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Vanuatu Ombudsman's Reports |
REPUBLIC OF VANUATU
OFFICE OF THE OMBUDSMAN
PMB 081
Port Vila
Vanuatu
PUBLIC REPORT
ON THE
MISAPPROPRIATION OF LAND FEES
AND THE
DELAY IN REIMBURSING
EXCESS OF LAND FEES
BY LANDS OFFICER IN SANTO
1 August 2002
1015/2002/07
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PUBLIC REPORT
ON THE
MISAPPROPRIATION OF LAND FEES
AND THE
DELAY IN REIMBURSING
EXCESS OF LAND FEES BY LANDS OFFICER IN SANTO
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TABLE OF CONTENTS
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1. JURISDICTION
1.1 The Constitution and the Ombudsman Act allow the Ombudsman to look into the conduct of government, related bodies, and Leaders. This includes the Luganville Lands Department. The Ombudsman can also look into defects in laws or administrative practices, including the Financial Regulations of the Republic of Vanuatu.
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
2.1 The purpose of this report is to present my findings as required by the Constitution and the Ombudsman Act No.27 of 1998.
2.2 The scope of this investigation is to establish the facts about the misappropriation of Land fees at the Luganville Lands Department and the delay reimbursing excess land fees to Mr. Visan Konkon for title No.03/OI82/075. The investigation also determined whether the Lands Officer's conduct conformed to the Financial Regulations of the Republic of Vanuatu.
2.3 This Office collects information and documents by informal request, summons, letters, interviews and research.
3. RELEVANT LAWS, REGULATIONS AND RULES
3.1 The relevant Constitutional and statutory provisions relevant to this report are mentioned in Appendix M to this report.
3.2 The Constitution provides for the fundamental rights and freedoms of the individual.
3.3 The Financial Regulations of the Republic of Vanuatu provides for the collection and receipt of revenue and public monies and the deposit to the Government Bank account.
3.4 The Penal Code provides for the definitions of both theft and misappropriation, and for false accounting.
3.5 Under section 29 of the Public Service Act the Commission may dismiss an employee at any time without notice for serious misconduct.
3.6 Section 2.2 of Chapter 6 of the Public Service Staff manual provides that fraud or theft or misappropriation of public funds is a serious disciplinary offence and that the Director of the Department shall suspend the employee on full pay immediately.
3.7 Under section 4.2 (c) in Chapter 6 of the Public Service Staff Manual, theft of Government property or misappropriation of Government funds is a disciplinary offence.
4. OUTLINE OF EVENTS
4.1 On 19 February 1999, Mr. Visan Konkon withdrew three hundred and fifteen thousand ninety eight (315098) vatu from his own savings at the Westpac Banking Corporation branch in Luganville (Appendix A: Withdrawal form). The amount of money was for land premium (246,200Vt), land rent (9,848Vt), lease signing fee (11,250Vt), land record fee and stamp duty. This amount of money was paid to a Lands Officer, Mr. Jeremiah Lingi, on 19 February 1999 as Mr. Konkon's Certificate of Registered Negotiator would expire on 20 February 1999.
Mr. Lingi advised Mr. Konkon that once an applicant deposited or paid 50% of the total value of the land which would comprise the land premium, land rent, land signing fee, land record and stamp duty, it was possible for him/her to sign the Agreement to Lease. Mr. Konkon was determined to sign his lease quickly and for that reason he decided to fully comply with the said land policy by executing the payment of 315,098 vt as advised by Mr. Lingi.
4.2 On 23 February 1999, 267,298 vt which comprises land premium 246,200 vt, land rent 9,848 vt, and lease signing fee 11,250 vt, was deposited into Government Bank account at Bank d'Hawaii Vanuatu Limited (Appendix A 1: Letter dated 18.01.01 by Government Cashier). However, Mr. Lingi failed to deposit the total amount paid by Mr. Konkon to the Government cashier in Luganville, of which forty seven thousand eight hundred (47,800Vt) vatu was withheld by Lands Officer Mr. Lingi. Mr. Lingi only produced a receipt No.92101471 amounting to two hundred and sixty seven thousand two hundred ninety eight (267,298Vt) vatu to Mr. Konkon (Appdendix B: Receipt No.92101471).
On many occasions, Mr. Konkon approached Mr. Lingi requesting that a receipt for the forty seven thousand eight hundred (47,800Vt) vatu be produced to him but to no avail to date.
4.3 To make up for the forty seven thousand eight hundred (47,800Vt) vatu, Mr. Lingi deposited on 23 June 2000 an NBV cheque No.013025 dated 17 September 1998 and amounting to forty two thousand and six hundred forty two (42,642Vt) vatu as part payment of the premium (Appendix C: letter dated 4.12.00).
However, according to a note on one of the enclosures of the letter dated 18 January 2001, Mr. Javen Joshua, who is the Government Cashier, explicitly stated that the cheque No.013025 amounting to forty two thousand and six hundred forty two vatu was paid to the Lands Department. As it was kept for too long, the Bank of Hawaii regarded it as a stale cheque when the Lands Officer came and paid it to the Government Cashier (Appendix D).
