ARDACHES ESMERIAN ν. THE OTTOMAN BANK. (V13) 1 CLR 93 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 (V13) 1 CLR 93 1928 March 21 [BELCHER, C.J., DICKINSON, J., FUAD, J.] ARDACHES ESMERIAN v. THE OTTOMAN BANK. CONTRACT OF SERVICE-WRONGFUL DISMISSAL-DAMAGES-DEPENDANT BANK-A STATE BANK-ORDERED BY TURKISH GOVERNMENT TO DISMISS PLAINTIFF ON POLITICAL GROUNDS-JURISDICTION-ABUSE OF PROCESS-CYPRUS COURTS OF JUSTICE ORDER, 1927-RULES OF COURT-INHERENT JURISDICTION. This is an appeal by defendant Bank from the decision of the Divisional Court consisting of two Judges who were divided. Artemis and Stavrinakis for appellant Bank (defendant). Chrysafinis and Clerides for respondent (plaintiff). The facts are sufficiently disclosed in the judgment of the Court which runs as follows:- Judgment: We do not call upon the plaintiff (respondent). This is an appeal by defendant Bank from the decision of the Divisional Court, consisting of two Judges who were equally divided on opinion, which in the circumstances must be taken to have decided and ordered that defendant's application should be dismissed. The application was that the plaintiff's action should be dismissed on the following grounds or any of them, to wit: (
- a)that the Court has no jurisdiction, (
- b)that the institution of the action as above in Cyprus is frivolous, vexatious, and operates unjustly on the defendant, and (
- c)that the action is frivolous, vexatious and oppressive. The question before this Court as a Court of Appeal is: Has the appellant (applicant) established affirmatively the proposition that, on the facts before it, the Court ought not to have refused to grant the application? Plaintiff in the action itself is a Turkish subject, a former employe of the Ottoman Bank, and he is suing in respect of an alleged breach, in Turkey, of a contract to be performed in Turkey. The first question the Divisional Court had to decide was: Had the Court jurisdiction? The Court held it had jurisdiction. We are satisfied that the law applicable here is such as to establish the jurisdiction of the Courts of Cyprus to try this case beyond question. The next question is whether the Court ought in the present particular case to exercise that jurisdiction. The defendant Bank applied that the Court should not exercise its jurisdiction on the grounds it set forth in application. There is in England a particular right under the Supreme Court Rules to ask for the dismissal or stay of an action on the grounds that it is frivolous and vexatious and an abuse of the process of the Court. No doubt that right can be exercised in Cyprus under the Cyprus Courts of Justice Order, 1927, Rules of Court. But there is also an inherent jurisdiction in the English Courts to see that no abuse is made of their processes, and we hold the same inherent jurisdiction exists in the Courts of Cyprus, and, therefore, there is no necessity to base our right to entertain such an application on the Cyprus Rules of Court. We think that the Court below could have had recourse to that inherent jurisdiction and have stayed or dismissed this action. The main thing for us now to consider is whether the Court had material on which they could rightly stay or dismiss it. The burden of proving that such a state existed rests on the party making the application, i.e., defendants. Here we wish to say that on this point we do not desire to lay down any general rule as to the nature of the facts to be proved, before a Court is justified in making an order of stay or dismissal. Each case must be judged on its own merits. Now dealing with this case there are two matters on which we must be satisfied before such an application can be granted:- 1. That by not granting such an application an injustice will be done to the applicants (defendants); 2. That by granting it no injustice will be done to the plaintiff; the reason being that the Court must do justice to both parties. The judgment of Warrington, J., in Egbert v. Short, 2 Ch. Div., 1907, P. 212, sets out in the clearest language principles to be used as a guide in deciding whether such an application ought to be granted or not:-" The jurisdiction which I am asked to exercise is one which, as has been frequently said, is to be exercised by the Court with extreme caution; and, further, it is one which the Court ought not to exercise if, by so doing an injustice will be caused to the plaintiff, and the real question which I have to decide is whether by preventing what, in my judgment, is a grievous injustice to the defendant, I shall at the same time be causing an injustice to the plaintiff. If I should be doing so, then I think it would be my duty to refuse this application." Now the Bank has established that the trial of this case in Cyprus would be highly inconvenient to them. The issue "Was the Bank within its rights in dismissing the plaintiff" will necessitate the calling of witnesses from Constantinople where the main business of the Bank is carried on and where the plaintiff was engaged, not far from the place where the plaintiff is alleged to have behaved in a manner which caused the order to be made to the defendant Bank to dismiss the plaintiff, and where the plaintiff was in fact dismissed. But even allowing that it would be easier and cheaper for the Bank to defend an action on the present claim in Constantinople, that by no means proves that this case is frivolous and vexatious, though it does show that Cyprus is not most convenient place for the trial; and we think that we should have been prepared to allow the appeal had we been satisfied that no injustice would have been done to the plaintiff. It appears from the proceedings that, whether or not the Bank may have had lawful cause to dismiss the plaintiff, they purport to have done so solely owing to the action of the Turkish Government. A Turkish official called the Commissioner of Ministry of Finance, Mehmed Kemaluddin, ordered the Bank to dismiss the plaintiff from their staff. It is submitted by the Bank that as they are under agreement with the Government of Turkey, they are in effect the State Bank of Turkey and in consequence they had to obey the order given to them. It must be remembered that the acts which are the subject matter of the complaints of the Turkish Government against the plaintiff took place at a time of war and when the Bank premises at Rodosto were in the hands of the Greek Government. The plaintiff certainly is not persona grata with the Turkish Government. The plaintiff alleges that this is a case in which the circumstances appear to render it likely that the conduct of the action in the Turkish Courts would be attended with difficulty and possibly hardship. We think the burden lay on the Bank to show that under the law of Turkey the plaintiff was in a position, in these particular circumstances, to obtain his rights or a fair hearing against the Bank. We do not think the Bank has discharged that onus, and we agree with the judgment of Sertsios, J., that the application was not one that should have been granted in the circumstances. We dismiss the appeal with costs here and in the Divisional Court. Appeal dismissed. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο