A former high-ranking public officer is warning the Dickon Mitchell-led Congress government in Grenada to be careful in its dealings with the Trinidad & Tobago road construction company known as NAMALCO.
The ex-civil servant made mention of an October 2025 ruling in the Court of Appeal in a legal battle over millions involving NAMALCO and Estate Management and Business Development Company Ltd (EMBD).
NAMALCO is one of the companies engaged in discussions with the near four year old Grenada government in keeping with a new policy rolled out to engage contractors who can Design, Build and Finance Road projects and will then be paid by the State after completion of the work done.
The Prime Minister announced three weeks ago that negotiations are almost complete with some of these firms including NAMALCO and that draft contracts are being prepared for the scope of work to be undertaken.
Among the projects listed to be covered under this arrangement are the Cliff Junction to the Maurice Bishop Highway, the Eastern Main Road from the Cliff Junction to Westerhall Point.
Prime Minister Dickon Mitchell told reporters at a press briefing: “This package is finalised. The contractor (NAMALCO) is in the final stages of mobilisation. Work is expected to begin at the beginning of the second quarter.”
However, THE NEW TODAY was provided with the copy of a Court of Appeal ruling in Trinidad & Tobago in which the Appeal Justice upheld the findings of a trial judge concerning “the unlawful means conspiracy between mega contractor NAMALCO and the ex-Chief Executive of the state-owned entity EMBD, improperly to inflate prices for the construction of roads and housing sites for displaced Caroni sugar plantation workers on the island of Trinidad.”
The report went on to say: “Supplementary Agreements were declared invalid, reducing EMBD’s liability for work done from TT$1.3 billion to less than TT$200 million.”
The Court of Appeal in handing down its ruling gave the background to the case:-
NAMALCO entered into four contracts with EMBD for the performance of infrastructural works at four sites, namely Roopsingh Road (RR), Petite Morne (PM), Cedar Hill and Picton.
The first three contracts are the subject of this appeal. Subsequently, NAMALCO suspended the works on the PM and RR contracts for approximately two years. It then invited NAMALCO to restart those projects.
Supplementary Agreements (SAs) were entered into in respect of the PM project (including an additional package of works at Petite Morne 2A (PM2A) and the RR project.
Under each contract the role of the Engineer was ‘inter alia’ to issue certifications for completed works on the basis of which the contractor (NAMALCO) would make claims for payment.
NAMALCO claimed against EMBD on the 6th of May 2016 for sums allegedly owed to it under the four projects together with interest.
EMBD challenged the certified value of the works and raised the defence of abatement based upon its allegation of defective works and over certification of works [1].
In relation to the SAs it contended that its own CEO Mr. Singh who executed the SAs (i) acted in breach of his fiduciary duties to it and (ii) without any actual or (iii) apparent authority, and contended that those agreements were accordingly void.
It further contended that the SAs were entered into on the basis of conspiracy between EMBD and NAMALCO to use unlawful means to procure the SAs with the intention to injure EMBD (the unlawful means conspiracy), by causing it to pay sums in excess of those which it otherwise would be required to pay, and in excess of the actual value of the works thereunder.
As a result, EMBD allegedly suffered damage being the increase in unjustified liability thereunder in excess of that actual value.
EMBD therefore contended, and the Trial Judge agreed, that the SAs were null and void on that basis.
EMBD filed a counterclaim in which it expressly sought an abatement with respect to NAMALCO’s claims. It also sought inter alia, repayment of sums which NAMALCO received from EMBD in excess of the value of the works, (the overpayments).
These were sums which it would not otherwise have been entitled to receive, but only did because of the SAs executed as a result of a conspiracy to injure, and the supply of defective works, both of which resulted in the works being of lesser value than NAMALCO’s claims for payment.
The Trial Judge found that EMBD was entitled to rely upon the defence of abatement, based upon its pleadings and as a matter of law and evidence. In particular he found that the SAs were null and void, and that claims under them were invalid.
He also found that EMBD was able to establish over certification on certain items carried out for the RR project and made a deduction from the claim as a result.
EMBD contended that in relation to claims under the void SAs and the over certifications, there was a diminution in the value of works received, which was less than the sums certified for those items of work.
It contended that on the basis of abatement it was entitled to a reduction of its liability in respect of the sums certified. On that limited basis the Judge upheld EMBD’s defence on abatement. He concluded that it was not precluded by clause 2.5 of any of the contracts.
In fact, with the SAs being null and void EMBD claimed that its liability had to be based upon rates under the original contracts, because rates under the SAs no longer applied.
The quantum of that abatement was the amount of any over certification established (the excess claim). Its liability after abatement (deduction of the excess claim), would therefore be the actual value of the works.
EMBD’s defence on abatement was based upon its ability to establish (a) that the SAs for RR and PM were null and void, and no payments based upon the increased rates under the SAs were therefore due thereunder and (b) defects established in the works such that they were worth significantly less than the contractor was claiming.
The trial judge agreed with EMBD and found that (a) the SAs for PM and RR were null and void and (b) that it had been established that some works under the RR project were defective.
The Trial Judge having found that the SAs were null and void, proceeded to calculate the amounts payable under the RR contract by reference to the original rates used in that contract.
