A note on Order 17, which lets the court decide a question of law or construction that will finally determine the parties' rights.
This application is made for the determination of a question of law or construction which will finally disposed the rights of the parties based on that determination. The facts have to be quite clear, questions of law only and not dispute but how to interpret the law. It may be done at the instance of a party in the proceedings or suo moto by the court; in the case of Samir Fahs v Hedjazi 1967 – 68 ALR SL 407 Harding J held that an application to dismiss action on point of law before trial invokes the inherent of the court. If a party wants to use this order it will be done so by way of a or notice of motion, supported by an rule two, it should be supported by an affidavit by virtue of Rossage v Rossage 1960.
In the case of Joseph Manneh V Jurpur Munah Cc 40/13 2013 A. Showers JA held that the provisions of Order 17 rule (1) are quite clear. The questions of law posed must be suitable for the determination of the action without a full trial. The learned justice therefore dismissed the application for disposition on point of law.
The requirements for employing the procedure under this order are for the following:
The must have given notice of intention to defend The question of law or construction is suitable determination without a full trial of the action Such determination will be final as to the entire cause or matter or any claim or issue therein The parties had an opportunity of being heard on the question of law or have consented to an order or judgment being made on such determination The principles with regards the suitable question of law or construction was laid down in the case of Korso Finance Establishment Anstalt v John Wedge (unrep Feb 15 1994 CA Transcript no. 94/387 An issue is “a disputed point of fact or law relied on by the way of claim or defence”
A question of construction is well capable of constituting an issue.
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If a question of construction will finally determine whether an important issue is suitable for determination under Order 17 and where it is a dominant feature of the case a court ought to proceed to so determine such issue.
to an application are not entitled to contend they should be allowed to hunt around for evidence or something that might turn up on discovery which could be relied upon to explain or modify the meaning of the relevant document. If there were material circumstances of which the Court should take account in construing the document, they must be taken to have been known and could only be known to the parties when the agreement was made. In the absence of such evidence the Court should not refrain from dealing with the application.
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