NICA 5.
The National Investment Company of Anguilla Ltd started operating in 1989. It raised EC$5 million from members of the
In the year 2003, the father and
son team of Bob Rogers and Carlyle Rogers commenced litigation in the High Court of Anguilla in suit No 29 of 2003. They complained about the state of affairs, and asked for an Investigator to be appointed. The Court appointed chartered accountant Avondale Thomas to make an investigation. He found gaps in the company’s records which made it difficult for him to discover all the damage that had been done. As he explains in his Report filed in the High Court in August 2003, he was not doing an audit of the company’s accounts. He was merely investigating the company’s records and documents with a view to making recommendations for improvement. He comments at page 5 and onwards on a number of his findings about the records.
Land documents. The 
company owns 36 acres of land at Gibbons Estate and 2 acres at Sandy Ground. Mr Thomas was unable to locate in the company’s files any Land Certificates, survey maps, receipts, or transfer documents relating to either of the properties. Eventually, the newly appointed company secretary, Marva Thompson managed to get copies for him at the Land Registry. Mr Thomas discovered that the lease of the Sandy Ground property to Anguilla Rums had expired some years ago. No new lease had been put in place.
Jem Homes Inc. NICA
invested money in this company. The money was lost. Mr Thomas was unable to locate the records relating to this investment. He eventually found some documents, but when he raised a number of concerns about them, he was told the documents belonged to Kennedy Hodge’s family and not to NICA.
Board Minutes. Chairman 
George Kentish revealed that minutes of Board meetings were not always kept. When they were kept, they were not always brought to the next meeting for ratification. When they were kept, they were not always properly filed and kept in a secure location. This is contrary to the provisions of the Companies Act, which requires that minutes of all Board meetings be kept.
Accounting Records. These 
were kept in a grossly inadequate state. As a result it was not possible to evaluate the financial position of the company for eight years or to make decisions on the basis of properly constructed financial data.
Audit Statements. Under 
section 128 of the Companies Act, the Directors are obliged to place before the shareholders in annual general meeting the report of the auditors of the company’s financial statements. The Directors were in clear breach of this statutory provision. No financial statements had been presented since those of 1994.
The situation described above is appalling. It reveals a rudderless and leaderless company entrusted by thousands of Anguillians with, in some cases, their life savings. Instead of hiring competent managers and setting about a planned development of the company’s assets, the Board acted like a volunteer football club, nickel and diming their auditors and staff to death. In subsequent posts, we shall see how they minded the pennies while squandering the hundreds of thousands of dollars.
Kennedy has asked me to publish this for him:
ReplyDelete-----------------------------------
Dear Don,
The report on NICA by Mr. Avondale Thomas is demonstrably false and highly defamatory of me, and totally misrepresents the facts. Some of Mr. Thomas' conclusions and statements are so egregiously false or wrong that I verily believe that the report is malicious.
It has therefore always been my intention to sue over the report, but I had not moved quickly because I did not want to irretrievably sever relationships with NICA and the persons involved. I would very much like for the truth to come out, and in fact I welcomed the investigation when it was announced because I thought that NICA's shareholders needed to know what was going on in their company.
When Mr. Rogers' group requested to see NICA's accounts BEFORE they moved on to legal action, I was the ONLY DIRECTOR who advocated, and very strongly so, that their representative(s) be WELCOMED into NICA's offices to review NICA's records. All other directors participating in the meeting, as well as the company's accountant, disagreed on the grounds that the auditors represented the shareholders' interests and thus the auditor's review of and report on the company's records was the proper answer to Mr. Rogers' group's request. I thought this decision was wrong-headed and went against the grain of shareholder ownership of the company and shareholder democracy. I was very upset at the decision but I could do nothing about it as I was the only vote in favour of allowing the Rogers' group to access the company's records.
Prior to the Rogers' group request, I myself, AS A DIRECTOR OF THE COMPANY, had seriously contemplated bringing a legal action against the Board for failures in properly fostering the company's best interests, and actually consulted a lawyer to institute the action but was legally advised against it. I had also drafted a letter to the shareholders expressing my concerns about what was going on in their company, but was advised against this also on the grounds that it might only result in my being sued. I was therefore privately very pleased when the Rogers court action was insituted and the investigation ordered, as I felt that that at last the shareholders were going to find out what was going on without my having to expose myself to lawsuits. I looked forward to the investigation.
I was shocked by the sheer erroneousness, total misrepresentation of the facts and the malice of Mr. Thomas' report. Not only have his falsehoods and misrepresentations caused me personal harm and injury, they have caused immense harm to NICA as they caused NICA's shareholders to take precisely the opposite course of action to that which in my view they should have taken. With the facts totally misrepresented, NICA's shareholders had no guidance as to the most approriate course of action, and I verily believe that Mr. Thomas' misrepresentations are the root cause of NICA's lamentable status today.
I was not given proper opportunity to counter Mr. Thomas' misrepresentations before the Court accepted his report, and have therefore been left only with the option of shown it to be wrong-headed after the fact and to take whatever legal action is possible.
I have therefore retained Mr. Anthony Astaphan, S.C. to move forward my legal action over the report. In this regard, I am asking you to give me the opportunity to discuss the report with you, and to refrain from further publishing the report. I see no benefit accruing to NICA's shareholders or the public at large from giving credence to total misrepresentations, especially when these misrepresentations are the cause of NICA's lamentable status today.
Yours respectfully,
Kennedy W Hodge
Hello Kennedy,
ReplyDeleteI have as requested posted your response on the Blog. As I explained this morning, I am not able to agree to cease the posts on NICA. It would do more harm that good to everyone if I did so. So long as you are satisfied that I am not misrepresenting the contents of the Report, there is a public interest in learning about its contents. Additionally, other Boards may learn to their benefit from the good governance lessons contained in it.
Sincerely,
Don
If Kennedy had grounds to suppress the Avondale Thomas Report, he's had 3 1/2 years to bring an action for libel. Instead, he has chosen to allow questions about his conduct not only to exist in the community but to breed like rats. It is outrageous that he now tries to place the burden upon you, Justice Mitchell, to silence the voice of this neutral professional observer from Antigua who had nothing to gain by misrepresenting the facts.
ReplyDeleteThe NICA story has cast a pall over all future public investment companies in Anguilla. For the good of our island and our children we need to expose the truth and punish the guilty. The NICA stink will only go away with the light of truth.