Attorney General (AG) Anil Nandlall SC has said that if it has to, government will go all the way to the Caribbean Court of Justice (CCJ) to appeal the Full Court ruling, dismissing the action it had filed against former Finance Minister Winston Jordan and BK Marine Inc., over the controversial sale of prime riverfront property.
The Court had said that the AG was attempting to have the State meddle in a matter it had no business being a part of, as the transactions at the centre of the litigation were purely contractual between companies, and had nothing to do with the government.
On this point, the Court said that the properties at the centre of the dispute did not even belong to government and that Nandlall was therefore misguided in his bid to substantiate government’s right to have brought the action.
To this end, Justices Jo-Ann Barlow and Sandil Kissoon who presided over the matter in the Full Court, threw out the case, stating among other things, that the AG had misapplied established legal principles in his bid to involve the State.
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. Nandlall had wanted the Court to declare an agreement of sale between BK Marine and the National Industrial and Commercial Investments Limited (NICIL) to be illegal.
The AG sought to have the Court declare that BK Marine had been “unjustly enriched” in the sum of approximately $5 billion, which he contended was 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.
In his weekly Facebook programme—Issues in the News—Nandlall announced that steps are already being taken to challenge the ruling before the Guyana Court of Appeal and all the way to the CCJ if need be.
Nandlall, who is also Minister of Legal Affairs, said that he is of the view that the Full Court erred in its findings, and that its decision is therefore, “wrong in law…and must be appealed.”
He has signalled government’s intention and what he said is a commitment to pursue the matter all the way to Guyana’s final appellate court—the CCJ.
Nandlall sought to explain to his viewers that the case is one in which the State had vested “a very expensive piece of real estate” into one of government’s holding companies (NICIL).
He said that government is the “exclusive and sole shareholder” of NICIL.
He said that NICIL then decided to sell governemnt’s property, it had vested in it, for a mere $200 million, though it is valued at some $8 billion. He had previously given that value to be three billion dollars less.
Nandlall said that NICIL accepted from the purchaser (BK Marine) $100 million; though the purchase price was $200 million—a fraction of the real value of the property.
He said that the Title which was subsequently passed, was done “free from all encumbrance”, adding that that Title stated that it had been passed, “free from all monies owed.”
He said that what this in other words means, is that “the buyer gets a clean Title for paying half of the agreed purchase price,” even as he reemphasised that that was a mere fraction of the true value.
On this point, Nandlall said that when he as Attorney General—who represents the government—filed the suit, having felt that it had been defrauded its property, “the courts are telling the Attorney General and the government,” that both are meddling.
He continued, “imagine government property, being sold recklessly, negligently, fraudulently and when government goes to the court to say look my property has been sold fraudulently for a minute fraction of its real value, the Court tells the government, you are meddling.”
The Minister of Legal Affairs said he does not know by what principle of law that is justifiable.
On this point he has vowed to pursue the matter “to the very end,” stating that it will “travel the long journey to the Caribbean Court of Justice.”
An impassioned Nandlall told his viewers that NICIL does not belong to the category of a “regular company” that can dispose of its assets; but that the goevernment by law, under the Public Corporations Act, retains that power, through the Minister of Finance to dispose of property vested in NICIL.
“There was no Cabinet decision authorising Jordan to act,” Nandlall said, before going on to add, “the government in my respectful view, has every right to sue the company, the Directors, the Minister of Finance as well as the person who bought.”
The AG said that without even hearing his case, the Court throws out the actions and describes the government as being a meddler.
In its ruling, the Full Court had said that the properties no longer belonged to the State but rather a company.
Nandlall had urged the Court to find that the Attorney General’s constitutional and other legal mandate to dispense with matters for and on behalf of the State include property vested in a company.
The Court said, however, that to find such a power residing in the Attorney General is to stretch to limits that it cannot countenance, the principles enunciated in the case of Florencio Marin v. The Attorney General of Belize and the long-established concept of a company having a separate legal persona from its owners.
Nandlall sought to rely on the Marin case, but the Court said that that case could be distinguished from Nandlall’s action; and therefore, it could not support his contention.
The Full Court pointed out that in the Marin case, the properties were owned by the State; a factor which it said was not present in Nandlall’s challenge.
The Full Court’s ruling was an affirmation of the previous ruling of Justice Brassington Reynolds who also threw out the case, finding that the Attorney General had no standing in the matter.
In February of 2021, Nandlall had initiated proceedings against Jordan, BK Marine, Colvin Heath-London, in his capacity as former Chief Executive Officer (ag) of NICIL, and NICIL itself.
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.
