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The Tort of Misfeasance and the State’s right to sue public officials

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Fri May 17, 2013

by Olivia Robinson-Moss, Eugene Dupuch Law School

The CCJ in the case of Marin & Coye v. AG of Belize had to decide whether the Attorney General of Belize could sue two former ministers of government for the tort of misfeasance in public office. The State sought to recover damages for loss suffered, due to an alleged abuse of power by two former ministers of the government, which the Attorney General claimed constituted misfeasance in public office. The alleged loss involved the sale of national lands at an undervalued price, from which the appellants allegedly obtained financial benefits.{{more}}

The Court, at first instance, ruled that the Attorney General could not sue for misfeasance in public office as only private persons and not the State could take such action. The Court of Appeal reversed the ruling and held that the Attorney General, as the guardian of public rights, was entitled to institute proceedings against the former ministers for misfeasance in public office for loss of public property.

The Judges of the CCJ considered what constitutes the tort of misfeasance and whether the Attorney General had standing to bring such a case. The majority acknowledged that misfeasance is almost exclusively used by individuals seeking redress for infringement of a variety of rights by public officials, but they saw nothing wrong with the Attorney General also suing to recover damages for losses suffered by the State.

Two of the CCJ Judges dissented, taking the view that the tort of misfeasance protects the peculiar interests of a private entity against the State. These two judges felt that to allow the Attorney General to sue would be to radically alter the scope and function of the tort of misfeasance and they saw no public policy reason for extending the tort in this way. They considered the possibility of political vendettas, particularly in jurisdictions where the Attorney General is also a politician. But one of the judges in the majority noted that the courts will have the duty of keeping a watchful eye on the tort to avoid wanton misuse.

Ultimately, the majority view, which prevailed, was that the there is nothing in the nature and purpose of the tort that would displace the Attorney General’s right to sue. Therefore, the Attorney General was competent to bring an action in the tort of misfeasance in public office on behalf of the State.

This summary is intended to assist the Caribbean public in learning more about the work of the CCJ. It is not a formal document of the Court. The judgment of the Court is the only authoritative document and may be found at

http://chooseavirb.com/ccj/wp-content/uploads/2011/06/CONSOLIDATED-Judgment-CV-5-of-2010-2.pdf

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