By Selwyn A. Pieters B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
Created September 15, 2022
The High Court recently dismissed a civil action by the Attorney General of Guyana Mohabir Anil Nandlall in 2021-HC-DEM-CIV-SOC-25 AG v. BK Marine and Jordan asserting the tort of misfeasance in public office or in the alternative breach of fiduciary duty. What is instructive in this case is Justice Brassington Reynolds relied on the seminal U.K. case Three Rivers District Council v. Bank of England (No. 3), [2000] UKHL 33, [2000] 2 WLR 1220, [2000] 3 All ER 1. In that case Lord Steyn held that: "The rationale of the tort is that in a legal system based on the rule of law executive or administrative power 'may be exercised only for the public good' and not for ulterior and improper purposes." Three Rivers was adopted and applied by the Caribbean Court of Justice in Florencio Marin v The Attorney General of Belize, CV 5 of 2010, [2011] CCJ 9 (AJ).
The test to be met to establish this tort Justice Reynolds found are as follows:
[16] The elements of the tort as adumbrated in Three Rivers supra and cited in Florencio Marin v The Attorney General of Belize, are as follows:
(i) The Defendant must be a public officer;
(ii) There must be the exercise of power as a public officer;
(iii) The Public Officer must either have acted out of malice i.e., specifically intending to injure a person or persons (“targeted malice”); or acted knowing that he had no power to do the act complained of and that the act would probably cause injury to the plaintiff (“untargeted malice”);
(iv) Any Plaintiff with a sufficient interest to found a legal standing to sue was competent to bring the action;
(v) The plaintiff must prove that his loss was caused by the abuse of power; and
(vi) The damage must not be too remote.
In applying the test to this case Justice Reynolds found that:
[23] Having regard to the above elements of the tort and the principles formulated in various case law, this Court is not of the considered view that the Claimant made out a case of misfeasance in public office. The Court found favour with Counsel for the Second Named Defendant’s contention that the instant case can be distinguished from Florencio Marin v The Attorney General of Belize. It is the court’s respectful finding that the Marin case is clearly distinguishable from the case at bar, as the subject properties for reasons to be later adduced are clearly not state property within the meaning of the authorities; any property in the state lying properly in its ‘shares’ in the fourth-named defendant company.
[24] The Claimant in this instant action has also failed to plead or prove that the Second Named Defendant has accrued any personal benefit from the alleged sale of the land and that he had acted in bad faith or had a dishonest motive. No sufficient circumstances have been pleaded or brought to the attention of the court on the evidence which can ground a finding to the extent required of misfeasance in public office. The threshold of sufficiency has not been achieved by the Claimant to ground a finding of misfeasance in public office on the authorities. It is not sufficient for the claimant to allude to or to invite the court to infer that the parties have acted in bad faith or with any dishonest motive, even more so in the absence of any true comparator as to the value of the subject property; the court being itself unable to substitute or ascribe any valuation of its own motion.
The Judge went further to find that "the claim constitutes an abuse of the Court’s process and cannot be allowed to stand."
The Court then Ordered "the Claim instituted by the Attorney General on the 8th day of February 2021 be struck out with costs to the first-named and second-named defendants in the sum of two (2) million ($2,000,000.00) dollars each."
The Attorney General of Guyana appeared in person to prosecute this claim against the former Minister of Finance Winston Jordan and was all over the media speaking about the case. His Honour however did not found that "the claim by the Attorney General to have been politically motivated or actuated by bad faith, vindictiveness, and spite..."
This decision by Justice Reynold was sound judicial reasoning about a hopeless case that was bound to fail and should not have been instituted in the first place.
However, my expectation is the State will appeal all the way to the CCJ.
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