Luma v Kali [2014] PGSC 46; SC1401 (14 November 2014)

SC1401

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 14 OF 2014

BETWEEN

JOEL LUMA
Appellant

AND

JOHN KALI, OBE,
SECRETARY FOR DEPARTMENT OF PERSONNEL MANAGEMENT
First Respondent

AND

THE NATIONAL EXECUTIVE COUNCIL
Second Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Mogish, Yagi & Makail, JJ
2014: 01st July & 14th November

SUPREME COURT APPEAL – Appeal from refusal of leave for judicial review – Revocation of appointment – Departmental Head – Whether judicial review available – Whether remedy lies in damages – Contract of employment – Public Law rights and Private Law rights – Constitution – s. 193 (1C) & (1D) – Public Services (Management) Act, 1995 – s. 31 C & D.

Cases cited:
Papua New Guinea cases

Joseph Klapat v. NEC & Ors (2014) N5536
Isaac Lupari v. Sir Michael Somare & Ors (2008) N3476
Mision Asiki v. Manasupe Zurenuoc & Ors (2005) SC797
Isaac Lupari v. Sir Michael Somare & Ors (2010) SC1070
Isaac Lupari v. Sir Michael Somare & Ors (2008) SC930
Matalau Nakikus v. Aquila Tubal & Ors (2012) N4845
Ereman Ragi v. Joseph Maingu (1994) SC459
Young Wadau v. PNG Harbours Board [1995] PNGLR 357
Rose Kekedo v. Burns Philip Limited [1988-89] PNGLR 122
Hon, Peter O'Neil & Ors v. Joseph Klapat & PSC (2014) SC1385
Ron Napitalai v. Caspar Wallace (2010) SC1016
Francis Damem v. Mark Mapakai as Minister for Justice & Ors (2004) N2730 Thadeus Kambanei v. The National Executive Council & 5 Ors (2004) N3065

Overseas cases

SZQBN v. Minister for Immigration and Citizenship (2013) 297 FCR 297

Counsel:

Mr R. Mannrai, for the Appellant
Mr W. Mapiso, for the Respondents

JUDGMENT

14th November, 2014

1. BY THE COURT: This is an appeal against the decision of the National Court constituted by Gavara-Nanu J where his Honour refused the appellant's application for leave for judicial review of the decision of the second respondent the National Executive Council ("NEC") to revoke the appointment of the appellant as Departmental Head of the Department of Works and Implementation. His Honour held that as the appellant was employed on a contract of employment, his remedy was in damages for breach of contract.

Background Facts

2. The appellant was the Secretary for the Department of Works and Implementation. He signed a contract of employment with the State which is a standard contract used by the State to employ Departmental Heads with variation according to the circumstances of each Departmental Head.

3. He was first suspended from duty by the Minister for Works and Implementation Hon. Francis Awesa on allegations of incompetency, nepotism, fraud and insubordination. That suspension was lifted after the first respondent intervened. He was suspended for the second time by the first respondent and on 12th November 2013, the NEC revoked his appointment and appointed Mr David Wereh as acting Secretary.

4. He alleged that the procedure for suspension and revocation of appointment under s. 193 (1C) and (1D) of the Constitution and s. 31C and D of the Public Services (Management) Act, 1995 ("PSM Act") were not followed and that the Minister had no power to suspend him. As a consequence, the decision to revoke his appointment was flawed, should be quashed and he be reinstated.

Grounds of Appeal

5. A grant of leave is discretionary. The prerequisites of leave are standing of the applicant, whether there has been delay and if so, an explanation for the delay, exhaustion of alternative remedies and arguable case.

6. The appeal does not question his Honour's findings on the questions of standing of the appellant, delay and exhaustion of alternative remedies. It questions his Honour's findings on an arguable case and damages being the appropriate remedy for the appellant.

Submissions of Parties

7. As to the question of arguable case, Mr Mannrai of counsel for the appellant submitted that there was evidence to establish that the Minister for Works and Implementation did not follow the prescribed procedure under s. 193(1C) and (1D) of the Constitution and s. 31C and D of the PSM Act to recommend the suspension and revocation of the appointment of the appellant.

8. He submitted that the procedure for suspension of a Departmental Head has been judicially considered in a number of cases, one of which was Joseph Klapat v. NEC & Ors (2014) N5536, and for revocation was Isaac Lupari v. Sir Michael Somare & Ors (2008) N3476 and his Honour erred when he held that there was no arguable case.

