RESEARCH MATERIAL ON MALFEASANCE/

RESEARCH ON MALFEASANCE
DEFINITIONThe expressions misfeasance and nonfeasance, and occasionally malfeasance, are used in English law with reference to the discharge of public obligations existing by common law, custom or statute.
Misfeasance is determined in relation to privity of contract. When a contract creates a duty that does not exist at common law, the parties can do one of three things: (1) perform the duty fully; (2) perform the duty inadequately or poorly; or (3) fail to perform the duty at all. When a party fails to perform at all, it is nonfeasance. When a party performs the duty inadequately or poorly, it is misfeasance. Malfeasance is used to denote outright sabotage which causes intentional damage.
Example: A company hires a catering company to provide drinks and food for a retirement party. If the catering company doesn't show up, it's considered nonfeasance. If the catering company shows up but only provides drinks (and not the food, which was also paid for), it's considered misfeasance. If the catering company accepts a bribe from a competitor to undercook meat and give those present food poisoning, it's considered malfeasance.
The rule of law laid down is that no action lies for nonfeasance, for failure or refusal to perform the obligation, but that an action does lie for misfeasance or malfeasance, for negligently and improperly performing the obligation. The doctrine was formerly applied to certain callings carried on publicly (see R. v. Kilderby, 1669, 1 Will. Saund. 311, 312 c).
At present the terms misfeasance and nonfeasance are most often used with reference to the conduct of municipal authorities with reference to the discharge of their statutory obligations; and it is an established rule that an action lies in favour of persons injured by misfeasance, i.e. by negligence in discharge of the duty; but that in the case of nonfeasance the remedy is not by action but by indictment or mandamus or by the particular procedure prescribed by the statutes.
This rule is fully established in the case of failure to repair public highways; but in other cases the courts are astute to find evidence of carelessness in the discharge of public duties and on that basis to award damages to individuals who have suffered thereby.
Misfeasance is also used with reference to the conduct of directors and officers of joint-stock companies. The word malfeasance is sometimes used as equivalent to mala praxis by a medical practitioner.
[edit] See alsoMalfeasance in office
MALFEASANCE IN OFFICE
Malfeasance in office, or official misconduct, is the commission of an unlawful act, done in an official capacity, which affects the performance of official duties. Malfeasance in office is often grounds for a for cause removal of an elected official by statute or recall election.
An exact definition of malfeasance in office is difficult. Many highly regarded secondary sources compete over the elements. This confusion extends to the courts where no single consensus definition of malfeasance in office has arisen. In part, this can be attributed to the relative paucity of reported cases involving malfeasance in office.
The West Virginia Supreme Court of Appeals summarized a number of the definitions of malfeasance in office applied by various appellate courts in the United States.
“ Malfeasance has been defined by appellate courts in other jurisdictions as a wrongful act which the actor has no legal right to do; as any wrongful conduct which affects, interrupts or interferes with the performance of official duty; as an act for which there is no authority or warrant of law; as an act which a person ought not to do; as an act which is wholly wrongful and unlawful; as that which an officer has no authority to do and is positively wrong or unlawful; and as the unjust performance of some act which the party performing it has no right, or has contracted no, to do. ” —Daugherty v. Ellis, 142 W. Va. 340, 357-8, 97 S.E.2d 33, 42-3 (W. Va. 1956) (internal citations omitted).
The court then went on to use yet another definition, "malfeasance is the doing of an act which an officer had no legal right to do at all and that when an officer, through ignorance, inattention, or malice, does that which they have no legal right to do at all, or acts without any authority whatsoever, or exceeds, ignores, or abuses their powers, they are guilty of malfeasance."
Nevertheless a few "elements" can be distilled from those cases. First, malfeasance in office requires an affirmative act or omission. Second, the act must have been done in an official capacity—under the color of office. Finally, that that act somehow interferes with the performance of official duties—though some debate remains about "whose official" duties.
In addition, jurisdictions differ greatly over whether intent or knowledge is necessary. As noted above, many courts will find malfeasance in office where there is "ignorance, inattention, or malice", which implies no intent or knowledge is required.
[edit] English LawUnder English law malfeasance in public office is also a tort. In the House of Lords judgement on the BCCI Malfeasance Case it was held that this had 3 essential elements[1]:
The defendant must be a public officer The defendant must have been exercising his power as a public officer The defendant is either exercising targeted malice or exceeding his powers. The journalist Sally Murrer was arrested and charged with aiding and abetting malfeasance in public office because she had allegedly been receiving information from a police source. The case was thrown out by a judge.[2]
The Crown Prosecution Service guidelines on this offence[3] say that the elements of the offence are when:
A public officer acting as such. Wilfully neglects to perform his duty and/or wilfully misconducts himself. To such a degree as to amount to an abuse of the public's trust in the office holder. Without reasonable excuse or justification.
[edit] Notes & References^ House of Lords judgements on Three Rivers District Council and Others v. Governor and Company of The Bank of England ^ In light of Sally Murrer’s case, Damian Green's arrest was absurd The Times December 1, 2008 ^ CPS Guidelines on Misconduct In Public Office Retrieved from "http://en.wikipedia.org/wiki/Malfeasance_in_office"Categories: Public law Criminal law



My own opinion to Karpal : On the basis of my reasearch, I believe that Mr Sharibu is best served if you pursue both the AG and the Trial judge who wrongly dismissed the case against Razak Beginda. You cab also sue them in tort in civil damages and make them pay out of their own pockets.
signed :
yapchongyee