Former NBS CEO loses malicious prosecution appeal

Jul 27, 2018 News

The Court of Appeal yesterday dismissed an appeal, in relation to the judgment in the case of malicious prosecution filed against the State by former NBS CEO, Maurice Arjoon.
The ruling was delivered by Chancellor of the Judiciary, Justice Yonette Cummings-Edwards.
In 2007, Arjoon was among several persons charged with a $69 million fraud committed at NBS. He later moved to the High Court seeking damages after the case was dismissed against him for want of prosecution.
Following a drawn out legal battle with the bank, the former CEO secured a judgment of pension, which was for his outstanding pension and other benefits.
The CEO had long claimed that he and his Managers were set up and charged, after he refused to sink almost $2B of NBS money in the construction of the Berbice River Bridge. He therefore filed a case of malicious prosecution against the State. The Director of Public Prosecutions was named as a respondent.
In his statement of claim, Arjoon said that he was charged “maliciously and without reasonable or probable cause,” for which he was seeking special damages – $1,041,599 for loss of employment; $642,744 for loss of allowances; and $496,664 for loss of pension, all calculated for a period of 42 months during which he lost employment.
Arjoon was also seeking damages in excess of $50,000, for malicious prosecution and indictment for the charge of conspiracy to defraud as well as damages in excess of $50,000 for false imprisonment on or about July 1, 2007.
It was also pointed out that the virtual complainant in the NBS case, Bibi Khan, from whose account the money was allegedly withdrawn without notice, failed to attend court hearings.
She had appeared during the first PI, where she had given evidence but defence lawyers were later unable to complete their cross-examination of her.
Justice Cummings–Edwards noted in the case of malicious prosecution that the claimant (Arjoon) was required to prove four elements. She outlined that the claimant must first prove that he was prosecuted; the prosecution ended in his favour; the prosecution lacked reasonable and probable cause and the prosecution acted with malice.
The Chancellor clarified that malice in this context is more than ill-will, but rather, it meant improper purpose.
She noted too that of the entire aforementioned elements, the most critical point to prove is that the prosecution lacked reasonable and probable cause.
In reviewing the case, the Appeal Court Judge noted that the finding of fact by High Court Justice Dawn Gregory was taken into consideration.
In that regard, the Appeal Court highlighted the findings of Justice Gregory as it relates to the evidence presented in the case.
Justice Gregory had examined the fact that Arjoon was employed by the bank and was the authorized signatory for cheques and approval of such.
In view of the testimony, with regard to the procedures and systems, the Court found that the police might have had an “honest belief,” that there was evidence to bring the charges against Arjoon.
In this regard, the Court had noted that plaintiff failed to prove the prosecution lacked reasonable probable cause to charge.
The Court also could not find evidence of malice as it relates to the legal definition of the term.
In those circumstances, the Appellate Court dismissed the application to overturn the decision of Justice Gregory.
In 2013, Justice Gregory dismissed the $2 million lawsuit filed against government for alleged malicious prosecution by Arjoon, after she found that only two out of four limbs of malicious prosecution had been established.
Justice Gregory, during the delivery of her ruling, said that in reaching her decision she looked at several things, including letters, and some of the testimony given during the preliminary inquiry.
She said she was satisfied that there was a connection between the charges laid and the termination of Arjoon’s employment at the NBS.
The judge added that the case against Arjoon was based on circumstantial evidence and that the police had been advised by the Director of Public Prosecutions (DPP).
Towards the ending of the ruling, she indicated to Arjoon that she knew that the case meant a lot to him but she had to dismiss it for the reasons she had outlined.

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