Court upholds Bowada appeal

By CLARISSA MOI
THE Supreme Court has ruled in favour of an appeal filed by former National Housing Commission (NHC) acting managing director (MD) Elizabeth Bowada to review the appointment of Henry Mokono as managing director.
Bowada’s appeal was against the decision of the National Court where the primary judge refused to grant leave to review Mokono’s appointment as MD for NHC by then Housing and Urbanisation Minister Justin Tkatchenko.
It was alleged that the appointment had by-passed the procedures for such appointments.
A three-man bench consisting Justices Les Gavara-Nanu, Oagile Key Dingake and Paulus Mapa Dowa ruled last week that the primary judge had erred in refusing leave because he had no jurisdiction.
The primary judge refused leave for lack of standing and an arguable case.
“It follows that it is an error of law for a primary judge to consider and make judicial determinations on the merits of the case when deciding an application for leave for judicial review under the National Court rules (Order 16 Rule 3),” the court said.
“First, the decision regarding standing was against the evidence presented by the materials before the primary judge.
“Bowada was NHC acting managing director at all material times and had applied to be made substantive on the position.
“Surely, in those circumstances, Bowada’s rights and interests were affected directly by the actions of Tkatchenko, who according to Bowada, had no authority to appoint Mokono as the NHC managing director.”
The court added that Bowada had argued during her leave application that Mokono’s appointment by Tkatchenko was illegal because the proper authority to make the appointment was the NHC board which she argued was in existence.
“This argument had the support of a written legal opinion provided by the State solicitor.”
Bowada’s argument was opposed by the State which gave rise to an arguable case to be tried.