ny not meet­ing key re­quire­ments had pro­gressed through the process.

Mooni­lal sug­gest­ed there was in­ter­fer­ence in the eval­u­a­tion process, ar­gu­ing that bid­ders who did not have land iden­ti­fied were still al­lowed to pro­ceed. He said this raised ques­tions that would be tak­en to the In­tegri­ty Com­mis­sion and the pub­lic.

Elias sued in 2018, al­leg­ing the state­ments dam­aged his rep­u­ta­tion by im­ply­ing bid-rig­ging and po­lit­i­cal cor­rup­tion in the award of the con­tract.

Mooni­lal, rep­re­sent­ed by Se­nior Coun­sel Anand Ram­lo­gan and Free­dom Law Cham­bers, de­fend­ed the claim on the ba­sis that the state­ments were ground­ed in of­fi­cial doc­u­men­ta­tion and raised le­git­i­mate pub­lic in­ter­est con­cerns.

Ram­lo­gan said there was no clear ex­pla­na­tion from the HDC’s then board on how NH In­ter­na­tion­al ad­vanced in the process de­spite not meet­ing pre­qual­i­fi­ca­tion re­quire­ments.

He said the project re­quired bid­ders to have ac­cess to land for the de­sign-build-fi­nance mod­el, yet ev­i­dence sug­gest­ed NH did not meet that con­di­tion.

In a voice mes­sage to Guardian Me­dia, Ram­lo­gan said it emerged dur­ing pro­ceed­ings that “if they did not meet the fi­nan­cial cri­te­ria and if they did not have the lands… they ought not to have gone for­ward and should not have been eval­u­at­ed.”

Price­wa­ter­house­C­oop­ers ex­ec­u­tive Zia Pa­ton, who tes­ti­fied for Elias, faced cross-ex­am­i­na­tion over the eval­u­a­tion process. She ac­cept­ed that NH’s bid in­tro­duced a re­quest for a gov­ern­ment guar­an­tee and that this sig­nif­i­cant­ly al­tered the terms of the orig­i­nal re­quest for pro­pos­als. She al­so agreed it would have been un­fair to al­low that bid to pro­ceed with­out re­con­sid­er­ing oth­er bid­ders.

The court found Mooni­lal’s com­ments were not defam­a­to­ry and were pro­tect­ed as fair com­ment on a mat­ter of pub­lic in­ter­est, re­ly­ing on the HDC’s own doc­u­ments which showed NH ranked sixth and had not met ini­tial re­quire­ments, with no clear ex­pla­na­tion for its se­lec­tion.

Mooni­lal de­scribed the rul­ing as a land­mark de­ci­sion on free­dom of ex­pres­sion and pub­lic ac­count­abil­i­ty. He al­so said NH had “lost 12 cas­es in one day” re­lat­ing to HDC pro­cure­ment mat­ters.

"Mr Elias needs to un­der­stand that he has no di­vine right to HDC con­tracts or any oth­er con­tract," he said. "We have seen the pref­er­ence giv­en to cer­tain com­pa­nies re­gard­ing for­eign ex­change. The time has come to lev­el the play­ing field and I there­fore make no apolo­gies for high­light­ing the ir­reg­u­lar­i­ties in the HDC ten­der­ing process."