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State v Namositava [1994] FJMC 1; Criminal Case No 1596 of 1992 (30 September 1994)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No: 1596 of 1992

THE STATE

v.

NIKO NAMOSITAVA

BEFORE S M SHAH ESQ
RESIDENT MAGISTRATE

For Prosecution: Ms Shameem
For Accused: Ms Philips and Mr Rabo Matebalavu

Dates of Hearing: 28.04.93 02.06.93, 19.08.93, 04.10.93, 03.12.93, 14.04.94
27.07.94, 30.08.94 and 30.09.94

JUDGMENT

The accused has been charged with the offence of abuse of office.

The allegation is that he on the 8^th day of December 1989 ordered on Local Purchase Order No. 867396 ten deep tray wheelbarrows from Suncourt Hardware Limited for $1,250.00 when the Minor Tenders Board had approved for the purchase of the same from Vinod Patel Limited for $750.00. The accused was the chairman of Minor Tenders Board. It was alleged that this act was prejudicial to the rights of Vinod Patel Limited.

The prosecution called 11 witnesses.

PW1 was Naibuka Navunisaravi who at the relevant time was Deputy Secretary Finance. At that time the Minor Tenders Board (known as the MTB) could decide on tenders under the sum of $25,000, and its powers and duties were set out under the Finance Act No. 8 of 1981 and the Finance (Supplies and Services) Regulations. In 1989, the Chairman was the Accused. The decisions of the Minor Tenders Board were final.

PW2 was Timoci Kacanavesi who at the relevant time was a Purchasing Officer whose responsibility was to search the market for required items. He prepared the schedule (Exhibit 2) which was prepared as a result of quotations offered in response to the request for tenders on the purchase of wheelbarrows in the letter dated 10^th November, 1989. His schedule shows that offers had been made by five supplies including Vinod Patel, MH Builders and Suncourt. The cheapest offer was that of Vinod Patel at $75 each for 20 wheelbarrows. PW2 also said that quotations for items such as wheelbarrows were called fro when there were nil in stock.

PW3 Vinod Patel gave evidence that he received Exhibit 1 (the request for tenders) in November, 1989 and then made an offer of $75 per wheelbarrow for 20 wheelbarrows on 21^st November 1989.

PW4 was Mangal Lala the Manager (Export and Buying) at Carpenters Builders Merchants. He confirmed that on 22^nd November 1989 he had made an offer to supply wheelbarrows at $90.00 per wheelbarrow.

PW5 Josefa Mataika was the Secretary of the Minor Tenders Board in 1989. On 08/12/89 the MTB met at the Government Supplies Conference Room. It was chaired by the accused and was attended by Isoa Vatucicila, R.B. Lal accused and was attended by Isoa Vatucicila, R.B Lal (deceased), C.Vinod and Josefa Mataika. The MTB decided (item 10 Ref 541/89 on Exhibit 5A) that 10 deep tray wheelbarrows would be purchased at $75.00 each and failure to supply satisfactory sample would result in wheelbarrows to be supplied by M.H. Builders at $90.00. After the meeting the file was handed over to the purchasing section to raise the Local Purchase Order. He said that if satisfactory samples could not be obtained the purchasing section had to re-submit the matter to the MTB.

PW5 agreed when shown the Local Purchase Order dated 8^th December 1989 in which order for 10 wheelbarrows was made to Suncourt Hardware that the LPO was made without the authority or knowledge of the Minor Tenders Board.

PW6 Isoa Vatucicila was one of the members of the Monor Tenders Board and was present at the meeting dated 8^th December 1989. He said that although the accused had no authority to buy wheelbarrows from Suncourt after the MTB meeting, he could have done so on 8^th December before the meeting at 9.15a.m.

Diwakar Prasad Mishra (PW7) was a Store Officer at Government Supplies. His responsibility was to assist the Stock Control Office as to the running of the Stock Control Section. He identified the writing on the LPO (Exhibit 6) as being the writing of one Anil Singh who has now migrated and said that normally a superior officer would instruct and authorize the making of an LPO. He was unable to say whether this had happened in the raising of Exhibit 6 because he had not been present.

PW8 Chandra Vinod at the relevant time was the Senior Accountant at Government Supplies, and was also one of the members of the Minor Tenders Board. He also said the MTB had approved purchase from Vinod Patel at $75.00 each and that this decision could not be changed unless there was another Board meeting or by means of a flying minute. Under cross-examination, PW8 gave his opinion the although the Controller of Government Supplies had the power to buy items up to $2000, once the schedule is prepared the Controller’s discretions is limited.

Kishori Prasad (PW9)was an employee of Suncourt Hardware who gave evidence that the wheelbarrows were supplied to Government Supplies and paid for.

PW10 Sereana Turaga was an accountant with Government Supplies at the relevant time. She gave evidence that the wheelbarrows had been paid for and that the sum of $1745.00 was included in the cheque for $2619.02.

Sergeant Nasir Ali (PW11) was the Investigating Officer, and interviewed the accused under caution.

