September 14, 2022
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.