Some leases entered into by NICIL enable the lessees to transfer their interest without seeking permission, according to Nigel Hughes, the attorney for Colvin Heath-London who is presently under police investigation in relation to the disposal of lands at Peters Hall on the East Bank of Demerara.
Heath-London, the former Chief Executive Officer of state holding company National Industrial and Commercial Investments limited (NICIL) under the APNU+AFC government spent several days in police custody as part of a probe as to how lands were leased and later `flipped’ for lucrative consideration.
Since the PPP/C took office in August of this year, it has begun investigating leases handed out under APNU+AFC and it has now focused its attention on the land at Peters Hall. The government and NICIL are arguing that lessees of state land are forbidden from transferring their interests to a third party.
In a statement on Saturday night, Hughes argued that not all lands owned by the state are necessarily State Lands. He contends that State Lands are restricted to lands which are referred to in the State Lands Act Chapter 62:01. Such lands do not refer to lands held by transport. He added that the transfer of State Lands is governed by the provisions of the regulations issued under the State Lands Act Chapter 62:01 of the laws of Guyana and requires every holder of state land whether by lease, licence or permission who would like to transfer their lease licence or permission, to make an application in writing to transfer the lease licence or permission.
Hughes contended that Lands owned or 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. This is the type of lease that NICIL entered into he contends.
He said that Lands held by transport are only subject to the conditions set out in the transport. “There is no law or regulation which requires that any written permission be obtained from anyone before land or any interest in that land is transferred by the owner/holder of the transport to a third party.
“There is no law or regulation which requires any State owned company or corporate entity to require written permission before any interest in the land is transferred by a Lessee (tenant)”, Hughes asserted.
He stated that the NICIL lands (immovable property) subject to the present ongoing Police investigations were held by transport by NICIL.
“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 said.
Further, he said that there is no law which requires state corporations or state companies to include in any lease of property held by transport by them, a provision that the written permission of NICIL be first acquired.
Hughes also addressed the question of whether the state lost money when NICIL lands were “sold” by the lessees to third parties.
He said that NICIL leased various properties to Lessees (tenants) at prevailing commercial rates based on the Government valuation of the property. He noted that this means that the Lessee (tenant) did not “buy” any land but merely entered into a lease with NICIL for twenty years and are obligated to pay the rent for the entire period unless the lease was terminated.
The Lessee (tenant) therefore could not “sell” the property as they did not own the property but a lease to the property for a period of 20 years or such period stated in the Lease.
When the lessee (tenant) entered into an agreement with a third party to “sell” their interest in the lease, they could only “sell” or dispose of what they had obtained from NICIL which is the remaining time of the lease.
“When the Lessee “sold” their interest the new Lessee (tenant) would still have to pay 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”, Hughes argued.
Prominent PNCR attorney James Bond is also a key figure in the ongoing investigation. He was released from police custody on Friday.
The Guyana Police Force and its Special Organized Crime Unit earlier this month received three files from Attorney General Anil Nandlall for the investigation of leases for several acres of prime state lands at Peters Hall which he said were done without any valuation, public advertisement or Cabinet decisions.
