THE REPUBLIC OF TRINIDAD & TOBAGO

IN THE HIGH COURT OF JUSTICE

CLAIM NO. CV2018-03693

BETWEEN

RAMASRAY BROTHERS GENERAL CONTRACTING COMPANY LIMITED

Claimant

And

PALO SECO AGRICULTURAL ENTERPRISES LIMITED

First Defendant

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Second Defendant

Before the Honourable Mr Justice Frank Seepersad

Date: 19 May, 2021.

Appearances:
1. Mr. Anand Beharrylal QC and Mr. Zeik Ashraph Attorneys-at-law for the Claimant.
2. Mr. Rennie Gosine, Attorney-at-law for the First Defendant.
3. Mr. Duncan Byam and Mr. Brent James, Attorneys-at-law for the Second Defendant.

DECISION:

1. Before the Court for its determination is the Claimant’s Re-Amended Claim Form and Re-
Amended Statement of Case filed on 29 May 2019 whereby the Claimant seeks the
following reliefs:
a. The specified sum of $853,926.75 owed pursuant to the contract;
b. Consequential losses of $163,322.56 as interest incurred on the Claimant’s use of
its commercial banking overdraft facility;

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 c. Interest pursuant to Section 25 of the Supreme Court of Judicature Act Ch. 4:01 in
the sum of $128,089.01 from 30 September 2015 to 30 September 2018 or to the
date of payment and/or judgment on the specified sum;
d. Interest pursuant to Section 25A of the Supreme Court of Judicature Act Ch. 4:01
at the statutory rate of 5% from the time of entering up the judgment until the same
shall be satisfied;
e. Costs; and
f. Further and other relief.

The Claimant’s facts:

2. The Claimant company is in the business of general contracting. The First Defendant was
a Special Purpose State Enterprise and was responsible for the acts of the Ministry of
Labour and Small Enterprises Development in relation to the establishment of a Heroes
Park and Museum in Fyzabad (the project).

3. Both the Claimant and the First Defendant entered into a written contract for aspects of the
preparatory work required on the project and in particular landscaping work.

4. The contract contained, inter alia, the following express terms:

a. Paragraph 4- “In consideration of the execution and completion of the works by the
Contractor as aforesaid the Employer hereby covenants to pay to the Contractor
the Contract Sum in accordance with its Financial Proposal annexed as B”.
b. Paragraph 5- “The Employer and the Contractor for themselves and their assigns
mutually covenant that they will respectively perform and observe the several
provisions of the contract to be performed and observed by them respectively under
this Agreement”.
c. Paragraph 20.1(d)- “Notwithstanding any other provision hereof to the contrary,
PSAEL may terminate the Contract at any time in its sole discretion by giving not
less than thirty (30) days’ notice to the Contractor”.

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 d. Paragraph 20.3- “Suspension or Termination shall be without prejudice to any
accrued rights or remedies of either party”.
e. Paragraph 20.8- “Upon termination of the contract, PSAEL shall make payment to
the Contractor for work satisfactorily performed prior to the effective date of
termination”.
f. Paragraph 34.1- “The Parties shall use their best efforts to settle amicably any
dispute controversy or claim arising out of or related to the Contract, or breach,
termination or invalidity of the contract”.

5. The agreed amount to be paid by the First Defendant to the Claimant was $1,566,200.00
(exclusive of VAT) and $1,801,130.00 (inclusive of VAT at the then statutory rate of 15%)
and the Claimant was paid the sum of $947,203.25 on various dates for works done.

6. The Claimant pleaded that the First Defendant abruptly terminated the project by word of
mouth through Mr Gulcharan, a servant/agent of the Second Defendant, without the
requisite 30 days’ notice and outlined that the First Defendant did not pay any more monies
after the date of termination and claimed that the Defendants owe the sum of $853,926.75.

7. Since the 30 September 2015 the Claimant attempted to amicably settle the outstanding
claim but the First Defendant refused to make any payment. A pre-action protocol letter
was sent on 5 March 2018 seeking the sum of $853,926.75 and by letter dated 21 March
2018 the First Defendant replied seeking additional time to respond. Further
correspondence was had which led to a meeting on 5 June 2018. At this meeting the First
Defendant did not dispute the outstanding payment and debt owed.

8. Prior to institution of the claim, the First Defendant did not inform the Claimant of the
existence of the contractual relationship it had with the Second Defendant. This was
formally revealed when the First Defendant filed its Defence on 31 January 2019. Counsel
for the Claimant wrote to the Permanent Secretary of the Second Defendant on 6 February
2019 inviting an indication as to its position regarding admission of liability or an
application to be joined as a party. On 18 February 2019 the Second Defendant confirmed

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 the existence of an agreement between the First and Second Defendant. Subsequently, the
claim was amended to include the Second Defendant.

9. As a consequence of the First Defendant’s breach, the Claimant asserted that it had to
utilize its commercial overdraft facility in the sum of $600,000.00 from 30 September 2015
and incurred interest from 25 August 2015 in the sum of $163,322.56.

