Tahia v Attorney General [2020] SBHC 116; HCSI-CC 18 of 2019 (16 November 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Tahia v Attorney General
Citation:
Date of decision:	16 November 2020
Parties:	Abraham Tahia v Attorney General
Date of hearing:	12 October 2020
Court file number(s):	18 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:
Order:	1. The Claim for judicial review is hereby dismissed. 2. The termination of the Claimant from his employment with Public Service is in order. 3. That Claimant pay cost of this hearing to the Defendants.
Representation:	Mr. B. Etomea for the Claimant Mr. B. Pitry for the 1st and 2nd Defendants
Catchwords:
Words and phrases:
Legislation cited:	Public Finance Management Act ,S. 73 (1), Public Service Commission Regulation 1998, Regulation 49, Public Service Rule
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 18 of 2019

BETWEEN

ABRAHAM TAHIA
Claimant

AND:

ATTORNEY GENERAL
(On behalf of the Permanent Security of the Ministry of Public Service)
First Defendant

AND:

ATTORNEY GENERAL
(On behalf of the Chairman of the Public Service Commission)

Date of Hearing: 12 October 2020
Date of Judgment: 16 November 2020

Mr. B. Etomea for the Claimant
Mr. B. Pitry for the 1^st and 2^nd Defendants

JUDGMENT

Faukona PJ: This is a claim for judicial review filed by the Claimant on 17^th January 2019.

2. The reliefs sought are all in the nature of quashing orders, to quash the decision of the Permanent Secretary of the ministry of Public Service terminating the employment of the Claimant.
3. An order quashing the decision of the Public Service Commission upholding the decision of the Permanent Secretary at its 33^rd /18 meeting on 14^th June 2018, as ultra vires and an abuse of court process.
4. And an order for the Claimant be reinstated as Senior Education Officer Inspection at Honiara Town Council (HCC) and be paid service entitlements and damages incurred.

The Facts.

5. The Claimant was formally employed as a Senior Education Officer Inspectorate by the Ministry of Education and Human Resources Development and was posted at Honiara City Council (HCC).
6. In 2016 the Claimant received a letter dated 6^th March 2016 from the Permanent Secretary of the Ministry of Public Service for an immediate suspension from duty. There were allegations of serious misconduct in office as reported by Permanent Secretary of the Ministry of Education and Human Resources.
7. On 8^th February 2018, the Claimant received six (6) charges alleging gross misconduct in office which the Claimant responded denying it. In that letter the PS of Public Service requesting the Claimant to show cause to the charges of misappropriation of imprest.
8. On 10^th march 2018, the Claimant responded to the letter to show cause and referring to the letter signed by the Coordinator of Flex and WSA dated 3^rd May 2016 approving payment of a lap top and two cameras and costs.
9. On 15^th March 2018, after receiving the respond by the Claimant, the PS for Public Service consequently terminated the Claimant from his employment.
10. The letter of termination was received on 22^nd March 2018 and by excising his rights the Claimant therefore filed an appeal per his letter dated the same date address to the Chairman of Public Service Commission.
11. The Commissioner after deliberation on the appeal had on 16^th July 2018 dismissed the appeal and upheld the decision made by the Permanent Secretary for Public Service.

The issue.

12. The issue is whether the Permanent Secretary for Public Service complied with the relevant provision in its deliberation which consequently resulted in the termination of the Claimants employment in the Public Service.
13. Secondly is whether the Public Service Commission in upholding the determination by PS of Public Service is fair and based in reliable evidence.

Management of this case

14. In this case the Counsel for the State had failed to file any sworn statement in support of its defence which was filed on 22^nd August 2019. Despite several direction orders were made to compel the state office to file, there was nothing forthcoming. Consequently the Court decided to proceed without any sworn statement to supporting the defence case.
15. Inspite confronting that awkward situation by the State, there is no guarantee that this Court will yield automatically and absolutely to the evidence made available by the Claimant. I have to assess the veracity of evidence as well, so to be fair. The significant consideration is that one of the State Counsels was available in Court and was given opportunity to make any submission which he did. In deed he was right on the point that calling of a witness by the PS for Public Service and even by the Chairman of Public Service Commission in their deliberations is not compulsory, but optional, only in very complicated cases and in a circumstance where a point needs to be verified.

Issue whether the PS or and the Public Service Commission complied with the procedures by inviting the Claimant and his witness to present their case.

