Magistrate failed to uphold judicial precedent – AG
…as misconduct charge against Winston Jordan dismissed
The case against former Finance Minister Winston Jordan regarding the sale of a State-owned wharf to BK Marine Incorporated at a price way below the market value was on Tuesday dismissed after Senior Magistrate Leron Daly upheld a no-case submission.
The wharf which once valued over US$40 million was sold to BK Marine Incorporated with the State only receiving US$100,000.
Jordan, who had served under the previous A Partnership for National Unity and the Alliance For Change (APNU/AFC) Government, had been charged with one count of misconduct in public office concerning the selling of the State-owned wharf to BK Marine Incorporated.
This publication understands that the dismissal of the charge came after the presiding Magistrate determined that although Jordan was a Government Minister at the time the property was sold, his appointment in that portfolio did not amount to that of a public officer.
In giving a brief synopsis of Tuesday’s ruling, a usually reliable source told this publication that Magistrate Daly held that “the Minister [Jordan] did not fall under the public [sector] as a public officer because of his appointment…”
Jordan, who was initially taken to court on December 28, 2021, after the Special Organised Crime Unit (SOCU) – an arm of the Guyana Police Force (GPF) had instituted the charge against him, had been released on $3M bail pending the determination of the matter.
The source disclosed that Magistrate Daly commenced a Paper Committal (PC) into the matter on Tuesday, after which she ruled that a prima facie case was not established.
Accordingly, she upheld the no-case submission made on Jordan’s behalf by his lawyers Roysdale Forde, SC, and Dawn Holder-Cush.
The PC involves the Magistrate reviewing witnesses’ statements and documentary evidence without the witnesses being present and marked as exhibits. After this is done, the statements and other evidence are inventoried. Minutes of Cabinet meetings and some 28 witnesses’ statements were among the evidence adduced by SOCU.
Information reaching this publication is that SOCU, which is tasked with inter alia, investigating financial crimes, intends to review the Magistrate’s decision and make a decision soon on the way forward. An appeal “might very well be the end result”, the source said.
Representing SOCU were Police Prosecutor Neville Jeffers and Attorney-at-Law Ravindra Mohabir.
The former Finance Minister had always professed his innocence, maintaining that the charge against him was “politically motivated” and “trumped up”.
Particulars of the charge had read that Jordan, being and performing duties of Finance Minister, and being the concerned Minister for the National Industrial and Commercial Investments Limited (NICIL), a company owned by the Government, between February 26, 2020 and July 31, 2020, at Main Street, Georgetown, wilfully misconducted himself by acting recklessly when he signed a NICIL Transfer of Property Order, which was published in the Official Gazette, transferring to, and vesting to BK Marine absolutely, all buildings, erections, stellings, platforms and further appurtenances; that is to say, Mudlots 1 & 2F of Mudlot 3A, B & D, situated at North Cummingsburg, Georgetown, being over 2.553 acres for payment of $20,260,276, the property being valued at over $5 billion, a price that was grossly undervalued to such a degree that it amounts to an abuse of the public’s trust without reasonable excuse or justification.
Meanwhile, Attorney General Anil Nandlall, SC, in a statement on Tuesday evening said that in recent times, he has been forced to undertake the unfortunate task of offering genuine critical commentary on the manner in which certain criminal cases are being adjudicated upon in the Magistracy.
“My attention was drawn to a ruling delivered today (Tuesday) by a learned Magistrate presiding at the Georgetown Magistrates’ Court in which the learned Magistrate upheld a no-case submission and discharged former Minister of Finance, Winston Jordan, in respect of the charge of Misconduct in Public Office relating to an act he allegedly committed while he was Minister of Finance. The learned Magistrate predicated her ruling on a finding in law that as Minister of Finance, Mr Jordan was not a public officer, an important ingredient in the offence.”
According to the Attorney General, based upon inquiries made, he was informed that the learned Magistrate received from the State, written submissions supported by judicial authorities, including, a written ruling delivered by the Chief Justice (ag) Roxane George, SC, in the matter of Winston Brassington and Dr Ashni Singh v Munilal Persaud, Commissioner of Police; Ann McLennan, Chief Magistrate and Shalimar Ali-Hack, Director of Public Prosecutions 2018-HC-DEM-CIV-FDA-757.