9. As to the second question, while Mr Mannrai conceded that the appellant was employed on a contract of employment, he submitted that the finding that the appellant's remedy was in damages for breach of contract was wrong. This is because in an application for leave, the question of remedy is irrelevant. His Honour misapplied the law when he held that as the appellant was employed on a contract of employment, he should sue for breach of contract and claim damages, and refused leave.

10. Further, counsel submitted that the Court has discretion to award damages but only after the grounds of review are proven, that the subject decision or act has been found unlawful and the application for judicial review is upheld. The type of remedy is discretionary.

11. The common remedies are certiorari, declaration, mandatory injunction or reinstatement and damages. It is a matter for the Court to decide whether to order reinstatement or award damages. Counsel relied on Mision Asiki v. Manasupe Zurenuoc & Ors (2005) SC797; Isaac Lupari v. Sir Michael Somare & Ors (2010) SC1070 and Joseph Klapat's case (supra) to support these submissions.

12. Mr Mapiso of counsel for the respondents submitted that the appeal is dependent on the question of whether the appellant's remedy was in damages. If the Court were to find that the conclusion reached by the primary judge was correct, we must dismiss the appeal and it would not be necessary to consider the question of arguable case. He made no submissions on the second question.

13. Counsel urged us to follow the Supreme Court decision in Isaac Lupari v. Sir Michael Somare & Ors (2008) SC930. He submitted that this decision settled the issue under consideration. There, the Supreme Court comprising of Salika DCJ, Sakora, Kandakasi, Batari and Gabi JJ held that where a Departmental Head is employed on a contract of employment and is terminated, his or her right to seek redress falls within the domain of private law and can claim damages for breach of contract.

14. Mr Mapiso submitted the decision was by a five-man Supreme Court bench, is good law, persuasive and this Court should follow it.

Consideration of Appeal

15. We address the second issue first. The parties' submissions differ in relation to the judicial pronouncement of the question under consideration in Isaac Lupari v. Sir Michael Somare & Ors (2008) SC930. The appellant argued that the question of damages being an appropriate remedy has not been judicially settled by the Supreme Court in that case. The respondents contended otherwise.

16. But there is no question that the primary judge followed the Supreme Court decision in Isaac Lupari v. Sir Michael Somare & Ors (2008) SC930 and the decision by Hartshorn J in Matalau Nakikus v. Aquila Tubal & Ors (2012) N4845 and held that the appellant's remedy was in damages for breach of contract, and refused leave. We will refer to this decision as Lupari Case No. 1.
17. In our view the differing views expressed by the parties raise this fundamental question; in a case where a contract employee is terminated, what is the appropriate remedy? Is it judicial review or is it damages for breach of contract?

18. The question can be resolved by going back to the decision in Lupari Case No. 1. That was a case where Injia DCJ (as he then was) referred four questions to the Supreme Court on the interpretation and application of s. 193(1C) and (1D) of the Constitution, s. 31C and D of the PSM Act and the conflicting views expressed by the National Court in relation to whether a terminated Departmental Head who is on a contract of employment can seek judicial review of a decision to revoke his appointment.

19. From our reading of the decision, it is clear that the Supreme Court declined to answer the questions because it was of the view that they were not constitutional questions which would require the Supreme Court to give an opinion.

20. As to the specific question of "conflicting" decisions of the National Court on the question of whether a terminated Departmental Head employed on a contract of employment can seek judicial review or his remedy lies in damages for breach of contract, the Supreme Court did not answer that question.

21. It simply re-affirmed the view held in Ereman Ragi v. Joseph Maingu (1994) SC459 and subsequently followed in Young Wadau v. PNG Harbours Board [1995] PNGLR 357. The Court's view in those two cases were that judicial review is only available where issues of public law are involved and a Departmental Head or other senior public servants employed on contract cannot have it both ways. If they are on contract, it is the terms of the contract that they must look to for their remedies and not by way of judicial review.

22. The Court further held that "[u]nless there is express provision for the application and continuation of a public servant's rights and privileges, including the public service disciplinary process and the right to judicial review of decision affecting them, they do not apply."

23. For these reasons, the Supreme Court referred the matter back to the National Court. It follows that the respondents' submission that the issue under consideration has been settled by that decision is factually incorrect. It remains to be settled and open to debate.

