Home | Databases | WorldLII | Search | Feedback Vanuatu Ombudsman's Reports

Arrest of Mr Zachias Bila by Corporal Ron Temakon Tamtam on Pentecost [2002] VUOM 1; 2002.01 (31 January 2002)

REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

ON THE

ARREST OF MR ZACHIAS BILA
BY
CORPORAL RON TEMAKON TAMTAM
ON PENTECOST

31 January 2002

7231/2002/01

---------------------------------

PUBLIC REPORT ON THE ARREST OF MR ZACHIAS BILA

BY CORPORAL RON TEMAKON TAMTAM

ON PENTECOST

TABLE OF CONTENTS

----------------------------------------

SUMMARY

Section 4(2) of the Police Act Cap 105 states that the Police Force in Vanuatu has a statutory duty amongst other things to ensure that there is peace and order in Vanuatu and enforce all laws in Vanuatu. This report presents a compromising situation where a police officer attempts to enforce the law while having a personal interest in the matter. Police Corporal Ron Tamtam was involved in a customary land dispute in South Pentecost which was brought before a village court. Corporal Tamtam had obtained a court order to stop other claimants from interfering with the development of the land in question. Mr. Bila (who is one of the claimants) maintained that no development should take place on the disputed custom land as the matter has not been settled by the custom court.

On 13 March 1997 Corporal Tamtam and two other police officers as part of a police operation went to South Pentecost and convened a meeting at Pangi Village. Corporal Tamtam paid for the air fares personally and not the Police Department. At Pangi Village Corporal Tamtam warned the people that he would deal with them because they had breached the court order. Corporal Tamtam collected Vt18,500 for fines that were given to the Malbangbang Area Council for certain of injustices caused by some of the villagers. On 14 March 1997 Corporal Tamtam went to Mr. Bila and arrested Mr. Bila without informing him of the charges against him. Mr. Bila was taken to Vila by the Police and locked up in Cell No.6. Mr. Bila was later charged with intentional assault on a Tubu May. Mr. Bila’s case was then transferred to Santo Court House and later withdrawn by the Public Prosecutor.

In this report the Ombudsman found the following:

1. Corporal Tamtam abused his position by dealing with an alleged contempt of court order personally and improperly with respect to his involvement in a land dispute with the other custom land claimants
2. Corporal Tamtam unlawfully arrested Mr. Bila without warrant for alleged contempt of court. The Criminal Procedure Code Act Cap 136 allows for arrest without warrant only for cognizable and certain listed offences. Contempt of Court is not one of these.
3. Superintendent Willie Samuel failed to provide in writing an order pursuant to s.13 of the Criminal Procedure Code Act Cap 136 authorizing the arrest for Mr. Bila and the charges laid against him. Superintendent Samuel also failed to release Mr. Bila upon a written undertaking to appear before a court of law. (Mr. Bila was kept in Cell No.6 over 24 hours.) This action was contrary to s.18(1) of the Criminal Procedure Code Act.
4. Corporal Tamtam’s actions in demanding that Clement Bual and Zachias Bila hand over the custom fines to him is unlawful and he may have breached s. 19(z) of the Police Act Cap 105. As such Corporal Tamtam may be subject to disciplinary action.
5. Corporal Tamtam’s abused his position and power as a police officer by forcing Messrs Bila, Bual, Metel and Bebe to do physical press ups in front of the others. This action is a breach of s.19 of the Police Act.
   

The Ombudsman has made these recommendations after the above findings:

1. The Acting Commissioner of Police should consider taking disciplinary action against Corporal Tamtam.
2. The Acting Commissioner of Police should require Corporal Tamtam to refund the Vt18,500 taken from the Malbangbang Area Council of Chiefs and Mr. Melsul (if he has not already done so)
3. The Acting Commissioner of Police, pursuant to s.6 of the Police Act [Cap 105] should issue a Circular to all members of the Vanuatu Police Force reminding them of their obligations and responsibilities under the Police Act. All Police Officers should be reminded that these kinds of actions as illustrated by this report are outside the law and should not be tolerated and will only discredit the Police Force and undermine its authority.
   

