FILING ATTORNEY: REYNOLD WALDROPT

ATTORNEY AT LAW
SUITE 4
NO. 9 PRINCE STREET
ARIMA
BAR NUMBER: WAR1991043
Tel: 664-3478
Email: reynoldwaldropt@gmail.com

c/o RONALD DOWLATH

ATTORNEY AT LAW
PRINCE AND FREDERICK STREETS
PORT OF SPAIN
Phone: 623-4266
Email: reynoldwaldropt@gmail.com

ADVOCATE ATTORNEY: TIM CHARRIANDY

ATTORNEY AT LAW
No. 6 Sorzano Street
Arima
BAR NUMBER: CHT2014094
Tel: 221-8912
Fax: 223-6029
Email: tim.charriandy@gmail.com

The Republic of Trinidad & Tobago

In the High Court of Justice

Claim No. Cv. 2015-01900
BETWEEN

EASTERN ENGINEERING & MARKETING

SERVICES (1994) LIMITED
Claimant
And

ATTORNEY GENERAL OF
TRINIDAD AND TOBAGO
Defendant

TAKE NOTICE that the Claimant herein objects to the following statements contained in
the Witness Statements of Duane Murray filed on 31 st January 2017 and Marvin
Gonzales filed on the 21st day of July, 2017 on the grounds particularized hereunder:

In an effort to assist the court the Claimant summarizes the relevant law upon which it
relies.

GENERAL PRINCIPLES OF LAW RELATING TO THE ADMISSIBILITY OF

EVIDENCE

1. Relevance
The first threshold that any evidence which is to be admitted has to cross is
relevance. It is a pre-condition of admissibility. Relevance is said to exist when “any
two facts are so related to each other that according to the common course of

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events are either taken by itself or in connection with other facts proves or renders
probable the past, present or future existence or non-existence of the other.”

But the evidence even if appears superficially admissible must (1) have some
prospect of being believed (2) and the question and the test of relevance applies not
only at the trial but whenever the Court is asked to make a decision about evidence.

See Zuckerman on Civil Procedure -Principles of Practice pg:765

It is to be noted the evidence has to make a sufficient probative contribution to justify

its reception in legal proceedings.

This is even more so now under CPR with regard to proportionality – which the Court
is required to look at and consider at every department of litigation i.e. whether
interlocutory application or trial. - See CPR Rule 1

Thus this is a matter of admissibility not weight - because under the CPR, the Court
should determine what evidence is relevant and may act under CPR to exclude
evidence even if it is admissible.

See Zuckerman on Civil Procedure -Principles of Practice pg:765 (ibid);pgs

767 -768

Relevance is linked to and has to be determined by, what is claimed in the

Claimant’s Claim Form , Statement of Case and/or Notice of Application before the
Court.

Initial Irrelevance and Resultant Irrelevance

Further, there is what may be called “Initial Irrelevance” and “Resultant Irrelevance.”

“Initial Irrelevance” is determined by looking at the Claim Form and Notice of

Application to see whether any facts set out in the affidavit tend to support what is
claimed. If it does not, it is irrelevant and the Court can say so at the outset.

But there is also “Resultant Irrelevance” as well. This occurs where evidence though
initially admissible is found to contravene one of the exclusionary rules for the
admission of evidence. In those circumstances, the evidence becomes irrelevant and
can be struck out on that ground as well.

This appears very clearly from the Court’s observations in Savings and
Investments Bank Ltd. .v. Gasco Investments (Netherlands) BV (No.1) [1984] 1
WLR 27 Peter Gibson J at page 11 of 15 points out that where evidence
contravenes an exclusionary rule e.g. the Hearsay Rule, it is to be treated as
irrelevant.