24. That being the case, we do not consider that in unlawful termination cases, there should be a rule that a contract employee must claim damages for breach of contract. We consider that each case must be considered on its own merits. For judicial review is not concerned with the decision but the decision making process: Rose Kekedo v. Burns Philip Limited [1988-89] PNGLR 122. The Court must consider a plaintiff's claim that the decision maker acted in excess of power, unreasonably or in breach of the principles of natural justice.

25. The action or decision must be of public importance and interest. It must be a subject of an exercise of power by a public official. It is for these reasons that where a terminated contract officer in the Public Service seeks judicial review, it is open to the Court at the leave stage to consider whether the case is one appropriate for judicial review.

26. The primary judge also followed the case of Matalau Nakikus (supra). That case is distinguishable on its facts because the plaintiff was not a Departmental Head. He was a Director – Corporate Affairs with the East New Britain Provincial Administration and employed under a contract of employment. Matters of disciple concerning the plaintiff were provided for in the National Public Service 1999 Category A (Terms and Conditions) and attached to and part of the contract of employment.

27. It was alleged that the plaintiff was a senior officer within the Provincial Administration and the Provincial Administrator had no power to discipline him. That power was vested in the Secretary of the Department of Personnel Management pursuant to the Terms and Conditions. The defendants alleged in their defence that the Provincial Administrator was delegated the power to discipline by the Secretary DPM under Part XIV of the PSM Act and was authorised to discipline the plaintiff.

28. His Honour Hartshorn J held that the Terms and Conditions referred to the plaintiff as a senior officer and he was exempted from Part XIV of the PSM Act. It effectively meant that the Provincial Administrator should have referred the plaintiff's disciplinary matter to the Secretary DPM and the Provincial Administrator had no authority to discipline him. His Honour further held the purported deliberation of the disciplinary matter by the Provincial Administrator was in breach of the Terms and Conditions and awarded damages.

29. In any event, that case was not a judicial review proceeding. The plaintiff elected to sue for damages for breach of contract by commencing a writ of summons proceeding. The question of whether judicial review or damages was appropriate remedy was not considered and for these reasons, that case does not assist the respondents.

30. In Ereman Ragi's case (supra), Mr Ragi was summarily terminated from employment as the Corporate Secretary of the Public Officers Superannuation Fund Board ("POSF Board"). He sought review of the decision in the National Court. The National Court upheld the review and the POSF appealed to the Supreme Court. The Supreme Court held that there was nothing to show that the claim was appropriate for judicial review, upheld the appeal and quashed the decision of the National Court.

31. It reached that conclusion because it found that the applicable legislation setting up the POSF Board made no provisions, amongst other things, for terms and conditions of employment of its staff and that a general provision that the POSF Board may employ staff was not sufficient to make employment of staff a matter of public law and entitle Mr Ragi to seek judicial review.

32. About a year later in September 1995, the Supreme Court delivered its decision in Young Wadau's case. That was a case where the appellant Mr Wadau was terminated by the PNG Harbours Board on disciplinary grounds. He applied for leave to review the decision to terminate him and it was refused. The National Court held that judicial review was not available.

33. He appealed to the Supreme Court. The Court followed the decision in Ereman Ragi's case (supra) and held that Mr Wadau's employment with Harbours Board was of a private law nature and not amendable to judicial review. The reason was that there was nothing to establish that Mr Wadau's employment as a lawyer placed him in the public domain. For example, there was no requirement that a member of the public could demand an account of Mr Wadau's work at the Harbours Board.

34. These cases arose from termination of senior officers employed by Boards of two State entities established under different respective legislations. One significant matter notable in each case is that, the officers' appointment and revocation of appointment were not governed by the Constitution or the PSM Act.

35. After the Supreme Court declined to answer the questions in Lupari Case No. 1, the matter returned to the National Court for further consideration. His Honour Injia DCJ (as he then was) considered the matter, maintained his earlier position that it was open to a Chief Secretary or a Departmental Head to seek judicial review, if aggrieved, by the decision to revoke his appointment, upheld the application for judicial review but refused to reinstate Mr Lupari to his former position as Chief Secretary to the Government. The full reasons of the Court can be found in Isaac Lupari v. Sir Michael Somare & Ors (2008) N3476.

36. Mr Lupari then appealed that decision to the Supreme Court. The Supreme Court comprising of Salika DCJ, Kandakasi, Batari, Gabi and Hartshorn JJ dismissed the appeal and affirmed his Honour's decision to refuse reinstatement of Mr Lupari. This decision is numbered as Isaac Lupari v. Sir Michael Somare & Ors (2010) SC1070. We shall refer to it as Lupari Case No. 2.

37. The Supreme Court held amongst other things that "[t]he National Court, upon upholding an application for judicial review, has discretion whether to grant a remedy and if it decides to grant a remedy, the type of remedy......... The Court must look at all of the circumstances of the case in deciding whether and if so, what remedy should be granted. This includes, in the private and public law context, a consideration of whether the employer employee relationship should continue."

38. In the National Court decision in Isaac Lupari (supra), his Honour Injia DCJ (as he then was) expressed the view that it was open to Mr Lupari to seek judicial review even though he was employed under a contract of employment. His Honour gave the following reasons for holding this view:

"44. 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." (Emphasis added).

39. We concur with his Honour. The view expressed by his Honour recognises the importance of the position and functions of a Departmental Head. To say that a Departmental Head is an ordinary civil servant and should claim damages for breach of contract would be an understatement. The type of functions that a Departmental Head has and discharges cannot be loosely equated with those of a master and servant relationship found in private employment setting. This is because he does not only hold office for his personal benefit but also in the public interest.

40. A Departmental Head's primary responsibility is to serve the interest of the State. He is responsible for the day to day running of the Department and answerable to the Minister. He does not run a private business so to speak. He is appointed and removed based on prescribed procedures under the Constitution and Act of Parliament. The fact that he executes a contract of employment detailing the terms and conditions of employment does not in our view, remove or reduce his status as a Departmental Head and a public official.

41. The respondents have placed a lot of emphasis in their submission on the contract of employment. They argued that it displaced the appellant's right to seek judicial review. In our view the contract of employment must not be separated from the appointment and revocation process under the Constitution and Act of Parliament. It must be considered together with them.

42. For if it were to be considered in that manner, it will be noted and appreciated that it is a document which sets out in a more detail, precise and coherent way, the terms and conditions of employment. An example is where the Constitution and Act of Parliament make no provision for remuneration of the Departmental Head. This is where, unless it is inconsistent with the Constitution and Act of Parliament; the contract of employment would apply.
43. The other reason is that the procedures for appointment and revocation of appointment are founded on the Constitution and statute (PSM Act) and this separates the Departmental Head from other officers whose employment are not founded on the Constitution and the PSM Act.

44. We agree the Supreme Court in Ereman Ragi and Young Wadau quiet correctly held that the officers' remedy was in damages for breach of contract because they were employed under a contract of employment and except for a general provision in their respective legislations on their employment, there were no specific provisions on appointment and revocation of their appointment such that their employment could be categorised as one falling within the domain of public law and susceptible to judicial review.

45. The significance of this is that the Constitution and the PSM Act provides a measure of protection to the Departmental Head from being terminated at will by the Minister or the NEC. Where the Minister or the NEC decides to terminate the Departmental Head, they must be held accountable for their decision and the only way is by way of judicial review.

46. In the case of appointment, suspension and revocation of appointment, the contract of employment supplements the procedure in s. 193(1A), (1C) & (1D) of the Constitution and s. 31A, C & D of the PSM Act by setting out details of the procedure for appointment, suspension and revocation of appointment respectively. This was pointed out by the Court in Joseph Klapat's case (supra) when it was addressing the issue of suspension in this way:

"35. I have no difficulty in following that approach but at the end of the day, it is the procedure on suspension which the Constitution, Statute and contract of employment seeks to prescribe and uphold, such that I find no difference if I were to consider them together. Taking this course further clarifies the procedure because the Constitution provides the overview of the procedure and at the same time implores an Act of Parliament to set out the procedure in a more detail manner. The procedure is set out in s. 31D of the Public Services (Management) Act, 1995. The contract of employment supplements the Constitution and Statute and sets in a more precise and coherent way, the procedure. For these reasons, I will consider these grounds of review together." (Emphasis added).

47. A succinct statement of this position was made by the Supreme Court in Hon, Peter O'Neil & Ors v. Joseph Klapat & PSC (2014) SC1385. The Supreme Court comprising of Salika DCJ, Sawong and Logan JJ delivered this decision on 29th August 2014, about two months after this appeal was heard. Given this we do acknowledge that we have not had the benefit of hearing parties on it.

