NBV Former Board Members' Trip to Fiji on 17th - 24th October 1995 [1997] VUOM 4; 1997.11 (10 September 1997)

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

This report contains the findings of fact, opinions, views and of unlawful conduct and the recommendations of the Ombudsman pursuant to the Constitution and the Republic of Vanuatu Ombudsman Act No. 14 of 1995.

Part 3 -. Board of Directors, Powers of the Board, Meetings and Procedures
Remuneration and allowance of members of the Board
Part 4- General Manger, Officers and servants of the Bank

USA trip – Mr Toara loses his luggage and money and is compensated by NBV through Mr. Hymak

FINDING NO. 1: BREACH OF NBV BOARD DUTIES AND RESPONSIBILITIES BY BOARD MEMBERS MESSRS TOARA, BONGNAIM, ARUSIRO, ESAU AND MALIU

FINDING NO. 2 BREACH OF LEADERSHIP CODE BY THE BOARD MEMBERS MESSRS TOARA, BONGNAIM, ARUSIRO, ESAU AND MALIU

FINDING NO. 3 BREACH OF DUTIES AND RESPONSIBILITIES OF FORMER GM – MR HYMAK

RECOMMENDATION NO. 1: NVB to recover monies used by former Board for personal reasons.

RECOMMENDATION NO. 2: Messrs Toara, Bongnaim, Maliu, Arusiro, Esau and Hymak should never be appointed again to any Government or Statutory institutions

RECOMMENDATION NO.3: Removal of these men from any present governmental or statutory bodies

RECOMMENDATION NO. 4: Appointments to the NBV must fulfil all requirements under NBV Act

“Unto them, that are defiled and unbelieving is nothing pure; but even their mind and conscience is defiled. They profess that they know God; but in works they deny Him...” TITUS 1 V 15 & 16.

This investigation of the activities of the National Bank of Vanuatu revealed yet another series of dishonest and disreputable decisions taken in order to allow employed officials of the Bank to undertake an expensive and futile holiday in Fiji, disguised as an official trip.

The impoverished condition of the NBV was known to those involved. They were also informed clearly of the emergency financial situation of the Bank of Fiji and that a delegation from Vanuatu would not be welcome.

Despite that and in the face of warnings and disapproval, the visit was forced ahead, and resulted in a shameful orgy of self indulgence, culminating in demands for increased spending allowances and more money for their unscrupulous extravagances. To make matters worse,

Mr Anatole Hymak, the former manager of NBV attempted to excuse his behaviour by the astonishing claim that he was “not in a position to answer whether the money spent was in fact public money or not”.

It is impossible to avoid the conclusion that their actions reflect great discredit on the Bank and the country of Vanuatu and contributed to the present situation - no valuable business whatever was transacted on the trip.

1.1 The Office of the Ombudsman is releasing a Public report on the “Former National Bank of Vanuatu (NBV) Board trip to Fiji”.

1.2 The report examines the conduct of the former NBV Board members’ trip to Fiji in October 1995 to visit the National Bank of Fiji (“NBF”) that was at this time already in a state of economic collapse. The Ombudsman’s central conclusion was that the trip was a waste of public money by the former Board members Messrs Samson Toara, Irene Bongnaim, Alfred Maliu, Willie Arusiro and Jimmy Esau and Manager Anatole Hymak. The total cost of the trip was about VT1.4 million.

(a) Mr Anatole Hymak knew about the NBF collapse before the Board went to Fiji but he did not inform the Board about it. NBF collapsed amidst a financial scandal 4 months before the Board went to Fiji;

(c) On the first day in Fiji the Board convened an extra-ordinary meeting and decided to increase their allowance from VT5, 000/day to VT12, 000/day without any consultation with the then and current Minister of Finance Mr Willie Jimmy;

(d) By their own admission all the Board members did during the trip was drink plenty of alcohol, go sightseeing and have a beach party.

