No Fraud!

The Supreme Court has dismissed a $6-billion fraud lawsuit against Total Jamaica Limited and attorney Peter Asher over gas station purchases two decades ago, ruling the case “devoid of credibility” and clearing them of wrongdoing.

“The claimant (National Fuels and Lubricants Limited) has failed to discharge the burden of proof in establishing that the agreements for sale and the transfer documents were forged and that the properties were transferred to the 1st Defendant (Total) fraudulently,” declared Justice Stephane Haisley-Jackson in her judgment handed down in December. “I have found the claimant’s case to be devoid of credibility.”

In the 69-page written opinion released this week, she also ruled that the oil company had paid over all monies due under the agreement.

National Fuels and Lubricants Limited (NFL) is to pay Total and Asher’s legal fees.

The Roy DeCambre-owned NFL sued Total and Asher in 2019, claiming that eight of the properties taken over by Total were never legally transferred and sought $6.4 billion in compensation for loss of income. DeCambre had also alleged that Asher, who was Total’s lawyer during the transactions, forged his signature.

Total Jamaica and Asher denied wrongdoing, insisting that the deal with National Fuels covered 10 service stations and other assets valued at US$9.1 million and that all sums due were distributed according to agreements struck in January 2004 and subsequently.

Total Jamaica is a wholly owned subsidiary of Total Energies, one of the largest oil companies in the world.

The case stretches back to 2003 when DeCambre said he decided to sell the gas stations because he was sick. He told the court that a verbal deal was reached in January 2004, and he received a payment of US$4.1 million for goodwill, a non-compete agreement and the trade name of National Fuels. He acknowledged getting the money but argued that it had nothing to do with the sale of the properties.

However, DeCambre said when the time came for him to sign, he, in fact, started to sign and then he hesitated and asked Asher why he had brought the documents and not his attorney, Ian Philipson, who later died. He said he also asked Asher about an “under the table” payment of US$6 million for the land value of the gas stations.

DeCambre said he hesitated to sign any further documents and proceeded to call his attorney. He said he saw Asher leaving the building with the documents.

The businessman said in April 2004, he was refused entry into the gas stations and subsequently went to the National Land Agency for copies of the titles but was told they were not available. He reported the matter to the police Fraud Squad in 2005.

DeCambre insisted that he did not sign the sales agreement or the documents to transfer the properties, that the real sale price was US$15 million and that the agreements were “verbal”.

National Fuels relied heavily on the expert testimony of Sergeant George Dixon, a document examiner who concluded that the signatures on the transfer documents did not match DeCambre’s known signatures and were likely forged by someone with a similar handwriting style to Asher’s.

NFL’s claims were wholly rejected by Total and Asher, who argued that the sale was legitimate. They presented evidence of various agreements, including the sales agreements to demonstrate a clear intention to sell the properties.

They also claim that the full purchase price was paid, with portions used to settle NFL’s debts and the remainder paid to NFL’s attorneys.

Ruth Baker, a former legal assistant to NFL’s attorney, Philipson, testified that DeCambre signed all the agreements for sale and land transfers on behalf of NFL.

Total and Asher also relied on evidence from Justice of the Peace June DaCosta. DaCosta testified that in 2006, while employed at law firm Myers, Fletcher and Gordon, she witnessed DeCambre and his mother signing documents, giving NFL’s new attorney, King’s Counsel Stephen Shelton, power of attorney to deal with some of the transactions.

Unreasonable delay

Total and Asher rejected the findings of document examiner used by DeCambre and produced an analysis from another analyst, Katherine Koppenhaver, which rejected the allegations of forgery.

They also argued that NFL’s claim was not filed in time and was also barred by laches, a legal principle dealing with unreasonable delay in bringing a claim. They said DeCambre waited too long to challenge the transfers.

Justice Stephane Haisley-Jackson accepted the argument that the lawsuit was filed out of time as based on DeCambre’s knowledge of certain things and the six-year limit, the claim for damages should have been filed from 2012 and 2014.

However, the judge said she would assess the other aspects of the case should it be determined that she was wrong about the lawsuit being out of time.

She found NFL’s case lacking in credibility on various points. She noted early that NFL’s claim that DeCambre did not sign the sales agreement was “inherently contradictory” because he signed the company’s lawsuit documents, which included a copy of the signed sale agreement.

“It begs the question, at what point did he decide he was no longer interested in selling these properties and transferring his interests? Was this after he had collected the money for the transfers?” the judge asked.

DeCambre also claimed that it was a “mistake” when he admitted in a police statement in 2019 that he had signed the sale agreement. His explanation that he was “probably naive” when he signed the court documents, which contained evidence of him signing the deals, was also rejected by the judge.

“There is nothing naïve about him, particularly as it relates to business transactions. In fact, I have found him to be quite artful,” she said, noting that some of his explanations “defied logic and common sense” and showed the lengths he would go to, “to support his account even when it meant impugning another person’s character”.

The judge said: “Even in the face of all of those prior statements and exhibits, DeCambre insisted in his evidence on oath that he never signed the agreement for sale. This is blatantly inconsistent and rendered his evidence from the outset incapable of belief. Not only was his evidence inherently contradictory, but it also contradicted the evidence of other persons whose veracity has not been impugned.”

The court said there was an “irregularity” in how the documents were witnessed but said it did not render the transfers invalid. It criticised Peter Shoucair, a justice of the peace used by Asher to witness some of the documents signed by DeCambre. He signed as a witness without being present when the documents were signed.

Asher was also criticised for how he handled that process and the withdrawal of money, by a non-signatory, from an escrow account with funds belonging to NFL.

“Asher did act in a manner outside of what is consistent with the cannons of ethics and the expectations of attorneys-at-law in transactions of this nature, but this without more does not translate to a fraud,” the judge said.

The judge also slammed the document examiner used by NFL, saying that the lack of analysis was “remarkable”.

While the judge accepted more of the analysis from the expert used by Total, she questioned the choice of examiner. The judge pointed out that Koppenhaver could not identify the signatures when DeCambre engaged her years earlier but was able to do so when Total hired her.

“So how is it that years later she is able to do this? She was questioned about this and explained that now, she had more signatures to work with,” the judge wrote.

‘More acceptable’

Ultimately, the judge said Koppenhaver’s evidence and analysis, which excluded any forgery by Asher, were “more thorough” and, therefore, “more acceptable”.

The court also rejected DeCambre’s assertions that signatures on a 2006 settlement agreement had been forged. That document was signed in the presence of Shelton, who had taken over from Philipson, who had died.

Haisley-Jackson said it was true that no witness testified that they saw DeCambre sign, but she said that that was not necessary, based on her findings.

“The defendants have successfully refuted the claimant’s case. I am satisfied on a balance of probabilities that it was DeCambre and [Wellesely] Melhado (who died) who signed the transfers on behalf of the claimant and that the transfers were valid,” she said.

She said that while DeCambre was integral to the negotiations, he was not a “witness of truth” and that failed to discharge the burden of proof in establishing that the sale agreements and the transfer documents had been forged and that the properties were transferred to Total Jamaica fraudulently.

The trial took place across three months last year. NFL was represented by attorneys Keith Bishop, Shanique Scott, and Janoi Pinnock, instructed by Bishop & Partners.

Total Jamaica and Asher were represented by two King’s Counsel, Maurice Manning and Caroline Hay, and attorneys Allyandra Thompson and Alexandria Fennell, all instructed by Nunes, Scholefield, Deleon & Co.

In October 2023, Asher was acquitted of criminal charges brought against him over the sale of the gas stations.

jovan.johnson@gleanerjm.com