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 “Take for example, a case where there are unsuccessful without
prejudice discussions to settle an action, in the course of which a
statement is made by a party which is highly relevant to an issue
in interlocutory proceedings. I apprehend that the court would
strike out from an affidavit made by another party who heard the
statement any reference to such statement having been made, as
it would not be admissible as evidence and so would be irrelevant.
So too, in my judgment, a statement in an affidavit referring to
other forms of inadmissible evidence should be treated as
irrelevant. That would include statements of opinion not being
within any recognised exception to the general principle to which I
have referred.”[ Emphasis added ]

2. HEARSAY EVIDENCE

Hearsay evidence in a Witness Statement is controlled by the requirement that a

deponent as a general rule, is to state only such facts he can prove from his own
knowledge.

A most useful and instructive judgement is that of Myers J in H.C.A. No. 2472 of
2003 Sangit Chaitlal .v. The Attorney General. Although his dicta are set out in
the context of a constitutional motion, as he himself points out, the principles which
he has enunciated and observations he has made are applicable generally in civil
proceedings. It is worthwhile to set out excerpts from this seminal judgment in
extenso.

At page 12 Paragraphs [10] - [13] - The general principle with respect to affidavit
evidence is stated.

“In summary, the effect of according to the learning in the

Supreme Court Practice 1997 is to “require that save in the
expected cases [which I have set out above], an affidavit
must contain the evidence of the deponent as to such facts
only as he is able to speak to of his own knowledge, and to
this extent, equating affidavit evidence to oral evidence
given in Court [my emphasis].”
B. Therefore, for a deponent’s affidavit evidence to
be admissible: (1) adequate foundation evidence must
be adduced; (2) the deponent must otherwise be an
appropriate person to give the evidence; (3) it must not
offend against the hearsay rule, subject to any relevant
exceptions to that rule, and perhaps any residual
judicial discretion to admit otherwise legally
inadmissible evidence; and (4) it must not constitute
opinion evidence, subject to the exceptions to that rule.”

At page 13 Paragraph [14] - The foundation principle is stated

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 “The foundation principle may be stated as follows. Without
prejudice to any other rule of admissibility, a deponent’s
evidence on a particular matter, or matters, shall not be
admitted, unless there is other evidence sufficient prima
facie at least, to suggest that the deponent has personal
knowledge of the matter, of those matters, that is to say,
evidence tending to show how the particular deponent has
seen, heard, or otherwise perceived the matter, or those
matters, about which he or she is to testify. The degree,
extent and quality of the foundation evidence required will
vary depending on the evidence foundation evidence is
being adduced to underpin. The spectrum ranges from the
“at least prima facie” at one end, to that which rise to the
standard of the balance of probabilities.”

At page 14 [Footnote 8] - The Learned Judge shows how affidavit evidence is to be

equated with oral evidence

“See above, where I make the point, by reference to the

Supreme Court Practice 1997, where the learned editors
commented that the effect of Order 41 rule 5 is “to require
that save in the excepted cases, an affidavit must contain
the evidence of the deponent as to such facts only he is able
to speak to of his own knowledge, and to this extent,
equating affidavit evidence to oral evidence given in
Court [my emphasis].””

At pages 15 & 16 Paragraphs [16]-[18] - Here the Learned Judge points out that
for reception into evidence of statements in an affidavit the proper foundation has to
be laid.

“It is difficult to conclude otherwise, as, if on a proper

construction of RSC 1975, Order 41, rule 5 (1) (deriving such
assistance as is necessary from Volume 1 of the Supreme
Court Practice), an affidavit may contain only such facts as
the deponent is able of his own knowledge to prove, then, by
parity of reasoning, it must not or may not contain any such
facts as the deponent is unable of his own knowledge to
prove. That being so, RSC 1975, Order 41, rule 5 (1) would,
in my judgement, be eviscerated if the proponent of the
evidence was not obliged to lay an appropriate foundation as
a precondition for the admissibility of the testimony of the
particular deponent. Why? Because, absent any foundation
evidence of how the deposed came, or could have come, to
his or her informed state of knowledge, the Judge will be
unable to decide whether the principle has been complied

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 with, that is to say, whether in fact the deponent’s testimony
is confined only to such facts as he or she is able of his or
her own knowledge to prove.”

