— AG says in court documents, State moves to rescind purchase agreement, repossess prime lands vested to BK
By Richard Bhainie
LEGAL proceedings has been initiated by Attorney-General and Legal Affairs Minister, Anil Nandlall, S.C., on behalf of the State, to repossess a prime piece of property vested to BK Marine Inc. by the former A Partnership for National Unity + Alliance For Change (APNU+AFC) Government days before the March 2, 2020 elections.
Court documents seen by the publication lists BK Marine Inc., former Minister of Finance, Winston Jordan; former Chief Executive Officer (CEO) of National Industrial and Commercial Investments Limited (NICIL), Colvin Heath-London and NICIL as defendants to the matter.
The property situated at Mudlots one and two, Lot F of Mudlot three and Lots A, B and D, North Cummingsburg Georgetown, valued at approximately $5B, was offered for sale to BK Marine Inc. by former CEO of NICIL, Horace James, for the sum of $202,602,759.
Cognisant that only $20,260,276, a mere 10 per cent of the purchase price was paid by BK Marine Inc., the property was vested by Jordan by virtue of Vesting Order No. 50 of 2020 on March 28, 2020, during the ongoing elections fiasco.
The Attorney-General is contending that Jordan, in collusion and in conspiracy with NICIL, acted in a reckless and negligent manner in vesting the property, having full knowledge and being aware that BK Marine Inc. only paid 10 per cent of the undervalued purchase price.
And that on March 28, 2020 when the Vesting Order was issued, neither Jordan nor the government of the day had legal power and authority to do so and was acting unlawfully, committing a misfeasance in public office.
Further, Nandlall is contending that Jordan, Heath-London and the Registrar of Deeds, in conspiracy with each other, caused a transport to be passed, which reflected erroneously and fraudulently that $400,000,000 was paid and the said transport was vested free from all encumbrances.
Apart from this, there was a series of illegalities and breaches on the part of BK Marine Inc. in the agreement of lease.
In his Statement of Claim, the Attorney-General explains that the Government of Guyana is and was at all time the owner of the North Cummingsburg, Georgetown property by virtue of Transport No. 530 of 1947, and in pursuit of privatization, the property was transferred to NICIL in accordance with the privatisation process.
In furtherance of the process, Winston Brassington acting behalf of NICIL in 2006, leased the property to Brian Tiwarie on behalf of BK Marine Inc., for a term of 20 years, with an annual rent of $10 million plus Value Added Tax (VAT) subject to inflation.
The Agreement of Lease allowed BK the option to purchase the premises for the sum of $110 million subject to the condition that within four years of the Mayor and City Council’s (M&CC) approval of the construction plans, the scope of works shall be completed.
“If the date passes without substantial completion, then the option price stated in (c) above shall become null and void and the option price thereafter will be subjected to mutual agreement,” the agreement stated.
The Court documents states that BK Marine failed and/or neglected to fulfill the conditions precedent in the Agreement of Lease in order to be able to exercise the option of purchase, specifically the failure to substantially complete the scope of works, a beach of Clause One of the Agreement.
A letter of Demand Notice/Invoice for Account Due, dated March 20, 2017, sent by Horace James, former CEO of NICIL, to Esau Samad, Finance Controller, BK International Inc., indicated that the amount due owning and payable for lease rental by BK as at March 31, 2017 was some $81,360,158, a breach of Clause Two of the agreement.
The premises were supposed to be used for the purpose of operating a tourism/office/wharf facility, for the purpose of developing a state-of-the-art hotel with restaurant, shopping and office areas and other facilities.
However, the premises were utilised to house a Ready Mix Concrete Plant, a beach of Clause Four of the agreement.
In breach of Clause Five of the agreement, BK Marine Inc. failed to develop, construct and renovate the said property as a modern wharf facility, failed to execute the business plan he submitted and did not receive the express written consent of NICIL for the change in intended use of the premises.
In 2009, BK alleged that the breach of the Agreement of Lease and the Business plan was due to a ‘global financial crisis’ and requested an amendment to the Business Plan to have a stone depot and Ready Mix Concrete plan among other things on the said property.
A letter dated October 25, 2011 sent to BK Marine Inc. in respect of the Wharf at the premises, stated that NICIL would be willing to transfer the leased property at a sale price of $110,000,000 plus VAT on a conditional offer.
