In the Matter of Hon Sam Basil MP [2021] PGLT 2; N9333(LT) (3 December 2021)

N9333(LT)

PAPUA NEW GUINEA
[IN THE LEADERSHIP TRIBUNAL]

LT NO.2 OF 2021

IN THE MATTER OF A REFERENCE BY THE PUBLIC PROSECUTOR PURSUANT TO SECTION 27(2) OF THE ORGANIC LAW ON DUTIES
AND RESPONSIBILITIES OF LEADERSHIP

AND:
IN THE MATTER OF THE HON. SAM BASIL MP, MEMBER OF PARLIAMENT FOR WAU-BULOLO OPEN ELECTORATE, MEMBER OF MOROBE PROVINCIAL ASSEMBLY AND DEPUTY PRIME MINISTER

Waigani: David, J (Chairman), Selefkariu, DCM (Member) & Kilage SM (Member)

2021: 7^th July, 6^th August, 3^rd & 10^th September, 1^st, 18^th, 26^th, 27^th, 28^th, 29^th & 30^th October, 1^st & 8^th November & 3^rd December

QUASI JUDICIAL TRIBUNAL – Leadership tribunal – presentation of Reference by Public Prosecutor and Statement of Reasons compiled by Ombudsman Commission – five allegations of misconduct in office – onus of proof on Public Prosecutor – no absolute standard of proof – standard of proof higher than civil standard but lower than criminal standard - Tribunal must be reasonably satisfied of the truth of the allegations or denials – all allegations not sustained – verdict of not guilty on all allegations – all allegations dismissed – suspension of leader lifted and discharged – copy of decision and verdict to be sent to Speaker for presentation to National Parliament and National Executive Council – Constitution, Section 27(1), (5)(b) - Organic Law on the Duties and Responsibilities of Leadership, Sections 4(1)(b), 4(6)(b), 5(1), 27(1), (2), (4), (5)(b), (7)(e), 28.

Cases Cited:

In re James Eki Mopio [1981] PNGLR 416
Re Leadership Tribunal appointed for the Honourable Andrew Kumbakor, Member for Nuku [2003] N2363
In the Matter of Grand Chief Sir Michael Somare (2011) N4224
Special Reference by the Ombudsman Commission re Constitution Section 28(5) (2017) SC1645
In the Matter of Hon. Solan Mirisim, MP, Member for Telefomin Open, West Sepik Provincial Assembly (2021) N9276

Counsel:

P. Kaluwin, Public Prosecutor, Counsel assisting the Tribunal
G.J. Sheppard with G. Purvey, for the Leader

VERDICT

3^rd December, 2021

1. BY THE TRIBUNAL: INTRODUCTION: This was a reference to the Leadership Tribunal (Tribunal) from the Public Prosecutor, Mr. Pondros Kaluwin, Esq under s27(2) of the Organic Law on the Duties and Responsibilities of Leadership (the OLDRL) on allegations of misconduct in office by the Honourable, Sam Basil, Deputy Prime Minister and Member for Wau/Bulolo Open in the National Parliament and Member of the Morobe Provincial Assembly (the Leader), being a person to whom Division 2, of Part III of the Constitution (the Leadership Code) and the OLDRL apply. The Tribunal was appointed by the Chief Justice, Sir Gibuma Gibbs Salika under s27(7)(e) of the OLDRL.
   
2. On 10 September 2021, the Public Prosecutor presented to the Tribunal a Reference dated 3 September 2021 signed under the hand of the Public Prosecutor (“the Reference”) which contained five allegations of misconduct in office under three categories and a Statement of Reasons compiled by the Ombudsman Commission dated 30 November 2020 (the SOR) under s27(2) of the OLDRL.
   
3. As a consequence of the presentation of the Reference and the SOR on 10 September 2021, the Leader was suspended from duty, as Deputy Prime Minister, Member for Wau/Bulolo Open in the National Parliament and Member of the Morobe Provincial Assembly, on full pay by operation of law under s28 of the OLDRL.
   
4. On 18 October 2021, the Tribunal put all five allegations to the Leader for him to plead to the allegations, to all of which he pleaded not guilty.
   

ALLEGATIONS OF MISCONDUCT IN OFFICE

5. The Reference alleges five breaches of the Leadership Code by the Leader and these are reproduced below:
   

“CATEGORY 1

INTERFERENCE WITH THE DECISION OF THE CENTRAL SUPPLY AND TENDERS BOARD AND FAILING TO IMPLEMENT THE CONSTRUCTION OF WAU COMMERCIAL AND DISTRICT HEADQUARTERS

Allegation 1

THAT the Leader failed to carry out the obligations imposed by Section 27(1) of the Constitution;

BY conducting himself in his public life and in his association with other persons in such a way that he:

(a) demeaned his office as Member of the Parliament for Wau/Bulolo Open Electorate and Member of the Morobe Provincial Assembly; and
(b) allowed his official integrity to be called into question;

IN THAT, between 1^st March 2013 and the 24^th September 2018, the Leader interfered with the decision of the Central Supply and Tenders Board No.3037 by failing to implement that decision awarding a contract to Jaybis Construction and Management to construct the Wau Commercial and District Headquarters as the Chairman of the Bulolo District Development Authority.

