‘Commission wrongly refused to hear claims’
The Court of Appeal has found that the Commission of Inquiry into Historical Land Losses wrongly refused to hear several complaints launched by Raymond Davis.
While the appeal panel found that the commission had incorrectly limited itself and decided “without good reason” that complaints were made without evidence, the court said it could not grant damages for “misfeasance in public office” as sought.
Court of Appeal President Sir Christopher Clarke said in a written decision: “A misinterpretation by the commissioners of their terms of reference comes, in my view, nowhere close to supporting such a claim.”
The commission was established in 2019 to examine historical thefts of property and to “identify any persons, whether individuals or bodies corporate, responsible for such historical losses of citizens’ property”.
The seven-member panel was required to interpret its terms of reference to determine the scope of its inquiry.
Mr Davis, also known as Khalid Wasi, brought forward several complaints, including that he had been unfairly treated by the Bermuda Housing Corporation for his political opinions.
He also alleged that he and other innocent Black businessmen had suffered losses because of the actions of the Bank of Bermuda in the midst of an investigation into a “fraud ring”.
However, the Commission of Inquiry said the complaints fell outside its remit, branding them “commercial disputes”.
Mr Davis and Myron Piper argued successfully before Assistant Justice Hugh Southey that the commission acted illegally when it denied them the chance to testify before it.
The two claimed that the scope of the commission at first was too broad and that it acted beyond its powers when it defined what its remit should be.
While the CoI appealed the ruling, the Court of Appeal dismissed its appeal in a decision handed down this month.
In the ruling, Sir Christopher said the CoI had come to the conclusion that it was only to investigate “systemic” conduct, while Mr Justice Southey had determined that the CoI should investigate land losses caused as a result of an imbalance of power.
“In the present case it seems to me that the terms of reference do not require the loss of land to result from either systemic conduct or an imbalance of power, although, if the loss does result from either of those, it may well come within the terms,” Sir Christopher said.
“As to the former, land can be lost by a single act [or set of acts] which is unlawful or irregular without being capable of properly being characterised as ‘systemic’ — a word that does not appear in the terms.”
Sir Christopher said he was satisfied that the commission was wrong when it decided not to investigate the claims based on the evidence before it, but he acknowledged that the court had heard evidence the CoI had not heard.
He also added that he appreciated the burden that faced the CoI, which he said was appointed under terms that were “not perfectly drafted”.
“Neither of those considerations can, in my judgment lead to a conclusion different to the one to which I have come,” he said.
“Nor can the fact that I have found it necessary to spend a considerable amount of time examining the contents of the mass of material which Mr Davis has produced in order to discern what seems to me to be the true nature of his complaints.”
In comments supporting the decision, Justice of Appeal Ian Kawaley, said the terms of reference for the CoI embraced any loss of property attributable to abuse of power.
“The popular assumption that a debtor has no legal standing to complain of debt enforcement action motivated by discriminatory grounds is legally misconceived,” he said.
“However, it is easy to make wild and unfounded allegations of victimisation and it will typically, in the loan enforcement context, be difficult to prove that discriminatory differential treatment occurred.
“I do not ignore these considerations in finding that Mr Davis’s complaints should have been accepted by the CoI as worthy of consideration.
“It is also important to emphasise that there is a fundamental distinction between a finding that a complaint is arguable, deserving of investigation by the CoI, and a finding that a complaint has been proved.
“No valid judicial or administrative finding of serious misconduct can be made against any person or entity without affording them a reasonable opportunity to be heard.”
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