The learned defence counsel submitted that although many witnesses were called by the prosecutions they related to very few facts. Broadly speaking Ms Phillips submitted that the case for prosecution is that the accused approved LPO No, 867396 on the 8^th day of December 1989 in violation of the MTB decision on the same day. She submitted that the prosecution failed to establish beyond reasonable doubt that the accused departed from the existing procedures when he authorized the purchase of ten wheelbarrows from Suncourt Hardware Limited on LPO No. 867396. She also stated the prosecution relied heavily on this LPO as it provides the only direct evidence that the accused appears to have authorized the purchase of goods from a supplier, Suncourt Hardware Limited when the MTB had in the meeting on 8^th December 1989 approved the purchase of ten wheelbarrows from Vinod Patel Limited.

Ms Phillip further submitted that the prosecution failed to call the most important witness i.e. the officer who prepared the LPO. So without the evidence of such person it can never be established that the accused approved the LPO in violation of the MTB decision. She then submitted that whoever raise the LPO is the only person whose evidence will establish that the accused authorized the purchase after the MTB decision on the same date. So she said that unless the author of the LPO is called to give evidence in court there remains reasonable doubt that the accused in fact authorized the purchase from Suncourt Hardware Limited unlawfully. She also complained that no evidence was called to establish that Vinod Patel Limited was confirmed by MTB.

She submitted that this court should treat with extreme caution any reliance on the various copies of the LPO tendered in court as evidence especially because the author of the document remains a mystery. Furthermore, she said that the document was interfered with after authorization by the accused.

She drew the court’s attention to the line drawn after the item ‘wheelbarrow’ and carried through appearing to ensure no further additions to the order form. But she pointed out that addition to the order (namely fibre coconut door mat), an item approved in the MTB meeting on 8^th December 1989, appears to have been added to the LPO without necessary authorization by the accused. She said that there are initials placed beside the additional items but it was not established who initialled and why the addition was made without authorization by the accused.

The learned defence counsel also submitted that it has never been suggested or raised by the prosecution that the accused intended any profit to himself or to another person. In her view, the action of the accused, if anything can be described as a mere technical non-compliance probably by oversight Section 111 of the Penal Code provides:

"Any person who, being employed in the public service, does or direct s to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another, is guilty of a misdemeanour. If the act is done or directed to be done for the purpose of gain, he is guilty of a felony and is liable to imprisonment for three years."

Section 111 is in two parts. The first part deals with simple abuse of office which is a misdemeanour and carries a sentence of two year’s imprisonment as the maximum. The second part proceeds further and states that "if the act is done or directed to be done for the purpose of gain he is guilty of a felony and could be sentenced up to three years imprisonment. In my view there are four elements in this section. The first is that a person must be employed in the Public Service. Secondly, he must do or direct to done an arbitrary act. The third is that the act should be prejudicial to the right of another. Finally, the act should have been done in abuse of the authority of his office. Justice Jesuratname in State v Beniamino Naiveli, Criminal Case No. 12 of 1992 stated that one must look for the four ingredients in the case of nay accused and see if they are present in the evidence that has been led.

He stated that if they are present, the accused should be found guilty but if they are not present or if any one of them is missing, the accused should be found not guilty.

There is no doubt that the accused was employed in the public service at the time of the alleged offence. The question that arises now is whether the act of the accused is arbitrary and in abuse of office.

In Tomasi Kubunavanua v State Fiji Court of Appeal No. 82 of 1992, the Court of Appeal said "We think the word ‘arbitrary’ indicated nothing more that the exercise of one’s free will." In State v Humphery Kamsoon Chang High Court Case No. 8 of 1991, Jesuratnam J said that ‘arbitrary’ mean despotic or autocratic. In Tomasi Kubunavanua High Court Case No. 4 of 1992, Sada J said: "An arbitrary act is an autocratic act, a despotic act, an unreasonable act, an act which is not guided by principles, rules and regulations, but an act guided by the whims and fancies of the doer."

Ms Phillips questioned whether the act of the accused was arbitrary. In her written submissions she submitted that this honourable court should give due weight to the following:-

(a) The accused authorizing the purchase from Suncourt Hardware Limited is not so unreasonable an act bearing in mind that as at 8^th day of December 1989 Suncourt Hardware Limited were the authorized suppliers of deep tray wheelbarrows.

(b) Mr Tuivuya has confirmed that the relevant authority number is not always endorsed on the LPO when the same is authorized. This is especially so in cases requiring an urgent purchase of a standard item shown to be nil in stock. In the present case deep tray wheelbarrows are a standard item which were nil in stock at the relevant time.

(c) As at 8^th of December 1989 the Board’s decision in respect of procurement of deep tray wheelbarrows from Vinod Patel Limited had not been confirmed. The approval was: "Subject to Satisfactory Sample. Failure to comply shall have these wheelbarrows be procured from MH Builders at $90.00 each ex-stock". The Board Secretary at the time, J Mataika, PW5, confirmed in Court that where samples are required they must be obtained. The purchasing section is obliged to request a sample. At the time of giving evidence he was not aware of whether in fact samples had been requested.

