SC2451

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 01 OF 2022 (IECMS)

BETWEEN
NATIONAL EXECUTIVE COUNCIL
First Appellant

AND
THE ATTORNEY GENERAL as the nominal defendant for and on behalf of the Governor General and the Head of State pursuant to Section 3 of the Claims By and Against the State Act 1996
Second Appellant

AND
GILBERT TOROPO
Respondent

Waigani: Makail, Toliken & Polume-Kiele JJ
2023:   29th April & 30th August
JUDICIAL REVIEW APPEAL – Appeal against decision granting leave for judicial review – Application after grant of leave - Exclusive process and procedure under Order 16 of the National Court Rules – Service of process on State – Mode of service – Personal service – Whether service by email permissible – Claims By and Against The State Act, 1996 – Section 7 – Supreme Court Rules – Order 10 Rule 3 
LEGAL REPRESENTATION – Representation of the State and State Departments, authorities, and agencies – Solicitor General as principal advocate of State – Attorney-Generals Act, 1989 – Section 13(1)
PRACTICE & PROCEDURE – Grant of stay – Stay of decision to revoke appointment – Exercise of discretion – Balance of convenience – Prejudice and hardship – Proof of – National Court Rules – Order 16, rule 3(8) 

Cases Cited:
Peter Makeng v. Timbers (PNG) Limited (2008) N3317
Kalinoe v. Paul Paraka Lawyers (2014) SC1366
Innovest Ltd v. Patrick Pruaitch (2014) N5949
Application by Joseph Kintau (2011) SC1154
Willie Kili Goya v. The State [1991] PNGLR 170
Alex Timothy v. Hon Francis Marus (2014) SC1403
Martin Kenehe v Allan Jogioba (2008) N4025 
Niugini Mining v. Bumbandy (2005) SC804 
Summit Development Ltd v Byron Chan (2016) N6390
Albert Schram v. Jean Kekedo (2018) N7291
The State v. Zacchary Gelu & Manorburn Earthmoving Limited (2003) SC716
Hilary Singut v. The State (2008) SC910
State v Phillip Kapal [1987] PNGLR 302 
Simon Mali & Others v. The State (2002) SC690
Air Niugini Ltd v. Agnes Puri Unagi (2007) SC901
Niugini Mining Ltd v. Joe Bumbandy (2005) SC804

Counsel
Mr. T Tanuvasa with Mr. M Joe, for the Appellants
Mr. N Kopunye with Ms. M Worinu, for the Respondent

JUDGMENT 
30th August 2023

1.   BY THE COURT: This is an appeal against the whole of the decision of the National Court constituted by her Honour Emma Wurr, AJ given 31 December 2021 in proceedings OS (JR) 177 of 2021 (IECMS), Gilbert Toropo v. National Executive Council and the Attorney General as the nominal Defendant for and on behalf of the Governor General & Head of State pursuant to s 3 of the Claims By and Against the State Act 1996, whereby the trial judge granted the respondent’s application for leave for judicial review and stay of the revocation of the appointment and other ancillary orders.

2.     The Notice of Motion was moved pursuant to Order 10 of the Supreme Court Act 2012 seeking a review of the orders made by the primary judge, Wurr AJ on 31 December 2021.

3.    The appeal lies with leave. Leave was granted on 5 January 2022.

Background Facts

4.     The Appellants are agents, servants and or instrumentalities of the Independent State of Papua New Guinea (the “State”)

5.     On 21 December 2021, the Governor General acting on the advice of the National Executive Council (NEC) revoked the appointment of the respondent, Major General Gilbert Toropo as Commander of the Papua New Guinea Defence Force (published in National Gazette No. G 540 of 5 July 2018) and appointed Major General Mark Goina as Commander of the Papua New Guinea Defence Force for a period of four (4) years.

6.   On 29 December 2021, the respondent commenced proceedings in OS 177 of 2021 the Gilbert Toropo v. NEC & Attorney General seeking various declaratory and injunctive orders against the Respondents (now appellants) for judicial review of the said decision.

7.   On 31 December 2021, leave was granted by the Court in favour of the respondent, Ex parte. Further, the Court granted Interim Orders for a stay of the revocation of the appointment with costs.

8.   In this appeal, it is the Independent State of Papua New Guinea (“the State”) who is aggrieved by the decision and has raised 5 grounds of appeal for determination.

