Elias wins second round battle with Imbert

Businessman Emile Elias has won in the courts  another round in his battle against Government minister Colm Imbert. Elias and Imbert have been at loggerheads ever since Elias’ company, NH International Limited was fired by Imbert’s company, ICS Grenada Limited during the construction of the multi-million dollar National Stadium in Grenada. The project, which involved the design and construction of sporting facilities was originally estimated to cost US $23 million.

In Round One of the Elias/Imbert duel, Elias emerged victorious. He succeeded in getting the court to restrain the financier of the project, Clico Investment Bank Limited (CIB), from paying either of Imbert’s two companies, ICS  Grenada Limited or National Stadium Project (Grenada) Corporation any amount that would reduce the overall balance on the monies held by CIB (for the Project) to less than EC $7.4 million (TT $17 million).  This sum, Elias claimed, was owed to his company at the time it was axed. Round Two of the Elias/Imbert row also ended in a win for Elias. Elias sought to have the disputed sum, EC $7.4 million, moved from CIB to an interest-bearing account with the Unit Trust Corporation. Again Justice Joseph Tam, who had granted the previous injunction, granted his (Elias)  wish. Two Fridays ago, Tam ruled that the sum be deposited with UTC “within 21 days “in the joint names of the instructing attorneys-at-law on record for the parties, pending the hearing and determination of this action or until further order”.

In his judgement, Justice Tam concluded that CIB was less than diligent in its management of the funds. “As a trustee, it is CIB’s duty to invest the funds until the rightful owners are ascertained...But not investing the funds, or by applying any interest accruing thereon to a use other than the specific purpose for which the funds were raised, CIB would be acting contrary to the trust. In addition the evidence before me strongly suggests that CIB has been intermingling the funds with its own monies...and this too is a breach of trust”. Justice Tam continued: “It appears therefore that there are two clear breaches of trust on the part of CIB — 1) the non-investment of EC $7.4 million and 2) the intermingling of this sum with its own monies. These two factors in my view amount to evidence of misconduct on the part of the trustee as to warrant the court’s intervention to protect the funds”.

Tam noted that on November 30, 1999 (he) the court ordered that “CIB be restrained from paying to the other two defendants (ICS and NS), out of  monies held by CIB, any sums that would reduce the overall monies held by CIB to less than EC $7.4 million until after the determination of the action, or until further order”. Tam, in his more recent judgment stated that he rejected the proposition that “this interlocutory injunction of November 1999 somehow released the funds from its true nature of being impressed with a trust”. “CIB is not the owner of the funds, but merely the protector. CIB is a trustee of all those who have a legitimate interest in ensuring that they are applied to the specific purpose for which they were raised”.

Justice Tam said he also rejected the contention that the  previous (interlocutory)  injunction did not create a specific fund. “That sum is a part of the trust funds raised by CIB for a specific purpose. The suggestion that CIB can pending the outcome of the trial, utilise the sum as it pleases (ie. choose either to invest it, or to let it simply let idle and un-invested) is unacceptable,” he stated. Addressing the allegations contained in Elias’ affidavit, Tam said however that the evidence before the court did not “reasonably demonstrate “ that either CIB or the CL Financial Group of companies  was in serious difficulty. He nevertheless found it was “curious” and “surprising” the “vehement opposition” of ICS and NS to the application (to have the funds moved from CIB).  He noted that “at times Senior Counsel for these parties seemed to be arguing the case for CIB.

These parties were however entitled to oppose the application as they saw fit. I am sure that they would be aware of the effect that failure would have on the issue of costs” “But,” Justice Tam argued, “the order being sought by NH can in no way be detrimental to these parties, nor to CIB, unless there is some other dimension to the relationships that the court is not privy to”. Tam pointed that that CIB had no personal benefit to obtain  (in “  and in investing the funds (in the interest-bearing account at UTC) it will be fulfilling its duty as a trustee. Further interest accruing on these funds can only be to the benefit of ICS and NS should NH fail at the trial”. Justice Tam ordered that the defendants- who were CIB, ICS and NS- pay the legal  costs of the plaintiff (NH) for the application certified fit for Senior and Junior Counsel.