Referring to Phipson on Evidence (15 th Edition), Paragraphs

11 – 08. “even where hearsay is admissible, it must still
generally be proved by a witness who has actually heard it
and so has personal knowledge of the facts to which it
relates. Not only are assertions made out of court, i.e.
hearsay in its ordinary sense, excluded, but also facts which,
though purporting to be directly asserted by the witness,
really rests on a hearsay basis.”

3. OPINION EVIDENCE

A deponent in an affidavit or Witness Statement can only speak of facts which he

has personally perceived and is not entitled to give any inferences to be drawn from
those facts.

There are two (2) exceptions:-

(1) A suitably qualified expert may state his opinion on the matter which
calls for expertise and

(2) A person (non-expert) may give his opinion on a matter not calling for
particular expertise as a way of conveying the facts which he
personally perceived.

See Sangit Chaitlal (ante) at pgs 35 – 36 [paragraph 53]

But it is submitted that

(a) the facts which the witness is to relate by opinion must be that which
he actually perceived and

(b) A witness in order to circumvent this rule cannot feign inability to state
facts save through the medium of an opinion.

4. SCANDALOUS AND OPPRESSIVE MATTERS

See Generally Supreme Court Practice 1991 Vol. 1 at pages 336 and 337

CPR Part 29 (5) empowers the Court to strike out scandalous, irrelevant and
oppressive matter in a Witness Statement .

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The central question or test for the Court may be posed this way – Is the scandalous
matter of sufficient relevance and probative value to show the truth of the allegations
which is material to the relief prayed for?

The determination whether matter is oppressive is essentially a question of fact.

Matter is oppressive if it is irrelevant to any issue before the Court whether initially or
as a result of it contravening any of the other exclusionary rules.

5. THE CASE OF FAAIQ MOHAMMED

In a most seminal judgment in the case of CV 2013 -04726 FAAIQ MOHAMMED v

JACK AUSTIN WARNER Kokaram J reviewed and reiterated the forgoing principles
of admissibility of evidence and applied them in the defamation context
See para19 -a- h pgs . 8-12 of the judgment

In particular he emphasized in the forgoing paragraphs of his judgment that it is right

and proper that hearsay and opinion evidence even if considered relevant be struck
out and then went on to say @para. 19(h) pg. 12 -

“Excluding evidence which has very little probative value and offers little assistance
to the Court in determining the issues that fall for determination are quite rightly to be
struck out and are inadmissible in the Court’s exercise of its overriding objective in
managing the case.”

With specific reference to the natural and ordinary meaning of the world used
evidence of which the Claimant has attempted to give the Learned Judge had this to
say at pg. 15 - Sub- para (p )

“Finally under the substantive law, evidence as to the natural and

ordinary meaning of words is inadmissible. See Gatley para 34.25
Carter-Ruck 29.26 and the Court of Appeal decision of Kayam
Mohammed and ors v Trinidad Publishing Company Ltd and ors CA Civ.
118 of 2008. [ Emphasis added]

WITNESS STATEMENT OF DUANE MURRAY:

Paragraph Words Grounds/Submissions

No.
5 All of paragraph 5 It is not within the competence of the witness
to say what the Claimant intends to rely on.
This is for counsel for the Claimant to state in
submissions. It is also for judicial
determination.
6 (a) to (d) All of paragraphs 6 (a) to The witness is giving processes and
(d) procedures relating to guidelines outlined in
the Central Tenders Board Act and the
Central Tenders Board Regulations, neither of

