Over two months after moving to the Supreme Court to strip seven ‘Pradoville 2’ land allottees including former president Bharrat Jagdeo of the ownership of the plots they controversially obtained in 2010, the State Assets Recovery Agency (SARA) has filed two more matters.
Civil recovery proceedings have been instituted against former head of the Office of Climate Change Andrew Bishop and Future Development International Inc. It is likely that these, as well as the first batch of cases, will be stayed until the determination of an application by Ramon Gaskin in the High Court which challenges the legitimacy of the agency.
SARA’s Deputy Director Aubrey Heath-Retemyer and in-house attorney Ronald Bostwick, recently briefed the Sunday Stabroek on the latest developments and it was disclosed that action will be taken against the remaining allottees in the coming months.
SARA filed suit to recover the lands from Jagdeo, former Home Affairs Minister Clement Rohee, former Housing Minister Shaik Baksh, Lisaveta Ramotar, who is the daughter of former president Donald Ramotar, businessman Ramesh Dookhoo, former Carib-bean Development Bank (CDB) president Professor Compton Bourne, and Florrie Loretta Ramnauth in late February.
Attorneys for SARA are arguing that the allocation of lands at ‘Pradoville 2’ was an act of fraud and in breach of the Constitution. The court is being asked to grant orders restraining the defendants and/or their servants from disposing of, attempting to dispose of, encumbering and or attempting to encumber, dealing with and or attempting to deal with the respective properties; orders setting aside the Certificate of Title; a Civil Recovery Order transferring the respective properties to the Asset Manager or such other person as the Court may deem or determine; and such further or other relief as the Court deems just, and costs.
A special investigation of the housing development, which was part of a larger probe of the financial operations of the Central Housing and Planning Authority (CH&PA) revealed that the allocation of the land was a clandestine arrangement that was handled personally by then PPP/C Housing Minister Irfaan Ali. It was concluded that a criminal case for misfeasance could be made against the PPP/C Cabinet members who benefitted.
The Special Organised Crime Unit (SOCU), after months of investigation, late last year charged Ali with 19 counts of conspiracy to defraud for his alleged role in the allocations.
Bostwick told the Sun-day Stabroek that former attorney general Anil Nandlall, who represented some of the defendants in the first set of matters, and attorney Devindra Kissoon, who represented the others, applied to the court for a stay of the hearing of the matters. He said that Justice Nareshwar Harnanan, who heard the application, granted a provisional stay on the agreement that they file their defence. Once this is done, the proceedings will be stayed. The deadline for the filing of the defences is sometime later this month.
Default
The attorney, in explaining how things got to this point, said that those represented by Nandlall failed to file a defence in time and consequently, SARA applied for a default judgment. Those represented by Kissoon, preempted that by applying for a stay in their matters before the expiration of the time for them to file a defence. Nandlall also applied to the court for a stay of the proceedings.
Bostwick said that Justice Harnanan decided that the applications for the stay would be granted “provisionally” but both attorneys would still have to file a defence on behalf of their clients. If they file the defence, he said, the substantive proceedings will be stayed pending the decision in the validity matter. This case was brought by Gaskin in July 2017. Attorney General (AG) Basil Williams, SARA and the SARA Director, Professor Clive Thomas, were listed as the respondents.
Through his attorney, Kissoon, Gaskin is asking the court to grant dozens of orders and declarations, many of which relate to the State Assets Recovery Act in its entirety as well as specific sections. The main thrust of his arguments is that the Act contains illegal provisions, some of which clash with constitutional provisions and as a result, it should not be implemented. He made mention of the authority given to the National Assembly to appoint the SARA Director and Deputy Director, saying it usurps the authority of the Public Service Commission, as well as the unlawfulness of the powers given to the Director of SARA.
Bostwick informed that the court has aborted three different dates for clarifications/hearings and Chief Justice (ag) Roxane George, SC, who has already heard the arguments, has not yet set a new date. He expressed the view that a decision is imminent.
He reminded that in Gaskin’s case, one of the 37 reliefs being sought is a conservatory order preserving the status quo before the Act that governs the agency was passed. “That has been rejected by the court so SARA is allowed to continue doing its work. So it is in the light of that that the application for a stay of the proceedings [Pradoville 2] could not simply be granted without any reservation whatsoever. The reservation which has been applied is that they must file a defence,” he added.
