Challenge of SARA against QAII fixed for December 5

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Former Minister of Finance, Dr. Ashni Singh (left) and former Chief Executive Officer of the National Industrial & Commercial Investments Ltd. (NICIL), Winston Brassington.

THE challenge brought by the State Asset Recovery Agency (SARA), seeking Civil Recovery Orders against Queens Atlantic Investment Inc. (QAII) has been adjourned until December 5, 2019, due to a constitutional motion against the SARA Act.

SARA is seeking a Civil Recovery Order for GY$2, 701,619,960 under the State Assets Recovery Act 2017 from QAII, which is owned by Bobby Ramroop, best friend of Opposition Leader, Bharrat Jagdeo.

On Thursday, September 19, 2019, the matter was called before Justice Diana Insanally at the High Court, but was forced into an adjournment due to an ongoing case involving the SARA ACT which is being used in this case.

Attorney-at-law, Ronald Bostwick, is representing SARA’s director Clive Thomas while QAII is represented by attorney -at- law, Devindra Kissoon.

In 2017, Social activist, Ramon Gaskin, had filed a legal challenge at the High Court against the SARA ACT 2017 with the aim of having it scrapped.

Dr. Clive Thomas, Director of the State Assets Recovery Agency (SARA)

The case ‘Ramon Gaskin VS the Attorney General of Guyana, State Assets Recovery Agency and the Director of the State Assets Recovery Agency, was filled with over 37 challenges to the act, which deemed the SARA Act “unconstitutional, unlawful and void.

According to the court documents filed, the challenges are interfering with the legal professional privilege and the possible violating of a citizen’s right to privacy, by allowing the Director of the SARA to access confidential financial information from banks and the Guyana Revenue Authority (GRA) without a court order.

Gaskin is arguing that the Act does not give a citizen equal protection before the law and there is no requirement to have reasonable grounds to commence investigations.

The Act violates the doctrine of separation of powers, since it directs the Court how to act in certain circumstances, and even allows ex-parte orders to be granted without procedural safeguards to protect the citizen’s interests, or without providing that the orders be limited in duration.

The case is currently before the Chief Justice Roxanne George.

In a fix date application filed by SARA against QAII, it makes an application for a civil recovery order in the sum of $2,701,619,960, representing money wrongly denied to the people of Guyana by reason of the unlawful conduct of a public official or any other person, amounting to a breach of fiduciary duty or fraud.

SARA has filed 15 grounds in its FDA, including one which stated that QAII benefited in connection with the unlawful conduct of a public official in respect to state property.

This is making reference to the former Chief Executive Officer of the National Industrial & Commercial Investments Ltd. (NICIL), Winston Brassington and Former Minister of Finance, Dr. Ashni Singh.

Queens Atlantic Investment Inc. (QAII) owner Bobby Ramroop

The application indicates that the then People’s Progressive Party (PPP) Cabinet approved a formula for the terms of the sale that required a US$27M investment over three years and a sum of money reflecting a valuation of the property. However, the Winston Brassington-led NICIL, at the time, concluded the sale based on a formula suggested by the purchaser, resulting in an investment of just US$21M being accepted and QAII paying some GY$344.5M less than would have been payable further to the formula approved by Cabinet.

The Certificate of Title was passed to QAII and a Vesting and Transfer Order dated December 4, 2010 was made by the then Minister of Finance, Dr. Ashni Singh.

According to the court document NICIL, is a company owned by the Government of Guyana and engages, inter alia, in property shareholding and investment management of State-owned properties, of which Government is the beneficial owner.

The document is contending that NICIL wrongfully sold 18.871 acres of land on Plantation Ruimveldt, East Bank Demerara (EBD) to QAII, who was leasing the Sanata Textiles complex and entered negotiations for its purchase.

Against this background, SARA, the applicant, believes that QAII obtained the property by the unlawful conduct of NICIL’s then Chief Executive Officer, at a gross undervaluation amounting to an unjust benefit to or enrichment of themselves in the amount of $2,701,619,960, rather than for the benefit of the state by whom NICIL was also entrusted.

“ It is the Director’s belief that the above-mentioned facts and circumstance give rise to an irresistible inference of unlawful conduct, in satisfaction of the balance of probabilities standard of proof under section 15 (3) of State Assets Recovery Act 2017, for obtaining a Civil Recovery Order from the High Court” the applicant said in its court document.

The applicant will present documentary evidence to Justice Diana Insanally of the affidavit of the SARA Director; the Cabinet decision on May 15, 2007; a letter from NICIL’s Chief Executive Officer (CEO) dated July 10, 2007; the minutes of the privatization board on October 18, 2010 and certified copies of the certificates of title passed to the respondent.

In 2018, following the revelation of the illegal sales of the state lands, former Finance Minister under the PPP administration, Dr Ashni Singh, and former Chief Executive Officer of the NICIL, Winston Brassington, were slapped with three counts of misconduct in public office. The men are currently out on $6M bail each and are before the Chief Magistrate Ann McLennan at the Georgetown Magistrates’ Court.

However, the duo had moved to the High Court before Justice Franklin Holder, who granted a stay of the charges of misconduct in public office pending the outcome of the fix date application before Chief Justice Roxanne George-Wiltshire.

Meanwhile, Chief Justice Roxane George-Wiltshire had granted an interim stay of proceedings in the misconduct in public office charge for the sale of Sanata Textiles to Queens Atlantic Investment Inc.

The move prevents the Magistrates’ Court from proceeding with the criminal charges levied against them by the Special Organised Crime Unit (SOCU). The matters come up in November, 2019.

Brassington, in December 2015, had said he was willing to undergo public scrutiny in the courts of law, maintaining that he was a man of integrity.

One of the forensic audit reports on the operations of NICIL suggested that, under the PPP administration, NICIL engaged in malpractices, and had made poor decisions on behalf of the people of Guyana.

The audit, which was conducted by former Auditor General, Anand Goolsarran had recommended criminal and/or disciplinary action against all those responsible for the interception of State revenues totaling $26.858B, in violation of the constitution. Goolsarran had said that several laws were broken.

Brassington, who left Guyana in December 2015, was said to be living in Florida, where he, reportedly, operates a business.

This is not the first land scandal to rock the former People’s Progressive Party (PPP) Administration, as the party’s current Presidential Candidate, Irfaan Ali, is before the court, accused of defrauding the State of over $174M, after selling the lands at undervalued prices.
Lands were sold to former President Bharrat Jagdeo; former Cabinet Secretary, Dr. Roger Luncheon; and former ministers Priya Manickchand, Dr. Jennifer Westford, Robert Persaud and Clement Rohee; Director of Public Prosecutions (DPP) Shalimar Ali-Hack, and former army head, Gary Best and Fortune Developers Inc., Guyana and several others.

Justice Holder had denied a stay of proceedings when the matter was placed before the High Court, challenging the legality of the charges before the Chief Magistrate.

Not pleased with this decision, Ali and his battery of attorneys took the matter before the Appeal Court Judge, Dawn Gregory, who also denied the application.

In another attempt to get a stay in the matter, Ali has approached the full Court of Appeal to overturn the ruling of Justice Gregory.