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HRM to mull Privy Council action
After suffering two legal defeats within a three-month period, the Highway Re-route Movement (HRM) will now have to consider taking its fight to the Privy Council for an injunction to stop a segment of the Point Fortin Highway. The Court of Appeal yesterday dismissed an appeal from the lobby group challenging the decision of High Court Judge James Aboud, who rejected the HRM’s application for an injunction in early May.
While two of the three-member appeal panel at the Hall of Justice, Port-of-Spain, agreed Aboud had properly exercised his discretion in refusing to grant the injunction, their colleague Justice Gregory Smith provided a dissenting judgement in which he described Aboud’s ruling as “plainly wrong.” In their 18-page judgement, judges Rajendra Narine and Prakash Moosai said Aboud had considered all the relevant information presented to him before he arrived at his decision.
They said, “We are unable in this case to say that the trial judge was plainly wrong in exercising his discretion to refuse the application for the conservatory order.” The judges upheld the submission of Russell Martineau, SC, head of the State’s legal team, who cited the group’s unwarranted delay between the filing of its substantive lawsuit in August 2012 and the application, which the HRM sought during a case-management conference last September.
The court also upheld Martineau’s submission that the injunction would inflict a serious financial loss on the State because of contractual obligations to contractors and would inconvenience residents of south Trinidad who were in support of the highway. The judges said the HRM’s inability to guarantee the financial losses which would be incurred if the injunction were granted and the group eventually lost the case was also a valid factor considered by Aboud.
The two judges also ruled in favour of the State’s cross-appeal, in which it claimed Aboud improperly made final rulings on key issues of the substantive case which were yet to go on trial. The offending sections were struck out by the Appeal Court. They also agreed with Martineau that Aboud should have also considered several illegal demonstrations by the group’s leader, environmentalist Dr Wayne Kublalsingh, while the application was being determined by the court.
The injunction application is part of the group’s main lawsuit, in which it alleges that its members’ constitutional rights to enjoyment of their property would be infringed if the controversial segment is constructed. Central to the case is the hotly contested dispute over whether government officials had given the group assurances that the findings of an independent report on the project would be binding. The report was compiled by a committee of professionals chaired by former Independent Senator Dr James Armstrong.
The group claims construction work was halted for a lengthy period before it filed for the injunction. The States denies this.
Dissenting judge’s view
In his 17-page judgement, Smith agreed with the group’s claim that it was not guilty of an unreasonable delay, as its decision to seek the injunction was triggered in late August last year, when the Prime Minister announced that construction of the segment would start. Smith said while Aboud was entitled to consider the potential financial losses claimed by the State, he should also have taken other relevant factors into account.
“In the balancing exercise the trial judge seems to have failed to factor properly, or at all, the obvious public-interest concerns in respect of the long-term environmental and social damage and costs which were mentioned in the Armstrong Report,” Smith said.