10. The Claimant also claims interest on the $853,926.75 in the sum of $128,089.01 from 30
September 2015 to 30 September 2018 at a rate of 5% to the date of payment/ judgment.

First Defendant’s Facts:

11. The First Defendant pleaded that by virtue of a Memorandum of Understanding dated 26
September 2014 between itself and the Ministry of Labour and Small and Micro Enterprise
Development (the Ministry), it agreed to act on behalf of the Ministry and asserted that the
Claimant was aware of same. The First Defendant’s view is that the Ministry is responsible
for settling all payment sums due to the Claimant for work done on the project.

12. The First Defendant’s responsibilities, as agent, were restricted mainly to the execution of
the design and construction works required for the project.

13. The First Defendant pleaded that Clause 5.3 of the contract stated that it would pay the
Contractor the sums owed within 30 days of approval of the invoice by the Ministry.
Furthermore, the First Defendant pleaded that all payments due were made to the Claimant
and that as at the 30 September 2015 the Claimant completed 66.5% of the contracted work
on the project.

14. The First Defendant admitted that works on the project stopped on 30 September 2015 but
denied that the works were stopped in the manner as pleaded by the Claimant.

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 15. The First Defendant outlined that it had no knowledge of the Claimant’s overdraft facility
and denied that it was responsible for any consequential losses suffered by the Claimant.

Second Defendant Facts:

16. The Second Defendant denied that the First Defendant acted on behalf of the Ministry as
its servant and/or agent and further denied each material allegation as pleaded by the
Claimant.

The Evidence:

17. At the trial, the Claimant relied on the evidence of Mr Narvin Ramasray and Mr Wazir
Hosein. The First Defendant relied on the evidence of Ms Laura Williams-Pran and Mr
Steve Smith. No evidence was adduced by the Second Defendant.

The issues:

18. The relevant issues to be determined are as follows:

a. Whether there exists a valid contract between the Claimant and the First Defendant;
b. Whether the First Defendant acted as the agent of the Second Defendant;
c. Whether the Claimant's contract was prematurely determined by the First
Defendant and/or the Second Defendant or whether the Claimant walked off the
job;
d. Whether the Claimant is entitled to damages for breach of contract and if so what
quantum should be paid and by whom should the payments be made.

Resolution of the issues:

Issue 1: Whether there exists a valid contract between the Claimant and the First Defendant:

19. The evidence in this case clearly established that there was in place an arrangement as
between the Claimant and the First Defendant for the execution of specified work at the
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 site proposed for establishment of a Labour Heroes Museum at Fyzabad. This arrangement
gave rise to enforceable obligations as between the contracting parties. The Court found
that the Claimant's witness Narvin Ramasray gave compelling and unchallenged evidence
with respect to the existence of the said contract.

20. Neither the Instructions to tender nor the General Conditions of contract demonstrated that
the First Defendant was the agent of the Claimant. The documents outlined that
clarification had to be obtained from Mr Jeevan Lal and not the Ministry. Further clause
5.1 pellucidly outlined that the First Defendant would pay the Claimant once satisfied that
the work was fully and satisfactory completed.

21. Accordingly, the Court finds as a fact that the Claimant had a contract with the First
Defendant to undertake work on the project.

Issue 2: Whether the First Defendant acted as the agent of the Second Defendant:

22. The Claimant's contract with the First Defendant mentioned no arrangement or agreement
with Second Defendant and no such reference was made in the pre action correspondences.
This issue first arose in the First Defendant's defence and by its Exhibit A, the First
Defendant referenced a Memorandum of Understanding which it had with the Ministry.
The Memorandum at Article 1 outlined and stated as follows: “MOLSMED HEREBY
APPOINTS PSAEL and PSAEL HEREBY ACCEPTS THE APPOINTMENT to act as the
agent of the MOLSMED with respect to the establishment of the HP&M”.

23. The First Defendant’s two witnesses, Ms Williams-Pran and Mr Smith both confirmed the
existence of an agency relationship with the Ministry and their evidence was not challenged
in cross examination by the Second Defendant.

24. The Second Defendant at paragraph 4 of its Defence accepted that it is responsible for the
acts of the Ministry but denied that the First Defendant acted as its agent or with its

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 ostensible authority with respect to the contract. At the trial the Second Defendant led no
evidence having failed to file any witness statements.

25. The Second Defendant also failed to address the purport and effect of a letter sent by the
Ministry dated 18 February 2019 which stated, inter alia, “… As stated in Palo Seco
Agricultural Enterprises Ltd (“PSAEL”) Defence of January 29, 2019, the Ministry
confirms the existence of an agency relationship between PSAEL and the Ministry by virtue
of the Memorandum of Understanding dated September 26, 2014”. This unchallenged letter
pellucidly outlined that the Ministry considered that it had an agency relationship with the
First Defendant.