9.   Leave to appeal was granted on 5 January 2022 and a stay of the orders of 31 December 2021 was granted in OS (JR) 177 of 2021 (IECMS) – Gilbert Toropo v. NEC & Anor pending the determination of this appeal.

Judicial Review Proceedings
10.  The process of  judicial review  is well canvassed by Injia DCJ  (then) in Peter Makeng v. Timbers (PNG) Limited (2008) N3317. In his deliberations, his Honour, highlighted that the process is provided for under Order 16 of the National Court Rules which was approved by the Supreme Court in Kalinoe v. Paul Paraka Lawyers  (2014) SC1366. The process includes the following steps:

(1)	An Originating Summons is filed seeking only one relief, leave for judicial review of the subject decision which must be particularised - Rule 3(2)

(2)	The Originating Summons is filed together with a Statement and an affidavit verifying the facts relied on – Rule 3(2)(a) and (b).

(3)	 If leave is granted:

(i)	a notice of motion seeking judicial review must then be filed as required by Rule 5(1).

(ii)	 it shall be served as provided in Rule 5(2); and

(iii)	 the matter shall proceed to hearing in accordance with Rule 5(3)-(5).

11.     For this case, 16 Rule 3 (2) allows Mr. Gilbert Toropo to bring his proceedings before the Court to seek leave for judicial review which provides the basis for the Court to exercise its inherent power under s. 155 (4) of the Constitution to grant the interim relief sought, such as a stay or an injunction, before grant of leave which are discretionary remedies available to the Court: Innovest Ltd v. Patrick Pruaitch (2014) N5949,  in the exercise of its unfettered inherent discretionary jurisdiction can grant: Application by Joseph Kintau (2011) SC1154 and Willie Kili Goya v. The State [1991] PNGLR 170.

12.    In Innovest Ltd v. Patrick Pruaitch (2014) N5949, his Honour Gavara-Nanu also stated that:

“The inherent power of the Court is derived from the people (s. 158 (1) of the Constitution): Dr. Rose Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122. Thus, the exercise of that power by the Court to protect the primary rights of parties cannot be limited even by a statute”: Monomb Yamba v. Maits Geru (also known as Mas Geru) [1975] PNGLR 322; Johnny Pokaya Philp v. James Marape (2013) N5276; Avia Aihi v. The State (No.1) [1981] PNGLR 81 and Application by Jeffery Balakau [1998] PNGLR 437. 

13.    Further, in relation to the statement under Order 16 Rule 3(2)(a), Gavara-Nanu J observed in  Innovest Limited v Pruaitch (2014) N5949  that:
“The Statement in Support is a vital part of a judicial review application wherein the matters required under Order 16 r 3 (2) (a) should be strictly and clearly pleaded. These include particulars of the applicant, including the position which the applicant held at the time of the decision, the nature of the decision to be reviewed, the particulars of the decision maker and the date of the decision. The relief sought and the grounds for review should also be clearly pleaded: Paul Asakusa v. Andrew Kumbakor (supra). In that the nature of the particular relief sought should also be clearly pleaded, that is, whether it is an order in the nature of mandamus, prohibition, certiorari, or declaration.
Regarding the notice of motion, his Honour, Gavara-Nanu stated at [45] that it:
... should plead the decision to be reviewed and the jurisdictional basis of the Court to hear the application. The motion should also plead the relief sought as in an ordinary notice of motion. But the relief sought should include or cover all the relief sought in the Statement in Support.
Grounds of Appeal
14.     Five (5) grounds of appeal are raised but only four grounds of appeal are pursued. Ground 3 is abandoned.

15.     The Appellant appeals the whole of the decision of the primary trial judge and raises five (5) grounds. These are set out below: 

Ground 1 – The learned trial judge erred in law and in fact in the exercise of her discretion to grant leave for judicial review to the respondent for judicial review of the NEC decision of 15 December 2021 which amongst others revoked the respondent’s appointment as PNG Defence Force Commander and appointed Colonel Mark Goina as the Commander of the PNG Defence Force ex parte against established principles of law when:

(i)	The State was not formally informed pursuant to s 8 of the Claims By and Against the State Act 1996 (CBASA) prior to the hearing of the respondent’s application for leave for judicial review.

(ii)	The Secretary for Justice was not given notice of the application for leave for judicial review pursuant to Order 16 Rule 3 (3) of the National Court Rules (NCR).