Ms Phillips then submitted that at the time accused is alleged to have unlawfully approved the purchase from Suncourt Hardware Limited, he cannot have prejudice the rights of Vinod Patel Limited. In this respect, she drew the court’s attention to the following"-

i) Firstly, Vinod Patel (PW3) in cross examination admitted that on 8^th day of December 1989 he had no idea whether Vinod Patel Limited had deep tray wheel barrows in stock.

ii) Secondly, Vinod Patel (PW3) admitted in Court that at no stage was Vinod Patel Limited advised or informed of the outcome of the tender at all by Government Supplies Department. The Company was never informed that its tender in respect of the wheelbarrows had been successful. Neither was the company requested to provide samples to the Government Supplies Department.

iii) Thirdly, the Secretary to the MTB, PW5, confirmed in Court that where samples are required they must be obtained prior to placing any orders. He was not aware at the time of giving evidence whether in fact samples had been requested. It is respectfully submitted that this fact should have been proved in Court to show that the rights of Vinod Patel Limited had in fact been prejudiced.

In the absence of this confirmation the accused with respect cannot be said to have prejudiced the rights of Vinod Patel Limited.

iv) Fourthly, Mr Tuivuya also confirmed to Court that it is the duty of the Purchasing Officer to arrange for requirement of a satisfactory sample. Further that until a satisfactory sample had been approved the Government Supplies Department could not have purchased the wheelbarrows from Vinod Patel Limited. In the circumstances he confirmed it is quite in order that the wheelbarrow be procured from the previous authorized supplier in this case Sunocurt Hardware Limited.

Ms Shameem submitted that the question for this Honourable Court is whether the accused used his position as Acting Principal Supplies Officer to act in a way that was unreasonable and against existing rules and regulations.

She stated that under caution the accused admitted that he had authorized the LPO, that it was contrary to the MTB’s decision and that he had done so because Vinod Patel and MH’s had not provided suitable wheelbarrows.

In her view, there is no doubt at all that the accused had no power to override the MTB’s decision and that the defence in calling Mr Tuivuya appears to concede this. She also said that there was suggestion during cross-examination of prosecution witnesses that the LPO was raised before 9.15am when the meeting was held.

Ms Shameem in her written submission further stated:

"This would mean that the accused (knowing that the tenders would be considered at 9.15am) rushed to the shops at 8.30am to check their stock of wheelbarrows, rushed back to Government Supplies, authorised the LPO, then chaired the 9.15am meeting and failed to tell the MTB that there was no need to consider the wheelbarrows as he had already authorized purchase from Suncourt (which was not the cheapest tender). If he had authorized the LPO before the meeting why didn’t he tell the MTB immediately? Why didn’t he tell Sgt. Nasir Ali that the LPO was raised before meeting? Why doesn’t Vatucicila remember the incident? He was also at the meeting and he didn’t raise it either.

In my respectful submission, the idea of raising the LPO before the meeting is clearly highly unlikely in all the circumstances. If it were true however, the accused’s failure to disclose this to the MTB and his loss of memory as to the raising of it, clearly shows that the act was unreasonable.

No matter how urgent the need for wheelbarrows, there can be no justification for pre-empting the decision of the MTB by half-an-hour. I submit that if the accused did raise the LPO before the meeting, his behaviour was clearly unreasonable, arbitrary and in abuse of office.

If he raised the LPO after the meeting, it was also clearly an abuse of office. Firstly, he cannot claim that he did not notice what he was signing because he had taken personal interest in the wheelbarrows by visiting Vinod Patel and MH’s just before the meeting on 08/12/89.

Secondly, he chaired the meeting and knew what the MTB had agreed.

Thirdly, both prosecution and defence witnesses agree that the accused had no authority at all to override the decision of the MTB. The result was that Government Supplies paid more to Suncourt and Vinod Patel lost a legitimate order."

The learned prosecutor also submitted that the tender system as operated by Government Supplies is a fair system if all the proper procedures are followed and that the Controller of Government Supplies in calling for tenders in November, 1989 had clearly indicated that the purchase of wheelbarrows was to be subjected to the tender system even if the amount was less than $2000. She said that the accused had no power to circumvent these procedures because of his own whims and fancies and if he had such right the whole basis of the tender system would be meaningless.

I have considered all facts and evidence in detail before this court. In my view, the act on the part of the accused to order on LPO No. 867396 ten deep tray wheelbarrows from Suncourt Hardware Limited for $1250.00 when the MTB on the same day had approved the purchase of the same items from Vinod Patel Limited for $750.00 was an act which was an abuse of office.

I cannot accept the submission of the learned defence counsel that the act complained of only be described as a minor breach of internal regulations or procedures and to which no criminal intent can be attributed to the accused.

I am satisfied that the prosecution has proved its case beyond reasonable doubt.

I therefore find the accused guilty of the offence of abuse of office as charged.

SYED MUKHTAR SHAL

RESIDENT MAGISTRATE