Bugie v NJSS [2004] PGDC 24; DC191 (17 November 2004)

DC191

PAPUA NEW GUINEA
[IN THE NJSS TRIBUNAL COURT OF JUSTICE]

BETWEEN

Eddie Bugie
Appellant

V

Secretary, NJSS
Respondent

Waigani: P P Poloh
10th And 17th November 2004

Counsel
Appellant In Person.
B. Koae For The Respondent

POLOH: The Appellant is a Sheriff Officer employed by the NJSS in Waigani. He is attached to the Sheriff Division. At the moment he is suspended with pay after he was charged for serious disciplinary offence under Section 14 (1) of the NJSS Act 1987 as amended.

He has appealed against the decision of the Deputy Secretary of National Judicial and Staff Services dated 18th August and served on him by Peter Kiap on 24th August 2004.

The penalty was imposed on the Appellant after he was charged that............

"That you dishonestly deceit Mr Solomon Kampa and his brother Amos Steven and received from them the payment of K3, 000.00 for purchase of sheriff impounded vehicle (Mazda White utility) without any lawful authority for the sale approved by the Sheriff nor in compliance with the Sheriff Act and the manner of accepting such payment within unauthorized area (basement) and without any Sheriff Receipts drew questions of your actions/omission".

The charge dated 8th June was served on the Appellant by Tom Reo at 2.00 pm on the same day.

According to the appeal file the Appellant did not reply to the charge until 22nd July 2004 when he wrote a Memorandum to the Secretary setting out his reasons for delay in reply to the charge (Annexture "0"). In that Memorandum he denied the charge outright and elected to remain silent because he says the allegation against him is not entirely true and as it arose from activities related to his duties as a Sheriff Officer.

At the hearing the Appellant has objected to most of the documents (Annextures) in the appeal file claiming they are not relevant to his charge.

In support of his appeal he relied on the Notice of Appeal with the submission herein dated 3rd September 2004. He submitted that the charge laid against him appears to be confusing as it arose from activities associated with the discharge of his duties as a Sheriff Officer and therefore comes under the Sheriff Act 1973 and not under the NJSS Act 1978.

I have considered the submissions. However, I cannot agree with the contention by the Appellant.

The NJSS is established under Section 2 (1) of the NJSS Act 1987. Subsection 2 states:

"The Service shall consist of:

(a) the Secretary; and

(b) the Registrar and Deputy Registrar appointed under the National Court Act 1975, and

(c) the other officers and employees of the Service".

The terms 'employee' and officer' are defined under Section 1- (Interpretation) of the same Act.

The NJSS is an employing authority. The Sheriff Office or division is not an employing authority but an office or division within the NJSS. The Appellant is employed by the NJSS not the Sheriff Office or division.

The Appellant is employed by NJSS and by definition under Section 1 of the Act he is an officer in the Service subject to the fulfillment of the requirements of Section 12 of the Act which I believe the Appellant has fulfilled. In terms of disciplinary offences, the Appellant in my view is subject to the provision of NJSS Act not the Sheriff Act. In any case the Sheriff Act does not provide procedures for dealing with disciplinary matters.

On the appeal, I am satisfied that the Appellant was given every opportunity to reply to the charge, which he did. However, he did not rely to the substance of the charge. He elected to remain silent for reasons that have been mentioned.

The basis of the charge arose from the Memorandum of Amos Steven (Groundsman) dated 14th February 2004 to then Acting Sheriff, Mr Augerea titled" Refund of K3, 000.00 plus costs of Battery and valuation cost –

Sheriff impounded Mazda White Utility". The contents of the Memo reads:

"I have entered into an Agreement with your officer Eddie Buguie for the sale of the above impounded Sheriff Vehicle, which my brother, Solomon Kurupu paid K3,000.00 cash at the National Court basement in about October 2003. We were in the process of moving the vehicle, when stopped and keys removed by your office.

I have approached your office on various occasions; however, you have referred me to see Eddie Bugie. I am confused rather unhappy, as the manner of payment at the basement and non-delivery of vehicle without any valid transfer documents, questions your office to investigate and refund my payment.

My brother is still not happy and satisfied of your inaction and may approach your office to demand the keys of the vehicle".

The Memorandum is supported by the statement of Solomon Kurupu dated 16th. June 2004. According to the Notice of Appeal and the submission herein, the Appellant does not deny receiving the K3,000.00 Paragraph 1.6.6 of his submissions states:

"On the second occasion, the Appellant was in the office when the money was brought and paid to him by Solomon Kurupu. The money was then paid to the Judgment Creditor".

Whether the money was paid to the Appellant in the Basement area or in the office proper is irrelevant, the fact is that the money was paid to the Appellant. According to the evidence, the payment was witnessed by Steven Amos and a driver by the name of Gima.

The Appellant admitted that he received the money (K3,000.00) and he paid it to the Judgment Creditor, Mr Fred Leo. However, Mr Leo has denied receiving the money from the Appellant. The last paragraph of his Affidavit sworn on 21st October 2004 states:

"I have not ever received any such monies to this date. I am aware that a Sheriff Officer, Mr Eddie Bugie who claims that he has sold the vehicle from K3,000.00 and given the proceeds to me, but I honestly swore that I have never at one time received any monies from Mr Eddie Bugie nor from the Sheriff office of Papua New Guinea".

The last person to receive the money according to evidence was the Appellant. The Judgment Creditor did not receive the money. If the Appellant says he gave the money to Mr Fred Leo, the question is where did he give the money and when?

I am satisfied that Solomon Kurupu paid the amount of K3,000.00 to Mr Bugie (Appellant). The money received was for the payment of the sheriff-impounded vehicle, Mazda, Registration No: BAH 656 White in color. When the Appellant got the money, he did not issue any receipts. Despite the money being paid Solomon Kurupu never got the vehicle.

The Sheriff s Office has no record of such money being received. There are no receipts.

If Mr Leo did not receive the payment and the Appellant was the last person to receive the money, then the bucks stops with him. In the circumstances, I could safely infer the Appellant got the money and used it.

I am also satisfied that proper procedure were not followed in accepting the money. The transaction was not authorized by the Sheriff.

After considering all the evidence, I am satisfied that the charge against the Appellant has been made out.

The offence committed by the Appellant is serious. In my view, he has abused his position as a Sheriff Officer and engaged in a deal, which was improper and puts the integrity of the office of the Sheriff into question.

I note from the appeal file that there are other allegations against Appellant. However, they are not related to the charge before the Tribunal.

Section 16 (5) of the NJSS Act 1987 as amended sets out the penalties that may be imposed by the Secretary. The penalty imposed depends on the seriousness of the offence. In this case, the Deputy Secretary had decided to impose the ultimate penalty that is recommending the Appellant to Judicial Council for dismissal.

The Deputy Secretary has not given the reasons for his decisions as to how and why he arrived at the penalty. In any case, on the face of the record, the charge IS serious.

After having said all that, I find nothing wrong with the penalty imposed. Accordingly I confirm the decision and dismiss the appeal.

In Person: Complainant
B Koae: Defendant