NICOLA MARCO HJ. NICOLA AND ANOTHER ν. SAVA MARCO HJ. NICOLA. (V3) 1 CLR 65 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 (V3) 1 CLR 65 1894 December 8 [SMITH, C.J. AND MIDDLETON, J.] NICOLA MARCO HADJI NOCOLA AND ANOTHER AS HEIRS OF MARCO HADJI NICOLA DECEASED Plaintiffs, v. SAVA MARCO HADJI NICOLA Defendant. PRACTICE-INTERLOCUTORY ORDER MADE WITHOUT JURISDICTION UNAPPEALED AGAINST-AMENDMENT OF WRIT OF SUMMONS-"CLERICAL ERROR OR OMISSION"-CONSENT OF BOTH PARTIES-POWER OF APPEAL COURT-RULE 12 OF ORDER III. AND RULE 24 OF ORDER XXI. OF RULES OF COURT,
- The Supreme Court has power under Rule 24 of Order XXI. of the Rules of Court, 1886, to give judgment in accordance with a claim originally made by a writ of summons, notwithstanding that an interlocutory order has been made directing the substitution of a new claim for the one originally made and that no appeal has been made against such order. A Court has no power, without the consent of both parties, to amend the writ of summons, except as provided by the terms of Rule 12 of Order III. of the Rules of Court,
- APPEAL from the District Court of Famagusta. The action was brought to recover the sum of £12, part of a sum of £30 alleged to have been given by the deceased Marco Hadji Nicola to his son, the defendant, to be lent to one Mustafa Zambas on mortgage of certain property of the said Mustafa Zambas. It was asserted by the plaintiffs that the defendant had fraudulently procured the mortgage to be registered in his own name and not in that of his father. The plaintiffs were the brother and sister of the defendant and claimed the £12 as their shares in the inheritance of their father of which the £30 formed a part. The defendant alleged that the £30 was his own money which he had lent to Mustafa Zambas. Evidence was heard on both sides, the defendant, however, refusing to go into the box and be examined himself. The District Court came to the conclusion that the £30 in reality belonged to the deceased, and that defendant had fraudulently procured the mortgage to be registered in his own name, but, in delivering judgment, the President stated that they thought that the summons was wrong in form, on the ground that if the plaintiffs recovered the £12 from the defendant, the latter would be entitled to realise his mortgage against the estate of Mustafa, which mortgage the Court had found to be fraudulent. Upon this, Mr. Caremphylakis, the advocate for the plaintiffs, asked that the summons should be amended so that it should claim that the mortgage be corrected and so shew the deceased as mortgagee instead of the defendant. The Court made the order of amendment asked for, and gave judgment for the plaintiffs in accordance with the amended claim with costs. The defendant appealed. Chakalli, for the appellant, contended that the District Court had no power to make the amendment and give the judgment it had, as under Rule 12 of the Rules of Court of 1886, Order III., the Court had only power to amend the summons "for the purpose of correcting verbal errors and making good any omission therein," and that the amendment in question was practically a new claim. He also alleged that the amendment was made without the defendant's consent, that the defendant was unrepresented by an advocate and was practically not aware that such an order had been made, that in the first instance a wrong order was drawn up and that the order was not correctly drawn up till the appeal was made. He further argued that the decision of the District Court on the facts was against the weight of evidence. Pascal Constantinides, for the respondent, submitted that, as the defendant had not appealed against the order of the District Court within the time allowed by the Rules, the order must stand; that defendant must have consented to it if he made no objection; that if he had chosen he could have had the order correctly drawn up, and appealed against it in time. As regards the form of the judgment, it might have been given in accordance with the original claim in the writ, as plaintiffs stood in the same position as their deceased father, who might have sued for the return of the money by the defendant at any time. He further contended that the District Court were bound to come to the conclusion they had done on the facts in evidence before them. The Court expressed the opinion that the case had been rightly decided on the facts, but reserved the question as to the effect of the non-appeal by the defendant from the order of the District Court made at the time of its judgment, taking into consideration the question of consent on the part of the defendant to the order and the terms of Rule 24 of Order XXI. of the Rules of Court of