Interestingly enough, Mr. Konkon confirmed that he had never received a receipt for that particular payment.
4.4 On 15 April 2002 the Office of Ombudsman advised Mr. Jeremiah Lingi for the second time to reimburse the money as agreed upon on 14 February 2002 during a round-table discussion held at the Luganville Urban Lands Department but Mr. Lingi failed to do so.
5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM
5.1 Before starting this enquiry, the Ombudsman notified all people or bodies complained of and gave them the right to reply. Also, a working paper was provided prior to this public report to give another opportunity respond. No responses were received from any persons in respect of whom complaints were made.
6. FINDINGS
6.1 Finding 1: Mr Jeremiah Lingi may have breached s. 125 of the Penal Code [CAP 135] by misappropriating forty seven thousand eight hundred vatu (47,800 vt) being entrusted to him for custody prior to depositing it to the Government cashier.
On 23 February 1999, the actual cash of two hundred sixty seven thousand two hundred ninety eight vatu (Vt267,298), which comprises land premium (Vt246,200), land rent (Vt9,848), and lease signing fee (Vt11,250), was deposited into Government Bank account at Bank d'Hawaii Vanuatu Limited (Appendix A: letter dated 18.01.01 by Government Cashier). However, Mr. Lingi failed to deposit the total amount into the Bank d'Hawaii, of which 47,800 vt was withheld by Mr. Lingi. Mr. Lingi only produced a receipt No.92101471 amounting to 267,298 vt to Mr. Konkon (Appendix B: Receipt No. 92101471).
6.2 Finding 2: Mr Jeremiah Lingi may have breached section 5(j-k) of the Constitution of the Republic of Vanuatu by unjustly depriving the forty seven thousand eight hundred vatu (47,800Vt) from him (Mr Visan Konkon), an amount of money that was meant for stamp duty and Land records fees.
6.3 Finding 3: By not producing a proper receipt for the forty seven thousand eight hundred vatu (47,800Vt) to Mr Visan Konkon, Mr Jeremiah Lingi may have breached section 29(1) of the Vanuatu Financial Regulations.
6.4 Finding 4: Mr Lingi may have breached s.130 of the Penal Code [CAP 135] on 23 June 2000 by wilfully falsifying Mr Visan Konkon's account at the Lands Department in Luganville by depositing a stale cheque amounting to 42,642Vt. Mr. Lingi also attempted to replace 47,800 vt with 42,642 vt, an amount which was lower than what was supposed to be deposited.
7. RECOMMENDATIONS
7.1 Recommendation 1: The Lands Offier Mr. Lingi should be disciplined by appearing before the Public Service Disciplinary Board for the alleged charges of both false accounting and misappropriation of public fund.
7.2 Recommendation 2: The Director of Lands in conjunction with the Director General of Lands should instruct the Urban Lands Department in Luganville to immediately process Mr. Konkon’s lease agreement over the lease title No.03/OI82/075 and have it signed by the Minister of Lands.
7.3 Recommendation 3: If there is a prima facie case against Lands Officer Mr. Lingi then the Public Service Disciplinary Board should immediately hand over the case to the Police and Public Prosecutor to investigate and lay the appropriate charges against Mr. Lingi.
7.4 Recommendation 4: Lands Officers should at all times direct the interested applicant to execute the payment of the various land fees (consisting of land premium, land rent, lease signing fee, land record and stamp duty) at any Government Cashier and later produce a copy of his or her receipt to the Lands Office.
Dated 1st August 2002.
Hannington G. ALATOA
OMBUDSMAN OF THE REPUBLIC OF VANUATU
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8. INDEX OF APPENDICES
A1 Letter dated 18.01.01 by Government Cashier
APPENDIX 'M'
RELEVANT LAWS, REGULATIONS AND RULES
3.2 CONSTITUTION OF THE REPUBLIC OF VANUATU
FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL
5(1) The Republic of Vanuatu recognises, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public in defence, safety, public order, welfare and health-
(a) life:...
(j) protection for the privacy of the home and other property and from unjust deprivation of property;
(k) equal treatment under the law or administrative action, except that no law shall be inconsistent with this sub-paragraph insofar as it makes provision for the special benefit, welfare, protection or advancement of females, children and young persons, members of under-privileged groups or inhabitants of less developed areas.
3.3 PENAL CODE ACT [CAP 135]
THEFT DEFINED
122(1) A person commits theft who, without the consent of the owner, fraudulently and without a claim of right made in good fait, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof;
(2) A person shall also be guilty of theft of any such thing notwithstanding that he has lawful physical control thereof, if, being a bailee or part owner thereof he fraudulently converts the same to his own use or the use of any person other than the owner.
MISAPPROPRIATION DEFINED
PROHIBITION OF THEFT, MISAPPROPRIATION AND FALSE PRETENCES
Penalty: Imprisonment for 12 years.
