Winston Jordan cleared of misconduct charge
Former Minister of Finance, Winston Jordan has been cleared of the charge of misconduct in public office after a Magistrate’s Court found that the Special Organized Crime Unit (SOCU) had not proved its case against him.
Stabroek News understands that following the prosecution’s tendering of all of its witness statements and documents yesterday, Magistrate Leron Daly sitting in the Georgetown Magistrate’s Court ruled that Jordan had no case to answer.
Jordan yesterday express relief at the decision. He told Stabroek News “I feel relieved; this was like the sword of Damocles hanging over my head, sullying my name”.
The ruling, Stabroek News understands, came after the Court’s finding that Jordan could not be considered a public officer because he had been appointed a minister and not a public officer in the public service.
It is unclear at this time whether SOCU will be filing an appeal, though sources say that this is likely.
Back in December of 2021, SOCU brought the charge against Jordan.
It had always been the contention of his legal team led by Senior Counsel Roysdale Forde, that Jordan was not a public officer.
However, the prosecution had submitted that the Chief Justice had made a ruling in the case of Brassington and Singh vs the Chief Magistrate in Application 757 of 2018 that Dr Ashni Singh, who was also a Finance Minister, was considered a public officer and that Article 232 of the Constitution of Guyana provides that, a “public officer means the holder of any public office and includes any person appointed to act in such office inter alia.”
Stabroek News understands, however, that from the case presented by SOCU, Jordan was not found to have been a public officer, a circumstance on which it was hoping to ground the misconduct charge.
It had been alleged that Jordan, being and performing duties of Minister of Finance and being the concerned Minister for the National Industrial and Commercial Investments Limited (NICIL), a company owned by the Government of Guyana, between February 26, 2020, and
Friday, July 31, 2020, at Main Street, Georgetown, wilfully misconducted himself by acting recklessly when he signed a Transfer of Property Order, transferring to and vesting to BK Marine Inc. over 2.553 acres at Mudlots 1 & 2, F of Mudlot 3, A, B & D, situated at North Cummingsburg, Georgetown.
It was claimed that the property, which is valued at over $5 billion, was sold for $20,260,276, a price that was grossly undervalued to such a degree as to amount to an abuse of the public’s trust and without reasonable excuse or justification.
Attorney General Anil Nandlall SC yesterday flayed the decision. Without naming the magistrate he charged that a precedent existed in a decision by the acting Chief Justice which would have secured the prosecution’s case.
“In recent times, I have been forced to undertake the unfortunate task to offer genuine critical commentary on the manner in which certain criminal cases are being adjudicated upon in the Magistracy. Another such occasion has regrettably presented itself”, he said.
He stated that the Magistrate predicated her ruling on a finding in law that as Minister of Finance, Jordan was not a Public Officer, an important ingredient in the offence.
Based upon inquiries made, he said that he was informed that the learned Magistrate received from the State written submissions supported by judicial authorities, including, a written ruling delivered by 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 that case, Nandlall noted that Singh was charged with the identical offence regarding certain acts he performed while he was Minister of Finance and placed before the Georgetown Magistrate’s Court. The validity of the charge was challenged in the High Court on the identical ground, that is, as Minister of Finance, Singh was not a Public Officer for the purposes of the charge.
Nandlall noted that the matter was heard by Chief Justice George who, after hearing detailed submissions from both counsel for Singh and the Director of Public Prosecutions (DPP), ruled that 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, Nandlall said, added that it remains the law on the issue.
“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 they are different standards being applied to different persons by the administration of justice”, Nandlall argued.
He said that the accused has walked 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, he said that 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. trial, and deal with any outstanding issues before trial.”
The judges said that none of those objectives could have been realized on April 28th as is being contended by Granger; since there were still evidential objections and interrogatories to be addressed and a supplemental affidavit of witness statement to be filed.
They ruled that for those reasons, Granger’s contention that Justice Singh conducted the PTR which was continued on an adjourned date, could not be sustained.
Regarding the waiver of the PTR, the Full Court justices noted that Rule 38.01(6) gives the Court a very wide discretion to waive the PTR at any time and on its own initiative; but cautioned that where a litigant withholds consent under R. 38.01(5), this ought to be taken into account by a CMC judge when deciding whether or not to waive the PTR.
