Dear Editor,
I refer to your headline in your July 6 edition, `High Court stops Clico subsidiary latest bid to access US$20m held in escrow.’ The headline is based on a statement from the Attorney General’s Chambers, which you published in full. In the statement the AG’s Chambers said that the court dismissed “a judicial review application filed on behalf of Clico Investment Bank Limited (CIB) application against the Registrar of Deeds” and that the court “barred the company from instituting further applications.”
The statement went on to say that CIB’s application is the fifth attempt to have the sum which was ordered by the court to be lodged with the Registrar of Deeds to be released to CIB. CIB alleges that it is entitled to these monies by virtue of contracts which were made with the then Bosai Minerals Guyana Services Inc. and Bosai Minerals Guyana Group Inc.
I have been involved in this series of matters since 2014, but the substantive court action was filed in 2009.
The main action, filed in 2009, was by Clico Life and General Insurance Company (South America) Limited (the plaintiff and a Guyanese company) against CL Financial Limited, First Citizens Bank and eventually our client, the Liquidator of Clico Investment Bank (all of whom are Trinidadian companies).
In 2009, Chief Justice (as he then was) Mr. Ian Chang, S.C. ordered (among other orders) that the money owed to Clico Investment Bank (CIB) be deposited with the Registrar of Deeds to hold until the hearing and final determination of the action. These were monies lent by CIB under two debentures to two Bosai companies. It should be noted that CIB was not then a party to the action. After it learnt in 2014 about the order made by Chief Justice Chang, CIB applied to be added as a party to the case as its financial interests were involved.
The trial of the substantive action culminated in the dismissal of the claim by Clico Life and General Insurance Company (South America) Limited in June 2019. The order permitting the Registrar of Deeds to collect and hold the monies from the Bosai companies that were owed to CIB was discharged.
One would have expected that the monies held by the Registrar would be seamlessly paid to their owner, CIB, as there was no longer a court order permitting the Registrar to hold on to monies that did not belong to her or the government. Nevertheless, the Registrar indicated that she required a court order to release the monies.
Clico Life and General Insurance Company (South America) Limited, appealed to the Court of Appeal, the order in the High Court dismissing its claim against CIB and the other parties. The appeal was dismissed in December 2022. From this time onwards, there has been no case of any kind in existence by anyone against CIB.
Having regard to the refusal of the Registrar to release the funds that did not belong to her or the government, CIB was forced to file a wholly new action in the High Court seeking an order for the Registrar of Deeds to pay the monies to CIB. The Registrar of Deeds, unusually, vigorously defended this action even though the money was not hers and belonged to CIB.
In October 2022, after the full and contested hearing, the High Court granted a final order authorising the Registrar of Deeds to pay to CIB the monies that were being held by the Registrar of Deeds that were paid by the Bosai Companies representing what they owed to CIB.
The monies were never released to CIB by the Registrar of Deeds despite the explicit discharge of the injunction that authorised her to hold the monies, despite the dismissal of the claim against CIB for that money, despite the explicit order of the High Court authorising her to do so and despite the dismissal also, in December 2022 of the appeal of the High Court orders between Clico Life and General Insurance Company (South America) Limited and CIB and others.
Since 1 January 2023, there were no orders of court, no laws of Guyana, no claims in court yet to be prosecuted and no appeals that could later result in a reversal of the fact that the monies owed by the Bosai Companies to CIB should have been paid to them. Yet, no monies were paid, despite demands to the Registrar of Deeds. Each application to the court against the Registrar for the monies held by her, which is the property of CIB, has been opposed by the Attorney General on procedural grounds, not on the basis that the monies do not belong to CIB, or to a party other than CIB. Justice Naresh Harnanan and now, Justice Navindra Singh, have upheld these procedural arguments. In the meantime, the Registrar refuses to pay over monies at the request of CIB, the owner of the monies, even though there is no court order in existence allowing her to do so and the original court order that required the monies to be deposited with her has long been discharged.
CIB will appeal this most recent decision.
Yours faithfully,
Nikhil Ramkarran
