HRM Highway appeal dismissed
By JADA LOUTOO Saturday, August 9 2014
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APPEAL DISMISSED: Dr Wayne Kublalsingh, centre, and his group of the Highway Re-route Movement, outside the Hall of Justice in Port-of-Spain yesterday...
ENVIRONMENT lobbyist, Dr Wayne Kublalsingh, and the Highway Reroute Movement (HRM) have suffered yet another defeat in their challenge of the Debe to Mon Desir segment of the Point Fortin highway, as two appellate judges have ruled that a High Court judge was correct, when he refused to grant a conservatory order to stop works at the contentious site.
Kublalsingh and the HRM may now take their fight to the Privy Council in London. The group is expected to meet with their lawyers on the weekend, before deciding on whether to challenge the appeal court’s dismissal of their appeal of Justice James Aboud’s ruling in May.
Justices of Appeal Rajendra Narine and Prakash Moosai ruled against Kublalsingh and the HRM in a majority ruling, while Gregory Smith dissented.
In the majority ruling, Justice of Appeal Narine, who wrote the judgment, held that the trial judge could not be faulted in deciding not to grant the conservatory order.
“By its very nature, the grant of a conservatory order involves the exercise of a judicial discretion. The exercise of the court’s discretion in matters of this kind cannot be arbitrary or capricious,” Narine said, as he added that Aboud correctly applied principles laid down by the UK’s House of Lords, for the grant of interlocutory injunctions.
“He took into account the scale of the financial loss to the State, the tremendous burden to the taxpayers, the burden of offensive traffic faced by thousands of motorists, the rights of third party contractors and the absence of an undertaking in damages,” Narine said.
Noting that the appellants viewed damages as not an adequate remedy for the loss of a home and interference of family and private life, Narine said this was the contrary.
“Of course, damages may adequately compensate a litigant for loss of property rights. In this case, there has been no challenge to the acquisition notices. The inadequacies of damages may be related to interference with family and private life, which does not appear to be one of the stronger aspects of the appellants’ case,” he noted.
Justices of Appeal Narine and Moosai also found that Aboud could not be faulted for finding that there was unreasonable delay by Kublalsingh and the HRM in bringing the application for a conservatory order.
In adjudicating on the cross appeal filed by the State, the two appellate judges held that it was not permissible for Aboud to make, or appear to arrive at final findings of fact or law.
Narine said the court was concerned that some of Aboud’s “apparent final findings” that the representations made by Government and the Prime Minister were sufficient to create a legitimate expectation of a review, and in relation to the independent Dr James Armstrong report a consideration.
“He is required to make a preliminary or provisional assessment of the evidence, and the relevant law and to determine whether there are serious issues to be tried. Not having embarked on a full hearing of the substantive issues in the case, it is quite wrong for a trial judge to make final findings at the interlocutory stage,” Narine said.
Aboud’s findings were set aside and the appeal court judges expressed hope that he would revisit his findings “with an open mind at the hearing of the substantive issue.”
Narine and Moosai also held that Aboud was entitled to take into account the conduct of Kublalsingh and the HRM in deciding whether to grant the conservatory order.
The alleged unlawful acts complained about by the State, included damage to equipment, threats to employees of the contractor, blocking access to work sites, and physically preventing tractors from operating.
“While we expressly make no finding of criminal culpability on the part of the appellants, we are of the view that the judge was entitled to take into account the conduct of the appellants in deciding whether to grant discretionary relief. The courts must always be vigilant in its protection of the rule of law, and must be uncompromising in its insistence that the rule of law must be observed,” Narine said.
“While the courts will always protect the citizen’s right to engage in lawful protest in defence of his constitutional or private rights, where the protest crosses the line into unlawful activity, the court must be careful not to condone such conduct. This is particularly important in the prevailing social climate where there has been a noticeable erosion of respect for and observance of the rule of law,” he added.
“What troubles the court even more, is the fact that the unlawful acts outlined took place after the constitutional motion had been filed and the matter was placed before the court,” Narine said.
In his dissenting judgment, Justice of Appeal Smith held that the trial judge appeared not to have factored in adequately, or at all, a proper consideration of the need to preserve the status quo.
“In the result the exercise of his discretion was in my view, plainly wrong. Having considered the preservation of the status quo, I am of the view that an interim conservatory order should have been granted in this case.”
Having lost its appeal, Kublalsingh and the HRM were ordered to pay the State’s costs of defending the appeal for two senior counsel and one junior counsel.
Senior Counsel Russell Martineau and Deborah Peake led Kelvin Ramkissoon, Gerald Ramdeen, Shastri Roberts for the Attorney General while Senior Counsel Fyard Hosein and Ramesh Lawrence Maharaj led Rishi Dass and Anil Maraj for Kublalsingh and the HRM.