The million-dollar dispute over the University Heights land transactions involving two former People’s United Party ministers, ex-Minister of Health Joe Coye and ex-Minister of Natural Resources Florence Marin, Sr., had dropped off the radar since January, but the dispute has been resurrected inside the courtroom of the Chief Justice, Dr. Abdulai Conteh, who is pondering whether he should proceed to full trial or dismiss the Government’s case altogether.
Back in mid-January, the Attorney General had filed misfeasance lawsuits against Marin as first defendant and Coye, former Caribbean Shores Area Representative, as second defendant, accusing them of wrongdoing and abusing their public offices in the sale of 57 lots on lands that had once belonged to the University of Belize.
Misfeasance is defined as the performance of a lawful action in an illegal or improper manner. (Merriam-Webster Online)
A press release issued on January 12, 2009, had claimed that the lands were purchased from the government [through Cheop Enterprises — a company owned by Colwin Flowers, former City Engineer and City Administrator], for $4,000 each but sold for at least 10 times the price, netting to the brokers well over $2 million. The lots, said GOB, were resold for $40,000 to $60,000 each.
Immediately after the change in administration in February 2008, the Government issued caution letters to lot holders, putting the entire deal under public scrutiny. When Amandala probed the issue back then, Coye had argued that the increased costs were for infrastructural works and the development of the properties, which he claimed were swamp.
In its civil suit in the Supreme Court, Government contends that it should have actually received $1.2 million from the sale of the lots, but only $228,000 was paid into the public purse. Therefore, the Government is claiming $924,000 from Marin and Coye.
Meanwhile, the cautions that had been put on the University Heights lots have been lifted because the individual purchasers themselves had not been guilty of any wrongdoing, Government said in its January 2009 release.
The Barrow administration accuses Coye of using his office to sway Marin into approving the transactions.
However, attorneys for the defendants – Francis Fonseca and Magali Marin-Young for Florencio Marin, Sr., and Elson Kaseke for Coye – hold the view that because of the nature of the suit filed, GOB is in effect suing itself. They say that for action to be taken against the individuals, it is a criminal action that must be filed.
Only a private citizen could file such a civil suit, the attorneys argue, adding that a public official can only be sued in such a manner while still in office. They contend that for the persons themselves to be held accountable, it is a criminal case that should have been filed, alleging the misdemeanor of misfeasance, not a civil suit, such as this one, seeking monetary damages.
Chief Justice Conteh noted that the Government might be met with another hurdle were it to go down that route, but he did not elaborate on what that hurdle would be.
A central question raised in court on Tuesday, and ventilated on Friday and Monday, is whether such suits can be levied against persons after they have left their posts, and whether Government has filed within the one-year time limit.
The defendant must be a current public officer for such a suit to be valid, or else the current holder of the office – in this case the current Minister of Natural Resources, ironically, the very person who initiated the suit – becomes vicariously liable, and it is a member of the public that can sue, not the Government, the defense attorneys argued.
On Friday morning and afternoon, Senior Counsel Lois Young presented her arguments to the court, insisting that the Government had taken the correct course of action in bringing the case the way it did.
Young said that the reason that Government had brought a civil suit is because it is asking for restitution from the former ministers.
The Chief Justice noted, however, that even in the case of criminal misfeasance proceedings, the court has the power to order restitution.
Using case citations from other jurisdictions, Young argued that the Attorney General, as custodian of government property, has power to bring the misfeasance suit when damage has been done to the public purse, and that he could do so even after the persons in question have stopped holding public office.
Young contended, citing an Antigua and Barbuda case, that the Attorney General could file such action against former public officers. (Dr. Conteh noted that the case cited was brought 19 years after the transaction in question.)
“It can be brought against persons who were public officers at the time of the alleged abuse of public office, but who have ceased to be public officers when the claim is lodged,” Young argued.
She furthermore reasoned that it is the persons themselves who would be liable and not their office or successors, citing a case brought against ministers, including an Attorney General, who were no longer holding public office. Vicarious liability would apply, said Young, only where there is a third party in the suit.
