Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

A for­mer Com­mu­ni­ty-based En­vi­ron­men­tal Pro­tec­tion and En­hance­ment Pro­gramme Com­pa­ny (CEPEP) con­trac­tor has scored a pre­lim­i­nary le­gal vic­to­ry in its law­suit chal­leng­ing the sud­den ter­mi­na­tion of its con­tract in 2020. 

In a de­ci­sion late last week, High Court Judge Robin Mo­hammed dis­missed an ap­pli­ca­tion from the State com­pa­ny to strike out the law­suit brought by Tombo and Com­pa­ny Ltd. 

Jus­tice Mo­hammed ruled that Tombo had raised tri­able is­sues in its case that had a re­al­is­tic prospect of suc­cess at an even­tu­al tri­al. 

On No­vem­ber 11, 2019, Tombo signed a three-year con­tract with CEPEP to pro­vide en­vi­ron­men­tal pro­tec­tion, en­hance­ment and waste re­moval ser­vices. 

On March 3, 2020, CEPEP ter­mi­nat­ed the con­tract with­out warn­ing or ex­pla­na­tion. Tombo was not paid for the work it per­formed be­fore the sud­den ter­mi­na­tion. 

In its law­suit, Tombo claimed a clause in its con­tract, which al­lowed CEPEP to ter­mi­nate with­out cause with 30 days’ no­tice, was un­fair, op­pres­sive, harsh and in breach of the Un­fair Con­tract Terms Act (UC­TA). 

It re­lied on an­oth­er clause of the con­tract, which stip­u­lat­ed that the con­tract would last for three years based on bi-an­nu­al per­for­mance eval­u­a­tions by CEPEP.

It con­tend­ed that an eval­u­a­tion was not per­formed be­fore ter­mi­na­tion, and it was will­ing to par­tic­i­pate in ar­bi­tra­tion and me­di­a­tion as pro­vid­ed un­der the al­ter­na­tive dis­pute res­o­lu­tion clause of the con­tract. 

In de­fence of the case, CEPEP de­nied any wrong­do­ing.

It claimed that the com­pa­ny’s ser­vices were not long enough to war­rant such an eval­u­a­tion.

It al­so con­tend­ed that the con­tract terms were fair and rea­son­able. 

In de­ter­min­ing CEPEP’s ap­pli­ca­tion, Jus­tice Mo­hammed said: “The case boils down to the in­ter­pre­ta­tion of the claus­es.” 

CEPEP was or­dered to pay the com­pa­ny’s le­gal costs for de­fend­ing the pre­lim­i­nary ap­pli­ca­tion. 

Jus­tice Mo­hammed is sched­uled to pre­side over a case man­age­ment con­fer­ence in the case on Feb­ru­ary 2. 

Ear­li­er this year, the new­ly elect­ed Unit­ed Na­tion­al Con­gress (UNC)-led coali­tion gov­ern­ment ter­mi­nat­ed the con­tracts of over 300 con­trac­tors us­ing the same ter­mi­na­tion clause as in Tombo’s case. 

One of the con­trac­tors, East­man En­ter­prise Ltd, filed a law­suit chal­leng­ing the ter­mi­na­tions as well as the clause that was utilised to ef­fect such.

CEPEP, through its lawyers led by Anand Ram­lo­gan, SC, of Free­dom Law Cham­bers, ob­ject­ed to the case on the ba­sis that the com­pa­ny failed to en­gage the al­ter­na­tive dis­pute res­o­lu­tion mech­a­nisms un­der the con­tract be­fore pur­su­ing lit­i­ga­tion. 

It al­so took is­sue with a move by the com­pa­ny’s for­mer board to re­new the con­tracts with­out the ap­proval of the Cab­i­net, days be­fore the gen­er­al elec­tion in late April. 

Jus­tice Mar­garet Mo­hammed stayed the case based on the ob­jec­tion and re­ferred con­tentious al­le­ga­tions over the re­new­al of the con­tracts to the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP).

Last month, Ap­pel­late Judges Pe­ter Ra­jku­mar, James Aboud and Ricky Rahim dis­missed East­man’s ap­peal over the stay. 

“No ba­sis has been demon­strat­ed for con­clud­ing that the tri­al judge’s ex­er­cise of her dis­cre­tion to grant a stay was plain­ly wrong,” Jus­tice Ra­jku­mar said. 

“The stip­u­la­tion that it (al­ter­na­tive dis­pute res­o­lu­tion) is a con­di­tion prece­dent to ap­proach­ing the court was clear and ex­press,” he added. 

How­ev­er, the pan­el re­versed her de­ci­sion to re­fer the case to the DPP’s Of­fice. 

“The re­fer­ral by the court to the DPP on in­com­plete and untest­ed ma­te­r­i­al in re­spect of which nec­es­sary par­ties had not had an op­por­tu­ni­ty to re­spond was pre­ma­ture and plain­ly wrong,” Jus­tice Ra­jku­mar said. 

Tombo’s case is slight­ly dif­fer­ent to East­man’s as it nev­er re­ceived pay­ment in lieu of no­tice of ter­mi­na­tion, even be­lat­ed­ly, like East­man.

It al­so ex­pressed will­ing­ness to en­gage in me­di­a­tion and ar­bi­tra­tion, un­like East­man, which con­tend­ed that such was not re­quired in its case. 

Tombo was rep­re­sent­ed by Jee­van Ram­per­sad and Stephen Boodram. CEPEP was rep­re­sent­ed by Christo­pher George and Anu­rad­ha Dean.