Contending that the action brought by the State against former Finance Minister Winston Jordan over the controversial sale of river frontage to BK Marine, was politically motivated, attorney Roysdale Forde SC is seeking to have the case thrown out.
In court documents seen by this newspaper, Forde contends that the “action is indicative of political harassment and persecution” over the March 2nd, 2020 general and regional elections.
Last month, Attorney General (AG) Anil Nandlall SC lodged a claim in the High Court seeking to overturn the contentious sale which according to him should have been valued at $5b but was sold to BK for a fraction of that figure.
Nandlall wants the court to declare the Agreement of Sale between BK Marine and National Industrial and Commercial Investments Limited (NICIL), illegal, unlawful, null, void, repugnant and contrary to Public Policy.
The properties in question are situated at Mudlots 1 and 2, Lot F of Mudlot 3 and Lots A, B and D, North Cummingsburg, Georgetown held under Transport No. 634 of 2020, which Nandlall also wants the court to declare as being unlawfully obtained.
As a result, he wants the court to order the Registrar of Deeds to set the Transport aside.
Specifically, against Jordan, Nandlall wants the court to declare vesting Order No. 50 of 2020 which he had made under the Public Corporations Act and advertised in the Official Gazette on 28th March, 2020, as being unlawful and of no effect and incapable of effecting Transfer of Title to BK Marine.
BK Marine, Jordan, NICIL and its former acting Chief Executive Officer Colvin Heath-London have all been named defendants in the AG’s action.
In his motion to strike, Forde argues 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.
Forde said that his client all times acted in accordance with the law and at no time damaged the financial interest of the State.
The lawyer said 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 argues that the only duty laid upon his client as the Minister with responsibility for Public Corporation 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.
The lawyer argues, too, that his client was never part of the negotiations and decisions made or entered into between Bk Marine and NICIL.
According to Forde, the AG “is utilising the legal system to engage in a baseless, vile and unmeritorious, political witch-hunt” against his client, which he said is evidenced by his (Nandlall’s) “failure to institute legal proceedings in respect of persons or companies who acquired large plots of valuable land at highly undervalued prices and or against whom were the subject of investigations by the State Assets Recovery Agency now disbanded by the Attorney General’s party.”
Forde said that the action brought by Nandlall “is an abuse of process, frivolous and vexatious, scandalous and ought to be dismissed with costs. He further described the action as disclosing no a cause of action against his client and wholly misconceived.
In his application before the court, Nandlall wants 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.
He is also seeking an order for restitution to the state of the property and for BK Marine do deliver up possession of it.
Damages in excess of $100M are also being sought against Jordan, Heath-London and NICIL for alleged loss and damage suffered.
Nandlall is also seeking damages in excess of $100m from the same defendants for loss and damages suffered as a result of alleged conspiracy and/or breach of the duty of care.
Damages are also being sought in excess of $100 against Jordan for loss and damage suffered as a result of the alleged breach of fiduciary duty owed to the State of Guyana.
In April last year, NICIL had defended the deal.
It said 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.”
NICIL is now under new management following the March 2nd 2020 elections.
NICIL had said last year that it became the owner of Mud Lots 1 and 2, Cum-mingsburg, 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 last April.
“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.
