High Court of Solomon Islands
Before: LUNGOLE-AWICH, J
Civil Case No. 145 of 1997
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Hearing Application: Fr21st May, 1999
Judgment: Tuesday 25th May, 1999
J Wasiraro for the Plaintiff
AG for for the Crown
JUDGMENT
This judgment is a veusual application. The appl applicant is the
plaintiff in this case, No. HCCC145 of 1997,
it is cited as "BG
Construction, Representing HHJB Joint Venture". The respondent, the
defendant is
the Attorney General, cited as "Attorney General,
Representing the Solomon Islands Government". The application
asks the
Court in effect to order the parties to carry out terms said to have
been agreed between the parties,
to settle the substantive case out of
Court. The two important terms of the settlement agreement dated
17.2.1999,
described as deed, are that the Ministry of Education and
Human Resources Development would pay $3,432,023.48 to BG Construction,
representing, HHJB Joint Venture, in turn BG Construction would withdraw
the case. The agreement to settle the
case out of Court came as a
surprise to the Attorney General; the Minister of Education signed the
settlement.
Attorney Generals' view is that he has good case in defence,
he shall win the court case, he does not need settlement out
of court.
He has opposed the application.
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The substantive case was brought by "BG Construction, Represepresenting HHJB
Joint Venture", against
the "Attorney General, Representing Solomon
Islands government", on averment that: There was a contract under
which
BG Construction was to construct certain buildings at Luasalemba
Provincial Secondary School in Temotu
Province for the Ministry of
Education. The Ministry paid $371,508.75 in advance and BG Construction
commenced
the building work. Up to $393,000 was paid further during the
work. Difficulties arose and work stopped. On 12.6.1997,
BG Construction
filed a case at the High Court, suing the Attorney General. BG
Construction claims breach of
the contract for which it asks to be paid
$3,751,756.25 and interests, further to be granted order compelling the
Ministry to proceed with the contract and to be granted order stopping
the Ministry from engaging any other contractor
to do the building work
now at standstill. Parties exchanged pleading papers in the usual way
and the case was
ready to be heard 9 months ago on 19.8.1998. According
to the affidavit of Mr. Billy Gizo for BG Construction, affidavit
on
which he was cross-examined, BG Construction entered direct negotiation
before the date of trial, with the
Minister of Education and the
Minister of Finance who at the time was the Prime Minister. Agreement to
settle
out of Court was reached and signed by the Minister of Education
and BG Construction. Attorney General was unaware. He
became aware when
he was asked to join BG Construction and present the agreement to Court
to ask the Court to
make the agreement order of court by consent of the
parties. Attorney General has refused and so BG Construction has made
this application to Court asking the Court in effect to order the
settlement agreement enforceable by law.
I described the application as unusual because it is not an application
to have the agreement made court
order as is usually the case, it is
application to proceed to enforce the agreement before it has been made
court
Judgment and order. I know not of any law which empowers the Court
to enforce agreement to settle out of Court when the
agreement had not
been first presented to Court and made Judgment order of the Court.
Negotiation between parties,
to settle their case out of court is
entered into without prejudice to the position parties will take in the
event that the negotiation fails and parties have to present their case
in Court. Similarly agreement to settle are entered
into without
prejudice, and for it to be enforceable, it must first be converted into
court judgment and order.
The judgment may then be enforced by execution
in accordance with Order 45 of the High Court (Civil Procedure) Rules,
1964. It seems to me that the most that an agreement to settle which has
not been converted to court order can
be used for, is to raise issues
that certain facts were admitted on the understanding that compromises
were being
made so as to settle the case out of court, and so the other
party should not be allowed to use the admissions as part
of his case.
Based on that reason alone the Court refuses the application of BG
Construction dated 15.3.1999
filed the same day, in which it asked in
effect that the agreement to settle case No. HCCC 145 of 1997 be
enforced.
The substantive case is to go to trial, the Registrar is to
list the case in the normal way for proof by evidence.
Certain alarming submissions were made by learned counsel Mr. J Wasiraro,
,
for BG Construction; the first
was that Attorney General is only a
nominal defendant and the second was that the Minister of Education
could
by-pass the Attorney General and engage any solicitor to act for
the Minister and settle the case.
The office of Attorney General is a creatf the Constitution in
Section 12. It was considered important enough
in the system of
government agreed on by the "People of Solomon Islands" (see preamble).