1.3 The Ombudsman stated in her report that the men concerned breached the NBV Act by ignoring their duty to ensure the efficient running and interest of the 100% Government owned bank. The Ombudsman stated that they did not have due regard to the stability and balanced development of the economy of Vanuatu. Instead in the Ombudsman’s statement they spent VT1.4 million on themselves for their own personal enjoyment.

1. NBV recover monies used by the former Board members for personal reasons during the Fiji trip from them.

2. Messrs Toara, Bongnaim, Arusiro, Maliu, Esau and Hymak should never again be appointed to any Governmental of Statutory institutions.

3. The Public Service Commission or in the case of political appointments, the Minister concerned, to consider removing them immediately from any present positions within the government or statutory bodies as they can not be trusted to hold positions of public responsibilities.

4. Any further appointments to the NBV must fulfil all requirements under NBV Act as to qualifications and experience.

2.1 Pursuant to art 62 of the Constitution and s14 of the Ombudsman Act (“Act”) I have jurisdiction to enquire into the conduct of certain public bodies or persons on receiving a complaint or on my own initiative. The NBV falls within my jurisdiction pursuant to s14 (1) (a) (iii) (A) of the Act.

2.2 The scope of this preliminary report is to find out whether the conduct of the Board in taking the trip is warranted by law and why the Board decided to go to Fiji when the NBF was in big trouble. This report is also to find out whether the GM performed his duties as specified by the NBV Act regarding this trip.

3.1 On or about 28 July 1997 I issued and circulated a confidential and secret preliminary version of this public report. The report was sent to:

3.2 Those persons (underlined) exercised their constitutional right to reply to the preliminary report. The other people did not and must be assumed to agree with the report where it concerns them. Copies of the replies are annexed to this report. They are discussed further in Section 6.

(1) Any person defined as a leader in Article 67 has a duty to conduct himself in such a way, both in public and private life, so as not to-

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

(d) endanger or diminish respect for and confidence in the integrity of Government of the Republic of Vanuatu.

(2) In particular, a leader shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by sub article (1).

S14 (a) (v) states that the Ombudsman for the purposes of art 62(1) of the Constitution the Ombudsman may also enquire into a complaint lodged by a person or body or on his own initiative any conduct on the part of any body or service set up by statute, that the President, acting on, and in accordance with, the advice of the Council of Ministers, declares by notice in the gazette to be a service or body for the purpose of this section.

(1) There shall be a Board of Directors of the Bank which, subject to the provision of this Act, shall have power to do all such things as are in their opinion necessary for or conducive to the proper discharge of the functions of the Bank as described in Section 3(Functions of the Bank).

(2) It shall be the duty of the Board to ensure that the policy of the Bank is directed towards the national interest and has due regard to the stability and balanced development of the economy of Vanuatu.

(1) Subject to subsection (2), the members of the Board may be paid such remuneration or allowances in such manner and at such rates out of the funds of the Bank as may be determined from time to time by the Board in consultation with the Minister.

(2) Notwithstanding the provisions of subsection (1), in the case where a meeting of the Board or a Committee thereof is held at any place other than Port Vila, the Bank shall be responsible for the reasonable costs and expenses incurred by the Board member appointed under subsection 3(a) of section 4, or a temporary member acting for such member, or a nominee of the member, as the case may be, who attends such meeting.

4.6 Reasonable costs and expenses are things like bus or taxi fare or fuel costs to travel to Board meetings, lunch money if the Board had a meeting that went well over lunch time and any travel costs if a Board meeting was to be held at another place other than Port Vila.

4.7 S 21(3) states that the GM shall be the Chief Executive Officer of the Bank and shall be responsible to the Bank for the execution of its policy and the management of the Bank.

4.8 S 21(7) provides that the GM shall have the right to attend and address the meetings of the Board but shall not have the right to vote; any observations made by him at a meeting of the Board shall be recorded in the minutes of the meeting.