1. JURISDICTION

1.1 The Constitution and the Ombudsman Act allow me to look into the conduct of government, related bodies, and Leaders. This includes the actions of the Police. I can also look into defects in laws or administrative practices, including maladministration and unjust conduct of the Police.

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The purpose of this report is to present my findings as required by the Constitution and the Ombudsman Act.

2.2 The scope of this investigation is to establish the facts about the alleged unlawful arrest and detention of Mr. Zachias Bila, the alleged misappropriation of customary court fines by Corporal Temakon Tamtam and to determine whether or not Corporal Temakon Tamtam’s conduct was proper.

2.3 This Office collects information and documents by informal request, summons, letters, interviews and research.

3. RELEVANT LAWS, REGULATIONS AND RULES

3.1 The Constitutional and statutory provisions relevant to this report are mentioned in Appendix H to this report.

3.2 The Criminal Procedure Code Act [CAP 136] provides for the procedures with respect to arrest by a police officer and detention of person arrested without a warrant.

3.3 The Courts Act [CAP 122] provides that contempt of Magistrate's Court is punishable by imprisonment or by payment of a fine.

3.4 The Police Act [CAP 105] Subsidiary Legislation provides penalties for officers who have committed offences against discipline.

4. OUTLINE OF EVENTS

4.1 On 4 December 1996 the Assistant Lands Officer (Northern District), Mr. Joseph Neveservet addressed a letter to Corporal Ron Temakon Tamtam regarding the Lonwatbat land dispute on South Pentecost, when he learned that Corporal Tamtam was attempting to develop the land. Mr. Neveservet further stated that the land dispute between Chief Harry Metel and Corporal Tamtam was the subject of a village court sitting at the beginning of the year (1996). Mr. Neveservet emphasized to Corporal Tamtam that he had no right to develop the land, which is in dispute, prior to a judicial determination on the matter (Appendix A).

4.2 On 13 December 1996, upon application for a restraining order by Corporal Tamtam, the Magistrate ordered in Civil Case No. 252 of 1996 that Messrs. Clement Bual,
Harry Metel, Peter Metel and Zachias Bila should not be interfering with the ongoing development on the land (Appendix B 'Interlocutory Order'). However, Mr. Bila maintained that because of the unsettled question of land ownership, no development was to take place on the land and advised the builders to stop their activity.

4.3 On 13 March 1997 Corporal Tamtam and two other police officers (PC Willie Apia and PC Kenneth Siro) from Port Vila arrived at Pangi, South Pentecost, and convened an urgent meeting. While the villagers assembled, Corporal Tamtam said 'Forom we yufala i bin brekem FIRST ORDERS ia, bae mi mas dil wetem yufala' (Because you have breached the Interlocutory Order, I will now deal with you). Corporal Tamtam also requested Messrs. Zachias Bila, Clement Bual, Harry Metel, Peter Bebe and Keith Bebe to stand in a line and do press ups (physical exercise).

During the police operation, Corporal Tamtam collected eleven thousand five hundred vatu (11,500 VT in cash) from Mr. Bila, and seven thousand vatu (7,000 VT by cheque) from Mr. Nelson Melsul. The eleven thousand five hundred vatu (11,500 VT) was a fine that was to be paid to the Malbangbang Area Council of Chiefs for alleged chasing and threatening of certain fishermen. The NBV cheque No. 215842 of seven thousand vatu (7,000 VT) was paid by Mr. Nelson Melsul to prevent Mr. Clement Bual from being taken to Port Vila. Out of the seven thousand vatu (7,000 VT), five thousand (5,000 VT) was a fine to be paid to the Malbangbang Area Council of Chiefs for a personal customary court case, and two thousand vatu (2,000 VT) was a fine for retaliatory action by Mr. Melsul on a member of Corporal Tamtam’s family.