16. I have considered relevant and less time consuming to deal with both issues at once as both refer to one legal point. Following the indulgent of the parties at the initial stages of the process the Claimant was subsequently indicted of six (6) charges for breach of Public Service Rules. Charge one (1) that between 8^th July 2014 and 15^th September 2014, the Claimant had failed to comply with relevant regulations by improper retirement of funds budgeted to inspect schools under the jurisdiction of the Honiara City Council and Rennell and Bellona Province, contrary to GOC113 as read with PSC Regulation 44.
17. The Second charge is that in the same period the Claimant had failed to conduct Government procurement activities to ensure spending and use of public resources were made according to prescribed procedures by refusing to comply with instructions to retire receipts when asked by the Senior Accountant of HCC contrary to s.73 (1) of Public Finance Management Act, as read with PSC Regulation 44.
18. The third (3) Charges comprise of failing to ensure funds budgeted and received are used properly and that only approved spending occurs and all procumbent is strictly in accordance with Supply Management requirements and not spending funds for unofficial purpose, contrary to Financial Instructions P311.1 (c).
19. The fourth charge is that the Claimant failed to obey Financial Instructions particularly directive that affects work which caused financial loss to the government by spending an amount for more than $173, 400.00, contrary to Financial Instructions M335.2.
20. The fifth charge contains allegation of Claimant’s failure to comply with relevant Financial Instruction accessing funds allocated to inspectorate division for activities that are not related to SIG programs, contrary to Financial Instructions M1.23.3.
21. The Sixth Charge is in the nature of Claimant’s failure to provide receipts and other documents to support all spending out of the standing imprest allocated for the inspectorate division for school visits and leaders appraisal contrary to Financials Instructions FI P7.63.1.
22. It is not clear, on the outset, whether $173, 400.00 in the 4^th charge is part and partial of the total misappropriation amount of $244,000.00 as initially alleged or not. However, I perceive it must be part of the whole misappropriation amount as alleged.
23. There are a number of argumental issues raised. However, I will deal with the issue of none representation at both deliberations. Sadly there is no argument about the procedures to apply where allegations are filed against a Public Officer.
24. The major thrust of this case is the failure by the Permanent Secretary and Public Service Commission to act fairly by complying with the set procedures. That those two offices had failed to properly investigate the allegations against the Claimant which was a serious misconduct, pursuant to Regulation 49 of the Public Service commission Regulation 1998. Under the Regulations and allegation of serious misconduct required a Board of Inquiry be appointed to carry out the investigations. Whether this was done or not is not a line of argument the Claimant is pursuing, but focused on no representations at the dual hearings. Sadly the Counsels failed to assist the court on relevant regulations applicable.
25. Whilst I concur that the allegations are serious to uphold the status of serious misconduct. Regulation 44 assist by setting down the minimum standard of an act of misconduct. Any act in the nature beyond the categories as expounded is higher misconduct in nature.
26. Of course in the absence of any challenge, it can be noted that the allegations are serious misconducts which require Regulation 49 to come into play in dealing with such misconduct.
27. It would be a proper course if the Claimant should divert his arguments to question why should a Board of Inquiry not appointed to carry out investigations. In any event that is not the concern of the Claimant. He dares not to challenge that provision. Even if he had done so, that argument is flawed because the appointment of the Board of Inquiry is not mandatory. It may not be necessary if the Defendants are satisfied with the evidence available before them. In this case it seemed the Defendants were satisfied of the evidence before them which guarantee they could foot a decision which they made accordingly without the appointment of the board to investigate which is not mandatory.

Analysis of evidence:

28. The Claimant asserted in his letter dated 10^th March 2018, addressed to the Permanent Secretary of Public Service, that he denied he was not the imprest holder which under Financial Instructions S. 61.1 P764 as read with S.61.2 P761, (Cap 7) bound by legal obligation to retire the imprest, only the holder is an Accountable Officer and is answerable to the imprests.
29. Apparently, it seems that the imprest may be in the name of HCC Education Authority which undoubtedly appointed an Accounting Officer responsible to retire the imprest.
30. However, what seems likely is that the amount of $185,175.00 was allocated to HCC and Renbel and WSI Budget for 2014. The Claimant in his own sworn statement stated that he had retired the amount, annexed is a verification document AJ5.
31. If the allegation solely focused on misappropriation of $244, 000.00 then the balance of $58,825.00 was part of $185,175.00.
32. I have the liberty to peruse the Claimant’s intended document dated 29^th May 2015, in regards to the funds allocated to Education Division of HCC of which he and the coordinator endorsed.
33. I noted the total funds of $185,175.00 were used under four categories of expenditures. All of them appear that each category of expenditures was allocated with certain amount. However, I have not seen any receipt of monies expended under each category of expenditure. The receipts are significant part of retiring government imprests. If mere allocations of funds are done on paper, of course, looks grandeur, but if no receipts to account for monies spent then how can you expect the Accounting Officer (Imprest Holder) to retire the imprest.
34. It is an obligation upon the Officer who managed and actually expended the funds to obtain receipts for each expenditure. This is what we now openly term as transparency and accountability. These subsequently are submitted to the Imprest Holder so that retirement of imprest is finalized. In this case there are no copies of receipts shown and attached to the note therefore retirement of imprest is definitely at stake. That act alone has definitely in contrary to effect charge 6. If receipts were disclosed upon retirement then why charge 6. It implicates the receipts tendered were not sufficient to enable proper retirement of the imprest.
35. That failure alone will accumulate the inclusion of Charges 1, 2 and 3. I have read the explanations or replies given by the claimant in his letter to the Permanent Secretary to Public Service dated 21^st February 2018. The Claimant’s reply in Charge 1 is that he had accounted and retired payment or usage of imprest funds properly expedited and receipted and sent to the Ministry of Education through Senior Accountant Honiara City Council Education Authority. Unfortunately none of receipts was tendered even a copy is produced to this Court as supporting evidence, only retirement summary which is inefficient and insufficient to support any retirement of imprest. That is a total failure by the Claimant. He may argue that he had sent all the receipts but this is his case he must substantiate. It ought to be noted that the Claimant’s Counsel has never requested any disclosures of documents to be inspected. He thought by failure of the Defendants to file sworn statement will render him upper hand at trial. That is not always the case, and not here in this case.
36. I also noted as well that there is no copy of any government procurement activities to ensure prudent spending out of the imprest as public resources which must be accounted for.

