Lupari v Somare [2008] PGNC 121; N3476 (22 September 2008)

N3476

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 241 OF 2008 (JR)

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW UNDER
ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN:

ISAAC LUPARI
Plaintiff/Applicant

AND:

SIR MICHAEL SOMARE, MP – PRIME MINISTER &
CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
First Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Injia, DCJ
2008: 11th July & 14th August,
22 September (edited and published, 23 September)

JUDICIAL REVIEW – NEC’s dismissal of Departmental Head employed under statutory contract of employment – Chief Secretary of government – Failure by NEC to follow mandatory procedure for revocation of appointment – Procedure prescribed by s193 1C of the Constitution and s 31 C of Public Services (Management) Act 1995 – Grant of relief – Certiorari and reinstatement – Exercise of discretion – Relevant principles – Certiorari granted, reinstatement refused - Appropriate relief – Damages not sought in application – Open to applicant to apply for leave to amend the judicial review proceedings to claim and litigate damages or file fresh proceedings by Writ or Originating Summons for damages – Constitution, s193 C; Public Service (Management) Act 1995, s31 C, ss 26 – 30; Prime Minister & National Executive Council Act 2002, 7 & s 19; National Court Rules, O16 rr 1,9 (3)& (4).

PRACTICE AND PROCEDURE – Referral/Reservation on point of law to Supreme Court – whether questions in reference raise constitutional questions – whether questions not complicated and within the National Court’s jurisdiction to determine – Constitution, s 18; Supreme Court Act (Ch No 37), s15.

Cases Cited:

Papua New Guinea Cases:
Aileen Bure & 4 Ors v Robert Kapo (2005) N2902
Albert Kuluah v UPNG [1993] PNGLR 494
Attorney General Michael Gene v Pirouz Hamidian Rad [1999] PNGLR 278
Christopher Appa v Peter Wama & Department of Western Highlands (1992) N1083
David Nelson v Patrick Pruaitch (2003) N2536
David Nelson v Patrick Pruaitch (2003) N2440
Ereman Ragi v Joseph Maingu (1994) SC459
Francis Damem v Public Service Commission (2005) N2900
Gideon Barereba v Margaret Elias (2000) N2197
John Kombati v Fun Singin (2004) N2691
John Kopil v Malcom Culligan (1995) N1333
Lawrence Sasau v PNG Harbours Board (2006) N3253
Luke Benjamin Supro v Gerea Aopi [1997] PNGLR 353
Mark Ankama v PNG ELCOM (2002) N2303
Mark Ankama v PNG ELCOM (2002) N2362
Mathew Himas v Richard Sikani (2002) N2307
Mision Asiki v Manasupe Zurenuoc (2005) SC797
National Airline Employees Association of PNG v National Airline Commission Trading as Air Nuigini [1992] PNGLR 291
Pama Anio v Aho Baliki (2002) N2267
Paul Asakusa v Andrew Kumbakor (2006) N3257
Peter Bond v Mark Nakgai (2001) N2123
Robinson v National Airline Commission [1983] PNGLR 476
Robert Karava v Kevin Byrne [1999] PNGLR 39
Ramram v NBC (1990) N1110
SCR No 4 of 2008 Re Isaac Lupari v The State & Others (2008) SC930
Steamships Trading Company v Joel [1991] PNGLR 133
Sulaiman v PNG University of Technology (1987) N610
Tau Marava Kamuta v David Sode & IRC (2006) N3067
Thaddeus Kambanei v NEC (2006) N3064
Wijekoon v UPNG (1989) N715
Young Wadau v PNG Harbours Board (1995) SC489
Zachary Gelu v Francis Damem (2004) N2762

Overseas Cases:
Burns Philp Trust Company Pty Ltd v Kwikasair Freighters Ltd [1964] NSWR 63
Hill v C.A Parsons & Company Ltd [1971] 3 ALL ER 1345
Howes v Gosford Shire Council (1962) NSWR 58
Lumley v Wagner [1843-60] ALL ER Rep.368
Pakenham Upper Fruit Company v Crosby [1924] HCA 55; (1925) 35 CLR 386
Williamson & Robinson & Company Ltd v Heve [1898] 2 CLR 451

Legislation Cited:
Constitution, s193 (1B), s 193(1A) & (1C) & (1D), s193 (1) (a), s 155(4), s31 (1C), s 23, s18,
Public Service (Management) Act, s31 C, s 31 D, s22 (1) (a), s27-30,
Employment Act, s 2 & 36 – 39,
Supreme Court Act, s 15

Counsel:
H Nii with J Nalawaku, for the Plaintiff
S Singin, for the First Respondent
L Kandi, for the Second Respondent
E Andrew, for the Chairman of Public Service Commission

11 July, 2008

1. INJIA, DCJ: This is an application for judicial review made under O 16 of the National Court Rules (NCR). The decision the subject of review was made by the National Executive Council (NEC) on 24th April 2008, to revoke the plaintiff’s appointment as the Chief Secretary and Secretary of the Department of the Prime Minister and NEC (hereinafter referred to as Chief Secretary). The decision was conveyed to the Head of State in the form of an advice and the Head of State issued an instrument to that effect and published the relevant notice in the National Gazette on 28th April 2008. The plaintiff seeks a review of NEC’s decision as well as NEC’s advice given to the Head of State and the Head of State’s actions. The plaintiff seeks an order of certiorari to the NEC’s decision and other executive acts and consequential orders including re-instatement. The plaintiff relies on several grounds of review which I will come to later in my judgment.
   

Evidence

2. The evidence consists of the following:-

- Affidavit of Ligo Lua sworn on 2 June 2008 (Exhibit "A"). Mr Ligo Lua also gave oral evidence when he was cross-examined on his affidavit.

- Affidavit of Isaac Lupari sworn on 30th April 2008 (Exhibit

"B")(Plaintiff).

- Affidavit of Sir Michael Somare sworn on 19th May 2008 (Exhibit

"C")(1st Respondent).

-Affidavit of Ms Winnie Kiap sworn on 20th May 2008 (Exhibit

"D")(Second Respondent).

- Affidavit of plaintiff sworn on 19th June 2008 (Exhibit "E").

Submissions

3. All parties presented written and oral submissions on the various issues raised by the grounds of appeal and I received submissions on 19th June 2008 and reserved any decision, to today which I now deliver.

Background Facts

4. The plaintiff is a career public servant whose career span runs for 23 years. In this period, he has occupied senior positions in the public service including the position of Departmental Head in a number of key departments. Immediately prior to his appointment as Chief Secretary, he was serving as PNG’s ambassador to the European Union.

5. On 12th April 2007, NEC appointed him to the position of Chief Secretary for a period of four years. On 20th July 2007 he executed a Contract of Employment with the State, effective from 12th April 2007.

6. On 28th April 2008, NEC revoked his appointment. The procedure
adopted in effecting the revocation, is set out below:-

(a) On 24th April 2008, at its meeting held at Madang, NEC considered a Statutory Business Paper No. 33/08. Amongst other related decisions made at this meeting, NEC decided to revoke the plaintiff’s appointment.

(b) On 24th April, 2008, the First Defendant advised the Head of State, in writing, of the decision.

(c) On 28th April 2008, the Head of State issued an instrument of revocation which was published in the National Gazette on the same day.

(d) On 28th April 2008, copies of the notices were served on the plaintiff at his office at 5.00 p.m. No other documents or notices were given to him prior to the decision. No reasons for decision was communicated to him after the decision.

(e) The Prime Minister and Secretary for NEC, Ms Kiap in their respective affidavits have now disclosed the reasons for this decision, as follows: These are:

(i) Poor performance on the job: see par 10 of Prime Minister’s affidavit.

(ii) Recent contradictory actions which have the potential of destabilizing and derailing many of government’s institutions and achievements. There are nine (9) such instances are listed: see par 7 – 11 of Ms Kiap’s affidavit.

(iii) The abrupt termination of the Finance Commission of Enquiry by the Prime Minister due to ill-advice given by the plaintiff. On the day the plaintiff was scheduled to appear before the Commission to give evidence, the enquiry was

terminated: see par 12 of Ms Kiap’s affidavit.

(iv) Undermining NEC directions, particulars of which are set out in par 12(4) of Ms Kiaps affidavit.

(v) Defiance of directions issued by the National Planning Office, particulars of which are set out in pars 12(5) and 12(6) of Ms Kiap’s affidavit.

(vi) Absconding from responsibilities, particulars of which are set out in par 12(6) of Ms Kiap’s affidavit.

(vii) Lack of respect for system and process of Government, particulars of which are set out in par 12(7) of Ms Kiap’s affidavit.

(viii) Creating division among Departmental Heads and Statutory Authorities, particulars of which are set out in par 12(8) of Ms Kiap’s affidavit.

(ix) The Prime Minister and the NEC had "Lost Confidence in Mr Lupari as the Chief Secretary to Government with powers to advice the Prime Minister": par 14 of Ms Kiap’s affidavit. He will "cause more danger to the State and to the Prime Minister should he take office again": par 16 of Ms Kiap’s affidavit.

(x) Restructuring of the Office of Chief Secretary. The relevance of the office of Chief Secretary to the government was to be reviewed with a view to amending the Prime Minister and NEC Act, to go before Parliament in the May sittings of the Parliament: par 10 of Prime Minister’s affidavit and par 15 of Ms Kiap’s affidavit. Since then, the government has taken steps to prepare a bill which is now before the Parliament, for presentation in the current Sittings of the Parliament. The Bill seeks to amend the said Act, to abolish the position of Chief Secretary. A copy of the draft Bill has been produced in Court. par 10 of Prime Minister’s affidavit and par 15 of Ms Kiap’s affidavit.