26. The Second Defendant however, in its submissions, raised the purport and effect of the
Central Tenders Board Act Chap. 71:91 (the CTBA) and relied on the case of P-013 of
2018 The Attorney General v Motilal Ramhit and Sons Contracting Limited. In the
said matter the Court of Appeal said as follows :

“7. In relation to the first issue the trial judge was wrong to dismiss the application
to strike out. The instant contract is between EFCL and the respondent. The CTBA,
(subject to exceptions which are inapplicable here), by its express terms confers
sole and exclusive authority on the CTB to act for, in the name or on behalf of the
Government in accepting offers for the supply of articles or for the undertaking of
works or any services in connection therewith necessary for carrying out the
functions of the Government. Accordingly it does not authorize or permit any party
or entity other than the CTB, to be an agent of the State for the purpose of a contract
with the State, such as the instant contract, for the supply of articles or for the
undertaking of works or any services in connection therewith necessary for carrying
out the functions of the Government.

8. In the instant circumstances the express language of the CTBA does not permit
any scope for agency on behalf of the State whether actual or apparent, other than
by the CTB. Likewise for the same reason neither estoppel nor representation could

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 be invoked to establish such agency as the CTBA similarly will expressly preclude
any such agency on behalf of the State by any party other than the CTB.

9. Neither does it permit the converse, because EFCL is statutorily precluded from
being an agent of the State and the State is precluded from being the principal of
EFCL under such a contract. Because the CTBA expressly does not permit the State
to be a disclosed principal of any party other than the CTB, it equally therefore
cannot permit the State to be an undisclosed principal under a contract such as the
instant contract between EFCL and the respondent. Therefore none of the above
mechanisms would have been effective in law to permit EFCL to have been an
agent of the State in the instant circumstances so as to permit the creation of any
contract between the respondent contractor and the appellant under which the State,
(in addition to EFCL), could be liable as a principal.

10. Because, as a matter of law, the claim in agency against the State is precluded
by the express terms of the CTBA, even evidence at trial of any such agency
whether via actual, apparent or ostensible authority, representation, or estoppel was
not capable of overriding the statutory prohibition against agency on behalf of the
State, in relation to the subject contract, by any party other than the CTB.”

27. In the Ramhit decision (supra) the Court outlined that the CTBA was a substantive one and
that the Central Tenders Board (CTB) was the State’s exclusive agent for the entry into
contracts above specified monetary limits.

28. In Civ App No P-009 of 2014 The Attorney General of Trinidad and Tobago v
Trinisalvage Enterprises Limited the court at paragraph 23 opined in relation to the
provisions of the Central Tenders Boards Act and its interplay with the law as to unjust
enrichment as follows:

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“23. Unjust enrichment is a direct issue in this appeal. I have carefully considered
the provisions of the Act and I can discern no policy within the provisions of the
CTB Act, express or implied, which will be stultified if the claimant succeeds in
his claim in unjust enrichment. The Act establishes the Board but its provisions do
not show any underlying intention to prohibit the enforcement of the rights of an
innocent party who has entered into a contract which is ultra vires its provisions. I
consider that the limitations placed on the P/S’ power to contract appear at best to
be for purely administrative convenience. I would also have expected that the Act
would have explicitly prohibited the enforceability of any legal or equitable rights
arising out of any contract which was outwith its provisions. The decisions of this
court in Water and Sewerage Authority v. Sooknanan Singh, Civil Appeal No. 106
of 1989 and The Attorney General of Trinidad and Tobago v. Mootilal Ramhit and
Sons Contracting Ltd., Civil Appeal No. 124 of 1996 (to which I shall come)
support this approach.
…
27. In my judgment, the same applies to the case at bar. If it were intended to
prohibit the enforcement of rights other than through a contract issued under the
authority of the Central Tenders Board, it surely, as a matter of policy, would have
been expressly set out in the Act. Further, not only has the State benefitted from the
works, but all moneys due on the principal have been paid in full although the
contract was unenforceable. Indeed, the full facts of this case have surely not been
revealed. It is more than a little odd that no objection was taken to payment of the
principal which was comfortably over the statutory limit of the P/S’ authority but
such strong objection to the variation costs has been taken. The approach of de la
Bastide CJ in Sooknanan Singh is consistent with the modern approach.

…
29. The same must apply here. There is no suggestion that the claimant was aware
of the P/S’ lack of authority or that there was otherwise some element of collusion
on its part such as to circumvent the provisions of the Act. The respondent was not
seeking to go behind the Act’s provisions. It is simply that the P/S, as a matter of

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 fact, lacked the authority which, on the face of it, he appeared to have. The
respondent was not deliberately seeking to circumvent the provisions of the Act. It
should not be punished except by clear statutory provision for the P/S’s error.
Indeed, it would have been an entirely different matter if it had been shown that the
respondent was well aware of the P/S’ lack of authority. The Act does not prohibit
it from pursuing its remedies. The contract was ultra vires because the P/S as agent
of the State had no authority to bind the State for so large an amount of works and
services. It does not appear from the Act that there is any penalty imposed on the
P/S in this case. Even more compelling is the fact that the principal has been paid
in spite of his lack of authority. But there is certainly no provision in the Act barring
the claimant, an innocent party, from recovering damages on a quantum meruit
basis on a claim for unjust enrichment.”

