NASSAU, BAHAMAS- Former Bahamas Power and Light (BPL) chairman Darnell Osborne along with two former Board members are seeking a Supreme Court declaration that the Bahamas Electricity Corporation (BEC) and Bahamas Power and Light (BPL) acted ‘irrationally’ and ‘capriciously’ in its deal with Wärtsilä.
The amended writ of summons filed on behalf of Darnell Osborne and former BPL Director Nick Dean and Nicola Thompson, argues the Wärtsilä deal is a departure from the original Shell memorandum of understanding (MOU).
“The Second and Third Defendants (BEC and BPL) acted irrationally and capriciously, based on the press statement of Dr Donovan Moxey on August 11, 2019 disclosing that Wartsila would supply the engines for 123 MW and build the power plant at the expense of the Second and Third Defendants, without any bidding process and compliance with the draft procurement policy of the Third Defendant, by departing from the turnkey Shell MOU and Power Purchase Agreement which was supported by the independent business judgement of the Boards of the Second and Third Defendants reflected in the board resolution of December 2017 and the approval of the Cabinet of the Bahamas by a decision in March 2018,” read the writ obtained by Eyewitness News Online.
Osborne is also seeking a declaration that Works Minister Desmond Bannister, listed as the first defendant usurped and interfered with the statutory functions of the Boards of the BEC and BPL, “in the exercise of its independent business judgement, in carrying out the national energy policy and electricity policy and excluding Osborne as a director and Executive Chairman of the boards.
Osborne is also seeking a declaration that the decision of Bannister to dismiss or remove her as a director and the executive chairperson of the boards, without reasonable cause and without affording her procedural fairness, is unlawful, ultra vires the Electricity Act 2015, The Companies Act 1992, and the Amended and Restated Articles of Association of the Third Defendant and a breach of the rules of natural justice, procedural fairness and the duty to act reasonably.
The plaintiffs Osborne, Dean and Thompson are seeking a court declaration that the plaintiffs are still BEC and BPL executives; that the purported appointment of the new board of the is illegal, void and ultra vires the Amended and Restated Memorandum and Articles of Association of BPL, the provision o the Electricity Act 2015 and the Companies Act 1992; that all acts done, and duties performed by the new board of the new Board are void, illegal and of no effect. and that the Plaintiff is entitled to be paid all his remuneration, benefits and allowances as from August 17, 2018 up to the date of judgement of the lawsuit.
Last month Justice Indra Charles ruled that BPL and BEC be included as ‘necessary parties’ to the lawsuit of Osborne, Dean and Thompson.
In the January 23 order, the judge also concluded that including them as parties to the lawsuit ‘would not embarrass or prejudice them nor the other defendants”.
It was noted that BEC and BPL may be called upon to compensate or contribute to compensation for damages and losses, therefore making them necessary parties to the action.
Justice Charles agreed with counsel for the plaintiffs Alfred Sears, QC that the proposed amendments would not prejudice the defendants as they contended and that the amendments are ‘necessary to determine all of the questions in controversy between the parties”.