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September 14, 2022

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Finding that the Attorney General was not the proper party to have brought the action against former Finance Minister Winston Jordan over the controversial sale of river frontage to BK Marine, High Court Judge Brassington Reynolds yesterday threw out the case.

In his ruling, Justice Reynolds noted that while ordinarily the Attorney General (AG) could have instituted a claim for misfeasance in public office, he did not in the instant matter, satisfy the elements of the tort.

Further, the Judge found that the causes of action relied upon by the AG were, on the pleadings and the affidavit in support, misconceived.

In the circumstances after referencing a plethora of cases, the Judge noted that the claim constituted an abuse of the court’s process and resultantly struck it out.

Costs were then awarded to Jordan and BK Inter-national (the Defendants), in the sum of $2M each.

National Industrial and Commercial Investments Limited (NICIL) was also listed as a defendant but took no active part in the litigation and incurred no cost. In the circumstances, no award was made to it.

Senior Counsel Edward Luckhoo who represented BK had argued that as a shareholder of NICIL, the AG was not entitled to lay or assert claim to property not held in title or ownership by the State and over which the Claimant (the AG) has no property, right or title to advance in contradistinction to or in substitution to the claims of the title-holder.

Senior Counsel further argued that the AG’s claim was misconceived and amounted to an abuse of the process and improper, since it is only NICIL which could claim restitution of title or ownership in and to the said property and not the State.

Back in February of 2021 Attorney General Anil Nandlall SC lodged a claim seeking to overturn the contentious sale which according to him should have been valued at $5 billion but was sold to BK for a fraction of that figure.

Nandlall had wanted the court to declare the Agree-ment of Sale between BK Marine and NICIL, illegal, unlawful, null, void, repugnant and contrary to  Public Policy.

The properties at the centre of the action are those situated at Mud lots 1 and 2, Lot F of Mud lot 3 and Lots A, B and D, North Cummingsburg, George-town held under Transport No. 634 of 2020, which Nandlall was also hoping the Court would have declared as being unlawfully obtained.

In his motion to strike, attorney Roysdale Forde SC who represented Jordan, had argued that contrary to Nandlall’s advancements, Jordan never acted in breach of any fiduciary duty, nor did he ever act in collusion with the other defendants, or negligently signed the Vesting Orders.

The lawyer had argued that his client acted in accordance with Section 8 of the Public Corporations Act which provides, “the Minister, may by order, transfer to a corporation or to any other person, or place under its or his control the whole or part of (a) any undertaking or any other property of any corporation or any other person or other body corporate owned by the State or in which the controlling interest is vested in the State or any agency on behalf of the state.”

Forde had argued that the only duty laid upon his client as the Minister with responsibility for Public Corporations was to sign the necessary Vesting Order after Cabinet approval had been granted; while stating that it was never his responsibility to exercise any judgement or make any assessment as to the terms of any sale, or the nature and extent or suffering of any sale of State assets.

He further contended that his client was never part of the negotiations and decisions made or entered into between BK Marine and NICIL.

Among other things, Nandlall wanted the Court to declare that BK Marine Inc has been “unjustly enriched” in the sum of approximately $5B which he averred is the true representation of the value of the property in question and wanted an order for restitution to the state of the property and for BK Marine do deliver up possession of it.

Forde’s position was that the action brought by the AG was “politically motivated, indicative of political harassment and persecution” over the March 2nd, 2020 general and regional elections.

NICIL had defended the deal, saying that the Water Street property sold to BK International days before the March 2nd general election had been won through a bid by the company over a decade ago but was subsequently tied up in a court battle and resolved since 2017.

NICIL’s claims were backed up by former Privatisation Board member Lincoln Lewis, who told Stabroek News, “What the coalition government has done is complete what the PPP government started – but for whatever reason failed to do, in moving to give legal transfer to the owner.”

Following the change in government in 2020, NICIL is now under new management.

