Attorney General Anil Nandlall SC is advancing plans for eradicating land sale fraud and what he sees as an extensive conspiracy encompassing notaries public.
He has also underscored the need for robust police investigation to pursue perpetrators.
Recently on the televised programme “Government in Action,” the AG described the issue as partly being the result of an “institutional failure” on the part of the agencies, whose responsibility he said, is to protect their own processes and by extension the proprietary interest of citizens.
Following the Caribbean Court of Justice’s (CCJ) observation of the need for statutory amendments, Nandlall in a February 28 interview with Stabroek News had said that plans were in motion to formulate the necessary amendments.
He said that the matter raised by the Regional court is indeed of fundamental importance to every Guyanese, in particular property owners losing properties at the hands of persons committing dishonest acts.
By Sections 22 (1) of the Deeds Registry Act, every Transport vests in the transferee, full and absolute title, but the proviso to the section contains an exception where the transport is obtained by fraud in the hands of parties thereto.
The AG pointed out that inherent in this provision and the case referenced before the CCJ which represents countless others, the systemic failure of which property owners fall victim becomes exposed.
In a ruling last month declaring that allegations of fraud have to be specifically pleaded and proven, the CCJ overturned a decision of the Guyana Court of Appeal which had ruled that a woman who bought land from another was involved in fraud.
The Trinidad-based court of last resort at the same time also, however, issued a call to the Government of Guyana to urgently consider reform of the Deeds Registry Act.
The matter before the CCJ surrounded the use of a fake Power-of-Attorney by an Ann Jeboo who claimed to have been acting on behalf of property owner Allan Price, when she sold the man’s lands to a Merlene Todd.
Jeboo was convicted of fraud; but the High Court would later dismiss an action brought by Price’s estate against Todd for the sale to be set aside on grounds that she was party to Jeboo’s fraud.
The estate was only awarded damages in the sum of $12,000,000 against Jeboo.
Following his death, however, Price’s wife appealed the High Court ruling; and got judgment in her favour in a finding by the local appellate court that Todd was involved in fraud. It was this ruling that Todd then appealed to the CCJ.
The Regional court would, however, affirm the High Court’s ruling that no fraud had been pleaded against Todd and that it was impermissible at the trial to advance the case of fraud against her and that in any event there was no evidence that she was privy to the fraud.
The CCJ observed, however, that since the original owner had been deprived of his land through no fault of his, it brought to the fore the need for legislative reform and needed amendments to the Deeds Registry Act to revise and improve the law to meet the needs of current land law realities in Guyana.
Alarming
Noting what he called the alarming prevalence of the commission of this type of fraudulent conduct, Nandlall emphasized the importance of police involvement in investigating such matters.
Referencing another fraud of this nature recently brought to his attention, the AG said that he had taken steps to call the Crime Chief requesting a full investigation and to examine it at every juncture of the transaction.
Against this background he said that if there is a Notary Public involved, who may have executed a Power-of-Attorney (PoA), that component of the transaction must also be investigated.
Since the matter would had to have been filed as the Deeds Registry also, the AG said that this is a component in the transaction which must be investigated too, as well as the officers attached thereto.
If the transaction was advertised in the Official Gazette, the AG said that the investigation must lead there also, so that it can be detected at which point the fraud would have been committed.
Nandlall said that too many property owners are losing millions at the hands of dishonest and unscrupulous persons, while noting that supported by the direct call from the CCJ, the entire system will be examined at both the administrative and statutory levels in order to achieve systemic improvements.
Noting the procedure by which a person can simply turn up at the Deeds Registry, pay a fee and request a copy of a transport, Nandlall endorsed the possibility that there may well be an organized network—inclusive of Notaries Public involved in facilitating the fraud.
Expressing the view that no one person can execute a scheme of such magnitude, the AG opined, “there is a wide and very integrated conspiracy at work.”
