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The Court of Appeal has been asked to weigh in on a contentious litigation over a move by the Government to terminate over 300 Community-based Environmental Protection and Enhancement Programme Company (CEPEP) contractors.
Lawyers for Eastman Enterprise Limited yesterday filed an appeal challenging the preliminary handling of its case by High Court Judge Margaret Mohammed.
Guardian Media understands that the appeal may be heard during the Judiciary’s ongoing annual vacation period, as the company’s lawyers were expected to file a certificate of urgency in the matter.
Legal sources said CEPEP’s legal team, led by Anand Ramlogan, SC, would likely consent to the expedited hearing.
In the appeal, the company’s lawyers, led by Larry Lalla, SC, are contending Justice Mohammed erred last week when she stayed its case and referred allegations over the recent three-year renewal of the contract to the Office of the Director of Public Prosecutions (DPP).
They claimed Justice Mohammed was wrong to rule it was a requirement to pursue mediation and arbitration before litigation based on a clause of its contract. They also suggested she should have considered their application for an injunction staying the terminations and blocking the appointment of replacement contractors.
“The learned trial judge erred in law when having considered the Arbitration Act 2023, did not apply Section 12 of the said Act which permits parties to a binding arbitration agreement to approach the High Court for interim protection and for the Court to grant such protection before or during arbitration,” attorney Kareem Marcelle said court filings.
Marcelle said the judge also made preliminary findings in relation to whether Cabinet approval was required for the renewals without all the evidence in relation to it being before her and tested through cross-examination. He also noted the judge was wrong to refer the case to the DPP, as he does not have any power of investigation.
Through the appeal, the company is seeking a series of declarations over the judge’s decision and an order compelling her to consider its still pending injunction application.
Eastman filed the lawsuit after the contracts were terminated by the United National Congress-led Government in late June.
Eastman contended that CEPEP acted unlawfully, as it (CEPEP) was required to immediately pay for one month’s service as it sought to terminate, based on Clause 15 of the contract, without giving notice.
It is also contending that the clause is unfair and in breach of the Unfair Contract Terms Act 1985, as it gave CEPEP too wide a discretion to terminate.
Responding to the lawsuit, CEPEP raised the issue of the lack of Cabinet approval for the extensions. It also filed an application for the case to be struck out on the basis that the company had alternative dispute mechanisms available to it.
CEPEP put forward an affidavit from its CEO Keith Eddy, who claimed 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 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.
Eddy then filed another affidavit challenging Edwards’ claims. He further contended that before Edwards gave the alleged assurance, he (Eddy) was personally pressured by former rural development and local government minister Faris Al-Rawi into facilitating the renewals of the contracts.
CEPEP has also threatened Edwards with legal action over his role in facilitating the renewals. It has also called on the other nine members of the board to clear the air on the authority they were acting when deciding on the extensions.
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