Judge throws out Aboud’s affidavit

HIGH COURT Judge Humphrey Stollmeyer yesterday ruled in favour of an application to strike off parts of several affidavits, which were filed to support claims being made by Point Fortin residents and environmental group, Fishermen and Friends of the Sea (FFOS), that Atlantic LNG’s Train IV was posing a health risk to residents. The application was made by SC Russell Martineau, who is representing the Environmental Management Authority (EMA) in the matter before the Port-of-Spain First Civil Court, in which Point Fortin residents and FFOS are seeking judicial review of the EMA’s decision to grant a Certificate of Environmental Clearance (CEC) to Atlantic LNG for the establishment of Train IV. Martineau’s application centred around parts of the affidavits of Point Fortin resident Doon Sajadhar, Dr Camanie Narynesingh-Chang and FFOS’ secretary Gary Aboud. In addition, several press releases issued by the FFOS were challenged on the basis that the information in them were hearsay.

In presenting his ruling, Justice Stollmeyer pointed out that he did not know that newspaper reports are accepted as the truth of the matters that are set out in them. He also noted that he was not persuaded that the rules governing evidence, particularly those that were hearsay, draw on the particulars set out in public or private laws as was argued. He then informed the court that “in all circumstances, Gary Aboud’s affidavit be struck off.” He also ruled that a particular paragraph of Sajadhar’s affidavit be struck off and noted that Dr Narynesingh-Chang’s statement “added nothing” to the information that was already before him. Following the ruling, Atlantic’s attorney Martin Daly made an application to strike out parts of the affidavits of Dr Narynesingh-Chang, Aboud, Sajadhar and Point Fortin resident Michelle Dunn. In his application, which was filed yesterday, Daly pointed out that several of the utterances made in the affidavits bordered on hearsay evidence and noted that no first hand proof was presented.
He pointed out that the issue that had to be dealt with, was whether the FFOS could persuade the court to believe that Train IV presented a health risk.

He pointed out that the evidence that was introduced to the court at this stage was labelled preliminary and was challenged by a medical expert. He also pointed out that Dr Narynesingh-Chang had stated that the survey needed more clarification and asked that the medical expert refrain from attacking it. He then asked the court to rule that the certificate, which was presented to the court by the FFOS and the residents, was only a preliminary one and that it was incomplete. He also noted that there was no separation of powers with respect to public or private matters when dealing with the admissibility of evidence. Daly also asked the judge to declare that the EMA do a survey of the area and that the court appoint someone to conduct an assessment of the health risk to residents. He then explained the various parts of the affidavits filed which he objected to in his application. The objections were filed on the grounds that the evidence were hearsay. Daly also pointed out that no medical report was presented to the court to support the claims made by residents that their health was affected by emersion coming from Train IV. With respect to Dr Narynesingh-Chang’s evidence, Daly explained that the information was gathered by way of a health survey and was received from another source.

He explained that this report is a compilation of a fiat of information which came from a third party and so it was hearsay evidence. With respect to the affidavits filed by both Dunn and Sajadhar concerning the health problems experienced, Daly pointed out that although a medical receipt was presented to the court, in both instances no medical report was included with the affidavit to support the claims. He pointed out that one of the simple rules of health claims is that a medical report be included with the claim. In response, Ramesh Lawrence-Maharaj, who appeared on behalf of the FFOS, stated that the issuing of the press releases were important since in a judicial review the court has to consider the conduct of the applicant. He noted that the issuing of these notices showed whether the applicant was active or not. He explained that where there are documents before a decision-maker for his consideration as part of a decision, he has to give purview to admit those documents even if they were hearsay.
He also explained that the medical evidence that was before the court was important since it showed the state of affairs that existed. He noted that there was evidence from the CEC that it was the EMA’s position to support the relocation. He pointed out that where there is a threat to the life or health of people it is the duty of the developer to relate this to the EMA. The matter continues today in the Port-of-Spain First Civil Court.