THEREBY being guilty of misconduct in office under Section 27(5)(b) of the Constitution.

CATEGORY 2

USE OF OFFICE FOR PERSONAL BENEFIT

Allegation 2

THAT on the 15^th December 2014 the Leader without lawful authority, indirectly asked for and accepted on his behalf of himself a benefit in the sum of Fifty Thousand Kina by reason of his official position

IN THAT he cashed and received a sum of K50,000.00 drawn from the Bulolo District Treasury Operating Account, made payable to one Tae Guambelek monies allocated for the construction of the Wau Commercial and District Headquarters

THEREBY being guilty of misconduct in office under Section 5(1) of the Organic Law on the Duties and Responsibilities of Leadership.

Allegation 3

THAT on the 18^th December 2014 the Leader without lawful authority, indirectly asked for and accepted on his behalf of himself a benefit in the sum of Fifty Thousand Kina by reason of his official position

IN THAT he cashed and received a sum of K50,000.00 drawn from the Bulolo District Treasury Operating Account, made payable to one Christopher Sumac monies allocated for the construction of the Wau Commercial and District Headquarters

THEREBY being guilty of misconduct in office under Section 5(a) of the Organic Law on the Duties and Responsibilities of Leadership.

Allegation 4

THAT on the 21^st December 2014 the Leader indirectly asked for and accepted on his behalf of himself a benefit in the sum of Fifty Thousand Kina by reason of his official position

IN THAT he cashed and received a sum of K50,000.00 drawn from the Bulolo District Treasury Operating Account, made payable to one Christopher Sumac monies allocated for the construction of the Wau Commercial and District Headquarters

THEREBY being guilty of misconduct in office under Section 5(a) of the Organic Law on the Duties and Responsibilities of Leadership.

CATEGORY 3

FAILURE TO DECLARE TO THE OMBUDSMAN COMMISSION THE USE OF K150,000.00 FROM THE BULOLO DISTRICT OPERATING ACCOUNT

Allegation 5

THAT on the 09^th November 2015 the Leader failed to carry out the obligations imposed by Section 4(1)(b) of the Organic Law on the Duties and Responsibilities of Leadership

IN THAT he knowingly recklessly or negligently provided information in the Annual Statement for the period 6^th August 2014 to 5^th August 2015 that were false, misleading or incomplete in a material particular by not declaring of receipt of K150,000.00 from the Bulolo District Treasury Operating Account.

THEREBY being guilty of misconduct in office under Section 4(6)(b) of the Organic Law on the Duties and Responsibilities of Leadership.”

ONUS AND STANDARD OF PROOF

6. The onus of proving the allegations of misconduct in office lies with the Public Prosecutor throughout: Re Leadership Tribunal appointed for the Honourable Andrew Kumbakor, Member for Nuku [2003] N2363.
   
7. In Re Leadership Tribunal appointed for the Honourable Andrew Kumbakor, Member for Nuku [2003] N2363, the Tribunal said:
   

“As to the onus of proof, In Re James Eki Mopio and other reported cases are silent on which party carries the burden of proof. There is no express provision in the Constitution or the OLDRL on this point. But it can be inferred from s. 29 of the Constitution that the Public Prosecutor is charged with the duty to prosecute the leader before the tribunal and it carries the onus of proof on behalf of the State. The tribunal’s duty to "inquire" or "investigate and determine" the matter referred to it is not intended to confer on the tribunal the traditional prosecutorial function of the Public Prosecutor: Bonga v Sheehan [1997] PNGLR 452.The tribunal’s function is to simply inquire into and determine the truth or otherwise of the allegations, without resort to technical rules of procedure and evidence.

There is one other important jurisdictional point to make. The scheme of provisions of the Leadership Code and the OLDRL is that the tribunal’s jurisdiction to inquire into the matter before it is defined by reference to the matter "referred" to it by the Public Prosecutor. (“our underlining”)

8. The standard of proof is a high one, that is, it is above the civil standard of proof on the balance of probabilities, but close to the criminal standard of proof beyond reasonable doubt: In re James Eki Mopio [1981] PNGLR 416; Re Leadership Tribunal appointed for the Honourable Andrew Kumbakor, Member for Nuku [2003] N2363.
   