5.1 Anatole Hymak was appointed as General Manager of NBV by the Minister for Finance Honourable Willie Jimmy effective as of 1 October 1994. The Board members were appointed too by Honourable Willie Jimmy on the following dates:

5.2 On 25-26 September 1995 the members of the NBV Board met and decided to go to Fiji for the purpose of visiting the NBF, a correspondent bank. According to the minutes of the Board meeting the purpose of the visit was not specifically mentioned but one would expect the visit to help the directors to increase their knowledge of banking practises. A limit of VT 1 million was proposed for this trip. The management of NBV was responsible for this trip. Persons in attendance at this meeting were as follows:

Members:	Mr Toara Samson “Mr Toara” - Chairman
	Mr Bongnaim Irene “Mr Bongnaim” - Deputy Chairman
	Mr Arusiro Willie “Mr Arusiro
	Mr Esau Jimmy “Mr Esau”
	Mr Maliu Alfred “Mr Maliu”
General Manager:	Mr Hymak
Adviser:	Mr Ellinopoullos

5.3 No-one at NBV contacted NBF to make arrangements for the trip. Had they done this they may have learnt that NBF had just lost $US 190 million and that its former chief manager was appearing before the court in Fiji charged with abuse of power. In an interview with Mr Hymak, he stated that he did not contact anyone from NBF because the arrangements were left to the Manager of Operations to deal with. Mr Hymak then went on to say at the Ombudsman’s Office:

Although I knew about it I didn’t inform the Board of the NBF trouble. I forgot about it. Even my adviser Mr Ellinopoullos forgot about it but after the meeting Mr Ellinopoullos said “ Anatole I think it’s the wrong time to go Fiji.” I didn’t take my adviser’s advice carefully and just followed the Board’s decision. But I don’t see how I can reverse the Board’s decision.

Furthermore the crisis at the collapse of the National Bank of Fiji was public knowledge as it became international news.

USA trip - Mr Toara loses his luggage and money and is compensated by NBV through Mr Hymak.

5.4 Messrs Hymak and Toara left Port Vila on 06/10/95 with the then Minister of Finance Mr Willie Jimmy (“Mr Jimmy”) to attend the Annual IMF and World Bank meeting in Washington (USA).

5.5 While Messrs Hymak and Toara were in USA, Mr Toara apparently lost all his luggage. When they arrived in Fiji Mr Toara lost his money so Mr Hymak gave him US$ 200 out of the NBV trip imprest funds.

5.6 When Mr Toara was asked about travel insurance he stated that he took insurance from Surata Tamaso. He said he spoke with Messrs Hymak and Ellinopoullos about the insurance claim forms but has not heard anything about this. Surata Tamaso said that they requested Mr Toara to produce lost baggage signed documentation on his arrival in Vila. But this was not done. Therefore they could not proceed further without evidence of the lost baggage.

5.7 On 16/10/95 Messrs Hymak and Toara arrived in Suva and checked into the Southern Cross Hotel.

5.8 The rest of the group consisting of Messrs Bongnaim, Arusiro, Esau and Maliu arrived in Nadi on 18/10/95. They stayed at Raffles Gateway Hotel. On the next day 19/10/95 they travelled by plane to Suva and booked into Berjaya Hotel.

5.9 On that same day the Board had an extraordinary meeting (see annexure “C”) in which they discussed two matters namely:

(b) Increase of Directors’ allowance from VT 5,000/day to VT 12,000/day which was passed.

The public will assess the necessity of holding such a meeting in Fiji instead of Vila.

5.10 On that same day Mr Lenox Vuti, Deputy GM transferred from NBV to Fiji a sum of VT 294,000 to account for the increase in the allowances. During interviews with some of the Board members they said VT 5,000 a day was not enough as the goods and services in Fiji were expensive. In Mr Esau’s statement he said that it was during this meeting that Mr Hymak said they should not have any contact with NBF because of their financial problems. It was apparently then that the Board members became aware of the NBF problem.