48. Nonetheless, we consider that our consideration of it will not adversely prejudice them because they have ably canvassed the issue in their respective submissions and the decision reinforces the view that a Departmental Head is not only appointed for his personal benefit but in the public interest. The Supreme Court said at paragraph 7 of the judgment:

"It is to be remembered that the procedure for the suspension or dismissal of Departmental Heads and other high ranking public servants having direct reporting responsibilities to these in high political office is laid down not just for their personal benefit but in the public interest. Such public servants are expected to give in good faith and for the benefit of the Nation, frank, candid and fearless advice within their area of responsibility, irrespective of whether this serves the transient political interests of the Minister to whom they directly report. They are also expected faithfully to implement, to the best of their ability, the lawful policies of the government of the day and to offer advice about those policies. The prescribed procedures afford them a measure of protection from arbitrary Ministerial retaliation for doing their duty. We mention this because it underscores the seriousness of the departure from lawful public administration entailed in the conclusion reached by the primary judge."

49. The cases we have cited and quoted extensively from established that Departmental Heads are no ordinary civil servants such that they should be treated in the same way as those in a pure master and servant relationship. Each Departmental Head is charged with the duty to run the affairs of the Department he is in charge of and collectively, the affairs of the State (nation) and must be given the benefit of the due process of law where required. Where the Constitution and Statute guarantee their employment, the right to seek judicial review must not be stifled by the Minister and the NEC under the pretext of a claim that he has a right to sue for damages for breach of contract.

50. Of course that is not to say that the Court has no discretion to award damages. The case of Mision Asiki (supra) held that where an application for judicial review is upheld, the question of remedy still remains a matter of discretion to grant, and if so, the type of remedy. The common remedies are certiorari, declaration, mandatory injunction (reinstatement) and damages.

51. In a case where the plaintiff seeks reinstatement, the Court has discretion to grant or refuse it. The Mision Asiki's case (supra) was an appeal from an application for judicial review and reinforces the view that the Court has discretion to order reinstatement and/or damages if it upholds the application for judicial review. This century old principle of common law and equity which we have adopted as part of the Underlying Law under Schedule 2.2 of the Constitution and O. 16 of the National Court Rules has been applied by the Courts in our jurisdiction over the years in countless decisions.

52. There have been cases where the Court has refused reinstatement and instead awarded damages. The Lupari case is one example where both the National Court and Supreme Court have refused reinstatement. There have been cases where reinstatement has been ordered. Some examples are Mision Asiki and Joseph Klapat. An order for reinstatement or award of damages depends very much on the circumstances of each case.

53. Where serious breaches of substantive or procedural law have occurred or the breaches are flagrant and wilful, it will almost inevitably, or be as of right that the plaintiff will be granted an order for reinstatement. The Supreme Court pointed this out in Hon. Peter O'Neil's (sic) case (supra) after citing the recent judgment of the Full Court of the Federal Court of Australia in SZQBN v. Minister for Immigration and Citizenship (2013) 297 FCR 297.

54. Summarising the foregoing discussions, in a case where a terminated contract employee seeks leave for judicial review, the question of whether his remedy lies in judicial review or damages is a relevant consideration and threshold issue. However, each case must be considered on its own merits. We consider that the Court must be guided by the following basic principles; first, it must look at the process of appointment and revocation. If it is governed by the Constitution or statute, it is open to judicial review. If not, it is a matter of private law where the appropriate remedy is damages for breach of contract.

55. Secondly, the subject action or decision must be of public importance and interest. It must be a subject of an exercise of power. The third consideration is that if the employing agency is not created under a statute but is incorporated under the Companies Act, the termination is of a private law nature and the remedy of judicial review is not available to the aggrieved party: Ron Napitalai v. Caspar Wallace (2010) SC1016.

56. In this case we are satisfied that it was open to the primary judge to consider whether judicial review or damages for breach of contract was appropriate remedy. It is a threshold question in an application for leave for judicial review and his Honour was entitled to consider it.

57. However, for the reasons given, we find that this was not an appropriate case for the appellant to sue for damages for breach of contract. We are satisfied the primary judge's refusal of leave on the ground that the appellant's remedy was in damages for breach of contract was wrong. Notwithstanding this finding, the Court still has discretion to award damages if it upholds the application for judicial review: Mision Asiki's case (supra) and Isaac Lupari's case (supra).

58. But that is not all. The appellant must also establish that there is an arguable case. The respondents have led his Honour to believe that judicial review was not available to the appellant. We say this because from the perusal of the transcripts of the proceedings in the National Court, counsel for the respondents placed considerable emphasis on this point.