9. In re James Eki Mopio [1981] PNGLR 416, the Supreme Court at 420-421 said:
   

"...[T]here is no absolute degree or standard of proof to be applied by the Leadership Tribunal. The Tribunal must be reasonably satisfied of the truth of the allegations or denials. In reaching such a conclusion it must give full weight to the gravity of a charge of misconduct in office by a person subject to the Leadership Code, the adverse consequences which follow and of the duty to act judicially and in compliance with the principles of natural justice.

In practical terms the standard is not as high as the criminal proof beyond reasonable doubt but in our opinion, the very nature of the offence of misconduct in office created by the Constitution and the Organic Law on the Duties and Responsibilities of Leadership, will require a higher standard of proof than that ordinarily applicable in civil cases, namely proof on a balance or preponderance of probabilities. In matters involving accusations amounting to criminal conduct, the standard must be close to that applicable in a criminal trial."

10. Section 27(4) of the OLDRL provides that in conducting its inquiry, the Tribunal is not bound by legal formalities or rules of evidence, but it is required to observe the principles of natural justice. Section 27(4) is reproduced below.
    

“The tribunal shall make due inquiry into the matter referred to it, without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.”

EVIDENCE

11. The prosecution’s case is constituted by both documentary and sworn oral evidence.
    
12. The Public Prosecutor called the following witnesses:
    
    1. Mr Richard Pagen, the Chief Ombudsman;
    2. Dr Ken Ngangan, Secretary of Department of Finance;
    3. Mr Daniel Rolpagarea, State Solicitor;
    4. Mr James Songo, Proprietor of Jaybis Construction & Management;
    5. Mr Rex Mauri, President of the Hidden Valley Gold Mine Landowners Association;
    6. Mr Babaga Naime, Secretary, Central Supply Tenders Board (CSTB);
    7. Mr Christopher Sumac, District Treasurer, Bulolo District Treasury;
    8. Mr Tae Guambelek, Bulolo District Administrator.
       
13. Documentary evidence tendered and admitted into evidence in support of the prosecution’s case consists of the following documents:
    
    1. Affidavit of Richard Pagen sworn on 13 September 2021 and filed on 17 September 2021 (minus paragraph 9(h) and annexure RP1, Annual Statement for period 6 August 2014 to 5 August 2015 which were struck out upon objection by the Leader) (Exhibit P1);
    2. All documents annexed to the SOR and described there as Exhibits 1 to 63 correspondingly marked as Exhibits PP1 to PP63; and
    3. Members Disbursement Form No.2014000134 dated 21 November 2014 (Exhibit P2).
14. Dr. Ken Ngangan, Mr. Daniel Ropalgarea, Mr. Christopher Sumac and Mr. Tae Guambelek were subjected to methodical cross-examination.
15. At the end of the prosecution’s case, the Leader through Mr. Sheppard of counsel considered making a no case to answer submission, but reconsidered and called evidence. In any event, a no case to answer submission is not viable in an inquiry such as this as the Tribunal is not a Court vested with and exercising criminal jurisdiction: In the Matter of Grand Chief Sir Michael Somare (2011) N4224; Special Reference by the Ombudsman Commission re Constitution Section 28(5) (2017) SC1645; In the Matter of Hon. Solan Mirisim, MP, Member for Telefomin Open, West Sepik Provincial Assembly (2021) N9276.
    
16. The Leader’s case is also constituted by documentary and sworn oral evidence.
    
17. The Leader was the sole witness called in his defence and was subjected to intense cross-examination.
    
18. Documentary evidence was constituted by the following documents:
    1. Letter from Mr. Tae Guambelek, District Administrator, Bulolo District Administration to the Department of Implementation & Monitoring dated 11 June 2015 (Exhibit L1); and
    2. Bulolo District 2014 District Support Grant (DSG) – Discretion Fund Acquittals (3 x Volumes) compiled by the Leader in relation to funds totalling K250,000.00 (Exhibit L2).
       

FINDINGS OF FACT

19. Having considered and closely examined the evidence presented by the parties, we make the following findings of fact on the basis that they are either not contested or have been established on the required standard of proof:
    
