MASERU — Justice John Lyons, an Australian judge seconded to Lesotho by the Commonwealth, has a controversial past.
At his appointment to head Lesotho High Court’s Commercial Court in January 2010 Justice Lyons was described as a commercial law expert of impeccable reputation who had served with distinction in The Bahamas and Fiji.
But what was not mentioned in his résumé is that the judge had left the Bahamas Supreme Court in May 2008 under a dark cloud.
The Lesotho Times can reveal that Justice Lyons’ stint in The Bahamas ended after revelations of a contentious decision he had made in a civil case before him in 2007.
Justice Lyons is alleged to have appointed an accountant whose sister he was allegedly dating to investigate the financial status of two brothers involved in a civil case before him.
The case involved two wealthy brothers who were fighting over US$100 million.
To help shed some light on the quantum of the amount in dispute it was decided that an accountant should be appointed to conduct a forensic audit into the brothers’ financial status.
It was at this point, in October 2007, that Justice Lyons allegedly pushed for the appointment of Daniel Ferguson as an accountant.
It later emerged that Ferguson was actually a brother to Shonel Ferguson, a woman Justice Lyons was said to be dating at that time.
Shonel Ferguson is a former Olympian who at the prime of her career was The Bahamas’ field and track champion.
Daniel Ferguson made a fortune from that job, pocketing a staggering US$6 million (M49.8 million) for a report that another judge would later describe as “insufficient”.
He charged US$1 000 (M8 300) per hour and claimed he had spent 50 hours per week on the case.
The feuding brothers were the ones paying his colossal bills.
And as if his controversial appointment was not enough Daniel is said to have also hired Shonel, Justice Lyons’ alleged girlfriend, to help on the contract and reportedly paid her US$500 per hour.
The scandal only came to light in March 2009 when Daniel Ferguson’s report was brought before the court.
By that time Justice Lyons had already recused himself from the case in September 2008, claiming he “did not have enough time” to hear the matter.
After his recusal the case was handed over to fellow Justice Anita Allen.
It was Justice Allen’s sensational judgment that threw details of Justice Lyons’ “more than friendship” relationship with Daniel Ferguson’s sister into the public domain.
In her judgment Justice Allen said she “had serious concerns about the appointment of the accountant (Daniel Ferguson) and, as a consequence, the integrity of the report”.
Justice Allen said a transcript of the conversation Justice Lyons had with the lawyers involved in the case to discuss the appointment of an accountant showed that the judge had pushed for Daniel Ferguson’s appointment.
“Mr Justice John Lyons had literally forced the appointment on them (lawyers), threatening to walk out of the court if they did not agree with the appointment,” Justice Allen said.
“The transcript of October 11, 2007 is replete with references to the judge (Justice Lyons) threatening to leave the case if the appointment (Daniel Ferguson’s) was not agreed and, at one point, got up to leave when counsel begged him to have a
seat. The judge was asked by one counsel if it was an ultimatum, to which he responded ‘you bet it is’.”
“On the first day of the hearing before me, the accountant was asked and denied that he had a social relationship with Senior Justice Lyons.
“On the second day of cross examination, he was asked whether a relative of his had any relationship with Senior Justice Lyons to which he responded that he didn’t get into his sister’s business, but he knew she and the judge were friends.
“He also admitted that she was part of the team employed by him to do the work,” Justice Allen explained.
She said it was at this point that she made the connection between the accountant and information in the public domain that Justice Lyons had “more than a friendship with a woman, who up to that point I did not know was the
Daniel Ferguson’s competence also did not escape Justice Allen’s criticism.
The judge said when Justice Lyons gave him the lucrative contract Daniel Ferguson participated in only two “forensic accounting exercises in his career” and that was before he even qualified as an accountant.
So inadequate was his experience that he had “to read up on the subject after his appointment to understand his engagement”.
In the hearing Daniel Ferguson had admitted that the only skilled members of his team “were himself and a part-time accountant”.
Justice Allen said his report was not “sufficiently thorough and complete to provide much assistance to the court”.
In the uproar that ensued Justice Allen’s scathing judgment the former Attorney General of The Bahamas, Tennyson Wells, called on the prime minister to investigate Justice Lyons’ actions “in order to restore confidence in the judiciary”.
Wells was reported to have said he believed “the PM is duty bound to cause an investigation to be taken with a view to having that particular judge (Justice Lyons) removed for cause. Otherwise the judiciary will be made a laughing stock”.
Media reports said a few weeks after Justice Allen’s judgment Justice Lyons tendered his resignation to Chief Justice Sir Burton Hall.
The reports say he tendered his resignation on May 7 2009 and proceeded on a 12–week pre-retirement leave.
On August 1 he ended his role as a senior judge on The Bahamas’ Supreme Court.
This paper could not however ascertain if his decision to resign had anything to do with the Daniel Ferguson debacle.
Nor was it possible to get any record of the judge ever refuting the allegations raised by Justice Allen.
Tropiktv, a television network, reported that the chief justice had written to Justice Lyons “asking him to show cause why he should not be removed as a Justice of the Supreme Court under Article 96 of the Bahamas”.
Article 96 of the constitution says a judge can be removed for “inability or misbehaviour”.
An editorial published in The Punch, the biggest circulating tabloid in the country, on May 11, 2009 criticised Justice Lyons’ performance as a judge.
The paper said although he had initially showed zeal to reduce the backlog of cases the judge had later became part of the problem.
“Lawyers tell how he began to act strangely. He developed mood swings. One day he was charming and witty. The next, he’d switch to being bad-tempered and mean-spirited,” the paper said.
On the Daniel Ferguson fiasco The Punch said the affair “smacked of conflict of interest and pillow-talk”.
The judge, the paper said, “was obliged to take the honourable course of actions and resign”.
“He deserves credit for going gracefully. He could have forced officials to compel him to quit in disgrace in a blaze of bad publicity,” said the paper, adding that “So, he had to go. Lawyers are happy”.
Justice Lyons could not be reached for comment as he was said to be on vacation.
The Registrar of the High Court and the Court of Appeal, ’Mathato Sekoai, was not answering her phone.
This paper yesterday tried to reach her 14 times without success.