Geisha Kow­lessar

At­tor­ney Gen­er­al Anand Ram­lo­gan has filed for ju­di­cial re­view to quash the To­ba­go House of As­sem­bly's (THA) de­ci­sion to en­ter in­to a build-own-lease-trans­fer (Bolt) arrange­ment with a pri­vate de­vel­op­ment com­pa­ny, Ra­hael Hold­ing Ltd, for an ad­min­is­tra­tive build­ing.

The AG yes­ter­day said he filed a ju­di­cial re­view claim on be­half of the State to pro­tect the pub­lic's in­ter­est, af­ter in­ves­ti­ga­tions in­to the deal raised sev­er­al is­sues. He is ask­ing the court to rule on whether THA Chief Sec­re­tary Orville Lon­don ex­ceed­ed his pow­ers un­der the THA Act by en­ter­ing in­to this se­cret deal with Mil­shirv Prop­er­ties Ltd, the de­tails of which were nev­er made pub­lic un­til last year.

Ram­lo­gan filed the ap­pli­ca­tion in the High Court yes­ter­day and is be­ing rep­re­sent­ed by a bat­tery of at­tor­neys, in­clud­ing Alvin Fitz­patrick, SC, and To­ba­go-born at­tor­ney Mar­tin George. The ju­di­cial re­view ap­pli­ca­tion is re­lat­ed to a de­ci­sion of the THA on April 13, 2011, to en­ter in­to a Bolt arrange­ment over an ad­min­is­tra­tive build­ing for the Di­vi­sion of Agri­cul­ture, Ma­rine Af­fairs, Mar­ket­ing and the En­vi­ron­ment of the THA.

Asked why the ap­pli­ca­tion had not been filed be­fore, es­pe­cial­ly with the THA elec­tion on­ly two weeks away, Ram­lo­gan said the mat­ter was re­ferred to him by Prime Min­is­ter Kam­la Per­sad-Bisses­sar and the ju­di­cial re­view could on­ly be filed af­ter he re­ceived ad­vice from at­tor­neys. "Up­on the re­ceipt of the opin­ion of Se­nior Coun­sel, I dis­cussed it with all rel­e­vant state of­fi­cials pri­or to mak­ing any de­ci­sion," Ram­lo­gan said.

"I re­quest­ed the so­lic­i­tor gen­er­al to re­tain coun­sel for the pur­pose of draft­ing the pro­ceed­ings and it was not un­til I had been fur­nished with copies of all doc­u­ments sub­mit­ted to the Min­is­ter of Fi­nance rel­e­vant to the ap­pli­ca­tion, and af­ter the search­es were un­der­tak­en and the rel­e­vant doc­u­ments pro­cured, that I was able to re­quest the opin­ion of coun­sel. In these cir­cum­stances I was not able to ini­ti­ate this ap­pli­ca­tion ear­li­er."

The AG's move came two days af­ter a group of UK in­vestors al­so moved to re­cov­er some US$30 (TT$200 mil­lion) they in­vest­ed in­to a pro­posed ho­tel re­sort de­vel­op­ment on the is­land, af­ter the THA al­leged­ly re­neged on a deal to sell them the Cul­lo­den Es­tate in north­west To­ba­go and okay li­cences to com­plete con­struc­tion of the project.

FLASH­BACK

Flash­back

In Oc­to­ber last year, Per­sad-Bisses­sar de­mand­ed that Lon­don an­swer why, af­ter 20 years and mil­lions of dol­lars spent, the THA had cho­sen to give the Mil­shirv prop­er­ty back to its di­rec­tors. She al­so ques­tioned why the of­fice lease agree­ment which was in­cor­po­rat­ed in­to the lease agree­ment of Mil­shirv was not im­me­di­ate­ly reg­is­tered. She said she found it high­ly sus­pi­cious and ir­reg­u­lar with the Bolt agree­ment be­tween the THA and Mil­shirv Ltd.

