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 Elias Loses Bias Claim Against Landate Probe

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Posts : 540
Join date : 2011-01-27

PostSubject: Elias Loses Bias Claim Against Landate Probe   Wed Nov 07, 2012 10:26 pm

Thursday 20th October, 2005

NH International sues Land Date commission

By Jada Loutoo

Contracting firm NH International (Caribbean) Ltd (NHIC) has sued the now disbanded Scarborough hospital/Land Date commission of enquiry, claiming the commission was biased in its conduct against it.

In an application in the Port-of-Spain High Court, NHIC is seeking a review of the commission’s findings and recommendations in its report to the President.

The commission, which was chaired by retired Justice Annestine Sealey and comprised members Chandraban Sharma, president of the Association of Professional Engineers, and St Kitts architect Eustace Hobson, was appointed by President George Maxwell Richards on May 5.

It was set up to look into the procurement processes and the award of contracts to NHIC and Warner Construction, as well as allegations that material was removed from the hospital project site to Land Date, the private housing development at Mason Hall, Tobago, owned by the wife of Housing Minister Dr Keith Rowley.

In its application before Justice Charmaine Pemberton, who granted NHIC leave to have the commission’s findings reviewed, the company complained that the commission’s lead counsel demonstrated bias and raised the real possibility that the commissioners findings were also biased and erroneous.

Trevor Lee, SC, appeared for the commission at the enquiry, although his name was not referred to in NHIC’s lawsuit.

Towards, the end of the enquiry, which sat publicly in July, NHIC pulled out, claiming it did so after it formed the view that the procedure of the commission had “transgressed the rules of natural justice.”

“The applicant had from the outset been desirous of participating in the hearings of the commission,” NHIC said in its lawsuit.

In its report, which is yet to be laid in Parliament although Prime Minister Patrick Manning promises it will be soon, the commission said the “appropriate authorities” should visit the Larceny Act “with a view to addressing the illegal act (if so found by them) committed by NHIC by the removal of Nipdec’s materials” from the hospital site to the Land Date project.

It also suggested Nipdec revisit its contract with NHIC.

The company has since withdrawn from the hospital project which is said to be some $59 million over budget and is negotiating with the Health Ministry to disengage itself from the project.

But NHIC is claiming that the commission’s lawyer failed to draw the commission’s attention to testimony of several witnesses, including NHIC’s own Mark Hood and Roy Malchina, as it provided excerpts of both men’s testimony, which it said could have assisted its case.

It also argued that the “apparent bias” of counsel to the commission tainted the performance of his functions and “on this basis as well, the findings and recommendations contained in the report are vitiated by bias and cannot stand, whether correct or not.”

NHIC also took issue with the commission’s refusal to call James Duffy, former project manager at the hospital site, now resident in Angola.

The commission was set up after Opposition chief whip Ganga Singh, in Parliament last year, levelled accusations against Rowley.

As it called on the court to quash the findings and recommendations of the report, NHIC also wants a declaration that the content of the report are voided by bias.

NHIC is represented by Alvin Fitzpatrick, SC, Ricki Harnanan and Adrian Byrne.
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PostSubject: Re: Elias Loses Bias Claim Against Landate Probe   Wed Nov 07, 2012 10:42 pm

Elias loses bias claim
By FRANCIS JOSEPH Wednesday, July 18 2007

EMILE ELIAS’ NH International (Caribbean) Limited yesterday lost the judicial review case it brought against the commission of inquiry appointed in 2005 to investigate the Landate affair in Tobago and the award of state contracts to NH International.

Justice Charmaine Pemberton, presiding in the Port-of-Spain High Court, did not find there was any bias towards Elias and his company from the commission or the lead counsel to the commission, Trevor Lee SC.

In an oral ruling at the Hall of Justice, Pemberton struck down Elias’ claim and dismissed his judicial review case. The judge found that the commission acted with procedural fairness. As far as the judge was concerned, the commission did nothing wrong. She also ordered that NH International pay costs to the commission.

