Home News Lawsuit to repossess river frontage: Trial Judge erred; decision misconceived in law...
Attorney General Anil Nandlall, SC, is challenging a recent decision by High Court Judge, Justice Brassington Reynolds, who stuck out his legal action that sought to repossess river frontage sold to BK Marine under the previous A Partnership for National Unity/Alliance For Change (APNU/AFC) Administration.
Back in February of this year, Nandlall, on behalf of the Government, had filed a Statement of Claim (SoC) seeking to overturn the controversial sale of the plot of waterfront land to BK Marine which was done by former Finance Minister Winston Jordan. 
BK Marine is a subsidiary of BK International, which is owned by Brian Tiwarie.
Jordan, who was the second named defendant in the legal action, had asked for the Claim to be dismissed on the ground that it discloses no cause of action, is misconceived, and is an abuse of the court’s process, as it is politically motivated and actuated by bad faith, vindictiveness, and spite and constitutes an abuse of power, was frivolous and vexatious, and/or scandalous.
As a result, on September 13, Justice Reynolds dismissed the SoC, ruling that while the Attorney General is authorised to bring an action for misfeasance in public office against Jordan, he did not, in this case, satisfy the elements of the tort.
AG Nandlall has subsequently described this ruling as “one of the most shocking decisions I have ever witnessed in my brief career at the Bar” and committed to challenge the decision.
Consequently, he filed a Notice of Appeal at the Full Court on September 28, against the decision of the High Court Judge.
In the legal document, the Attorney General is seeking from the Full Court, “…an Order setting aside, reversing and/or vacating the decision…” of Justice Reynolds.
The Attorney General argued in his appeal that the Trial Judge erred and his decision was misconceived in law when he dismissed the Statement of Claim on the basis of an abuse of the court’s process as there was no viable cause of action on basis of Misfeasance in Public Office and 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.
Nandlall contended that the causes of action of negligence, conspiracy, misfeasance and fraud are all required to be specifically pleaded, particularised and proved as a matter of law. Therefore, he noted that the 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.
According to the AG, the Learned Trial Judge further erred and his decision was misconceived in law when the court found there was no breach of a fiduciary duty by former Minister Jordon but failed to take viva voce evidence before arriving at this conclusion. He also contended that the Judge erred in failing to take viva voce evidence on the causes of action of negligence, conspiracy and fraud, and, as a consequence, could not arrive at a conclusion that they were not established based on applications to strike out the Claim without more.
It was further argued that Justice Reynolds was misconceived in law in failing 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.
“The Learned Trial Judge erred and misconceived in law when he ignored the binding case law which established that the Appellant, Attorney General always has standing to bring an action in misfeasance to recover financial loss suffered by the State in consequence of wrongdoing in public office… The Learned Trial Judge erred and misdirected himself in law when he found that the Appellant did not meet the very high standard required to prove misfeasance in public office when the Trial Judge failed to test any evidence to determinate whether the Claim had merit or not;” the Notice of Appeal further detailed.
It was also outlined, among a host of other grounds, that the Judge erred and misdirected himself in law when he found that the AG failed to prove that there was dishonest motive, bad faith and that the former Finance Minister gained financial benefit when the case of the AG 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.
“The Learned Trial Judge erred and misdirected himself in law when he irrationally considered that because the subject lands had been vested…[to] the National Industrial and Commercial Investments Limited (NICIL), the Government could no longer be interested in these lands… The Learned Trial Judge erred and misdirected himself in law in when he formed the view that [NICIL] was the proper party to institute proceedings against the [BK Marine] and that in any event, the case would be statute barred,” it was argued.
Further, Nandlall contended that Justice Reynolds erred not only when he determined that the Attorney General’s case was wholly misconceived and an abuse of the process of the court and awarded $2 million in costs, but also his decision is contrary to the interest of the administration of justice as it is unfair and/or unreasonable.
Through the SoC, Nandlall was seeking to have the sale of the lands at Water Street or Mudlots 1 and 2; Lot F of Mudlot 3 and Lots A, B and D, North Cummingsburg, Georgetown be declared illegal, unlawful, null, void, repugnant and contrary to public policy.
He insists that the lands were sold at a gross undervalue and way below market value, and that BK Marine was unjustly enriched by $5 billion through this transaction.
Meanwhile, the former Finance Minister is currently facing a criminal charge at the Georgetown Magistrates’ Courts for misconduct in public office over the sale of those same lands to BK Marine. He has been released on $3 million bail pending the hearing and determination of a trial. (G8)
