The Court of Appeal has set aside the findings and recommendations made by the Commission of Enquiry into the Las Alturas housing project against former Urban Development Corporation of T&T (Udecott) executive chairman Calder Hart.
Delivering a judgment on Friday, Appellate Judges Mark Mohammed, Peter Rajkumar and Maria Wilson upheld Hart’s appeal, in which he contended a High Court Judge got it wrong when he dismissed his case in 2020.
In the appeal, the panel had to consider whether the commission was wrong to have made the findings and recommendations against Hart without giving him an opportunity to respond to them first.
Justice Rajkumar, who wrote the judgment, ruled that the commission’s own rules required it to take the action although Hart did not provide a witness statement or testify before the commission as he claimed that he was not in possession of official documents that could clear his name.
Justice Rajkumar said, “There is absolutely no reason in principle why a person who has not participated in an enquiry by testifying or providing a witness statement should be debarred from defending himself from potential adverse criticism which had not been drawn to his notice.”
“Participation in the enquiry as a witness when no specifical potential adverse findings have yet been communicated is an entirely distinct situation from that where that eventually crystallised. The Commission was not entitled to assume that the appellant’s approach, advice received, or response, would be identical in relation to each,” he added.
Based on the findings, Justice Rajkumar and his colleagues agreed to set aside the findings and recommendations in relation to Hart.
“It would be tainted by unfairness and could not be allowed to stand,” he said.
As part of the judgment, Justice Rajkumar sought to give detailed guidance on how future commissions could avoid a similar situation by adhering to the principles of natural justice.
In the lawsuit, Hart contended that the commission acted unreasonably and irrationally when it made findings against him in its final report without giving him an opportunity to respond.
In late September 2020, the judicial review case was dismissed by Justice David Harris before it went to trial.
Justice Harris ruled that Hart could not complain as he had been given an opportunity to participate but freely declined.
The commission of enquiry was set up to investigate the construction of the Las Alturas Towers at Lady Young Gardens, Morvant.
Former prime minister Kamla Persad-Bissessar appointed the commission after two multi-story units of the housing project began falling apart after construction and were earmarked for demolition.
In the commission’s report, it stated that while there were no grounds for criminal proceedings to be brought against anyone, civil action could be taken against former Hart, former Housing Development Corporation (HDC) managing director and current Udecott Chairman Noel Garcia, Udecott and the HDC for negligence in how the project was handled.
Retired Justice of Appeal Mustapha Ibrahim, who chaired the commission, was listed as a party but passed away while the case was still pending. The case was continued against commissioners Dr Myron Wing-Sang Chin and Anthony Farrell.
One week after Hart’s case was dismissed, Garcia’s similar lawsuit was upheld.
In that case, High Court Judge Kevin Ramcharan ruled that the commission acted illegally, unreasonably, and irrationally by deciding and recommending findings against Garcia in its final report on August 30, 2016.
Consequently, Justice Ramcharan declared that the findings against Garcia were null, void and of no effect.
On April 19, Justice Harris upheld the HDC’s breach of contract and negligence case against China Jiangsu International Corporation (T&T) Limited, the contractor that was hired for the project.
The company was ordered to pay over $30 million in compensation which represents the wasted funds spent on the building blocks ‘H’ and ‘I’ of the project including those associated with investigating the structural damage and the eventual demolition.
Hart was represented by Dr Lloyd Barnett, Anthony Bullock and Tecla Duncan-Caines while the commission was represented by Richard Clayton, KC, Jayanti Lutchmedial and Ganesh Saroop.
The Office of the Attorney General was represented by Rishi Dass, SC, and Amrita Ramsook.