    1. The Leader has been a Member of the National Parliament for the Wau/Bulolo Open Electorate since 2007.
    2. The Leader has also been a Member of the Morobe Provincial Assembly since 2007.
    3. At the material time, the Leader was the Chairman of the Joint District Planning and Budget Priorities Committee (JDP & BPC) of the Bulolo District.
    4. At the material time, Mr. Tae Guambelek was the District Administrator of the Bulolo District.
    5. At the material time Mr. Christopher Sumac was the District Treasurer of the Bulolo District Treasury.
    6. On 12 March 2013, the JDP & BPC at its Meeting No.DB-0913-04 by Resolution No.001-DB-0913-04 resolved to engage Flametrees Limited to negotiate with all banks and financiers to negotiate a loan specifically for the construction of the Wau Commercial and District Headquarters (the Wau Office Complex) for a one-off fee of K120,000.00 and 2% success fee on value of loan obtained (Exhibit PP31.1).
       7. On 12 March 2013, the JDP & BPC at its Meeting No.DB-0913-04 by Resolution No.002-DB-0913-04 (Exhibit PP31.2) resolved to construct as a special project for Bulolo District, the Wau Office Complex (a 2-3 level commercial building) at an estimated cost of K8 million. It was noted that architectural drawings had been completed and passed on to appropriate builders and once quotes were given, the three cheapest quotes were to be passed on to CSTB. It was also resolved that once approval of a quote was given, Flametrees Limited was to follow processes to acquire a loan for the construction of the building from Bank of South Pacific Limited or other financiers with MMJV Royalties payments to be used as collateral for the loan.
    8. Architectural drawings were done by RKM Douna Limited and on 12 March 2013, the JDP & BPC at its Meeting No.DB-0913-04 by Resolution No.003-DB-0913-04 (Exhibit PP31.3) resolved to pay the company’s fees of K25,000.00.
    9. On 17 September 2013, the JDP & BPC at its Meeting No.DB-0913-05 by Resolution No.004-DB-0913-05 (Exhibit PP31.4) resolved to place a number of projects including the construction of the Wau Office Complex through the CSTB.
    10. On 16 May 2014, the CSTB publicly advertised in The National newspaper Tender No.CSTB 3037 for the construction of a two storey Office Complex building for the Bulolo District Administration at Wau, Bulolo District (Exhibit PP28.2).
    11. On 15 June 2014, the Morobe Provincial Administration Tender Evaluation Committee endorsed and recommended Jaybis Construction & Management to be awarded the tender to construct the Wau Office Complex (Exhibit PP28.1).
    12. On 4 July 2014, the CSTB awarded the tender to Jaybis Construction & Management for a fixed contract price of K5,998,749.90 (Exhibits PP35.10 and PP35.20). This information was communicated to the Bulolo District Administrator by letter on 7 July 2014 (Exhibit PP35.10).
    13. On 15 July 2014, under cover of a letter, the Department of Works through Mr. Gabriel Tomtai, Acting Secretary, submitted an application to the APC Committee, Department of Finance for an Authority to Pre-Commit for the construction of the Wau Office Complex (Exhibit PP28.1). He advised that the Morobe Provincial Administration under the MMJV Royalty Payments funding had set aside funds totalling K6,623,975.11 to construct the Wau Office Complex which were parked in the Bulolo DTOA and annexed to the letter a copy of the last page of Bulolo DTOA bank statement dated 30 June 2014 showing a credit balance of K6,623,975.11 (Exhibit PP28.1A).
    14. On 14 August 2014, an Authority to Pre-Commit Serial No.254258 was issued by the National APC Committee, the Committee determining that funding of K5,998,749.90 and documentation were in order (Exhibits PP28.4 and PP28.5). Approval by the Secretary for Department of Finance was obtained on 11 September 2014 (Exhibit PP28.4).
    15. Mr. Rolpagarea, State Solicitor issued legal clearance for Contract No. CSTB 3037 for the construction of the Wau Office Complex after sighting and considering; CSTB approval letter of 7 July 2014; advertisement of public tender in The National on 16 May 2014; and Authority to Pre-Commit Serial No.254258 (Exhibit PP28).
    16. Conformed Contract Agreement Contract No. CSTB 3037 (Contract No. CSTB 3037) was executed on 29 October 2014 (Exhibits PP18.3, PP28 and PP35.20).
    17. The Wau Office Complex has not been built.
    18. Jaybis Construction & Management (6-189530) was registered as a Business Name on 8 September 2015 (Exhibits PP35.15 and PP35.16).
    19. Jaybis Construction & Management was awarded Contract No. CSTB 3037 prior to it being registered.
    20. At the material time, the Bulolo District Treasury operated one bank account with the Bank of South Pacific Limited called the Bulolo District Treasury Operating Account (1000878749) (the Bulolo DTOA).
    21. The Bulolo DTOA was simply an operating account through which there was an inflow and outflow of money for different projects from different sources either from the National Government or Morobe Provincial Government including, but not limited to District Services Improvement Programme (DSIP) and Hidden Valley Gold Project Royalties (Exhibit PP30.4) and the payment of goods and services rendered (Exhibits PP30, PP30.1, PP30.2, PP30.3 and PP30.4).
        22. BSP Cheque No.7141 drawn from the Bulolo DTOA made payable cash to Mr. Christopher Sumac for K50,000.00 was cashed and given to the Leader (Exhibit PP41.15).
    23. BSP Cheque No.7153 drawn from the Bulolo DTOA made payable cash to Mr. Tae Guambelek for K50,000.00 was cashed and given to the Leader (Exhibit PP41.14).
    24. BSP Cheque No.7170 drawn from the Bulolo DTOA made payable cash to Mr. Christopher Sumac for K50,000.00 was cashed and given to the Leader (Exhibit PP41.15).
    25. The Bulolo District 2014 District Support Grant (DSG) – Discretion Fund Acquittals (3 x Volumes) compiled by the Leader were lodged with the Department of Implementation and Rural Development (Office of Rural Development) either on 12 June 2015 (Exhibit L2) or 26 November 2015 (Exhibit PP60.1).
    26. Mr. Christopher Sumac received K1,500.00 from the Leader from discretionary funds for his mobility.
        27. BSP Cheque No.7152 drawn from the Bulolo DTOA made payable cash to Mr. Tae Guambelek for K50,000.00 was also cashed and given to the Leader (Exhibit PP41.29). Similar drawings and payments were made in the past.
        28. It was a normal practice to receive cash from the discretionary component of funds and have it disbursed amongst the Leader’s people at his discretion.
            

