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.
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.