Northern Construction Ltd v Attorney General

• Jurisdiction: Trinidad & Tobago
• Judge: Jamadar, J.
• Judgment Date: 31 July 2002
• Neutral Citation: TT 2002 HC 104
• Docket Number: H.C.A. No. Cv. 733 of 2002
• Court: High Court (Trinidad and Tobago)
• Date: 31 July 2002

High Court

Jamadar, J.

H.C.A. No. Cv. 733 of 2002

Northern Construction Limited

and

Attorney General

Appearances:

Mr. A. Alexander. S.C., Mr. R. Armour, Mr. F. Hosein and Mr. D. Maharaj for the applicant.

Mr. S. Marcus S.C., Dr. L. Barnett, Mr. J. Walker, Mr. J. Jeremie, Mr. M. Quamina, Ms. M. Williams and Ms. P. Simon for the respondent.

Constitutional Law - Fundamental rights and freedoms — Infringement of constitutional rights provided under sections 4 and 5 of the Constitution of the Republic of Trinidad and Tobago — Whether section 33 of the Proceeds of Crime Act 2000 is unconstitutional — Finding that section 33 of the Proceeds of Crime Act 2000 was unconstitutional, null and void on the ground that it arbitrarily and excessively invades the guaranteed rights to liberty, property and privacy provided by section 13(1) of the constitution.

Jamadar, J.

INTRODUCTION

THE UNDISPUTED FACTS

1 The applicant is a limited liability company duly registered under the laws of Trinidad and Tobago, with offices situated at Nos. 67-69 Southern Main Road, Savonetta, Point Lisas. During the period 1998-1999, the Government of Trinidad and Tobago, through its agent the National Insurance Property Development Company (‘NIPDEC’), appoint the applicant to undertake certain works relating to the construction of a new international airport (‘the Airport Project’). In September, 2000, Lindquist Forensics and Partners Inc. (‘Lindquist Forensics’) was engaged by the Government to assist the Anti-Corruption Bureau (‘ACB’) of the Fraud Squad of the Trinidad and Tobago Police Service, in its investigations of the circumstances surrounding the award of contracts on the Airport Project. At all material times the head of the ACB was Superintendent Maurice Piggott. Mr. Robert Lindquist and Dr. Hans Marschdorf were the primary officers of Lindquist Forensics assigned to assist the ACB in its investigations. In December, 2000, Lindquist Forensics submitted a confidential interim report on the Airport Project to the Attorney General and the Minster of National Security, which was stamped “SECRET” on its face and on each of its forty three pages (‘the Lindquist Report’).

2 On the 24th January, 2002, Superintendent Piggott duly applied for and obtained, pursuant to section 5 of the Indictable Offences (Preliminary Enquiry) Act, a search warrant to search the premises of ‘Paul Doona, Old Southern Main Road, Point Lisas’ (‘the First Warrant’). On the 25th January, 2002, the First Warrant was executed at the premises of the applicant (search and seizure) by Superintendent Piggott, who was accompanied and assisted by Messrs. Lindquist and Marschdorf.

3 On the 29th January, 2002, Superintendent Piggott made an application to a Judge of the High Court (John J.) for and obtained a search warrant (‘the Second Warrant’) and under section 33(3) and (4) of the Proceeds of Crime Act, 2000 (‘PCA’). This warrant authorized the search of the applicant's premises at 67-69 Southern Main Road, Point Lisas. On the 30th January, 2002, Superintendent Piggott, accompanied by other police officers, executed the Second Warrant (search and seizure).

4 During the period November, 2001 to February, 2002, extracts from the Lindquist Report were published in daily newspapers of wide circulation in Trinidad and Tobago and on the internet.

5 On the 22nd March, 2002, the applicant and other persons were charged with criminal offences relating to the Airport Project. Those charges are pending and to date the actual hearing of the preliminary inquiry into them has not commenced.

THE MOTION

6 By a motion filed on the el March, 2002, and amended by order of this Court on the 15th April, 2002, brought pursuant to section 14 of the Constitution, the applicant claims inter aha the following declaratory relief:–

7 1A. A declaration that section 33 of The Proceeds of Crime Act 2000 is unconstitutional, ultra vices, invalid, null and void and of no effect in that it contravenes the applicant's fundamental rights guaranteed by sections 4(a), (b), (c) and 5(2)(e) and (h) of the Constitution being a section which is not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.