(iii)	The Attorney General was not formerly served with the Court documents.

(iv)	The State as the overall authority responsible for the first and second appellants was not properly named as the party in the proceedings subject of this appeal.

Ground 2 – In her erroneous exercise of discretion, the trial judge failed to give proper consideration to the evidence of the respondent which did not disclose any compelling reasons which warranted the Court to exercise its discretion to proceed with the respondent’s application for leave for judicial review ex parte without the State being informed and heard in the leave application.

Ground 3 – In her erroneous exercise of discretion, the trial judge erred in law and in fact in dispensing with the requirements of Order 16 Rule 3 of the National Court Rules (NCR) to dispense with service requirements, pursuant to Order 1 Rule 7 of the NCR and proceed ex parte hearing of the respondent’s application for leave for judicial review when there was no relief sought in the Notice of Motion seeking dispensation of the requirements for service. This ground is abandoned.

 Ground 4 – The trial judge erred in law and in fact in the exercise of discretion in making an order that the grant of the leave for judicial review shall operate as a stay pursuant to Order 16 Rule 3 (8) of the NCR staying the NEC decision of 15 December 2021 wherein there was no real prejudice shown by the respondent that warranted a stay in the circumstances of the case.

Ground 5 – In her erroneous exercise of discretion, the trial judge erred in law and in fact in denying natural justice to the appellants by ordering the respondent to file and serve the substantive notice of motion for judicial review and copies of all documents filed so far by 20 January 2022 when:

(i)	The appellants and the State are entitled to be served such documents immediately prior to or after the grant of leave for judicial review.

(ii)	The application for leave and stay was heard ex parte; and

(iii)	It is in the interest of justice and the public interest that in the circumstances of the case, the State ought to be served immediately.

Orders sought.

The appeal be upheld.

All the orders made on 31 December 2021 in OS No. 177 of 2021 (IECMS) – Gilbert Toropo v NEC & The Attorney General as nominal defendant for and on behalf of the Governor General as the Head of State pursuant to s 3 of the Claims By and Against the State Act, 1996 are quashed.

The proceedings in the National Court, OS (JR) No. 177 of 2021 (IECMS) – Gilbert Toropo v. National Executive Council & The Attorney General as nominal defendant for and on behalf of the Governor General and Head of State pursuant to s 3 of the Claims By and Against the State Act, 1996 is listed for directions for hearing of the respondent’s application for leave for judicial review in the Judicial Review Track before another Judge.

Costs of the appeal be paid by the respondent.

Any further /other orders that the Court sees fit.

The principles relating to judicial review proceedings.
16.   The law and procedure on judicial review under Order 16 is settled: Peter Makeng v. Timbers (PNG) Limited (2008) N3117, Alex Timothy v. Hon Francis Marus (2014) SC1403 and Martin Kenehe v. Allan Jogioba (2008) N4025. 

17.    In Timothy v. Marus, the Court stated at [22-23]: 
“Order 16 has its own provisions for summary disposal of an application for leave for review or the substantive application for judicial review for reasons of want of prosecution, want of competence or for any other reason. The Court may summarily dispose of a proceeding on application by a party, of the Court's own motion or on referral by the Registrar: Order 16 Rule 13 (2). The application must be made by Notice of Motion: Order 16 Rule 13 (1). Clearly, there is no room for a party to invoke Order 4 Rule 36 or any other similar provision found elsewhere in the National Court Rules: Timothy v Marus. In that case, the Court at paragraphs 22-23 of the judgment stated:
“22. Additionally, Order 16 does contain its own provisions for summary disposal of an application for leave for review or the substantive application for judicial review for reasons of want of prosecution, want of competence or for any other reason. The Court may summarily dispose of a proceeding on application by a party, of the Court's own motion or on referral by the Registrar: Order 16 Rule 13 (2). The application must be made by Notice of Motion: Order 16 Rule 13 (1). Clearly, there is no room for a party to invoke Order 4 Rule 36 or any other similar provision found elsewhere in the National Court Rules”. 
18.    In the review before the Court, leave for judicial review had been granted. The substantive application for judicial review is pending hearing. If there are issues arising in the process, parties have recourse to the procedures under Order 16 Rule 13 of the NCR. Essentially, Judicial Review proceedings involve the review of quasi – judicial and administrative decisions under statute. Order 16 of the National Court Rules sets out the procedure and process of bringing such applications.  Judicial Review proceedings are commenced by an Originating Summons seeking leave to apply for judicial review. Amongst other documents, the Originating Summons is supported by a Statement filed under Rule 3(2) and an Affidavit verifying the Statement. The Statement contains the pleadings. It is mandatory that the Statement should plead concisely the following facts:

(i)	the name and description of the applicant,
(ii)	the description of the decision made the subject of the review,
(iii)	the particulars of the decision-maker.
(iv)	the statutory provision under which the decision is made or state the provisions alleged to have been breached,
(v)	a clear summary of the relevant facts; and
(vi)	the nature of relief sought, and the grounds relied on.