The attorneys for the defendants disagreed, however.
“The case before the court…represents a complete misapplication of the tort of misfeasance in public office,” argued Marin’s attorney, Francis Fonseca. “The rationale of the tort of misfeasance in public office is the protection of the public. It is not to punish the holder of public office or to recover damages for their employer, the Crown.”
(A tort is an action in which damages are being sought against a defendant or defendants.)
Fonseca maintained that the persons accused had to have acted with targeted malice or in bad faith, and knowing at the time that his actions would endanger the plaintiff – in this case the Government.
Insisting that the Government must show that the actions of the ex-ministers caused it harm, Fonseca said that there are other mechanisms that the Government could have used, such as filing criminal charges against the defendants or filing for common-law misfeasance.
The tort is designed to ensure that someone holding public office does so in the best interest of the public, he added.
“Therefore the tort is not available or applicable against former public office holders,” he added.
Fonseca also argued that the Crown Proceedings Act, Section 4, expressly makes the Crown “vicariously liable.” He argued that no such action can be brought against a past minister or public officer, and if any such suit is brought, it is the present office that is liable.
The question of whether it was too late for the Government to levy the lawsuit when it did was also ventilated in court.
The Chief Justice asked Fonseca whether at the material time it was he, Fonseca, who held the post of Attorney General.
“Yes,” Fonseca replied.
“Would you have brought the action against the defendants?” the CJ asked him.
“No, not knowing the facts I know now,” Fonseca replied, adding later that he did not know anything about the alleged actions until the action was brought against his client.
It was revealed in court today that the transactions for which Marin and Coye are being sued took place between December 2007 and February 2008—the three months preceding the last general elections.
The court probed into whether the Government faces any limitation in bringing the matter to court now—that limitation, under law, is one year.
For his part, Fonseca argued that the current administration could not sue for any acts prior to January 2008, because those acts would have happened outside of the one-year time limit.
The Chief Justice opined, however, that the claim would still be viable, because the claimants had a year to bring the claim as of February 2008, and they acted within that time period.
Representing Coye in court today, Dr. Elson Kaseke argued that the case against his client should be struck out because, for one, he was not the person responsible for lands but was the minister responsible for health, and he could not have procured the transfer of the University Heights lots.
Kaseke adopted the arguments of Francis Fonseca, stating for the record his position that the Government cannot sue former ministers for misfeasance – that only current public officers can be sued, and even in that event, not by the government, but only by private citizens. Kaseke went on to stress his position that even where misfeasance is alleged, “the current holder of public office will accept liability.”
In her reply this evening, Young argued that if it were true that such civil suits could only be levied against persons while they are holding public office and not after, an aggrieved citizen, for example, may find that he or she gets no justice in the event that the government disassociates itself from the actions of a public official, saying that the official was on a frolic of his or her own. That would be unjust to the claimant. The Crown can sue or be sued, she furthermore maintained.
This is the first time ex-ministers of government are being pursued in Belize in this manner, and the outcome would set important precedents for holders of public office, and particularly for corrupt politicians.
Coye has had one victory already in his favor, though his troubles are not yet over. Last July, Coye and his driver, Cornel Flowers, brother of Cheop’s Colwin Flowers, were freed of theft charges in the sale of the Putt Putt land, also in Coye’s constituency.
Businessman Alfred Shakron had alleged that Coye and Flowers were responsible for swindling $300,000 from him in the land sale, while only $18,000 had been recorded as paid into the government treasury for what had been reported as a $575,000 transaction.
The Director of Public Prosecutions had told our newspaper that the files at Lands had “disappeared,” and that Shakron had said that he was no longer willing to assist the prosecution because of a death threat.
Prosecution reached a dead end, and Coye, for his part, viewed the abandonment of the case as a vindication. He told Amandala that the pursuit against him was “a grave miscarriage of justice.”
Coye continues to maintain that he is innocent of wrongdoing in the two sets of land transactions.