In relation to the Petite Morne contract he found that no contract had been executed and therefore there were no contractual original rates that could be applied. He declined to make any quantification under the PM contract. He therefore remitted the calculation of damages under the Petite Morne contract to a Master.
EMBD contends that he was wrong to do so because he actually had sufficient evidence of original rates for the PM works and therefore there was no reason why he could not perform the same assessment on the same basis as he had done for RR.
EMBD further contends that he made substantial arithmetical errors in relation to RR and had he not done so he would have determined that EMBD actually owed NAMALCO substantially less than the $394 million that he found that it did.
Further had he attempted the assessment in respect of the PM works he would have determined that EMBD had overpaid NAMALCO at least $48,519,231.25 million and could then address its claim that it was entitled to repayment of that sum.
EMBD also brought a claim against its engineer Atlantic Project Consultants Limited, (APCL) for negligent certification of some of the items of work and claimed (i) indemnity against it in respect of any sums which it had to pay to NAMALCO as a result and (ii) damages for alleged wrongful certifications which it claimed to be entitled to set off against any invoices from APCL.
Main Issues
[1] While there are other subsidiary issues that arise in this appeal the main ones that arise out of the circumstances described above include:-
i] Whether the Trial Judge erred in finding that a conspiracy to injure had been properly pleaded;
ii] Whether on the evidence the elements of conspiracy to injure had been proved; a] Whether the trial judge erred in finding that Mr. Singh’s lack of actual authority to enter into the contract was known to NAMALCO.
b] Whether the Trial Judge erred in finding that Mr. Singh’s lack of apparent authority to enter into the SAs was known to NAMALCO.
c] Whether the Trial Judge erred in drawing an adverse inference from the failure of NAMALCO to call as a witness NAMALCO’s Managing Director, Mr. Ali, as the controlling mind of NAMALCO.
d] Whether the Trial Judge erred in failing to determine whether Mr. Singh had breached his fiduciary duty to EMBD when he executed the SAs.
e] Whether the Trial Judge erred in finding that any breach of fiduciary duty would have been effectively ratified by a Board decision, three years later in 2015, with full knowledge of the relevant surrounding circumstances.
iii] Whether the trial judge erred in finding that the defence of abatement was open to EMBD a] on its pleadings or b] on the evidence and that c] Clause 2.5 of the 1999 FIDIC conditions of contract did not preclude it.
iv] Whether (if the Trial Judge did not err in a] finding a conspiracy to injure, or b] that the defence of abatement was available to EMBD), his calculation of the damages for the RR project was erroneously based upon the starting point of a figure derived from rates under the RR SA (which he had set aside), instead of rates under i] the original contract, or alternatively ii] derived market rates. If so, what was the correct calculation.
v] Whether the Trial Judge erred in not assessing the damages in respect of the Petite Morne contracts himself, rather than referring that issue to a Master of the High Court, failing to appreciate that the relevant evidence of the market rates was already before him. If so, what was the correct calculation.
vi] Whether EMBD was entitled to recover any overpayments that it made as a result of claims based on the rates in the SAs. (Only if the SAs were incapable of effective ratification).
vii] The appropriate disposition of claims by EMBD against its Engineer, APCL for negligent certification and indemnification.
viii] Whether the trial judge erred in his determination of the applicable interest rates.
Conclusions on main issues – Summary
Conspiracy to injure – Pleadings
Whether unlawful means conspiracy proved – elements
[12] The Trial Judge correctly found that conspiracy to injure was properly pleaded because the tort did not require that the knowledge of any specific individual at NAMALCO be pleaded.
[13] The trial judge found that the elements of unlawful means conspiracy (UMC) had been proved. He made findings of fact with respect to them including: i] the fact and nature of the agreement, ii] the unlawful means alleged, iii] the unlawful acts relied upon as causing loss to EMBD, iv] the fact that each such act was carried out pursuant to the conspiracy [2].
[14] He properly considered that the nature of conspiracy often involved inferences being drawn by a court with respect to the agreement among the parties to injure. He found that unlawful means were established by Mr. Singh’s lack of authority and NAMALCO’s knowledge of that fact as well as his breach of fiduciary duty.
The same evidence that grounded his finding of conspiracy would have led to an unequivocal finding that Mr. Singh was in breach of his fiduciary duties to NAMALCO. Mr. Singh’s fiduciary duty required him to exercise a duty of loyalty to EMBD, and not to prefer the interests of NAMALCO over those of EMBD. This is exactly what occurred on the above facts. This breach also constituted unlawful means as required for the tort of UMC.
[15] As to injury to EMBD he correctly found that it comprised the additional amounts that it became liable to pay under the RR SA and the PM SA for which it would not otherwise been liable. The main acts carried out pursuant to the conspiracy were the execution of the SAs and the submission of claims thereunder for amounts which far exceeded the actual value of the works performed.
Knowledge of NAMALCO – Actual authority
[16] The Trial Judge found that NAMALCO did have actual knowledge that Mr. Singh did not have any apparent authority to enter into SAs for sums that would have resulted in an increase in the amounts payable thereunder of approximately $314 million for RR and PM alone.
That sum was way in excess of the original contractual sums and NAMALCO knew that it had to enter into a tendering process for works involving far lesser amounts. In any event it knew it had not submitted a tender for the PM2A works originally awarded to Sawh.