19.    Once leave is granted, an application for judicial review shall be made by Notice of Motion to the Court, (Order 16 Rule 5(1) of the National Court Rules) and served on all interested parties. The substantive Notice of Motion and Statement in Support and the Affidavit verifying the Statement filed by an applicant under Rule 3 (2) are vital and form the basis of judicial review proceeding.

Grounds 1 and 5 are considered as one ground as they both relate to notice of claim and service of the originating summons and supporting documents for judicial review.

20.   In the present case, whilst the respondent contends that notice of his claim, and originating summons and supporting documents were given to the Secretary for Justice by way of email, the appellants say that the mode of service of the notice is not one, prescribed by statute. S.7 of CBASA is pertinent to the question of mode of service.  It provides for “Service of process where [the] State is liable”.  Service of “all process in the suit” is effected by serving on the Departmental Head of the Department of justice matters; or the Solicitor General by either personal service or leaving the document at the office of the Departmental Head of justice matters, or the Solicitor General with the person apparently occupying the position of personal secretary between the hours of 7:45 am and 12:00 noon, or 1:00 pm and 4:06 pm or such other hours as may from time to time be declared by or under the Public Services (Management) Act, 1995 to be normal public service hours of duty, or any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act 1953.

21.  Adopting the view that the originating summons and supporting documents fall within the phrase “all process in the suit” used in s.7, the mode of service of the notice of claim and originating summons including supporting documents by personal service on the Departmental Head of the Department responsible for justice matters; or the Solicitor General is not optional, but mandatory and must be strictly observed.  Similarly, in their absence, service on the person apparently occupying the position of personal secretary to their respective offices is not optional, but mandatory.  

22.   Adopting this view may appear contrary to Order 6, Rule 12 (1) of the NCR which provides that “Where the service of any document is required or permitted in any proceedings and it is impracticable for any reason to serve the document or to serve the document in the manner required by or under any Act or by these Rules, the Court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of brining the document to the notice of the person to be served” and it is arguable that Order 6, Rule 12(1) confers power on the Court to dispense with or permits a waiver of the requirement of personal service under s.7 of the CBASA and order substituted mode of service because of the reference to the Act.  However, we consider that where a mode of service is prescribed by statute eg, s.7 of CBASA, any dispensation or waiver of the mode of service eg, personal service, can only be granted where the statute provides for it.  Otherwise, a power conferred on the Court to dispense or waive the requirement for personal service under Order 6, Rule 12(1) is ultra vires and inapplicable.   

23.  The notion that has led to the practice of service of Court processes by email, be it, a writ of summons, or an originating summons for leave to apply for judicial review under Order 16 of the NCR,  or a notice of motion and supporting affidavit for an urgent application for an interim order has gained momentum and has increasingly been adopted by legal practitioners and parties in the civil Courts of this jurisdiction in recent times because it is said to be a quick and inexpensive form of delivery of Court documents and communication between parties.  Consequently, the traditional method of personal service prescribed by the NCR is being the least preferred mode of service these days. In the case of actions brought against the State and State parties, as we have outlined above, such a practice is contrary to and in breach of the mode of service requirements provided by statute under s.7.    

24.  In the present case, without adopting the mode of service requirements under s.7, the primary judge relied on an earlier direction of the Court by another judge that service of the notice of claim and originating summons including supporting documents were served on the appellants including the Secretary for Justice by email, and proceeded to hear and upheld the application for leave for judicial review contrary to and in breach of the mandatory requirements of s.7 of the CBASA.  This is where the primary judge fell into error.

