On 24 October 2012, the
plaintiff obtained provisional sentence against the defendant.
On 25 October 2012, the
defendant entered appearance to defend.
On 7 November 2012, the
defendant filed its plea to the plaintiff's application.
On 31 May 2013, the
defendant applied for a Pre-Trial Conference date and it filed with the court
issues which it considered were relevant to the case. The Registrar of this
court referred the record to me for dealing.
On 2 August 2013, the
parties appeared before me for a pre-trial conference. It was on the mentioned
date that the plaintiff raised a procedural issue. It argued that the Pre-Trial
Conference was improperly before the court as, according to it, the defendant
had not complied with Rule 28 of the Rules of this Court.
The defendant argued to the
contrary.
The court and the parties
agreed that counsel for the parties' hand into the court written submissions in
support of their clients' respective cases. Those were duly handed in and I
went through them - each in turn. I remained alive to the fact that it is not
the duty of a Pre Trial Conference Judge – which I am in respect of this case -
to make decisions which go to the merits of the case. That duty remains with
the trial Judge. I remained satisfied that, in terms of Rule 182 of the Rules
of this Court, my mandate, as a Pre-Trial Conference Judge, is to assist the
parties who are before me to:-
(i) Crystalise as well as
define issues with which a trial judge will be seized when the matter goes for
trial; and, where possible, –
(ii) Persuade the parties
to reach a settlement.
I became aware, from my
reading of the parties' submissions, that what the plaintiff raised constitutes
a real issue which, together with others, must be referred to a trial judge
when the matter goes to trial. The point, in my view, can be raised as a
preliminary issue upon which the success, or otherwise, of the parties' case
remains anchored. The issue can, at best, be couched along the following
words:-
“Whether, or not, the
defendant violated Rule 28 of the Rules of this Court?”
The submissions which the
parties made are in the record. Those will assist the trial judge to make an
informed decision on the matter.
I, accordingly, direct
that, in addition to the mentioned issue as read together with the defendant's
issues which are already filed of record;
(i) The plaintiff submits
its issues to the court upon or before Friday, 18 October 2013; and
(ii) Both parties
attend a Pre-Trial Conference before me in my chambers at 10.00am of Tuesday 22
October 2013.