The appellate tribunal did point out, however, that it would be apposite to note that the provisions of Rule 38.01(5) apply only “where practicable” and is not absolute and unqualified as the submissions of the Appellant suggested.
Against this background the Full Court said it was of the view that Rule 38.01(5) envisages that the CMC judge can be the judge who conducts the PTR where it is impractical for one judge to conduct CMC/Trial and another to conduct the PTR.
On that point the judges then highlighted in their ruling that there was nothing in the record of the proceedings which gave any indication that there were circumstances which made it impractical for a different judge to conduct the PTR; “so that the exercise of the judge’s discretion to waive PTR, without more, appears to be against the spirit of the CPR particularly when one considers that it came after His Honour was made aware that the Appellant was withholding his consent as he is entitled to do under Rule 38.01 (5).”
The judges were quick to point out, however, that the entitlement of a litigant to withhold consent is confined to the CMC or trial judge also being the PTR judge; adding that in their view, it is not within the contemplation of the Rules, that a litigant can withhold consent to the CMC judge being the trial judge.
“This would encourage judge shopping which cannot be countenanced. The learned trial judge, being the CMC judge, must ultimately be the judge to conduct the trial,” Justice Younge and Persaud declared.
They then went on to further declare that any judge who conducts a CMC is in command of the pleaded case, the facts traversed, discovery, the evidence by way of witness statements with exhibits attached and the full panoply of powers that the CMC envisages.
“It is therefore logical and follows common sense that a CMC judge is always best placed to conduct the trial and this, as far as we are aware, is the status quo following the implementation of the CPR. To argue that a judge other than the CMC judge must conduct the trial is neither prudent nor practicable. This is so particularly when one considers that the resources of the Supreme Court are severely limited. There is nothing in this appeal to persuade this Court to depart from this norm,” the Full Court judges said.
In the final analysis they ruled that the hearing conducted by Justice Singh on April 28th April last year was a continuation of the CMC and not a PTR.
They would, however, go on to hold that while Justice Singh has the power to waive a PTR at any time, given the circumstances of the case and in view of the fact that there was no consent by the Appellant, “the exercise of his discretion to waive the PTR was wrongfully exercised.”
The judges said that in the face of Granger withholding his consent, it was not open to the trial judge to counter that by waiving the PTR. They said that at that point, the objection should have been noted and the matter referred to the Chief Justice for assignment to a different judge to conduct the PTR, after which the matter would return to Justice Singh for trial.
In all the circumstances, the Full Court allowed Granger’s appeal regarding the waiver; but ordered that the matter be referred to the Chief Justice to assign a different judge to conduct the PTR; at the conclusion of which the matter is to be remitted to Justice Singh for trial.
In his motion, however, seeking special leave of the Court of Appeal to challenge Justices Younge and Persaud’s ruling that Justice Singh conducts his trial, Granger is contending that the Full Court judges got it wrong and that that aspect of their decision is “bad in law.”
He argues that the judges erred in law when they concluded that the matter was “ostensibly” fixed for pre-trial review on the 13th day of June, 2022. According to Granger, the fact was that the matter was fixed for pretrial review.
The former president is of the view that because of this, the Full Court could not then go on to hold that the matter be remitted to Justice Singh for trial.
He submits in his motion that the Full Court by its decision that the matter be referred to the Chief Justice for a judge to be assigned to conduct a pre-trial review, “is of itself a concession” that Justice Singh did in fact exercise powers of a pre-trial judge.
Against this background, Granger has said that his appeal has merit and is likely to succeed. He further says that for those reasons he should be allowed to mount his challenge, as if rejected, “I would suffer a grave injustice, I having no other recourse or refuge.”
Granger’s $2.6 billion lawsuit is against dailies— Stabroek News, Kaieteur News and the Guyana Times, which he says have all besmirched his character through letters published by communications specialist Christopher ‘Kit’ Nascimento.
In the action, Granger said that Nascimento accuses him of attempting to defy the will of the people in the March 2nd, 2020 Elections.