29. At page 298 of the Trial Bundle the Claimant exhibited an unchallenged extract from the
Hansard of the Parliament of Trinidad and Tobago which recorded statements made by
Sen. The Hon. Jennifer Baptiste-Primus on 23 March 2018 which are as follows:

“… However, given the financial situation which this current Government met
when it took office in September 2015 and the continuing economic challenges to
date, the project to establish a labour heroes museum has been placed on hold at
this time. With the limited financial resources available to us, we are focusing
attention on some current pressing issues facing the labour landscape, such as
unemployment, retrenchment, labour legislation reform, and establishing a
framework of rights and responsibilities in the workplace. …”

30. The tenor of the Hansard record reinforced, on a balance of probabilities, that the Ministry
was aware of the Labour Heroes Museum project and had taken certain decisions based on
the operative financial situation which faced the Government.

31. During the management of this matter the Second Defendant filed its list of documents and
included therein at Item 52 was a document which outlined that one Dhanraj Gulcharan

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 had been appointed as special advisor by the Ministry to the Labour Heroes Museum
project.

32. In the filed submissions, issue was taken with the Second Defendant’s reliance upon the
provisions of the CTBA but the Court holds the view that the Second Defendant’s general
pleaded denial of the existence of an agency with the First Defendant was sufficient and
there was no need to plead its reliance upon the provisions of the Act.

33. During her cross examination, Ms Willams-Pran said that she was unable to comment as
to why the contract between the First Defendant and the Claimant failed to mention that
the First Defendant was acting as the agent of the Ministry and no documentation reflective
of any communication as between the First Defendant and the Ministry was put before the
Court.

34. The Ramhit case (supra) is binding upon this Court and places an inflexible duty upon the
Government to abide and act within the parameters of the CBTA. Citizens and incorporated
citizens, however, in a functional democracy should be able to operate under a
presumption of regularity and trust that the government and its functionaries would act
lawfully, not exploit them or take advantage of their efforts without recompense. This
Court respectfully holds the view that the Court of Appeal's interpretation of the CTBA is
unduly restrictive and inconsistent with the expressed intent outlined in the preamble of
the Republican Constitution which states that “that labour should not be exploited.” The
strictures which result from the said interpretation can, prima facie, encourage exploitation,
by the State, of innocent providers of services or labour whose contractual engagement was
with a State Owned Special Enterprise and the said arrangements was sanctioned by the
State. A more practical approach is required and where, as in this case, there was an
unequivocal entry into an agency arrangement between the State and a body other than
the CTB, liability should attach, the provisions of the CTBA notwithstanding.

35. It is evident that the First Defendant and the Ministry had a partnership based on a common
aim to engage the project and establish the park, however, as a matter of law and bound by

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 the position articulated by the Court of Appeal, the Court must disregard the unequivocal
evidence of an agency arrangement between the First Defendant and the Ministry and is
constrained to conclude the First Defendant could not have acted as the agent of the Second
Defendant.

36. The secrecy with which this arrangement unfolded and the absence of transparency as to
the “real contracting parties” in the arrangement with the Claimant must be condemned.
The continued use of wholly owned state formed special interest companies to execute
projects for and on behalf of the Government has no place in a society which respects the
tenets of good governance and which values accountability, transparency and proper
procurement practices.

37. Given the evidence in this case, the position adopted on behalf of the Attorney General is
regrettable the purport and effect of the operation of the Central Tenders Boards
notwithstanding. The documentary evidence adduced including, inter alia, the Hansard
record and the letter dated 18 February 2019 established the intent to create an agency
arrangement. The refusal to consider the Claimant’s claim therefore demonstrates that the
attainment of the highest standards of good administration still eludes us.

38. It appears that the project was halted after there was a change of government and the
position reflected in Hansard failed to indicate whether regard was had to the substantial
taxpayer funds which was spent on the project. Unfortunately, because of the absence of a
national plan for sustainable or infrastructural development, with disturbing regularity,
projects commenced by predecessor administrations are left uncompleted and the taxpayer
is made to suffer.

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Issue 3: Whether the Claimant's contract was prematurely determined by the First Defendant
and /or the Second Defendant or whether the Claimant walked off the job:

39. The Claimant’s pleaded case is that the contract was terminated on 30 September 2015 and
that the said termination was by way of oral instruction given by Mr Gulcharan who was
the agent of the Second Defendant. The First Defendant accepted that the project was halted
but maintained that it gave no instructions for the termination of same.

