While arguing that there is nothing in Guyana’s laws which mandates that properties are to be sold in accordance with a certificate of valuation, attorney Anil Nandlall yesterday insisted that the case brought by the state against former Finance Minister Dr Ashni Singh and former head of the National Industrial and Commercial Investments Limited (NICIL) Winston Brassington over the sale of land under the former administration is defective.
Singh and Brassington, through Nandlall and attorney Ronald Burch-Smith, are challenging the validity of the charges of misconduct in public office, which stem from their actions while they served under the former PPP/C government.
“If my learned friend can point to any provision in the criminal law which mandates sales of property, whether private or public, to be done by way or by reference of [a] valuation certificate, then I rest my case,” Nandlall said.
Nandlall, the former Attorney General, was at the time continuing his submissions, which he began on Friday before Chief Justice (ag) Roxane George at the High Court in Georgetown.
Nandlall was adamant that no such provision would be found and he reminded the court that there were valuation certificates from different valuation officers that were “100% different in value” and it was based on the acceptance of the lower valued certificate that his clients were charged.
The valuation certificates being referred to are in the name of Compton Outar, the then government Chief Valuation Officer and a private valuator.
The attorney submitted that the charges were laid because the lower price, as stated by the government Chief Valuation Officer, was accepted. “That is the chief government evaluation officer, who says the lower price and [Singh and Brassington] are being charged because [they] didn’t follow a non-government valuation officer who is in private practice. This thing is upside down,” he argued.
Singh and Brassington have been jointly arraigned on three charges of misconduct in public office over the sale of three tracts of government land on the East Coast of Demerara, between December, 2008 and May, 2011. In one instance, it is alleged that the property was sold below market value, while in the other two the deals went ahead without proper valuations of the land.
It is alleged that Singh and Brassington sold a tract of land, being 4.7 acres at Plantation Liliendaal, East Coast Demerara, which was the property of Guyana, for the sum of $150 million to Scady Business Corporation, while knowing that the property was valued at $340 million by Rodrigues Architects Limited.
It is also alleged that by way of agreement of sale and purchase, they acted recklessly when they sold a tract of land, which was a portion of Plantation Liliendaal, Pattensen and Turkeyen, East Coast Demerara, being 103.88 acres, to National Hardware Guyana Limited for $598,659,398 (VAT exclusive), without having a valuation of the property from a competent valuation officer.
It was also alleged that they acted recklessly when they sold a 10-acre tract of land at Plantation Turkeyen, which was the property of Guyana, for the sum of $185,037,000 to Multicinemas Guyana Inc, without procuring a valuation of the said property from a competent valuation officer.
Nandlall told the court that the properties were sold at prices based upon a public advertisement. Reference to this advertisement, he said, was made in an affidavit submitted to the court.
The attorney during his submissions, explored in further detail the two ingredients in the offence: misconduct and public officer.
Noting that misconduct in public office is a common law offence, he submitted that Section 3 of the Criminal Law Offences Act provides that the English common law applies to Guyana but is only subject to our written law, which includes the Constitution. He said that our constitution provides a definition of who is a public officer. Further, the General Clauses and Interpretation Act, provides that wherever the term public officer appears in the laws of Guyana, it assumes the definition given to it by the Constitution. The constitutional definition of public officer, Nandlall argued, excludes that of a minister of government and a director of a company incorporated under the Companies Act and, therefore, he said neither of his clients would fit into the category.
He submitted further that the particulars of the offence makes no reference to either of his clients as public officers. “I consider that to be a fundamental defect… the offence is misconduct in public office,” he stressed.
Nandlall cited case law authorities to show where this type of defect exists and argued that courts in Guyana and the Caribbean have held that they can render such a charge a nullity.
He pointed out that his clients were at all times acting as a part of collective—Singh as a member of Cabinet and he and Brassington as members of a Board of Directors. “They were simply carrying out the decision of these two agencies,” he stressed.
Burch-Smith later clarified some queries the court had and subsequently added to some of the points raised by Nandlall.
He submitted to the court that large parcels of land in South Georgetown area were sold by government but the issue of commercial valuation had never arisen. He questioned why things are being done differently in this particular case.
Solicitor General (SG) Kim Kyte informed the court that the issues raised by the two attorneys were dealt with by the Court of Appeal in an application for early hearing which was filed on behalf of murder accused Marcus Bisram. That decision, she reminded, was later upheld by Caribbean Court of Justice (CCJ). She said that in her submissions to the court, she will be relying on that case as well as a similar one from Jamaica.
She will make her submission when the matter is called again on October 23rd at 10.30 am. Nandlall was instructed to file a supplementary affidavit regarding some of the exhibits which were not attached to his previously filed affidavit, on or before October 22nd.
Singh and Brassington, following their arraignment for the charges before chief Magistrate Ann McLennan earlier this year, had moved to the High Court and were able to secure a stay of the Magistrate’s Court from further proceeding with the matters against them until the hearing and determination of their challenge to the validity of the charges.
