Jordan asks Court to dismiss lawsuit against him over BK land sale

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Former Finance Minister under the previous APNU/AFC Government, Winston Jordan has filed an application asking the High Court to dismiss a lawsuit filed against him by the Government over the sale of lands to BK Marine Inc.

Attorney General and Legal Affairs Minister, Anil Nandlall, SC, on behalf of the Government is seeking to repossess the lands stating that BK Marine breached contractual obligations.

However, Jordan, through Roysdale Forde, SC, is seeking to have the lawsuit dismissed on the ground that it discloses no cause of action and is misconceived.

The former Government Minister is further asking that the lawsuit be dismissed as an abuse of process, as it is politically motivated and actuated by bad faith, vindictiveness, spite and constitutes an abuse of power, is frivolous and vexatious, and or scandalous.

Apart from Jordan and BK Marine Inc, former Head of the National Industrial and Commercial Investments Limited (NICIL) Colvin Heath-London, and the Registrar of Deeds have also been listed as defendants in the proceedings filed at the High Court in Demerara.

In addition to a court order to repossess the lands, the Attorney General has claimed damages in excess of $300 million against Jordan, Heath-London, 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 damage suffered as a result of a breach of fiduciary duty.

Nandlall is further claiming damages in excess of $100 million for misfeasance in public office committed by Jordan. Another $100 million in damages is also being claimed for loss and damages suffered as a result of fraud allegedly committed by Jordan and the other defendants.

In a Statement of Claim, Nandlall is looking to have the sale of the lands at Water or Mudlots 1 and 2; Lot F of Mudlot 3 and Lots A, B and D, North Cummingsburg, Georgetown, declared illegal, unlawful, null, void, repugnant and contrary to public policy.

According to the Attorney General, the lands were first leased to Brian Tiwarie, the owner of BK International Limited, on December 4, 2006, by NICIL. There were certain conditions upon which the 20 years’ lease was granted with the option to purchase for $110 million which was conditional.

BK Marine Inc 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.

BK Marine Inc failed to complete the works and as such lost the option to purchase the property. Moreover, BK Marine Inc had agreed to pay an annual rent of $10 million with monthly instalments of $833,333 plus tax commencing immediately upon signing. It was also required to pay all rates and taxes.

Nandlall in court documents deposed that as of March 2017, BK Marine Inc 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 Inc wrote NICIL in 2010 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. But this too was conditional; BK Marine had to settle the arrears of the lease payment among other obligations. 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, 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,” he contended, adding that the management of NICIL, “…acted recklessly and without obtaining a Certificate of Value for the property in order to ascertain the current market value,” argued Nandlall.

As such, the Attorney General wants the court to declare that BK Marine Inc was unjustly enriched of approximately $5 billion which is the true representation of the value of the property. Among other things, he is also seeking to have the transport for the lands set aside.