I read with great concern the article “The Tort of Misfeasance and the State’s Right to Sue Public Officials,” reproduced on pg. 39 of the Sunday, May 19 edition of the Amandala. I say concern because if one were to follow this case from its inception in 2009 to its conclusion in February 2013, one would get a better understanding of the abuse of state power and how to address it.
Both CJ Conteh and the two senior judges of the CCJ adjudged that the tort of misfeasance is a legal tool for aggrieved citizens to use against the abuse of state power and not for the Attorney General to use against citizens. They both cautioned against the abuse of the tort by the Attorney General, particularly in jurisdictions where the Attorney General is also a politician.
Nevertheless, the Attorney General was given the go ahead to prove his claim in the court of the Hon. Chief Justice Kenneth Benjamin.
It is now public knowledge that the case was struck out. The witness statements of the claimant could not stand up to the scrutiny of the Evidence Act and the Court Procedure Rules. They were irrelevant, unsubstantiated, hearsay; in other words they were substantially non-compliant and therefore inadmissible.
On the other hand there was evidence produced by order of the court on the request of the defendants that lots were sold in the very same project after they were fully developed for far less than the undeveloped lots.
Is this not the political vendetta that the CCJ was cautioning about where there is an Attorney General who is also a politician? Will the Attorney General now proceed with the tort of misfeasance against the Minister responsible in light of the evidence before the court?
This is the test of moral authority.