NICIL’s lawyer moves to strike out challenge to transactions

Aug 14, 2020 News

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Glenn Lall vs. Winston Jordan in ECD land deals case…

Devindra Kissoon, Attorney for the National Industrial and Commercial Investments Limited (NICIL), has filed an application to strike out Glenn Lall’s legal bid to quash government’s sale of prime lands on the East Coast of Demerara (ECD).
Lall, the publisher of Kaieteur News, had moved to Court to have the sale of 130 acres of prime ECD lands by the former government – A Partnership for National Unity + Alliance For Change (APNU+AFC) Coalition, revoked.
The essence of the case filed by the publisher is that the then de facto Finance Minister, Winston Jordan, and NICIL – a state-owned privatization company, had no power or authority to transfer State lands to any person or entity under the control of the Minister, pursuant to Sections 8 and 11 of the Public Corporations Act (PCA); Cap. 19:05.
The newspaper owner is therefore seeking orders from the Court to repeal the sale of lands by the Former Minister and NICIL.
The litigation lists NICIL, Jordan and the Attorney General as respondents in the case.
However, at the first hearing of the matter held via zoom yesterday before Justice Sandra Kurtzious at the Georgetown High Court, NICIL filed a defence asking the Court to strike down the publisher’s application.

In affidavits to support the defence filed on behalf of NICIL, the attorney contends that Lall had wholly misinterpreted Section 8 of the Public Corporations Act (PCA), Cap. 19:05.
Among other things, the lawyer pointed to the explanatory memorandum, which states that “Section 8 of the Public Corporations Act was amended by the passage of the Public Corporations Amendment Act 1990 to empower the Minister assigned general responsibility for public corporations to transfer by order under that section to a private company or individual the undertaking or any other property of any public corporation or body corporate owned or controlled by the State…”
He explained further in the defence, that from at least 1992 to present, Vesting Orders have been used to vest numerous State lands to NICIL and from NICIL to private companies or persons.
According to the lawyer, the practice facilitated the resale of State lands to various individuals and companies.
As such, Kissoon contends that any orders sought to prevent sales by NICIL pursuant to the Vesting Orders by the Minister of Finance would be unduly prejudicial to NICIL since it prevents NICIL from dealing with the properties vested in its sole name, effectively preventing the privatization unit from fulfilling its mandate.
Consequently, the attorney says that such preventative action could have a devastating impact on Guyana’s economy.
Kissoon noted therefore, “If NICIL is unable to complete the sales, it will stymie the collection of the balance of the purchase prices and therefore, the repayment of the Bond.”
He stressed that this will not only cause NICIL to default on the Bond, but will affect Guyana’s good standing and credibility in the financial marketplace.
This, Kissoon claimed, will have a domino effect on Government’s ability to raise financing for other developmental projects and works including the new harbour bridge, a paved road linking Guyana to Brazil, the hydro falls project, and many others.
He noted that already, some of the third party purchasers have refused to pay the purchase price owed as a direct result of this action, and as a result, NICIL has not yet repaid the current Bond instalment.
Additionally, the lawyer said if the properties are not vested and transport issued to the various purchasers, then NICIL will be in breach of contract, and numerous legal actions may be brought against it.
He stated that, “As the legal owner of the said properties, NICIL is entitled to choose to whom it sells the properties, via the Vesting Orders issued by the Minister of Finance, and the Applicant has no standing to dictate otherwise.”
The massive land deal came to light after the vesting orders, bearing Jordan’s signature were posted on Facebook, immediately raising questions as to how so many acres of land were sold in a day and also mounting suspicions that the then Coalition government was giving away lands before demitting office.
The information pointed to publications of the Official Gazette of orders numbered No. 64, 66, 67, 68, 69, 70, 71, 72 and 73.
Lall’s application asked the court to overturn the sale on the grounds that the sale was unlawful, made without legal authority, ultra vires, malicious, made in excess of jurisdiction, made without adequate legal consideration, null void and of no legal effect.
He referred to Sections 8 and 11 of the PCA, which stipulates that the Minister of Finance is empowered to authorize the transfer of State properties from only entities of the State. The PCA and its provisions of vesting order in general are not intended to apply to private companies.
Citing specific sections of the PCA, Lall contends that the Minister cannot transfer property owned by NICIL to any private individual.
He noted that all of the entities to which the lands were sold are private companies and that the PCA and its provisions of vesting orders in general are not applicable to private companies which meant that the purported transfer by Jordan was unlawful, ultra vires and null and void.
“The essential and key precondition of the statue is that it applies to property of State being transferred to an entity under the control of the Minister, there is no authority to vest the specific State to these companies as mentioned in Orders published in the Official Gazette,” the applicant stated.
Subsequent to the filing of the application, Lall explained that, “the patrimony of this country must be disposed of transparently and in a manner which ensures value for money.”
He added that “if the lands and the country’s natural resources, which are being given out, are done in a transparent manner and at real market value, Guyana can alleviate poverty, eliminate its foreign debt and triple the salaries of public servants.”
He said, too, he will continue with his efforts, regardless of which government is in place, to ensure the best deal for the people of this country.

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