5.11 On the evening of 19/10/95 the GM hosted a dinner for the Board members. The GM did not provide any invoices for this dinner. Attached as annexure “D” is the GM’s list of expenses for the Fiji trip. Most of the expenses do not have receipts(refer to annexure marked “E”).

5.12 The following day the NBV group went sightseeing and had a beach party. They also hired two taxis to take them to see the University of the South Pacific campus and the President’s residence. See annexure “D” for the cost for sightseeing and beach party which was termed as “food and drinks”. All the Board members said in their statements that they did nothing while they were in Suva apart from the sightseeing. According to Mr Toara “the trip was a privilege for the Board members and it was a tour”.

5.13 On 24 October 1995 the NBV group returned to Nadi by bus instead of travelling by plane. When asked why they travelled by bus as they all had return tickets via Nadi to Port Vila they all said it was not safe to travel by plane.

5.14 Mr Hymak told the Ombudsman’s Office that the Board also decided at the extraordinary meeting that the NBV should pay all their expenses i.e., alcohol, food, and telephone calls (i.e. not to be paid out of their daily allowance of VT 12,000/day which is the normal government procedure) but Mr Hymak said no. However at the end of the trip NBV paid for everything. Refer to annexure marked “F”. The Board decided in the increase of their allowance without the knowledge of the Minister of Finance Mr Jimmy.

5.15 Mr Arusiro in his evidence stated that they did not have enough money to pay their personal expenses at the end of the trip so NBV paid for their bills. For example, NBV had to pay F$ 379.85 equivalent to approximately VT 28 773 for alcohol and telephone calls at F$116.34 equivalent to VT 8 812 for Messrs Maliu, Arusiro, Bongnaim and Esau. The Board members personal expenses are not included by the GM in his list of expenses for the Fiji trip marked annexure “D”. Mr Arusiro went on to say that they were to repay these amounts through their loan accounts. NBV has advised the Ombudsman as follows:

“Our records do not indicate that such arrangement was made. The Bank met all the expenses without any subsequent reimbursement from the loan accounts.”

5.16 Mr Hymak said in his statement that NBV spent a total cost of VT 1.5 million for the Board’s trip to Fiji. He did not prepare the reconciliation account until 6 months after the trip when he was asked by the Manager of the Lending Section. No report on this trip was prepared.

5.17 It is quite amazing that the Board directors of NBV did not know about the scandal going on in a similar government Bank in a Melanesian country as it was a media knowledge.

5.18 The Ombudsman received information from NBV showing the breakdown of the Board’s expenses for the trip. The figures that show on the Board of Directors General Ledger records are listed in the General Manager’s letter marked “H”.

6.1 Mr Toara ‘s reply was very short. He did not dispute the Ombudsman’s findings. Mr Toara made a correction to the Ombudsman’s preliminary report regarding the loss of his luggage. He stated that he only lost his suitcase and not his money.

Mr Toara was given $US 200 by Mr Hymak to buy new clothes. According to Mr Hymak’s statement Mr Toara lost his luggage in L.A- USA and all of his money in Fiji.

6.2 With regards to the Board members’ hotel bills Mr Toara said he did not have any bills to pay in the hotel where he stayed in during the trip. This statement can only be verified by NBV.

6.3 Mr Hymak was not in a position to answer whether the money was public money or not. It is inappropriate for a former General Manager to make such a statement. NBV is a statutory body set up by the Government of the Republic of Vanuatu to serve as a commercial bank for the people of this nation. The Board of Directors and the General Manager are appointed to ensure that NBV operated to serve national interest and for stability and balanced development of the economy of Vanuatu.

6.4 Mr Hymak argued that there was budget for overseas trips and the Board trip was within the 1995 budget of 2 million vatu. The Board trip to Fiji gained nothing for NBV. That money could have been used for overseas training for NBV staff. The Board members went on a tour in Fiji. They did nothing and brought back nothing to Vanuatu to help the running of NBV.

