The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A union leader yesterday pledged he and his fellow three ex-pension fund trustees will continue the fight to “clear our names” after the bid to take their bankruptcy appeal to the Privy Council was halted.

Bernard Evans, the National Congress of Trade Unions of The Bahamas (NCTUB) president, told Tribune Business that himself, Colin Wright, Ray Nairn and Shawn Bowe now planned to seek the London-based court’s direct permission to appeal after this was rejected by the Court of Appeal.

The four, all former trustees of the Bahamas Communications and Public Officers Union (BCPOU) Pension Plan and Trust Fund, are said to remain determined to overturn the bankruptcy adjudications made against them in relation to an allegedly “unauthorised” $1.35m loan made on their watch.

Emphasising that no allegations of fraud and corruption had been made against them, Mr Evans said they continued to dispute that they had ever given their former attorney, Donovan Gibson, permission to enter into the “consent order” that paved the way for the final $1.35m judgment against them.

The Court of Appeal, in an earlier verdict, said neither the “consent order” or judgment have ever been appealed to it, suggesting that Mr Evans and his colleagues face a high bar to overturn it. However, the ex-BCPOU president also argued that he and the other trustees were protected from personal liability for the loan by both the pension plan’s governing documents and the Industrial Relations Act.

Arguing that the “consent order’s” issuance meant the allegations against them were never tested at a full trial, Mr Evans told this newspaper: “We’re not giving up... My life, my children, everything depends on getting my name cleared.

“They did not charge us with fraud or anything illegal. It’s a sad state of affairs to be involved in. Unfortunately, in this case the investment did not work out.” He reiterated that they hired attorneys to investigate Kendal Williams Construction Company, the recipient of the $1.35m in two tranches from the BCPOU pension fund, who reported back that the contractor was “a safe investment”.

He added that pensioners’ savings were never in danger “before or after” the funds were advanced, arguing that their principal was “always secure”. Mr Evans also questioned why the successor BCPOU pension fund trustees, who had initiated the legal action against himself and his colleagues, had failed to go after the construction company that had received the funds.

The NCTU chief alleged that the successor trustees “seem hellbent” on pursuing the quartet when Kendal Williams Construction Company and its principals had suggested they owned sufficient land in Grand Bahama to offset or clear the $1.35m debt.

However, Tribune Business’s research reveals that Kendal Williams Construction Company was among the first 13 delinquent Bank of The Bahamas borrowers to be transferred to Bahamas Resolve, the special purpose vehicle (SPV) created in October 2014, as part of the initial $100m bail-out of the BISX-listed bank.

Documents obtained by this newspaper back in 2015 revealed that Bank of The Bahamas extended at least $2.28m worth of credit to Kendal Williams Construction Company, secured on a variety of real estate assets in Freeport’s Lucaya Ridge and Bahamian Marina subdivisions, plus a 13.56-acre tract at Polaris Drive. The collateral also included multiple lots in the Britannia Estates Subdivision.

But Appeal justice Stella Crane-Scott, in a June 18 verdict that upheld the bankruptcy orders, said the four were sued on April 27, 2012, “for the recovery of the amount of two unauthorised loans made to the Kendal Williams Construction Company totalling $1.35m”.

The new trustees alleged that Mr Evans and their other predecessors “negligently disbursed” the funds “in breach of the Trust Fund’s rules and in breach of the appellants’ fiduciary and other duties owed to the Trust Fund”.

Following a consent order by then-chief justice, Sir Michael Barnett, the final judgment for $1.35m was entered against the four on October 7, 2014. That ruling was never appealed, and Mr Evans and the other three former trustees were then ordered to appear before the Supreme Court’s acting assistant registrar for an examination of their assets on April 19, 2016.

Four days before that examination, and 19 months after the judgment was entered, the four former trustees filed a legal action to halt the examination and strike-out the judgment entered against them. In the meantime, the current BCPOU trustees initiated bankruptcy proceedings against Mr Evans and the others on April 24, 2017, in a bid to enforce the judgment.

Justice Indra Charles approved the bankruptcy orders, and efforts by Mr Evans and his colleagues to have them overturned last year were unsuccessful. And their subsequent bid to obtain the Court of Appeal’s permission to appeal to the Privy Council on constitutional grounds was also rejected this week.

“There has been no deprivation of the appellants’ right of access to the courts. The fact that they are presently before this court is a pellucid affirmation of the right they claim that has been denied to them. Moreover, they have failed to demonstrate any possible prejudice they may have suffered as a result of these alleged breaches,” the Court of Appeal ruled.

“In our view, the intended appellants seek by artifice to shoehorn their appeals into that category of an appeal which would enable them to appeal as of right. Were we to allow such a stratagem to succeed, an aggrieved litigant in a civil case would only have to invoke an article of the constitution to ensure his appeal is sent on to the Privy Council, notwithstanding that his appeal does not otherwise qualify for such consideration.”

The Court of Appeal added that the appeal was “wholly devoid of merit and intended solely to delay the consequences of the adjudication orders, thereby rendering the applications an abuse of the processes of the court”.