4.4 On 14 March 1997 Corporal Tamtam went to Mr. Zachias Bila’s home and arrested him without informing him of the charges against him. Mr Zachias Bila explained the situation in a report dated 21 July 1999, stating 'Hemi no talem long mi se forom wanem hemi arrestem mi, mo forom wanem rong mi mas ko long Vila. Hemi no kivim eni woning long mi. Hemi no explenem eni rong long saed blong law we hemi akinsim mi long hem'. (He did not tell me why he was arresting me and for which offence I had to go to Vila. He did not give me any warning. He did not explain any offence for which he had to arrest me).

On the same day, the policemen, together with Mr. Bila and his daughter had to swim to MV Saraika because of the rough sea. The MV Saraika was bound for Vila at that time.

4.5 Upon arrival in Port Vila in the early morning of 16 March 1997, Mr. Bila was taken to cell No. 6 at the Port Vila Police Headquarters and remained there till he was released on 19 March 1997 in order to seek legal assistance. As for Mr. Bila’s daughter, she had to find her own way to stay with relatives who were residing in the capital.

4.6 On 26 March 1997, Mr. Bila consulted Messrs. Silas Hakwa & Associates. In a letter dated 1 April 1997 they requested that the Commissioner of Police advise them as to when their client would likely to appear in Court, and to provide copies of all statements, informations or charges, which the Prosecution proposed to present as evidence in Court against Mr. Bila (Appendix C).

4.7 On 17 April 1997, the Acting Commissioner of Police (Peter Bong) advised Silas Hakwa & Associates that Mr. Bila’s case had been completed and was being processed for trial. In a letter dated 5 May 1997 to the Office of Public Prosecutor, Mr. Hakwa raised his concerns about the said case stating that 'By letter dated 01 April 1997, we requested information as our client does not normally reside in Port Vila. It appears that the charge was laid on or about 15 April 1997, and yet it was not until on or about 30 April 1997, that we are informed'.

4.8 On 30 April 1997, Silas Hakwa received a Summons and charge of intentional assault (on Tubu May) against Mr. Bila. On 9 May 1997, Mr. Bila appeared before the Magistrate’s Court in Vila and pleaded not guilty. After deliberation, the Magistrate adjourned the case and ordered that the trial be conducted in Luganville, Santo, as the land case was also to be dealt with in the Santo/Malo Island Court.

4.9 On 12 May 1997, Silas Hakwa wrote a letter to the Public Solicitor raising some concerns about the content of a letter written by Corporal Tamtam which misconstrued the meaning, effect and nature of the Orders which the Court made in the Civil Case No.252 of 1996 on 22 April 1997. In paragraph 2 of his letter, Mr. Tamtam says that 'Bai mifala i arrestem yu ino long taem too from yu ronway long case blong yu we bae i go long Supreme Court'. (Not long we are going to arrest you for running away from your case that is before the Supreme Court). Silas Hakwa wanted, amongst other things, the Office of the Public Solicitor to explain the reason why Corporal Tamtam wanted to have Mr. Bila arrested.

At the same time Mr. Bila's relatives received similar letters written by Corporal Tamtam (Appendices D, D1, D2, D3).

4.10 On 11 June 1997, the Public Solicitor, Mr. Stephen T Joel, responded to the above letter dated 12 May 1997 by saying 'We are also quite concerned that our client decided to write to your client directly without first consulting us on whether or not it is proper so to do' (Appendix E).

4.11 While waiting at Court for the hearing of civil Case No.252 of 1997, Mr. Zachias Bila was served with a Summons dated 01 July 1998 and was asked to appear before the Magistrate’s Court on 31 July 1998. This Summons had annexed thereto what appears to be an 'information' or 'charge' sheet (Appendix F).

