Derek Achong

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 in the State com­pa­ny.

De­liv­er­ing a judg­ment a short while ago, Ap­pel­late Judges Pe­ter Ra­jku­mar, James Aboud and Ricky Rahim dis­missed East­man En­ter­prise Ltd’s ap­peal over a judge’s de­ci­sion to stay the case.

The pan­el ruled that High Court Judge Mar­garet Mo­hammed could not be fault­ed for stay­ing the claim based on East­man’s fail­ure to en­gage in me­di­a­tion and ar­bi­tra­tion be­fore lit­i­ga­tion, in ac­cor­dance with a clause un­der its con­tract.

How­ev­er, the pan­el ruled that the judge was wrong to re­fer pre­lim­i­nary al­le­ga­tions over the mass re­new­al of con­trac­tors days be­fore the gen­er­al elec­tion in late April to the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions.

The judges said the re­fer­ral was pre­ma­ture as the ev­i­dence be­fore her was in­com­plete and untest­ed.

Pre­sent­ing sub­mis­sions last month, East­man’s lawyer Lar­ry Lal­la, SC, said the judge was wrong to find that the com­pa­ny was re­quired to en­gage in me­di­a­tion and ar­bi­tra­tion be­fore seek­ing an in­junc­tion to stop the cur­rent Unit­ed Na­tion­al Con­gress coali­tion gov­ern­ment, led by Prime Min­is­ter Kam­la Per­sad-Bisses­sar, from ter­mi­nat­ing the con­tracts.

While he ac­cept­ed that the al­ter­na­tive dis­pute res­o­lu­tion clause in the con­tract was valid, Lal­la said it was not manda­to­ry.

He al­so ar­gued that Cepep was re­quired to give 30 days’ no­tice or pay his client a month’s ser­vice in lieu of no­tice.

Lal­la fur­ther con­tend­ed that the judge over­stepped by re­fer­ring the re­new­al is­sue to the DPP’s Of­fice when the ev­i­dence was still at a pre­lim­i­nary stage.

“Un­der the Con­sti­tu­tion, the DPP has no pow­er to in­ves­ti­gate. He can in­sti­tute crim­i­nal pro­ceed­ings but that comes af­ter an in­ves­ti­ga­tion,” Lal­la said.

Lal­la al­so re­ject­ed al­le­ga­tions that the re­newals were fraud­u­lent on the ba­sis that they were not ex­press­ly ap­proved by the then Cab­i­net.

“There is no ev­i­dence that Cab­i­net ap­proval was re­quired,” Lal­la said, as he re­ferred to an ad­den­dum to the con­tract which he sug­gest­ed guar­an­teed his client a three-year ex­ten­sion.

He said al­le­ga­tions made by Cepep re­lat­ed to as­sur­ances from for­mer chair­man Joel Ed­wards over Cab­i­net giv­ing the green light to the re­newals were ir­rel­e­vant, as they did not in­volve East­man.

“There is noth­ing to im­pli­cate East­man over what was go­ing on in Cepep,” Lal­la said.

Re­spond­ing, Cepep’s lawyer Anand Ram­lo­gan, SC, said the judge could not be fault­ed for her han­dling of the case.

“She was plain­ly jus­ti­fied and right,” Ram­lo­gan said.

Ram­lo­gan urged the pan­el to up­hold the judge’s find­ings on the al­ter­na­tive dis­pute res­o­lu­tion clause, sug­gest­ing that re­vers­ing the de­ci­sion may sig­nif­i­cant­ly af­fect com­mer­cial dis­putes in T&T.

“The par­ties in­tend­ed the al­ter­na­tive dis­pute res­o­lu­tion clause to be bind­ing and ef­fec­tive,” he said.

Ram­lo­gan al­so said the com­pa­ny was even­tu­al­ly paid for a month’s ser­vice af­ter be­ing of­fi­cial­ly no­ti­fied of the ter­mi­na­tion in late June.

On the re­fer­ral, Ram­lo­gan said the judge act­ed with­in her dis­cre­tion as she was faced with ev­i­dence that Cepep’s for­mer board was mis­led on Cab­i­net ap­proval.

“This was an at­tempt to hand­cuff Cepep to ex­ist­ing con­trac­tors… This in­volved pub­lic funds to the tune of $1.4 bil­lion,” Ram­lo­gan said.

He said that if the re­fer­ral even­tu­al­ly led to crim­i­nal pros­e­cu­tion, it would form an­oth­er valid ground to ter­mi­nate the con­trac­tors.

“It is fraud and the re­new­al would be fruit from a poi­soned tree,” Ram­lo­gan said.

Cepep was al­so rep­re­sent­ed by Kent Sam­lal, Jared Ja­groo and Asha Ram­lal. St Clair O’Neil and Ka­reem Mar­celle ap­peared with Lal­la for East­man.