CONTESTED FACTS

20. The main contested facts are:

1. Between 1 March 2013 and 24 September 2018, the Leader, as the Chairman of the Bulolo District Development Authority interfered with the decision of the CSTB in relation to Tender No.3037 by failing to implement its decision to award a contract to Jaybis Construction & Management to construct the Wau Office Complex.
2. On 15 December 2014, the Leader, without lawful authority, indirectly asked for and accepted on his own behalf a benefit in the sum of K50,000.00 which was obtained when a cheque payable to Mr. Tae Guambelek drawn from the Bulolo DTOA from funds allocated for the construction of the Wau Office Complex was cashed and given to the Leader by reason of his official position.
3. On 18 December 2014, the Leader, without lawful authority, indirectly asked for and accepted on his own behalf a benefit in the sum of K50,000.00 which was obtained when a cheque payable to Mr. Christopher Sumac drawn from the Bulolo DTOA from funds allocated for the construction of the Wau Office Complex was cashed and given to the Leader by reason of his official position.
4. On 21 December 2014, the Leader, without lawful authority, indirectly asked for and accepted on his own behalf a benefit in the sum of K50,000.00 which was obtained when a cheque payable to Mr. Christopher Sumac drawn from the Bulolo DTOA from funds allocated for the construction of the Wau Office Complex was cashed and given to the Leader by reason of his official position.
5. On 9 November 2015, the Leader knowingly, recklessly or negligently provided information in the Annual Statement for reporting period 6 August 2014 to 5 August 2015 that were false, misleading or incomplete in a material particular by not declaring the receipt of K150,000.00 from the Bulolo DTOA.
   

MAIN ISSUES

21. The main issues that arise from the contested facts for our consideration and determination are:

1. Whether the Leader interfered with the implementation of Contract No. CSTB 3037 which was awarded to Jaybis Construction & Management to construct the Wau Office Complex?
2. Whether on 15 December 2014, the Leader, without lawful authority, indirectly asked for and accepted on his own behalf a benefit in the sum of K50,000.00 which was obtained when a cheque made payable to Mr. Tae Guambelek drawn from the Bulolo DTOA was cashed and given to the Leader by reason of his official position?
3. Whether on 18 December 2014, the Leader, without lawful authority, indirectly asked for and accepted on his own behalf a benefit in the sum of K50,000.00 which was obtained when a cheque made payable to Mr. Christopher Sumac drawn from the Bulolo DTOA was cashed and given to the Leader by reason of his official position?
4. Whether on 21 December 2014, the Leader, without lawful authority, indirectly asked for and accepted on his own behalf a benefit in the sum of K50,000.00 which was obtained when a cheque made payable to Mr. Christopher Sumac drawn from the Bulolo DTOA was cashed and given to the Leader by reason of his official position?
5. Whether on 9 November 2015, the Leader knowingly, recklessly or negligently provided information in the Annual Statement for the reporting period 6 August 2014 to 5 August 2015 that were false, misleading or incomplete in a material particular by not declaring the receipt of K150,000.00 from the Bulolo DTOA?
   

22. The main issues will be addressed in the following order. The second to the fifth issues can be dealt with fairly quickly so we will address the second, third and fourth issues together first followed by the fifth issue and the first issue will be addressed last.

CATEGORY 2 ALLEGATIONS - USE OF OFFICE FOR PERSONAL BENEFIT

SUBMISSIONS

23. Mr. Kaluwin, the Public Prosecutor, concedes that Exhibit L2 demonstrates that funds used did not form part of royalty monies that were intended to be used to construct the Wau Office Complex.
    

