Appeal Court judge's recusal from EMBD case in limbo

YET another emergency hearing of the Court of Appeal in the Estate Management Business Development Company Ltd’s multi-million-dollar cartel claim involving a group of contractors and a former government minister will convene on Thursday.

At that hearing, Justices of Appeal Nolan Bereaux, Mark Mohammed and Maria Wilson are expected to say whether they will all step aside from delivering a decision in the appeal before them, and if Wilson's earlier recusal will be accepted.

On Monday, Wilson said she had to step down, explaining that her brother, attorney Fulton Wilson, was a member of the EMBD board from December 2015-January 2021.

She said she believed the information she received from her brother affected her ability to continue on the panel. She also admitted she was “totally shocked by this revelation.”

“Despite my willingness to continue, it is pellucid to me there is an imperative to ensure justice is not only done but seen to be done.”

Wilson said it was important to ensure the appearance of the impartiality of the panel on which she sat was maintained, as it was critical to maintain the public’s confidence in the Judiciary.

Attorneys for the contractors who filed the appeal accepted her recusal. Former attorney general Ramesh Lawrence Maharaj, SC, who represents them, said while it was “unfortunate,” they had no alternative but to accept the judge’s decision.

On Wednesday morning, Maharaj maintained that position. He said Wilson had satisfied the requirement in law to recuse herself from the appeal.

As he pointed to several legal authorities, Maharaj maintained no judicial authority can order her to hear the case. He said her disclosure and statement were couched emphatically and robustly, as is expected of a professional judge.

“We seem to be indirectly calling into question the decision of the judge. Having made that decision, it cannot be questioned.”

At variance with this position were attorneys for the EMBD, who, at Monday’s hearing, asked the judges to allow them to make submissions on the recusal.

King’s Counsel David Phillips said the threshold for recusal had not been crossed and it would be wrong to direct Justice Wilson to do so.

“A professional judge will determine the issues dispassionately.”

He said since the court allowed the parties to make further submissions on the issue, it did not treat the judge’s position on Monday as determinative, otherwise an order would have been given.

He said for the judge to continue, she would have to consider whether doing so would cause her “concern or embarrassment.” However, Phillips said they will accept whatever the panel decides.

This morning's hearing was the third of its kind. In addition to Monday’s and Wednesday’s hearings, there was one on Friday, held to discuss statements made by Opposition MP Dr Roodal Moonilal at a political meeting on June 19 in response to comments by the Prime Minister at a press conference on June 12.

On May 26, when the three judges heard submissions in the appeal, they reserved their ruling to June 30.

It was also agreed that those who did not challenge Justice James Aboud’s ruling will file their defences 45 days after the eventual ruling of the Appeal Court.

The appeal is against the August 2020 ruling of Aboud, who dismissed preliminary applications by TN Ramnauth, Taradauth Ramnauth, Kallco, Mootilal Ramhit and Co and Fides Ltd for the EMBD to detail the allegations against them so that they could fairly mount their defence or strike out the claims.Those five appealed.

Last month’s hearing came after Justices Mira Dean-Armorer and Ronnie Boodoosingh heard the same submissions, in January 2021, and said they had difficulty in arriving at a unanimous decision even after considering the evidence, submissions and engaging in discussion.

They said since the matter was one of general importance and would affect people other than the parties imvolved, they were relying on provisions of the civil proceedings rules which allowed them to direct that the appeal should be heard by a full panel of three judges. It was then assigned to Bereaux, Mohammed and Wilson.

At the UNC’s presentation of local government candidates in San Fernando, Moonilal said he was shocked by the judge’s disclosure and that “judgment could have been handed down by a judge to determine the merits of her brother’s decision to persecute me.”