Purchasing of a lap top and 2 cameras

37. On the second aspect of the Claimant’s case, is in respect of the purchase of one lap top and two cameras. The Claimant assumes that one of the reasons he was terminated from employment was because he purchased those two items without authorization.
38. He argues that he was given authority by Mr Toata who was the National Coordinator for flexi inspector and WSI activity. I read in conjunction of two letters written by Mr. Toata; one dated 3^rd march 2016 and the other dated 27^th March 2018. Besides those letters was a Statutory Declaration sworn by Mr Toata on 28^th March 2018.
39. Those documents reiterating the same music, that Mr Toata, the National Coordinator, had authorized the purchase of those three items.
40. I noted from the initial stage and evidence that the PS for Public Service has had gathered some information from Mr Toata through telephone and mobile conversations which was different from those three documents Mr Toata produced. However this pause a question whether Mr Toata had truly authorized the purchase of the three items. Firstly, Mr Toata admitted in his evidence that he denied authorizing the purchase. This he conveyed when he was travelling in his car during the conversation with someone from the Public Service. Later he retracted and affirmed through his two letters and on Statutory Declaration that he did authorize.
41. Unfortunately those letters and Statutory Declaration were written about one and half (1½) years later. There is no specific evidence to indicate what form of authorization was used at that very moment, whether it was oral or written. If written such material copy should be available among the documents in court file.
42. The next question is has the National Coordinator had prerogative and power to authorize the allocated funds be expended beyond the budgeted figure. There is no evidence to illustrate that the Coordinator had the power of authority to do as such.
43. The period of time taken from the date of authorization in 2014 and the date of Mr Toata’s first letter of 3^rd March 2016 is about 1½ years. By then a report had been received by the PS of Claimant’s misconduct at least by 14^th March 2016 or even before that and investigations could have ensued.
44. In Mr Toata’s second letter of 27^th March 2018, attempted to explain his capacity and that a Coordinator had the power of authority to approve purchase of a laptop and 2 cameras. On the second paragraph he referred to his conversation with someone from Public Service earlier when he denied having authorized the purchase of the three items.
45. It would appear that the sway of evidence by Mr Toata has rendered the stand which the PS took in considering the report of serious misconduct committed by the Claimant. To self-contradict oneself, in terms of evidence, has weaken the veracity of his evidence despite any retraction later. The question is why retracting? Events in life so often appear vivid in one’s mind and in particular within 1½ years period. He could have pointed out straight away he did authorize without fuss.
46. It ought to be noted that such tribunal do not bound and abide by the rules of evidence as courts do.
47. Appropriately I must now draw conclusion that the monies expended on 1 laptop and 2 cameras was not separately budgeted for. In Government services, in particular grant of imprest, the expenditures must be equated within the main items budgeted for in the imprest. If nothing is budgeted for in the imprest, then money should not be expended out of the content of the imprest, even in a destitute stage.
48. With those narratives I find there is no evidence in support of the claimants claims to review both of the decisions of the PS of Public Service and decision by the Public Service Commission terminating the employment of the Claimant. Their decisions were rightly made basing upon the evidence available before them, even in the absence of calling a witness, which is not a mandatory call. I must therefore dismiss the claim with cost.

Order:

1. The Claim for judicial review is hereby dismissed.
2. The termination of the Claimant from his employment with Public Service is in order.
3. That Claimant pay cost of this hearing to the Defendants.

The Court.