6

7 From “The absence of Opinion; Lack of competence; Matters for
such…” to the end of the judicial determination.
paragraph.
8 All of paragraph 8
9 All of paragraph 9
10 All of paragraph 10
11 All of paragraph 11
12 All of paragraph 12
13 All of paragraph 13
16 From “These stamps do These are matters which are not within the
not confer…” to the end competence of this witness. They are
of the paragraph.
which applies to this matter. The contents of
all the paragraphs are therefore irrelevant.
The Claimant instead relies upon the
Permanent Secretary’s Circular dated March
9th 2007 to all Directors, Administrative
Officers, District Administrative Officers,
Heads of Sections/Units, Chief Engineers,
District Engineers, Auditor III entitled
“Delegation of Authority for the Award of
Contracts for purchase of goods and
services” which approved the establishment
of Tenders Committees including the
Highways Division with a financial limit of
$300,000 VAT inclusive.
The witness has failed to condescend to
particulars as to whom he made enquiries of
to allegedly determine the provenance and
authenticity of “AW4”. Because of this, the
rest of the paragraph must go.
These are all matters of opinion and issues
which fall for judicial determination. It is not
within the competence of the witness to
depose to these matters.
These are all matters of opinion and issues
which fall for judicial determination. It is not
within the competence of the witness to
depose to these matters.
These are all matters of opinion and issues
which fall for judicial determination. It is not
within the competence of the witness to
depose to these matters.
These are all matters of opinion and issues
which fall for judicial determination. It is not
within the competence of the witness to
depose to these matters.
The contents of this paragraph are irrelevant.
expressions of opinion. The witness is a
contract officer at the MOWT. They are
matters best deposed to by a Permanent
Secretary or someone vested with
administrative authority.
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17 All of paragraph 17
18 All of paragraph 18
19 All of paragraph 19
20 All of paragraph 20
WITNESS STATEMENT OF MARVIN GONZALES
Paragraph Words
No.
3 The words “More
specifically, I am aware of
particular circumstances
that existed within the
MoWT at the material
time regarding the illegal
procurement of contracts
by contractors through
the efforts of persons
within the MoWT who
were in positions of
limited authority who will
have acted outside this
authority.”
These are matters which are not within the
competence of this witness. They are
expressions of opinion. The witness is a
contract officer at the MOWT. They are
matters best deposed to by a Permanent
Secretary or someone vested with
administrative authority.
These are matters for judicial determination.
The Claimant shall produce the original of
this document at the trial for the Court’s
examination.
Opinion; Matters for judicial determination.
Grounds/Submissions
Scandalous; Irrelevant; Oppressive. What
particular circumstances existed to which the
witness speaks? What is the material time to
which the witness speaks? There is no
evidential foundation laid regarding alleged
illegal procurement of contracts at the
MOWT. If an issue is topical or controversial,
it cannot be presumed that it would be
admissible without more. The witness is
speaking as to matters involving criminal
conduct, the provenance of which is not
supported by any underlying evidential
substratum. The prejudicial effect of this
outweighs any probative value. It ought to be
struck out in its entirety.
The witness does not state the source of his
information or awareness. The evidence has
no independent foundation and lacks probity.
In the absence of a source of his awareness
or belief, the provenance of the statement is
doubtful and inadmissible.
The source of a witness’ information should
invariably be identified by name:
Consolidated Contractors International v
Masri [2011] EWCA Civ 21.
Further, if there is some investigation or
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 findings of an independent expert e.g. an
auditor relating to matters pertaining to the
award of contracts, such matters ought to
emanate as primary evidence from the mouth
of such persons and not this witness. In the
absence of his source of information and
belief and any independent foundation
relating to same, the provenance of such
evidence is doubtful.
4 The words “I am obliged Submissions under paragraph 3 above are
to set out the particular repeated. It is absolutely oppressive and
circumstances regarding scandalous for a witness to speak of a
the presumption of presumption of wrongdoing. What does this
wrongdoing on the part of mean? To whom is he referring? How can this
persons acting outside of be acceptable as evidence without relevant
their powers within the foundation and moreover, what is the
MoWT.” presumption of wrongdoing? There is no
presumption of wrongdoing known to law or
principle known by this nomenclature. He has
not particularized who has allegedly acted
outside of their powers within the MoWT but
has instead made a bold, blanket statement
of impropriety of a criminal nature against
persons without independent evidential
foundation. It would be dangerous and
manifestly prejudicial to have this evidence
admitted. It serves to prejudice the mind of
the Court and sets a scenario of alleged
impropriety without condescending to
particulars. If the Defendant wished to place
such evidence before the Court, the person
or persons unearthing such are best poised
to depose to these matters. It would have
even been open to the Defendant if it wished
to make an application to seal the witness
statement(s) of such person(s) in order to
preserve the security and integrity of the
information.
5 The words “…the Scandalous; Irrelevant; Oppressive.
circumstances within There has been no inquiry, finding or judicial
which certain contractors finding regarding the award of contracts by
will have been instructed persons who are not duly authorized to give
to conduct works, such instructions on behalf of the MOWT.
presumably on behalf of Submissions under paragraphs 3 and 4
the MoWT, but by above are repeated.
persons who are not duly