4.12 In a faxed letter dated 17 July 1998, Silas Hakwa requested that Mr. Tamtam’s lawyer, the Public Solicitor explain the reason for the summons and the charge being laid. However, in his response, the Public Solicitor said that 'As to the substance of the criminal allegations involved our client is only able to guess... We suggest you contact the Public Prosecutor’s Office to be better briefed on this matter'.

4.13 On 31 July 1998, Mr. Bila went to the Court House and was notified by the Police Prosecutor that the charge against him was withdrawn.

5. RESPONSES BY THOSE WITH FINDINGS AGAINST THEM

5.1 Before starting this enquiry, the Ombudsman notified all people or bodies complained of and gave them the right to reply. Also, a working paper was provided prior to this public report to give another opportunity to respond. No responses were received from any persons in respect of whom complaints were made. The Public Solicitor (against whom no complaint was made) replied and his letter is included in this report (Appendix G).

6. FINDINGS

6.1 Finding 1: Corporal Tamtam abused his position by dealing with an alleged contempt of a court order personally and improperly with respect to his involvement in a land dispute with
Messrs. Clement Bual, Harry Metel, Peter Metel and
Zachias Bila.

The Commissioner of Police responded to our queries about a police policy regarding the prohibition of officers from acting in relation to matters in which they have any personal or financial interest. The Commissioner of Police said in a letter dated 9 March 1999 that 'there are certain procedures in regards to Police investigations. In order to determine whether the issue or case in question is of personal interest to the officer depends largely on how one made his/her personal assessment of a complaint depending on the nature and circumstances surrounding the incident at that time. In this case the investigation was done by three (3) Police officers and not as your office seemed to have suggest'.

According to Commissioner Bong’s response, the fact that Corporal Tamtam went to Pentecost with two other officers does not negate his personal interest in the issue. Corporal Tamtam went to Pentecost with both PC Willie Apia and PC Kenneth Siro, not only at his own expense but on police duty, to arrest Mr. Bila for contempt of a court order reLating to the use of the disputed land. In his letter dated 23 April 1997 to Captain Arthur Caulton Edmanley, Corporal Tamtam confirmed in his own words 'Mi pem rod blong mifala by Vanair and mifala i go (airfare hemi Vt 8,300 each)' that he paid for their airfares.

Corporal Tamtam’s actions may well have originated from his personal interest in developing the property, but resulted in a clear conflict with his public responsibility to carry out his police duties fairly and impartially. Corporal Tamtam should not have dealt with this himself, and his senior officer should not have allowed him to go on the trip. The fact that he used his own funds supports the view that this was a personal vendetta rather than a police operation.

6.2 Finding 2: Corporal Tamtam unlawfully arrested Mr. Bila without warrant for alleged contempt of court.

Mr. Bila was unlawfully detained in Cell No.6 after his arrest on 14 March 1997 by Corporal Tamtam. Mr. Bila remained in Cell No.6 until 19 March 1997. Corporal Tamtam stated that the police can arrest people for a contempt of court order without a warrant. This is legally incorrect as the Criminal Procedure Code allows for arrest without warrant only for cognizable and certain listed offences. Contempt of court is not one of these.

6.3 Finding 3: Superintendent Willie Samuel, the Officer Commanding Police District (Northern) breached both sections 13 and 18(1) of the Criminal Procedure Code [CAP 136]

Section 13 of the Criminal Procedure Code states that whenever 'any officer in charge of a police station [in this case OCPD (N) Superintendent Willie Samuel] requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant [as for the charge of intentional assault on May Tubu (Appendix E)], he shall give the officer required to make the arrest an order in writing specifying the person to be arrested and the offence or other cause for which the arrest is to be made'.

Mr. Zachias Bila explained in a report dated 21 July 1999 that Corporal Tamtam did not tell him the reason for his arrest. Corporal Tamtam did not give him any warning and did not explain to him the offence for which he (Bila) was arrested. Superintendent Samuel failed to provide an order for the arrest.

