Where we stand‎ > ‎News & Comment‎ > ‎

CONTEMPT OF COURT - THA STYLE by David Walker

posted 31 Dec 2020, 11:13 by Gerry Kangalee   [ updated 31 Dec 2020, 11:24 ]
This last week was a good one for the incumbent THA administration. They took a hard earned victory lap upon the official opening of the 25 million dollar Charlotteville Micro-Enterprise Centre
(formerly 
called a Vendors Mall). The opening is proof positive of their capacity to defy all laws, regulations and authorities with impunity. Undaunted in their efforts they have now proven that the warnings I received seven years ago were based on a solid foundation. (See article).

The construction was, and still is unlawful. It was, and still is in defiance of the rights of vendors who occupied the site for decades previously. I was told that seeking to uphold the law in the face of a determined THA was a fool's errand. The view was that there is no force more powerful than the THA in Tobago. Not the law, not the line Ministries, not the Regulators, not the Police, not the courts.

Silly me. I begged to differ, and undertook to assist Mr. Hercules in his complaint through the courts, convinced that the law would prevail. Indeed, over the course of seven years and multiple court appearances, we have not lost on even one occasion to the THA. The judges' verdicts were clear and unambiguous. The construction of the Mall and the demolition of Mr Hercules property were prohibited.

On each occasion that a judgment went against them they desisted for a while, then simply went ahead with their unlawful acts as if the judgments did not exist. To better illustrate how clear the judgments were, I give you the two most relevant extracts below. I have included the case numbers for those who wish to verify that the extracts are accurate.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

In the High Court of Justice
Claim No. CV2013-01738
between
Irwin Hercules
Irwin Hercules, Samuel Mapp, Kenneth Murray, Charlotteville Beachfront Movement'
and
Tobago House of Assembly


Orders

i. An order of certiorari is granted to remove into this Honourable Court and quash the decision of the Defendant to embark upon construction activities, including site clearance activities preparatory to construction of a two storey concrete and glass building ("the building") on the area where the booths occupied by the claimants were sited.

ii. It is ordered that the decision be, and it is hereby, remitted to the defendant for reconsideration, and, -

a. the defendant is mandated to ensure that any further decisions for the continuation of the Project are taken in compliance with all necessary statutory requirements, and

b. the defendant is mandated to obtain and file the certification of all statutory bodies whose approvals are required for the project, and in particular certification by the Town and Country Planning Authority, and certification of the Environmental Management Authority, that all necessary permissions have been obtained from those agencies before continuing the project.

iii. Until such certifications are produced the Defendant is restrained from demolishing the booth occupied by the first named Applicant.

iv. It is further ordered that the Defendant do provide the Applicants with

(a) all such certifications obtained, together with

(b) copies of all approvals obtained from the EMA, Town and Country Planning Division and any other agency of the State from whom approvals are required;

v. that the defendant is to pay to the claimants costs to be assessed by this court in default of agreement

Dated 19th May, 2014
Justice Peter Rajkumar



In the High Court of Justice
Claim No. CV2015-03848
between
Irwin Hercules
and
Tobago House of Assembly



50. It was asserted by the defendant that it provided all certifications referred to in the learned judge's order and that notice of same was served on the agent for the claimant in these proceedings - Mr David Walker - and on the former attorney-at-law for the claimant in these proceedings - Mrs Rekha Ramjit. Unfortunately, the court has no evidence that the documents so tendered in fact amounted to the necessary approvals required by the learned judge's order.

Dated 16th July, 2018
Justice Devindra Rampersad


- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

After the first judgment THA nevertheless proceeded to act against the order. They filed woefully inadequate documents and neglected to seek the sanction of the court. I suspect that they did this 
knowing that they had unlawfully demolished Mr Hercules business place thereby denying him the financial means to return to court. Fortunately, Mr Hercules had already commenced another action 
Contempt Of Court Cartoons and Comics - funny pictures from CartoonStock
in the courts which resulted in the second judgment shown. 

In keeping with the warnings that I had received at the outset, THA never even paused work in the face of judicial confirmation that the original order still applied. They did register an appeal against this second judgment but only with respect to the award of damages to Mr Hercules, which has not been heard to this day. The judgment that they were in breach of the first order has not been contested.

So here we are. The THA celebrates their open contempt for the two judges involved, Justice Peter Rajkumar and Justice Devindra Rampersad. I weep for our judiciary. An arm of government has placed itself above our judiciary which is supposed to adjudicate on, and protect the rights of all citizens. If judges' rulings are so easily and consistently ignored by the THA then what moral authority does the said THA have when exhorting citizens to obey the laws of the land?
The callousness of their disregard for the courts is brought into even sharper focus by the replies to a number of Freedom of Information request that I submitted to the THA. I asked how much money had been expended on independent legal advice and the nature of that advice before they proceeded with the construction immediately after each of the two judgments.

The answer was that they had sought no external advice before proceeding to defy the judges' orders on either of the two occasions. They relied on the same legal team who had lost in court previously. That is a measure of how seriously they took the judgments. They relied on Mr Hercules not being able to afford to return to court to challenge them.

In the end they won. We as a nation are the poorer for it but the THA celebrates. 

I have not even addressed the issue of the massive waste of taxpayer dollars on this project and the negative impact it has on the pristine environment into which it has been forced. There was no Feasibility Study or Financial Projection according to further replies to my FoIA queries but I will leave that for another day. We need the courts or some other authority to stand up for the orders of our judges.
Comments