9
 authorized to give such
instructions on behalf of
the MoWT.”.
6 All of paragraph 6: Submissions under paragraphs 3, 4 and 5
“I am authorized to say above are repeated. The witness is making
that the actions of these allegations of criminal complicity against
persons were without the unnamed persons which is impermissible. No
knowledge, consent or one has been found conclusively by any
authorization of the judicial or investigative process to have been
MoWT, and the acting in concert with each other. It does not
contractors with whom lie within the mouth of this witness to impute
these persons acted in knowledge, either actual or constructive with
concert, either knew or respect to instructions received or the
ought to have known that legitimacy of such instructions or the capacity
the instructions they of such persons to have given such
received were not instructions.
legitimately given by the
persons purporting to act
with the authority of the
MoWT.”
7 All of paragraph 7: Submissions under paragraphs 3, 4, 5 and 6
“I am disinclined to recite above are repeated.
the names of these
persons within the MoWT
or the names of the
contractors with whom
they conspired since it
may compromise further
contemplated actions
against them. However, I
can say without fear of
contradiction that the
circumstances did exist
at the material time when
the Claimant would have
claimed to have received
instructions to carry out
the works to which it
refers in its claim. I make
this statement without
any intention to implicate
the Claimant in the
conduct of these
transgressions; however,
the existence of this state
of affairs presents the

10
 justification for the MoWT
maintaining its position
that the Claimant can
only be paid the sums
claimed upon
presentation of a legally
binding contract the
execution of which was
preceded by a
procurement process
duly authorized by the
rules and procedures
approved by the
Permanent Secretary;
and any other legitimate
documents in support
thereof.”

8 All of paragraph 8 Opinion; Scandalous; Irrelevant; Oppressive;

Lacking independent foundation. The witness
does not state whether he was part of any
process relating to any alleged investigations
of contractors or state the findings of such.
Each of the matters adumbrated at 8(a) to (h)
can be classified as conclusions or findings of
some investigative process which has not
been particularized. In any event, the witness
does not have the evidential competence to
depose to such and these matters ought to
be struck out.
Submissions under paragraphs 3, 4, 5 and 6
above are repeated.
9 The words “I ask the Matters for judicial determination; Opinion;
Honourable Court to Lack of competence. The witness is making
draw such inferences as serious and spurious allegations of
may be appropriate form “malfeasance” when no foundation or
the fact that, without evidence relating to same has been laid. In
prejudice to the Claimant, any event, malfeasance requires an
each of these hallmarks extremely high threshold to be surmounted.
of malfeasance present
themselves in the instant
case as presented by the
Claimant. The existence
of these circumstances
lead to the MoWT
generally…”.

11
10 All of paragraph 10 Scandalous; Irrelevant; Oppressive; Hearsay;
Opinion.
No independent foundation has been laid as
to what was the alleged policy position, the
alleged illegitimate claims or the alleged
illegally obtained instructions. The witness
does not state by whom he was advised of
any “acquiescence to pay any sums…”.
There has been no inquiry or judicial finding
regarding illegitimate claims being made
against the MOWT by persons in receipt of
illegally obtained instructions.
11, 12, 13, All of paragraphs 11-17 The witness is giving processes and
14, 15, 16, procedures relating to guidelines outlined in
17 the Central Tenders Board Act and the
Central Tenders Board Regulations, neither of
which applies to this matter. The contents of
all the paragraphs are therefore irrelevant.
The Claimant instead relies upon the
Permanent Secretary’s Circular dated March
9th 2007 to all Directors, Administrative
Officers, District Administrative Officers,
Heads of Sections/Units, Chief Engineers,
District Engineers, Auditor III entitled
“Delegation of Authority for the Award of
Contracts for purchase of goods and
services” which approved the establishment
of Tenders Committees including the
Highways Division with a financial limit of
$300,000 VAT inclusive.

