Sto­ries Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

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.