NICIL had said in 2020 that it became the owner of Mud Lots 1 and 2, Cummingsburg, Georgetown via Transport No. 530 of 1947; Lot ‘F’, a portion of Mud Lot 3 three; and Lots ‘A’, ‘B’ and ‘D’ portions of North Cummingsburg, Georgetown through Vesting  Order No. 43 of 2003 and 42 of 2003 .

“On December 4, 2006, a lease agreement was entered into between NICIL and BK Inc for a period of 20 years with an option to purchase anytime during the lease period. The purchase price was set at one hundred and ten million Guyana dollars. The option to purchase was contingent on the Lessee obtaining approval from the Mayor and City Council for its intended construction works. This Agreement was signed by former Head of NICIL, Winston Brassington and BK Inc. and witnessed by Marcia Nadir-Sharma,” NICIL explained in the press release in April of 2020.

“On November 19, 2009, BK Inc. exercised its option to purchase and ceased paying rent. NICIL rejected the offer to purchase. In June 2013, NICIL began legal proceedings against BK Inc. to recover the outstanding rent and the accrued interest. This matter engaged the attention of the Court from 2013 to 2017.  Sometime during 2017, BK Inc. submitted an amended offer. In August 2017, the matter was set down by the court pending settlement. In October 2017, NICIL made a counter offer to BK Inc. that included the original purchase price, all outstanding rent, and 50% of the accrued interest. BK Inc accepted the counter offer,” it added.

In October 2019, NICIL said that it received approval, following which the Vesting Order was prepared, signed and gazetted.

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Lawsuit to repossess river frontage: ‘Most shocking decision I have ever witnessed’ – AG on court’s decision

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Attorney General Anil Nandlall

Describing it as “one of the most shocking decisions I have ever witnessed in my brief career at the Bar”, Attorney General and Legal Affairs Minister Anil Nandlall, SC, has signalled his intention to appeal the decision of High Court Judge Brassington Reynolds to strike out his action to repossess river frontage sold to BK Marine.

Back in February of this year, Nandlall, on behalf of the Government, had filed a Statement of Claim (SoC) seeking to overturn the controversial sale of the plot of land to BK Marine which was made under the previous A Partnership for National Unity/Alliance For Change (APNU/AFC) Government.

BK Marine is a subsidiary of BK International, which is owned by Brian Tiwarie.

Apart from BK Marine, the other respondents were Finance Minister under the APNU/AFC Government, Winston Jordan; the National Industrial and Commercial Investments Limited (NICIL); NICIL’s former Head, Colvin Heath-London and the Deeds Registrar. But the latter three did not partake in the litigation.

Justice Reynolds on Tuesday dismissed the SoC 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 law, the High Court Judge held that the pleadings in Nandlall’s Affidavit in Support were misconceived, and, therefore, ruled that the Claim was an abuse of the court’s process, before striking it out. As such, he awarded costs in the sum of $2 million each to Jordan and BK Marine.

Dissatisfied with the entirety of the Judge’s ruling, Nandlall on Tuesday said he would file an appeal against it before the six-week stipulated timeframe. BK Marine was represented by Senior Counsel Edward Luckhoo.

Jordan had asked for the Claim to be dismissed on the ground that it discloses no cause of action and is misconceived. The former Government Minister had also asked for the lawsuit to be thrown out as an abuse of the court’s process, as it is politically motivated and actuated by bad faith, vindictiveness, and spite and constitutes an abuse of power, was frivolous and vexatious, and/or scandalous.

In addition to a court order to repossess the lands, the Attorney General had claimed damages of more than $300 million against Jordan and NICIL for loss and damages suffered as a result of negligence and/or breach of the duty; loss and damages suffered as a result of conspiracy and/or breach of the duty; and loss and damages suffered as a result of a breach of fiduciary duty. He had further claimed damages in excess of $100 million for misfeasance in public office committed by Jordan. He had also claimed another $100 million in damages for loss and damages suffered as a result of fraud allegedly committed by Jordan and the other respondents.

