THE Court of Appeal yesterday heard arguments challenging the decision of Justice James Aboud not to strike out the multi-million-dollar “cartel claim”, which was brought by the Estate Management Business Development Company (EMBD) against five companies and several individuals, including Opposition MP Dr Roodal Moonilal.
Two justices of the Appeal Court yesterday heard a procedural appeal brought by contractor TN Ramnauth against the decision of Justice Aboud that was delivered last August.
Senior Counsel Ramesh Lawrence Maharaj, on behalf of the company, and British Queen’s Counsel David Phillips who is leading the case for EMBD, yesterday both made submissions virtually before Justices Mira Dean-Armorer and Ronnie Boodoosingh.
At the end of the hearing, the judges did not indicate a date as to when their ruling would be delivered.
This was because Phillips was given the opportunity to file written submissions on the decision of Maharaj to introduce and rely on further legal authorities at the appeal.
The matter will again come up for hearing on February 25, when the judges may set a date for the delivery of the judgment.
During yesterday’s hearing, Maharaj submitted the claim was improperly brought since EMBD failed to provide sufficient evidence to suggest an unlawful-means conspiracy had taken place between the companies and individuals and because of the conspiracy, EMBD suffered actual pecuniary loss.
“They did not do any investigation to determine whether there was any actual pecuniary loss. They did not have any evidence to support an essential ingredient that there was actual pecuniary loss,” said Maharaj.
He said out bringing such a claim without evidence to support the allegations was an abuse of process.
He added that by doing so, his clients were being made to defend against a cause of action that was incomplete.
Maharaj said even after three years of the claim being before the court, EMBD still has not amended its claim with regard to two of the projects—Exchange III and Picton III—to show it suffered pecuniary loss.
The attorney submitted that Justice Aboud (now an Appeal Court judge) was wrong to disregard the deficiency in the case and allow it to move forward.
In response to his submissions, Phillips said his client was the victim of a “calculated and sophisticated conspiracy”.
Phillips said Justice Aboud was correct in exercising his discretion to allow the claim to proceed since the evidence that was presented sufficiently raised an inference of fraud and an unlawful-means conspiracy.
The attorney went on to add, as Justice Aboud had stated in his 100-page ruling, that it was impossible for EMBD to provide the actual financial losses it had suffered from the Exchange III and Picton III projects until the expert reports were complete.
After the reports have been completed, Phillips said the claim would be appropriately amended.
In his ruling, Justice Aboud had stated: “Someone has to explain at the appropriate time in a way that is sensible how it is that these unusual patterns, oddities and inconsistencies can exist other than by collusion by contractors.”
He went on to say it would have been a dereliction of duty on the part of the court if the matter did not proceed and have those who may have been culpable for alleged fraud-related offences and breach of fiduciary duty be called upon to account.
The case centres around 12 contracts for the rehabilitation of road infrastructure that were granted to the five contractors between May and September 2015, just months before that year’s general election.
Before the court is a consolidation of claims by former EMBD chief executive officer Gary Parmassar; former divisional manager Madhoo Balroop; Andrew Walker and companies Fides Ltd, TN Ramnauth, Mootilal Ramhit and Sons, Kallco Company Ltd, Namalco Construction and LCB Contractors.
EMBD is alleging that there were breaches of fiduciary duties and engagement in cartel behaviour, bribery, illegal collusion to enrich themselves along with dishonest assistance and unlawful-means conspiracy.
The case alleges that the contractors obtained the contracts, certification and payments from the EMBD by reason of collusion between themselves and others.