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#453496 - 12/14/12 08:30 AM Court: BTL Can Pay Dividends
Marty Offline
Tonight, accountants at BTL are getting ready to sign off on almost 12 million dollars in dividends after the Court of Appeal refused an injunction today.

That injunction was sought by the British Caribbean Bank and Dean Boyce of the Employee's Trust.

Viewers may remembers that the Caribbean Court of Justice gave an order back in September when the Ashcroft Alliance argued that BTL Annual General Meeting was being pulled up on the calendar to quickly declare a dividend - much of which will accrue to Government which holds controlling interests in the company.

The CCJ obliged with an injunction restraining BTL for three months - which ends tomorrow. As we reported, the Ashcroft Alliance weren't taking any chances in the event the Court of Appeal hadn't decided on whether the acquisition of the Company was constitutional or not. They applied for interim relief to extend that restraint of issuing of dividends far past tomorrow when the CCJ's order ends. Written arguments were presented to the Court of Appeal several weeks ago - and that decision was handed down today by President Manuel Sosa.

He announced today that the Appeal Court refused the injunction leaving BTL free to pay the dividends - which is 45% of the company's profits, about 11.9 million dollars.

Attorneys for both sides discussed the outcome today:

Denys Barrow - Attorney of GOB
"The hearing was an application by BCB and by Dean Boyce for an injunction restraining the Government - or commanding the Government to use their majority shareholding in Telemedia to make Telemedia not pay any dividends whatsoever to anybody. That will include no dividends to Government, Central Bank, Social Security Board, the Unions - no dividends to anybody."

Daniel Ortiz
"Can you tell us what position was from the Court of Appeal?"

Denys Barrow
"The Court of Appeal gave its order just now refusing the application for the injunction, which means that BTL can now go ahead and pay the dividends that it had been proposing to pay back in October of this year?"

Eamon Courtenay - Attorney for the British Caribbean Bank
"As you know, the Caribbean Court of Justice made an order that the Board of Telemedia could not consider question dividends before December 14, which is tomorrow. So, in the interim, we applied to the Court of Appeal, asking the court to grant the injunction. They have now considered it, and they have refused to grant the injunction."

Daniel Ortiz
"Sir, the arguments were not presented in open court. Can you explain to us what the positions were from your side?"

Eamon Courtenay
"Well, as you can imagine, the clients have a judgment, first of all, from Mr. Justice Legall that the acquisition of the property was unconstitutional. Secondly, it means that we are entitled to damages. In the case of British Caribbean Bank, it is owed over $30 million US, and nobody is paying it. Yet, you have Belize Telemedia about to pay millions of dollars in dividends, and you also have the Government, on the other hand, saying that it is virtually bankrupt and can't pay its creditors. And so, we were asking the court either to restrain Telemedia from paying the money, or if it is paid, to pay it into an escrow account to abide the outcome of the appeal."

Denys Barrow
"I really do prefer not to argue my case in the media, but just to outline the facts. What we submitted to the Court was that the decision to pay dividends is a matter for Telemedia, and not for the Government of Belize. It is something that is wholly unnecessary to restrain the payment of dividends because the argument that they were advancing really is not that they are entitled to the dividends per say. They are saying that if they succeed in getting acquisition set aside, then they will be entitled to damages. And the damages would include the loss of dividends which would have been paid out, and they are saying Government would not be able to pay it back. I think $10 million, or whatever it is, is the amount of dividends, which I submitted to the court is - quite frankly - not only disrespectful, but can make no sense."

Daniel Ortiz
"Sir, so at this point, for the avoidance of doubt, the board - tomorrow or after - they can issue the dividends freely, right?"

Denys Barrow
"They can issue the dividends, I think, starting today."

Godfrey Smith - Attorney for Dean Boyce
"As you will recall, the court gave oral decisions. It has not given any written decisions. So, obviously, we cannot properly assess our next move until we have a chance to see the written ruling of the court. Appealing to the Caribbean Court of Justice is obviously an option, but obviously, we have to wait until we've had time to review the full decision of the court before we make a decision on that."

Of the 11.9 million dollars in dividends, about 7.5 million of it goes directly to the Government of Belize.

Channel 7

#453544 - 12/15/12 08:10 AM Re: Court: BTL Can Pay Dividends [Re: Marty]
Marty Offline

CCJ Delivers A Slapdown To GOB On Dividend Issue

Tonight the Government of Belize is smarting after the CCJ put a smackdown judgment on it today.