However, the agreement was never executed and the terms and conditions of the Agreement of Lease remained binding upon BK Marine Inc.; who failed again to comply with the conditions and a legal battle ensued in 2013, in which NICIL claimed the sum of $49,640,202 being rental due under the agreement.
After the change of government in 2015, on October 23, 2017, former CEO of NICIL, Horace James, wrote to BK International Inc. offering to sell the said property for the sum of $202,602,759, despite the breaches to the agreement.
“This act by the fourth name defendant [NICIL] was reckless, negligent, unlawful, in breach of fiduciary duty and constituted a fraud upon the shareholder thereby causing the said shareholder and by extension the State of Guyana to suffer loss and damage’ the Attorney-General pointed out.
He contended that because of a series of fundamental breaches and non-performance by BK under the said agreement, the option to purchase could not lawfully or equitably be exercised.
And that the unlawfulness which permeated the transaction is evidenced by the fact that not even a formal Agreement of Sale in writing was executed between BK Marine Inc. and NICIL for such a valuable public asset.
With reference to a smaller wharf facility sold to Guyana Shore Base Inc. for US$18 million, the court documents highlights that the property sold to BK was at a “gross undervalue and way below market price”.
Notwithstanding the property being sold below market price, since making a down payment of a mere 10 per cent of the purchase price on October 24, 2017, BK Marine Inc. has to date failed and/or neglected to make any further payment to NICIL.
Former Minister of Finance, Winston Jordan, on March 28, 2020 by Vesting Order No. 50 of 2020, vested title of the property to BK Marine Inc. “absolutely, free and clear of all claims and liabilities”, thereby forfeiting all rights to even recover the balance to the purchase price, the court documents states.
The Attorney-General contended that Heath-London breached his fiduciary duty in his capacity as CEO of NICIL when he sent a letter to the Registrar of Deeds requesting an annotation be made in the records to reflect change in ownership, knowing the property was undervalued.
Pursuant to the said agreement made on October 23, 2017, BK Marine Inc. obtained a Certificate of Value dated May 28, 2020 by valuation officer C.E. Mc Garrell for the property which listed the current market value as $400,000,000, which was filed at the Deeds Registry for the conveyance of the property.
The documents explained that Jordan, Heath-London and the Registrar of Deeds in conspiracy with each other caused a transport to be passed, which reflected erroneously and fraudulently that $400,000,000 was paid and the said transport was vested free from all encumbrances
There was no valuation as at the date of the agreement and there was no approval or resolution by the board of directors of BK Marine Inc. in the year of 2017 to purchase the property.
A resolution of the Board of Directors of BK Marine Inc. dated July 20, 2020 submitted to the registrar of deeds stated that by Agreement of Lease dated December 4, 2006 the company purchased from NICIL the property for $400 million.
The same resolution stated that the company is required to pay the balance of the purchase price in the sum of $182,342,482, fraudulently asserting that they paid the sum of $217,657,517 when in fact only a down payment of $20,260,276 was paid.
The Attorney-General contended, in these circumstances, BK Marine Inc. was “unjustly enriched at the expense of the State and the People of Guyana and Jordan acted in clear breach of his fiduciary duty and caused loss to the State in approximately five billion dollars.”
The Attorney-General is contending that the Transport No. 634 of 2020 for the property dated July 21, 2020 in the name of BK Marine Inc. was obtained by means of fraud and illegality, and therefore seeking a declaration that the said transport was obtained unlawfully.
In those regards, he is seeking an Order directing the Registrar of Deeds to set aside the transport and an Order for Restitution to the State of the property.
He is also seeking a declaration that the agreement of sale dated October 23, 2017 between BK Marine Inc and NICIL for the property is illegal, unlawful, null and void.
Further, a declaration that the Vesting Order No. 50 of 2020 made by Jordan, is illegal, unlawful, null, void, repugnant and contrary to public policy and an order to set it aside.
He is also claiming damages in excess of $200 million against Jordan, Heath-London and NICIL for loss and damages suffered as a result of a result of negligence, conspiracy and/or breach of a duty owed to the State.
Damages in excess of $100 million against Jordan for loss and damage suffered as a result of breach of fiduciary duty owed to the State and an additional in excess of $100 million for misfeasance in public office.
And damages in excess of $100 million from the four name defendants for loss or damage suffered as a result of fraud and interests in accordance with Section 12 of the Law Reform Miscellaneous Act.