40. In its bundle of documents, the Second Defendant disclosed a letter dated 2 October 2015
written by the Ministry and the said letter acknowledged that Mr Gulcharan was the
Ministry’s special adviser on the Heroes project charged with the responsibility to drive
and oversee the implementation and establishment of same. By the said letter Mr
Gulcharan’s services were terminated.

41. During his evidence Mr Ramasray accepted that Mr Gulcharan was not an employee of the
First Defendant and he repeated that the work was stopped by Mr Gulcharan. He also stated
that Mr Lal orally stopped the work. The evidence confirmed that Jeewan Lal was named
as the liaison representative for any request for clarification in the instructions to tender
which formed part of the contract with the Claimant.

42. During cross examination Ms Williams-Pran sought to clarify her evidence at paragraph
21 of her witness statement where she stated, inter alia, “Having seen the documents from
PSAEL with respect to this project, I know that PSAEL did not give any instructions for the
works under this project to be stopped and this direction came from the Ministry.” Ms
Williams-Pran gave the following evidence:

Q - So you have seen documents that give instructions from the Ministry to stop
the contract?
A - No

Q- How you would say this if?

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 A - PSAEL has no records with instructions to stop the works

Q- Paragraph 21 is not correct?

A- Yes

Q- So you did see documents from the Ministry?

A- It is not saying that

Q- correspondence - you have seen documents between PSAEL and Ministry?

A- I have seen documents but not in relation to stop the work

Q- Is it your evidence that PSAEL did not receive instruction from the Ministry to
stop the project?

A- Yes

Q -You have seen no document that the direction came to PSAEL from the
Ministry? You are not being truthful on that, do u agree?

A -No

43. At paragraph 16 of his Witness Statement Mr Smith stated, inter alia, “From my
investigations under this contract, I saw notes where one Mr. Gulcharan gave direction to
cease all work on the project immediately.”

44. During his cross examination the witness stated as follows:

Q- Put - your statement is based on documents you would’ve seen?

A- Yes. I saw notes

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 Q- You have seen documents that Mr. Gulcharan stopped the works, that was
records PSAEL had?
A- It was not official documents, it was based upon a question that was asked who
stopped the project and that was the response that was given

Q- If you say Mr. Gulcharan gave the direction that would’ve been from a document
given?
A- I now explained to you, that document was not an official document, it was an
answer to who stopped the work, it was in a note form. It wasn’t a document
from the Ministry instructing us to stop the project.

45. The evidence suggests that the First Defendant was aware that the Ministry had issued
directions that the project was to stop but both witnesses denied that the said instruction
was directly given to the First Defendant.

46. Although the First Defendant’s witness Mr Steve Smith indicated that he saw notes where
“one Mr Gulcharan gave the direction to cease all work on the project immediately”, no
such document was put before the Court. The documents before the Court also established
that Mr Lal and another person had to sign the First Defendant’s contract payment
certification documents, so the Court can conclude that Mr. Lal's involvement with the
project appeared to be substantial.

47. Mr Wazir Hosein, the Claimant’s site supervisor indicated in cross examination that he
dealt with Mr Gulcharan. In his witness statement at paragraph 7 he stated that, “on
September 30th 2015 we were verbally informed by one or two of the defendants’ staff that
a decision was taken to cease the project and that we were to stop all work on the site”.

48. The First Defendant’s interim CEO Ms Williams-Pran, at the onset of her evidence
indicated that she had made notations on her witness statement from records which she had

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 seen. These records did not form part of the First Defendant’s defence nor were they
disclosed. When pressed about the non-disclosure she indicated that she thought the records
were not relevant. This position seems to be contradictory given that the witness, if she is
to be believed, would have made notations on her witness statement using irrelevant
information.

49. During the course of her evidence it became apparent that she had access to or would have
seen weekly reports, staff reports, notes made by Mr Lal and communications with the
Ministry relative to the contract. The witness also indicated that all of the documents and
in particular the weekly reports were given to the First Defendant’s lawyer, however in a
startling breach of Part 28 of the Civil Proceedings Rules 1998 (as amended), these
documents were not disclosed.

50. Ms Williams-Pran remained silent when she was asked whether she knew that Mr Lal was
attached to the First Defendant’s Project Engineering and Management Department but she
later conceded that he was the project manager. The witness emphatically stated that having
seen the documents from the First Defendant with respect to the project, she knew that the
First Defendant did not issue instructions for the work to stop and that this direction came
from the Ministry however no document which recorded any such direction was disclosed
or exhibited.

51. Ms Williams-Pran signed the filed list of documents and her failure to adhere to the
requirements for full and frank disclosure led the Court to infer that it was likely that the
First Defendant deliberately withheld relevant documents and willfully deprived the Court
of the opportunity to review possible contemporaneous documents which may have
provided invaluable assistance in its resolution of the material facts. The requirement for
full and frank disclosure cannot be marginalized as it ensures procedural equality and
enables the evaluation of inherent strengths and weaknesses.