(xi) The plaintiff’s position is vacant. It is temporarily occupied by Ms Margaret Elias who has been appointed to act on the position. The position has now been advertised. A copy of the advertisement was produced to the Court..

(f) It is not disputed that before the decision was made, PSC was not consulted. The Chairman of PSC Mr Ligo Lua filed an affidavit deposing to the fact that PSC was not consulted and gave oral evidence in Court maintaining that position. His evidence on this point is not contested by the respondents. After the decision, the Minister for Public Service, sought advice and clarification on the matter, which the PSC refused to advice saying the matter was sub-judice.

Grounds of review

7. The grounds of review pleaded in the amended Statement filed on 7th May 2008, under O 16 r 3 are as follows:-
   

"1. Denial of natural justice.

2.1 NEC Advice and Decision is defective and also in breach of Constitution and the Public Services (Management) Act and its Regulation

(i) The NEC Decision to advise the Head of State to revoke the appointment of the Plaintiff as Secretary for the Department of Prime Minister and NEC and Chief Secretary to Government was based under an incorrect provision of the Constitution (Section 193(1B) – which deals with temporary appointment of Departmental Heads) and incorrect provisions of the Public Services (Management) Act (Section 31 – which deals with acting appointment of Departmental Heads).

(ii) The Head of State therefore erred in law in effecting the revocation of the appointment of the Plaintiff on the 28th April 2008 based on an NEC decision that was arrived at pursuant to a wrong law.

(iii) Furthermore, the Head of State, had no legal authority to act on the advice of the NEC to revoke the Plaintiff’s appointment based on a defective NEC decision; and it also had no legal authority to correct the mistake of the NEC and effect the revocation of the Plaintiff’s appointment under a law (although correct) that was not relied on by the NEC in its initial decision.

(iv) The Head of State relied on Section 193(1C) of the Constitution and Section 31(1C) of the Public Services (Management) Act 1995 and Section 19 of the Prime Minister & National Executive Council Act 2002 to effect the revocation of the Plaintiff’s appointment.

(v) Whilst Section 193(1C) of the Constitution expressly empowers the Head of State to revoke the appointment of a Departmental Head on advice, there is no corresponding provision found in Section 31(1C) of the Public Services (Management) Act and Section 19 of the Prime Minister & NEC Act. There is no Section 31(1C) found in the Public Services (Management) Act. There is a Section 31C which is not the basis of the decision.

(vi) Section 19 of the Prime Minister & NEC Act establishes the Office of the Chief Secretary. It does not deal with the revocation of the Chief Secretary. In so far as the Head of State purports to exercise purported powers pursuant to an aggregate or net effect of those provisions, the decisions of the Head of State in revoking the appointment of the Plaintiff is null and void and of no effect.

2.2 [If assuming] Revocation of Appointment was done under correct provisions of the Constitution and the Public Services (Management) Act and its Regulation and Contract of Employment.

If assuming that the NEC and the Head of State meant to exercise their respective powers to recommend and revoke the Plaintiff’s appointment under the correct law, viz, Section 193(1C) of the Constitution and Section 31C of the Public Services (Management) Act 1995, then the exercise of the respective powers were unlawful and in breach of the procedures set out therein for the following reasons:-

(i) Section 193(1C) of the Constitution provides that the Head of State shall revoke the appointment of a Departmental Head "...acting with, and in accordance with, the advice of the National Executive Council given in accordance with a recommendation by the Public Service Commission following procedures prescribed by or under an Act of Parliament."

(iii) In this case, the revocation was not initiated under Section 193(1C) of the Constitution nor Section 31C of the Public Services (Management) Act 1995 for the following reasons:-

(aa) There was no "recommendation" by the Public Service Commission (PSC) to the NEC for the revocation of the Plaintiff’s appointment as Chief Secretary to government; and

(ab) The procedures under Section 31C of the Public Services (Management) Act, in order to enable a valid and lawful "recommendation" by the PSC, were not complied with in full or at all.

1.3 Grounds for the Revocation of Appointment

(i) Section 31C(a)(ii) of the Public Services (Management) Act 1995 requires the NEC and the Minister responsible, in this case, the Prime Minister, to specify the "grounds" for the revocation of appointment as set out in the Contract of Employment of the Plaintiff, to the Public Service Commission (PSC) in order to set in motion the procedures under Section 31C.

(ii) In this case, the ground set out in the Instrument of Revocation by the Head of State dated 28th April 2008 was stated as "in the interest of the State", as provided in Section 16.1(b) of the Contract of Employment of the Plaintiff.

(iii) However, the ground of "in the interest of the State", as set out in the Plaintiff’s Contract of Employment and also provided in Section 1(3)(c) of Regulation 7 of 2003 can be used only in here (3) circumstances or reasons viz:-

(aa) There is re-organisation of the Departments involving amalgamation, abolition, or reconstruction of Departmental Heads’ position; or

(ab) Need to redeploy or inter-change two (2) Departmental heads resulting in improved efficiency; or

(ac) Other grounds for termination not contrary to the Contract provisions.

(iv) The test for the validity of termination of employment "in the interest of the State" as set out in Section 1(3)(d) of Regulation 7 of 2003 which reads:

(d) Tests for Validity of Termination of Employment "In the Interest of the State".

(i) The following criteria shall be satisfied by any recommendation made by the Public Services Commission in respect to a termination to be made by the National Executive Council "in the interest of the State":

(A) termination is legal in terms of the grounds provided by the contract and does not breach any law;

(B) the State will not become exposed to any unnecessary financial or legal liability resulting from the termination, and any monies payable to the Departmental head would not exceed those specified in a contract for such termination;

(C) there is a real, and not imagined, assumed, or fictitious threat to the security of the State (if security is the alleged reason);

(D) termination will in fact advance the interests of Papua New Guinea as determined by the National Executive Council;

(E) termination will in fact save the State from incurring further costs or unnecessary expenses;

(F) termination is not motivated by regional or by personal interests of a Minister, (as opposed to the interests of the State as determined by the National Executive Council), or following a change in Government, to replace a Departmental Head on political grounds, without relating the termination to the Departmental Head’s performance;

(G) all relevant independent advice and/or recommendations required by normal contractual processes and by law have been obtained and support or endorse the proposed action;

(H) all lawful consultations or recommendations required for the termination have been obtained;

(I) termination is strictly made in accordance with the grounds specified for that purpose in a contract of employment

(J) the principles of natural justice have been adhered to by all Parties."

(v) In this case, the revocation of appointment of the Plaintiff by the NEC and Head of State were illegal in that:-

(aa) There was no definitive "recommendation" from the PSC to the NEC for the revocation of the Plaintiff’s appointment "in the interest of the State"; and

(ab) None of the circumstances or reasons as set out in paragraph 7.2.3(iii) above existed for the revocation as being "in the interest of the State";

(ac) The PSC did not have the opportunity at all to determine the revocation as being "in the interest of the State" in accordance with the "tests" provided under Section 1(3)(d) of Regulation 7 of 2003, as set out earlier.

(ad) Even if the "tests" for the validity of the ground of the "interest of the State" was carried out by the PSC, then all those tests set out in Section 1(3)(d) of the Regulation No. 7 of 2003 were all in favour of the Plaintiff, and the PSC could not have been lawfully entitled to make a "recommendation" to the NEC for the Plaintiff’s revocation of appointment.

2.4 Contract of Employment and Regulation No. 7 of 2003

The provisions of the Contract of Employment in particular Section 16 and Section 1(3) of Regulation No. 7 of 2003 were not complied with, before the NEC and the Head of State made the critical decision of advising and effecting the revocations respectively.

3. Decision on the face of the record is wrong and unlawful.

3.1 Decisions of the NEC and Head of State

The decision of the Head of State to revoke the Plaintiff’s appointment is unlawful and is void and erroneous on the face of the record in that:-

(i) The NEC was obliged to act on the "recommendation" by the PSC, and advise the Head of State to revoke the Plaintiff’s appointment as provided in Section 193(1C) of the Constitution and Section 31C of the Public Services (Management) Act 1995 – not after "consultation" with the PSC, as that requirement is not provided in law, and therefore if indeed the PSC was consulted by the NEC (which is denied), then the revocation is unlawful and is null and void and of no effect.

(ii) The Head of State acted pursuant to Section 31 (1C) of the Public Services (Management) Act 1995 which does not exist; and secondly under Section 19 of the Prime Minister & NEC Act 2002 that create the Office of Chief Secretary and his appointment and does not deal with revocation of appointments.

(iii) The advise to the Head of State by the NEC dated 27th April 2008 to effect the revocation of the Plaintiff’s appointment was defective and unlawful in that:-

(aa) the decisions were taken/made under wrong sections of the Constitution (Section 193(1B) and the Public Services (Management) Act (Section 31).

(ab) reasons for the revocation were not stated; and

(ac) grounds for the revocation were not stated; and

(ad) it was not stated whether the NEC decision was based on the Public Service Commission’s "recommendation", if any.

(iii) The Head of State erred in law in substituting and or including the following pertinent matters which were either stated or not stated, in the NEC advice to the Head of State dated 27th April 2008, which has the effect of rendering the decision of the Head of State to revoke the Plaintiff’s appointment unlawful and null and void and of no effect:

(aa) The Head of State substituted Section 193(1B) of the Constitution found in the NEC Decision with Section 193(1C) of the Constitution.

(ab) The Head of State substituted Section 31 of the Public Services (Management) Act found in the NEC Decision with Section 31(1C) of the Public Services (Management) Act, which does not exist;

(ac) The Head of State included Section 19 of the Prime Minister & NEC Act 2002 in his instrument of revocation, which was not stated in the NEC’s advice to the Head of State in the Instrument dated 27th April 2008.

(ad) The Head of State revoked the appointment of the Plaintiff on the ground of "in the interest of State", which was not stated in the NEC’s advice to the Head of State.

(ae) The Instrument of revocation of appointment by the Head of State states that the NEC’s decision was upon "consultation" with the PSC – something not found in the NEC advice to the Head of State; besides, Section 193(1C) of the Constitution and Section 31C of the Public Services (Management) Act requires a "recommendation" to be made for the revocation of the Plaintiff’s appointment. This term is not found in both the NEC’s Instrument of advice and the Head of State’s Instrument of Revocation."

Main grounds of review: Breach of natural justice, breach of prescribed procedure – Error of law & Excess of power

8. There are a five (5) heads of grounds which are as follows--

(a) Breach of principles of natural justice: Ground 1.1 – 1.3

(b) Breach of prescribed statutory procedure or error of law: Grounds 2.1, 2.2 and 2.3

( c) Excess of power: Ground 3.1

(d) Breach of Contract of employment: Ground 2.4

(e) Unreasonableness under Wednesbury principles: No grounds of review pleaded.

9. In my view, given the manner in which the grounds were argued, grounds (a), (b) and (c) above are the main grounds and they all raise public law issues. I will first deal with ground (b) (breach of prescribed procedure or error of law).

10. There is no question that the plaintiff’s position is a public office created under s 22 (1)(a) of the PSM Act and s 17 of the Prime Minister and National Executive Council Act 2002. Pursuant to s 19 (1) & (2) of the latter Act, the substantive holder of the office of the Departmental Head of the Department of the Prime Minister and NEC is the Chief Secretary. By virtue of s 193(1) (a) of the Constitution, the Chief Secretary is an officer of the National Public Service which is directly responsible to the NEC or to the Prime Minister, therefore his appointment and revocation is governed by s 193 of the Constitution.

11. Section 193 (1A) & (1C) of the Constitution is in the following terms:

"193. Appointment to Certain Offices

(1A) All substantive appointments to offices to which Subsection (1)(a), (g) and (h) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council from a list of persons recommended by the Public Services Commission following procedures prescribed by or under an Act of the Parliament.

(1B)....

(1C) The revocation of appointment of persons appointed under Subsection (1A) or (1B) shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a recommendation by the Public Services Commission following procedures prescribed by or under an Act of the Parliament."

12. Section 31C of PSM Act prescribes the procedure for revocation of appointment of a Departmental Head, as follows:

31C. Procedures relating to revocation of appointments of Departmental Heads.

The procedures relating to the revocation of appointments of Departmental Heads referred to in Section 193(1C) (appointments to certain offices) of the Constitution are as follows:—

(a) the Commission—

(i) may, on its own volition; or

(ii) shall, on receipt of a request from the National Executive Council for revocation of the appointment of a Departmental Head accompanied by a written statement by the Minister specifying the grounds for requesting the revocation (being grounds consistent with the grounds for revocation of appointment in a contract of employment entered into by that Departmental Head under Section 28),

refer the matter to the Departmental Head of the Department of Personnel Management—

(iii) to investigate the allegations and circumstances; and

(iv) to report thereon to the Commission within 30 days from the date of reference;

(b) the Departmental Head of the Department of Personnel Management shall—

(i) investigate the allegations and circumstances relating to any matter referred to him under Paragraph (a); and

(ii) report thereon to the Commission within the 30 day period referred to in Paragraph (a)(iv);

(c) the Commission shall—

(i) consider the report made to it under Paragraph (b)(ii); and

(ii) make, or cause to be made, and consider such further investigations (if any) as it considers necessary; and

(iii) on the basis of the report and the results of such further investigations (if any), recommend to the National Executive Council whether or not the appointment of the Departmental Head should be revoked;

(d) where the Commission recommends the revocation of appointment of a Departmental Head, the National Executive Council shall advise the Head of State to revoke the appointment.

13. Sections 27-30 of PSM Act provides for the appointment of Departmental Heads under contract of employment as follows:

"27. Appointments to offices of Departmental Head

A Departmental Head shall be appointed in accordance with Section 193 (appointments to certain offices) of the Constitution.

28. Contracts of employment.

(1) A Departmental Head shall be employed under, and shall hold office in accordance with the terms and conditions of, a contract of employment with the State.

(2) A contract of employment under Subsection (1) shall be executed by the Head of State, acting on advice, on behalf of the State, and by the Departmental Head.

29. Employment under contract to constitute service.

Employment under contract under this Division shall constitute service in the National Public Service for all purposes.

30. Cessation of employment in Public Service.

A person who is appointed to be a Departmental Head and accordingly enters into a contract of employment under this Division, shall, on the termination of his employment in accordance with the contract of employment, cease to be an officer or employee of the Public Service."

14. Statutory Instrument No. 7 of 2003: Public Services (Management) Criteria and Procedures for suspension and Revocation of Appointment of Departmental Heads and Provincial Administrators Regulation 2003 provides further procedures for revocation of appointment on specified grounds which include poor performance (Clause 1 (2) & (3)). This Regulation is made under the PSM Act.

15. Mr Singin for the first respondent refers to s 2, 36, 37, 38 and 39 of the Employment Act which relate to contract of employment, in the following terms:

2. Act binds the State.

This Act binds the State and every authority and instrumentality of the State.

36. Grounds for termination of contract.

(1) An employer may terminate a contract of service without notice or payment instead of notice—

(a) where the employee—

(i) wilfully disobeys a lawful and reasonable order; or

(ii) misconducts himself by an act of omission or commission that is inconsistent with the due and faithful discharge of his duties; or

(iii) is guilty of a fraud or dishonesty; or

(iv) is habitually neglectful of his duties; or

(v) is imprisoned for a period exceeding seven days; or

(vi) is continually absent from his employment without leave or reasonable excuse; or

(vii) is convicted of an offence or contravention of this Act or any other law relating to employment; or

(b) on any other ground on which he would be entitled to terminate the contract without notice at common law.

(2) An employee may terminate a contract of service without notice—

(a) if the employer or a person acting or purporting to act on his behalf or by his authority—

(i) induced him to enter into the contract by force, fraud or a statement that was misleading in any material particular relating to the employment; or

(ii) has been convicted of an offence against or a contravention of this Act or any other law relating to the employee or his dependants; or

(iii) has been negligent or careless in the discharge of his duties towards the employee or his dependants under the contract, this Act or any other law; or

(iv) has committed an act of omission or commission that is inconsistent with the due and faithful discharge of his obligations towards the employee or his dependants; or

(v) has ill-treated the employee; or

(b) on any other ground on which he would be entitled to terminate the contract without notice at common law.

(3) Termination of a contract of service under Subsection (1) or (2) shall be made as soon as practicable after the happening of the event on which the termination is based.

(4) This Act does not prevent termination of a contract of service under this section being the subject of an industrial dispute under the Industrial Relations Act.

37. Obligations of employer on termination of contract.

Where an attested contract is lawfully terminated, the employer shall comply with—

(a) Division 7; and

(b) Section 84; and

(c) any other prescribed requirements.

38. Termination of attested contract.

Where an attested contract is terminated under Section 36(1) or (2), on the application of an aggrieved party, a court may award—

(a) in the case of an employer—

(i) such amounts as it determines of additional expenses caused to the employer by reason of the wrongful act or default of the employee; and

(ii) authorize the employer to retain all or any part of any deferred or other wages due to the employee; or

(b) in the case of an employee—such amount as it determines of the value of loss of wages, allowances and any other expense to the employee caused by any wrongful act or default of the employer or of any person acting on his behalf or by his authority.

(2) An amount awarded under—

(a) Subsection (1)(a)(i) shall be deemed to be a judgement debt against the employee; and

(b) Subsection (1)(b)(i) shall be deemed to be a judgement debt against the employer,

and either amount may be set off by the court against the other.

39. Affect of award by court.

(1) Subject to Section 38, an order or award made by a court under this Division takes effect notwithstanding anything to the contrary in this Act.

(2) This Division shall not be deemed to prevent any proceedings in the same matter under any other law, but an amount—

(a) retained by an employer under Section 38(1)(a)(ii); or

(b) actually recovered by an employee under Section 38(1)(b),

shall to that extent be satisfaction of a judgement obtained under that other law."

16. The preamble to the Contract of employment executed between the plaintiff and the State recites the relevant provisions of the Constitution and the PSM Act and Regulations made under that Act as the basis for the Contract of employment. The standard terms and conditions of employment adopted in the contract provide for termination of contract for cause (on disciplinary grounds) as defined in cl.17, under the procedure prescribed in cl. 26. Clause 16 provides for revocation of the appointment and termination of the Contract on various grounds including disciplinary termination and "in the best interest of the State": cl 16.1 (b) & (c); and redundancy and retrenchment and due to "change or proposed change to the Constitution of Papua New Guinea": see cl 16.1 (a) & ( c) of contract.

