Court orders Lm110,000 payment to contractor

A contractor has been awarded over Lm110,000 by Mr Justice Tonio Mallia in the First Hall of the Civil Court for works carried out on behalf of the Ministry for the Environment.

Francis Fenech and his wife Pauline filed their writ in 1994 against the permanent secretary in the Ministry for the Environment and against the minister.

Plaintiffs claimed they had been engaged by the ministry to carry out road works at Marsaxlokk and Marsascala in 1986. Originally, the works had been contracted to Land Sea Civil Engineering Co. Ltd, of which company plaintiffs were members. However, in 1987, with the change in government, the execution of the contracts and the payment for the works had changed, for the ministry had started to effect payment directly to the contractors who were carrying out the works.

Although the ministry had always acknowledged that it owed payment to plaintiffs, no payment had been forthcoming and plaintiffs asked the court to order the Ministry for the Environment to pay them for the road works carried out.

The court noted that in 1986 the government had decided to award road works in areas in Malta and Gozo to certain companies formed by private contractors who were willing to do the works by employing persons who were in the Dejma Corps. The contracts were awarded by direct order. One of these companies was Land Sea Civil Engineering Co. Ltd, which was made up of a number of private contractors and the chairman of which was an architect appointed by the government.

Following the 1987 election and the change in government, the procedure of direct orders was discontinued. Orders that had already been awarded were however to be honoured but a new system for payment was introduced. The government had eliminated the involvement of companies such as Land Sea Civil Engineering Co. Ltd as intermediaries and had entered into direct agreements with the individual contractors who would be paid directly. An ad hoc committee had also been established and was composed of three government officials whose task it was to examine each request for payment for work carried out on direct orders from the government between 1986 and 1987.

The court noted that Francis Fenech, as one of the private members of Land Sea Civil Engineering Co. Ltd, had carried out road works at Marsaxlokk and Marsascala. Upon completion of the works, Fenech had applied for payment and his request was examined by the ad hoc committee. However, payment for all the works had not been effected and Fenech had only been paid for works carried out in the areas known as tal-Foss and tas-Silg in Marsaxlokk. He had not been paid for works carried out in three other localities, one in Marsaxlokk and the others in Marsascala.

The court noted that documents indicating that the works had been approved by the Prime Minister had not been found and the committee was reluctant to approve payment for the works when there was no official document showing that the road works had been ordered by governmental authorities.

Fenech had produced sworn statements proving he had carried out the works and the Prime Minister of the time, Karmenu Mifsud Bonnici, had also confirmed that plaintiff had been awarded a contract to carry out works in the locality. In October, 1993 the committee concluded that the sum of Lm67,169 due to Fenech in respect of roads in ta' Lonz and at ta' Swieqi could be settled. Further verification had to be carried out in respect of another area, namely ta' Ciantar.

However, the court found that Fenech's file had not been processed for the then minister for the environment had not accepted the recommendation for payment on the basis that there were no documents showing that Fenech had carried out the works. Furthermore, the minister had noted that there was a doubt that some of the works might have been carried out by government employees and that Fenech had not produced receipts to show that he had purchased supplies of tar from the government.

Mr Justice Mallia declared that the court was satisfied that Fenech had carried out the works following a direct order. The fact that the requisition or quotation had not been found and had not been signed by the Prime Minister did not mean that the works were not ordered by the competent authorities. No individual who entered into a contract with the government ought to be prejudiced because the relevant government file was mislaid or because of other negligence on the part of the government.

It further resulted that no documents originally held by Land Sea Civil Engineering Co. Ltd could be found because following 1987 the company was evicted from its premises in Marsa and all its records and files were taken by government employees who dumped them in an abandoned room at Ras il-Hanzir from where they were dispersed.

The court therefore concluded that Fenech was to be awarded a total of Lm113,224 for the works he had carried out at ta' Ciantar, ta' Lonz and at ta' Zwieqi, together with legal interest as from November 1993.