2 weeks ago
4
Derek Achong
Senior Reporter
Director of Public Prosecutions (DPP) Roger Gaspard has been asked to look into purported conduct of former rural development and local government minister Faris Al-Rawi, in procuring the three-year renewal deals of over 300 Community-based Environmental Protection and Enhancement Programme Company (CEPEP) contractors.
High Court Judge Margaret Mohammed referred the issue to the DPP yesterday, as she upheld an application from CEPEP’s legal team led by Anand Ramlogan, SC, to stay a lawsuit from one of the contractors over the termination of the contracts.
In her 25-page decision, Justice Mohammed noted that CEPEP had raised serious concerns over a decision taken by its former board to extend the contracts, which were due to end next year, to September 2029, days before the April 28 General Election.
She ruled that its claim that the renewals were facilitated based on a fraudulent misrepresentation of Cabinet approval, allegedly given to former CEPEP chairman Joel Edwards by Al-Rawi, was sufficient enough to be probed by the DPP’s Office.
“The serious matters concerning the extension of the agreement to September 2029 necessitate the granting of a stay of the claim and all proceedings and a referral of all the documents filed in this action to the DPP for his consideration,” Justice Mohammed said.
Justice Mohammed noted that although Al-Rawi’s alleged conduct was raised in the case, he was not a party to the matter and did not give any evidence.
“In my view, based on the serious allegation made against him, it is only fair that he is given an opportunity to respond,” Justice Mohammed said.
“In those circumstances, it is prudent at this stage to grant a stay of this claim and all proceedings and to refer the documents filed in this action to the DPP for his consideration.”
She also found merit in CEPEP’s claim that Laventille-based general contracting company Eastman Enterprise Limited, assisted by the People’s National Movement (PNM), rushed to file the lawsuit when a clause in its contract provided for mediation and arbitration before litigation.
“The claimant did not take all steps possible to comply with pre action protocol prior to filing the instant action. Such conduct cannot be condoned and has worked in favour of granting a stay of the proceedings,” Justice Mohammed said.
In a statement issued shortly after the decision was handed down, CEPEP, under continuing CEO Keith Eddy, said the company welcomed the development, as the issue with the contract renewals was serious and set a dangerous precedent for corporate governance.
“CEPEP stands ready, willing and able to assist the DPP, Anti-Corruption Investigations Bureau (ACIB) and the Fraud Squad with a thorough investigation into this matter,” it said.
The company maintained that Eddy and its former board acted based on the purported Cabinet approval.
“All board members had a fiduciary duty to act in the best interest of the company; and if any of them had information to the contrary, it was not disclosed to executive management. There was simply no mention of any “error” as is now being belatedly raised,” the release said.
CEPEP also noted that while Al-Rawi commented on the case at press conferences, he failed to directly address the allegation that he informed Edwards that the then-cabinet had approved the renewals.
“Unfortunately, Senator Al-Rawi, who has been very vocal about this case, did not file any evidence on this important issue as it relates to the alleged fraud perpetuated against the company,” Eddy said.
“We therefore call upon him to clear the air in the public interest.”
It also claimed further legal action may be pursued by the company in relation to the renewals.
“CEPEP therefore intends to seek legal advice on this matter and shall leave no stone unturned, because it is determined to get to the truth,” it said.
“If the company was deceived into taking this decision, then there will be legal consequences and the chips will fall where they must.”
Eastman filed the lawsuit after the contracts were terminated by the United National Congress-led coalition Government in late June.
Eastman contended that CEPEP acted unlawfully, as it was required to immediately pay for one month service as it sought to terminate, based on Clause 15 of the contract, without giving notice. The clause allows CEPEP to terminate by giving 30 days notice or making a payment in lieu of notice, if the company fails to meet its contractual obligations or performance assessments conducted by CEPEP officials.
It alleged that while it was promised that the payment would be processed and dispensed when CEPEP notified the company of the termination, the payment should have been made together with the termination letter.
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 of a discretion to terminate.
It sought an injunction to stay the termination and to block the State company from appointing replacement contractors while its substantive case is being determined. 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 Eddy, who claimed that Edwards gave assurances to him and the company’s board that Cabinet 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 it was being done with the blessing of the then-cabinet.
Eddy then filed another affidavit challenging Edwards’ claims.
Eddy provided a transcript of WhatsApp messages between him and Eddy to buttress his original claim.
He further contended that before Edwards gave the alleged assurance, he (Eddy) was personally pressured by Al-Rawi into facilitating the renewals of the contracts.
CEPEP has also threatened Edwards with legal action over his role in facilitating the renewals.
CEPEP suggested that through the proposed lawsuit, it would be seeking an order against him to indemnify it against any losses it may sustain in relation to the extended contracts and their subsequent terminations.
Addressing a People’s National Movement public meeting at the Malabar Community Centre last month, former finance minister Colm Imbert claimed that in 2017, the then-cabinet, of which he was part, delegated the authority to extend contracts to CEPEP’s board.
“That was never rescinded. That note was never varied. Even the same UNC has not rescinded that,” Imbert said.
CEPEP was also represented by Kent Samlal, Jared Jagroo, Natasha Bisram and Asha Ramlal.
The contractor was represented by Larry Lalla, SC, St Clair O’Neil, and Kareem Marcelle.
Al-Rawi responds
In a statement issued yesterday, Al-Rawi said he had no issue with the investigation into the issue by the DPP.
Al-Rawi said: “Any proper investigation into this matter and any questions arising is welcomed.”
Noting that he was not a witness in the case, Al-Rawi also pointed out that Justice Mohammed did not have sight of the Cabinet note over the ability of CEPEP’s board to extend contracts without the cabinet approval that was previously referenced by Imbert.
“It is starkly relevant to note that these cabinet decisions and other critical material have not been disclosed in the Eastman proceedings and were therefore NOT before the Honourable Madame Justice Mohammed in her deliberations leading to the ruling today,” Al-Rawi said.
Al-Rawi also took issue with the fact that CEPEP was represented by lawyers led by Anand Ramlogan, SC.
He referenced his (Al-Rawi) involvement in the criminal legal fee kickback against Ramlogan.
That case was discontinued by DPP Gaspard due to the unwillingness of State witness Vincent Nelson, KC, to testify while his lawsuit, over an indemnity agreement signed by Al-Rawi, is still pending.
Al-Rawi said: “It is not lost upon me that the team advising CEPEP in the Edwards matter is led by Anand Ramlogan, SC, who is the subject of many witness statements given by me at the request of the TTPS in relation to criminal investigations and charges against him.”
“Accordingly, I remain vigilant against any improper purpose which may reside in any matter where Mr Ramlogan may be involved,” he added.
Al-Rawi did not directly address the allegation that he gave former CEPEP chairman Edwards assurances that the renewal of the contracts was approved by the then-cabinet.
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