FALSE ACCOUNTING
(a) a public officer with responsibility for public accounts;
(b) a director or officer or member of any company or body corporate;
(c) an officer or clerk or servant of any employer whatever, shall, with intent to defraud -
(i) destroy, mutilate, alter or falsify, any book, account, valuable security, or document belonging to the company or body corporate, or concur in so doing;
(ii) make or concur in making any false entry in, or omit or alter, or concur in omitting or altering, any material particular from or in any such book, account, valuable security, or document;
(iii) make any transfer of any interest in any stock, debenture, or debt in the same of any person other than the owner of that interest; or
(iv) in any manner falsify wilfully any such accounts as aforesaid.
Penalty: Imprisonment for 10 years.
3.4 VANUATU FINANCIAL REGULATIONS
RECEIPT FOR REVENUE AND PUBLIC MONIES
29 (1) An accountable officer shall IMMEDIATELY issue an official receipt for each sum of money paid to him for the account of the Government except from the sale of stamps.
IMPROPER USE OF COLLECTED REVENUE
54 (1) No collected revenue or public money shall be used for any private purpose whatsoever
(2) Accountable officers shall not lend or advance, for any purpose, collected revenue or other public money for which they are accountable to Government.
(3) Revenue collected shall not be used to pay directly for Government expenditure. At remote locations, with approval, in writing, from the Director General of Finance revenue collected may be used to reimburse payment imprests. However, normally all revenue collected will be banked intact.
MISUSE OF CASH
DEPOSITS TO GOVERNMENT BANK ACCOUNTS
282 (1) Cheques received for the credit of a Government account shall be made payable to 'Government of Vanuatu'.
(2) Before issuing a Department of Finance Receipt for any cheque, the receiving officer shall examine the cheque and ensure that:
(3) Any cheque received which contains an error or defect will be returned to the drawer to correct. No Department of Finance Receipt will be issued until the error or defect has been corrected. Under no circumstances will change be given.
(4) Any receiving officer failing to undertake the checks outlined in subsection 2 above will be personally liable if the cheque is dishonoured.
3.5. PUBLIC SERVICE ACT
DISMISSAL FOR CAUSE
3.6 PUBLIC SERVICE STAFF MANUAL
2. PROCEDURES TO BE FOLLOWED IN ALL DISCIPLINE MATTERS
The following procedures must be followed by all persons involved in dealing with discipline matters. These procedures require that:
2.1 Departments are to have appropriate management systems in place for preventing disciplinary matters from arising and that concerted attempts are made to resolve any discipline matters that arise first within the department;
2.2 Employees are suspended from duty (on full pay) only in very serious disciplinary cases and can only be suspended by a Director, Director General or the Commission;
2.3 Discipline matters are only referred to the Public Service Commission after attempts have been made to resolve it within the Department within ten working days if the employee has been suspended from duty for a serious discipline matter;
2.4 The Commission considers which discipline matters should be dismissed or referred to the Disciplinary Board, with the employee being provided with an opportunity to respond to any allegations made against them;
2.5 Only the Disciplinary Board is authorized to hear and determine discipline cases and must provide at least 28 days notice to the employee of the haring date;
2.6 The Commission must confirm, vary or quash the Disciplinary Board’s decisions within 30 days the decision is notified to the employee;
2.7 The aggrieved employee can appeal to the Supreme Court against a decision of the Board in relation to a discipline matter;
2.8 No person may attempt to influence the Commission or the Disciplinary Board in relation to a discipline case accept as provided for in the Public Service Act and these procedures.
4.2 ADDITIONAL DISCIPLINARY OFFENCES UNDER THE PUBLIC SERVICE STAFF MANUAL
An employee commits a disciplinary offence who –
(a) by any wilful act or omission fails to comply with the requirements of the Code of Conduct under Part V in the Public Service Act; any other applicable code of conduct (including any applicable dress code) or ethics approved by the Commission or any professional code of practice, conduct or ethics covering the employee’s occupation;
(b) by any wilful act or omission fails to comply with the requirements of the Leadership Code Act if the Act is applicable to the employee [NOTE: This Act only applies to employees who are nominated leaders under the Act];
(c) by any wilful act commits an act of theft of Government property or misappropriates Government funds;
(d) by any wilful act assaults another staff member or any other person;
(e) Uses abusive language or language likely to cause unreasonable distress to other employees or to affect adversely the performance of their duties;
(f) by any wilful act provides false information for the purpose of defrauding the Government, other organizations or individuals;
(g) smokes in a Government building or workplace, where smoking has been banned;
(h) by any wilful act or omission fails to inform the appropriate official that they have been charged with a criminal offence as required by Section 5.1 of this chapter;
(i) uses a Government owned vehicle without authorization or damages a Government vehicle; and
(j) is guilty of any other offence prescribed from time to time by regulations made under the Public Service Act; Instructions issued by the Public Service Commission; or the policies and procedures contained in the Public Service Staff Manual.
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