In any event, the provisions of the Central

Tenders Board Act and its regulations are in
statutory form which need not be deposed to
in a witness statement and it is impermissible
for the witness to put any spin on the
interpretation of such statutory and regulatory
provisions. Such matters if relevant (and we
say they are not for the purposes of this
case) are for judicial interpretation.
Interpretation of the law is the exclusive
province of the Court. The views of
academics and even eminent Counsel, do
not constitute evidence: Gleeson v Wippell
& Co [1977] 3 All ER 54 – “As I told counsel
for the plaintiff, I would listen with pleasure to

12
 any submission on the subject that he chose
to put before me, whatever his source of
inspiration, but I would not listen to the words
of a Queen’s Counsel, however eminent, or
the author of an article, when proffered as
evidence of the legal rights and prospects of
a litigant. A court does not hear expert
evidence on what the law of England is, or
what the rights of parties are under that law.”
- (per Megarry V-C)
20 The words “Accordingly, These are all matters of opinion and issues
since each contract that which fall for judicial determination. It is not
was purported issued within the competence of the witness to
exceeded this One depose to these matters.
Hundred Thousand
Dollar limit, it is clear that
the MoWT officials within
the District who were
involved in that process
were acting ultra vires the
Permanent Secretary’s
authorisation and could
not therefore be said to
be acting on behalf of the
Permanent Secretary at
the time. Further, and
pursuant to the overriding
responsibility that resides
with the Permanent
Secretary under the Act,
the Civil Engineer II
never consulted the
Permanent Secretary,
whether orally or in
writing, about the
purported issuance of
verbal contracts.”
21 From “Assuming Conjecture and Speculation. It is asking the
therefore that the Court to draw a judicial determination on
contracting of the matters which lack independent evidential
Claimant’s services was foundation.
done at the Divisional Submissions at paragraph 20 above are
level under the repeated.
umbrella…” to the end of
the paragraph. Scandalous; Oppressive
22 From “Although not Submissions at paragraphs 11-17, 20 and 21

13
 specifically stated either above are repeated.
in the statute or in the
Circular…” to the end of
the paragraph.
23 All of paragraph 23 It has no evidential foundation. The Court has
to assess the probative worth of the evidence
and the evidence must be of sufficient
probative value to justify its reception into
evidence: See ZUCKERMAN ON CIVIL
PROCEDURE PRINCIPLES OF PRACTICE
[Third Edition] Para 22.81 and Paras. 22.94
– 22.99.

Submissions at paragraphs 20 and 21 above

are repeated. In any event, the witness
cannot speak as to the knowledge of the
Permanent Secretary. He cannot state what
was or was not brought to her attention. This
amounts to hearsay and he lacks evidential
competence to do so. The classification of
instructions as “illegal” amounts to opinion
evidence, is speculative and engages in
conjecture. As stated above, there is no
known finding of illegality or impropriety
deposed to constitute a foundation upon
which such matters can be said.

24 All of paragraph 24 Submissions at paragraphs 20 and 21 above

are repeated. Conclusions are being made
(“It is clear…”) when there is no independent
foundation for this evidence. It further usurps
the power of the court to come to its own
judicial determination on these matters

25-36 All of paragraph 25-36 Speculation; Conjecture; Matters for judicial

determination; Opinion.
Submissions at paragraphs 20 and 21 above
are repeated.

Dated this 27th of September 2017

..................................................
Reynold Waldropt
Instructing Attorney for the Claimant

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To: The Court Office
Hall of Justice
Knox Street
Port of Spain

And To: Mr. Sean Julien

Attorney-at-Law for the Defendant
Chief State Solicitor’s Department
Cabildo Chambers
No. 23-27 St Vincent Street
Port of Spain
Phone: 868-623-4151 ext. 2126/2160

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