52. The regrettable non disclosure which manifested itself in this case coupled with Ms
Willams-Pran’s inability to comment on several important aspects of the contractual

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 relationship, engendered in the Court the unshakable feeling that her evidence had to be
treated with caution.

53. Based on the evidence adduced the Court formed the view that it is reasonable and probable
to conclude that the Ministry, consistent with the position outlined in Hansard, issued
instructions to the First Defendant relative to the stopping of the project and the First
Defendant likely acted on the said instructions. The Court also finds as a fact that the First
Defendant had a project manager, Mr Lal, on site when the project was terminated.

54. It is probable that Mr Gulcharan, as the Ministry's special advisor, attended the work site
so as to ensure that his employer’s directive was effected. Accordingly, the Court accepts
the Claimant’s evidence and finds as a fact that its contract was orally terminated on 30
September 2015 by both Defendants.

Issue 4: Whether the Claimant is entitled to damages for breach of contract and if so what
quantum should be paid and by whom should the payments be made:

55. Although the First Defendant acted upon instructions issued by the Ministry, constrained
by the law as previously outlined, the Court was unable to hold that there existed an agency
relationship as between the First Defendant and the Ministry for which the Second
Defendant must bear responsibility.

56. The law regarding the liability of an agent to a third party is set out in Halsbury’s Laws
of England (5th Edition), Volume 1 at paragraph 156 and 158 as follows:

“156. Where a person makes a contract in his own name without disclosing either
the name or the existence of a principal, he is personally liable on the contract to
the other contracting party, though he may be in fact acting on a principal's behalf.
He will continue to be liable even after the discovery of the agency by the other

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 party, unless and until there has been an unequivocal election by the other
contracting party to look to the principal alone. The agent will also be liable where
he holds himself out as agent for a named person, but is in fact acting as agent for
an unnamed person. Where the contract is not written but oral, the question whether
the agent is personally liable must be determined in the context of the background
against which the contract was made.”

158. Where an agent in making a contract discloses both the existence and the name
of a principal on whose behalf he purports to make it, the agent is not, as a general
rule, liable on the contract to the other contracting party,...but personal liability
may be imposed upon him by the express terms of the contract, by the ordinary
course of business, or by usage….”
(Emphasis Court’s)

57. In CV2010-00468 Point Lisas Industrial Port Development Corporation Limited v

Triniforwarding International Inc the Court referred to Basma v Weeks and others
[1950] AC 441 and Stanley Yeung Kai Yung & Another v. Hong Kong and Shanghai
Banking Corporation [1981] AC 787 and at paragraph 44 the Court stated:

“44. In Basma, the Privy Council held that an agent who contracts in his own name
does not cease to be contractually bound because it is proved that the other party
knew when the contract was made that he was acting as agent and in Stanley Yeung
Kai Yung, the Privy Council stated that "the true principle of law is that a person is
liable for his engagements (as for his torts) even though he is acting for another
unless he can show that by the law of agency he is to be held to have expressly or
impliedly negatived his personal liability."

58. Similarly, in HC No. 5524 of 1984 Cecil Tompkin v PM Consultants Ltd the Court
stated at paragraph 6, “The position in law is that where a person makes a contract in his
own name without disclosing either the name or the existence of a principal he is personally

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 liable on the contract to the other contracting party, though he may be in fact acting on a
principal's behalf. He will continue to be liable even after the discovery of the agency by
the other party unless and until there has been an unequivocal election by the other
contracting party to look to the principal alone.”

59. Although the First Defendant acted upon the Ministry’s directives, the First Defendant
cannot escape liability. In relation to the Second Defendant, the Court adopting the
approach outlined in Trinsalvage (supra) must address the issue of unjust enrichment.

60. The general principle of unjust enrichment arises as a matter of law from the Court’s
equitable jurisdiction and The Supreme Court of Judicature Act Chap 4:01 section 21
states:

“In all matters in which there is any conflict, or variance between law and equity
with reference to any matter, the rules of equity shall prevail.”

61. The general conditions of a claim of unjustified enrichment were outlined in Dollar Land
(Cumbernauld) v CIN Properties Ltd 1998 SC (HL) 90 at 99D–F. Lord Hope outlined
the general conditions to be satisfied in order to raise a claim of unjustified enrichment and
stated as follows “the pursuers must show that the defenders have been enriched at their
expense, that there is no legal justification for the enrichment and that it would be equitable
to compel the defenders to redress the enrichment.”

62. In Kleinwort Benson Ltd v Lincoln City Council [1999] 2 A.C. 349 Lord Hope at page
409 said: “the underlying principle … is that of unjust enrichment. The purpose of the
principle is to provide a remedy for recovery of the enrichment where no legal ground
exists to justify its retention [emphasis supplied].”

63. In Shilliday v Smith 1998 S.C. 725 the court at page 727 said that: “many … .have
pondered what is meant by unjust enrichment. While recognising that it may well not cover
all cases, for present purposes I am content to adopt the brief explanation which Lord

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 Cullen gave in Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd at pp. 348–349: a
person may be said to be unjustly enriched at another’s expense when he has obtained a
benefit from the other’s actings or expenditure, without there being a legal ground which
would justify him retaining that benefit [emphasis supplied].”

