Counse. John Wasiraro for the Plaintiff
Mr. Primo Afmo Afeau for the Attorney General
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RULING
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(LUNGOLE-AWICH, J):
Today's hearing is of the plaintiff's notice of motion application
dated, 5.3.1999 and filed on 15.3.1999. The
application asks for 3
orders, the first two are to the same effect that the defendant
“complies (sic)” with
the settlement made in the course of pleading and
preparation to have substantive case file on 12.6.1999, heard in court.
The settlement agreement is between the Ministry of Education and BG
Construction dated 17.2.1999; the Ministry
is said to have agreed to
settle the case by payment of a sum of money to B.G. Construction. The
third order
is the usual further orders as the court may deem fit.
Learned Counsel Mr. J. Wasiraro, for the appliclaintiff has now
applied for adjournment because he received
service of two affidavits of
Ronidy Mani and Luciano Kii, in the notice of motion application, only
this morning,
and he would in any case like to cross-examine the
deponents. Learned Attorney General, P. Afeau, the defendant, takes
the
reasonable view that adjournment may be granted and that there may be
need for the applicant to cross-examine
the deponents. Attorney General
has, however, brought to attention of the Court that the application of
the plaintiff
raises two questions of law which can be decided on the
assumption that there was a settlement. He says that the defendant
in
this case is the Attorney General (not the Minister for Education), and
that the relief of specific performance
is not available against the
Crown, the State. If these questions of law are decided in favour of the
respondent/defendant
there would be no need to examine the details of
the facts, the Attorney General says. He asks the Court to proceed to
hear submissions on those points of law today. Mr. Wasiraro replied that
he has only learnt of those points of
law in court today when the
Attorney General raised them. Mr. Wasiraro would still ask for
adjournment so as
to prepare for submission on the points of law. I
shall add that he might also wish to put the points of law to his client
and to get instruction from the client.
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Whether for cross-examination on the two affidavits or for preparingaring for
submission on the points of law,
Mr. Wasiraro is entitled to
adjournment. He has not had sufficient notice of or about them. I shall
grant adjournment
and ask parties to obtain a suitable near date from
the Registrar, on which the application may be heard in Court.
Three i occur to my mind. I ask counsel to consider them and
address the court on them on the adjourned date.
The first is whether
the notice of motion is an interlocutory matter in the case commenced by
the writ of summons
on 12.6.1997; it seems to ask for final orders based
on agreement to settle, the agreement was not made order of Court
by
consent. Secondly whether points of law in an interlocutory application
can be taken in limine, as the Attorney General proposes to take
or is simply argued as part of the application. The third issue is
whether if the point in limine is taken in the substantive case
itself it will have the effect of resolving the case completely in view
of the
fact that specific performance of the contract, the subject of
the case, is only one of the reliefs asked for by the plaintiff?
If not
is there any point in having the points of law taken in limine
other than proceeding with the substantive case as a whole?
Costs of today will be in the cause.
p>
Delivered this Wednesday the 7th day April 1999
Lungole-Awich
Judge
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