It was even
considered important enough to state it in the Constitution
that the Attorney General, "shall be the principal legal
adviser to the
Government". There are many important posts in government that are not
established by that
most important law of Solomon Islands, the
Constitution. Most of those are, by established practice not law, not
even by-passed in the course of government business. I do not think that
the office described by the Constitution as
the "principal legal adviser
to government," should be simply by-passed in the way suggested by Mr.
Wasiraro. It would be one step outside the rule of law so respected in
Solomon Islands. Fortunately the Minister who was
cross-examined in
Court did not propose such a course of action. In fact he came out as
being in agreement with
the position taken by the Attorney General. In
Court he doubted the advice given to him by employees and solicitors,
for BG Construction. He said that when they asked him to sign, he asked
whether the agreement was all right, they
said it was. In Court he was
no longer in support of the agreement.
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From the Constitution we descend down to the Crown Proceedings Angs Act in
Chapter 8 of the Laws of Solomon Islands.
Sections 15 and 16 provide
that:
15. (1) Except where otherwise expreexpressly provided by some other written
law, civil proceedings by or against
the Crown instituted under the
provisions of this Act shall be instituted by or against the Attorney
General.
(2) No proceedings instituted in accordance with thih this Part by or against
the Attorney General shall abate
or be affected by any change in the
person holding the office of Attorney General.
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16. All docu required to be served on t on the Crown for the purpose of
or in connection with any civil proceedings
by or against the Crown
shall be served upon the Attorney General or upon such other public
officer or Government
department as may by any written law be expressly
authorised to institute or defend the proceedings in question on behalf
of the Crown.
It is to bed that the Attorney General represents the Crown which
h
in Solomon Islands is the State, the People
of Solomon Islands. Minister
of the Crown, is an agent of the Crown, that is of the State and
therefore like
Attorney General, also represents the Crown, in matters
within his ministerial portfolio. When it comes to being sued or
suing
in Court as agent of the Crown, why should the Minister ignore the agent
of the Crown whose responsibility
is, by provisions of the law, to
represent the Crown in law matters? Of course governments the world over
do
engage the services of private legal practitioners, sometimes because
of lack of manpower or because of the specialised
skill and experience
of the private practitioner or because of costs if the case is to be
conducted overseas.
The instruction is always given by the Attorney
General to the private practitioner, and the practitioner acts by
authority of and as the representative of the Attorney General.
<
Outside statute, the Common Law adopted by Solomon Isla Islands gives
Attorney General extensive powers to represent
Public interest. He comes
out to represent the public where public interest is at stake and nobody
has or can
take it up in Court. Very often an individual is met with the
challenge in Court that he has no locus standi or no sufficient
interest to give him standing in the case to enable him to bring a case
in Court about public
interest or the right of the public. For example
in the English case of Hamphire CC -v- Shonleigh Nominees Ltd
[1970] 1 WLR 865, it was said that the City Council could not bring a
case seeking to enforce the right of the public to a highway through
a
piece of land without bringing in the Attorney General; the Council did
not have the standing, Attorney General
had, to protect public interest.
In Re S (Hospital Patient): Courts Jurisdiction [1995] 13 WLR 78,
it was suggested by court that if no one could bring up the case to stop
a helpless foreign patient from being
removed from treatment in hospital
in London, Attorney General could.
I think whenrney General does his work, he has several matters to
consider; some of them may be conflicting
at times. He has to take into
account government policy, public interest, justice and fairness,
integrity and
ethics. He uses his professional training and experience
to balance those considerations to come to a just decision. His
professional training also helps him to exclude his own personal
preference from consideration as it does help
many of us. Fortunately it
is not all the time that those considerations conflict. The private
legal practitioner
also has a duty to bear in mind justice and ethics.
It is certainly unethical for a practitioner to go behind the solicitor
on the other side and deal directly with the solicitor's client. In some
jurisdiction that is a subject of disciplinary
action.
Cost of application only, is to be paid by BAG Construction,
Representing HHJB Joint Venture, to the Attorney
General in any event. I
have said earlier that the substantive case must be listed for hearing
evidence in Court.
The Registrar is to proceed to list the case
accordingly.
Delivered this Tuesday the 25th day of May 1999
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Sam Lungole-Awich
Judge
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