6.5 The GM is an ex-officio member of NBV Board and has the right to advise the Board in any matters regarding the bank and yet he did not advise the Board that NBF was having financial difficulties. Instead Mr Hymak said he was busy preparing for his trip to USA and the Manager Operations had the responsibility for arranging the trip and she did not carry out instructions. The Board had already taken the decision to go to Fiji so the Manager Operations has no power to change that. If Mr Hymak had advised the Board about the NBF situation they would not have gone to Fiji.

6.6 Mr Hymak stated in his reply that section 7.3 of the Ombudsman’s preliminary report was “excessive and totally disproportionate”. The GM’s duties and responsibilities are clearly set out in s.21 of the NBV Act. He is responsible to the Board for the execution of its policy and the management of the bank. The GM has heavy responsibilities to ensure that NBV operates well. Mr Hymak was present at the extra-ordinary meeting in Suva but said nothing about the increased allowance. According to the minutes of that meeting there was no mention about NBV paying the Board members’ personal expenses.

6.7 Regarding the breach of the Leadership Code Mr Hymak argues that General Managers of Statutory Bodies are not leaders under art.66 of the Constitution. According to s.24(2)(h) of the Act General Managers of corporations in which the government has an equity holding is a leader this is in addition to those mentioned under art.66 of the Constitution. Mr Hymak must have missed this. Marked annexure “I” is Mr Hymak’s reply to the Ombudsman’s preliminary report.

FINDING NO.1 BREACH OF NBV BOARD DUTIES AND RESPONSIBILITIES BY BOARD MEMBERS MESSRS TOARA, BONGNAIM, ARUSIRO, ESAU AND MALIU

7.1 The former Board members breached their duties as specified in the NBV Act by:

(a) Not considering that proper arrangements and consultation were made for the trip;

(c) Giving themselves additional and blatantly unreasonable allowances during their extra-ordinary meeting in Fiji without any consultation with the Minister of Finance as stated in s13(1) of the NBV Act.

(d) Forcing the Bank to pay their personal expenses as they could not do so at the end of the trip because they had run out of money even though they were given additional allowances. To date they have not repaid the Bank’s money.

(e) Travelling by bus from Suva to Nadi on their return to Port Vila caused the Bank additional expenses when the Board members already had return tickets by plane.

FINDING NO.2 BREACH OF LEADERSHIP CODE BY THE BOARD MEMBERS MESSRS TOARA, BONGNAIM, ARUSIRO, ESAU AND MALIU

7.2 The former Board members failed to ensure that the functions of the Bank were properly discharged and that the policy of the Bank was directed towards the national interest and had due regard to the stability and balance development of the economy of Vanuatu. The men basically flushed public money down the drain purely for their own selfish enjoyment drinking, eating and touring around. Their actions are in breach of the Leadership Code (art 66 of the Constitution), as they placed “themselves” in a position in which “they have a conflict of interests in which the fair exercise of their public or official duties have been compromised” 66.1(c).

They furthermore allowed their “integrity to be called into question”. . . 66 1(c).

FINDING NO.3 BREACH OF DUTIES AND RESPONSIBILITIES OF FORMER GM- MR HYMAK

(b) Not informing the Board of NBF’s financial difficulties when he was fully aware of them;

(c) Allowing the trip to go ahead and even travelling with the group knowing fully well that NBF had financial difficulties;

(d) Allowing the Board members to give themselves additional and blatantly unreasonable allowances without any consultation with the Minister and getting additional allowances himself;

(e) Paying the Board members’ personal expenses when these expenses should have been paid from the members’ allowances;

(f) Making no attempt to recover these monies which is contrary to s.32 of the NBV Act;

(g) Giving Mr Toara the Bank’s money after the loss of his luggage and not recovering this money;

(h) Allowing the Board to travel by bus instead of by plane on their return to Port Vila from Suva to Nadi causing the Bank to pay additional expenses. The NBV group all had return air tickets.

(i) Not preparing a reconciliation account immediately after the trip.
Mr Hymak did so only when he was asked by the Lending Manager which was 6 months after the trip.

