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As the investigation into land transactions at the National Industrial and Commercial Investments Limited (NICIL) continue, Attorney-at-Law, Nigel Hughes has cleared up the misconception that all State lands are prohibited from subletting and that the State lost money when the lands were transferred by the Lessees to third parties.
Hughes is representing the Former head of the Special Purpose Unit (SPU), Colvin Heath-London who has been accused of facilitating the subletting of lands on the East Bank of Demerara (EBD) without permission which allegedly goes against the law. However, Heath-London has provided the police with evidence to prove that NICIL was fully aware of sub-letting agreements. The evidence lies in electronic copies of NICIL’s Board minutes and records for January 2018 which showed that NICIL’s former and late CEO, Horace James, in conjunction with the Board, had decided that lease transactions should be amended to facilitate sub-letting to create a more competitive platform.
However, the newly appointed Head of NICIL has questioned the validity of the Board minutes even as the Village Voice News has been reliably informed that documents at NICIL which could be useful to the investigation are no longer accessible.
Seeking to shed greater light on the situation which continues to unfold in media reports, Hughes said that it is crucial that two important points are understood, based on the law.
The first is that all lands which are held by the State or corporation or companies in which the State owns all the shares are not necessarily State Lands.
According to law, State Lands are governed by the provisions of the regulations issued under the State Lands Act Chapter 62:01 of the laws of Guyana which indicate that every holder of such lands, whether by lease, licence or permission, who would like to transfer their lease licence or permission, must make an application in writing to transfer the lease licence or permission.
However, lands held by transport are not governed by or subject to the State Lands Act. They are governed entirely by the provisions of the Deeds Registry Act Chapter 5:01 of the Laws of Guyana. Lands held by transport are only subject to the conditions set out in the transport and there is no law or regulation requiring written permission before that land is transferred by the owner/ holder of the transport to a third party.
Hughes further explained that the NICIL lands in question held by transport by NICIL. This means that there is no condition or covenant in the transport which required that written permission be obtained from NICIL or anyone else before a Lessee (tenant) transferred any interest to a third party.
“NICIL entered into leases with various entities which expressly conferred on the lessee the right to transfer their interest without the written permission of NICIL. It also entered into leases with various persons which either required their permission to transfer to a third party and some which did not contain that provision,” the attorney explained.
The police have questioned Heath-London along the lines of whether he was aware that a clause in contracts to four companies required Lessees from NICIL to secure written permission prior to subletting, but Hughes has communicated to the police that none such requirement was mandatory.
Meanwhile, though Attorney General, Anil Nandlall has claimed that Heath-London, among others, “acted recklessly, in bad faith with full knowledge of the flagrant illegalities, which have resulted in millions of dollars of losses to the State”, Hughes has again taken the legal route to show to no such loss has occurred.
For the NICIL lands, valuated by the Government and leased for 20 years, the Lessee (tenant) has entered into a contract for which they are obliged to pay the rent for the entire period unless the lease was terminated.
The lands (immovable property), being unowned by the Lessee (tenant) means that the Lessee cannot sell the property. When the agreements were entered into to sublet the lands to a third party, only what was obtained from NICIL could have and did form part of the transaction. Still, no sale of lands could have occurred because these are still owned by NICIL as the transport holder.
As it stands, the new third-party Lessee still has an obligation to pay to NICIL the rent due under the original lease agreement. “So, the State nor NICIL has lost no income as every subsequent Lessee (tenant) is obliged to pay NICIL the same commercial rental rates for the property as the original tenant. In other words, the new Lessee (tenant) steps into the shoes of the original Lessee (tenant) and is obliged to pay NICIL the same rent as the original lessee,” Hughes pointed out.
The Attorney stated that there has been much confusion and misinformation circulating in the media and about the alleged disposal of lands owned by NICIL. Thus far, Heath-London, along with Attorney-at-Law, James Bond; Life 1 Pharms Inc. Director, Avalon Jagnandan and Director of A-Z Pharmaceuticals Medical Supplies and Equipment Inc., Eddie Doolall, are among those questioned by the police.