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


$40,250.00 13/05/02


$40,250.00 20/05/02


$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


$34,500.00 Undated


$38,812.00 Undated


$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


$6,325.00 10/04/02


$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


$32,200.00 07/03/02


$34,212.50 18/03/02


$44,275.00 26/03/02


$36,225.00 05/04/02


$46,287.50 15/04/02


$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.

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[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.

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[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.

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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.


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

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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.

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[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.

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[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.

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[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.


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.

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[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.

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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.


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.

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[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

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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.

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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;

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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

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[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

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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

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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

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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

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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

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[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

REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT...

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