(j) Not preparing and submitting a written report concerning this trip. Obviously this was not done because no banking business was done on the trip. It was Mr Hymak’s responsibility to ensure that a report was prepared whether he was travelling with the group or not.

7.4 In failing to perform his responsibilities and duties by allowing everything stated above to happen Mr Hymak breached the Leadership Code art 66 of the Constitution and s21(3) of the NBV Act.

7.5 Mr Hymak showed himself not to have any sense of responsibility towards the funds of the people’s Bank.

RECOMMEND NO.1: NBV to recover monies used by former Board for personal reasons.

8.1 I strongly recommend that NBV take positive steps to recuperate bank money that was spent on the Board’s personal expenses. NBV should look through all their records and ensure that the Bank money is paid back by these men.

Mr Toara	US$200 equivalent to VT 22 654 (based on the bank rate of 113.27 as of 4/09/97) which was given to him by Mr Hymak when he lost his money in Fiji and any other expenses (if any) that the bank has records of. regarding this trip.
Mr Bongnaim	F$ 474.00 = VT 35,948
Mr Jimmy Esau	F$270.65 = VT 20,526
Mr W. Arusiro	F$255.30 = VT 19,362
Mr A. Maliu	F$237.74 = VT 18,030

These men along with Mr Hymak should repay the plane tickets from Suva to Nadi because they travelled by bus when they already had plane tickets.

RECOMMEND NO.2: Messrs Toara, Bongnaim, Maliu, Arusiro, Esau and Hymak should never be appointed again to any Governmental or Statutory institutions.

8.2 For the reasons that follow I recommend that the Former Board Members and Mr Hymak should never be appointed again to any governmental or statutory institution:

Most companies would grant allowances or benefit to their Directors and Managers after they have shown good results for the Bank, hard work and efficiency.

The Government of Vanuatu in this case is the shareholder and should take the strong view of shareholders having experienced the activities of these people.

2. These men have not acted in the interest of NBV and the nation by spending the country’s money on

RECOMMEND NO.3: Removal of these men from any present governmental or statutory bodies.

8.3 From this inquiry I strongly recommend that the Public Service Commission or in the case of political appointments, the Minister concerned, to consider removing them immediately any present positions within the government or statutory bodies as they can not be trusted to hold positions of public responsibilities.

RECOMMEND NO.4: Appointments to the NBV must fulfil all requirements under NBV Act.

8.4 After this inquiry I recommend that any further appointments to NBV must fulfil all the necessary requirements under the NBV Act as to qualifications and experience.

- I am now proceeding with an investigation on the qualifications of Statutory Board members.

- Applicants should have no criminal records and if they had occupied any positions in any other institutions before there must be proof of efficiency and satisfactory work that benefited that organisation.

- If there was any wrong doing with their previous work then applicants should not be appointed.

According to s23 of the Ombudsman Act I request the Prime Minister, the Council of Ministers and the individual Ministers and the Public Service Commission and the NBV where appropriate to take the necessary steps to implement my recommendations.

Annex A	Appointment of NBV Board members, Messrs Bongnaim, Maliu, Esau, Arusiro and Toara.
Annex B	NBV Board meeting minutes of 25 & 26 September 1995.
Annex C	NBV Board Extraordinary meeting minutes of 19 October 1995.
Annex D	Former General Manager’s memorandum of expenses for the Fiji Trip.
Annex E	Extract of Mr Hymack’s statement to the Ombudsman on 20.11.96.
Annex F	Extract of Mr Hymack’s statement to the Ombudsman on 20.11.96.
Annex G	Board members’ Hotel bills.
Annex H	Former Board Expenses
Annex I	Mr Hymak’s reply to the Ombudsman’s preliminary report.

Vanuatu Ombudsman's Reports

NBV Former Board Members' Trip to Fiji on 17th - 24th October 1995 [1997] VUOM 4; 1997.11 (10 September 1997)