17. The plaintiff’s case simply put is this. The plaintiff was duly appointed by NEC as Chief Secretary following procedures prescribed by the Constitution and PSM Act. But the NEC failed to comply with mandatory requirements of s 193(1C) of the Constitution and s 31 C of PSM Act in revoking his appointment, in that it failed to consult the PSC before the decision was made and effected. Evidence given by the Chairman of PSC supports the plaintiff’s case that the PSC was not consulted before the decision was made to revoke the plaintiff’s appointment. Clear errors of law have been established in that regard, an order in the nature of certiorari lies to quash the decision, and consequently the plaintiff should be reinstated to his position with full employment entitlements backdated to the time of dismissal.

18. The defendants’ case simply put is this, the plaintiff’s appointment was made without following the requirements for consultation with PSC. The terms and conditions of his appointment are set out in his contract of employment with the State. The revocation of his appointment is also governed by his contract of employment. Sections 27 – 30 of the PSM Act makes express provision for employment of Departmental Heads under contract. Sections 2 and 36-39 of Employment Act also provides for employment of government officers under private contract of employment. There is no requirement under these statutory provisions and the conditions of the contract to consult the PSC before a decision is made to revoke an appointment of a Departmental Head. In this case the PSC was not consulted before the decision was made. The plaintiff’s right under the contract are private rights and his remedy lies in private law. His rights do not lie in public law, which is amenable to judicial review. In private contract law, reinstatement or specific performance of a contract of employment is not available. The remedy is in damages for breach of contract. The application for judicial review has no proper basis in law and it should be dismissed for these reasons.

19. Extensive arguments have been advanced by counsel representing all the parties supporting their respective client’s positions on the issue. I would have no difficulty in finding that the mandatory procedure prescribed for consultation with the PSC by s 193 (1C) of the Constitution, s 31C of the PSM Act were not followed in effecting the revocation. An order for certiorari would ordinarily lie to quash the decision. Reinstatement would be an ordinary relief unless the Court was persuaded to exercise its discretion differently.

20. The defendant’s contentions raise an important issue as to whether the revocation was done under the provisions of the contract of employment and if so, whether the plaintiff’s remedy lies in private law which is enforceable by an action in damages for breach of contract and not in public law which is amenable to judicial review. If the defendant’s arguments were upheld, it would negate the plaintiff’s case in its entirety.

21. This is not the first time this issue has been raised in the courts. A quick survey of published decisions of the National Court and the Supreme Court reveals that there appears to be conflict of precedent in cases decided by the National Court. In the Supreme Court the law on the issue is not quiet settled.

22. In a number of National Court decisions, I have taken the position which supports the plaintiff’s case on the same or similar issues: see my decisions in David Nelson v Patrick Pruaitch (2003) N2536, Francis Damem v PSC (2005) N2900, Lawrence Sasau v PNG Harbours Board (2006) N3253. Other judges have also taken a similar position: see David Nelson v Patrick Pruaitch (2003) N2440 (Sevua J), Zachary Gelu v Francis Damem (2004) N2762 (Davani, J).

23. The respondent’s position is equally supported in some earlier Supreme Court and some earlier and even some recent National Court decisions: Ereman Ragi v Joseph Maingu (1994) SC459, Young Wadau v PNG Harbours Board (1995) SC489, Luke Supro v Gerea Aopi & Anor [1997] PNGLR 353, John Kombati v Fun Singin (2004) N2691, Sulaiman v PNG University of Technology (1987) N610, John Kopil v Malcom Culligan (1995) N1333, Albert Kuluah v UPNG [1993] PNGLR 494 and Mathew Himas v Richard Sikani (2002) N2307.

24. The latest situation is that in two judicial review matters which have come before me, I have invited parties to fully address the same issue before me so that I can review these authorities and make a firm decision on the issue. Counsel representing those parties are in the process of researching the point and preparing their submissions. A date for submissions in both matters is yet to be fixed.

25. In the present matter, the issue addressed by the defendants have not met strong counter submissions from the plaintiff perhaps because of his perceived strength in his case on the error of law ground.

26. I am placed in no better position to determine the issue decisively. Its an important public law issue which I consider should not be swept under the carpet lightly. The public interest and the interest of many Departmental Heads including the plaintiff and other senior public servants and heads of statutory authorities employed on government contracts under the PSM Act or other relevant statutes are at stake, particularly at this point in time and in recent years, when decisions have been made regarding the appointment and revocation of appointments many senior public servants and they have been challenged in Court. It is not in the interest of justice and good public administration that the law on the issue remains unsettled. The proper forum for the issue to be settled is not this Court but the Supreme Court

27. During argument, I did not raise the option of a possible reference to the Supreme Court under s 18 of the Constitution. Since it is the respondents who have raised the issue, I should place the onus on them to satisfy me that the conditions under s 18 of the Constitution exist in this case that such referral be made by this Court. That is, issues as to constitutional interpretation has arisen, that the questions are not "trivial, vexatious or irrelevant", such that I should exercise my discretion to refer the questions to the Supreme Court. They should prepare a draft reference for my consideration and decision and persuade me whether I should refer the question(s) under s 18 of the Constitution and in the meantime, stay these proceedings pending the Supreme Court’s decision on the reference. The plaintiff is also entitled to be heard on the matter. I propose to give the parties adequate preparation time.

28. In relation to ground (a) (breach of natural justice) and ground (c) (excess of power), they also raise public law issues which are directly connected to ground (b) and they cannot be dealt with in isolation to ground (a). A determination on ground (a) will or may be determinative of these two related grounds.

29. For these reasons, I make the following orders:

1. The decision on the substantive application for judicial review is deferred to Monday 21st July, 2008 at 9:30 am.
2. The matter is adjourned to 21st July 2008 at 9:30 am to hear arguments on whether a s 18 reference should be made.
3. The defendants shall prepare, file and serve a draft reference under s 18 of the Constitution in Form 2 of Supreme Court Rules, for the court’s consideration, by Thursday 17th July 2008.
4. The time for entry of this order by the Registrar is abridged forthwith.
   

ADDENDUM

4th August, 2008

30. INJIA, DCJ: On 30th July 2008, counsel representing the parties including counsel representing the Chairman of PSC made submissions on the issue of a possible constitutional reference which I raised in my ruling of 11th July 2008. Submissions were based on four questions stated in a draft Reference prepared by counsel for the second respondent, which are as follows:

1. Is Consultation with the Public Services Commission (PSC) required in every case of revocation of an appointment of a Departmental Head, under Section 193 (1C) of the Constitution?
2. Does Section 31 C of the Public Services (Management) Act which give effect to s 193 (1C) of the Constitution prescribe the only procedure for the revocation of appointment of the Chief Secretary?
3. If the answer to Question 2 is in the affirmative, should Regulation 1(1) of the Public Service (Management) Criteria and Procedure for Suspension and Revocation of Appointment of Departmental Heads and Provincial Administrators) Regulation No.7 of 2003 be read to be ultra vires?
4. Whether the employment relationship between the Chief Secretary and the State is removed from Public law domain by operation of Part VI – Division 2 (ss 26, 27, 28, 29 & 30) of the Public Service (Management) Act and ss 2, 36, 37, 38 & 39 of the Employment Act.
   

31. Questions 1 & 2 contain reference to a particular Constitutional provision whereas Questions 3 & 4 do not. The respondents’ counsel submitted questions 1 & 2 may be referred under s 18 of the Constitution reference and questions 3 & 4 may be referred under s 15 of the Supreme Court Act. Arguments were also made by all counsel on this point.

32. It is in the Court’s discretion to determine whether a constitutional question(s) arises in the interpretation and application of a Constitutional law provision or statutory provision or that a point of law arises in a particular case, such that the question or point should be referred to the Supreme Court for determination. Section 18 of the Constitution provides for a constitutional reference by the Court and s 15 of the Supreme Court Act provides for a reference on a point of law arising from interpretation and application of a statutory provision in a particular case before the National Court. In a case where the meaning of a Constitutional law provision or statutory provision is clear or unambiguous, it is usual for the National Court to interpret and apply a constitutional law provision or statutory provision and determine the case before it. It is up to a party who may be aggrieved by the particular interpretation accorded to the Constitutional law provision or statutory provision and application of that interpretation and application to the case before it, to appeal to the Supreme Court. However if an issue(s) of interpretation and application of a constitutional law provision or statutory provision arises in a particular case and the National Court’s interpretation and application of that provision in question in a particular way may create or is likely to create uncertainty or perpetuate an uncertainty in the law on a particular point, then the National Court should refer the question or point to the Supreme Court for that Court to interpret and settle the law on that point (s). Legislative changes to constitutionally entrenched procedural processes on matters of public administration and executive control or supervision of administrative processes, in my view, tend to generate much controversy, confusion and uncertainty in the law as it is interpreted and applied not only by relevant authorities in the workplace but also in the Courts. There are those cases where even when the constitutional provision or statutory provision on their face appear to be clear, there is still controversy over their meaning and application. In such situation the law should be restated or clarified and settled by a higher authority. Only the Supreme Court can perform that task.

33. In the present case, the legislative amendments introduced in 2003 to s193(1) of the Constitution and s 31 of the Public Service (Management) Act and Regulation No. 7 of 2003 which purported to give effect to those amendments have not been without much controversy both in public administration circles and also in the Courts. The fact that those very issues have been raised and argued with much intensity in these proceedings and the conflict of case decisions on the same issues which I alluded to in my earlier ruling bears testimony to the state of the law on the subject of public law rights of Departmental Heads and even Senior public servants employed on contract of employment under the Public Service Management, to seek judicial relief through the judicial review procedure in O 16 of the National Court Rules. Any attempt by this Court to pronounce the law and apply it will not settle the law. It will only perpetuate the confusion and uncertainty in the law.