25.   In any event, as the respondent asserted that his lawyers had sent the court documents under cover letter dated 30 December 2021 to the email address of the Secretary for Department of Justice at SecretaryJustice@justice.gov.pg, the appellants denied holding and using this email address but did not take it up at the hearing because they did not attend.  Nonetheless, with email accounts, there must be further proof that it is owned and used by the account holder.  Here, we note that there was no further evidence adduced by the respondent and that was before the primary judge to verify if the purported email address was the official email address for the office of the Secretary for Justice or the Office of the Attorney General. Hence, in the absence of such evidence it was not open to the primary judge to conclude that the respondent had established that he had served of notice and court documents pertaining to the application for leave for judicial review on the Secretary for Justice and service on the Attorney General.  By proceeding on an erroneous finding on service, the primary judge erred. 

26.    Furthermore, s. 8 of the CBASA provides that where the State is a defendant in an application for leave to apply for judicial review, the Court shall not grant leave unless the State has been afforded an opportunity to be heard.  When the primary judge proceeded on the erroneous finding that the Secretary for Justice had been served the court documents pertaining to the application for leave for judicial review, it was prejudicial to the interests of the State as the appellants were denied an opportunity to be heard contrary to s.8 of the CBASA.  Consequently, the primary judge failed to accord the appellants natural justice to be heard.  This is a further error in the exercise of discretion by the primary judge.

27.   Even if the requirement under Order 16 Rule 13 (14) of the NCR were to apply, the primary judge is empowered to exercise discretion to allow the State a right to be heard to do justice where the substantive merits of the case warrants. A number of case authorities exist which state that the Rules of Court are not an end in them but a means to an end in all matters going before the Courts. It is a means to achieving a just resolution of the dispute between the parties. The rules are to be interpreted and applied with flexibility to do substantial justice: Niugini Mining v Bumbandy (2005) SC804, Summit Development Ltd v. Byron Chan (2016) N6390, and Albert Schram v Jean Kekedo (2018) N7291.

28.   In the present case, we find, with respect, the trial judge failed to exercise her discretion judicially to do justice in the circumstances, particularly where the State has now raised serious arguments on the service of the application, questioning the administrative decisions of the First and Second Appellants. This is because, the present case was a judicial review proceeding, and the respondent and the trial judge were obliged to give consideration to matters set out in both the Notice of Motion and the Statement filed under Order 16 Rule 3(2). 

29.  The Solicitor-General has the ostensible authority if not the actual instructions to represent the State in all matters before any of the Courts in Papua New Guinea. Under s.13 (1) of the Attorney- Generals Act, the Solicitor-General is by law primary advocate or lawyer for the State in all matters in any of the Courts in this country. Mr. Tanuvasa submits that the Solicitor-Generals acts on behalf of the State, (The State v. Zacchary Gelu & Manorburn Earthmoving Limited (2003) SC716, per Amet CJ, Kapi DCJ, and Los J)  however, his office was not served with the proceedings. It must be noted that the State is also not named as a party to the proceedings although, an interested party and should by right, be heard under s. 8 of the CBASA. Here, the Solicitor General is authorised to acts for the State in relation to any proceedings served on him without waiting for the Attorney-General’s instructions. As there is neither any provision in the Attorney-General Act nor the CBASA or any other legislation, positively and/or expressly prohibiting the Solicitor-General from acting on his own for the interest of the State or require him to act only on the specific instructions of the Attorney General: See Hilary Singut v. The State (2008) SC910, per Salika and Kandakasi JJ (as they then were) and Cannings J.

30.   Such authority is provided for under s.13 (1) of the Attorney- Generals Act which vests the Solicitor-General with the primary duties and responsibilities as an advocate for the State and s.13 (2) says in the discharge of his duties the Solicitor-General “shall accept” instructions from the Attorney-General. This provision does not say that the Solicitor-General shall seek instructions from the Attorney General and act only on his instructions. If a prohibition was imposed, it came about following the judgment in Gelu & Manorburn (supra).

31.  This case demonstrates a classical situation where a party of their own choosing elected not to name the State as a party to proceedings where servants, agents and instrumentalities of the State are involved in the decision-making-processes, the subject of dispute between parties. Whilst it is their right to identify a defendant to their proceedings, neglecting or electing to omit naming the State as a party to a proceeding seeking review of the decision of a public body such as the National Executive Council or a government agency or instrumentality, can be fatal to their cause of action in certain circumstances where notice of a claim is mandatory. The case before us is a classical demonstration of the kind of conflicts which might arise and the kind of adverse consequences that could follow if no notice is given to the Secretary for Justice as required under Order 16, rule 3(3) of the NCR. 

