Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

A con­tract­ing com­pa­ny is ap­peal­ing a judge’s de­ci­sion to dis­miss its $90 mil­lion law­suit against the To­ba­go House of As­sem­bly (THA) over un­paid fees and in­ter­est for an in­fra­struc­ture project. 

In the ap­peal, Raghu­nath Singh and Com­pa­ny Lim­it­ed, through its at­tor­neys led by Pe­ter Tay­lor, is claim­ing that High Court Judge Frank Seep­er­sad was wrong to have dis­missed its case at a pre­lim­i­nary stage ear­li­er this year. 

Jus­tice Seep­er­sad’s de­ci­sion was main­ly based on the com­pa­ny’s de­lay in bring­ing the lit­i­ga­tion, af­ter its ne­go­ti­a­tions with the THA broke down years ago. 

Re­fer­ring to the pro­vi­sions of the Lim­i­ta­tion of Cer­tain Ac­tions Act, Jus­tice Seep­er­sad said, “This court is res­olute in its view that all of the claimant’s claims com­menced more than four years af­ter the ac­cru­al of the cause of ac­tions. Con­se­quent­ly, they are all statute-barred and must be dis­missed.” 

De­spite his find­ing, Jus­tice Seep­er­sad still metic­u­lous­ly con­sid­ered the mer­its of the com­pa­ny’s claims and re­ject­ed them.

“Hav­ing en­gaged in this man­ner of ex­am­in­ing the ev­i­dence in this case, the court is res­olute in its view that the claimant has failed to dis­charge it bur­den to prove on a bal­ance of prob­a­bil­i­ties that the sums of mon­ey claimed as be­ing due and ow­ing to it are, in fact, due and ow­ing,” Jus­tice Seep­er­sad said. 

The law­suit re­lat­ed to a ap­prox­i­mate­ly $40 mil­lion con­tract for the con­struc­tion of the L’Anse Four­mi-Char­lot­teville Road. 

In May 2002, the Cen­tral Ten­ders Board award­ed the com­pa­ny the con­tract af­ter a ten­der­ing process. 

Un­der the terms of the con­tract, the com­pa­ny was re­quired to pro­vide a per­for­mance bond of ten per cent of the con­tract sum and com­plete the work with­in 18 months of the site be­ing hand­ed over. 

The work was com­plet­ed by the com­pa­ny in March 2007, as it claimed that the project was de­layed by vari­a­tions in de­signs by the THA, in­clement weath­er, cost fluc­tu­a­tions, leg­isla­tive changes and reg­u­la­to­ry ap­provals de­mand­ed by the En­vi­ron­men­tal Man­age­ment Au­thor­i­ty (EMA). 

It claimed that the fi­nal cost of the project was $58,280,366.36 and it was on­ly paid $31,266,900.05. It al­so con­tend­ed the THA re­tained the ma­jor­i­ty of the per­for­mance bond. 

Through the law­suit, the com­pa­ny was seek­ing the $27,053,466.31 bal­ance and $53,464,548.62 in in­ter­est. 

In de­fence of the case, the THA claimed the cost over­runs claimed by the com­pa­ny were not prop­er­ly sub­mit­ted to its en­gi­neer for ver­i­fi­ca­tion and ap­proval un­der the terms of the con­tract. 

The THA al­so claimed the law­suit should have been brought against its chief ad­min­is­tra­tor named in the con­tract and it (the case) was filed out­side the four-year lim­i­ta­tion pe­ri­od. 

Jus­tice Seep­er­sad ruled that the THA was a prop­er par­ty to the law­suit as the project was for its ben­e­fit, was with­in the sphere of its statu­to­ry re­spon­si­bil­i­ties and pay­ments were made by it. 

How­ev­er, he up­held its claim in re­la­tion to the de­lay in pur­su­ing the law­suit and over the pro­ce­dure used by the com­pa­ny to make the claims for the over­runs. 

As part of his de­ci­sion, Jus­tice Seep­er­sad or­dered the com­pa­ny to pay the THA $636,590,07 in le­gal costs, which was based on the val­ue of com­pen­sa­tion it sought in the case. 

In the ap­peal, the com­pa­ny is claim­ing Jus­tice Seep­er­sad made er­rors in as­sess­ing the facts in the case and in ap­ply­ing the law in re­la­tion to the con­trac­tu­al dis­pute. 

The com­pa­ny was al­so rep­re­sent­ed by Egon Em­brack, and Ne­han­da Samuel. 

The THA was rep­re­sent­ed by Rus­sell Mar­tineau, SC,  Do­minique Mar­tineau and Avionne Thomas.