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.
