Fran­cis Joseph

Ex­pect British Pro­fes­sor, John Uff, to fly in­to Trinidad short­ly to present his damn­ing re­port of the Com­mis­sion of En­quiry in­to the con­struc­tion sec­tor, the Ur­ban De­vel­op­ment Cor­po­ra­tion of Trinidad and To­ba­go (Ude­cott), and the Cleaver Heights hous­ing project. The way was paved yes­ter­day for Uff to hand in his re­port to Pres­i­dent George Maxwell Richards af­ter the High Court dis­missed Ude­cott's ju­di­cial re­view in which the State com­pa­ny claimed that the Uff Com­mis­sion­ers were bi­ased to­wards Ude­cott and its ex­ec­u­tive chair­man, Calder Hart. The re­port was due on two pre­vi­ous oc­ca­sions, the last be­ing Feb­ru­ary 28. But the Com­mis­sion gave an un­der­tak­ing that it would not hand in the re­port un­til com­ple­tion of the ju­di­cial re­view case. Yes­ter­day, Jus­tice Mi­ra Dean-Ar­mor­er, pre­sid­ing in the Port-of-Spain High Court, de­liv­ered a 142-page judg­ment in which she dis­missed the ju­di­cial re­view case in which Ude­cott sought to pre­vent Uff from sub­mit­ting the re­port. She or­dered that the fi­nal re­port be hand­ed in by the oth­er two of the four com­mis­sion­ers�Uff and Desmond Thorn­hill. But De­vesh Ma­haraj, at­tor­ney for Ude­cott, sought to get a stay of the or­der in the event that his client wants to ap­peal.

Ma­haraj asked for an or­der to block the pub­li­ca­tion of the re­port. Dean-Ar­mor­er asked, "On what ba­sis should I do so?" Ma­haraj re­spond­ed, "In the event that the claimant wants to ap­peal, which we should do short­ly." Dean-Ar­mor­er added, "Then you will have to run up­stairs (Court of Ap­peal). I may be able to stay the or­der for cer­tio­rari, or the or­der for costs, but I don't think I can stay the pub­li­ca­tion of the re­port. You have not shown me any good rea­sons why I should do so," the judge de­clared. Af­ter the hear­ing, Ma­haraj of­fered lit­tle com­ment, ex­cept to say that the lawyers need to study the re­port be­fore mak­ing the next move. Ude­cott, how­ev­er, was able to get an or­der from the court to say that the de­ci­sion of the com­mis­sion­ers to re­ceive a mem­o­ran­dum pre­pared by for­mer com­mis­sion­er, Ken­neth Sir­ju, and to an­nex that re­port to the Com­mis­sion of En­quiry's re­port, was il­le­gal, null and void. Dean-Ar­mor­er grant­ed an or­der of cer­tio­rari to quash the de­ci­sion of the com­mis­sion­ers to re­ceive such an ex­tra­ne­ous mem­o­ran­dum and an­nex it to the Com­mis­sion of En­quiry re­port.

She al­so or­dered Ude­cott to pay 7/8 of the costs to the Uff Com­mis­sion, the de­fen­dants in the mat­ter. An­oth­er com­mis­sion­er, Is­rael Khan SC, re­signed last Au­gust. Dean-Ar­mor­er point­ed out that in this case, Ude­cott made no al­le­ga­tion of ac­tu­al bias against the com­mis­sion­ers. Ude­cott al­leged the ap­pear­ance of bias against Uff by virtue of his re­marks, pro­nounce­ments, or­ders, ac­tion and in­ac­tion dur­ing the life of the en­quiry. An al­le­ga­tion of ap­par­ent bias was al­so made against Sir­ju by virtue of his pro­fes­sion­al his­to­ry and his treat­ment with it in the course of the in­quiry. There was ev­i­dence that Sir­ju's com­pa­ny did work for NHIC on the Cleaver Heights project. He stepped down from the fi­nal phase of the en­quiry which dealt with the con­tro­ver­sial Cleaver Heights project. There was al­so an al­le­ga­tion of ap­par­ent bias by Uff Thorn­hill and Sir­ju, by virtue of in­fec­tion, through their as­so­ci­a­tion with for­mer com­mis­sion­er, Khan. No al­le­ga­tion was made in re­spect of words or ac­tions of Thorn­hill.