34. After having considered the submissions of counsel, and using the draft reference questions submitted by the State as a guide, for reasons I gave in my earlier ruling, I consider that the law, both constitutional law and statutory law, on the subject of the public law rights of Departmental Heads and even Senior public servants employed on contract of employment under the Public Service Management, to seek judicial relief through judicial review procedure under O 16 of the National Court Rules, needs to be settled by the Supreme Court. This is primarily a point of law but its resolution will require consideration of the meaning of the relevant provisions of the Constitution stated in question 1 and 2 of the draft reference. I am satisfied that the issues raised in the questions posed by the Solicitor General are not trivial, vexatious, irrelevant or hypothetical only.

35. For these reasons, I refer the Question No. 1 & 2 of the draft reference to the Supreme Court under s 18 of the Constitution. Questions 1 & 2 will have to be amended to include consideration of relevant Constitutional law provisions and statutory provisions for appointment of Departmental Heads. Amendments will also be made to those questions to reflect the correct wording of the relevant provisions.

36. I also refer the points in questions No. 3 & 4 of the draft reference under s 15 (1) (a) or (b) of the Supreme Court Act (Ch 37).

37. I intend to issue an appropriate Reference in Form 12 of the Supreme Court Rules. Given the multiplicity of arguments raised by parties and to save time and cost to parties in duplicating written submissions before the Supreme Court, I consider it is necessary to include in the Reference Book other documents as well, as follows:

1. Copy of this Judgment (which contains this ruling and my ruling dated 11th July 2008).

2. Written submissions of all parties submitted for purpose of the substantive hearing.

3. Submissions of parties made for purpose of the present ruling.

38. I will direct the Registrar to settle the draft Index of the Reference Book with the parties.

39. As for the parties, the respondents’ counsel will argue the affirmative case and the plaintiff’s counsel will argue the case for the negative. The Public Service Commission is obviously interested in the issues that have been argued before me. It is granted leave to be joined as a neutral party to the proceedings to present the PSC’s case before the Supreme Court.

40. Also given the urgency of the matter, I propose to constitute a Court to deal with this matter in the August sittings of the Supreme Court.

41. Finally, in order to preserve the status quo and to protect the plaintiff’s rights, I propose to issue orders staying these proceedings and also restraining the respondents or their agents and servants from making a substantive appointment to the position pending the determination of the Reference. I also propose to issue orders restraining the respondents from taking any steps to abolish the position of Chief Secretary. If any party has any objections to these proposed orders, I will hear them now if counsel are ready to address me. After hearing counsel, I will announce the formal orders.

42. (After hearing counsel on seven draft proposed orders, I made the orders set out hereunder). The formal Orders of this Court are:

1. The Court refers four questions to the Supreme Court for determination, as follows:

(1) Is Consultation with or a recommendation of the Public Services Commission (PSC) required in every case of an appointment and / or revocation of an appointment of a Departmental Head, under Section 193 (1A) & (1C) of the Constitution respectively? This reference is made under s 18 of the Constitution.

(2) Does Section 31A of the Public Services (Management )Act which give effect to s 193 (1C) of the Constitution and s 31 C of the Public Service (Management) Act prescribe the only procedure for the appointment and revocation of appointment of the Chief Secretary respectively? This reference is made under s 18 of the Constitution.

(3) If the answer to Question 2 is in the affirmative, should Regulation 1(1) of the Public Service (Management) Criteria and Procedure for Suspension and Revocation of Appointment of Departmental Heads and Provincial Administrators) Regulation No.7 of 2003 be read to be ultra vires? This reference is made under s 15 of the Supreme Court Act, and to the extent that this issue raises constitutional issues under s 193 (1A) and (1C) of the Constitution, a reference under s 18 of the Constitution is also made.

(4) Whether the employment relationship between the Chief Secretary and the State is removed from Public law domain by operation of Part VI – Division 2 (ss 26, 27, 28, 29 & 30) of the Public Service (Management) Act and ss 2, 36, 37, 38 & 39 of the Employment Act. This reference is made under s 15 of the Supreme Court Act, and to the extent this issue raises constitutional issues under s 193 (1A) & (1C) of the Constitution, a reference under s 18 of the Constitution is also made.

2. The respondents’ counsel will argue the affirmative case and the plaintiff’s counsel will argue the case for the negative.

3. The Public Service Commission is granted leave to be joined as a neutral party to the proceedings to present the PSC’s case on the issues, before the Supreme Court.

4. Upon receipt of a Reference from this Court in Form 12 of the Supreme Court Rules, the Registrar shall settle the draft Index with the parties and compile and serve the Reference Book. The Reference Book shall contain the Reference itself and additional documents, as follows:

(a) Copy of this Judgment (which contains this ruling and my ruling dated 11th July 2008).

(b) Written submissions of all parties submitted for purpose of the substantive hearing.

(c) Submissions of parties made for purpose of the present ruling.

5. The Registrar shall fix the Reference for hearing in the August 2008 sittings of the Supreme Court.

6. These proceedings are stayed or adjourned generally pending the determination of the Reference.

7. The respondents or their agents and servants are restrained from taking any steps or further steps to process or make a substantive appointment on the position of Chief Secretary pending the determination of the Reference. They are also restrained from taking any steps whatsoever to abolish the position of Chief Secretary established by the Prime Minister and National Executive Council Act 2002, until the Reference is determined.

8. All parties including the Public Service Commission are granted liberty to apply for further orders in respect of Clauses 5, 6 & 7 of these orders by giving three days notice to the other parties.

9. Cost of the proceedings shall be in the cause of these judicial review proceedings.

9. The time for entry of these orders is abridged forthwith.
_________________________________________________________

ADDENDUM

22 September, 2008

43. INJIA, DCJ: On 26th August 2008, the Supreme Court comprising of Sakora J, Salika J, Kandakasi J, Batari J & Gabi J, heard the Reference/Reservation and handed down their decision on 28th August 2008. The Court declined to answer the questions because they did not raise any constitutional issues, they were not complicated and the points raised by the questions were within this Court’s power to determine: SCR No. 4 of 2008 Re Isaac Lupari v The State & Others (2008) SC 930. I now oblige.
    

Error of law: Breach of prescribe procedure.

44. The facts which are necessary to determine this application are contained in the background circumstances: see paragraphs 4- 6 hereof. Further to those findings, I wish not to deviate from my position taken in the cases that I have decided which I referred to in my judgment given on 11th July 2008. That is, the procedure for appointment and revocation of a person occupying the position of the Chief Secretary or a Secretary of a Department of the State, are prescribed by s 193 (1)(A) &(1)(C) of the Constitution and s 31 A and s 31 C of the PSM Act, respectively. The contract of employment executed between the Chief Secretary or Departmental Head and the State is authorized by Part VI – Division 2 (ss 26, 27, 28, 29 & 30) of the PSM Act. The contract of employment is a public contract founded on statute; it has no independent existence. If the contract were of independent existence, the contract would be quiet correctly governed by private contract law and come under the exclusive domain of the common law. A contract of employment of the kind in this case is quiet clearly the subject of public law. The terms of the contract of employment must be consistent with appointment and revocation of appointment provisions of the Constitution and PSM Act. To the extent that the terms of the contract are inconsistent with the Constitution and the PSM Act, the latter prevails. For these reasons, I am of the view that a Chief Secretary or a Secretary of a Department of the State who is aggrieved by the decision of the NEC to revoke his appointment is entitled to seek judicial relief under the judicial review procedure in O 16 of the National Court Rules. I accept submissions by Mr Nii and Mr Andrew on this point and reject the submissions by counsel for the respondents.

45. In the present case, the provisions of the contract of employment must be read subject to s 31 C of PSM Act and s 193 1C of the Constitution. These provisions are expressed in mandatory terms. They impose a constitutional duty and statutory duty on NEC to consult and obtain the PSC recommendations on matters of appointment and revocation of appointment of a person to the office of Chief Secretary or Secretary of a Department and this process must precede any decision by NEC to advice the Head of State. In this case, it is clear that that process was not followed in revoking the plaintiff’s appointment. I find that the revocation of his appointment was in breach of the provisions referred to. I accept submissions by Mr Nii and Mr Andrew on these points and reject the submissions made by counsel for the respondents.

Relief sought

46. In relation to the relief sought by the plaintiff, these are set out in the Notice of Motion filed under O 16 r5. The principal relief is an order in the nature of certiorari quashing the decision of the NEC to advice the Head of State to revoke the appointment of the plaintiff and the Head of State’s subsequent action to effect the NEC decision in accordance with the advice. The only consequential relief sought is "an order in the nature of mandatory injunction reinstating or restoring the Plaintiff to his position as Secretary for the Department of Prime Minister and National Executive Council and Chief Secretary to Government forthwith to serve out the balance of his contract of employment pursuant to s 155 (4) of the Constitution." In my view, the relief sought against the Head of State’s "decision" is not open to the plaintiff because the Head of State exercises no independent decision-making power under the Constitution.

47. In my view the reference to s 155(4) of the Constitution pleaded in the Notice of Motion as the basis for an order in the nature of mandatory injunction is misconceived. Order 16 provides the exclusive procedure for judicial review and any relief sought must be founded in this rule: Attorney-General Michael-Gene v Pirouz Hamidian Rad [1999] PNGLR 278.