Elias was not present for the decision, neither was his senior counsel Alvin Fitzpatrick. His junior attorney Rikki Harnanan was present. Appearing for the commission were Douglas Mendes SC, Ian Benjamin, and state attorneys Emmanuel Pierre, Petal John, Patricia Cross, and Nirmala Bansee.

In 2005, President George Maxwell Richards appointed a commission of inquiry headed by retired High Court judge Annestine Sealey and comprising Chandrabhan Sharma and Eustace Hobson to investigate allegations that material at the site of the proposed Scarborough General Hospital were moved to the site of Landate at Mason Hall, a project owned by Sharon Rowley, wife of Minister of Housing Dr Keith Rowley.

Several witnesses gave evidence before the commissioners. It was during the final stages of the inquiry that NH International complained that the commission and/or its lead counsel were biased towards the company.

NH International filed for judicial review in 2005. The case was argued over several months before judgment was reserved.

Yesterday, Pemberton said her written judgment should be available by the end of this month.,60793.html
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PostSubject: Re: Elias Loses Bias Claim Against Landate Probe   Wed Nov 07, 2012 10:45 pm

Appeal Court: No bias in hospital probe

By Denyse Renne
Story Created: Oct 19, 2011 at 11:58 PM ECT
Story Updated: Oct 19, 2011 at 11:58 PM ECT

An appeal filed by NH International (NH), challenging the decision of High Court Judge Charmaine Pemberton has been dismissed. This recent dismissal comes on the heels of a September 14 ruling in the matter between NH owner and contractor Emile Elias and the National Insurance Property Development Company Ltd (NIPDEC).

Following the arbitrational proceedings between Elias and the NIPDEC, it was determined that NH owes NIPDEC $17.5 million, VAT exclusive. The Court of Appeal in a 25-page ruling delivered yesterday by Justice Gregory Smith in the Port of Spain High Court, said: "NH has failed to make out a case for setting aside the order of Justice Pemberton. This appeal is dismissed."

The appeal panel included Justices Smith, Peter Jamadar, and Nolan Bereaux.
The judges further said NH argued the appeal "in a manner of a re-hearing of the application for the judicial review" and further went on to commend Pemberton on her extensive and thorough analysis of the "voluminous material put before her."
"While I too have undertaken the task of examining the Record of Appeal of approximately 2800 pages, I propose to adopt much of the analysis of the trial judge."
The judges also argued that there is a presumption that judicial officers (like the Chairman of the Enquiry) and other holders of high office (like all the commissioners) "will discharge their functions with impartiality...the onus of proving bias is rendered more imperative in this case where NH failed to make out a case of apprehended bias against the Commissioners."

The appeal centred on the July 17, 2007, ruling of Pemberton that recommendations and findings of the Commission of Enquiry into the award of all contracts to NH International (Caribbean) Ltd (NHIC) and Warner Construction and Sanitation Ltd were not tainted or bias.

During the appeal, Senior Counsel Alvin Fitzpatrick appeared on behalf of NH, while attorney Ian Benjamin appeared on behalf of the Commission of Enquiry into the award of all contracts to NH International (Caribbean) Ltd and Warner Construction and Sanitation Ltd.

The court heard that NH, in January 2003, was awarded a contract by the NIPDEC for the construction of a general hospital in Tobago. Work commenced on the site in or around March,2003. Sometime in October 2004, the operations under this contract became the subject of parliamentary debate, out of which then prime minister Patrick Manning requested from President George Maxwell Richards, to appoint a Commission of Enquiry to investigate the allegations made. Following the conclusion of the enquiry, the Commission Chairman delivered its report to Richards, which contained its findings and recommendations.

In October, 2005, NH applied for and obtained leave to file for judicial review of the Commissions findings. NH argued on four grounds which included "the findings and recommendations were tainted by apparent bias of the Commissioners in their conduct toward NH during the course of the proceedings, the Respondent (Commission) was infected by lead counsel's apparent bias towards NH, the findings and recommendations of the Respondent resulted from a breach of the requirements of natural justice or procedural unfairness and the Respondent failed to make a full, faithful and impartial enquiry."
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