24. Mr. Sheppard for the Leader submits that the Leader should be acquitted or found not guilty of allegations 2, 3 and 4 because:

1. the Public Prosecutor must prove as an element of the allegation that the Leader “indirectly asked for and accepted a benefit” and there is no evidence the Leader asked for or received any benefit;
2. evidence before the Tribunal is that it was a normal practice to receive cash and have it disbursed amongst the Leaders people (see evidence of Mr. Christopher Sumac);
3. evidence before the Tribunal that the Bulolo DTOA contained a discretionary component and the funds in the account were made up of deposits from DSIP and Hidden Valley Gold Project Royalties as well as from other sources (see Exhibit PP30.4);
4. evidence before the Tribunal that other cheques were cashed by Mr. Tae Guambelek (see evidence of Mr. Tae Guambelek under cross-examination);
5. evidence that the funds from the 3 cheques (No 7141, 7153 and 7170) were acquitted (see Exhibit L1); and
6. Such acquittals (L2) were approved by the appropriate authority (see Exhibit PP60.1).

CONSIDERATION AND DETERMINATION

25. Section 5(1) of the OLDRL states as follows:

“5. Use of office for personal benefit, etc.

(1) A person to whom this Law applies who, except as specifically authorized by law, directly or indirectly asks for or accepts, on behalf of himself or an associate, any benefit in relation to any action (past, present or future) in the course of his duties, or in the course of or by reason of his official position, is guilty of misconduct in office.”

26. A closer examination of the Reference shows that except for Allegation 2 where the Leader is charged under s5(1) of the OLDRL, for Allegations 3 and 4, the Leader is charged under what is preferred as s5(a) of the OLDRL. There is no such provision as s5(a) under the OLDRL. A person can only be charged and tried for an offence that is clearly defined by a written law and that is guaranteed under s37(2) of the Constitution. No application was made at the hearing by the Public Prosecutor to amend the allegations in the Reference nor was there an application by the Leader to quash Allegations 3 and 4 for that defect. However, we consider that that is a fundamental defect and we propose to dismiss Allegations 3 and 4 for that reason.

27. Even if Allegations 2, 3 and 4 were all properly before the Tribunal, we consider that they have no merit and cannot be sustained. The letter from Mr. Tae Guamblelek, Bulolo District Administrator to the Secretary, Department of Implementation and Monitoring dated 11 June 2015 (Exhibit L1) shows that the cheques drawn from the Bulolo DTOA were from the Leader’s discretionary component of funds which were parked in the Bulolo DTOA. The payments were acquitted in the Leader’s Bulolo District 2014 District Support Grant (DSG) – Discretion Fund Acquittals lodged with the Department of Implementation and Rural Development (Office of Rural Development) in 2015 (12 June 2015 per Exhibit L2 and 26 November 2015 per Exhibit PP60.1). As we have found earlier, it was a common practice to receive cash as was mentioned by Mr. Christopher Sumac and Mr. Tae Guambelek and have it disbursed amongst the Leader’s people at his discretion.

28. We find that the Leader did not use his office or his official position (to directly or indirectly ask for or accept on behalf of himself cash totalling K150,000.00 from three cheques drawn from the Bulolo DTOA worth K50,000.00 each) for his personal benefit as alleged in Allegations 2, 3 and 4. The allegations have no merit.

29. Consequently, we dismiss Allegations 2, 3 and 4.

CATEGORY 3 ALLEGATION

30. Allegation 5 is predicated upon s4(6)(b) of the Organic Law which states as follows:

“4. Statement of income, etc.

(6) A person to whom this Law applies who –

(b) knowingly, recklessly or negligently gives such a statement or explanation, or any such details, that is or are false, misleading or incomplete in a material particular, is guilty of misconduct in office.”

31. The Public Prosecutor concedes that there is no evidence to demonstrate that the Leader did not declare that he received the sum of K150,000.00 drawn from the Bulolo DTOA.

32. The Annual Statement for the reporting period 6 August 2014 to 5 August 2015 is not in evidence. It did not form part of the SOR. That is a fundamental omission. We concur with the Public Prosecutor that there is no evidence to sustain this allegation.

33. In any event, all of the disbursements from the three cheques, the subject of Allegations 2, 3 and 4 were acquitted to the satisfaction of the relevant authority, ie, the Department of Implementation and Rural Development (Office of Rural Development) (Exhibit PP60.1 and Exhibit L2). The Leader did not personally benefit from those funds which were disbursed to the Leader’s people in the exercise of his discretion (Exhibits L1 and L2) and so the funds could not be regarded as income he received directly or indirectly during the reporting period from 6 August 2014 to 5 August 2015 for purposes of reporting in his Annual Statement for the relevant reporting period.