ABOVE: ?Is­rael Khan, SC, ad­mit­ted be­ing bi­ased to­wards Ude­cott and Calder Hart. PHO­TOS: KAR­LA RAMOO

Khan ad­mits to be­ing bi­ased

Dean-Ar­mor­er con­sid­ered how the fair-mind­ed and in­formed ob­serv­er would view the al­le­ga­tions against Khan who re­cused him­self on Au­gust 11, 2009. She said Khan ad­mit­ted that he was bi­ased in an in­ter­view in the me­dia. He said that his feel­ings of an­tipa­thy against Ude­cott and Hart were de­vel­oped on­ly af­ter they ac­cused him of be­ing racist. The judge added, "In my view, how­ev­er, the fair-mind­ed and in­formed ob­serv­er would have de­tect­ed the ap­pear­ance of bias in the in­ter­ro­ga­tion by for­mer com­mis­sion­er Khan on 28th Jan­u­ary 2009. The fair-mind­ed ob­serv­er would be mind­ful of the so­ci­o­log­i­cal con­text of Mr Khan be­ing a se­nior ad­vo­cate prac­tis­ing at the crim­i­nal bar where there is a cul­ture of ag­gres­sive and ro­bust cross-ex­am­i­na­tion." She con­tin­ued, "The fair-mind­ed and in­formed ob­serv­er would be aware that a prac­ti­tion­er of Mr Khan's se­nior­i­ty would find it dif­fi­cult to re­fine his method of ques­tion­ing with­in the short time be­tween his ap­point­ment as a com­mis­sion­er and the im­pugned in­ter­ro­ga­tion."

Dean-Ar­mor­er stat­ed, "In my view, the mere ro­bust­ness of the ques­tion­ing with the for­mer com­mis­sion­er's fre­quent in­ter­rup­tions of the wit­ness would not lead the fair-mind­ed ob­serv­er to the con­clu­sion that there was a re­al pos­si­bil­i­ty that Com­mis­sion­er Khan was bi­ased." She con­clud­ed that a fair-mind­ed ob­serv­er would note that there was a clear at­tempt to sug­gest that Hart was un­in­tel­li­gent. She said the fair-mind­ed ob­serv­er would form the view that there was a re­al pos­si­bil­i­ty that Khan had a vis­cer­al dis­like of Hart and that there was a re­al pos­si­bil­i­ty of bias.

Khan Re­sponds

Fol­low­ing the judg­ment, Khan re­spond­ed, "It is ab­solute­ly no sur­prise to me that Ude­cott and Calder Hart lost these mat­ters. The judg­ment is in keep­ing with the law and the facts. In my let­ter of res­ig­na­tion, I told Mr Hart's lawyers that their threat of ju­di­cial re­view against the Com­mis­sion was so pre­pos­ter­ous that they would be laughed out of court. I had called up­on Calder Hart and Ude­cott to em­brace the Com­mis­sion of En­quiry un­less there was co­coa in the sun."

Al­le­ga­tions against Uff

Dean-Ar­mor­er re­called that in Jan­u­ary 2009, Uff in­curred the anger of at­tor­neys by im­pos­ing a week­end hear­ing with­out con­sul­ta­tion. She spoke of the "mov­ing of the goal­post", that is to say, short­en­ing of the open­ing ad­dress of An­drew God­dard QC, lead coun­sel, for Ude­cott. The judge al­so not­ed the sud­den in­tro­duc­tion of the ev­i­dence of Carl Khan, for­mer hus­band of Sher­rine Hart, now mar­ried to Calder Hart. She said the fair-mind­ed ob­serv­er would note that Khan's ev­i­dence was in­tro­duced on a day when on­ly ju­nior coun­sel for Ude­cott was present, and that Hart was un­rep­re­sent­ed. While she said the ob­serv­er would find the in­tro­duc­tion of the ev­i­dence to be un­fair, the ob­serv­er would not find this in­ci­dent re­flec­tive of "an at­ti­tude of mind which pre­vents the chair­man (Uff) from mak­ing an ob­jec­tive de­ter­mi­na­tion of the is­sues he has to re­solve."

?'Vin­di­cat­ed'

?The Ur­ban De­vel­op­ment Cor­po­ra­tion of Trinidad and To­ba­go (Ude­cott) claims it has been vin­di­cat­ed by the find­ings of Jus­tice Mi­ra Dean-Amor­er in its ap­pli­ca­tion for ju­di­cial re­view.�In a re­lease last night, Ude­cott stat­ed: "Jus­tice Dean-Amor­er se­vere­ly crit­i­cis­es the com­mis­sion's be­hav­iour, cit­ing its sud­den in­tro­duc­tion of the ev­i­dence of Carl Khan as un­fair, in that it de­prived Ude­cott of the op­por­tu­ni­ty to know what charges were be­ing made against it. "She said the court was "ap­palled" at Pro­fes­sor Uff's fail­ure to treat Mr. Hart fair­ly, adding that Pro­fes­sor Uff was guilty of 'neg­li­gent au­thor­i­tar­i­an­ism' in his treat­ment of Ude­cott and Mr Hart. "Jus­tice Dean-Amor­er, clear­ly out­lined her find­ings of bias against Ude­cott Ex­ec­u­tive Chair­man Mr Calder Hart by for­mer Com­mis­sion­er Is­rael Khan. She al­so notes that Mr Is­rael Khan had been bi­ased against Ude­cott since Jan­u­ary 2009."