59. Counsel strenuously argued that as the appellant was employed under a contract of employment, he should claim damages for breach of contract. As a result, his Honour gave less consideration to the question of arguable case and held that there was no evidence to establish the appellant's claim that the revocation of his appointment was actuated by ill-will or made in bad faith.

60. A quick perusal of the appellant's affidavit filed in support of the application for leave reveals that the Minister brought the allegations of incompetency, nepotism, fraud and insubordination to the appellant's attention and gave him three days to respond. Before he could respond, the Minister served him a letter of suspension. It stated that he was suspended until the allegations were fully investigated by relevant authorities.

61. The Minister informed him in the same letter that Mr Wereh was to act as Secretary of the Department with immediate effect until the NEC made a decision. The appellant responded to the allegations. He out rightly denied the allegations but then the first respondent intervened and advised him that his suspension was not proper because the Minister had no power to suspend him and that he remain as Secretary until suspended by the NEC upon advice from the PSC.

62. He also gave a copy of his response to the Chairman of PSC. He then obtained a restraining order from the National Court against the respondents from suspending him. Despite the order, they suspended him again. This time it was the NEC who suspended him upon the advice of the PSC. Since his suspension, there has not been any investigation conducted by an Independent Investigation Committee, he has not been served disciplinary charges and responded to them. Without further notice, the NEC revoked his appointment.

63. The manner in which the Minister and the NEC suspended and revoked his appointment raised the suspicious that they acted with ill-will or in bad faith. The suspicion appeared to have some merit because the appellant deposed that there were people behind his sacking whom he has referred to as "informants". They were the ones who complained to the Minister about him.

64. One of them was a person named Hans Sarua. He is a cousin of the Minister of whom, the appellant had sacked. He was a staunch supporter of the Mendi Muruks Football Club and the person responsible for the controversial Yumi Yet Bridging Project and had intimate association with a Mr Tom Higgins in relation to a bridging firm called the Structural Bridging System (SBS), an off shoot of the Yumi Yet Project, which sponsored the Mendi Muruks in 2011 and 2012.

65. The appellant's evidence on these matters was uncontested and in our respectful opinion warranted further investigation by the Court. The procedures for suspension and revocation of appointment under s. 193(1C) and (1D) of the Constitution and s. 31C and D of the PSM Act respectively have been judicially considered in a number of cases.

66. Some of them are Francis Damem v. Mark Mapakai as Minister for Justice & Ors (2004) N2730; Thadeus Kambanei v. The National Executive Council & 5 Ors (2004) N3065; Isaac Lupari (supra) and Joseph Klapat (supra). These cases established that there is a two stage process for revoking an appointment of a Departmental Head. The first is suspension and the second is revocation. They are provided in s. 193(1C) and (1D) of the Constitution and s. 31C and D of the PSM Act respectively.

67. They also held that these procedures are mandatory and must be complied with by the relevant authorities including the Minister and the NEC. Failure to comply with them will render the decision to suspend and/or revoke the appointment unlawful and open to judicial scrutiny.
68. Having regard to these cases and the evidence before us, we are satisfied that it is arguable that the respondents did not follow the prescribed procedures on suspension and revocation and the decision to revoke the appellant's appointment was unlawful.

Conclusion

69. The Supreme Court has discretion under s. 16(c) and (d) of the Supreme Court Act to quash the decision and substitute it with an order for leave for judicial review. There is no issue with regards to the other prerequisites of leave and on the evidence before us, we are satisfied that the appellant has established there was a wrong finding on the question of arguable case. We would uphold the appeal, quash the decision of the National Court and in the exercise of our discretion under s. 16(c) and (d) (supra), reinstate the proceeding, grant leave and remit it to the National Court for hearing.

Order
70. The orders are:

1. The appeal is upheld.
   

2. The decision of the National Court of 24th March 2014 which refused leave for judicial review is quashed.

3. The proceeding in the National Court is reinstated.

4. Leave for judicial review is granted.

5. The matter is remitted to the National Court for directions hearing on the next available date.

6. The appellant shall file and serve a notice of motion in accordance with O. 16, r. 5 of the National Court Rules within seven days of this Order.

7. The respondents shall pay the costs of the appeal, to be taxed, if parties are unable to agree.
________________________________________________________________

Mannrai Lawyers: Lawyer for the Appellant
Guardian Legal Services: Lawyers for the Respondents