With respect to the recently filed matters, the only defence raised is the opposition to the existence of SARA. According to Bostwick, “no substantive defence” has been advanced. “So we are waiting with bated breath to see what their substantial defence is because the court requires a substantive defence,” the attorney said.
Heath-Retemyer, meantime, assured that more matters will be filed. “Yes, you have others but they fall in different categories and we have a little bit of technical problem preparing the others,” he said.
The allottees have been categorised as those who still remain in possession of the plots allocated to them, those who are believed to be the “intellectual authors” of the conspiracy to create unlawful conduct, and those who have broken the law further by reselling the land allocated to them.
Based on what has been explained to this newspaper, the agency is focusing on those who are still in possession of their plots. Once that list has been exhausted, attention will be given to another category.
According to the Deputy Director, the cases have to be prepared in a specific manner to meet the requirements of the court and, as such, the agency’s attorneys are doing their best to get all the required information before moving to the courts.
Engaged
Previously, the agency had informed that it had engaged some of the allottees with regard to them settling by paying the price difference. The agency has declined to name those who have settled thus far.
Asked whether any of the allottees have engaged the agency since February when the first set of cases were filed, Heath-Retemyer responded in the negative.
He reminded that there have been a ”few” settlements which were finalised before SARA moved to the courts.
He said that there are allottees, who indicated a willingness to “come in and talk.” He informed too that some of the persons who were taken to court, were in contact with the agency with regards to settlement.
If anyone comes forward now with an offer to settle, the Director, he said, will be the one to decide whether it will be accepted. “It would be the decision of the Director to settle matters. My belief is that there is a strong likelihood of settlement,” Heath-Retemyer said.
Both Heath-Retemyer and Bostwick expressed confidence that there is a strong case against all those persons who have been taken to court.
“We think that is the reason why they don’t want to defend it. They prefer to shield behind the Gaskin proceedings, which is a legitimate shield anyway,” Bostwick said.
The attorney later emphasised that the cases are technical in nature and are not based on opinions. He noted that while the agency is responding to the “indirect” pressures by working as quickly as possible, it is maintaining its professionalism. “It’s not that we are ignoring what’s around, we do feel the pressure but we have to do things properly,” he said.
Heath-Retemyer, meanwhile, emphasised that SARA remains committed to working diligently in the interest of the nation. He pointed out that it is one thing to have an opinion about a matter but it is a different thing to build and successfully present a case to the court.
“We, who are involved in this process, are far more anxious than people realise but in order to do a proper job, you have to ensure you reach the requirements as expected by the courts,” he added.
Nigel Hughes is the lead attorney in the civil recovery proceedings and in addition to Bostwick, he will be supported by Brenden Glasford, who is also attached to the agency.
SARA is specifically mandated to recover state property or benefits obtained through unlawful conduct by public officials or other persons.
The forensic audit, which was completed in the latter part of 2015, found that lots of varying sizes were allocated to six Cabinet members – Jagdeo, then Cabinet Secretary Dr Roger Luncheon and then ministers Priya Manickchand, Dr Jennifer Westford, Robert Persaud and Rohee – along with other persons with connections to the then government. Among the other beneficiaries are Director of Public Prosecutions Shalimar Ali-Hack and former Chief of Staff of the Guyana Defence Force, Gary Best.
The forensic audit found that awardees grossly underpaid for the lots by a total of nearly $250 million, while the state-owned National Industrial and Commercial Investments Limited (NICIL), the National Communications Network and the Guyana Power and Light Inc, were never reimbursed for millions spent to execute preparatory works. According to SARA, NICIL/Privatisation Unit spent between $71.4 million and $85.1 million on development works in the scheme
In one of the cases filed against Jagdeo, SARA said that the former president, by bypassing the legally required process for the passing of Title to Parcel 246 Plantation Goedverwagting, East Coast Demerara, was in “breach of his fiduciary duties and the Laws of Guyana.”
It claims that Ali committed an act of dishonesty and engaged in fraudulent conduct by requesting and or instructing the transfer of the title to Jagdeo, “when he was aware or ought properly to have been aware that the CH&PA was not the registered proprietor.”
SARA also criticised the then Cabinet for allocating land to a privileged group “instead of for the benefit of the greatest number of Guyanese.”
One of Jagdeo’s two plots measures 1.5 acres, according to the court documents seen by the Sunday Stabroek. He currently lives on the properties. The other defendants were allocated one plot each and these are way smaller than 1.5 acres.
Jagdeo has described the lawsuits as “political.”