Missing volumes
Nandlall cited cases in which he said lawyers have encountered missing volumes in which transports are to be publicly recorded for permanent keeping, while noting that reports he has gotten implicate in many instances, the same number of Notaries Public.
He said he hopes that police investigations would be thorough and unearth the type of evidence which he said is capable of not only yielding convictions, but that can also assist his Ministry—which has responsibility for the Deeds Registry and the legal sector as a whole—to strengthen both.
Referencing a meeting he said he recently had with the Guyana National Printers Limited —printers of the Official Gazette—Nandlall said he found that one of the main reasons the “fraudulent design” is successfully perpetuated, is because of the inaccessibility of the gazette by the ordinary citizen.
To this end he noted the instrumental importance of the gazette being permanently available online which he said he had done during his previous stint as AG and also the amendment of the Deeds Registry Act to allow for Agreements-of-Sale to be registered when they are executed.
Once this is done, the AG said it would prevent a property from being sold a second time, if the potential purchaser exercises due diligence by checking at the Deeds Registry to ascertain whether the property is already the subject of a sale agreement.
The AG surmised, however, that these precautionary measures are not taken by members of the public, or even lawyers.
The Official Gazette was also available online during the term of Nandlall’s predecessor Basil Williams.
Nandlall said that the Official Gazette is crucial in the “preventative scheme” he intends to implement. On this point he said that that document is sold only at the Office of the President to where only about 300 copies are dispatched.
This, the AG said, is inadequate; while adding that the Office of the President cannot continue being the only place where the Gazette can be accessed, as that office is not accessible to all members of the public.
Nandlall said that the gazette should be placed at various locations throughout the country such as Regional Democratic Offices, Neighbourhood Democratic Council offices, Post Offices, popular stores and shops as well as social media, and other websites.
He said that once this is done and people begin to read and consult the gazette, they will then be able to see if and how their properties are being advertised. Nandlall said his Ministry is actively pursuing this as a viable option.
As it relates to changes in the statutory framework, the AG said he is currently engaging the Bar Association and has begun reviewing recommendations therefrom as well. He said that the Notary Public must be strengthened as this is an area in the transaction where the fraud is seen to be prevalent.
On this point the AG said that the quality of persons made Notaries Public will also be reviewed.
Nandlall said, too, that statutory safeguards will also be included in the law.
As an example, he said that a person wishing to have their documents notarized, must as a matter of law, also present an identification card, or the biographic page of their passport to the Notary Public.
He said that the Notary must then keep and attach that identification to the document being executed; while the Deeds Registry in turn must not accept for filing, a power-of-attorney which does not have that safeguard attached thereto.
Nandlall said that the process at the Registry has to be circumscribed in terms of how people access other persons’ proprietary records.
He said that as a government, on the one hand there is the desire to make business transactions easy and convenient, but at the same time, there is the risk of making the system too lax so that it is abused by fraudsters, and so a balance has to be struck to ensure security mechanisms.
By amendments to the law, the AG said that considerations may also have to be made for extension of the time transports are advertised in the Official Gazette to allow persons more time to access and scrutinize the gazette.
He said, too, that both the Deeds Registry and Powers-of-Attorney Act will have to be examined in order to ascertain how the two pieces of legislation can be strengthened. Because of the prevalence of the use of the latter to commit fraud, Nandlall said that some commercial banks have stopped accepting such documents to transact business.
Nandlall said that public education drives will also be done, even as he noted that property owners must play a role by being vigilant, if the entire system is to be strengthened and work effectively.
“It is they who stand to lose,” he noted.
The AG said that it is a serious issue which must be confronted head-on as people cannot continue losing their properties through no fault of theirs.
Nandlall said that all his recommendations are currently being looked at and will move toward swift implementation once the processes are complete.
In the meantime, however, the AG is urging property owners that the “easiest, simplest, cheapest” action they can take is to read the gazette every time it is published on the Official Gazette website, to ensure that their property is not illegally listed to pass to any unauthorized person.
