About the tort of misfeasance
“…the tort of misfeasance in public office is concerned with the deliberate and dishonest abuse of office or the purported exercise of official power otherwise than in an honest attempt to perform the relevant duties of his office, resulting in loss or damage to the claimant…”
– Chief Justice Conteh
The Chief Justice, Dr. Abdulai Conteh, has dismissed the civil lawsuit that the Barrow administration had filed against former People’s United Party ministers Joe Coye and Florencio Marin, Sr., back in January claiming $924,056.60, plus damages and interest, for the sale of 59 parcels of land in Coye’s former constituency, Caribbean Shores.
The matter did not even get to full hearing, because the Chief Justice raised a preliminary issue: whether the civil suit for the tort of misfeasance could be sustained by the Attorney General against the former ministers, Coye and Marin.
Government had alleged that the lands were purchased in the weeks leading up to the General Elections, between December 2007 and February 7, 2008, from the government, under the People’s United Party administration. The transactions, GOB alleged, were done through Cheop Enterprises — a company owned by Colwin Flowers, former City Engineer and City Administrator, for $4,000 each but the lands were sold for at least 10 times the price, netting the brokers well over $2 million. The lots, said GOB, were resold for $40,000 to $60,000 each.
Coye, who has described the proceedings against him as politician persecution, claimed, however, that he has no financial interest in Cheop, and his accounting firm did the work for free because he wanted political capital. He has also challenged Government’s contention that the lots were sold at grossly undervalued prices.
In his ruling delivered on Tuesday, Dr. Conteh said that even though the former ministers could be sued, the Attorney General of Belize, the claimant in the case, could not use this avenue to seek redress, because the tort of misfeasance, which was being levied against the ministers for alleged abuse of public office, applies for private citizens.
“I think it is important to confine the tort of misfeasance in public office within its proper boundaries: the protection of members of the public by way of affording them redress against abuse of public office,” the Chief Justice said in his ruling.
As the Chief Justice suggested during the course of the preliminary hearings, Government could have filed a criminal case for misfeasance and not a civil case.
“It is my view that in the case of the state or government – as in the instant case through the Attorney General, alleging abuse or misuse of public office by public officials or wrongfully exercising official powers entrusted to them – there is the criminal offence of misfeasance in public office,” said the Chief Justice.
Another interesting issue raised during the course of July’s preliminary hearings was whether the officers could be held personally liable or whether having left office, the persons now holding their office – the members of the new administration, could be vicariously liable.
Government’s attorney, Lois Young, SC, maintained that the case against Coye and Marin was not one of vicarious liability, but that it held former ministers as personally liable for the $924,000 Government claims it lost as a result of the Caribbean Shores land transactions.
Attorneys for the defendants, Francis Fonseca for Marin and Dr. Elson Kaseke for Coye, argued the contrary – and maintained that there could be no personal liability, meaning that GOB could not claim the alleged loss directly from the defendants.
The Chief Justice said that depending on the circumstances, either personal or vicarious liability could apply. He said, however, that in principle, liability for the tort rests with the office the person holds or had held at the time of the alleged offense.
Even though Dr. Conteh has dismissed GOB’s case even before it got to full hearing, based on his views on the preliminary issue of whether the tort of misfeasance could NOT be applied in the case against Coye and Marin, Government has indicated that it intends to appeal Conteh’s decision.