1

A declaration that they issuance of the search warrant on January 29, 2002 (“the second warrant”) under section 33 of the Proceeds of Crime Act, 2000 is unconstitutional, invalid, null and void and of no effect in that it contravenes the applicant's fundamental rights to the enjoyment of property, the right not to be deprived thereof except by due process of law, the protection of the law and the right to a private life enshrined in sections 4(a), (b), (c), 5(2) (e) and (h) of the Constitution of Trinidad Tobago. 2. A declaration that the invasion of the applicant's premises situate at 67-69 Southern Main Road, Savonetta, Point Lisas (‘the said premises”), the search thereof and the seizure of the applicant's records and documents on January 30, 2002 in pursuance of the purported execution of the second warrant is unconstitutional, invalid, null and void and of no effect in that it contravenes the applicant's fundamental rights to the enjoyment of property, the right not to be deprived thereof except by due process of law, the protection of the law and the right to a private life enshrined in sections 4(a), (b), (c), 5(2) (e) and (h) of the Constitution of Trinidad and Tobago. 3. A declaration that the entry onto the applicant's premises situate at 67-69 Southern Main Road, Savonetta, Point Lisas (‘the said premises’) and the search thereof and the seizure and removal therefrom on January 25, 2002 by Mr. Robert Lindquist and Mr. Hans Marschdorf of the applicant's records and documents in purported execution of a warrant dated January 24, 2002 (“the first warrant’) is unconstitutional, invalid, null and void and of no effect in that it contravenes the applicant's fundamental rights to the enjoyment of property, the right not to be deprived thereof except by due process of law, the protection of the law and the right to a private life enshrined in sections 4(a), (b), (c), 5(2) (e) and (h) of the Constitution of Trinidad and Tobago,’ 8. A declaration that the conduct of a purported investigation by Lindquist and the preparation and production of a Report entitled “Interim Report on the Piarco Project” by the said Lindquist dated December 7, 2000 (the Lindquist Report') and the submission thereof to the Attorney General o Trinidad and Tobago, is invalid, ultra vires, unconstitutional, null and void and of no effect in that it contravenes the applicant's fundamental rights to the enjoyment of property and not to be deprived thereof except by due process of law, the protection of the law and the right to a private life enshrined by sections 4(a), (b), (c), 5(2) (e) and (h) of the Constitution of Trinidad and Tobago; 9. A declaration that the publication, dissemination and circulation of the Lindquist Report by the state its servants and/or agents is invalid, ultra vires, unconstitutional, null and void and of no effect in that it contravenes the applicant's fundamental rights not to be deprived thereof except by due process of law, the protection of the law and the right to a private life as enshrined by section 4(a), (b), (c), 5(2) (e) and (h) of the Constitution of Trinidad and Tobago.

8 Relief 1A challenges the constitutionality of section 33 of the Proceeds of Crime Act, 2000 under the proviso to section 13(1) of the Constitution of Trinidad and Tobago. Relief 1 and 2 challenge the issue and execution (search and seizure) of the Second Warrant. Relief 3 challenges the execution (search and seizure) of the First Warrant. Relief 8 and 9 challenge the preparation, production and publication of the Lindquist Report. The several other relief claimed by the applicant consist of consequential orders dependent on the success of the stated declarations. Of those consequential orders, the ones that sought the return of documents seized under the First and Second Warrants were the focus of attention of both sides in their arguments.

9 On the evidence and by agreement, paragraph 7 of the affidavit of Superintendent Piggott filed on the 3rd April, 2002 was struck out. Of the deponents to affidavits in these proceedings, Sophia Chote, Paul Doona, Amrith Maharaj and Steve Rajpatty (for the applicant) and Superintendent Maurice Piggott and Commissioner Hilton Guy (for the respondent) were cross-examined.

THE ISSUES

THE APPLICANT'S CASE

(i) THE LINDQUIST REPORT

10 On the preparation, production and publication of the Lindquist Report, the applicant contends that because the report is condemnatory of it the applicant was entitled to be given the opportunity to be heard prior to its completion and any views or evidence submitted by it taken into consideration before any final conclusions adverse to the applicant were stated in the Report. And, that the failure to afford the applicant such an opportunity amounted to a breach of its rights entrenched by section 4(a) and (c) of the Constitution and according to the principles of natural and fundamental justice.

11 Further, that as a consequence of the unauthorized publication of the Lindquist Report, in circumstances where by reason of the publication the applicant's reputation has been damaged and the source of the publication is undisclosed and/or unknown, the applicant has been denied its rights entrenched by section 4(b) of the Constitution, in that there is now no opportunity for access to justice by way of action in defamation to vindicate its reputation and receive due compensation.

(ii) THE FIRST SEARCH WARRANT

12 Though the applicant accepts that the First Warrant was duly issued, it asserts that its execution was unconstitutional because:–

• a. it was executed at the applicant's premises at 67-69 Southern Main Road, Point Lisas, when it...