Ashni Singh, Brassington in High Court challenge of legality of criminal charges

Last Updated on Thursday, 17 May 2018, 15:22 by Denis Chabrol

Former Finance Minister Dr. Ashni Singh and former Head of the National Industrial and Commercial Investments Limited (NICIL), Winston Brassington have asked the High Court to throw out charges of misconduct in public office because there is no legal basis.

“The common law offence of misconduct in public office cannot be committed where the servant in question is specifically excluded from consideration as a “public officer” under the Constitution of Guyana and/or general principles. As such any alleged misconduct by the applicants does not constitute misconduct in public office” they and their lawyers have said in court papers seen by Demerara Waves Online News.

High Court Judge, Franklyn Holder is next Monday scheduled to decide whether to grant a stay of the cases against Singh and Brassington in the Magistrates’ Court, pending the hearing and determination of an application for the High Court to scrap the criminal charges. The two are on GY$6 million bail each and they are due to reappear in the Magistrates Court on June 5, 2018 for the three joint charges. The basis for the charges are that they sold three tracts of land on the East Coast Demerara without or without due regard for  valuation.

Citing Guyana’s constitution, the Interpretation and General Clauses Act and the Public Corporations Act; the lawyers noted the issue of whether employees of semi-autonomous agencies and companies can be considered public officers has been addressed by several courts in Guyana and the Caribbean, including the Caribbean Court of Justice, and is so well known, that any suggestion otherwise by the legal advisers Detective Corporal 19664 Munilal Persaud, the Police Commissioner and Director of Public Prosecutions Shalimar Ali-Hack of the 1st and 2nd respondents, “is
so tainted that this Honourable Court should see it fit to grant this application”.

They said to charge them with the offence of misconduct in public office contrary to common law is an abuse of the process, arbitrary, capricious, whimsical, malicious, biased, without and proper evidential basis, made in bad faith, influenced by irrelevant and improper considerations and motives, unreasonable, discriminatory, unlawful, null, void and of no effect.

Singh and Brassington also contend in their application to the High Court for judicial review that no law or practice requiring valuations and more so private valuations are usually far exceed those by the Valuation Division of the Ministry of Finance. Their lawyers- Stanley Moore, Anil Nandlall, Mark Waldron, Ronald Burch-Smith and Sase Gunraj- further argue that the best way to determine market value is by bids.

“These agreements were approved by Cabinet based on a proposal which set out the selling price, buyer and other relevant terms of the intended contract or investment proposal. NICIL’s Board did not require valuations as they found they did  not reflect actual prices obtainable and as such were often misleading or unreliable.

The most important determination of what a market price is what a public bid produces. The valuations vary widely between different valuators for the same property as between the officers of the government valuation office and private valuations. In addition, Guysuco private valuations were substantially inflated when tested against the market,” the lawyers said in the court papers on behalf of Singh and Brassington.

On whether the charges are strong enough for the prosecution to prove, lawyers for the accused reasoned that there was no expressed or implied duty or responsibility to have valuations done. “There is no duty imposed on NICIL, Cabinet or any person involved in the sale of land by NICIL to obtain a valuation and as such the conduct alleged, even if true, cannot in law meet the high standard of misconduct required to  support the charges laid against the applicants,” the court documents state.

Singh and Brassington state that it common to the private sector, NICIL and the Central Housing and Planning Authority, and the Guyana Lands and Surveys Commission to sell lands without necessarily obtaining valuations or even considering the commercial value of land.

On the claim by the Special Organised Crime Unit of the Guyana Police Force that no due diligence was performed,  the sales were recklessly done or without valuation, Singh and Brassington said those  “have no legal meaning and are incapable of interpretation or application in any criminal proceedings.”

The former Finance Minister and the former Head of NICIL defended their decisions to sell the lands to National Hardware, Multicinemas Guyana Inc;  and Scady Business Corporation, saying that the agreements were approved by Cabinet based on a proposal which set out the selling price, buyer and other relevant terms of the intended contract or investment proposal.

The Court documents state that the land was sold to National Hardware Limited in December, 2009 by public tender after Cabinet and the NICIL Board approved the sale. As regards the land sold to Multicinemas, the documents state that the plot was already part of an expression of interest and tenders during the sale of comparable lands at Liliendaal. That agreement was made on May 14, 2011 for GY$185,037,000, at a price of GY$18,500,000 per acre which “was higher than comparable prices offered or received for land in the same area and as before”. “The developers proposed a significant investment in a similar facility in Guyana which the government considered advantageous to Guyana.”

Referring to the sale of land to Scady Business Corporation, which is owned by the principals of Russian Aluminium (RUSAL), the court documents explain that was approved by NICIL’s Board and Cabinet, the latter in September 2008.

Singh- in his capacity as then Finance Minister and NICIL Chairman- and Brassington on May 14, 2011 by way of an agreement of sale and purchase “acted recklessly when they sold Multicinema Guyana Inc. a 10 acre tract of State land at Turkeyen for GY$185,037,000 without first having procured a valuation from a competent valuation officer. Similarly, they are accused of selling 103 acres of state land, by an agreement of sale and purchase, to National Hardware Guyana Limited for GY$598,659,398 (VAT exclusive) with first procuring a valuation. The third and similar charge also has to do with the sale of 4.7 acres of land for GY$150 million to Scady Business Corporation, “knowing that the said property was valued at GY$340 million by Rodrigues Architects Associate, a competent valuation officer.

However, in the court papers filed for the High Court’s review of the charge, they claim that the charges were politically inspired. “These charges are motivated by political bias and that the 1st, 2nd and 4th respondents decision to institute the charges against the applicants are influenced the government to justify their political efforts to discredit the former People’s Progressive Party government as corrupt. These charges are an attempt to justify the continued allegations of  corruption against the People’s Progressive Party in the lead up the next general elections,”

They further contend that SOCU is well-known for its political commentary and its retention of government agents who make allegations of corruption against the former government and which to date have not been substantiated.