Nandlall was seeking to have the sale of the lands at Water Street or Mudlots 1 and 2; Lot F of Mudlot 3 and Lots A, B and D, North Cummingsburg, Georgetown be declared illegal, unlawful, null, void, repugnant and contrary to public policy.

According to the Attorney General, the lands were first leased to Tiwarie, the owner of BK International Limited, on December 4, 2006, by NICIL. There were certain conditions upon which the 20-year lease was granted with the option to purchase for $110 million which was conditional, he had said in the lawsuit.

BK Marine, he explained, was required to construct works of an investment plan within four years of approval by the Georgetown Mayor and City Council.

For US$6 million, the works were scheduled to be done within 12-36 months, and some 300 persons were to gain employment at the end.

But BK Marine, Nandlall submitted, failed to complete the works and as such, lost the option to purchase the property. Moreover, he said BK Marine had agreed to pay an annual rent of $10 million with monthly instalments of $833,333 plus tax commencing immediately upon signing, and all rates and taxes.

Nandlall, in court documents, had deposed that as of March 2017, BK Marine had owed $81,360,158 in lease rental fees, interests included. Another $6,372,156 was owed for property taxes. According to Nandlall, BK Marine had written NICIL in 2009 claiming that its breach of the lease agreement was a result of the global financial crisis, and requested an amendment to the business plan.

In October 2011, NICIL agreed to transfer the property to the company at the sale price of $110 million once the revised business plan was completed, Nandlall added. But this too was conditional; BK Marine had to settle the arrears of the lease payment among other obligations. He had deposed that the purported Deed of Amendment was never executed and in 2013, NICIL sued BK International after it remained in possession of the lands without paying the agreed rental fees.

However, after the change of Government in 2015, rather than pursuing the claim for arrears or terminate the lease agreement for breaches, the Attorney General pointed out, NICIL under the APNU/AFC Administration went ahead and sold the property to BK Marine in 2017. The sale price was $202,602,759.

“The property was sold at a gross undervalue and way below market value in relation to comparable and competitive facilities of a similar nature, form, and usage which was sold consistent with the market value,” Nandlall had contended.

According to him, “NICIL acted recklessly and without obtaining a Certificate of Value for the property in order to ascertain the current market value”.

Considering this, the Attorney General had asked the High Court to declare that BK Marine was unjustly enriched by approximately $5 billion, which is the true representation of the value of the property. Among other things, he was also seeking to have the transport (Transport No. 634 of 2020) for the lands set aside.

Meanwhile, at the Georgetown Magistrates’ Courts, Jordan is facing a criminal charge for misconduct in public office over the sale of those same lands to BK Marine. He has been released on $3 million bail pending the hearing and determination of a trial. He was first arraigned before a Magistrate on December 28, 2021.

Demerara_Guy

Misconduct case against Winston Jordan to continue on Oct. 31

Sep 16, 2022 News --- Source -- https://www.kaieteurnewsonline...-continue-on-oct-31/

Kaieteur News – On Wednesday, submissions were made to the court in the misconduct in public office charge against former Finance Minister, Winston Jordan. Jordan’s matter is being heard in the Georgetown Magistrates’ Court before Senior Magistrate Leron Daly and is scheduled to continue on October 31, 2021.

Former Finance Minister, Winston Jordan

The former Minister had made his first court in December 2021, before Chief Magistrate, Ann McLennan in the Georgetown Magistrates’ Courts for allegedly selling a State wharf below its market value. Jordan was slapped with a misconduct in public office charge which alleges that while 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 July 31, 2020 at Main Street, Georgetown, he willfully misconducted himself.

It is further alleges that the former minister acted recklessly when he signed NICIL Order, No. 50 of 2020, transferring to and vesting in BK Marine Inc., Mud lots situated at North Cummingsburg, Georgetown, being over 2.553 acres, by paying $20,260,276, for a property valued over $5B and being sold at a price that was grossly undervalued to such a degree as to amount to an abuse of the public trust and without reasonable excuse or justification.