32.   In addition, there was no evidence of the urgency warranting a stay of the decision of 21 December 2021. Furthermore, the proceeding was not properly served on the State contrary to ss. 7 and 8 of the CBASA.  Consequently, we find that the trial judge fell into error when she failed to give proper consideration to the nature of the case and these matters before allowing the respondent to proceed ex parte on the hearing of the application for leave for judicial review.

Ground 2 raised grounds of error on the part of the trial judge to find that a stay was warranted in the case without giving reasonings for granting the application. 

33.   In this case, there is an order staying the execution of the decision of the first appellant revoking the appointment of the respondent as the commander of the PNG Defence Force and the appointment of Colonel Goina as the new Commander of the PNG Defence Force, pending the hearing of substantive judicial review application. The order was made pursuant to Order 16, rule 3(8) of the NCR.  Whilst we note that the respondent has filed an affidavit in these proceedings, the affidavit does not depose to him facing financial hardship as a result of the revocation of his appointment, and or having no financial means to support himself and his family without any form of employment. In fact, there is no evidence of financial hardships and or difficulties that would place the respondent in dire hardship warranting intervention by the Court for grant of stay of the revocation of appointment and re-deployment of the respondent.  In fact, he was being re-deployed elsewhere within the Public Service, a posting as the High Commissioner to New Zealand. Even if one’s interest was at stake, it was the incumbent to the post of Commander of the PNG Defence Force, whose interest warranted protection, but he was not named as a party and should be given an opportunity to be heard, an option still available to him, to make an application to be added as a party, should he so choose.
 
34.   Alternatively, it was submitted that there are no "special" or "exceptional circumstances" warranting a stay of the interim orders of the Court. The National Court decision of the State v. Phillip Kapal [1987] PNGLR 302 was relied upon wherein the learned trial judge adopted the test that an Applicant must show "special" or "exceptional circumstances" before a stay will be granted. It was contended that the Applicant had not deposed to any special or exceptional circumstances that warranted a grant of stay of the interim order of the National Court. The fact that the respondent is effectively removed from holding the position of Commander of the PNG Defence Force resulting in any loss of financial hardship, does not constitute a special or exceptional circumstance. Further, there is no evidence in the respondent’s affidavit demonstrating any prejudice and hardships faced by him, hence the balance of convenience did not warrant a grant of stay order. 

35.   Another observation, we make from this is that if the respondent alleges that there is a serious dispute as to the validity of his contract relied upon in the originating summons, pursuant to which the stay order was obtained, he has not named the Public Service Commission and or the Minister for Personnel Management as parties to the proceedings. It is not enough to allege that his contract is still valid and therefore it was appropriate to obtain a stay of execution in the form of injunctive order to maintain the status quo. Against that is the decision to have him re-deployed elsewhere within the Public Service, a posting as the High Commissioner to New Zealand, hence the question of prejudice and hardship as a result of loss of employment was adequately addressed by the State. 

36.    The learned trial judge did not consider these matters we have pointed out when finding that the respondent will suffer prejudice or hardships, thus warranting a grant of stay to maintain the status quo. We find that the trial judge had made orders without proper legal basis, therefore erred in granting orders for stay of the decision to revoke the appointment of the respondent as Commander of the PNG Defence Force.

Conclusion
37.	In the end we uphold all grounds of appeal, allow the appeal and grant the reliefs sought.
What orders should the Court make?
38.	In summary the Court has found each of the grounds of the appeal have been made out by the appellants and have merit. Accordingly, each of the grounds are upheld and consequently the appeal is upheld in its entirety. The final terms of the order of the Court then are:

(i)	The appeal is upheld.

(ii)	The judgment and orders of her Honour Wurr AJ handed down on 31 December 2021 in proceedings OS (JR) 177 of 2021 – Gilbert Toropo v The National Executive Council & the Attorney General under s. 3 of the Claims By and Against The State Act 1996 is quashed.

(iii)	The proceeding is remitted to the National Court to be listed in Judicial Review Track for hearing of the leave application. 

(iv)	The respondent shall pay the appellants’ costs of the appeal, to be taxed, if not agreed.

(v)	Time for entry of the order be abridged to the time of settlement by the Registrar, which shall take place forthwith.
_________________________________________________________
Solicitor General: Lawyers for the Appellants
Kopunye Lawyers: Lawyers for the Respondent