A three-man Supreme Court bench today heard a substantive appeal filed by Autonomous Bougainville Government acting chief secretary Shadrach Himata.
The appeal filed by Himata, through lawyer Simon Dewe, seeks to challenge a National Court decision from August 11, 2021, in Buka that ordered the reinstatement of director, strategic planning and policy coordination Nancy Warkia, to the Bougainville Public Service, with all her entitlements be reimbursed.
The appeal that was heard by judges Thomas Anis, Iova Geita, and Teresa Berrigan was filed on grounds that the trial judge erred in law when he granted orders to stay the decision of Mr. Himata that dismissed Ms. Warkia from office, pending the determination of her appeal to the public service commission.
This was on grounds that there was no substantive proceeding heard prior to the court making those orders, when it also had the matter adjourned to the registry.
Mr. Dewe told the court that the refusal of leave, effectively disposed the judicial review proceeding, and also the rights of the plaintiff to apply for a judicial review.
He said the court’s intervention in issuing those interim orders, were outside the currency of a pending proceeding, and without judicial basis.
Ms. Warkia, through lawyer, Desmond Aigilo, submitted in response that although leave was refused, the court still had the power under section 155(4) of the constitution and Order 12, Rule 1 of the National Court Rules, hence given the circumstances prevailing at the time, the court had exercised its inherent powers to make those orders where it did on August 11, 2021.
Mr. Dewe, in response to Mr. Aigilo’s submission argued that the courts inherent powers under s.155(4) could not be relied on, as it could protect the primary right of a party, when being invoked.
“In this case, the primary right of the respondent, to apply for judicial review, was disposed of when leave for judicial review was not granted.
Also in response to the application of Order 12, Rule 1, Mr. Dewe, submitted that Order 16 Rule 3(8), specifically restricts the court from granting any interim relief’s prior to a grant of leave.
The court is expected to hand down a decision later this week.
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