Appeal case over judgment awarded to dismissed NBS CEO continues

Dec 20, 2021 News

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Kaieteur News – Last week, the Court of Appeal resumed hearing the case by which the New Building Society (NBS) is challenging the decision of a High Court judge to rule in favour of and grant a judgment award to its dismissed Chief Executive Officer (CEO), Maurice Arjoon.
During the hearing, held on Thursday, High Court Judge Franklyn Holder joined the appeal bench to hear the arguments between NBS’ lawyer, Pauline Chase and Senior Counsel Edward Luckhoo, who is representing Arjoon in the matter.
Justice Holder replaced Appellate Judge, Dawn Gregory who had previously recused herself from the matter. Gregory had presided over the case in the High Court and expressed reservation in dealing with the appeal. Arjoon and the mortgage financing institution have been locked in a court battle for over 12 years now. The court case came about after the former CEO filed a lawsuit challenging the grounds by which he was dismissed from his job.

Arjoon and two of his managers were fired on allegations of fraud in relation to a multimillion withdrawal made from the account of Bibi Shamina Khan a member of the society at the time. The men endured negative publicity, as well as a trial in the Magistrate Court, before they were cleared of the charges.
An Ombudsman’s report had later confirmed Arjoon’s contention that he was framed for refusing to lend some $2B of NBS’ money to the Bharrat Jagdeo- led government for the construction of the Berbice River Bridge. Arjoon and another manager (Kent Vincent) then turned around and filed separate lawsuits suing the institution for wrongful dismissal. Arjoon’s matter dragged on for more than six years in the High Court before the Court eventually granted a $79M judgment in his favour. However, the matter did not end there, as the NBS appealed the Court’s decision to pay Arjoon.
That matter came up last Thursday as Chase; the lawyer for NBS continued her oral arguments that Arjoon’s dismissal was justifiable. The contentions were however, fiercely rebutted by Arjoon’s attorney Mr. Luckhoo, SC. Chase told the court among other things that the former CEO was liable for negligence and serious misconduct in regard to the alleged fraud that occurred at the mortgage institution back in 2007.
The lawyer told the Appeal Court bench, which also consisted of Chancellor of the Judiciary, Justice Yonette Cummings Edwards, and Justice of Appeal, Rishi Persaud, that based on the records Mr. Arjoon was liable of dereliction of duty. She noted that Arjoon was the highest ranking official at the time when the alleged fraud took place at the institution. According to the lawyer, “if Arjoon had run a tighter ship,” the incident could have been avoided”.
Chase noted that “NBS set out rules and procedures which the respondent [Arjoon] did not follow. If he followed them it was not likely that the loss would have occurred.
It was the responsibility of the respondent, as the highest ranking official, to ensure that those rules were followed,” she added.
Chase noted that somehow the trial judge, Brassington Reynolds, in his ruling “found that NBS had established no rules for withdrawal. That is against the weight of the evidence.” “It is our respectful submission that the judge erred in this regard,” posited Chase.
As she continued her arguments, the lawyer pointed to the liability of Mr. Arjoon in the entire incidence. She noted that as head of the institution, Arjoon was supposed to hold those below him accountable. “It was a series of transactions… there were a series of breaches and if he relied on his junior staff it was to his own detriment,” she said.
As part of her submissions, the lawyer referenced the Termination of Employment and Severance Pay Act (TESPA), which provides inter alia, for the employee termination on the basis of serious misconduct. Under this law, Chase contended that the company or agency is not entitled to pay the dismissed employee any benefits or severance pay.
However, in response to Chase, Attorney for Arjoon, Mr. Luckhoo, SC told the court that based on the submission led by the lawyer, no consideration was given to the evidence in the matter. He noted that the evidence of the appellant (NBS)’s witness established that there was no misconduct on the part of Mr. Arjoon. In fact, Luckhoo noted that the Society’s witness Mr. Raja Ram- an internal auditor established that Mr. Arjoon complied with all the rules, systems and procedures of NBS. Mr. Luckhoo emphasised that in the view of that witness the withdrawal by Bibi Shamina Khan was legitimate, and the Power of Attorney was registered at the deeds registry and executed before the Guyana consulate in Toronto. “There was no evidence that Bibi Shamina Khan had not executed the Power of Attorney.” Luckhoo stated.
The lawyer posited that “In the circumstances, the findings by Justice Reynolds, that there was no misconduct on the part of the respondent were correct. Any other findings would have been perverse!” As such, Mr. Luckhoo said the NBS challenge to the calculation of the pension entitlement of Mr. Arjoon was misconceived. He noted too that no calculation was made to the High Court.
He noted that: “The custodian, trustee and managing trustee were all parties to the proceeding and never challenged the respondent’s evidence. Toward the end of the hearing, the attorney promised to further develop on his submission by the next date by directing the court to the evidence which the appellant failed to address. The matter will continue on January 17, 2022.

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