64. The CPR Part 8 r8.5(1) provides that :

What must be included in claim form

8.5 (1) The claim form must—
(a) include a short description of the claim; and
(b) specify any remedy that the claimant is seeking (though this does not
limit any power of the court to grant any other remedy to which he may be
entitled).

65. The CPR Part 8 r8.6(1) goes on to state that :

8.6 (1) The claimant must include on the claim form or in his statement of case a
short statement of all the facts on which he relies.
(2) The claim form or the statement of case must identify or annex a copy of
any document which the claimant considers necessary to his case.

66. Goff & Jones The Law Unjust Enrichment 9th Ed at 4-26 states as follows:

“The burden of proving enrichment lies in the first instance on the claimant, who
must show that the defendant received a recoverable benefit with an objective
financial value. So a claim in unjust enrichment “is not sufficiently pleaded unless
it asserts the payment [or other mode of enrichment] on which it rests”. … where a
claim is made for the value of services, he must identify the relevant services, and
explain the basis on which they should be valued. …”

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67. The Claimant failed to expressly plead unjust enrichment however the Claimant showed
that the State received a recoverable benefit with a calculable value. The Claimant also
outlined the work which it undertook and outlined its contract with the First Defendant
wherein the value of the services provided was referenced. In its Re-Amended Claim Form
the Claimant specifically claimed a specified quantum. The evidence also established that
the Claimant carried out work on public property for a public benefit over an extended
period of time.

68. In Gill v Moses et al CA P. No. 326 of 2015, the Court of Appeal dealing with an appellant
whose appeal had been dismissed at trial, addressed the situation where the respondent
had been enriched on the evidence at the appellant’s expense and determined whether it
was unjust to allow the respondent to retain the benefit. In addressing the issue Jones JA
stated:

“47. In the circumstances the only footing upon which the Appellant can be granted
relief seems to be on the basis of the Respondent’s unjust enrichment. According
to Lord Wright in Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour
Ltd. [1943] AC 32 at page 61:
“It is clear that any civilized system of law is bound to provide remedies for
cases of what has been called unjust enrichment or unjust benefit, that is to
prevent a man from retaining the money of or some benefit derived from,
another which it is against conscience that he should keep. Such remedies
in English law are generically different from remedies in contract or tort,
and are now recognized to fall within a third category of the common law
which has been called quasi-contract or restitution.”

48. The basis here is not necessarily any wrongdoing on the part of the person
enriched but the mere fact of a benefit obtained at another’s expense in
circumstances that are unjust or unfair. On the evidence it is clear that the
Respondent has been enriched by the receipt of a benefit; that the benefit was at the
Appellant’s expense and that it would be unjust to allow the Respondent to retain

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 that benefit. Further the Appellant, by being entitled to have the disputed deed set
aside, has established that there is no basis for the Respondent’s enrichment.

49. Any doubt about the application of the principle of unjust enrichment in these
circumstances arising as a result of the failure of the Appellant to seek such relief
in her statement of case is answered by the fact that the Appellant also seeks from
the court ‘further and other relief’. This thereby permits us to apply the principle
set out in Kirin-Amgen Inc. v Transkaryotic Therapies [2002] IP & T 331 and
adopted by this court in Bobby Maharaj and others v Francis Daniel and others
Civil Appeal P343/2014 at para.21. Where therefore, as in this case, the relief is not
inconsistent with the relief specially claimed; is supported by the allegations in the
pleaded case and does not take the other side by surprise the court can grant relief
although not specifically sought.”

69. The Court having considered the purport of the pleadings, the law, the evidence before it
as well as its obligation to deal with matters justly and proportionately, is resolute in its
view that the requisite foundational pillars to mount a claim for unjust enrichment was
outlined and established. Accordingly, the Court is inclined to grant relief as against the
Second Defendant.

70. Having determined that the Defendants terminated the Claimant’s services on the 30
September 2015 and that liability can attach to both Defendants, the Court must now
determine the value of the unpaid work which the Claimant duly completed up to
September 30, 2015.

71. The Claimant’s case is that it essentially completed all the work which was required to be
performed under Phase 1A of the project. The First Defendant however advanced that the
Claimant partially completed the work and only effected 66.5% of what was required.

72. The work on the project was continuous and there was no halting of same while payments
were being processed. Mr Ramasray in his witness statement suggested that he made

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 several written and oral attempts to be paid the balance due to the Claimant. However, it
appears that there was some delay of nearly two years with respect to the request for
payment. The evidence suggests that the Claimant submitted its last bill of quantities dated
25 August 2015 and did receive payment. During cross examination Mr Ramasray
candidly accepted that the Claimant did not have any document which established that all
the contracted work was completed at 30 September 2015.