Section 18 (1) clearly stipulates that whenever 'any person has been taken into custody without a warrant for an offence other than intentional homicide or any offence against the external security of the Republic the officer in charge of the police station to which such person shall be brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate court within 24 hours after he has been so taken into custody, inquire into the case. Unless the offence appears to the officer to be of a serious nature, the officer shall release the person on his signing a written undertaking to appear before a court at a time and place shall be brought before a court as soon as practicable'. Superintendent Samuel failed to release Mr. Bila within 24 hours on a written undertaking that he would appear in court when summoned by the court.

6.4 Finding 4: Corporal Tamtam’s actions in demanding that Clement Bual and Zachias Bila pay him may be in breach of section 19(z) of the Police Act [CAP 105].

Corporal Tamtam misappropriated a total of 18,500VT in customary court fines which he requested Messrs. Bual and Bila to pay to him, something he had no lawful authority to do. This action only served to discredit the Police force and because of this, he may be in breach of section 19(z) of the Police Act [CAP 105] Subsidiary Legislation and subject to disciplinary action.

6.5 Finding 5: Corporal Tamtam mistreated Messrs. Zachias Bila, Clement Bual, Harry Metel, Peter Bebe and Keith Bebe and may be in breach of section 19(k) of the Police Act [CAP 105] Subsidiary Legislation.

Corporal Tamtam abused his position and power as a police officer by forcing the five above mentioned people to do physical press ups in front of others. He has no authority to give such an order and he may be subject to disciplinary action under section 19 of the Police Act (Subsidiary Legislation).

7. RECOMMENDATIONS

7.1 Recommendation 1: The Acting Commissioner of Police should consider taking disciplinary action against Corporal Tamtam.

A police officer should be seen as carrying out his duties under the law. He committed offences against discipline by forcing the five people to do physical press ups in front of the community. Corporal Tamtam collected fines which he was not lawfully authorised to do and he misappropriated the money he collected. The actions have brought discredit on the Police Force of Vanuatu and the Acting Commissioner of Police should consider disciplinary action accordingly.

7.2 Recommendation 2: The Acting Commissioner of Police should require Corporal Tamtam to refund eighteen thousand five hundred (18,500 Vt) vatu to both Mr Nelson Melsul (7,000 Vt) and the Malbangbang Council of Chiefs (11,500 Vt) respectively (if he has not already done so).

7.3 Recommendation 3: The Acting Commissioner of Police, pursuant to section 6 of the Police Act [CAP 105], should issue a Circular to all members of the Police Force reminding them of their obligations and responsibilities under the Police Act. He should reinforce the position that these kinds of actions by police officers are outside the law and will not be tolerated and will only discredit the police force and undermine its authority.

7.4 Recommendation 4: Police to develop an Ethical Standard and Performance Procedure Code.

Dated the 31st day of January 2002.

HANNINGTON G ALATOA

OMBUDSMAN OF THE REPUBLIC OF VANUATU

---------------------------------

8. INDEX OF APPENDICES

1. Copy of a letter dated 04.12.96
   
2. Copy of Court Judgement of 13.12.96 (Interlocutory Order)
   

100. Copy of a letter dated 01.04.97
     

D, D1, D2, D3 Copies of letters to the relatives of Mr Bila by Corporal Tamtam

5. Response from Public Solicitor to Mr Silas Hakwa's letters of 12.05.97; 19.05.97; and 09.06.97
   
6. Copy of Mr Bila's Summons to appear before the Magistrate's Court
   
7. Letter from Public Solicitor dated 3 July 2001
   
8. Relevant laws and regulations
   

APPENDIX H

RELEVANT LAWS, REGULATIONS AND RULES

3.2 CRIMINAL PROCEDURE CODE [CAP 136]

Sections 13 & 18(1) of the Criminal Procedure Code say:

ARREST BY POLICE OFFICER WITHOUT WARRANT

13. 'When any officer in charge of a police station requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall give the officer required to make the arrest an order in writing specifying the person to be arrested and the offence or other cause for which the arrest is to be made'.
    

