High Court Judge Priya Sewnarine-Beharry today dismissed a lawsuit against Bank of Guyana, and its Governor Dr. Gobind Ganga, seeking in excess of $90M in damages.
The action was filed by Former Minister of Communities Ronald Bulkan and his brother Rustum Bulkan, both shareholders in Precision Woodworking Limited, a receivership company. In their action, Dr. Ganga and Bank of Guyana were listed as the Respondents.
Through a Statement of Claim filed in 2019, the former Minister and his brother had claimed that Bank of Guyana neglected its statutory duty as it failed to launch an investigation into the deposit of $82, 068,617 into the company’s bank account being held at Republic Bank (Guyana) Limited (RBL), its receiver, for which they are the only authorized signatories.
In her judgment, Justice Sewnarine-Beharry noted that the action brought against Central Bank and its governor is an abuse of the process.
“Statements of Case must be concise. They must plead only material facts, meaning those necessary for the purpose of formulating a cause of action or defence, and not background facts or evidence. Still less should they contain arguments, reasons, or rhetoric. [This] Statement of Claim is incoherent, prolix, lacks precision and is obscure,” the High Court Judge held.
Furthermore, the Judge said that the action against Central Bank and its Governor should have been brought by Precision Woodworking and not its shareholders. According to her, it is trite that a company has a separate legal personality from its directors and shareholders.
In addition, the action is statute-barred, Justice Sewnarine-Beharry noted.
She explained that an action for the recovery of damages must be brought within three years after the cause of action arises. In court documents, the brothers said that the monies were deposited into the company’s bank account on June 16, 2011, and can be supported through a Discovery Statement issued by Republic Bank pursuant to a court order.
The former Minister and his brother said that during March 11, 2013, to December 22, 2017, they wrote to Dr. Ganga; Republic Bank; former Finance Minister Winston Jordan; and former Attorney General Basil Williams in relation to the “unauthorized and suspicious” deposit.
Justice Beharry added, “Assuming that the cause of action arose from (1) June 16, 2011, the date of the alleged deposit,(2) March 13, 2013, when the matter was first raised by letter,(3)July 15, 2014, the request for prosecution, or (4) March 22, 2016, by letter intimating to the Respondents that there was no evidence to prosecute RBL, each fell outside the limitation period, the action having been filed on December 23, 2019.”
As a consequence, it was ordered that the brothers pay $250,000 in court costs to the Respondents on or before October 30, 2020. It was further ordered that counsel for the brothers, Patrice Henry, personally pay costs in the sum of $75,000 to the Respondents on or before October 30, 2020, for prolixity of pleadings. The court further ordered costs awarded shall be paid before any further steps are taken in the proceedings.
In their Statement of Claim, the brothers argued that Dr. Ganga ignored and continued to ignore their pleas for an investigation with the prosecution view in relation to the deposit as Bank of Guyana has regulatory oversight over Republic Bank.
In spite of the Republic Bank’s confirmation that the millions of dollars were indeed deposited in the company’s account, the siblings argued that Central Bank continued to “arbitrary and whimsically deny the deposit being made.”
In fact, among other things, they argued that Dr. Ganga continued to fraudulently misrepresent that no such deposit was ever made into the company’s bank account.
According to the brothers, “[We] are gravely concerned and disturbed that the deposit was a breach of the Anti-Money Laundering and Countering of Financial Terrorism Act by an individual identifiable by name.”
“[We] are accurately aware of the international financial jeopardy that Guyana endured as a result of the Financial Task Force blacklisting Guyana prior to 2015, and of the government’s post-2015 zero tolerance for money laundering.”
The brothers further said that at all material times, they are too well aware and cognizant of the draconian and ruinous effects of the penalties of fines ranging from $220M to $520M, and/or imprisonment prescribed under the Anti-money Laundering and Countering of Financial Terrorism Act.
In the circumstances, they were suing Dr. Ganga for negligence, deceit, misfeasance in public office for which they are seeking in excess of $10M each in damages. They were also suing the Bank of Guyana for breach of statutory duty and seeking excess of $50M in damages.
They were also asking the court to award them exemplary damages for the potential harm, distress, and unease caused by Dr. Ganga’s action, substantial costs, and further or other orders as the court deems just.
