Charges fail to establish misconduct by Singh, Brassington, Nandlall tells court

 September 30 2018

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Calling the misconduct charges levelled against former Finance Minister Dr Ashni Singh and former head of the National Industrial and Commercial Investments Limited (NICIL) Winston Brassington unprecedented, attorney Anil Nandlall on Friday told Chief Justice Roxane George that the facts did not substantiate the decision to prosecute them.

At a hearing for arguments on Friday at the High Court, Nandlall said that in fact, not only were the charges unknown in Guyana, but they could not be made to stand under the circumstances which they have been brought against his clients by the Director of Public Prosecutions (DPP).

Singh and Brassington are challenging the legality and validity of charges of misconduct in public office, which stem from their actions while they served under the former PPP/C government.

They have argued through Nandlall, who served as Attorney General under the former regime, that because the charges are bad, they should be entitled to be review.

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.

Following their arraignment for the charges before chief Magistrate Ann McLennan earlier this year, Singh and Brassington 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.

Nandlall has argued that while general rule dictates that criminal charges be determined in criminal courts, his clients’ case was not an “ordinary” one and so they have come before the Chief Justice for the DPP’s decision to institute the charges be reviewed.

The Attorney General, against whom the application by Singh and Brassington was brought, has advanced that the DPP was within her rights to institute the charges, while adding that that the applicants are unable to establish that the DPP acted in bad faith, or that there were any exceptional circumstances or that the charge was bad in law and thus there is nothing to be reviewed.

However, addressing the issue of misconduct, Nandlall said that to sell a property below market value was not ipso facto unlawful, nor is not obtaining a valuation certificate from a valuation officer an inherently criminal or unlawful act. He declared that if a government wanted to sell a property below the market value, it is to the electorate that it must answer and not to the criminal courts, while adding that there is no existing law in Guyana which says that a government needed to answer to the court.

“So where is the misconduct?” Nandlall questioned.

He added that there was no allegation that his clients acted dishonestly nor did they derive any personal gain from the sale of the lands, the proceeds of which, he said, went directly to the state’s coffers.   

Noting allegations that the men acted “recklessly” because they did not obtain a valuation certificate, Nandlall questioned “where in the law of this country does that become a requirement?” 

The lawyer said that the findings of a valuator’s certificate is only that person’s expressed opinion and that if that person’s opinion is not conformed to, it could not be the intention of the law that charges be automatically laid for failure to conform to an opinion.

That, he stressed, could not be the standard for grounding criminal liability as it would be opening the flood gates to greater issues. He said that his clients had been executing the directives handed down to them by the Cabinet, which had approved sale of the lands at the time.

According to Nandlall, under the circumstances, the men could not refuse to comply. “There is no misconduct here to attract criminal sanctions,” he reiterated.

Meanwhile, attorney Ronald Burch-Smith, who also represents the applicants, observed during the hearing that when one examines the method of conveyancing used, it would reveal that the seller of the land was NICIL, the government entity to which the land belonged. As a result, he sought to argue that Brassington was merely the signatory to the document authorising the sale by NICIL, which would have in turn authorised him.

“The land did not belong to him and he was not the principal actor on the transactions,” the lawyer said.

It was against this background that Burch-Smith argued that while the charges say that the property was sold by Brassington and Singh, there is no evidence to so substantiate and so on that basis, the charge is “illogical.”

Nandlall’s submissions will continue when continue when the matter is called again tomorrow afternoon. Responses from the state will thereafter be heard.