A CONTRACTOR’S bid to recover more than $90 million from the Tobago House of Assembly (THA) over a road project completed almost two decades ago has been thrown out by the High Court.
The claim brought by Raghunath Singh and Company Ltd was dismissed by High Court Justice Frank Seepersad yesterday, and the judge also directed that the contractor pay $636,590.07 in legal costs to the assembly.
The company had sought over $27 million in special damages and more than $53 million in interest arising from works on the L’Anse Fourmi-Charlotteville Road Project. With value added tax (VAT) added, the claim exceeded $90 million.
The dispute stemmed from a contract awarded by the Central Tenders Board on May 16, 2002, at a corrected contract sum of $34.7 million plus VAT.
Although the project was expected to be completed within 18 months, delays extended the duration of the works, and the contractor eventually left the site in March 2007.
A Certificate of Provisional Acceptance (CPA) was issued by project supervisor Lee Young & Partners on August 3, 2007, and a final payment of $1,006,716.36 was certified.
However, despite the completion of the project, the contractor did not commence legal proceedings until November 2022. Before that, it submitted what it described as a claim and final account to the THA in May 2015.
The contractor contended that delays were caused by design changes, adverse weather conditions, including Hurricane Ivan and Tropical Storm Earl in 2004, escalating costs, and requirements imposed by the Environmental Management Authority.
Justice Seepersad found that the action was barred by the Limitation of Certain Actions Act, which requires contractual claims to be brought within four years.
Rejecting arguments that the THA’s failure to issue a Final Completion Certificate kept the claim alive, the judge stated: “The law favours diligence and not indifference.”
“Contractual mechanisms requiring timely certification and the prompt resolution of disputes exist not merely for administrative convenience but because justice itself is best served when claims are advanced while the underlying facts remain capable of objective verification,” said the judge.
He went on to add that courts are “slow to unsettle settled positions or to reconstruct, through imperfect hindsight, commercial relationships that the parties themselves failed to regulate in accordance with their contractual bargain”.
In reviewing the evidence, Justice Seepersad found that the contractor failed to comply with several key provisions of the contract. These included requirements to submit a draft final statement of account shortly after completion of the works and to pursue arbitration when disputes arose during the course of the project.
Emphasising the importance of contractual procedures in major construction projects, the judge said “commercial certainty is an indispensable feature of construction contracts”.
“Such contracts invariably contain carefully calibrated provisions governing certification, claims, variations, extensions of time and dispute resolution. Those mechanisms are not mere technicalities.”
Further to that, Justice Seepersad stated that the court could not rescue parties from the consequences of failing to follow agreed procedures.
“Courts are not at liberty to reconstruct contractual relationships many years after the relevant events have occurred or to substitute broad notions of fairness for the bargain freely entered into by commercial parties.
“The judicial function is to enforce contracts according to their terms and not to relieve parties from the consequences of failing to invoke the procedures to which they agreed,” he said.
He also found that the agreement was a fixed-price contract which contained no provision for price fluctuations, meaning that the risk of increased costs rested with the contractor.
Commenting on the lengthy delay before legal action was initiated, the judge said: “The passage of time inevitably impairs the ability of any court to conduct a reliable reconstruction of complex construction disputes. Memories fade, documents become difficult to retrieve, and the contemporaneous context in which decisions were made becomes obscured.”
Appearing on behalf of the company were attorneys Peter Taylor, Egon Embrack and Nehanda Samuel, while the THA’s legal team was led by Senior Counsel Russell Martineau and included Dominique Martineau and Avionne Thomas.