48. The plaintiff also relies on s 23 of the Constitution. In my view that provision also has no application to judicial review proceedings. The relief under s 23 is available where a plaintiff seeks declaratory orders in respect of breach of constitutional duties. Such relief is not available under O 16 and correctly not sought in the Notice of Motion.

Relief in the Court’s discretion.

49. Order 16 r 1 of the National Court Rules is the relief provision. Under this provision, an order in the nature of certiorari as a primary relief and an order in the nature of injunction, either prohibitive or mandatory, as a consequential relief are both available. This provision states:

"1. Cases appropriate for application for judicial review. (UK. 53/1)

(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.

(2) An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to—

(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari; and

(b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and

(c) all the circumstances of the case,

it would be just and convenient for the declaration or injunction to be granted on an application for judicial review". (underlining is my emphasis).

50. Order 16 r 9 (3, (4) and (5) are also relevant and they provide:

"9. Hearing of application for judicial review. (UK. 53/9)

(3) Where an order of certiorari is made in any case referred to in Sub-rule (2), the order shall, subject to Sub-rule (4), direct that the proceedings shall be quashed immediately on their removal to the Court.

(4) Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.

(5) Where the relief sought is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in an action begun by writ by the applicant at the time of making his application, the Court may, instead of refusing the application, order the proceedings to continue as if they had been begun by writ ".(underlining is my emphasis)

50. The grant of any relief in judicial review is discretionary. Order 16 r 1 and r 9 (3) gives this Court that discretion. Even when the grounds upon which the relief is sought is proved or established, the grant of an appropriate relief remains in the discretion of the Court. The discretion of course is a judicial discretion and like the exercise of any other judicial discretion, it must be exercised on proper principles and proper grounds. An authoritative statement of this principle appears in the Supreme Court decision in Mision Asiki v Manasupe Zurenuoc (2005) SC 797. I quote from that judgment:

"It is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. As Sheehan J stated in Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479, National Court:

... in judicial review, even though the court might find there has been an error, even an error affecting matters of jurisdiction, the court would not thereby be obliged automatically to quash the ... proceedings. The remedies available under judicial review remain always at the discretion of the court and will only be granted to avoid injustice.

The court must therefore look at all the circumstances of the case and decide whether it is appropriate to grant a remedy; and if it is, what the remedy should be. It is not a formality. The court should generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose. Examples of cases where the court upheld an application for judicial review but did not grant a remedy are: Albert Karo v Ombudsman Commission SCA No 89 of 1995, 07.04.95, unreported, Supreme Court, Amet CJ, Los J, Sheehan J; John Mua Nilkare v Ombudsman Commission (1996) SC498, Supreme Court, Amet CJ, Kapi DCJ, Los J, Injia J; and Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services Commission and The State (2005) N2850, National Court, Injia DCJ."

Certiorari

51. In relation to certiorari, the Supreme Court in Mision Asiki said the grant of certiorari is discretionary. The starting point is to look at the nature of breach of law. The Court said:

"The starting point is to look at the decision and the nature of the excess of jurisdiction that the court has identified. Here it was the first respondent’s decision of February 2001 – to not accept the Public Services Commission’s recommendation – that has been found to have been infected by error of law and in breach of the principles of natural justice. The decision that was made was wrong in law and flagrantly so. It cannot stand and therefore it will be quashed. The appellant’s Order 16, Rule 3(2)(a) statement did not expressly seek such an order but we consider that it is sufficiently encompassed by the order for reinstatement that has been expressly sought. It follows that the first respondent’s decision not to accept the Public Services Commission’s recommendation is void."

52. In determining whether or not to grant certiorari, apart from considering the nature and seriousness of the error of law, it is important to consider the conduct of the parties. Certiorari is an equitable remedy and it is only issued in favour of a person who comes to Court with clean hands: Tau Mavara Kamuta v David Sode and IRC (2006) N3067.

Mandatory Injunction: Reinstatement.

53. On the question of reinstatement, the Supreme Court in Mision Asiki considered whether an order for reinstatement was warranted. The Court said grant of mandatory injunction or reinstatement is not automatic upon grant of certiorari. The Court must be persuaded that "the interest of justice requires reinstatement". The Court then went on to state as follows:

"The next issue is whether we should remit the matter to the first respondent, the provincial administrator, and direct that he re-make his decision whether to accept the recommendation of the Public Services Commission in accordance with law (ie an order in the nature of the prerogative writ of mandamus). Or whether this court should simply order that the appellant be reinstated. The former remedy is a more classical style of order for judicial review and faithful to the common law pedigree of this area of administrative law, which suggests that the courts should refrain from entering the arena of the executive arm of government. There is, however, a considerable body of case law showing that the courts in Papua New Guinea have not been reluctant to take the latter approach, particularly in regard to public servants who have been dismissed from office as a result of a decision-making process found to have been unlawful.

"Counsel for the first and second respondents submitted that reinstatement was not a viable remedy. He said that since the appellant had left the provincial government there had been a major restructure and it would not be convenient or proper to put him back in his former position. There was no evidence given to that effect, however. Even if it is accepted to be the case, it is not a good reason to deny a person the benefit of proving that an unlawful decision was made.

We have ultimately been persuaded that the interests of justice require that the appellant be reinstated to his former position or to an equivalent position and we will make an order accordingly. It follows that the first respondent’s decision of 17 November 2000, to dismiss the appellant, will be quashed."(underlining is my emphasis).

54. It can be discerned from the last paragraph quoted above that the Supreme Court was implying that the relevant test on reinstatement is whether plaintiff or applicant has persuaded the Court that the "interest of justice require the applicant be reinstated to his former position". Although the Supreme Court did not refer to O 16 r 1(2), "the interest of justice" has its genesis in O 16 r 1(2). The word "just" in r 1 (2) is synonymous with the phrase "the interest of justice". Therefore, the interest of justice accords, in part, with the twin test spelt out in O16 r 1(2). I say part only because under r 1 (2), the Court will grant an injunction not only if it considers it is "just" but also, if it considers it is "convenient" to grant the injunction. An order for reinstatement of course is in the nature of a mandatory injunction. Therefore, the complete test is: Having regard to the primary relief claimed, the nature of the persons and bodies against whom relief may be granted by way of such an order and all the circumstances of the case, it would be appropriate, just and convenient for the injunction to be granted on an application for judicial review. It is not only that mandatory injunction or order for reinstatement must be "just" or "in the interest of justice" but also, it must be the only appropriate and administratively "convenient" remedy.

55. The Constitution, PSM Act, the Prime Minister and National Executive Council Act 2002 or any other statute do not prescribe reinstatement as a remedy for wrongful dismissal of a public official. It is a remedy available at common law and equity and determined in accordance with the principles of common law and equity which are adopted and applied as part of the underlying law and as modified by case law in this jurisdiction. Reinstatement of course is equivalent to specific performance of a contract of employment for personal services at common law. An order for specific performance or reinstatement is in the nature of a mandatory injunction. The mandatory injunction compels the employer to re-employ or reinstate the dismissed employee to complete the balance of his or her contract: Lumley v Wagner [1843-60] ALL ER Rep.368, Hill v C. A. Parsons & Company Ltd [1971] 3 ALL ER 1345 at 1350, Pakenham Upper Fruit Company v Crosby [1924] HCA 55; (1925) 35 CLR 386, Burns Philp Trust Company Pty Ltd v Kwikasair Freighters Ltd [1964] NSWR 63. see Robinson v National Airline Commission [1983] PNGLR 476 for a discussion of some of these cases. At common law, the long held principle developed in the 19th century in England that specific performance or a mandatory injunction will not be issued in respect of a contract of employment for personal service was modified in later years to say that the rule is not inflexible. In appropriate cases, the Court will order specific performance in special circumstances: for example Hill v CA Parsons & Company Ltd, supra, per Lord Denning at p 1350. The case of Sulaiman v PNG University of Technology (1987) N610 relied upon by Mr Kandi for the respondents and many other National Court decisions adopt the earlier principle without taking into account changes in the case law on that principle.

56. The case authorities, both common law cases and our own cases show that whether an employee is reinstated depends on a proper consideration and application of several important principles and associated factors, which in my view have direct correlation to the twin-test in O 16 r 1 (2). The first is that in a case where the relationship between the employer and the employee prior to and subsequent to the dismissal has completely or seriously broken down to such an extent that mutual trust required of each other no longer exists or that their relationship has become noxious to either one of them, mandatory injunction will not be granted to compel either the master or the servant or both to continue a personal relationship: Howes v Gosford Shire Council (1962) NS.W.R. 58 applied in Robinson v National Airline Commission, supra. Also see Williamson & Robinson & Company Ltd v Heve [1898] 2 CLR 451 at 452, Aileen Bure & 4 others v Robert Kapo (2005) N2902, Robert Karava v Kevin Byrne [1999] PNGLR 39, Robinson v National Airlines Commission [1983] PNGLR 476; Christopher Appa v Peter Wama & Department of Western Highlands (1992) N1083, Peter Bon v Mark Nakgai (2001) N2123,; Ramaram v NBC (1990) N1110, Steamships Trading Company v Joel [1991] PNGLR 133, Gideon Barereba v Margaret Elias (2000) N2197, Mark Ankama v PNG ELCOM (2002) N2303, Mark Ankama v PNG ELCOM (2002) N2362.

