The Court of Appeal will have to decide whether a multi-million dollar cartel case, brought by the Estate Management and Business Development Company Ltd (EMBD) against a group of contractors, former officials and former housing minister Dr Roodal Moonilal, should proceed while some of them (the defendants) pursue a final appeal over preliminary legal issues.
In late January, Appellate Judges Charmaine Pemberton, Peter Rajkumar and Vasheist Kokaram dismissed an appeal from the contractors over the refusal of former High Court Judge and current Appellate Judge James Aboud to strike out the case against them at a preliminary stage.
At the time, the appeal panel gave all the defendants a deadline of March 20 to file their defences to the case, which were put on hold pending the determination of the appeal.
When the case came up for hearing before Justice Frank Seepersad yesterday morning, EMBD's David Phillips, KC, indicated that those defendants who are not pursuing a final appeal before the United Kingdom-based Privy Council, should file their defences to progress the case.
"This case has been going on for an unbelievably long time. We can progress the proceedings that will go ahead no matter what," Phillips said.
Some of the defendants expressed concern over potentially having to amend their defences if the Privy Council eventually upholds the legal challenge.
After hearing their submissions, Justice Seepersad recommended that the parties apply for a stay of the proceedings when the Court of Appeal considers whether their co-defendants should be granted conditional leave for the appeal.
"While I appreciate the inordinate time this matter is engaging the court's attention and has not gotten off the ground, but my hands are tied in so far as the appellate process must be engaged," Justice Seepersad said, as he adjourned the case for a status hearing on April 29.
"I will be ready, willing, and able to further case manage if no stay is granted and defences have been filed," he added.
The substantive lawsuit centres around 12 contracts for the rehabilitation of roads and infrastructure, which were granted to five contractors before the September 2015 general election.
Contractors TN Ramnauth, Mootilal Ramhit and Sons Contracting Ltd (Ramhit), and Kall Company Ltd (Kallco) initiated the proceedings against the State-owned special purpose company for the almost $200 million balance owed on their respective contracts.
EMBD countersued the contractors, claiming that they, as well as contractors Fides and Namalco, conspired together with Moonilal, former EMBD CEO Gary Parmassar, former divisional manager Madhoo Balroop, and engineer Andrew Walker to corruptly obtain the contracts.
It also claimed that the parties agreed to facilitate the contractors receiving preliminary payments for the work which was allegedly overpriced and substandard and utilised a loan, meant to pay for other legitimate contracts, to make interim payments to the contractors.
Through the lawsuit, EMBD is seeking a series of declarations against the parties, including one on the illegality of the contracts.
The contractors' application to strike out the case was rejected by Justice Aboud in August 2020.
Justice Aboud ruled that EMBD had presented sufficient preliminary facts, which should be determined by the court at an eventual trial.
In agreeing with their colleague, the appeal panel ruled that EMBD had properly pleaded that it suffered actual pecuniary loss as a result of the alleged unlawful means conspiracy between the contractors and State officials.
They noted that although EMBD did not quantify the losses it incurred when it filed the case, it could do so when it goes to trial.
"If or when the report referred to in the respondent's pleading becomes available the respondent may choose to fine tune its case by amendment," Justice Rajkumar said.
Justice Rajkumar also rejected claims that EMBD's pleadings did not properly give particulars linking the contractors to the purported conspiracy so they could mount their defences.
He also stated that the pleaded case did not need to show the subjective knowledge of the parties.
"That is because the pleaded actions of the appellants, regardless of the names of any individuals therein, are arguably only consistent with their being the product of conscious, deliberate, and intentional action by a controlling mind or will within each appellant company, designed to dishonestly extract payments from EMBD to which they were not entitled," he said.
The contractors pursuing the final appeal are represented by Ramesh Lawrence Maharaj, SC, Jagdeo Singh, Kiel Taklalsingh, Jamie Amanda and Karina Singh.
EMBD is also represented by Jason Mootoo, SC, Savitri Sookraj-Beharry and Tamara Toolsie.