Derek Achong

Home­less per­sons who use Tamarind Square in Port-of-Spain as a makeshift shel­ter will now have to find al­ter­na­tive ac­com­mo­da­tion, af­ter one of them lost his law­suit against the Port-of-Spain City Cor­po­ra­tion.

De­liv­er­ing a 19-page judg­ment in the Port-of-Spain High Court yes­ter­day, Jus­tice Eleanor Don­ald­son-Hon­ey­well dis­missed Hugh Bernard’s law­suit, in which he was claim­ing his con­sti­tu­tion­al rights were in­fringed when the cor­po­ra­tion con­struct­ed a perime­ter fence and gates at the pub­lic square al­most two years ago.

In ad­di­tion to fac­ing the prospect of re­lo­cat­ing, Bernard has been or­dered to foot the cor­po­ra­tion’s le­gal bill.

The cor­po­ra­tion’s lawyer John Je­re­mie, SC, said his client was seek­ing costs from Bernard as it had ex­pend­ed a lot of mon­ey on le­gal fees in the case. Je­re­mie’s sub­mis­sions were op­posed by the Bernard’s lawyer Christo­pher Hamel-Smith, who said le­gal costs should be waived as the law­suit was a le­git­i­mate pub­lic in­ter­est claim filed on be­half of Bernard’s fel­low street dwellers. He said his client could not af­ford to pay and their le­gal team had tak­en the case pro bono.

“They are the voice­less and most down­trod­den in so­ci­ety. The courts ought to be open to all, not just the ones with deep pock­ets,” Hamel-Smith said.

Don­ald­son-Hon­ey­well agreed with Je­re­mie, say­ing there was no ev­i­dence of Bernard’s in­abil­i­ty to pay.

“They can’t work?” Don­ald­son-Hon­ey­well asked.

Hamel-Smith al­so re­quest­ed that an in­ter­im in­junc­tion be grant­ed against the cor­po­ra­tion while his client con­sid­ers an ap­peal. How­ev­er, the re­quest was chal­lenged by Je­re­mie and even­tu­al­ly re­ject­ed by Don­ald­son-Hon­ey­well.

In her judg­ment, Don­ald­son-Hon­ey­well said Bernard’s claim failed be­cause he could not pro­duce ev­i­dence the cor­po­ra­tion fenced the prop­er­ty and locked four out of five gates in a bid to specif­i­cal­ly bar him and oth­er home­less per­sons ac­cess.

“There has been no ex­clu­sion of the ap­pli­cant from the square and con­se­quent­ly no de­pri­va­tion or in­ter­fer­ence with his use of the square. The ev­i­dence of the health in­spec­tor is that af­ter the square was fenced, he no­ticed that the home­less had moved in­to the square,” Don­ald­son-Hon­ey­well said.

She said she be­lieved the ev­i­dence of the cor­po­ra­tion’s CEO An­nette Sta­ple­ton-Seaforth and en­gi­neer Ja­son Lal­la, who both tes­ti­fied the cor­po­ra­tion fenced the prop­er­ty to se­cure it and not to bar the home­less en­try.

“Al­though the cor­po­ra­tion strong­ly main­tained that it in­tends no dra­con­ian mea­sure to keep Bernard and oth­er home­less per­sons out of the square, there is no ad­mis­sion by the cor­po­ra­tion that Bernard has a right to sleep there,” Don­ald­son-Hon­ey­well said.

She al­so ruled she could not con­sid­er Bernard’s claims of un­san­i­tary and in­hu­mane con­di­tions at the Cen­tre for the So­cial­ly Dis­placed at River­side car-park (lo­cat­ed op­po­site Tamarind Square), as the cor­po­ra­tion is not re­spon­si­ble for home­less shel­ters.

“As a re­sult, the claim for tents and portable toi­lets to placed by the cor­po­ra­tion in the square al­so fails. This is so be­cause nei­ther the right for Bernard to sleep in the square, nor the du­ty of the cor­po­ra­tion to pro­vide ac­com­mo­da­tion has been proven,” Don­ald­son-Hon­ey­well said.

Con­tact­ed af­ter­wards, Port-of-Spain May­or Joel Mar­tinez said he had not had an op­por­tu­ni­ty to analyse the judge­ment and would have to dis­cuss it with his ex­ec­u­tive coun­cil and ad­min­is­tra­tive staff be­fore de­cid­ing on the next move.

How­ev­er, he said: “From what I un­der­stand the cor­po­ra­tion won the case. There­fore there is the like­li­hood that we would move for­ward with re­mov­ing per­sons from the square. Our in­ten­tion would be to un­lock the square and bring it back to the pris­tine or­der that it was pri­or to the home­less oc­cu­py­ing it.”