DEREK ACHONG

Se­nior Re­porter

derek.achong@guardian.co.tt

A Com­mu­ni­ty-based En­vi­ron­men­tal Pro­tec­tion and En­hance­ment Pro­gramme Com­pa­ny (CEPEP) con­trac­tor has failed in its bid to re­vive its law­suit chal­leng­ing a mass ter­mi­na­tion ex­er­cise at the State com­pa­ny.

De­liv­er­ing a judg­ment, yes­ter­day morn­ing, Ap­pel­late Judges Pe­ter Ra­jku­mar, James Aboud, and Ricky Rahim dis­missed East­man En­ter­prise Ltd’s ap­peal over the de­ci­sion of a judge to stay the case based on its fail­ure to en­gage in me­di­a­tion and ar­bi­tra­tion be­fore lit­i­ga­tion.

Jus­tice Ra­jku­mar, who de­liv­ered the pan­el’s judg­ment, stat­ed that High Court Judge Mar­garet Mo­hammed could not be fault­ed for stay­ing the case based on East­man’s con­duct af­ter its con­tract and those of over 300 fel­low con­trac­tors were ter­mi­nat­ed based on a Gov­ern­ment di­rec­tive in June.

“No ba­sis has been demon­strat­ed for con­clud­ing that the tri­al judge’s ex­er­cise of her dis­cre­tion to grant a stay was plain­ly wrong,” Jus­tice Ra­jku­mar said.

“The stip­u­la­tion that it (al­ter­na­tive dis­pute res­o­lu­tion) is a con­di­tion prece­dent to ap­proach­ing the court was clear and ex­press,” he added.

He al­so not­ed that the com­pa­ny could not seek an in­ter­im in­junc­tion stop­ping the ter­mi­na­tions with­out sig­nalling its in­ten­tion to pur­sue ar­bi­tra­tion.

“In this case, it is clear that ar­bi­tra­tion could not have been con­tem­plat­ed be­cause the ap­pel­lant dis­put­ed the ap­plic­a­bil­i­ty of ar­bi­tra­tion and me­di­a­tion in the first place,” Jus­tice Ra­jku­mar said, as he not­ed that there was no ev­i­dence that the process was ini­ti­at­ed while the ap­peal was still pend­ing.

How­ev­er, he ruled that Jus­tice Mo­hammed wrong­ly re­ferred pre­lim­i­nary con­tentious al­le­ga­tions over the mass re­new­al of con­trac­tors days be­fore the gen­er­al elec­tion in late April to the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP).

“The re­fer­ral by the court to the DPP on in­com­plete and untest­ed ma­te­r­i­al in re­spect of which nec­es­sary par­ties had not had an op­por­tu­ni­ty to re­spond was pre­ma­ture and plain­ly wrong,” Jus­tice Ra­jku­mar said.

“This was es­pe­cial­ly so when no op­por­tu­ni­ty to re­spond had arisen in the pro­ceed­ings for par­ties in re­spect of whom se­ri­ous al­le­ga­tions had been made,” he added.

Jus­tice Ra­jku­mar al­so re­ject­ed East­man’s claim that CEPEP was re­quired to make a pay­ment in lieu of no­tice while si­mul­ta­ne­ous­ly ter­mi­nat­ing its con­tract with im­me­di­ate ef­fect.

How­ev­er, he ruled that if East­man seeks to pur­sue the case af­ter en­gag­ing in me­di­a­tion and ar­bi­tra­tion, it should be heard by a dif­fer­ent judge.

East­man filed the law­suit af­ter the con­tracts were ter­mi­nat­ed by the Unit­ed Na­tion­al Con­gress (UNC) Gov­ern­ment in late June.

Re­spond­ing to the law­suit, CEPEP’s lawyers, led by Se­nior Coun­sel Anand Ram­lo­gan of Free­dom Law Cham­bers, raised the is­sue of the lack of Cab­i­net ap­proval for the con­tract ex­ten­sions.

