Gary Griffith v Nigel Stoddard

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice Devindra Rampersad
• Judgment Date: 11 September 2023
• Neutral Citation: TT 2023 HC 260
• Docket Number: Claim No. CV2022-04949
• Court: High Court (Trinidad and Tobago)

Between

Gary Griffith

1 ^st Claimant

Nicole Dyer-griffith

2 ^nd Claimant

and

Nigel Stoddard

1 ^st Defendant

The Attorney General of Trinidad and Tobago

2 ^nd Defendant

Before

The Honourable Mr. Justice Devindra Rampersad

Claim No. CV2022-04949

IN THE HIGH COURT OF JUSTICE

Appearances;

Claimants: Larry N. Laila SC instructed by Shivanand Ramoutar

Defendants: Gilbert Peterson SC leading Vanessa Gopaul and instructed by Fazana Ali and Michelle Benjamin

Contents

Background	3
The Hearsay Evidence	6
Conclusion	8
The Role of the FIU	9
The Parliamentary Intention	11
Section 8 (3)(a)	13
Analysis of the Act	16
POCA	18
ATA	18
Conclusion	18
The Constitutionality of Section 8 (3)(a)	21
The Right to Privacy	21
Analysis of the Authorities	28
Conclusion	31
The Section 13 Analysis	31
Non-Disclosure by the First Defendant	38
Section 23(2) of the Act	38
Damages	39
Conclusion on Damages	40
Conclusion and Closing Remarks	41
The Order	43

1 In the substantive matter at hand, the claimants have challenged the lawfulness of the first defendant's decision to request the claimants' personal financial information from various financial institutions by the Financial Intelligence Unit (“FIU”) on or around 20 October 2022.

2 The basis of the challenge is that the pre-condition for a request made pursuant to section 11(a) of the Financial Intelligence Unit of Trinidad and Tobago Act (“the Act”) has not been satisfied, namely, the existence of a suspicious transaction report (“STR”) or a suspicious activity report (“SAR”) in respect of the claimants. Further, that the alleged request was unauthorised by law, in excess of jurisdiction, an abuse of power, done in bad faith and done for an improper purpose.

3 The claimants contend that the first defendant acted improperly since at no time did the FIU have any STR or SAR that would have allowed the FIU to ask any financial institution for the claimants banking records.

Background

4 The claimants contend that the first defendant issued a request to financial institutions for the financial information of the claimants as well as several other persons and entities while purporting to act under section 8(3)(a) and or section 11(a) of the Financial Intelligence Unit of Trinidad and Tobago Act Chapter 72:01 (hereinafter referred to as “the Act”). That information came to the first claimant from an anonymous source.

5 The claimants alleged that the first defendant acted unlawfully in making the request for their information since the condition precedent to the section 11(a) request i.e. a suspicious transaction report (STR) or suspicious activity report (SAR) from a financial institution was not in the first defendant's possession when the request for information was made.

6 On 12 December 2022, the claimants filed an application pursuant to Part 56, Rule 3 of the Civil Proceedings Rules 1998 against the defendants seeking judicial review of the first defendant's decision to request the financial information of the claimants in the form of account details, account balances, accounts information, customer due diligence information and wire transfer details.

7 The following reliefs were sought by the claimants:

7.1. A declaration that the decision to request and the request by the first defendant on or around the 20 October 2022 to several financial institutions for the financial information of the claimants in the form of the account details, account balances, accounts information, customer due diligence information and wire transfer details of the claimants was unauthorised by law;

7.2. A declaration that the decision to request and the request by the first defendant/intended defendant on or around 20 October 2022 to several financial institutions for the financial information of the claimants in the form of the account details, account balances, account information, customer due diligence information and wire transfer details of the claimants was in excess of the jurisdiction of the first defendant under the Fill Act;

7.3. A declaration that the decision to request and the request by the first defendant on or around the 20 October 2022 to several financial institutions for the financial information of the claimants in the form of the account details, account balances, accounts information, customer due diligence information and wire transfer details of the claimants was an abuse of the power of the first defendant under the FIU Act;

