NIKOLAOS P. LANITES ν. THE OTTOMAN TELEGRAPH (V10) 1 CLR 1

NIKOLAOS P. LANITES ν. THE OTTOMAN TELEGRAPH (V10) 1 CLR 1 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων (V10) 1 CLR 1 1910 July 6 [BERTRAM, ACTING C.J. AND HOLMES, ACTING J.] NIKOLAOS P. LANITES v. THE OTTOMAN TELEGRAPH. JURISDICTION-POWER OP CYPRUS COURTS TO TRY ACTION AGAINST OTTOMAN GOVERNMENT. AGENCY-GENERAL AUTHORITY OF MANAGER OF BUSINESS-COMMERCIAL ENTERPRISE CARRIED ON BY DEPARTMENT OF OTTOMAN GOVERNMENT. A Government cannot be compelled to plead in the Courts of Cyprus but the Courts of Cyprus have power to try any claim against a Government in which the Government voluntarily submits to the jurisdiction. A person appointed as manager of a commercial enterprise has an implied authority to enter into all transactions ordinarily incidental to the business of such an enterprise. Where a Government (not being the Government of Cyprus) appoints a person as manager of a commercial enterprise carried on by that Government in Cyprus, it must be taken to hold out that person as having the same general authority to enter into any transaction ordinarily incidental to the business of the enterprise as the manager of a similar enterprise in private hands, even though the transaction in question is not authorised by the Departmental regulations under which the enterprise is carried on. The Plaintiff at the request of the Manager of the Ottoman Telegraph (an enterprise carried on in Cyprus by the Ottoman Government) opened a deposit account for the dispatch of telegrams. Deposit accounts were not authorised by the Ottoman Telegraph Regulations, and, the Manager having been dismissed, the Ottoman Government repudiated responsibility for the balance of the account. HELD: that the Ottoman Government was responsible for the balance. This was an appeal on a point of law from the judgment of a Judge of a District Court sitting as Village Judge. The action was brought against "The Ottoman Telegraph, through "its Manager, Mehmed Zia Effendi," claiming £2 0s. 8cp., the balance of a sum deposited in its hands. It appeared from the evidence and from admissions made by the parties that the Ottoman Government carries on a commercial enterprise known as "The Ottoman Telegraph" which in this and other parts of the Levant competes with a similar enterprise known as the Eastern Telegraph Company. The Defendant was a merchant of Limassol, who had frequent occasions to send telegraphic messages. Observing this, the Manager of the Ottoman Telegraph approached the Plaintiff and made a special arrangement with him, which he assured the Plaintiff was in accordance with the regular course of business of the institution, by which messages might be sent along the Ottoman Telegraph lines instead of those of the Eastern Telegraph Company. As the Ottoman Telegraph had no office in Limassol it was arranged that the Plaintiff should pay a deposit, and that the telegrams should be forwarded by the Limassol office of the rival line, marked "Per Ottoman Telegraph," and that the Manager should periodically account to the Plaintiff for the deposit. The arrangement continued for some time, but the Plaintiff not finding it satisfactory discontinued it. At the time he did so there was a balance of the deposit still in his favour. He demanded this balance, but was told that the manager who made the arrangement with him had been dismissed-that he had left no record of the arrangement, and no money in the office; that in making the arrangement he acted without authority, and that "The Ottoman Telegraph" was accordingly not responsible. The Village Judge gave judgment for the Defendant holding that under the circumstances the Manager of the Ottoman Telegraph acted ultra vires in opening a deposit account with the Plaintiff, and that consequently the transaction must be regarded as a private transaction between the Plaintiff and the Manager for which the Ottoman Government was not responsible. The Plaintiff appealed. Neoptolemos Paschales for the Appellant. Saddreddin Effendi for the Respondent. The Court allowed the appeal. Judgment: In this case the Defendant is the Ottoman Government sued under the name of the Ottoman Telegraph. The Defendant has raised no objection to the jurisdiction. According to the English legal system a Government cannot be forced to plead in our Courts, though it is competent to it to do so, if it so desires. As however no objection has been raised in the case this is a question which it is not necessary to consider. The question we have to determine is whether it was within the general scope of the authority of the manager of a commercial enterprise of this nature to make arrangements for a deposit account with its customers. It was admitted that there is no actual express authority. But the question is whether such an authority must be implied from the circumstances. We will express no opinion now as to whether the question is to be tried by English or Ottoman Law, inasmuch as there seems nothing in Ottoman Law which covers the point. The question of the general authority to be implied in the manager of a business does not seem to have been considered by the Sheri jurists. In such a case therefore (following a principle previously sanctioned by this Court) it would be legitimate for us (even in applying Ottoman Law) to look for guidance to the general principles observed in England. It was argued by the Defendant that the dismissed manager was not a manager of a business, but a Government official, and that as such his authority was strictly limited by the regulations of his department. No regulations were produced at the trial but it was sworn by the present holder of the office that there is no regulation sanctioning deposit accounts, and that they are not recognised by his department and it was not suggested by the Plaintiff that there existed any regulation expressly sanctioning such accounts. We appreciate the argument that the authority of a Government official is limited by the departmental regulations, but we think that this argument applies with less force where the department is not an ordinary administrative department, but a department carrying on a commercial enterprise in competition with similar enterprises of the same kind, and with still less force where it is carrying on business in a country not subject to the administration of the Government to which it belongs, and which though part of the Ottoman Empire, is for administrative purposes outside it, and in which consequently the public is not presumed to have knowledge of any departmental regulations controlling its officials. In placing their manager in charge of a commercial enterprise in Cyprus, we think the Ottoman Government must be taken to hold him out to the world as being vested with the same general authority to enter into all transactions ordinarily incidental to the business of such an enterprise, as the manager of any similar enterprise in private hands, such as the Eastern Telegraph Company. We think that the public is entitled to deal with the Ottoman Telegraph on the assumption that the manager does possess this general authority. Further we think that under the circumstances of the case the transaction in question must be considered as one incidental to the business of such an enterprise and there is evidence that such transactions are in fact in accordance with the course of business of the Eastern Telegraph Company. Under the circumstances the appeal will be allowed with costs here and below. Appeal allowed. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο