REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT...
Transcript of REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT...
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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV 2006-00110
BETWEEN
VISHNU DINDIAL
Claimant
AND
TRINIDAD AND TOBAGO
HOUSING DEVELOPMENT CORPORATION
formerly
THE NATIONAL HOUSING AUTHORITY
Defendant
Before The Hon. Madam Justice Pemberton
Appearances:
For the Plaintiff: Mr E. Koylass S.C. leading Mr R. Rajkumar
For the Defendant: Mr K. Garcia instructed by Ms G. Edwards
JUDGMENT
[1] INTRODUCTION
The Claimant, Mr Vishnu Dindial (“Mr Dindial”) is a maintenance contractor, who provides
services inter alia in landscaping and other maintenance works. The Defendant, the
Trinidad and Tobago Housing Development Corporation (“HDC”) formerly The National
Housing Authority (“NHA”) is a statutory authority charged with the provision of housing to
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nationals of Trinidad and Tobago. One of the responsibilities of the NHA/HDC is to
maintain housing developments under their charge.
[2] The housing developments relevant to this action are located in Maloney Gardens in the
East, Couva North and South, La Romain, Tarouba North, Bien View I and II in the South.
Over the years the NHA/HDC would engage private contractors to perform maintenance
services. The services would be supplied and the private contractors paid, once their
invoices had been certified and presented for payment.
[3] Over the period under review, namely 15th January 2002 – 25th May 2002, Mr Dindial
alleged that he performed the works he was contracted to perform, presented his invoices
in the usual manner, but he received no payment. His entreaties for payment fell on deaf
ears. He thus filed this action.
[4] ISSUES
There was one main issue in this case – whether Mr Dindial was entitled to payment of his
invoices. Other sub-issues, which arose, and impact on this issue were:
(1) Were the contracts actually made; and
(2) Were they performed?
[5] LAW
The law is so clear that it may be embarrassing to write it. Once there is an offer – a
request for services in this case and acceptance – the provision or performance of these
services, at an agreed consideration - a fee for services performed; there are the
essentials of a valid and enforceable contract for services.
[6] ANALYSIS
The legal principles, Mr Garcia argues, are coloured by one of NHA/HDC’s pivotal officers,
the maker of the offer - Mr Lamsey’s - role in this matter. Mr Lamsey he says acted
contrary to NHA/HDC’s Procurement Policy instituted by him - Mr Lamsey - on behalf of
the NHA/HDC. Mr Dindial therefore must suffer for Mr Lamsey’s deviation.
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[7] Mr Koylass says a resounding NO. Procurement policies have no business intruding in his
client’s business dealings with the NHA/DHC. There are only two clear issues, whether
the contracts were made and whether there was payment for these services under the
contracts. These questions on the pleadings and evidence can only elicit a positive
response.
[8] My own view is that despite any finding that I make, if I need to make any at all on the
procurement processes and procedures or lack thereof as the case may be, it does not
and shall not detract from the main issues in this case which were:
• Were there contracts for services?
• Were the services performed by Mr Dindial and honoured by the
NHA/HDC by payment for them?
[9] FINDINGS
The evidence to me establishes that forty-seven (47) contracts had been entered into even
though they were oral, work was done on the strength of these contracts and Mr Dindial
must therefore be paid by the NHA/HDC for the amounts claimed in these proceedings.
The documentary evidence merely served to reduce the obligation to pay in writing for the
purpose of processing payments. That was their purpose in this case, nothing higher.
They did not and were not intended to serve as written contracts.
[10] The NHA/HDC must therefore pay to Mr Dindial the sum of $1,470,527.50 - being the sum
claimed on the Claim Form for the works performed under the oral contracts.
[11] COSTS
Since this is a claim for a stated sum, Part 67.6 of the CPR applies1. The value of the
Claim would be the amount claimed by Mr Dindial. There was no application by NHA/HDC
1 Part 67.6 of the CPR reads:
(1) A party may apply to the court at a case management conference –
(a) to determine the value to be placed on a case which has no monetary value; or
(b) Where the likely value is known, to direct that the prescribed costs be calculated on
the basis of some higher or lower value.
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for the value of the Claim to be set at any other level. The costs are therefore prescribed
in the sum of $144,289.56.
[12] FACTS
Mr Vishnu Dindial is a maintenance contractor providing landscaping services and other
maintenance works, as well as providing equipment for such works. These services
include grass cutting, treating, removal of cuttings and debris and cleaning drains. The
National Housing Authority (NHA) now referred to as The Housing Development
Corporation of Trinidad and Tobago (NHA/HDC) is a statutory authority charged with the
responsibility of providing housing for qualified persons in Trinidad and Tobago. Part of its
responsibilities includes maintaining these developments.
[13] ISSUE(S)
There was one main issue – whether Mr Dindial’s oral contracts with the NHA/HDC have
been breached by HDC’s non-payment on the forty-seven (47) claims as presented in the
case at bar.
Sub - issues, which relate to this, are:
(1) Whether oral contracts were made between NHA/HDC and Mr Dindial –
Existence of the contracts.
(2) If yes, are these contracts enforceable by Mr Dindial? – Enforceability of
the contracts.
(3) If yes were the services contracted for provided by Mr Dindial? –
Performance of services under the contracts.
(4) Was there payment for these services? – Payment of monies due and
owing.
(2) The court may make an order under paragraph (1) (b) if it is satisfied that the costs as
calculated in accordance with rule 67.5 are likely to be excessive or substantially
inadequate taking into account the nature and circumstances of the particular case.
(3) Where an application is made for costs to be prescribed at a higher level rules 67.8(4)(a)
and 67.9 apply.
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[14] 1. EXISTENCE OF CONTRACTS
MR DINDIAL’S CASE
As part of the NHA/HDC’s maintenance duty, the Corporation granted maintenance
contracts to independent contractors. Mr Dindial was one of those contractors. On
diverse occasions between the dates 15th January 2002 to 25th May 2002, Mr Dindial
provided maintenance services pursuant to oral contracts made between the Executive
Director of NHA/HDC at the relevant time, Mr Rodney Lamsey and himself. Other
NHA/HDC’s servants or agents who were assigned to perform that duty initiated these
contracts at times. Each of these contracts claimed was valued at sums of less than fifty
thousand dollars ($50,000.00) per contract. They were 47 in all. The provisions of the
contracts covered:
a) the specific nature of the service to be performed;
b) the time for commencement and completion of the service; and
c) the price payable2.
[15] These contracts were entered into by Mr Dindial and Mr Lamsey on the understanding that
Mr Dindial would perform and complete the works, and submit an Invoice to the HDC.
Paragraph 7 of the Statement of Claim dated 17th January 2006 reads in part:
Whereupon the terms of the oral contract would be inserted in quadruplicate by the Defendant’s predecessor on the Defendant’s predecessor’s standard contract form for such works and executed by the Claimant so as to facilitate and secure due payment.
Paragraph 8 goes on to explain:
The said oral maintenance contracts were entered into approximately two (2) days … of the date of the agreed commencement of the particular maintenance service and the standard contract document was dated on the first day of the agreed commencement date of the maintenance service and completed with the further particulars identified in paragraph 5 hereof3.
[16] Mr Dindial’s Claim comprises the following, which I condensed from the Re-Amended
Claim Form dated 5th December 2006.
2 See paragraph 5 of Statement of Claim.
3 See paragraph 14 infra.
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LOCATION INVOICE DATE
INVOICE NUMBER
JOB TYPE AMOUNT NHA/HDC CONTRACT DATE
Para. 10
Couva North
28/01/02
006/CDC/02
Clear drains, cut grass verge
$50,600.00
23/01/02
31/05/02 NHCA160/02 Cut & dispose of grass
$40,250.00 06/05/02
31/05/02 NHCA161/02 Cut & dispose of grass
$40,250.00 13/05/02
31/05/02 NHCA162/02 Cut & dispose of grass
$40,250.00 20/05/02
31/05/02 NHCA163/02 Cut & dispose of grass
$40,250.00 27/05/02
TOTAL $211,600.00 VAT
$ 31,740.00
Para. 12 Maloney Gardens
05/04/02 042002 Cut & dispose of grass
$7,245.00 Undated
05/04/02 052002 Cut & dispose of grass
$34,500.00 Undated
05/04/02 062002 Cut & dispose of grass
$38,812.00 Undated
05/04/02 072002 Cut & dispose of grass
$8,625.00 Undated
05/04/02 092002 Clean drain, cutlass & dispose
$33,062.50 Undated
05/04/02 102002 Clean drain, cutlass & dispose
$31,625.00 Undated
05/04/02 MGP012002 Clean drain, cutlass & dispose
$48,300.00 Undated
05/04/02 MGP022002 Cutting grass $46,287.50 Undated 05/04/02 MGP032002 Cutting grass $12,075.00 Undated TOTAL $260,532.00 VAT
$ 33,982.00
Para. 13 La Romaine 03/06/02 010/BVGC/02 Clear drains, cut
grass verge $46,690.00 11/03/02
03/06/02 011/BVGC/02 Clear drains, cut $8,855.00 10/04/02
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grass verge 03/06/02 012/BVGC/02 Clear drains, cut
grass verge $17,710.00 27/04/02
03/06/02 013/BVS/02 Clear drains, cut grass verge
$33,350.00 11/03/02
03/06/02 014/BVS/02 Clear drains, cut grass verge
$6,325.00 10/04/02
03/06/02 015/BVS/02 Clear drains, cut grass verge
$12,650.00 27/04/02
TOTAL $125,580.00 VAT
$ 16,380.00
Para. 14 Tarouba North 20/05/02 025/TGC/02 Chemical spraying $46,287.50 11/05/02 03/06/02 016/TGC/02 Maintenance, grass
cutting $36,225.00 04/02/02
03/06/02 017/TGC/02 Maintenance, grass cutting
$42,262.50 20/02/02
03/06/02 018/TGC/02 Maintenance, grass cutting
$32,200.00 07/03/02
03/06/02 019/TGC/02 Maintenance, grass cutting
$34,212.50 18/03/02
03/06/02 020/TGC/02 Maintenance, grass cutting
$44,275.00 26/03/02
03/06/02 021/TGC/02 Maintenance, grass cutting
$36,225.00 05/04/02
03/06/02 022/TGC/02 Maintenance, grass cutting
$46,287.50 15/04/02
03/06/02 024/TGC/02 Maintenance, grass cutting
$24,150.00 03/05/02
03/06/02 026/TGS/02 Chemical spraying $25,875.00 04/02/02 03/06/02 027/TGS/02 Chemical spraying $30,187.50 25/02/02 03/06/02 028/TGS/02 Chemical spraying $23,000.00 07/03/02 03/06/02 029/TGS/02 Chemical spraying $24,437.50 18/03/02 03/06/02 030/TGS/02 Chemical spraying $31,625.00 26/03/02
03/06/02 031/TGS/02 Chemical spraying $25,875.00 05/04/02 03/06/02 032/TGS/02 Chemical spraying $33,062.50 15/04/02 03/06/02 034/TGS/02 Chemical spraying $17,250.00 03/05/02 20/05/02 035/TGS/02 Chemical spraying $33,062.50 11/05/02 TOTAL VAT
$586,500.00 $ 76,500.00
Para. 15 Bien Venue I 16/02/02 040/BVDC/02 Cleaning drains $45,712.50 04/03/01
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and II 02/03/02 041/BVDC/02 Cleaning drains $52,405.50 18/02/01 16/03/02 042/BVDC/02 Cleaning drains $21,907.50 04/03/01 16/03/02 043/BVDC/02 Cleaning drains $17,882.50 04/03/01 23/03/02 044/BVDC/02 Cleaning drains $21,332.50 18/03/01 23/03/02 045/BVDC/02 Cleaning drains $46,862.50 18/03/01 23/03/02 046/BVDC/02 Cleaning drains $49,450.00 18/03/01 23/03/02 047/BVDC/02 Cleaning drains $30,762.50 18/03/02 TOTAL $286,315.50 VAT
$ 37,345.50
The contracts outlined above were all entered into on the basis outlined in paragraph 15
above4. That is his pleaded case.
[17] NHA/HDC’S DEFENCE
NHA/HDC denied that these contracts existed. The Corporation defended on alternate
grounds, all of which shall be examined in turn.
[18] MR DINDIAL’S EVIDENCE
Mr Dindial’s witness statement stood as his examination-in-chief. He testified that he
carries on the business of a transport and general contractor and operates as a
maintenance contractor. As a maintenance contractor, he provides and or secures labour
to carry out various tasks; such as cutting grass, spraying chemicals on grass and bush,
removal of grass cuttings and debris, cleaning drains and other maintenance works. Mr
Dindial states that he has engaged in this business for about forty years (40), providing
services to HDC’s predecessor - NHA - and other state agencies and enterprises and
private companies. He dates his association with NHA/HDC from Dr Carrington’s days
when the office was on Sackville Street.
[19] Further, he has always enjoyed a healthy business relationship with NHA/HDC ensuring
that the contracted services were delivered in a timely manner and at competitive prices.
He never “rushed” NHA/HDC for payment for his services.
4 See paragraph 7 of the Statement of Claim
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[20] With respect to the oral contracts under contention, Mr Dindial states that he entered into
these contracts with the then Executive Director - Mr Ronald Lamsey. This was over the
period 16th February 2001 to 25th May 2002. The services were performed at the following
sites: Couva North, Maloney Gardens, La Romain, Tarouba North and Bien Venue I and II.
[21] Paragraph 10 of Mr Dindial’s witness statement spoke to the procedure for entry into these
contracts. It reads as follows:
(i) Mr Lamsey through his secretary will call me and he will inform me of
the particular maintenance service(s) that were required to be urgently
performed at NHA worksites including the relevant housing
developments;
(ii) I would soon thereafter visit the site by prearrangement with a NHA
Officer who would identify the area in the housing development where
the maintenance services are required to be performed;
(iii) I would then call Mr Lamsey and quote a price which if agreed would
lead to our agreement as to the time frame for the commencement and
approximate completion of the maintenance service(s);
(iv) Sometimes officers of the NHA would identify maintenance services that
needed to be performed and I would contact Mr Lamsey concerning it
and an oral contract may result;
(v) On an oral contract being made for my provision of maintenance
services at an NHA worksite including the relevant housing
developments Mr Lamsey advised me to commence the work based on
the oral contract, complete the maintenance service(s), and thereafter
submit an invoice to the NHA for payment for the job together with the
completed NHA standard contract forms, inserting the terms of the oral
contract on the said forms and including as the contract date the date of
the commencement of the particular maintenance service(s), this date
was generally no more than 2 days subsequent to the date of the oral
contract upon which the maintenance services were performed.
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[22] Mr Dindial was not cross-examined on this issue.
[23] MR RODNEY LAMSEY
EXAMINATION IN CHIEF
Mr Lamsey held the position of Executive Director during the relevant period. He
confirmed Mr Dindial’s evidence that Mr Dindial was one of the contractors hired by
NHA/HDC to perform the works as stated. Mr Dindial was an established NHA/HDC
contractor of good standing and that he had a long track record of performing the works as
identified under the relevant contracts. Mr Dindial was willing to perform the services
under consideration and await payment rather than demand payments for his works within
a limited time frame. Mr Dindial would therefore be used by NHA/HDC whenever funds
were not immediately available as was the situation at the relevant time.
[24] Mr Lamsey outlined that the procedure in this case was as follows:
• That he advised Mr Dindial that he was to embark upon and
perform the maintenance services under the oral agreement.
• Thereafter Mr Dindial would submit an invoice to the NHA/HDC
together with the NHA/HDC’s standard contract form duly
completed including the terms of the oral agreement so that
payment may be processed. The standard contract was to be
dated on the day the works commenced.
[25] Mr Lamsey explained that the oral contracts were given, as the necessity for the
maintenance services was urgent and the works were to be commenced within two (2)
days of the oral contract. The maintenance services were generally under $50,000.00 and
exceptionally slightly higher.
[26] Mr Lamsey confirmed that he, as Executive Director of NHA/HDC, towards the discharge
of its responsibility for its development entered into oral contracts with Mr Dindial in the
terms stated during the period 15th January 2002 to 25th May 2002 and even earlier.
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These contracts were for Mr Dindial’s provision of maintenance services to the relevant
housing developments.
[27] Mr Lamsey’s cross-examination also did not trouble this evidence.
[28] NHA/HDC’s EVIDENCE
ORAL CONTRACTS
Mr Steve Moore was NHA/HDC’s sole witness and he spoke essentially to the Maloney
works. He was employed with NHA/HDC from 1972 to 2006. In 2001 he was assigned to
manage the several housing estates owned and/or operated by the NHA/HDC in the
Eastern District of Trinidad and included the Maloney Housing Estate. His designation
was that of Manager. He was responsible for the day-to-day running of the Maloney
Housing Estate.
[29] Mr Moore, as Manager, stated that he had his own equipment and men to do the alleged
works performed by Mr Dindial; however as the need arose he would employ an
independent contractor to carry out specific works.
[30] He never employed Mr Dindial to do such works as claimed neither was he ever instructed
to do so by the persons to whom he reported. In fact he would not have employed him to
do the work since these functions were already being fully carried out either by the
NHA/HDC’s daily paid workers (with an increased stock of equipment as aforesaid) or by
independent contractors engaged by the NHA/HDC, or by the Regional Corporation.
[31] Mr Moore was not directly cross-examined on this issue.
[32] CLOSING SUBMISSIONS BY COUNSEL
NHA/HDC
Mr Garcia identified the “contest on the pleadings” in this way:
(1) Whether Mr Dindial and the NHA/HDC entered into forty-seven (47) oral contracts;
(2) Whether Mr Dindial performed the works under these oral contracts.
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I shall examine the latter issue later.
[33] In relation to the first point made, Mr Garcia was of the opinion that Mr Dindial was fettered
by the way he chose to plead his case. Mr Dindial was faced with the evidential burden of
furnishing the court with credible evidence that on a balance of probabilities proved the
existence of the forty-seven (47) individual contracts.
[34] The only evidence supplied was through Mr Dindial himself and Mr Lamsey, which in Mr
Garcia’s opinion was not credible and did not satisfactorily establish the making of all forty-
seven (47) contracts. With respect to Mr Dindial, Mr. Garcia submitted, paragraph 10 of
the claim spoke to “oral contracts” in general and not to the specific forty-seven (47)
contracts. This was fortified by his explanation of how these oral contracts were “usually”
entered into. The vague language used in the witness statement rendered the nature of
the evidence unsatisfactory. The same fault lay with Mr Lamsey’s evidence. The global
references to oral contracts could not satisfy the evidential burden of proving the forty-
seven (47) specific oral contracts sued upon, in the face of NHA/HDC’s denial of each and
every oral contract alleged.
[35] Mr Garcia relied on BONHAM-CARTER v HYDE PARK HOTEL LTD. 5 and DLOT v
CHOI6 to buttress his conclusion that Mr Dindial cannot rely on the oral contracts to found
his claim, since he could not prove that the contracts were in fact made. The evidential
burden put on Mr Dindial, based on the pleaded case has not been satisfied. Mr Garcia
examined the witness statements of Mr Dindial and Mr Lamsey, which, he said, were
general and unspecific in terms of the making of the oral contracts that Mr Dindial
purported to sue upon in this action7. In the face of NHA/HDC’s specific denials of “each
and every contract,” such “broad brush evidence could hardly be sufficient” proof to
support the claim.
5 BONHAM-CARTER v HYDE PARK HOTEL LIMITED (1948) 64 TLR 177
6 DLOT v CHOI [1996] 3WWR 533
7 See paragraph 10 of Mr Vishnu Dindial’s Witness Statement and paragraphs 20, 21, 24 and 25 of Mr
Rodney Lamsey’s Witness Statement; both dated 24th
August 2007.
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[36] MR DINDIAL
Mr Koylass took issue with this position. He agreed that Mr Dindial had the burden of
proving the making and existence of the forty-seven (47) contracts but was of the view that
this had been adequately done from the evidence presented. Paragraph 10 of Mr Dindial’s
witness statement as supported by paragraphs 20 and 21 of the Lamsey witness
statement spoke to how the parties entered into the oral contracts. It set out the pattern or
methodology usually used or followed. That evidence “seeks to give precision to
circumstances allowing for the creation of the oral contracts”. Therefore all criticisms with
respect to vagueness and inconsistencies are unjustified.
[37] Both the evidence given by Mr Dindial and Mr Lamsey8 provide the evidence for the oral
contracts claimed in this action. Mr Dindial spoke to the contracts and the periods over
which the services were performed. This asserts Mr Koylass ties in with the specific
pleading in the Statement of Case. He disagreed that there was any necessity for Mr
Dindial to identify each of the forty-seven (47) oral contracts and say that he entered into
that contract having pleaded the period of the contract, the place the contract was to be
performed and the monies payable under the contract. Mr Lamsey further supports this.
There is no dispute that the oral contracts were entered into between Mr Dindial and
NHA/HDC, through Mr Lamsey. That burden being discharged, it was incumbent on the
NHA/HDC to put to these witnesses that no oral contracts had been entered into.
NHA/HDC failed to do this. It cannot now be heard to say that the oral contracts had not
been entered into.
[38] ANALYSIS AND CONCLUSIONS
Much time and effort was spent to establish the existence of oral contracts to perform
these works. Again, what am I to conclude in the face of the written documentation which
Mr. Dindial presented to confirm their existence and moreover which were certified by Mr
Wayne Weekes of the NHA/HDC as being eligible for payment? All of this then needs to
be considered in light of the fact that the NHA/HDC presented no contradictory evidence.
8See paragraphs 11 & 12 of Mr Dindial’s witness statement dated 24
th August 2007.
See paragraphs 24 & 26 of Mr Lamsey’s witness statement dated 24th
August 2007.
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[39] Mr Garcia took issue with one exhibit out of the bundle filed, when he cross-examined Mr
Dindial - an “Agreement to execute works” dated 4th March 2001 to undertake works on or
before 16th March 2002. When one looks at the accompanying Invoice, the date stated is
February 16th 2002. This is to me the document to be guided by. I say this because a
careful inspection of all the documents presented will reveal that not much care was taken
by the preparer to change the Agreement year at the top from 2001 to 2002.
[40] However when one compares the body of the Agreement with the covering Invoice they
correspond in the material particulars. Whilst the system may not have been satisfactory,
NHA/HDC could produce no evidence to contradict the state of affairs in existence at its
offices. There was no evidence to show that Wayne Weekes did not certify the Invoices or
that the documents were fraudulently procured. We must keep in mind that the real issues
for determination concern Mr Dindial and not NHA/HDC’s staff or its internal procedures.
Their officers or former officers are not on trial.
[41] Again Mr Garcia, neither by evidence nor cross-examination, was able to advance
NHA’s/HDC’s position that the oral contracts did not exist.
[42] I therefore find that the oral contracts were made.
[43] 2. ENFORCEABILITY
The issue of enforceability arose out of NHA/HDC’s defence. The crux of the NHA/HDC’s
defence is that Mr Dindial knew the process, which NHA//HDC employed in awarding
contracts of this nature. More particularly, Mr Dindial knew that these awards were subject
to best corporate practices; including the entering into of binding written agreements
subscribed to by a duly authorized representative of the Defendant and governed by and
subject to the procedure as set out in National Housing Authority’s Memorandum titled
“PROCEDURES FOR ENTERING INTO PETTY CONTRACTS” dated 13th February
2002.
Page 15 of 36
[44] The plea was set out in the alternative. NHA/HDC asserts that even if oral contracts
existed they were not enforceable since Mr Dindial entered into these contracts knowing
that he breached the procedures and practices outlined below with the deliberate intention
to flout them. The procedures and practices are more particularly the rules contained at
paragraphs 3 (a), (b), (c), (d) and (h)9.
[45] MR DINDIAL’S RESPONSE
Mr Dindial denied any knowledge of NHA/HDC’s workings and mechanisms in awarding
contracts. In particular, he denied knowledge of the principles that informed the
NHA/HDC’s award of contracts; and/or the NHA/HDC’s measures of best corporate
practices; and/or the internal affairs of the NHA/HDC; and /or the principles of the
NHA/HDC’s governance and/or operation.
[46] Mr Dindial avers that he was unaware of the memorandum and/or its terms referred to and
says that the award of oral contracts for maintenance services was a regular routine and
accepted practice of the NHA/HDC’s predecessor in maintaining its relevant housing
developments.
9 PROCEDURES FOR ENTERING INTO PETTY CONTRACTS
a. The Manager/Supervisor responsible for the service must seek approval from the Executive Director and include in his Request for Approval, details of the contract, cost of the contract and availability of finance as confirmed by the head of Finance and Accounting.
b. Where approval has been obtained, the Secretary of the Tenders Committee must be advised and becomes involved in the award procedure. The award procedure includes: (i) Where practicable the obtaining of three quotations/tenders from contractors/suppliers; (ii) The preparation of an estimate of the cost of the works; (iii) The selection of the contractor based on his competence to execute the works;
c. Before any work is started a contract is prepared by the Secretary of the Tenders Committee with technical assistance from the Manager/Supervisor requesting the goods/service;
d. The contract is then executed, the Executive Director being the only person authorized to sign on behalf of the Authority. In turn, the contractor signs and the execution is witnessed by the Tenders Secretary and the Manager/Supervisor who originates the contract;
e. On completion of the contract the contractor makes a claim for payment; f. The work is certified as satisfactorily completed by the relevant Manager/Supervisor; g. Payment is then effected by the expenditure section of the accounting unit;; h. Although the Executive Director has the authority to award petty contracts fixed at a ceiling of
$50,000.00 the procedure expressly prohibits the execution of contracts in circumstances where there is subdivision of the quantity of the services to be provided into two or more portions so that value of the portions will be less than $50,000.00.
Page 16 of 36
[47] Mr Dindial continued that NHA/HDC’s employees prepared all standard form contract
documents. He would simply sign those documents and return them to NHA. He did not
even sign those that he kept for his records.
[48] In dealing with the matters under scrutiny, Mr Dindial said that Mr Wayne Weekes certified
the contracts save those in relation to Maloney Gardens, as having been completed. The
certificates contained the following information: commencement date, parties, date of
performance of works, description of works, undertakings and certificate of completion.
The oral contract was entered into two (2) days before completion of the written
documentation and certification.
[49] In the case of Maloney Gardens, the same procedure obtained. In the copies retained by
Mr Dindial, there is no contract date. However these retained by NHA/HDC would contain
a date. With respect to this development, the oral contracts were dated between January
to March 2002 and the specific dates would have been (two) 2 days prior to the dates
appearing in the commencement date.
[50] It is instructive to set out Mr Dindial’s particular evidence at paragraphs 19, 20 and 21:
Paragraph 19:
The contract documents were completed from information given by me to my Accountant as to each job as was my practice with respect to any job that I performed and I so able to identify the respective standard form contracts and Invoices. With respect to unsigned Invoices I say that a signed Invoice would have been submitted to the NHA and that the unsigned Invoice would have been a copy of the document before signing kept as my record.
Paragraph 20:
I say that Mr Chankersingh died in 2007 and one Mr Darsan Bedasie who worked as a sub-contractor for me at the NHA developments and who lived at Curepe is out of the country and his family cannot tell me when he will return. Mr Wayne Weekes who certified the completion of my works is employed by the Defendant and is listed as one of its witnesses. I have seen Mr Weekes sign his name on numerous occasions and I identify his signature on the NHA standard form contract concerning the performance of my maintenance services at the relevant housing development.
Page 17 of 36
Paragraph 21:
Despite having duly sought payment for the performance of the maintenance services for which my claim is made I have not been paid for the same amounting to $1,470,527.50.
[51] CROSS-EXAMINATION
With respect to the documentation, Mr Dindial stated that NHA/HDC completed all of the
forms. He confirmed that the invoices were prepared two (2) to three (3) days after Mr
Persad inspected the completed works. In particular, Mr Garcia pointed out that the
contract date was 4th March 2001 and that the Invoice was more than eleven months after
the date of the contract. Mr Dindial did not accept the inference but insisted that Mr
Persad checked the works on 13th February 2002 and the works were performed on 4th
March 2001.
[52] Mr Dindial did not accept that with respect to invoices at Documents 2, 3, 4 & 5, that
Wayne Weekes certified them all on 5th June 2002 and the La Romaine contracts were all
certified on 9th May 2002. Only Wayne Weekes certified the documents.
[53] RE-EXAMINATION
Upon re-examination Mr Dindial stated that Mr Wayne Weekes was an NHA/HDC
employee. It was NHA/HDC’s responsibility to have those documents signed. He could
not say when NHA/HDC would have got Mr Weekes to sign these documents or the actual
completion of the contract documents. Mr Ronnie Persad who had no specific time frame
to prepare them did the preparation of the invoices.
[54] MR RODNEY LAMSEY
Mr Lamsey stated that works that were priced below $50,000.00 were petty contracts for
which no tendering procedure was required for the award of the works.
[55] CROSS-EXAMINATION
Mr Garcia’s cross-examination was directed heavily to Mr Lamsey’s ignoring of
NHA/HDC’s procurement processes as devised by him and his team. As to the issue of Mr
Page 18 of 36
Dindial’s claim, Mr Lamsey confirmed that he was authorised to enter into the oral
contracts in the manner stated, that he entered into those arrangements with Mr Dindial,
that he received requests for payment from Mr Dindial and that the monies were owed to
Mr Dindial and remain outstanding.
[56] RE-EXAMINATION
Upon re-examination Mr Lamsey confirmed that these oral contracts fell under the sole
selective tendering process. The award of these contracts was within the scope of his
authority under that process.
[57] SUBMISSIONS
The main point that Mr Garcia sought to drive home was that Mr Lamsey violated
NHA/HDC’s stated policy, which he had created, by entering into these oral contracts with
Mr Dindial. These alleged contracts were offensive to public policy.
[58] Mr Koylass was not moved at all by this issue. He simply asserted that NHA/HDC’s
contractual obligations were in no way proscribed by any alleged misdeed by NHA/HDC
officials. Mr Koylass asserts that Mr Lamsey’s evidence in fact supported his capacity to
award contracts for under $50,000.00 and that adherence to the procedures was
unnecessary.
[59] ANALYSIS AND FINDINGS
ACTUAL KNOWLEDGE OF PROCUREMENT PRACTICES AND PROCEDURES AND
PUBLIC POLICY
Did the contracts offend against public policy? Mr Garcia sought to address this issue
when he attempted to show that Mr Lamsey went off on a ‘frolic of his own’ in not following
the procedure outlined in the memorandum referred to above. However, for NHA/HDC’s
position to be effective to defeat the claim it has to also show that Mr Dindial had actual
knowledge of the proper procedure and knowingly followed Mr Lamsey on his frolic so as
to clothe these contracts with the character of being offensive to public policy and therefore
unenforceable.
Page 19 of 36
[60] To succeed, NHA/HDC would have had to bring cogent evidence to show that Mr Lamsey
had indeed embarked on an individual journey. None of this was forthcoming. Instead, we
witnessed an indignant Mr Lamsey staunchly defending his actions in granting these oral
contracts, which were for a value below $50,000.00 and thus within his purview so to
grant. Mr Lamsey’s evidence as to his capacity to award contracts under $50,000.00 went
unshaken and I daresay unchallenged.
[61] When a party alleges that another has actual knowledge of facts, the burden is on them to
prove that knowledge. A simple averment in a pleading is not enough. I daresay that
particulars of that actual knowledge ought to have been set out. Such particulars in a case
such as this may include: from whom within the NHA/HDC did Mr Dindial derive that
knowledge and when and in what context was that knowledge transferred. That would
have formed the factual matrix within which to present the evidence to the court.
[62] Mr Dindial, in his evidence, stated that he performed work pursuant to contracts for sums
between $200,000.00 - $500,000.00. These works came his way through a tendering
process. Those contracts involved road surfacing and construction, maintenance services
and supplying electrical and building materials. This is not the case here.
[63] When one examines the totality of the evidence, even though the NHA/HDC pleaded that
Mr Dindial had actual knowledge of the procurement policies and procedures, it has not
brought any evidence nor was able to solicit any adverse inferences from cross-
examination so as to aid its defence that Mr Dindial had actual knowledge of the stated
NHA/HDC’s procurement policy and practices, save what he testified about.
[64] In the absence of this evidence, I am hard pressed to make a reasonable inference and
moreover a reasonable conclusive finding, that Mr Dindial had actual knowledge of
NHA/HDC’s internal procurement practices and procedures and that he was complicit in
their breach, so as to taint his claims for the contracts sued for in this action and render
them unenforceable.
Page 20 of 36
[65] Since I can make no finding with respect to knowledge, I am therefore unable to say that
there was an intention, deliberate or otherwise, to flout those practices so as to clothe
these contracts with anything other than enforceability. In any event, even if one can say
that Mr Lamsey had breached internal procedures, the oral contracts entered into could
not have been invalidated since he had the authority to award and enter them. NHA/HDC
is still bound by those contracts, which are enforceable against them.
[66] 3. PERFORMANCE
Mr Dindial pleaded that he performed each of the forty-seven (47) contracts10. With
respect to the performance of the works, both Mr Dindial and Mr Persad have asserted
that the works were performed, and it was never put to them that the works were never
performed. That is sufficient. There was no need to go through all forty-seven (47) of the
contracts in order to prove that Mr Dindial suffered damage. In this case the only evidence
that can be led from Mr Dindial was that he did the work and that he must be paid11.
[67] The NHA/HDC is alleging that even if the contracts were in existence and enforceable,
NHA/HDC wishes Mr Dindial to prove that he had in fact performed these services.
[68] EVIDENCE
MR DINDIAL
Mr Dindial reasserted his claim that he performed the works under each of the forty-seven
(47) contracts claimed in this matter. Mr Lamsey spoke to this as well. Mr Dindial also
secured Messrs Vharma Persad, Sylvan Paul and Mohanlal Sewdath to support his
claims.
[69] Overall NHA/HDC denies that the monies claimed were owed to Mr Dindial. In the case of
the Maloney contracts, the NHA/HDC asserts that these contracts were not performed.
10
See paragraph 17 of the Statement of Claim:
The Couva North contracts, … Maloney Gardens contracts, La Romaine contracts, Tarouba North
contracts, Bien venue 1 and 11 contracts … of the applicable developments … were all duly performed
under the supervision of the relevant agent of the Defendant’s predecessor assigned to the applicable
development namely Wayne Weekes, Winthrop Grant and Eddison Chankersingh respectively. 11
The issue of Performance of the Contracts is dealt with later.
Page 21 of 36
[70] Mr Dindial testified that he performed the works under the contracts for which he claims
payment. Of all of the oral contracts he performed he secured payment in the sum of
$100,000.00 out of a promised total of $1,000,000.00. This amount was not paid for the
services claimed for in this action.
[71] The payments claimed in this action were for services rendered during the period 15th
January 2002 – 25th May 2002 and related to works duly confirmed by NHA/HDC’s
officials, who visited the job sites after the provision of these services.
[72] Mr Dindial testified that when he commenced a job, he would instruct Mr Vharma Persad -
his Administrative Assistant – of the scope and cost of the job and of the completion of the
works. Mr Persad recorded all of this information, would visit the sites to confirm
compliance with the contract and then produce the requisite invoices for payment. Mr
Dindial stated that he would receive these invoices in triplicate for his signature and
forwarding to NHA/HDC for completion of the payment process.
[73] CROSS-EXAMINATION
Under cross-examination Mr Dindial stated that he was promised payment of
$1,000,000.00 from Mr Andre Monteil of NHA/HDC but he only received $100,000.00 on
the Friday before the General Elections. He stated that this was an advance of all the
monies owed to him by NHA/HDC. This case was about the money as claimed for the
jobs performed at the stated job sites. Those job sites were all under the supervision of
NHA/HDC employees, who had confirmed the works performed. He confirmed Mr Vharma
Persad’s role in the process. Mr Garcia targeted the time frame between the work
performed and verification of the works. He says that a short time had to elapse between
the two (2) events. Mr Dindial did not agree. Mr Garcia suggested that it was useless for
Mr Persad to see if the work was performed two (2) to three (3) months after grass was
cut. Again, Mr Dindial disagreed.
Page 22 of 36
[74] MR LAMSEY’S EVIDENCE
Mr Lamsey confirmed the works performed at Couva North, Maloney Gardens, La
Romaine, Tarouba North and Bien Venue I and II. Mr Lamsey reiterated that with respect
to the maintenance service at the relevant housing developments, for which the claim is
made, (and I daresay that) the sums identified for the maintenance services are consistent
with the contract price for the maintenance services identified.
[75] Mr Lamsey was not cross-examined on this issue.
[76] VHARMA PERSAD
Vharma Persad stated that he was employed as an Administrative Assistant to Mr Dindial
during the period 1990 – 2005. His duties included: visiting worksites in the course of the
performance of and at the end of works; purchasing materials; bookkeeping including
invoicing and keeping a record of the commencement and completion of jobs; receiving
invoices from sub-contractors engaged by Mr Dindial and verifying the satisfactory
completion of jobs.
[77] He confirmed that these were his duties between January 2002 – May 2002 and
thereafter. Mr Dindial performed the work described by him at NHA/HDC Housing
Developments during the course of his employment with him.
[78] He outlined the procedure followed as:
On commencing a NHA job the Claimant would inform me of the location
of the job, the general nature of the maintenance service to be
performed, the cost of the job and I would record that information in a
diary or a notebook and would add information to that note when given
as to the completion of the job and scope of works. This formed part of
my bookkeeping and accounting duties.
More than that I would visit the worksites where works were reported to
have been completed to confirm such completion so as to be able to
generate an invoice as to the works.
Page 23 of 36
I say that I was responsible for creating all the Invoices as to the jobs
claimed in the Claimant’s original Statement of Case and the claim for
jobs that is now being pursued at Couva North, Maloney Gardens, La
Romaine, Tarouba North and Bien Venue 1 and 11 and I would produce
the individual invoices from my notes takes as to the commencement,
cost, completion and scope of works of the particular jobs.
[79] CROSS-EXAMINATION
Mr Persad confirmed that the information from which he prepared the invoices came in
part from the field. He denied Mr Garcia’s suggestion that he was not required to leave his
office to verify the works performed so as to prepare the invoices.
[80] SYLVAN PAUL
Mr Paul was employed with the NHA/HDC from 1976 to 2004. He was in charge of
supervising the staff responsible for the general maintenance of buildings constructed by
the NHA/HDC. He knew Mr Dindial as one of the contractors engaged by the NHA/HDC
to carry out maintenance works at its developments; such as spraying, grass cutting, and
drain cleaning and general maintenance of the NHA/HDC developments. There were no
specific areas assigned to any one contractor.
[81] Part of his duties was to go to the worksites where the contractors were engaged to
perform works and verify that the contracted works had been performed and the works
completed. During 2002, he was assigned to the Couva district so that he would visit
NHA/HDC worksites in Couva and examine and verify whether the works that were to be
performed had in fact been completed. During the period January to May 2002 Mr Dindial
was engaged in performing works for the NHA in Couva at Francis Street, Irene Street and
along the Rivulet River. Such works involved clearing drains, cutting the grass verge and
the cutting and disposing of grass. In the course of his duties, he visited the site and
verified that the works were satisfactorily completed which he then reported to the area
manager.
Page 24 of 36
[82] He was not cross-examined.
[83] MOHANLAL SEWDATH
Mr Sewdath was one of Mr Dindial’s contractors between the years 2001-2002. His duties
comprised performing maintenance services such as cleaning drains, cutting grass both by
mechanical equipment and manual labour at worksites within NHA/HDC developments.
[84] These works were done at Couva North, Couva South, La Romaine and Tarouba North.
The details of the work performed are as follows:
(a) Couva North 23rd January 2002 – 27th May 2002 cleared drains bordering
Couva North and Couva South and all tributaries of that drain which in
some parts bordered the Roystonia Development, and cut and dispose of
grass using both mechanical equipment with an operator and manual
labour at vacant lots and other open areas.
(b) La Romaine 11th March 2002 – 27th April 2002 grass cutting and clearing
of drains using both mechanical equipment with an operator and manual
labour in the development.
(c) Tarouba North 4th February 2002 – 11th May 2002 grass cutting works
using both mechanical equipment with an operator and manual labour in
the development as well as chemical spraying.
[85] Mr Sewdath was not cross-examined.
[86] NHA/HDC’s CASE
The case for the NHA/HDC was that Mr Dindial did not perform the work detailed in the
“oral” contracts under review, as claimed or at all.
[87] EVIDENCE
MR STEVE MOORE
Mr Steve Moore was the sole witness for the NHA/HDC. Mr Moore spoke to the Maloney
Housing Project. He stated that he was sure that no such work had been carried out since
Page 25 of 36
he patrolled the area regularly to ensure that the persons employed on a full time basis
were doing their work. He was generally at the site from Monday to Friday.
[88] NHA/HDC’S CASE
MR STEVE MOORE
Mr Moore was the Defendant’s sole witness who sought to speak on this issue. The tenor
of his evidence is that Mr Dindial offered him a bribe to sign the form. In addition he
alleged that the area claimed for was excessive. Mr Moore’s evidence was that in or about
2001 or 2002 Mr Dindial came to him at the area office and handed him a bundle of
documents. Upon examination, they were petty contracts for his signature, which would
have the effect of certifying that Mr Dindial had cut grass and bushes at the Maloney
Housing Development. The claim amounted to cutting roughly forty-eight (48) acres of
land. He told Mr Dindial that the Maloney Housing Development did not have forty-eight
(48) acres of land to cut. Mr Dindial then asked him how much land there was. He
retorted that since he - Mr Dindial - was making the claim he should have known the
acreage, which he was alleging to have cut. He asked him on whose authority he had
carried out the works for which payment was being sought. Mr Dindial told me that his
instructions had come from the then acting Executive Director - Mr Rodney Lamsey.
[89] Notwithstanding his refusal to sign the documents, Mr Dindial left them at the office.
Thereafter Mr Dindial called him on the telephone at intervals on several occasions
enquiring whether he had signed the documents. On each occasion, he responded in the
negative.
[90] On one occasion when Mr Dindial called him, he – Mr. Dindial - invited Mr. Moore to lunch
and offered Mr. Moore $1,000.00. He refused both. He viewed this overture as an
inducement being offered to him to sign the contracts.
[91] After sometime, Mr Dindial returned to the area office and retrieved the documents. Mr.
Moore suspected that Mr. Dindial went elsewhere to try to get them signed.
Page 26 of 36
[92] CROSS-EXAMINATION
Mr Moore confirmed his evidence-in-chief. When it was put to him that Mr Dindial
performed the stated works at Maloney, he stated that he had no evidence of such. He
relented that Mr Dindial could have performed the stated works at the Maloney site through
an oral contract entered into with Mr Lamsey but not with him. He would not say that Mr
Dindial performed the contract and did not get paid. He admitted to Mr Koylass that he
took no action to impugn Mr Dindial over his suspicious behaviour. He neither reported it to
his superior officers nor to the police.
[93] SUBMISSIONS
NHA/HDC
Mr Garcia did not lay much store on Messrs. Sylvan Paul or Mohanlal Sewdath’s evidence
in support that oral contracts had been performed. The basis of his doubt lay in the fact
that there was no link between Mr Paul’s evidence and the documents in the Agreed
Bundle. None of the documents pertaining to the Couva contracts reference Francis
Street, Irene Street or along Rivulet Road. In Mr Sewdath’s case the same criticism was
levelled with respect to the absence of any nexus between the documentary evidence
pertaining to the Couva, La Romaine or Tarouba contracts. In the face of this, there was
no need to cross-examine those witnesses. The same charge was levelled against Mr
Dindial’s and Mr Lamsey’s evidence in relation to Maloney contracts. In fact Mr Steve
Moore’s evidence gave fortification to NHA/HDC to refuse the very performance of those
contracts.
[94] Further, Mr Lamsey’s cross-examination did nothing to assist Mr Dindial’s case since he
was an unsatisfactory witness, given his demeanour and his apparent departure from his
own “procedural structures”. Mr Garcia’s thorough examination of the documentary
evidence led him to the conclusion that the procedure for verification of the written
agreement by Mr Wayne Weekes was flawed in that:
a) this verification occurred on the same day;
b) the contract documents were not signed by Mr Dindial at all;
Page 27 of 36
c) the contract documents were witnessed by E. Chankersingh though
not signed at all.
The documents were therefore “…produced for the purposes of shoring up an untrue claim
to have performed the works” the payment for which is being claimed in this action.
[95] Mr Garcia concluded that based on the dicta in the authorities he cited, the evidence relied
upon by Mr Dindial to prove his case is both unsatisfactory12 and useless13
[96] MR DINDIAL
Mr Koylass totally disagreed with these submissions. Mr Dindial, he asserts, provided the
clearest evidence of performance at paragraphs 11 and 13 of his witness statement14.
This remains unchallenged and it was not put to him that he did not perform the contract.
Mr Vharma Persad, who confirmed that the works had been performed, also supported this
evidence15. He discounted Mr Garcia’s assertion that it was a useless exercise for Mr
Persad to go to see that the works were actually performed since, Mr Koylass states, it
was born of a misapprehension of Mr Persad’s evidence.
[97] The terms of the oral contracts involved:
(i) The identification of the location where the works were to be performed;
(ii) The nature of the works that were to be performed;
(iii) The time when the maintenance service was to commence and the
approximate completion date; and
(iv) The price for the performance of the maintenance service.
[98] Mr Dindial presented four witnesses to corroborate his case. They were Mr Rodney
Ramsey, Mr Vharma Persad, Mr Sylvan Paul and Mr Mohanlal Sewdath. HDC relied on
cross-examination and one witness - Mr Steve Moore.
12
See The BONHAM CARTER case 13
See BOTRELL v BOTRELL 91 VCLR(2d) 300 14
See paragraphs 11 and 13 of Mr Dindial’s witness statement 15
See paragraph 9 Mr Persad’s witness statement dated 24th
August 2007
Page 28 of 36
[99] ANALYSIS AND CONCLUSIONS
It was not put to Mr Dindial that the works were never performed. Mr Lamsey’s and Mr
Dindial’s cross-examination was directed purely to the procedure relating to how the
contracts were awarded; who certified that the works were done and the payment thereof.
Both Mr Paul and Mr Sewdath were presented for cross-examination but the opportunity
was not taken. I shall therefore take their evidence as corroboration of Mr Dindial’s case.
[100] How does Mr Moore’s account of the overstatement of the acreage affect this matter? Can
it really affect Mr Dindial’s credibility? I think not. The facts are that the claim is for the
acreage as provided for in the claim, nothing else. Further, with respect to Mr Moore’s
allegation of a bribe by Mr Dindial, that has lost much force since the alleged suspicious
behaviour has for all this time resided in his breast. This case was not put to Mr Dindial at
all. I can therefore draw no positive inference from that incident.
[101] When I consider all of the evidence, I find that on a balance that it is more probable than
not that Mr Dindial performed the works under the forty-seven (47) contracts as claimed.
[102] 4. PAYMENT
MR DINDIAL
Mr Dindial asserts that despite having duly sought payment of the sum of $ 1,470,527.50
for the performance of the maintenance services for which his claim is made, he has not
been paid.
[103] NHA/HDC
This was flatly denied.
[104] EVIDENCE
Mr Dindial testified that he sought payment for the works performed up to as late as 1st
June 2005. Mr Lamsey supported Mr Dindial’s claim by confirming that during his tenure,
as Executive Director, monies were not available for making payment of all monies due for
Page 29 of 36
Mr Dindial’s provision of maintenance services. Monies remained outstanding to Mr
Dindial for maintenance services performed by him.
[105] Mr Persad supported Mr Dindial’s claim that payments for the period, jobs, location and
invoices as claimed in this action are outstanding.
[106] NHA/HDC
STEVE MOORE
Mr Steve Moore confirmed that no payments were made on these contracts. Sometime
after the episode adverted to above, he was asked to attend a meeting at NHA/HDC’s
head office in Port of Spain. He attended the meeting as requested. At that meeting were
Mr Rodney Lamsey - the then Acting Executive Director, Mr Worrell John - a former
Executive Director of NHA/HDC, who was then employed at NHA/HDC in some other
capacity and other area managers whose names he did not then recall.
[107] At that meeting Mr Lamsey and Mr John sought to elicit, from the area managers present,
a pricing structure for clearing land. During the course of the meeting, Mr Dindial’s name
was mentioned. Nothing was resolved at that meeting. It was obvious to him that the
meeting had been called to put structures in place that would permit Mr Dindial to be paid.
[108] As far as he was concerned there was already a system in place for pricing work when an
independent contractor was employed to do specific work. In the case of Maloney
Housing Development, the regular daily paid employees in full time employment with the
NHA/HDC handled most of the grass cutting and clearing of bushes while the Regional
Corporation for the area cleared the drains, so that outsourcing work was done on a very
limited basis and was authorised by him only following the guidelines for payment as
documented in files, which he met when he assumed duties as Manager.
[109] ANALYSIS
There is no dispute on the facts that payment was not advanced for the performance of the
contracts. Mr Moore’s evidence of the meeting and the purpose for that meeting does, in
Page 30 of 36
my mind, supports the fact that Mr Dindial was not paid for work that he performed for the
NHA/HDC. If this was so, what is there to prevent the inference that the contracts claimed
for were to be covered by any arrangements arrived at in this meeting? Again, to my mind,
it is more probable that Mr Dindial was not paid for the works performed under the
contracts, which form the subject matter of this action and must be paid.
[110] 5. OTHER ISSUES
a. Fettering of Mr Dindial’s case by his pleading and inclusion of
Documentary Evidence.
It was readily agreed by Mr Koylass that the function of pleadings was to define the case
that a party had to meet or to identify the defence presented by a Defendant.
[111] Mr Garcia argued that Mr Dindial was limited to his pleading as a claim to 47 individual oral
contracts. Mr Koylass explained that the case had to be so pleaded since Mr Dindial was
the beneficiary of contracts all of which were below the value of $50,000.00. The
significance of this was that Mr Dindial could not have received oral contracts for values
above that amount since NHA/HDC had specific conditions for the award of those other
contracts.
[112] b. The Pleadings
Paragraph 10 of the Statement of Claim stated that Mr Dindial entered into oral contracts
for Couva North. The particulars of the contracts are then set out, to wit:
a) Invoice date;
b) Invoice number;
c) Type of job;
d) Amount;
e) NHA contract date;
f) Total; and
g) Vat.
At the end the following words appear “The Claimant will refer to the contract documents
relative to the above invoices for their full terms, meaning and effect”. The same style is
Page 31 of 36
adopted for works at the other housing developments, which are pleaded at paragraphs
12, 13, 14 and 15. Each of the 47 contracts was pleaded and the amounts claimed on
each clearly identified. Paragraph 20 further reads:
“By reason of the matters aforesaid the
Claimant has suffered loss and damage”.
[113] “Particulars of Loss” quantifies the loss and damage suffered by area and gives a total
figure. The prayer is for the payment of the sum owed and damages for breach of
contract. Proof of damages lies in the assertion that works were performed for which there
was no payment. To my mind, since the measure of damages will be the loss suffered,
there is no need to trouble this any further.
[114] c. Documentary Evidence
Mr Garcia took issue with the documentary evidence, stating that there was no nexus
between the documents presented and the evidence led. He claims that this was fatal to
Mr Dindial’s case, since the documents could not have been relied upon and there was no
evidence to prove the case.
[115] Mr Koylass disagreed. Paragraphs 12 and 13 of Mr Dindial’s written submissions make
specific reference to the periods during which the services were performed. This, he
asserts, ties in with the statement of case. Further, there was no need for Mr Dindial to
identify each oral contract and say that he entered into that specific contract having styled
the pleading the way in which he did (as mentioned above).
[116] ANALYSIS
Mr Dindial’s case is based on oral contracts. The documents simply reflect that those oral
contracts were reduced to writing to facilitate payment. This is corroborated by Mr Lamsey
at paragraph 26 of his written submissions and by Mr Dindial’s witnesses - Mr Paul, Mr
Persad and Mr Sewdath. Mr Dindial explained that these were copies kept in his files. The
originals reside with NHA/HDC. I note that they were not denied or produced. Neither Mr
Dindial’s, Mr Lamsey’s nor Mr Persad’s evidence was successfully challenged by
Page 32 of 36
NHA/HDC. Mr Paul’s and Mr Sewdath’s evidence stood completely unchallenged. I
therefore agree with Mr Koylass’s submission.
[117] Further I must make reference to the orders and direction in this case. On 4th October
2007 my Order read:
6. Parties to meet and agree a bundle of
documents for inclusion in Trial Bundle.
This inclusion presupposes that both parties agree to use these documents at trial. If there
was an issue to be taken with the use and relevance on these documents at trial, then that
ought to have been raised at the pre-trial stage and certainly not at the stage of addresses.
Questions were put to Mr Dindial on these documents. The issue which Mr Garcia ought
to have directed his attention to was the weight to be attached to the documents. This was
not done.
[118] d. Putting the Case to the Witness
SOOKRAJ v. SAMAROO16 put this issue beyond doubt. There is no need to depart from
that learning.
[119] e. The Authorities
I shall now examine the authorities quoted by Mr Garcia and set out both Mr Koylass’s and
Mr Garcia’s interpretation of them and my own views.
BONHAM-CARTER v. HYDE PARK HOTEL LIMITED17
The English Court had to assess damages in a case of negligence. Lord Goddard C.J.
had this to say on the evidence that is necessary to prove damages: “… it is not enough to
write down the particulars, and, so to speak, throw them at the head of the court saying:
‘This is what I have lost; I ask you to give me these damages. They have to prove it’”.
16
SOOKRAJ v. SAMAROO C.A. Civ. 27/2000 17
Supra
Page 33 of 36
[120] Mr Garcia quoted this statement with relish, when he stated that Mr Dindial has fallen into
this trap. There has not been sufficient proof of damages. Mr Koylass counters that the
Chief Justice stated a general principle, but did not identify the nature of the evidence. Mr
Koylass urged that there was sufficient evidence with respect to the making and existence
of the forty-seven (47) contracts to support Mr. Dindial’s claim for monies due and owing.
[121] DLOT v. S DONG CHOI18
The Canadian Court had to pronounce on the evidence, which sought to prove loss in
specific cases on a breach of contract. In this case, the contract had not been completed
but the trial judge gave judgment for the full amount of the contract. It was held that the
developer had to prove the extent of his damages as opposed to the total work the
contract called for. There were certain pronouncements made by the court, which excited
Mr Garcia, to wit that a Plaintiff must prove his case. This case quoted dicta from the
BONHAM-CARTER case.
[122] Mr Koylass was of the view that this case also did not advance NHA/HDC’s case, since in
the matter under consideration the contracts were completed. There was no need for
further evidence.
[123] When one looks at these two cases, I too must conclude that the evidence presented by
Mr Dindial and his witnesses was sufficient to support the contention that the oral contracts
were in existence. What more could they have said? I do not think it was necessary to put
each of the forty-seven (47) contracts to Mr Dindial or his witness - Mr Lamsey -
individually. I accept that Mr Dindial used Oral evidence to prove that the forty-seven (47)
contracts existed or, put another way, that the contracts were made. One must remember,
and I accept, that the role of the documentary evidence in this matter did not go to the
formation or existence of the contracts but to the requests for payment. NHA/HDC has not
disputed this. Nowhere has NHA/HDC stated that contracts were never awarded in this
way. The BONHAM-CARTER CASE does not assist NHA/HDC.
18
Supra. This case quoted dicta from the BONHAM-CARTER Case.
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[124] The Court in the DLOT case had a different task to perform from the one that I have.
There the Court had to do an assessment of work done on a contract that had not been
completed in order to base an award for damages. This is not Mr Dindial’s case. He
alleges that there were contracts in which he completed the works and for which he must
be paid. DLOT does not advance NHA/HDC’s case.
[125] f. MR LAMSEY’S CROSS-EXAMINATION
I need to make a comment on this. Mr Lamsey was cross-examined extensively on
procurement procedures and his perceived failure to follow them. An attempt was made to
link his demeanour and his responses to the issues of existence, enforceability and
performance of the contracts. I do not think that this is correct. I do not see how his
“violation” of procedures, be it real or imagined, can have any impact on whether Mr
Dindial had entered into the oral contracts or had performed them.
[126] FINDINGS OF FACT
Thus, on a balance of probabilities and from the mass of evidence, I must find that Mr
Dindial is to be paid for the works performed based on the following:
• Mr Lamsey’s explanation of the situation, which NHA/HDC found itself in 2002 with
respect to non-performance of its responsibilities to the homeowners in its
development, is accepted.
• Mr Dindial’s long association with the Authority and the relationship that had built
up between the parties is accepted.
• Mr Dindial did enter the oral contracts with the NHA/HDC.
• Mr Dindial did not have actual knowledge of the internal procurement policies
allegedly breached by Mr Lamsey nor did he intend to breach any stated
procedure.
• Mr Dindial’s submission of invoices and certification by Mr W. Weekes of the work
done was for that purpose only and did not constitute a reduction of the oral
contract to writing.
• Mr Vharma Persad’s detailing of the steps undertaken to verify the works is
accepted.
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• Mr Paul’s unchallenged testimony that work had been performed at the Couva
North site, La Romain and Tarouba is accepted.
• Mr Sewdath’s unchallenged testimony that work had been performed at the Couva
North, Couva South, La Romaine and Tarouba North sites is accepted.
• Mr Moore’s admission that the works could have been performed through oral
works with Mr Lamsee must be considered.
• In addition Mr Moore’s evidence did not attempt to counter or deny the
documentary evidence presented so as to establish that Mr Dindial was untruthful
on the Invoices which formed the basis of the claims, nor could I have drawn such
an inference.
• There was no reason advanced as to why Mr Dindial would not have performed
works on the other sites as claimed.
[127] INTEREST
The Claim Form seeks interest on the payments at the rate of 6% pre-judgment to the date
of judgment and thereafter at the rate of 12%. The period of pre-judgment interest is to
commence from the date of non-payment of the claim to the date of filing. I take the date
of non-payment to be 6th July 2005 - the date of the letter of refusal to pay. Therefore
interest at the rate of 6% is awarded with effect from 6th July 2005 to today’s date and
thereafter at the rate of 12% until payment.
[128] CONCLUSION
Mr Dindial performed the works as stated in the documentation he produced, based on
oral contracts for his services entered into with Mr Lamsey, in his capacity as Executive
Director of the HDC and Mr. Dindial is therefore entitled to payment on the forty-seven (47)
oral contracts.
[129] ORDER:
1. That there be judgment for the Claimant against the Defendant;
2. That the Defendant do pay to the Claimant the sum of $1,470,527.50 which sum is
inclusive of VAT;
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3. That the Defendant do pay interest on the judgment sum at the rate of 6% per
annum from 6th July 2005 until today and thereafter at the rate of 12% per annum
until payment;
4. Costs to be paid by the Defendant to the Claimant prescribed in the sum of
$144,289.56;
5. Stay of execution forty-two (42) days.
Dated this 18th day of July 2008.
/s/ CHARMAINE PEMBERTON
HIGH COURT JUDGE