57. The second principle follows the first. Damages, rather than specific performance or mandatory injunction or reinstatement, is usually the appropriate remedy for breach of contract for personal services. There are many cases decided in PNG which apply this principle: Robinson v National Airline Commission, supra; Wijekoon v UPNG (1989) N715; National Airline Employees Association of Papua New Guinea v National Airline Commission Trading as Air Niugini [1992] PNGLR 291, Sulaiman v PNG UNITECH, supra; Luke Benjamin Supro v Gerea Aopi [1997] PNGLR 353, Pama Anio v Aho Baliki (2002) N2267, John Kombati v Fua Singin (2004) N2691; Ereman Ragi v Joseph Maingu (1994) SC459.

58. The third principle is that reinstatement or mandatory injunction particularly in a judicial review matter is an equitable relief and its grant must be consistent with or in furtherance of principles of equity. Of a number of cardinal principles of equity is the principle that "he who seeks equity must come with clean hands": Tau Mavaru Kamuta v David Sode & IRC (2006) N3067.

59. The conduct of parties and in particular the conduct of the applicant which led to his dismissal is relevant in determining if he has come to the Court with clean hands. I say "in particular the applicant" because as the person seeking the relief, he carries the burden of proof of his claim for judicial discretionary relief. Conduct means the whole of the applicant’s conduct insofar as they relate to and are relevant to the public position he occupies and the efficient performance of his duties, work attitude or work ethics.

60. The fourth principle is that the public interest in the good administration of the office of the Chief Secretary must justify the plaintff’s reinstatement. When the Court is asked to reinstate a public official who is suspended or dismissed from office for disciplinary reasons, either on an interim basis or permanent basis, it is important to consider the public interest. I enunciated this principle in Thaddeus Kambanei v NEC (2006) N3064. Mr Kambanei was suspended from duties as Secretary for Department of Finance. I found that he had established an arguable case that the NEC did not consult the PSC as required by s 193 1D of the Constitution and s 31D of PSM Act. I granted him leave to apply for judicial review. However I refused to grant an interim mandatory injunction reinstating or restoring him to office pending the determination of the substantive application for judicial review. I reproduce the pertinent part of the judgment:

"9. Counsel for both parties were unable to cite any PNG or overseas cases on the question of grant of mandatory injunction in a judicial review proceeding. In the time I have, I am unable to fully research the point. I am aware that interim injunctive orders have been issued in a few cases in our jurisdiction where a public official is challenging his dismissal on disciplinary grounds. In many cases, public officials have fought their case in court without the benefit of an interim order, a stay order or interim mandatory injunction, which restores him in office whilst he is fighting his case. Indeed the procedural scheme for judicial review under Order 16 is that upon grant of leave, the substantive application is expeditiously heard and determined, so that waiting time is minimized and the need for interim injunctive orders is removed.

"10. For this reason, the nine principles set out above which are generally applicable to ordinary actions in tort and contract should be tailored by the Court to suit the special nature and purpose of judicial review. The standard of scrutiny of an application for stay applying those nine (9) criteria or for any application for interim injunctive orders under O.16 r.3(8) should be much higher than in ordinary suits in law. In respect to application for a stay or interim injunctive orders in a public employment situation, the primary consideration which I would add as principle No. 10 to the nine principles set out above is this:

"10. As a general principle, in an application for interim injunction or interim mandatory injunction under Order 16 Rule 3(8), in a case of judicial review of a decision concerning suspension or removal of a public official on disciplinary grounds, a stay or an interim injunction or interim mandatory injunction should not be readily granted except in very exceptional cases where the public interest of the public employer in maintaining continuity of good administration of the office would be best served by the applicant’s restoration to office pending the hearing and determination of the substantive application for judicial review. The public interest in the good administration of public office is the paramount consideration. The private rights of the employee such as in protecting the applicant’s integrity and reputation is a relevant consideration but it is not an important consideration."

"11. In the present case, I have carefully considered all the submissions made by counsel on behalf of all the parties. I have weighed all the different considerations. It is my view that serious allegations of mismanagement in the government’s key department has been levelled against its departmental head. The existence of those allegations are not denied by the Plaintiff. The allegations have come to the attention of his appointing authority, the NEC. They were raised in Parliament circles. They were also raised with the PSC and the Minister for Public Service. Also the NEC has seriously taken offence of other actions of the Plaintiff as bringing into question the independence of the three arms of government. For this reason, the government has suspended him to facilitate investigations to be carried out and for charges to be laid against him. The government has appointed his deputy to act on the position in his absence. In these circumstances, it is not in the best interest of the government and the department itself for the plaintiff to be returned to his position. The department appears to be in the capable hands of his deputy and there is no clear evidence of chaos and disruptions in the department as a result of the change in heads.

"12. I do accept Mr Nii’s submission that his client has a good "arguable case" which I would say has a chance of success but that is not the only important consideration. This consideration must be balanced against other important consideration...

"13. Finally, the grant of interim injunctive relief is an equitable remedy and it is discretionary. In a case where serious allegations of financial mismanagement and abuse is made against senior managers within the department concerned, whilst they remain mere allegations, a court of equity and good conscience will not ignore those allegations and grant interim relief. Equity militates against grant of interim injunctive relief and insists that the applicant prove its substantive claim before the applicant requests appropriate relief.

14. For these reasons, I refuse the interim mandatory injunction sought."

61. Later in Paul Asakusa v Andrew Kumbakor (2006) N3257, the plaintiff was the Managing Director of the National Housing Corporation (NHC). He was dismissed for disciplinary reasons by the NEC. There was evidence that the Minister did not act on the recommendation of the board of NHC when he made a submission to NEC recommending dismissal. It was a mandatory requirement under the relevant statute that he must act on the recommendation of the NHC board. I distinguished that case from Thaddeus Kambanei’s case on the facts. I granted interim mandatory injunction restoring him to office. I said:

"20. The facts of this case are slightly different from Kambanei’s case in important aspects. Unlike in Kambanei’s case, a suitable career Senior Officer with NHC has not been identified by the NEC to fill in the temporary vacancy. Instead a non-career NHC senior officer has been brought in. There is no evidence before me that the affairs of NHC will be jeopardized if the applicant is allowed to remain in office. Finally, unlike Kambanei’s case where Mr Kambanei was a departmental head who was directly accountable to the NEC, the NHC is a public body corporate, whose corporate affairs are controlled by the Board. The Board has a direct and critical say on matters of appointment, suspension and dismissal of the Managing Director. When the Board’s involvement is wanting, the position of the Managing Director should not be easily interfered with. Public interest in the continuity in office of the Chief Executive Officer of a public corporation is better served by allowing the Chief Executive Officer to remain in office until his suspension or dismissal is properly done with the involvement of the controlling body of the Corporation, which in this case is the NHC Board, as provided for by statute. In such cases, the public interest in ensuring the business or commercial interest of the corporation is protected from all forms of undue interference is also an important consideration.

21. In my view, there must be a balance struck between three important and to some extent competing public interests – (1) public interest in ensuring that the good administration of the public office is maintained, (2) public interest in ensuring that the Chief Executive of a public, corporation is not removed from office without the say of the controlling body of the corporation, and (3) the public interest in ensuring that serious allegations of mismanagement of the corporation’s affairs are properly and fully investigated and dealt with by the appropriate authority."

62. The position occupied by the plaintiff in the present case is similar to Thadeus Kambanei and the principles in that case are applicable to the present case. In these two cases, although the principles on the importance of the public interest in the good administration of the public office were developed in the context of an application for interim injunctive relief, they are equally applicable to an application for injunction, whether mandatory or prohibitive.

63. The fifth principle is the fact that the position that the applicant once occupied is available or vacant at the time of trial to be filled by an acting or substantive appointment, is a relevant consideration but it is not an important consideration. The public interest in the good administration of the public office, the interest of administrative convenience and the interest of justice which are embodied in the four principles I have set out above are the paramount considerations. All those four principles are important principles to be considered in order to arrive at a fair and just determination of a dispute between a public employer and a public employee where the question of reinstatement of a dismissed employee arises. The Court must carefully consider and apply these principles to the circumstances of each case and determine whether reinstatement is appropriate, just and convenient in all the circumstances. The Court must always be mindful that in exercising its discretion, it does not overstep the limits imposed by the constitutional doctrine of separation of powers and unnecessarily interfere in matters which call for largely administrative, executive and legislative judgment and remedial actions.

Application of principles to present case.

64. Applying these principles to the facts of this case, whilst it is true that the NEC’s breach of prescribed procedures for revocation of appointment of the applicant as the Secretary for the department of Prime Minister and National Executive Council and Chief Secretary to government was quiet outright, it cannot be said with complete satisfaction that it was pre-planned, wanton, flagrant and repetitive. The decision to dismiss the plaintiff was a one-off decision made in haste and out of frustration and dissatisfaction over the plaintiff’s performance on the position. The NEC wanted to terminate his services quickly and decisively. NEC believed that it had every right to hire and fire its own appointee and its number one civil servant because the contract of employment it had executed with the plaintiff 12 months previously gave it the right to do so. The fact that after the event, the Minister for Public Service sought advice from the PSC in an effort to validate the NEC’s earlier decision shows that the actions taken were not deliberately calculated or intended to violate legal procedural requirements on revocation of appointment. The fact that the NEC has vehemently maintained the same position throughout these proceedings and before the Supreme Court in the Reference/Reservation that has been argued recently shows its belief all along that it acted correctly under law.

