Fiji Independent Commission Against Corruption v Rokovunisei - Judgment [2012] FJHC 1045; HAC37B.10 (26 April 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO:
HAC 37B OF 2010

BETWEEN:

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
PROSECUTION

AND:

OLOTA ROKOVUNISEI
ACCUSED PERSON

Counsel: Ms. Sanmogam for FICAC
Ms. Vaniqi S for Accused

Date of Summing Up: 25th April 2012
Date of Judgment: 26th April 2012

JUDGMENT

1. The accused was charged with the following offences:
   

"First Count

Statement of Offence (a)

Extortion by Public Officers: Contrary to Section 107 of the Penal Code, Cap 17.

Particulars of Offence (b)

Olota Tulumani Rokovunisei, on the 6th day of September 2006, at Suva in the Central Division, whilst being employed in the public service namely as General Manager and Chief Executive Officer of the Fiji National Provident Fund, accepted from the said Fiji National Provident Fund, for the performance of his duty as such officer, a reward of $22,773.18 beyond his proper pay and emoluments.

Alternative Count

Statement of Offence (a)

Abuse of Office: Contrary to Section 111 of the Penal Code, Cap 17

Particulars of Offence (b)

Olota Tulumani Rokovunisei, on 6th September 2006, at Suva in the Central Division, whilst being employed in the public service, namely as General Manager and Chief Executive Officer of the Fiji National Provident Fund, abused the authority of his office in that he accepted a payment of $22,773.18 as responsibility allowance from the Fiji National Provident Fund, without the authority of the Fiji National Provident Fund Board and the Higher Salaries Commission, an arbitrary act prejudicial to the rights of the said Fiji National Provident Fund.

Second Count

Statement of Offence (a)

Abuse of Office: Contrary to Section 111 of the Penal Code, Cap 17.

Particulars of Offence (b)

Olota Tulumani Rokovunisei, on the 20th day of July 2005, at Suva in the Central Division, whilst being employed in the public service namely as General Manager and Chief Executive Officer of the Fiji National Provident Fund, and in abuse of the authority of that office, did an arbitrary act, namely authorized the payment of a responsibility allowance of $20,000 per annum to Foana Tukana Nemani without the authority of the Higher Salaries Commission and the Fiji National Provident Fund Board, thereby causing prejudice to the rights of the said Fiji National Provident Fund."

2. After deliberating for 1½ hours, the assessors expressed their unanimous opinion that the accused is guilty on counts no. 1 and 2 as charged.
   
3. I adjourned overnight to consider my judgment. I direct myself in accordance with my summing up to the assessors.
   
4. It is not in dispute that the accused was employed in public service during the time material to this case and that the accused accepted the $22,773.18 mentioned in count no. 1.
   
5. It was evident that the salaries of the executives of the FNPF are determined finally by the Higher Salaries Commission (HSC).
   
6. In terms of the section 5 of the FNPF Act the salary of the General Manager/Chief Executive Officer is determined by the HSC.
   
7. In terms of the section 11 of the HSC Act and HSC guidelines marked as P4, the remuneration packages of the GM/CEO and DGM of the FNPF are determined by the HSC.
   
8. Remuneration package as defined by the HSC guidelines is:
   

"Base salary and all benefits, facility or advantage whether in money or otherwise, received by an executive officer prescribed under the regulation, as part of his/her term of employment."

9. Therefore it is clear that payments of allowances to executives are to be approved by the HSC. It was also evident that when the FNPF board decides the salary of an executive, the chairman of the board on behalf of the board will make submissions to HSC for approval.
   
10. Responsibility allowance is not included in the contract of the accused. There is no evidence to show that such allowance was approved by the FNPF board or the HSC. The accused in his evidence said that the FNPF board is informed of all the payments and receipts by the monthly financial reports submitted by CEO to the board. There is no evidence to show that the payment made to the accused on the responsibility allowance in question was included in a financial report. However, submitting a financial report including all payments for the month cannot be considered as obtaining prior approval of the board to make payment. Also there is no approval granted by the HSC. Therefore the responsibility allowance claimed and accepted by the accused in count no. 1 is beyond his proper pay and emoluments.
    
11. The accused says that he claimed for the responsibility allowance for overseeing the duties of the CIO when the CIO position was vacant. Accused said in evidence that "oversee" is not the proper word that could have been used although admittedly he himself has used the word "oversee". Duties and responsibilities of the accused as CEO are specified in his contract P3. In terms of the contract, the board may alter the job description time to time. He is responsible to the board for efficient administration of the FNPF. All divisions including the investment division come under him and it is his duty to oversee them.
    
12. The board minutes dated 02/12/2005 makes it clear that the CEO himself has advised the board that in view of CIO's departure, he as CEO, would oversee the investment division until a new appointment is made. Therefore it is clear that the accused has accepted the responsibility allowance of $22.773.18 for the performance of his own duties as CEO of FNPF.
    
13. He has submitted his claim to the acting CEO Foana Nemani for approval by email P16. Even in that email he has claimed the responsibility allowance for overseeing finance. He has said that the rate should be $20000 or 20% of the base salary whichever is higher as he did with Foana Nemani's case for overseeing finance. This was submitted the day before he went on leave and he has signed as CEO.
    
14. Accused says that he believed that he was entitled to this allowance. As mentioned before he has not followed the procedure to get approval from the board for this allowance which is not in his contract. It is evident that he is a qualified officer and with experience as an executive for 20 years and in the capacity as CEO for almost 6 years. He has wealth of experience on administration and what he says that he believed that he was entitled to this allowance cannot be a reasonable and honest belief and therefore he cannot be absolved from criminal responsibility on the basis of mistaken fact.
    
15. Therefore I find that the Prosecution has proved all the elements of count no. 1 as charged.
    
16. Hence I need not consider the alternative count.
    
17. On count no. 2, when he approved the allowance for Foana Nemani again he has not followed the proper procedure. He has not got the approval from the FNPF board or the HSC to approve the payment of the responsibility allowance to Foana Nemani. Accused says that he used the powers of the board which was delegated to him by the board as recorded in exhibits D4 and D4A. The FNPF board has no authority to make payment of allowances which are not specified in the contract to the executives without the approval of the HSC. The prosecution has proved beyond reasonable doubt that the accused did an arbitrary act and that he acted in abuse of his authority when he approved the payment of responsibility allowance to Foana Nemani as mentioned in count no. 2. It has caused prejudice to the FNPF as this allowance is paid by the FNPF.
    
18. I therefore find that the prosecution has proved all elements of the offence of abuse of office in count no. 2 as charged.
    
19. Section 111 of the Penal Code Cap 17 says if the act of abuse of office is done or directed to be done for purpose of gain, the accused is guilty of a felony. There are different types of gain, which includes financial or political, and gain can be obtained for others as well as personally. By the act of the accused in count no. 2 the gain was for Foana Nemani. Therefore I find that the accused is guilty of a felony in count no. 2.
    
20. In light of the above, the assessors were entitled to form their unanimous opinion as to the guilt of the accused in respect of counts 1 and 2
    
21. Therefore I agree with the unanimous opinion of the assessors that the accused is guilty of the offences in count no. 1 and 2 as charged.
    
22. I find that it is appropriate to record a conviction.
    
23. I convict the accused of counts no. 1 and 2 accordingly.
    

Priyantha Fernando
Judge
26.04.2012