Hearings were held at the Caribbean Court of Justice (CCJ) in Trinidad & Tobago this week for the first Belize appeal to be brought before what is now Belize’s final appellate court. Former People’s United Party ministers Florencio Marin, Sr., and Joe Coye brought the historic application to challenge a Court of Appeal ruling in favor of the Government of Belize in a misfeasance suit against the ex-ministers.
The Attorney General of Belize, suing under powers given to him to act on Government’s behalf under Section 42(5) of the Belize Constitution, had filed a civil claim against Marin and Coye in the Supreme Court in January 2009, alleging that the two men caused the government to lose $924,000 in the sale of 56 parcels of land in the Caribbean Shores area, Coye’s former constituency, to Cheop Enterprises – in which Government has alleged Coye has an interest.
The panel which heard the case on Monday, November 29, 2010, was composed of five judges: Justice Michael de la Bastide, TC, CCJ President, along with Justice Adrian Saunders, Justice Desiree Bernard, Justice Rolston Nelson, and Justice Jacob Wit.
The appellants, Coye and Marin, had 7 grounds for appeal. Dr. Elson Kaseke, who represents Coye, told the court the Court of Appeal erred in law when it ruled for the government, because one has to look at why the civil suit for misfeasance in public office had originated in the first place. Kaseke holds that the intent was to protect citizens who suffer losses because of the actions of public officials.
For a member of the public to sue, said Kaseke, he or she must show that the damage was specific to the litigant because the tort of misfeasance allows claims for compensation.
“There must be specific proof of damages to the claimant, to the exclusion of the general public,” he added.
Retired president of the Court of Appeal, Elliott Mottley, had ruled that the whole of Belize was affected, said Kaseke, arguing at the CCJ that this means that the whole case becomes one for criminal proceedings, not a civil one.
There are several other available civil options, Kaseke also told the court. He said that the government could have looked at bringing a case against the accused for unjust enrichment. Remedies could also have been pursued via the Office of the Ombudsman or a Commission of Inquiry, he added.
The issue here, said Kaseke, is that the Government of Belize sought a course of action that is not open to the Attorney General.
Since historically, the tort of misfeasance has never been used in this way in the Commonwealth, said Kaseke, applying it in this fashion now could create a runaway horse that might prove to be rider-less and difficult to address later on.
Attorney for the Government of Belize, Lois Young, SC, told the court that the contention of the Attorney General is that the former ministers abused their power to facilitate the sale of lands for below the correct price.
Young told the court that the state comprises all the citizens of Belize, who are the ones that she says have suffered the damage.
“The tort,” said Young, “was never defined as one which cannot be brought on behalf of others…”
As to a claim against the men alleging unjust enrichment – one of the alternative remedies that Kaseke had cited in court – Young said that such a claim would have to bring in the third party, Cheop.
She underscored that there is no allegation being made in the proceedings by the government that the funds in question actually went into the pockets of Marin and Coye. It was Cheop (owned by Colwin Flowers, former City Engineer and City Administrator) that benefited from the cheap price, said Young.
President de la Bastide questioned whether the allegation is that the second appellant, Coye, was beneficially interested or had indirectly benefited from Cheop’s profits.
“Yes,” Young replied, but she stated that it could not have happened without the cooperation of the first appellant, Marin.
Former Chief Justice, Dr. Abdulai Conteh, had raised the central issue of whether the government was bringing the correct kind of lawsuit before venturing to hear the matter in the Supreme Court in 2009.
Conteh and Kaseke have both put forward the position that a criminal case for misfeasance should have been pursued instead, but Young offered, in the court hearing, that this power really lies with the Office of the Director of Public Prosecutions (DPP).
Even if the allegation were to be made by a private person, Young said, the matter would still have to go to the DPP for a decision on whether to prosecute or not.
Justice Bernard noted that the complainants would not be able to recoup any money by seeking criminal prosecution.
Another judge questioned the act of having civil charges pursued in court, in proceedings which may drag on for several years – such “unpleasant allegations” could do damage to the political career of the accused and require him to defend himself out of his own pocket, he commented.
A criminal charge is far more damaging, Young responded.
“In a case like this, who would protect the public purse?” she questioned.
“In the absence of [the Attorney General’s] ability to recoup the loss, who can then bring the claim?” she probed as well.
If the concern is that the Attorney General would abuse his power by bringing such a claim of misfeasance in public office, Young said, he could do that also by bringing an unjust enrichment claim.
Legally, said Young, there is no reason in law to limit what allegation the Attorney General can bring.
The case, she said to the CCJ judges, underscores the fact that the Attorney General is entitled or is under a duty to sue and recover for damages to public property.
Justice Jacob Wit read the Oath of Allegiance and Office for Belize ministers and questioned: Does that have any legal effect in reality between a minister and the state?
“If we go along with what you’ve said [that the tort of misfeasance can be applied via civil claim for compensation], we’d be breaking new ground,” Bernard told Young at the CCJ.
Judgment on the Marin matter has been reserved for a future date.
“All parties and indeed the whole of Belize will benefit from having a final and authoritative ruling on the issue which this case raises,” President de la Bastide had said upon taking the case in October.