DETENTION OF PERSON ARRESTED WITHOUT WARRANT

18(1) 'Subject to subsection (2) when any person has been taken into custody without a warrant for an offence other than intentional homicide or any offence against the external security of the Republic, the officer in charge of the police station to which such person shall be brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate court within 24 hours after he has been so taken into custody, inquire into the case. Unless the offence appears to the officer to be of a serious nature the officer shall release the person on his signing a written undertaking to appear before a court at a time and place to be named in the undertaking; but where any person is kept in custody he shall be brought before a court as soon as practicable'.

3.3 COURTS ACT [CAP 122]

Section 3 of the Courts Act says:

CONTEMPT OF MAGISTRATES' COURTS

3. 'Every Magistrate’s Court shall have power to punish summarily for contempt of court by imprisonment for a term not exceeding 6 months or a fine not exceeding VT 15,000'.
   

3.4 POLICE ACT [CAP 105] SUBSIDIARY LEGISLATION

Section 19 of the Police Act says:

OFFENCES AGAINST DISCIPLINE

19. Any member of the Force who –
    
    • (a) is disrespectful in word, act or demeanour to a superior officer;
      
    • (b) wilfully disobeys any lawful order;
      
    • (c) is guilty of drunkenness;
      
    • (d) renders himself unfit for duty through intoxication;
      
    • (e) drinks or solicits intoxicating liquor whilst on duty;
      
    • (f) enters or is in any place licensed for the sale of intoxicating liquor whilst on duty except in the execution of that duty;
      
    • (g) without cause fails to appear or appears late for duty;
      
    • (h) is guilty of cowardice;
      
    • (i) is found sleeping at his post without leave or lawful excuse before he is regularly relieved except in pursuit of an offender whom it is his duty to apprehend;
      
    • (j) negligently allows the escape of any prisoner who is committed to his charge or whom it is his duty to guard;
      
    • (k) threatens, assaults, maltreats or neglects any person in his charge or in the custody of the Force;
      
    • (l) Discharges any firearm without just cause or contrary to orders;
      
    • (m) Sells, loses by neglect, makes away with, willfully damages or fails to report any damage to arms, ammunition, equipment, uniform or other appointments supplied to him or any government property committed to his charge;
      
    • (n) Is slovenly, inattentive, uncivil or quarrelsome;
      
    • (o) Fails to keep his quarters or any other place under his control reasonably clean and tidy;
      
    • (p) Parades for duty dirty or untidy in his person, arms, clothing or equipment;
      
    • (q) Without due authority discloses or conveys any information concerning any investigation or any other matter with which he is concerned in the course of his duties;
      
    • (r) Malingers or feigns or wilfully produces disease or infirmity;
      
    • (s) Incurs any debt which may embarrass him in his duties;
      
    • (t) Breaks out of a police quarter, station or place in which he has been lawfully confined;
      
    • (u) Makes any report which he knows to be false or inaccurate in some material particular or fails to disclose to his superior facts which it is his duty so to disclose;
      
    • (v) Is found in unauthorised possession of any police or other public property;
      
    • (w) Uses improperly any police or other public property;
      
    • (x) Ill-treats, bullies, or insults or inflicts any unauthorised punishment on a subordinate in rank;
      
    • (y) Is guilty of any act, conduct, disorder or neglect which is declared by the Act or by rules made thereunder to be an offence against discipline;
      
    • (z) Does any act or makes any omission likely to bring discredit upon the Force or is guilty of any act, conduct, disorder or neglect to the prejudice of good order and discipline not elsewhere specified in these rules;
      

shall have committed an offence against discipline.

-------------------------------------