65. Apart from this wrong, there is no evidence of any other alleged impropriety and flagrant or wanton abuse of the applicant’s employment rights by the NEC. Indeed, this is not the first time that the NEC has revoked the plaintiff’s appointment to a top post in the public service. He has been previously appointed to a number of key positions in government public service including position of departmental head in a number of key departments and later those appointments have been revoked. The applicant had accepted those decisions and not challenged those decisions in Court. The government has then gone on to appoint him to new key positions in the public service. He had accepted those new positions and has served the State. There is no evidence to show that the NEC’s previous decisions to revoke his appointments and the present decision to revoke his appointment were motivated by ill-will or personal dislike of the plaintiff or engaged in a campaign of personal vendetta to rid him from the Public Service. It is not unreasonable to infer from this string of revocations of appointments and re-appointments that the plaintiff’s qualification and experience in the public service is respected and valued by the government. It is also not unreasonable to rule out the prospect of the NEC re-employing or re-deploying to another senior position in the public service after these proceedings are concluded.

66. The fact that the NEC and the government as a whole have taken steps to repeal the provisions in the Prime Minister and National Executive Council Act 2002 which establishes the position of Chief Secretary also shows that the government is concerned about the usefulness of retaining this position in the national public service. A decision to move for changes in the law can hardly have anything to do with matters personal to any one individual citizen.

67. The government’s uncompromising stance is that the plaintiff is just not the right man for the job of Chief Secretary. The same NEC chaired by the first defendant which appointed the plaintiff to this high office 12 months previously, with high expectations and with complete confidence in his ability and integrity, has seen and experienced his actual performance on the job and has judged his performance to be unsatisfactory and decided that it is not in the best interest of the government to retain his services for reasons which have now been disclosed to the Court. Who else can be a better judge of the plaintiff’s performance than the NEC itself. No reasonable tribunal can claim itself to be better placed to pass judgment on the performance of a departmental head and in particular a Chief Secretary to government than the NEC itself.

68. Some of the reasons for his dismissal summarized in paragraph 6 hereof are to do with neglect of or poor performance of normal functions and responsibilities that attach to the job of Chief Secretary and which contain no connotation of improprieties.

69. But there are also some conduct which impugn his professional standing and raise questions about his integrity. These include:-

(ii) Recent contradictory actions which have the potential of destabilizing and derailing many of government’s institutions and achievements. There are nine (9) such instances are listed: see par 7 – 11 of Ms Kiap’s affidavit.

(iii) The abrupt termination of the Finance Commission of Enquiry by the Prime Minister due to ill-advice given by the plaintiff. On the day the plaintiff was scheduled to appear before the Commission to give evidence, the enquiry was terminated: see par 12 of Ms Kiap’s affidavit.

(iv) Undermining NEC directions, particulars of which are set out in par 12(4) of Ms Kiaps affidavit.

(v) Defiance of directions issued by the National Planning Office, particulars of which are set out in pars 12(5) and 12(6) of Ms Kiap’s affidavit.

(xii) Creating division among Departmental Heads and Statutory Authorities, particulars of which are set out in par 12(8) of Ms Kiap’s affidavit."

70. The affidavit of the Prime Minister and Secretary Winnie Kiap which contain the reasons and material relied upon to support the decision have not been tested in Court by way of cross – examination to firmly establish their truth particularly in relation item (iii) above. But a Court of equity and good conscience cannot ignore the evidence. The evidence is uncontested. The evidence shows that the plaintiff’s professional standing in the eyes of his employer raises serious questions about his competency and integrity as a faithful and trustworthy servant of the government. The plaintiff’s actions in relation to the signing of instruments in relation to the Finance Department Commission of Inquiry is one that is particularly noteworthy. These evidence show that the plaintiff has not come with clean hands.

71. As a result of his conduct the NEC has lost faith in him as a person who is fit to occupy the high office of Chief Secretary. The employer-employee relationship between them has irretrievably broken down. It has become noxious for both of them. NEC has had enough of the plaintiff. The Prime Minister and the NEC has "Lost Confidence in Mr Lupari as the Chief Secretary to Government with powers to advice the Prime Minister": par 14 of Ms Kiap’s affidavit. The NEC believes that he will "cause more danger to the State and to the Prime Minister should he take office again": par 16 of Ms Kiap’s affidavit. In these circumstances, a Court of equity cannot force the NEC to reinstate him to his position.

72. The position as Chief Secretary is very important to the government in terms of implementing government programs through various departments. The Chief Secretary is directly responsible to NEC and all other departmental heads are accountable to him in the discharge of their functions. A harmonious and stable working relationship between the Chief Secretary and NEC and between the NEC and other departmental heads is vital to maintaining stability in government and efficient performance of functions by departmental heads in implementing government policies and projects. When the NEC has lost faith in its Chief Secretary’s competence, required performance levels, work ethics and to a certain extent professional integrity, equity demands that the issue of mandatory injunction by way of reinstatement or mandatory injunction or should not be granted. For to grant such relief will only lead to more instability in the public service and within the NEC. In the end the NEC suffers, the government suffers, the whole public service suffers and most importantly, the people, the recipients of government services suffer most. In these circumstances, it is not in the public interest in the good administration of the office of Chief Secretary to perpetuate this state of instability, distrust and resulting inefficiencies in the smooth running of government departments by reinstating the plaintiff.

73. I am mindful of the force in the submissions made by Mr Nii and particularly Mr Andrew for the PSC that this kind of decisions by NEC made without following the mandatory consultation process prescribed Constitution and PSM Act are too frequent and PSC’s constitutional powers and functions in the process of appointment and revocation of appointment of departmental heads and senior public servants have been eroded. The submit his Court should send a clear message that this should not continue by reinstating the plaintiff. There are many cases in which other departmental heads below the Chief Secretary have met the same fate at the hands of NEC and many have been given redress by the Court by way of reinstatement. I know from dealing with many cases which have challenged such decisions which have come before the Court and the PSC which has been a party in many of those cases has a real sense of grievance and the government should take heed of this concern. In my view however, each case must be decided on its own peculiar facts and special circumstances. The present case is the first case in which dismissal of the incumbent Chief Secretary has been fully tried in Court. The special and peculiar circumstances and the reasons founded on well established principles of law militate against reinstatement.

74. This does not mean to say that the plaintiff is completely without any remedy. The plaintiff has proven his case and has sustained a finding of breach of prescribed procedure on revocation of appointment. He should not go without a remedy. In my view, his remedy lies in damages.

75. But he has not sought damages in these proceedings. If the plaintiff had sought damages, then the procedure to follow is found in O 16 r9 (4). Notwithstanding his choice of remedy, it is open to him after this decision to seek leave to amend the present proceedings to include a claim for damages and proceed to litigate damages pursuant to r 9 (4). For this reason I will not terminate these proceedings but leave them on foot to continue on damages under O 16 r 9 (4), of course upon grant of leave to amend the proceedings to plead damages as a relief. Alternatively, it is open to him to commence fresh proceedings for damages by Writ or by Originating Summons and plead this judgment as a basis for summary determination on liability and seek damages.

76. The evidence is that the substantive position is still vacant and one Ms Margaret Elias is acting on the position. The position has been advertised but the recruitment process has been halted by order of this Court. Those orders will have to be discharged to pave the way for the appointment process to take its normal course according to law. This is an important and key position in the national public service and the position should not be left vacant for long.

Other grounds of review.

76. I have determined the ground of review pertaining to error of law. The reasoning above which apply to breach of prescribe procedure equally applies to the grounds of review on excess of power. The same reasons apply to the ground pertaining to breach of natural justice and breach of contract of employment. Even if these other grounds were dealt with separately, the reasoning, conclusions reached and the result of the application would be no different. The arguments under the Wednesbury principle of unreasonableness has no foundation in the grounds of review and is therefore dismissed.

Conclusion and Orders

77. For these reasons, I am satisfied that in all the circumstances, an order in the nature of certiorari should be granted quashing the NEC’s decision which was effected by the Head of State, set out in the plaintiff’s Notice of Motion. However an order for mandatory injunction or reinstatement is refused.

78. The effect of these two decisions is that there remains a vacancy in the position of Secretary for the department of the Prime Minister and National Executive Council and Chief Secretary to government which is currently being filled by Ms Margaret Elias on an acting basis. The interim orders issued on 4th August 2008 are discharged forthwith, to make way for the appointment process that has been halted to run its normal course according to law. The respondents shall pay the plaintiff’s cost of the proceedings.

79. The formal orders of the Court are:

1. The plaintiff’s application for judicial review is granted.
2. An order in the nature of certiorari is granted quashing the decision of the National Executive Council made on 28th April 2008 to advice the Head of State to revoke the plaintiff’s appointment as Secretary of the Department of Prime Minister and National Executive Council which was given effect to by the Head of State.
3. The plaintiff is given liberty to apply to amend these proceedings to plead damages as a relief and litigate the question of damages or alternatively to commence fresh proceedings by Writ of Summons or Originating Summons seeking damages.
4. The interim orders issued on 4th August 2008 are discharged forthwith.
5. The respondents pay the plaintiff’s costs of these proceedings.
6. The time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.
   

Ordered accordingly.

Harvey Nii & J Nalawaku Lawyers: Lawyer for the plaintiff
Sumasy Singin: Lawyer for the First Respondent
L Kandi Lawyers: Lawyer for the Second Respondent
Eremas Andrew: Lawyer for Public Service Commission