Mil­shirv was in­cor­po­rat­ed on Oc­to­ber 3, 2011. On No­vem­ber 15, 2011, the THA pur­chased three acres of land at the cor­ner of Shir­van and Mil­ford Roads for $12 mil­lion from Dan­kett Ltd. Six days lat­er, on No­vem­ber 21, 2011, the THA leased the same three-acre prop­er­ty for 199 years at an an­nu­al rent of $10 to Mil­shirv Prop­er­ties Ltd, a mere two months af­ter Mil­shirv was in­cor­po­rat­ed.

She al­so ac­cused Lon­don of en­gag­ing in a "sweet­heart deal" which was nur­tured by Mil­shirv Prop­er­ties Ltd and Dan­kett Ltd. Per­sad-Bisses­sar said ac­cord­ing to the lease doc­u­ment, Mil­shirv would con­struct an of­fice build­ing and fa­cil­i­ties which it would then rent to the THA–which leased Mil­shiv the land at $10 a year for 199 years–for 20 years at $1.3 mil­lion a month.

CHRONOL­O­GY OF EVENTS

�2 Oc­to­ber 3, 2011: Mil­shirv Ltd in­cor­po­rat­ed.

�2 No­vem­ber 15, 2011: the THA pur­chased three acres of land at the cor­ner of Shir­van and Mil­ford Road for $12 mil­lion from Dan­kett Ltd.

�2 No­vem­ber 21, 2011: the THA leased the same three-acre prop­er­ty for 199 years at an an­nu­al rent of $10 to Mil­shirv Prop­er­ties Ltd.

�2 The lease agree­ment with the in­cor­po­rat­ed "of­fice lease" an­nex is dat­ed and ex­e­cut­ed on No­vem­ber 21, 2011. It was not reg­is­tered un­til two months lat­er, on Jan­u­ary 17, 2012.

The AG is con­tend­ing

The AG is con­tend­ing:

1. If the THA is al­lowed to con­tin­ue to en­ter in­to Bolt-style fi­nanc­ing arrange­ments for the de­vel­op­ment of cap­i­tal projects in To­ba­go, it would com­pel the Gov­ern­ment to ret­ro­spec­tive­ly ap­prove for fis­cal pur­pos­es, a project that it might wish to re­ject, since de­vel­op­ers may have a resti­tu­to­ry claim against the THA for ac­tu­al work or ex­pen­di­ture oc­curred. The THA may, by this means, claim on the con­sol­i­dat­ed fund which were not ap­proved with­in the statu­to­ry frame­work.

2. The THA may al­so, by means of the Bolt arrange­ment, at­tempt to avoid scruti­ny in­to its cap­i­tal-project fi­nanc­ing, which is con­trary to good gov­er­nance and may yet hold the Gov­ern­ment ac­count­able if it can­not meet its fi­nan­cial com­mit­ments.

3. The THA did not re­quest pro­pos­als or com­pare com­pet­i­tive bids.

4. The de­ci­sion could set a very dan­ger­ous prece­dent where­by the THA may com­mit pub­lic funds to projects that have not been re­viewed and ap­proved by the Gov­ern­ment.

5. The val­ue of the trans­ac­tion rep­re­sent­ed by the de­ci­sion is in ex­cess of $300 mil­lion and the THA should not be al­lowed to com­mit these pub­lic funds with­out com­ply­ing with the pro­ce­dures un­der the THA Act and the Cen­tral Ten­ders Board Act, which were de­signed for the pro­tec­tion of pub­lic funds and trans­paren­cy.

The claim for ju­di­cial re­view in­clud­ed de­c­la­ra­tions that:

�2 the de­ci­sion is il­le­gal, void and of no ef­fect and in breach of the Cen­tral Ten­ders Board Act Chap­ter 71:91

�2 all de­ci­sions and/or ac­tion tak­en con­se­quent on the de­ci­sion are ul­tra vires, il­le­gal, null and void and of no ef­fect

�2 a deed of li­cence dat­ed Au­gust 27, 2012, and made be­tween the THA, Mil­shirv and First Cit­i­zens Bank Lim­it­ed is null, void and of no ef­fect

�2 an or­der that a deed of lease dat­ed Au­gust 27, 2011, and made be­tween the THA and Mil­shirv be set aside.