The Tribune

• Judge ends ex-minister’s ten-year ordeal

• Stellar appeal has ‘no prospect of success’

• ‘Pressure tactic’ to force Gov’t into settling

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A FORMER Cabinet minister’s decade-long ordeal over the Stellar Energy letter of intent (LOI) controversy was yesterday halted by the Supreme Court’s verdict that he has no case to answer.

Justice Neil Brathwaite found that the waste-to-energy provider’s bid to appeal an earlier verdict, which dismissed its $727.364m damages claim against Renward Wells and two alleged government “agents”, had “no prospect of success” and it would be “prejudicial” to the ex-minister to let it proceed.

The judge added that he was also prepared to rule that it was “an abuse of the court’s process” for Stellar and its principals to file an appeal against the earlier March 8, 2019, verdict by Supreme Court deputy registrar, Carol Misiewicz which rejected their claim but then “take no steps” to have the action promptly heard.

The Supreme Court’s verdict likely ends legal proceedings over a murky affair that forced Mr Wells’ 2014 departure from his post as Ministry of Works parliamentary secretary under the former Christie administration.

In the decade since, the Bahamian people received no clear answers for the controversy sparked by the ex-Bamboo Town MP’s signing of an LOI to facilitate Stellar’s proposed $600-$650m waste-to-energy plant at the New Providence landfill. Neither himself nor any of the principals in the Christie administration, some of whom are in Cabinet today, have ever explained the events that occurred.

Mr Wells could not be contacted for comment before press time last night despite multiple attempts to reach him. However Jean Paul Michelsen, Stellar Energy’s Bahamas-based former chief operating officer, yesterday told Tribune Business it was “high time” that the former MP and minister’s name be cleared.

Asserting that Mr Wells “should have been cleared from day one”, as he had “done nothing wrong” and was merely the LOI’s was merely the LOI’s signatory, Mr Michelsen further highlighted his longstanding split with Stellar Energy’s principal, Dr Fabrizio Zanaboni, who is understood to have left The Bahamas some time ago.

“I’m happy that Renward Wells has finally been cleared, as he should have been from day one,” Mr Michelsen told this newspaper. “He’s a real good engineer, and he did nothing wrong. He simply signed the LOI.

“I’m happy that Zanaboni did not get what he wanted, and that Renward Wells got his name cleared. It’s high time. I’m really happy this is cleaned up for Renward Wells, especially with the health issues he has recently had. He could use a little help.”

Ms Misiewicz, in the verdict that led to yesterday’s appeal ruling, found that Stellar Energy and its affiliates were “from any angle unable to sustain an action” against Mr Wells and two of his co-defendants, Algernon Allen and Frank Forbes, “on the basis of the LOI”.

She determined that the LOI “was not binding in law” and represented “a discussion document” rather than a completed contract. The deputy registrar also branded Stellar’s claims against Mr Allen, himself a former Cabinet minister, and Mr Forbes, a businessman and accountant who ran Sigma Holdings, as “bad” given that they were not parties to the now-notorious LOI.

Mr Wells, though, was the only one of the trio to challenge Stellar’s bid to be granted extra time to appeal Ms Misiewicz’s verdict. He and his attorney Gregory Moss, another former MP, argued that the waste-to-energy firm was “guilty of inordinate and inexcusable delay” as they took more than seven months from the date of the ruling to file the appeal.

No explanation was provided and Mr Wells, who went on to hold Cabinet posts as minister of agriculture and marine resources, minister of transport and minister of health, asserted that through these delays Stellar was seeking to “frustrate” him “in the finality and certainty of the dismissal of the action”. He also alleged the claim was “scandalous, frivolous and vexatious and/or an abuse of the court process”.

Stellar, whose attorney was Osman Johnson, incorrectly first sought to appeal Ms Misiewicz’s decision to the Court of Appeal. They withdrew this on October 15, 2019, but have yet to pay the $20,000 costs ordered by the Court of Appeal. Four days later, on October 19, 2019, they filed the action that came before Justice Brathwaite.

“They say that the summons was used by the plaintiffs [Stellar] as a tactic to pressure the first defendant to exert pressure on the Bahamian government to settle the unfounded claims of the plaintiffs,” the judge said of the arguments by Mr Wells and his attorney.

“[And it was] to revive unfounded assertions against the first defendant which were dismissed in the substantive action, to use the summons as a means of disparaging the personal and political reputation of the first defendant, and to frustrate the finality of the dismissal of the action.”

Mr Wells also argued that Stellar was now “statute-barred” under the Limitation Act, and could not bring its claim, while section 49 of the Interpretation and General Clauses Act gave him “immunity” from its legal pursuit because he was then acting as a public official when the LOI was signed.

The waste-to-energy provider, though, countered that Mr Wells was engaging in a “collateral attack” on its “right to relief” and denied it had gone past the time period set out in the Limitation Act for filing its case. Stellar also argued that he had “actual and/or ostensible authority” from the Government to sign the LOI and could not deny “liability for his acts or omissions”.

Justice Brathwaite, as a starter, noted that Stellar was non-compliant with the then-Supreme Court rules requiring an appeal of the registrar’s decision to be brought before one of its judges as it went to the Court of Appeal. And, while it conceded that there had been “a lack of action” in moving the case forward, the company blamed this on Hurricane Dorian and COVID-19 impacting its Grand Bahama-based attorney.

An unimpressed justice Brathwaite pointed out, though, that Stellar’s case had been left “dormant” for a five-month period between when the incorrect Court of Appeal notice was filed on March 19, 2019, and Hurricane Dorian which struck in early September that year. It was only one month later that Stellar and its attorneys, realising their error, switched to the Supreme Court.

And, even with the benefit of virtual hearings initiated during the COVID-19 pandemic, Stellar took an “excessive” 16 months before seeking to advance its claim. Justice Brathwaite also backed Ms Misiewicz’s finding that the LOI signed by Mr Wells was “a discussion document, subject to contract, and was not binding in law” - especially since it was due to automatically expire one year later on July 3, 2015.

“I have had a chance to review the LOI. The language used in the LOI is indicative that the LOI was an intention to enter into a contract in the future,” the judge ruled. He based this on language such as “intends to sell”, “intends to bear” and “is to submit”.

“It is evident that the project developer’s application for approval as a foreign investor in The Bahamas was contingent on the signing of the LOI,” justice Brathwaite said. “I agree with the findings of the deputy registrar, and find that there is no basis to conclude that the LOI was a contract or has any contractual effect. Instead, I find that it was an agreement between the parties to contract in the future with.”

Given that he was unable to “find that fraud has occurred”, and no claims of negligence or bad faith were made against Mr Wells, the judge upheld the finding that the former minister should have the immunity provided in law.

“I find that the plaintiffs have no prospect of success if time was extended to appeal, as their cause of action... does not disclose a reasonable cause of action against the first defendant [Mr Wells],” justice Brathwaite ruled. “I also consider that should the plaintiffs’ application be granted, this would be prejudicial to the first defendant.

“As the first defendant submitted this matter was initiated almost ten years ago with significant delays on behalf of the plaintiff to appeal with little to no prospects of success. Allowing the appeal would extend the lifespan of the matter further against the first defendant in his personal capacity.”

Mr Wells became embroiled in controversy in mid-July 2014 when the Stellar LOI was leaked to the media and he was accused of signing it on the Government’s behalf without the proper authorisation.

He eventually departed his parliamentary secretary post at the Ministry of Works some 80-90 days later, but Tribune Business later obtained evidence suggesting that - as indicated by Mr Wells’ close colleague, former MP Dr Andre Rollins - the whole affair was a “manufactured political controversy”.

This newspaper obtained a May 26, 2014, letter written by Michael Halkitis, then-minister of state for finance, to the Inter-American Development Bank’s (IDB) Bahamas country representative stating that “the Government has issued an initial LOI” to Stellar Energy.

That letter was dated some five to six weeks before Mr Wells signed the LOI, suggesting key members of the Christie Cabinet knew of its existence in advance and of the Government’s intentions - at least at that point - to sign it. There is nothing, though, to suggest Mr Halkitis did anything wrong.

Stellar, in its original statement of claim, laid out multiple allegations. It described Messrs Allen and Forbes as government “agents” who promised then-prime minister Perry Christie would arrange a $40m guarantee for the project, and bragged: “We hold the key to the kingdom.”

The waste-to-energy group’s allegations placed Mr Christie and now-prime minister, Philip Davis KC, at the centre of events leading up to the LOI’s disclosure and subsequent political firestorm although there is nothing to suggest either man was guilty of any wrongdoing.

Arguing that the LOI’s leaking showed “clear intent at the Government level to sabotage” the $600m project, Stellar claimed Mr Allen, the former Urban Renewal co-chair, and Mr Forbes were “two of the private individuals who claimed to be representatives of the Bahamas government and/ or agents acting for and on behalf of the Bahamas government”.