73. Under the general conditions of the contract Clause 5 thereof provided for payment upon
satisfaction that the work was fully performed. The First Defendant argued that in the
absence of an invoice there was no breach with respect to payment. The Court found that
this was a rather myopic position, as the First Defendant, even though the stipulated invoice
was not generated, was made aware as to the alleged sums due and owing.

74. The First Defendant’s witness Mr Smith generated a report which outlined that only 66.5%
of the work under the Claimant’s contract had been completed as at the date the work was
stopped. The Court noted that the said report attached no contemporaneous records or
photographs which reflected what had been done as at 30 September 2015. The witness
indicated that there were photographs of the site and that he saw same but these alleged
photographs were never referenced in the First Defendant’s list of documents or put before
the Court.

75. No information was put before the Court that any site visit or quantification exercise was
conducted shortly after the work stopped. Given the nature of the preparatory ground work
undertaken by the Claimant, it is plausible to conclude that the site would have deteriorated
with the effluxion of time. The Court further noted, with interest, that the said report
outlined that the sum of $789,545.00 was outstanding and formed the view that the said
statement would have been based on information gleaned from the First Defendant’s
records. Mr Smith was not employed with the First Defendant at the material time and his
report was prepared in 2018. The witness accepted that he was not the Project Manager in
2015 as he succeeded Mr Jeewan Lal who was the Project Manager in 2015. Consequently,
Mr Smith had no direct knowledge as to the operative status quo at the site as at the

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 September 30, 2015 and he advanced no information as to the steps he engaged to liaise
with Mr Lal or to have Mr Lal verify the accuracy of the 2018 report. In addition, no attempt
was made to have Mr Lal testify before this Court as a witness although his evidence had
the potential to be of valuable assistance.

76. During his cross examination Mr Smith conceded that he had referred to weekly project
reports in his 2018 report however these contemporaneous documents were never disclosed
or put before the Court.

77. The failure to disclose such material and relevant documentation which was evidently
within the First Defendant’s possession is untenable and such a position is inconsistent
with the “all cards on the table” approach to litigation.

78. The cumulative effect of the First Defendant’s failure to call Mr Lal as a witness, the
absence of any explanation as to his availability, the disregard of its obligation for full and
frank disclosure and the aforementioned outlined deficiencies in relation to the 2018 report,
leads the Court to hold that a deliberate decision was taken to withhold material
information. Such a stance suggests that it is likely that the said information was withheld
because it undermined the First Defendant’s defence.

79. The Court therefore rejects the First Defendant’s evidence that only 66.5% of the work had
been completed as at 30 September 2015.

80. The Court found that the Claimant’s witnesses engendered a feeling that they were credible
and forthright and their evidence was characterized by a distinct degree of plausibility. The
Court therefore accepted the Claimant’s evidence as to the extent of work which was
completed at the date the contract was terminated. The Court found that it is likely that
after its submission of its request for payment dated 25 August 2015, the Claimant
continued working until 30 September 2015. It is therefore possible to conclude on a
balance of probabilities, that within this period, the Claimant completed the majority of

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 work that it was contracted to undertake save for de minimis issues which needed to be
addressed.

81. The Claimant also claimed consequential losses sustained by the use of its overdraft
facilities with its bank. As a general rule, consequential losses may be allowed provided
that they are reasonably foreseeable and not too remote. At times the terms of contract may
also provide or outline the circumstances where any such loss would be entertained. At
Clause 10 of the general conditions of contract it is expressly stated that neither party to
the contract would be liable for consequential or indirect damages.

82. At paragraph 23 of the Amended Statement of Case, the Claimant indicated that it incurred
consequential losses by having to use its overdraft facility in the sum of $600,000.00 which
accrued interest payments of $163,322.56. The Court noted that the Claimant did attach a
document which showed that Mr Ramasray from August 25,2015 paid interest on an
overdraft facility. The burden of proof rests upon the Claimant and the Court is not satisfied
the Claimant adduced sufficient evidence to establish that its overdraft facility was actually
used with respect to the discharge of its obligations under the contract nor is there any
proper explanation for the accrual of interest claimed.

83. Further, having regard to Clause 10 of the general conditions of contract, the Court is
resolute in its view that the Claimant is not entitled to recover the interest charges claimed.

84. For the reasons outlined the Court hereby declares there shall be judgment in favor of the
Claimant against the Defendants:

a. The Defendants shall pay the sum of $853,926.75 which is owed pursuant to the
contract;
b. Pre judgement interest on the sum of $853,926.75 at a rate of 2.5% per annum from
30 September 2015 to 30 September 2018 shall be paid by the defendants in the
sum of $64,044.51.

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 c. Interest at the statutory rate of interest will accrue on the judgement sum from the
date of this judgement until payment
d. The Defendants shall pay to the Claimant costs calculated on a prescribed costs
basis in the sum of $102,847.84 .

……………………….....
FRANK SEEPERSAD
JUDGE

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