It's about the BTL dividends. As we told you yesterday, the Court of Appeal lifted a 3 month restraint imposed by the Caribbean Court of Justice - which ended on December 14th. With that out of the way, BTL could go ahead and pay the dividend - which had been declared at its Annual General Meeting in September.

And so this morning, bright and early at 8:00 am, BTL's Chairman proceeded to issue cheques for almost 12 million dollars in dividends. But, an emergency CCJ hearing was pending - to review the Court of Appeal decision. That was set for 9:00 am - by which time, the dividend cheques had already been cut.

That's what the attorney for the government Denys Barrow told the Court - but the President of the CCJ bristled when heard of the development. He directed Government to put back the money in an escrow account by 2:00 pm today.

Here's how attorneys for both sides described it today:...

Eamon Courtenay - Attorney for the British Caribbean Bank
"The court of Appeal had dismissed the application for the injunctions, and you will remember that what the Caribbean Court of Justice had said was that Telemedia was not to deal with the question of dividends before December 14, which is today. We came to court this morning, and Mr. Barrow informed the court that at 8:05 this morning, Belize Telemedia apparently paid out the dividends. I think that you were present in court, and you can see that the court - to quote the president - is very troubled by what has happened. The president went further and said that it should not have happened. The truth of the matter is that what we have here is a continuation of the rogue-like behavior. It is that the Government of Belize believes that they are above the law. The Supreme Court of this country, and the Court of Appeal of this country have ordered that the legislation by which they have compulsorily taken possession of the property is unconstitutional. Nevertheless, they remain in control of this property, and this company, and now they are - in the face of a court order - attempting to pay out the money. You saw the court ordered them to pay back the money by 2 o'clock this afternoon, and Mr. Barrow, attempting to tell the court that he could not assure them that it will be done by 2 o'clock. I think that he tested the patience of the court, and eventually the court said that it must be paid by 2 o'clock this afternoon, and we will deal with this in January."

Godfrey Smith - Attorney for Dean Boyce and Trustees Of the Employees Trust
"The court stopped short of holding the Government in contempt, but left no doubt in anybody's mind. The President's opening words were that its role as the final court of appeal in Belize was not being respected. Shortly after that, the President also mentioned that the Government had not acted as it should in this matter. So, it did not hold the Government in contempt, but effectively, the dramatic and natural decision that the Government repay the money, an equivalent amount, is sufficient sign for everyone to see that it takes very seriously, what the Government has done."

Eamon Courtenay
"You heard the president of the Caribbean Court of Justice this morning. He said that what the Government did should not have happened. That is what he said, and he meant it, and he was being diplomatic. Let me tell you this. If it wasn't the Government of Belize; if it were some private person, you'd be hearing contempt and jail. The Caribbean Court of Justice sent out an order roughly at around 4 o'clock yesterday saying that they were going to hear this matter, urgently this morning. So, the Government knew fully well that this matter was coming before the court at 10 o'clock this morning. To pretend - to pretend - that they can get away, and act with contempt and in defiance of the rule of law, what you saw play out this morning was the Caribbean Court of Justice restraining itself, and saying, 'Listen, you are troubling us with what you're saying. Pay the money by 2 o'clock, and put it into an account so that we can adjudicate on this matter, as we ought properly to have done."

Denys Barrow - Attorney for GOB
"No, that's a great overstatement. The word 'contempt' was not even mentioned in these proceedings. What the court did was that they decided, 'Listen, what Telemedia has done renders our function embarrassing, that if this money is not there, and the application concerns this money, then we are wasting our time. So as not to waste our time, put back this money, or put back an equivalent sum of money escrow. That was it basically"

Isani Cayetano - Channel 5 News
"Is it doable by 2 o'clock this afternoon? I know that you were mentioning that this might not be so because of certain legal requirements persay. Is it doable now that they have ordered that it be done by 2?"

Denys Barrow
"I really don't know. As I told the court, I have doubts that Government finances operate in that fashion. But if it is not doable, then whatever is appropriate, whatever will be satisfactory to the CCJ will be done by the Government. So, there is not really any big issue. It's a question of methods of doing it, but an appropriate measure will be taken."

Daniel Ortiz
"As representative for the Government, do you feel as though Telemedia acted inappropriately?"

Denys Barrow
"No, I don't feel so. Telemedia had the benefit of the decision of the Court of Appeal. The Court of Appeal said that that injunction that British Caribbean Bank and Boyce were seeking is refused. So, Telemedia, in my view, was perfectly entitled to take the view - obviously not shared by the CCJ, and I respect the CCJ's view, but I am telling you that as far as I am concerned, Telemedia was perfectly entitled, 'Okay, the Court of Appeal has spoken, and therefore, I, Telemedia, can now act as the law and as our obligations as a company require us to act."

Eamon Courtenay
"The long and short of it is this. Even though the Court of Appeal has handed down its decision down its decision, it didn't give us the reasons. And therefore, we have to see the reasons to see whether or not there is a further appeal to be had. And that is why the CCJ they will hear this morning to preserve the positions. So, hopefully now, we will get the reasons shortly."

Daniel Ortiz
"There are small shareholders who are being affected by this back and forth. What is the Government's position in relation to those shareholders who are not a part of this litigation, but are being dragged into it?"

Denys Barrow
"Well, it's not the Government's position; it is the position of Lord Ashcroft's companies. They are taking the view that if the small man gets bruised or crushed, then that is by the way. That is their view, so carving out an exception and saying, 'Let them be paid,' never occurred to them. So, it really is an unmerciful position so far as the small man is concerned, so far as the unions which hold some shares is concerned."

And the latest development is that before the 2:00 pm deadline, Government's Attorney, Denys Barrow wrote to the registrar of the CCJ - saying that all payments have been arrested and all monies are in the account. That come-uppance though is not satisfactory to the Ashcroft Alliance, and the matter will go back to court on Monday, we understand.

BTL Exec Chairman Says Small Shareholders Suffer Dividend Block Most

As we told you in our top segment, it's been a day of confusion for BTL shareholders; first their dividend checques were paid, and then suddenly they weren't, the decision of the Caribbean Court of Justice.

They couldn't get the checques at the Annual General Meeting in September, and now there is an air of uncertainty surrounding the issue because the court order will not be lifted until the CCJ fully hears the this application to extend the conservative order.

And when that hearing is completed, there is a chance that the CCJ could rule in the favor of Boyce and BCB, which would mean that no dividends will be paid until the CCJ makes the decision.

So tonight, and for the next few weeks, the company remains in limbo unable to do anything with that money.

This evening at the soft launch of the BTL 4g service, 7News caught up with the Executive Chairman of BTL. We asked him about the decision to issue them today. He told us that he and other board members were blind-sided by this decision when they were informed that they must retract the checks that the issued:

Nestor Vasquez, Executive Chairman
"Yesterday I heard the good news that the Court of Appeal had refused the Ashcroft Alliance the application they for an injunction regarding the dividends. Now we at board level had known all along that the CCJ in latter part of September they ruled that the payment of dividends should be deferred until not before the 14 of December. So incompliance with that when the AGM was held before hundreds of shareholders were present - when that item came up on the agenda I made it very clear that the dividends would not be declared at this AGM because we want to comply with the ruling of the CCJ and I read it out; we said it must not be declared or paid before the 14 of December. So now when we heard the news yesterday that they who wanted to have a further deferral of the payment of dividends were refused then all I had to do was to comply with the decision of the board rule was taken on Monday this week that we would have waited the decision of the Court of Appeal and if it turns out in our favor then we would go along and comply with the decision of the Caribbean Court of Justice to pay it on the 14th and that's what we did, so this morning I went to the Central Bank to pay them their dividends. They have waited for months for it and when I act with compliance with ruling of the CCJ I have to believe that I am doing the right thing. What happen later on in the morning today - I find it amazing. And for that reason I believe that the dividends which we must pay in accordance with the articles of association with the company. The government does not tell us when to pay and how much to pay and what to pay - no man. They have no authority on that. We have a board of management and we unanimously agreed on Monday that we would act in accordance with the ruling of the CCJ depending on how the Court of Appeal would rule - they ruled in our favor and we act in accordance with the ruling of the CCJ that they made from September and now they tell me now later today that the government must refund the cheque that I paid."

"We acted correctly in accordance with the article in compliance with the ruling of the CCJ and its amazing to me how that could come about."

Daniel Ortiz
"At this time have all the cheques for the dividends been retracted?"

Nestor Vasquez, Executive Chairman
"Yes, the cheques we issued this morning were retracted. You have to remember that we can't make out all the cheque because we have just a little under 1,500 shareholders, so I was going to start make out the rest. I have instructed the staff to work Saturday and Sunday to pay the rest of shareholders 1,400 of them beginning Monday. But the big shareholders you can pay them easy; the Government, Social Security Board, Central Bank - we can do that easily. I issued that today, there is no problem making out three cheques, but 1,500 would take us some time, but I prepared for that only to find out that the CCJ says it should not be paid."

According to Chairman Vasquez, there are currently more than 1300 small shareholders who have absolutely nothing to do with this litigation, but are being affected by it.

Channel 7

#453769 - 12/18/12 08:01 AM Re: Court: BTL Can Pay Dividends [Re: Marty]
Marty Offline

BTL/Ashcroft Alliance and The CCJ

Last week, 7News told you about the Caribbean Court of Justice's big judgment in favor of the Ashcroft Alliance against the Government of Belize as majority shareholder in Belize Telemedia Limited.

As we told you, the CCJ delivered a conservative order restraining the BTL from issuing dividends until not before December 14, which expired on Friday. On the day before, Thursday, the Court of Appeal announced that they refused application for interim relief to restrain BTL from issuing dividends to take effect after Friday.

Well, seeing no legal boundary, the Board of Directors of BTL attempted to pay out the dividends, but the CCJ, after hearing this, immediately ordered GOB to ensure that an amount of equal value, which represented almost 12 million dollars, to be paid back into an escrow account.

So, with that slap down judgment, the Central Bank of Belize, the Social Security Board, and GOB were forced to refund the checks issued personally by the Executive Chairman himself.

Well, the matter went back to court early this morning, where via a 3-way video conference, the CCJ went a step further, and they ordered that there will be no further payment of dividends, which is an annual event, to those majority shareholder until the court says otherwise, or until the matter is heard to completion.

The effect of that is a major loss for GOB because their appointed board members are only able to use finances to cover expenses, run the company, and manage its bills. They are prohibited from doing anything else with the company's profits.

But, there was a minor positive development from today's proceedings; the CCJ granted an application by attorney for GOB, Denys Barrow, to allow the small shareholders, all 1400+ of them to be paid.

Both attorneys spoke to us outside of court and explained their position on the small shareholders who were getting crush by this fight between these 2 giants:

Denys Barrow - Attorney for GOB
"I think the central thing, the happy thing is that Christmas is here for the small shareholders. I think that is the fundamental thing, and I am very happy that we made the application. I sent a letter to on the weekend to counsel for the other side telling them that of my intention to make this application, and to seek instruction from their clients agreeing to an order carving out an exception in favor of the small shareholders."

Jose Sanchez - Channel 5 News
"Approximately, how many shareholders will be getting their dividends this Christmas?"

Denys Barrow
"Over 1,400, I think it's a very happy day. This is Christmas."

Rowland Parks - Reporter Press
"Would you say that Aschroft Alliance acted magnanimously when they did not object to the small shareholders?"

Denys Barrow
"Oh, they objected. You didn't realize that? What they wanted was to allow those who bought shares before the acquisition to get, but they wanted to punish those who had bought shares after the acquisition. So, there wasn't any magnanimity at all. The allowance in favor of those who had bought before was simply that it was not something logically or reasonably, they could have object to. But, when they could find any objections, there was not any magnanimity. So, no, I don't give them any credit for that."

Jose Sanchez - Channel 5 News
"In terms of Value, how much cash goes to the small shareholders, and what's left behind for the larger shareholders?"

Denys Barrow
"The amount that goes to the small shareholders is in the region - it's just under one million dollars."

Godfrey Smith - Attorney for Dean Boyce and Employee's Trust
"I have to clarify definitely a mis-statement of fact that occurred on Friday. On Friday, in looking at the evening newscast, I saw where my learned friend, Denys Barrow, said attorneys for Dean Boyce and the Trust - words to the effect that we were opposed to a carve out for the small shareholders. Now certainly, some of you were in court, and you will recall that on 2 occasions, Lord Goldsmith, who led the arguments on behalf of Dean Boyce and the Trust, went at great pains to point out that he was interested in stopping payment of dividends to the Government of Belize, the Central Bank of Belize, and to the Social Security Board, and that the issue of the small shareholders needed to be dealt with. What we are opposed to, are those small shareholders, like those members at the management level of BTL, who were given some small shareholdings after the nationalization. So, our position was always very clear. Small shareholders who held shares in 2009, prior to the illegal expropriation and nationalization, we have never had any problem with them getting their dividends. In fact, on Friday, that was our position, and we reinforced that this morning. So, it is completely incorrect to say that we were opposed, and that it is any kind of victory by the Government of Belize on behalf of the small shareholders. We were the first to call for that on Friday, and as we stand here speaking now, we have never been opposed to that."

Daniel Ortiz
"Does it mean then that the Board members are acting as sort of a house-sitter for the absentee owners?"

Denys Barrow
"That is a lovely question and a lovely way of phrasing it, and obviously, manifestly, this is what the applicants want to achieve. And the question is to what extent, to what degree have they achieved it? The answer to my mind is that there is some measure of success on their part because clearly the company, BTL, the directors cannot do exactly what they want to do. They are inhibited by this order. But then, the question is to what extent does that inhibit their actions, and it is not defined. It is not precisely crafted, but what we know is that the directors, the management can do the things that a company would normally do in the course of its operations. It is just that any extra-ordinary thing in terms of the finances of the company cannot be done."

And in the big appeal case at the Court of Appeal in October, the Ashcroft Alliance made a huge issue of Justice of Appeal Sammuel Awich sitting on the panel of judges.

As we we've reported numerous times, the Alliance made an attempt to get the newly appointed Justice of Appeal, Samuel Awich removed from the Court of Appeal.

That attempt failed, and they attempted to get Justice Awich to recuse himself as judge on the case. The Appeal Court, by majority decision, refused that application but granted them leave to appeal to the CCJ.

That issue came up today when the CCJ decided to forego the lunch break, and continued on with their session.

After a lengthy consultation with both sides, the CCJ ordered that the application be withdrawn allowing the Alliance to bring it up in the substantive appeal if the Court of Appeal rules against them.

We spoke to both sides about the apparent waste of judicial time and resources. Here's how they explained it:

Denys Barrow - Attorney for GOB
"That went very well as far as we are concerned. There was not any clear determination. Essentially what the CCJ did was to say, 'Let's leave this. If you want to bring this up if there is a substantive appeal against the main case itself, then bring it up in such an appeal. Do not proceed with it at this stage.' That is essentially what they proposed. We all agreed that that would be an appropriate way to deal with the matter."

Daniel Ortiz
"But sir, at this stage, the CCJ and the attorneys have wasted time and financial resources on this issue."

Denys Barrow
"No, no, very far from a waste of time and resources, it is something which the applicants were entitled to challenge. The merits of their challenge, I make no comment on it but that they have a legal right to make this challenge, to make this application. It is undoubted, and this really how the process of the development of the law takes place."

Daniel Ortiz
"Obviously, your clients thought that this was a more important issue to deal with now. Why do they feel so strongly about it?"

Godfrey Smith - Attorney for Dean Boyce and the Employees Trust
"It's really the fact of not taking - litigation as you have seen, and are now aware, can lead to some surprising results. We wanted to make sure that we were not in the position where it could ever be said, 'Well, you sat on your rights. You waived your rights; you didn't appeal it when you could have.' So we made sure that we brought it fully to the attention of the CCJ. They're aware of that point, and they've said to us, 'Look, you can't be prejudiced in any way. You can always raise that on appeal in front of us.' And that has given us enough comfort and satisfaction."

And in one final matter, the Alliance continues to press the courts to allow for international arbitration over BTL, while these proceedings are ongoing in the Belizean courts.

Viewers may remember that they took the matter before the Court of Appeal 3 months ago, but the ruled against them.

They made an application before the CCJ to allow them to hear an Appeal of the Appeal Court decision, and the CCJ allowed it.

We spoke to the Government attorney about that development, and here's what he told us:

Denys Barrow - Attorney for the GOB
"The Caribbean Court of Justice gave special for them to brink an appeal. So, before, they couldn't bring it because this is what you would call and interlocutory order that the Court of Appeal made, which is an order made in the course of proceedings, and not a final order. So, you need special leave to bring such an appeal. In this case, they obtained that special leave."

Daniel Ortiz
"Sir, can you tell us what the arguments advanced on behalf of that application?"

Denys Barrow
"The question was essentially whether there was a sufficiently substantial question which would justify the Caribbean Court of Justice, the highest court hearing such an appeal. The idea is that the highest court filters out appeals."

Daniel Ortiz
"An uninformed observer may posit that there already these matters before the Belizean courts. Why should we - or why should any client, GOB or otherwise - be faced with an international arbitration on the same issues?"

Denys Barrow
"Well, that is a major issue which was before the Court of Appeal of Belize, and they thought that it was vexatious and oppressive to allow international arbitration to proceed while there is local litigation before the Belize Court dealing with very much the same issues. Their view is that an international arbitration does not need to await a Belize court determination, does not need to be halted to allow that to happen. We accepted that it doesn't need to be halted, but we're saying that in certain instances, it is oppressive to allow the 2 of them to continue. So, the Caribbean Court of Justice will now decide whether that issue was properly decided by the Court of Appeal in Belize."

The court will consult with the attorneys from both sides about when these matters can be fully heard early next year.

Channel 7


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