They put for­ward an af­fi­davit from on­go­ing CEPEP chief ex­ec­u­tive Kei­th Ed­dy, who claimed that for­mer chair­man Joel Ed­wards gave as­sur­ances to him and the com­pa­ny’s board that Cab­i­net had ap­proved the re­newals be­fore they ap­proved such.

Ed­wards pro­vid­ed an af­fi­davit in re­sponse, on East­man’s be­half, in which he claimed he nev­er gave such as­sur­ances and sought to cor­rect a board note over the re­newals that in­di­cat­ed that it was be­ing done with the bless­ing of the then-Cab­i­net.

He lat­er claimed that the ex­ten­sions were done based on a Cab­i­net minute from 2017, which he claimed gave the State com­pa­ny the au­ton­o­my to de­cide on such with­out Cab­i­net in­put.

CEPEP was al­so rep­re­sent­ed by Kent Sam­lal, Jared Ja­groo, and Asha Ram­lal. Lar­ry Lal­la, SC, St Clair O’Neil and Ka­reem Mar­celle rep­re­sent­ed East­man.

Re­spons­es to Ap­peal
Court judg­ment

In a state­ment is­sued yes­ter­day, the Peo­ple’s Na­tion­al Move­ment (PNM), which as­sist­ed East­man with the case, said its at­tor­neys would now have to con­sid­er al­ter­na­tive dis­pute mech­a­nisms.

“The PNM sup­ports the steps to bring re­lief to the over 320 con­trac­tors and the over 11,000 work­ers af­fect­ed by the cal­lous and un­car­ing UNC gov­ern­ment,” it said.

“Ac­tions in ju­di­cial re­view and in the In­dus­tri­al Court to pro­tect the liveli­hoods of the thou­sands of vic­tims of mass fir­ings are on­go­ing with no stone be­ing left un­turned,” it added.

Guardian Me­dia un­der­stands East­man’s lawyer, Ka­reem Mar­celle, wrote to DPP Roger Gas­pard, SC, af­ter the Ap­peal Court rul­ing to in­form him of the court’s de­ci­sion in re­la­tion to re­fer­ral of the fraud­u­lent mis­rep­re­sen­ta­tion claims re­lat­ed to the re­newals.

In a press re­lease, CEPEP said it would con­sid­er tak­ing sep­a­rate le­gal ac­tion over the con­tract re­newals based on the Ap­peal Court’s re­ver­sal of the re­fer­ral to the DPP’s Of­fice.

“CEPEP, how­ev­er, re­mains com­mit­ted to the pur­suit of jus­tice in this mat­ter and has sought le­gal ad­vice on the fraud­u­lent mis­rep­re­sen­ta­tion per­pet­u­at­ed on the com­pa­ny by the for­mer chair­man,” it said.

“To this end, it will pur­sue all le­git­i­mate av­enues open to it in the in­ter­est of jus­tice and pub­lic ad­min­is­tra­tion,” it added.

Speak­ing with Guardian Me­dia be­fore at­tend­ing Par­lia­ment yes­ter­day, Pub­lic Util­i­ties Min­is­ter Bar­ry Padarath, un­der whose purview CEPEP falls, said that the com­pa­ny would be seek­ing le­gal ad­vice on whether to chal­lenge the re­fer­ral is­sue be­fore the Privy Coun­cil.

“I re­spect the rul­ing of the ap­pel­late judges, but it is not the fi­nal rul­ing be­cause we do have the op­por­tu­ni­ty to chal­lenge this at the Privy Coun­cil,” Padarath said.

He al­so re­vealed that the T&T Po­lice Ser­vice (TTPS) is ex­pect­ed to be asked to probe the al­leged re­moval of doc­u­ments re­lat­ed to the con­tracts from CEPEP’s of­fices, which he claimed oc­curred re­cent­ly.

“We feel very com­fort­able in the ac­tions we have tak­en, but what we are a bit un­com­fort­able with is why files are be­ing moved out hur­ried­ly from CEPEP as it re­lates to some of these con­trac­tors,” Padarath said.