34. Consequently, we dismiss Allegation 5.

CATEGORY 1, ALLEGATION 1

INTERFERENCE WITH THE DECISION OF THE CENTRAL SUPPLY AND TENDERS BOARD DECISION AND FAILING TO IMPLEMENT THE CONSTRUCTION OF WAU COMMERCIAL AND DISTRICT HEADQUARTERS

SUBMISSIONS
35. Mr. Kaluwin, Public Prosecutor submits that there is sufficient evidence before the Tribunal to sustain the allegation for which the Leader should be found guilty for misconduct in office as:

1. On 17 February 2015, Mr. James Songo of Jaybis Construction & Management wrote to the Chairman of CSTB stating that the contract agency (District Administrator) verbally advised him not to take possession of the site until further notice (Exhibit PP35.19);
2. On 14 December 2015, Konjib & Associates Lawyers wrote to the Chairman of the Bulolo Disrtict Development Authority on behalf of Jaybis Construction & Management raising concerns about the delay in the implementation of Contract No. CSTB 3037;
3. Mr. Zure Tudi, LLG Manager for Wau-Bulolo Urban Local-level Government – LLG Administration informed the Ombudsman Commission that his Administration was informed by Jaybis Construction & Management after taking possession of the site 14 days after being granted Contract No. CSTB 3037 that Mr. Tae Guambelek, District Administrator and the Leader as Chairman of the DDA instructed them not to commence the project so the project was not implemented;
4. The Wau Office Complex was one of the projects approved by the JDP & BPC on 17 September 2013 for tender through the CSTB whose Chairman was the Leader and evidenced by Meeting Minute No.DB-0913-05, Resolution No.004-DB-0913-05 (Exhibit PP31.4);
5. The Leader was therefore aware of the processes that took place for the awarding of Contract No. CSTB 3037 to Jaybis Construction & Management;
6. He instructed Jaybis Construction & Management not to commence construction of the Wau Office Complex; and
7. Funds in the Bulolo DTOA were not spent to start and complete Contract No. CSTB 3037.
   

36. Mr. Sheppard for the Leader submits that the Leader should be acquitted or found not guilty of the allegation because:

1. there is no evidence that the Leader interfered or was in any breach of s27(1) (a) or (b) of the Constitution or failed to implement the decision of awarding the contract to Jaybis Construction & Management by the CSTB;
2. there is no evidence that any funds were allocated for the express purpose of the construction of the Wau Office Complex;
3. there is no evidence that there was any resolution for the construction of the Wau Administration building;
4. there is evidence that any construction of the Wau Administration building was predicated on obtaining the necessary funding before any approval for construction of the Wau Administration building; and
5. no funding was obtained.
   

CONSIDERATION AND DETERMINATION

37. Allegation 1 is referred under s27(1) of the Constitution and it states, in part, as follows:

27. RESPONSIBILITIES OF OFFICE

“(1) A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not -

(a) to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or

(b) to demean his office or position; or

(c) to allow his public or official integrity, or his personal integrity, to be called into question; or......”

38. As alluded to earlier, we have made findings of fact that the Bulolo JDP & BPC approved of the construction of the Wau Office Complex. The project was placed on public tender. Jaybis Construction & Management was the successful bidder and Contract No. CSTB 3037 was executed following the grant of the APC and legal clearance issued by the State Solicitor. The APC was granted on the basis of the misapprehension by the APC Committee and Dr. Ken Ngangan, Secretary for Department of Finance that funds totalling K6,623,975.11 being the credit balance showing on the Bulolo DTOA bank statement dated 30 June 2014 which was initially supplied by Gabriel Tomtai, Acting Secretary of the Department of Works to the Secretary for Department of Finance. The legal clearance given by the State Solicitor for execution of Contract No. CSTB 3037 was also influenced by the APC and other documents supplied to him.

39. What is abundantly clear from the evidence is that the Bulolo JDP & BPC resolved that the construction of the Wau Office Complex was to be funded from a commercial loan obtained from a bank or financial institution within the country and Flametrees Limited was engaged to procure the loan. As to whether obtaining a commercial loan to construct the Wau Office Complex was permitted by the Public Finances (Management) Act 1995 (as amended) or any other law is not an issue before the Tribunal for determination. Any construction was predicated on obtaining funding first. The loan was never obtained so there was no funding at all for the construction of the Wau Office Complex (Exhibit PP31). Nothing can be evinced from the bank statements obtained from the Bulolo DTOA demonstrating that the Bulolo District Administration allocated funds for the express purpose of the construction of the Wau Office Complex. Dr. Ken Ngangan said money for such projects could only be approved by the Treasury and such approval was not given. The awarding of the tender to Jaybis Construction & Management was therefore premature. We concur with the Leader’s submissions in this respect. The construction of the Wau Office Complex could not commence simply because the project was not funded.

40. What remains to be determined is whether the Leader interfered with the implementation of Contract No. CSTB 3037, that is, the construction of the Wau Office Complex by Jaybis Construction & Management.

41. None of the witnesses called by the Public Prosecutor gave any evidence as to any interference and/or failure by the Leader to implement the decision of the CSTB that would place the Leader in breach of s27(1) of the Constitution. The evidence is to the contrary in that the Leader was not involved in any way whatsoever with the implementation of Contract No. CSTB 3037.