7.4. A declaration that the decision to request and the request by the first defendant on or around 20 October 2022 to several financial institutions for the financial information of the claimants in the form of the account details, account balances, accounts information, customer due diligence information and wire transfer details of the claimants was made in bad faith for an improper purpose and taking into account irrelevant considerations;

7.5. A declaration that section 8(3)(a) of the FIU Act is unconstitutional, that section and the authority it gives to the FIU not being reasonably justifiable in a society that has proper respect for the rights and freedoms of the individual;

7.6. An order that the first defendant produce for the courts inspection the suspicious transaction or suspicious activity report or information from a financial institution that allowed him to make a decision to issue the section 11(a) request for information on thirty-five individuals and seventeen entities that he made on 20 October 2022;

7.7. An order certiorari to remove into the High Court and quash the decision of the first defendant to request around the 20 October 2022 or thereafter, the financial information of the claimants which request was sent to several financial institutions for the financial information of the claimants in the form of the account details, account balances, account information, customer due diligence information and wire transfer details of the claimants;

7.8. An injunction restraining the first defendant from proceeding with the said decision and request and or using any information whatsoever derived from the said request sent or around the 20 October 2022 to several financial institutions for the financial information of the claimants in the form of the account details, account balances, account information, customer due diligence information and wire transfer details of the claimants;

7.9. An order that the first defendant pay damages to the claimants for his unlawful action;

7.10. Costs certified fit for counsel and instructing attorney at law;

7.11. Pursuant to sections 7 and 8 of the Judicial Review Act 2000, such further orders, directions or writ as the court considers just and as the circumstances warrant.

8 On 19 December 2022, leave for judicial review against the first defendant was granted ex parte to the claimants.

9 On 11 January 2023, the claimants filed a mixed fixed date claim form seeking judicial review of the alleged request by the first defendant made under the FIU Act on 20 October 2022 and challenging the constitutionality of section 8(3)(a) of the said Act.

10 The claimants also sought an interim injunction to restrain the first defendant, pending the determination of this matter, from proceeding with the alleged request.

11 On 2 May 2023, this court granted the interim relief sought by the claimants. Directions were then given to the parties for the filing of respective submissions as it relates to the substantive matter herein and will be discussed below.

The Hearsay Evidence

12 This case was initiated by a document exhibited as “GG1” in the first claimant's affidavit filed on 12 December 2022 which was relied on for the truth of its contents. “GG1” turned out to be incomplete and a supplemental affidavit was filed on 13 February 2023 to provide the entirety of the screenshot at exhibit “GG17”.

13 In his affidavit, the first claimant said that the document was provided to him on or around 20 October 2022 by an anonymous source in what appears to be a screenshot of a letter purportedly signed by the first defendant on or about 20 October 2022 when he issued a request to financial institutions for the financial information of the claimants. 1 The first claimant said that he received further information from sources that the request was made without first obtaining any suspicious transaction or suspicious activity report from any financial institution as required by section 10 of the Act. The names of these alleged sources were not provided.

14 The document itself is not complete as the page on which the claimants' names are set out does not show a letterhead nor an addressee. However, the screenshot carries on the bottom of its first page an address — “Level 25, Tower D, International Waterfront Complex, 1A Wrightson Rd., Port of Spain, Trinidad and Tobago, West Indies”. This is the FlU's address 2. It also discloses a telephone number and a fax number along with a website — www.fiu.gov.tt — which seems to be the website of the Fill and its telephone number and fax number. It also carries an email address but that is not clear so one is unable to tell exactly what that email address is.

15 The screenshot identifies the information being sought in relation to the persons and the parties named. 3

16 The document stated that this information was necessary “to facilitate continued comprehensive analysis” and that it was required to be provided to the Director of the FIUTT on or before November 10, 2022. The document ends with a signature purporting to be that of the first defendant and he has not admitted nor denied that it is despite the fact that he is best placed to do so. Due to his oath of office and secrecy, the first defendant has chosen not to confirm the letter of request or the signature thereon. Nevertheless, without any...