The former Minister was not required to plead to the indictable charge after it was read to him. The charge was brought against him by the Special Organised Crime Unit (SOCU), an arm of the Guyana Police Force (GPF). The Chief Magistrate had granted bail in the sum of $3 million and the matter was adjourned to earlier this year.

However, when the matter was called in April, last, the Chief Magistrate recused herself from the matter due to personal reasons and as such, she had reassigned the matter to Principal Magistrate, Sherdel Isaacs-Marcus. Similarly, the Principal Magistrate also recused herself from the matter and the case was sent back to the Chief Magistrate. The Chief Magistrate McLennan reassigned the matter to Senior Magistrate, Leron Daly who later accepted the case.

Jordan was first arrested on December 2, 2021 and later released on bail for a series of allegations relating to transactions of public funds and state properties, estimated to value billions of Guyana dollars.

According to the police, the first transaction that he was interviewed about is in relation to the alleged sale and vesting of the state’s largest wharf facilities located at Kingston, Georgetown, valued approximately US$40,000,000 but was reportedly sold for US$500,000. It is alleged that the purchaser BK Marines Inc., only paid US$100,000, which is 10 percent of the purchase price, and Jordan issued a vesting order passing Title to the purchaser, without the payment of any further sum of monies.

It was further stated that 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. Also, the transport was subsequently reportedly issued for the property and the value stated on the transport was US$2,000,000. It was noted however, that the agreement of sale stated that title must only pass upon full payment of purchase price. The police also reported that investigators have evidence to establish that a facility which is a mere fraction of the size of the state property that is under investigation and located seven miles upriver was sold by a private company for US$17 million.

Demerara_Guy

Issues are unfolding and they will be in clearer focus as time progresses.

@Mitwah posted:

D-G,  how did airfawn 19 fraud charges unfolded and just disappeared into thin air?

Mitwah -- Take your time to research the issues -- or in other words -- take your time to peel the pine.  

Demerara_Guy
Last edited by Demerara_Guy

Winston Jordan’s misconduct case rescheduled to Oct 31 after prosecutor a no-show

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Former Finance Minister Winston Jordan at the Georgetown Magistrates' Court

Senior Magistrate Leron Daly was forced to reschedule former Finance Minister Winston Jordan’s misconduct in public office case after no prosecutor from the Special Organised Crime Unit (SOCU) showed up in court last week Wednesday. The matter has been adjourned to October 31. The former Minister was granted bail in the sum of $3 million when he initially appeared at the Georgetown Magistrates’ Courts on December 28, 2021.

It is alleged 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 NICIL (Transfer of Property) Order No 50 of 2020, which was published in the Official Gazette, transferring to and vesting to BK Marine Inc, absolutely, all buildings, erections, stellings, platforms, and further appurtenances, that is to say, Mudlots 1 & 2, F of Mudlot 3, A, B & D, situated at North Cummingsburg, Georgetown, being over 2.553 acres, for payment of $20,260,276 for the property valued over $5 billion.

It is further alleged that the property being sold at a price that was grossly undervalued to such a degree amounts to an abuse of the public’s trust without reasonable excuse or justification.

Jordan was arrested by SOCU, an arm of the Guyana Police Force that specialises in white-collar investigations, on December 3, 2021, as part of investigations into alleged instances of corrupt governmental transactions between 2015 and 2020.

BK Marine, SOCU said, had only paid 10 per cent of the purchase price, that is, $20 million, and Jordan went ahead to issue a vesting order, passing the title to the purchaser without the payment of any further sum of monies.

According to SOCU, 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.

It said that the transport was subsequently issued for the property and the value strangely stated on the transport was $400,000,000. Further, SOCU said that the agreement of sale stated that the title must only pass upon full payment of the purchase price.

However, SOCU contended that investigators have evidence to establish that a facility that is a mere fraction of the size of the State property under investigation, located some seven miles upriver, 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 Anil Nandlall, SC, 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 this 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 week, 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 law, 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 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 has signalled his intention to appeal the decision of the High Court Judge.

Demerara_Guy

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