In this case, Dr Ashni Singh was charged with the identical offence regarding certain acts he performed while he was Minister of Finance and placed before the Georgetown Magistrates’ Courts. The validity of the charge was challenged in the High Court on the identical ground, that is, as Minister of Finance, Dr Singh was not a public officer for the purposes of the charge.
The matter was heard by Chief Justice George who, after hearing detailed submissions from both counsel for Dr Singh and the Director of Public Prosecutions (DPP), ruled that Dr Singh may be charged with the offence of Misconduct in Public Office notwithstanding that he was a Minister. This ruling was delivered on November 18, 2020, and was never appealed. It remains the law on the issue.
Nandlall in his statement on Tuesday said that first-year law students are taught that the doctrine of Stare Decisis, by virtue of which the decision of the High Court on a particular principle of law, is binding precedent on a Magistrate, to the extent, that the Magistrate has no jurisdictional freedom to depart from that High Court’s decision.
“The two cases are almost identical in both issues of facts and law, and the decision of the learned Chief Justice in the Singh and Brassington case constitutes a binding precedent on the learned Magistrate. Clearly, the learned Magistrate erred in law by refusing to follow the decision of the learned Chief Justice. Such an elementary egregious error has excited great public concern within a few hours and inevitably will shake the public confidence in the administration of justice. For to the public, it appears that there are different standards being applied to different persons by the administration of justice” the Attorney General said.
According to Nandlall, by this decision of the Magistrate, Jordan walks free after “vesting title of a State asset valued at over US$40 million to a private company for which the State received a mere US$100,000; worse yet, this was done months after the Government of which he was part, had already lost the March 2, 2020 General and Regional Elections but remained in Government for five months thereafter.”
Back in December 2021, Jordan was arrested by SOCU as part of investigations into alleged instances of corrupt governmental transactions between 2015 and 2020.
According to SOCU, BK Marine’s principal, Brian Tiwarie, had paid only 10 per cent of the purchase price; that is, $20.2 million, and Jordan had gone ahead to issue a vesting order, passing the title to the purchaser without the purchaser making payment of any further sums of money.
The vesting order stated that the property is being sold free from encumbrance and liabilities, and no further sum of money is owed by the purchaser, SOCU had said.
It had said that the transport was subsequently issued for the property, and the value strangely stated on the transport was $400,000,000. Further, SOCU had said, the agreement of sale stated that the title must be passed only upon full payment of the purchase price.
SOCU had contended that investigators have evidence to establish that a facility located some seven miles upriver, being a mere fraction of the size of the State property under investigation, was sold by a private company for US$17 million. It had pointed out that this was only one of several investigations that implicated former Minister Jordan.
While Jordan had previously denied any wrongdoing regarding this transaction, Attorney General and Legal Affairs Minister Nandlall had announced that there were active investigations into a number of suspected shady dealings under the former APNU/AFC Government and the former Finance Minister had been implicated in a number of “nefarious transactions”.
On behalf of the State, the Attorney General had also filed civil proceedings against Jordan at the Demerara High Court over the sale of the river frontage to BK Marine. In that case, Nandlall was seeking to overturn the contentious sale of the State property.
To this end, he had asked the court to declare the agreement of sale between BK Marine and NICIL illegal, unlawful, null, void, repugnant, and contrary to public policy.
However, last September, Justice Brassington Reynolds dismissed the lawsuit on finding that while the Attorney General is authorised to bring an action for misfeasance in public office against Jordan, he did not, in the case at bar, satisfy the elements of the tort.
Referencing a plethora of case laws, he held that the pleadings in Nandlall’s Affidavit in Support were misconceived, and therefore ruled that the case was an abuse of the court’s process, before striking it out. As such, he had awarded costs of $2 million each to Jordan and BK Marine.
Describing it as “one of the most shocking decisions I have ever witnessed in my brief career at the Bar”, Nandlall had signalled his intention to appeal the decision of that High Court Judge. (G1)