42. If there were any interference with the implementation of the decision of the CSTB through Contract No. CSTB 3037, that was by other parties and not the Leader and this can be demonstrated (from the Leader’s submissions which we agree with) as follows:

1. On 14 April 2015, CSTB Chairman, Mr Philip Eludeme wrote to Mr Tae Guambelek in reference to Jaybis Construction & Management’s letter dated 17 February 2015 and advised him to allow the contractor to take possession of the project site without any further delay: Exhibit PP35.20;
2. On 14 December 2015, Konjib & Associate, Lawyers wrote to the Chairman of the Bulolo District Development Authority (for the attention of Mr. Tae Guambelek) and gave final notice to Bulolo District Development Authority to honour Contract No. CSTB 3037 for construction of the Wau Office Complex: Exhibit PP35.22;
   3. On 29 February 2016, the Morobe Acting Provincial Legal Officer, Mr Elijah Kerry Peu wrote to Mr Tae Guambelek and advised him to allow Jaybis Construction & Management to take possession of the project site without further undue delay: page 10 SOR;
   4. On 2 May 2016, Mr James Songo of Jaybis Construction & Management wrote to Bulolo District Authority CEO, Mr Tae Guambelek and said he was writing to them as a last administrative attempt for the implementation of Contract No. CSTB 3037 after five previous attempts had failed and warned that should thas attempt fail, he would run to the courts and Ombudsman Commission to seek redress: page 10 SOR;
   5. On 17 February 2015, Mr James Songo of Jaybis Construction & Management wrote to the Chairman of the CSTB and advised him that he had been orally advised by the District Administrator, Mr Tae Guambelek, not to take possession of the site until further notice: Exhibit PP35.19.
   6. On 8 November 2016, Mr James Songo of Jaybis Construction & Management wrote to the Ombudsman Commission advising he was advised by Mr. Tae Guambelek not to take possession of the site: Exhibit PP35.1;
      

43. In addition, there is evidence from the Leader, Christopher Sumac and Dr Ngangan that the Leader was not responsible for implementing a decision of the CSTB. The responsibility fell on responsible staff of the Bulolo District Administration headed by the District Administrator, Mr. Tae Guambelek. Mr. Tae Guambelek did not provide any evidence to the contrary.

44. Mr. James Songo, proprietor of Jaybis Construction & Management gave evidence under oath that he was the contractor who was awarded Contract No.CSTB 3037 for the construction of the Wau Office Complex, but did not provide any evidence of the Leader’s alleged interference or failure to implement the decision of the CSTB or any breach of s27(1)(a), (b) or (c) of the Constitution by the Leader. His other evidence was that he was prevented from taking possession of the site by the District Administrator, Mr. Tae Guambelek and by no other person (Exhibits PP35.1, PP35.19, PP35.20 and PP35.22).

45. Mr. Tae Guambelek suggested in his oral evidence that the Leader provided an alternative list of contractors to CSTB for tender CSTB 3037, but he was unable to produce such list and confirmed under re-examination that he had not even seen such a list. Asked also in re-examination by Mr. Kaluwin why he said there were two lists of contractors given to the CSTB, Mr. Tae Guambelek said that could be inferred from the fact that Contract No. CSTB 3037 was not implemented by Jaybis Construction & Management, which was a contractor recommended by the Bulolo District Administration (Exhibit PP44.1) and not the Leader.

46. The evidence presented by the Public Prosecutor to the Tribunal is deficient and does not meet the relevant standard of proof to sustain the allegation. The allegation has no merit and must be dismissed.

47. In the circumstances, we dismiss Allegation 1.

VERDICT

48. The verdict of the Tribunal for each allegation is as follows:

Allegation 1 Not Guilty

Allegation 2 Not Guilty

Allegation 3 Not Guilty

Allegation 4 Not Guilty

Allegation 5 Not Guilty

ORDER

49. The orders of the Tribunal are:

1. Allegation 1 is dismissed.
2. Allegation 2 is dismissed.
3. Allegation 3 is dismissed.
4. Allegation 4 is dismissed.
5. Allegation 5 is dismissed.
6. The suspension of the Leader, Honourable, Sam Basil, Deputy Prime Minister and Member for Wau/Bulolo Open in the National Parliament and Member of the Morobe Provincial Assembly, under s28 of the Organic Law on the Duties and Responsibilities of Leadership is lifted and discharged forthwith.
7. Pursuant to s27(6) of the Organic Law on the Duties and Responsibilities of Leadership, a copy of this decision and verdict shall be sent to the Speaker for presentation to the National Parliament and to the National Executive Council.
   

Verdict and orders accordingly.
_____________________________________________________________
Public Prosecutor: Counsel assisting the Tribunal
Young & Williams: Lawyers for the Leader