- Judgment: It is not necessary for us to make any observation as regards the facts of this case as we have already expressed our opinion that the finding of the District Court, that the defendant had fraudulently procured the mortgage to be registered in his own name with his father's money was one which was justified by the evidence. We have only to consider what is the effect of an interlocutory order in respect of which the time for appealing has elapsed upon the terms of a judgment which, in our opinion, should have been in conformity with the original claim in the writ of summons. As to this, we may say that we agree with the advocate for the respondent, that, as the object for which the money was given by his father to the defendant was, that a mortgage should be registered in the father's name, and that object was fraudulently changed by the defendant registering the mortgage in his own, the father could at once, on discovering the fraud, have brought his action against the defendant for the return of the money, and the plaintiffs now are in the same position in this respect as their father. We, therefore, think that there was no necessity for the District Court to make the amendment they did, even if they had the power to do so, which we feel bound to deny. The wording of Rule 12 of Order III. of the Rules of Court is, that "except where by these Rules is otherwise provided, "a writ of summons may be amended only for the purpose "of correcting verbal errors and making good any omission "therein, so that the writ may clearly shew on the face "of it what persons are parties to the action, in what "capacity they respectively prosecute and defend the "action, and what is the claim made in the action." As regards the proviso, it would appear to refer, so far as we are at present aware, to the cases where a plaintiff is substituted for one in whose name the action is brought or to the joining of any person as a party to the action. The only other amendments, therefore, that may be made in the writ are such as shall be necessary for the purpose of correcting "verbal errors and making good any omission therein," so that the writ may clearly shew on the face of it what is the claim in the action. In this case there was no verbal error corrected nor any omission made good such as would be necessary to shew what was the claim in the action. The claim in the writ was perfectly clear and certain, and shewed that the plaintiffs demanded a fixed sum from the defendant. The Court, however, in making the amendment have completely changed the form of the claim by making it appear that the plaintiffs instead of claiming the sum of £12, claimed the correction of the mortgage certificate so that the name of the mortgagee may appear therein as Marco Nicola instead of Sava Marco. We are, therefore, of opinion that this was an amendment which the Court were not empowered to make, unless it were made by and with the consent of the defendant. The order on the face of it does not shew that the defendant consented, nor is there anything on the file of proceedings to shew that he did so. He was unrepresented by any advocate, and the Court having at the conclusion of their judgment expressed an opinion that the claim should be one to amend the mortgage certificate, the plaintiffs' advocate asked for the amendment which the Court at once granted. It is quite clear that the defendant did not appeal from it within the time limited for such an appeal, and the order, therefore, now stands in the records of the Court below. It seemed, therefore, necessary for us to decide whether, supposing that the defendant's not appealing from the order may be construed as consent on his part to the terms of it, we were thereby debarred from entering a judgment in this Court in conformity with what we believe to be the rights of the plaintiffs. Now Rule 24 of Order XXI. says: "No interlocutory order from which there has been no "appeal shall operate so as to bar or prejudice the Court "by which any appeal is heard from giving such decision "upon the appeal as may seem just." The object of this rule was to prevent parties being prejudiced by their having omitted to appeal from an interlocutory order and that the whole case should be open on the merits before the Court of Appeal. In the present case, if we were bound by the interlocutory order of the District Court, we should be prevented from giving such a decision on the appeal as appears to us to be just. It appears there are other heirs of Marco Nicola who make no claim against the defendant in respect of this mortgage, and we think that the claim of the plaintiffs was well founded and one which the Court could give effect to in this action. As the defendant has appealed from the whole judgment, the whole case is open to us on appeal and we shall, therefore, hold that we are entitled to disregard the unappealed-against interlocutory order given by the District Court. We shall, therefore, order that the judgment of the District Court be set aside and that judgment be entered for the plaintiffs in the terms of their claim on the original writ. With regard to the costs, we think that the defendant should pay the plaintiffs' costs of this action and appeal, with the exception of the costs of obtaining the order amending the claim which was applied for by the plaintiffs. Appeal allowed. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο