NICA 3

NICA 3. NICA is a public company. It raised $5 million from mainly Anguillian members of the public on the promise that it would carefully invest the money raised to produce profits for its shareholders. NICA is obliged by the Companies Act to produce audited accounts to the shareholders every year. It had not been doing so for many years. It had not been paying dividends to its shareholders. By the year 2003, according to the Annual Return filed with the Registrar of Companies, the Directors were Marcel Fahie, Kennedy Hodge, Cecil Niles, Anne Edwards, Vida C Lloyd, and Vivien Vanterpool. The last previous Return filed appears to have been in 1997. I do not have a copy of it, so I am not sure who the Directors were in the earlier years. Those who resigned from the Board for one reason or another included, Rev John Gumbs, Courtney Devonish, and George Kentish. I can recall that Mitchell’s Chambers were the attorneys for the company, probably up to the date those Chambers closed in 1999.

In High Court suit 29 of 2003, two shareholders Bob Rogers and Carlyle Rogers brought proceedings against NICA. They asked the Court to appoint an Inspector to examine the books and records of NICA and to report to the Court on the state of the books and records and the reasons for the default of the Directors in not placing an Auditor’s Report before the shareholders since 1994. The Court made the order as requested. It appointed Avondale Thomas, a chartered accountant of Antigua and Montserrat to be the Inspector and to lay his report before the Court. There was no other remedy sought of the court. The Court was not asked to wind up the company or to make any other order than to appoint an Inspector.

Mr Thomas filed his Report in August 2003. The Thomas Report has been in circulation in Anguilla for nearly four years now. In it, Mr Thomas described the maladministration of the previous Directors. He made recommendations for improvement. We want to look at some of the findings. At the outset, it is important to note that he does not find there was any theft or embezzlement of funds. He finds there were inefficiencies. He finds that the Board of Directors failed collectively in their fiduciary duty to manage the business to the standard expected of a public company. He reports that the evidence of this failure is compelling. The Directors failed to ensure the company maintained the expected standard in the area of accounting, investing, and record-keeping. He found they failed to meet their statutory obligations to shareholders, creditors, and to the Registrar of Companies in the laying of annual audited financial statements. Bob Rogers tells me that the judge, in the last sitting on the matter, advised the shareholders that she had done all she could to assist them in the suit before her. If they wanted more remedies of the court, they would have to bring other proceedings.

What did the shareholders do as a result? Did they instruct the company to bring proceedings against the defaulting Directors? Did they clean out the stable? Did they elect a new Board? No, as I understand it, they elected some of the same Directors back onto the Board. Calvert Carty replaced Cecil Niles as Chairman of that Board. Matters continued as before. They continue as before up to this date. Did the new Board of Directors lay the Thomas Report before the Attorney-General and demand that he instruct the police to begin a criminal investigation into the matters revealed? No, of course not, the new Board included some of the same implicated Directors!

No Annual Return of Shareholders and Directors has been filed since the last one was filed by the new company secretary, Marva Audain-Thompson in June 2004. There was another general meeting in the year 2005. New Directors were elected. Some old ones were re-elected. No Annual Return was filed evidencing the new Board. No audited accounts have been filed. No report has been made to the shareholders. No word of any kind has come out of the Board of Directors since they were appointed. So, if in this series of posts examining NICA we are to apportion blame, let us lay the first blame at the feet of the shareholders. The shareholders have failed to take the appropriate degree of care in appointing members of the Board of Directors! In the next post, we will begin looking at some of the various findings.