Attorney General (AG) Anil Nandlall has moved to appeal the decision by Justice Brassington Reynolds to throw out a case against former Finance Minister Winston Jordan and BK Marine over the controversial sale of riverfront property.
In a Notice of Appeal to the Full Court, Nandlall is asking that Reynolds’ decision be “set aside, reversed and vacated” and that an order to that effect be made. “The learned Trial Judge’s decision is contrary to the interest of the administration of justice as it is unfair and/or unreasonable,” Nandlall states among the grounds for his appeal, which emphasise that no evidence was taken for the judge to reach some of the conclusions that he made.
Last February, Nandlall had initiated proceedings against Jordan, BK Marine Inc., Colvin Heath-London, in his capacity as former Chief Executive Officer (ag) of the National Industrial and Commercial Investments Limited (NICIL), and NICIL itself.
The properties at the centre of the proceedings are those located at Mud lots 1 and 2, Lot F of Mud lot 3 and Lots A, B and D, North Cummingsburg, Georgetown and Nandlall had wanted the court to declare an agreement of sale between BK Marine and NICIL to be illegal, unlawful, null, void, repugnant and contrary to Public Policy. As a result, he sought to have the Court declare that BK Marine Inc had been “unjustly enriched” in the sum of approximately $5 billion, which he contended is the true value of the property in question, and wanted an order for restitution to the state of the property and for BK Marine to deliver up possession of it.
On September 13, Justice Reynolds found on a motion to strike 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.
The judge also found that the causes of action relied upon by the AG were, on the pleadings and the affidavit in support, misconceived. The Judge also declared that the claim constituted an abuse of the court’s process and resultantly struck it out.
Costs were awarded to Jordan and BK in the amount of $2 million each.
Among the 18 grounds listed in his appeal, Nandlall argued that the judge erred when he dismissed his Statement of Claim as an abuse of the court’s process and that he sought to make findings on the evidence when there were only pleadings before the Court on the substantive case and no evidence had yet been filed, and no evidence was taken from any of the witnesses to test the veracity of the witnesses and weighing of the evidence.
“The causes of action of negligence, conspiracy, misfeasance and fraud are all required to be specifically pleaded, particularized and proved as a matter of law. Therefore, the Learned Trial Judge erred and misdirected himself in law when he summarily dismissed these causes of actions, thereby depriving the Appellant of the opportunity of proving any of these causes of action,” he added.
According to Nandlall, the judge misdirected himself in law when he found that he did not meet the very high standard required to prove misfeasance in public office when he failed to test any evidence to determinate whether the Claim had merit or not. “The Learned Trial Judge erred and misdirected himself in law when he found that the Appellant failed to prove that there was dishonest motive, bad faith and that the [Jordan] gained financial benefit when the case of the Claimant was not premised on financial benefit and this could not be ascertained when absolutely no evidence was taken for such as determination to be made,” he added.
He said, too, that judge erred when he found that the AG could not avail himself of the assertion that there was an intention of conspiracy between BK Marine and Jordan, when Jordan later vested the property without receiving the balance of the purchase price but no evidence was taken on the issue of the conspiracy.
By failing to take evidence on the causes of action of negligence, conspiracy and fraud, Nandlall is arguing that the judge could not arrive at a conclusion that they were not established merely based on applications to strike out his Claim.
It is also the AG’s contention that the judge erred when the Court found there was no breach of a fiduciary duty by Jordan but failed to take evidence before arriving at this conclusion and also ignored the Caribbean Court of Justice’s ruling in the case of Florencio Marin v. The Attorney General of Belize on the issue of the fiduciary duty.
He further said the judge ignored the binding case law which established that the Attorney General always has standing to bring an action in misfeasance to recover financial loss suffered by the State as a consequence of wrongdoing in public office.
He is also contending that the judge failed to adhere to the established principle under the New Civil Procedure Rules that striking out a Claim is a draconian step that is rarely employed once on the face of the Claim there are issues to be ventilated.
On the issue of costs, Nandlall argued that the judge also erred and his decision was misconceived when he awarded costs against him in the sum of $2,000,000 each for Jordan and BK Marine with no proper assessment or basis for the award.
Under the former APNU+AFC government, NICIL had defended the deal, saying that the Water Street property sold to BK days before the March 2, 2020 general election had been won through a bid by the company over a decade ago but was subsequently tied up in a court battle.
