GIORGHI HJ. JOMINI ν. TOFALI LOIZI. (V3) 1 CLR 181 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 181 1895 November 4 [SMITH, C.J. AND MIDDLETON, J.] GIORGHI HADJI JOMINI Plaintiffs, v. TOFALI LOIZI Defendant. PRACTICE-AMENDMENT OF WRIT OF SUMMONS-AMENDMENT OF STATEMENT OF MATTERS IN DISPUTE-VERBAL ERROR-RELIEF OR REMEDY CLAIMED-ORDER III., RULE 12-ORDER VIII., RULE 12-ORDER XIV., RULE 11, RULES OF COURT,
- The plaintiff in his writ of summons claimed an injunction to restrain the defendant from interfering with certain carob trees "situate in my field," and damages for the destruction of the grafts of 29 carob trees. Upon the settlement of the statement of the matters in dispute, the plaintiff alleged that the carob trees were situate within the boundaries of a field for which he had a kochan, while the defendant denied destroying the grafts of carob trees in the plaintiff's possession, "on land in the plaintiff's possession." The issue fixed by the Judge was: Plaintiff to prove that the defendant destroyed the grafts of the carob trees in plaintiff's field. Upon the hearing of the action the plaintiff admitted that the carob trees, the subject matter of the action, were not on land described within the boundaries of his kochan. HELD: That the words "situate in my field" having been intentionally inserted in the writ did not constitute a verbal error, which could be amended under Rule 12 of Order III. of the Rules of Court,
- HELD ALSO: That as the writ stood, the District Court rightly gave judgment dismissing the plaintiff's claim, as it could not have given judgment in accordance with the claim, the trees in question not being situate in the plaintiff's field but elsewhere. APPEAL from the District Court of Famagusta. Pascal Constantinides for the appellant. Sevasli for the respondent. The facts and arguments sufficiently appear from the judgment. Judgment: This is an appeal from the judgment of the District Court of Famagusta. The plaintiff by his writ claimed an injunction to restrain the defendant's interference with certain carob trees, which were described in the writ as being "within my field," and also damages for the destruction of the grafts of 29 carob trees. The locality of these 29 carob trees is not mentioned in the writ, but it was admitted before us that these are the same trees as those in respect of which the plaintiff claims an injunction. At the settlement of the statement of the matters in dispute, it was alleged for the plaintiff that the trees in respect of which he claimed relief, were situate on land of which he was the registered possessor and for which he produced a kochan. The defendant denied that he had destroyed the grafts of "carob trees in the plaintiff's possession on land in the plaintiff's possession." The issue fixed was, for the plaintiff to prove that the defendant destroyed the grafts of the carob trees situate in the plaintiff's field. At the hearing the plaintiff was called as a witness, and on cross-examination he stated that the trees were not situate on the land described in the kochan. The Court, thereupon, without hearing further evidence, dismissed the plaintiff's claim both for an injunction and damages, on the ground that the action was brought in respect of trees situate on the plaintiff's field, as described in his kochan. The plaintiff appealed, and it was contended for him that the Court should not have dismissed the action on the point they did without explanation from him as to why he said the trees were not in his field, or without hearing any other evidence he might wish to produce. For the respondent, it was contended that the judgment of the Court was right, as the action was confined to the point as to whether the defendant had destroyed trees situate on the plaintiff's land, and that after his evidence the Court could not have given judgment in his favour. It was also urged that if the plaintiff desired to prefer any claim in respect of trees situate outside his land he should have worded his writ accordingly, and could now bring an action for the purpose. With regard to the arguments of the appellant's counsel, we agree that on general principles a Court should not give a decision without hearing all the evidence material to the point which a litigant desires to place before it. We may observe that there is nothing on the file of proceedings to show, in the present case, that the plaintiff's counsel desired to ask him for any explanation of his statement that the trees were not on the land described in his kochan. After examining the plaintiff ourselves, we much doubt whether any satisfactory explanation would have been forthcoming. In his evidence, given before the Supreme Court, he stated that the land, on which the trees stand, was land and that he cleared it two years ago, and that he had alleged in the Court below that they were on land contained in his kochan because they were near, and he thought it would make no difference. He then proceeded to state that between the time of the settlement of issue and the hearing of the action, the Tapu clerk had told him that the land on which the trees are, is not included in his kochan, a statement which is not consistent with that he had just made, that the land was khali and he had cleared it two years ago. He then proceeded to state that the trees are situate outside the land described in his kochan, but says that the land on which they stand is included in the same boundaries. Assuming he had given the same explanation in the District Court, we do not think that the case would have been much further elucidated. It seems clear to us that he admits that the land on which the trees stand is not included in that described in his kochan, and unless the Court could have given him relief under the claim in his writ, it does not appear to us that they acted otherwise than rightly in dismissing his action as they did. It seems to us to be clear from the language of the claim for an injunction, the admission of the plaintiff that the trees in respect of which damages were claimed are the trees respect of which an injunction is also claimed, and the allegations made at the settlement of issue, that the plaintiff intended to claim relief for the wrongful acts of defendant trees situate on land of which plaintiff was the registered possessor, and that this was the claim the defendant was prepared to meet. The Court could, no doubt; in its discretion, have amended the issue as settled, but we doubt whether under the existing Rules of Court the writ could have been amended. The words "situate in my field" can hardly be described as a verbal error, inasmuch as they were intentionally inserted by the plaintiff, as at that time he, no doubt, intended to claim that the trees were situate in the field of which he is the registered possessor. His claim should have been for an injunction and damages for injury trees possessed by him by reason of the permission given him by the Government to graft them; but he himself chooses to describe them in his writ as situate in his field, and the Court could not have granted an injunction in accordance with his claim, as the evidence established that the trees, in respect of injury to which he sought relief, were situate not in his field but elsewhere. Unless the Court could have amended the writ, we think that they were justified in dismissing the action, and under the existing Rules of Court we do not think that the Court would have been justified in striking out as a "verbal error" words designedly inserted. The plaintiff could have worded his writ so as to have obtained the relief to which he was entitled, but he chose to word it so as to ask for something to which he was not entitled. The substantial question, no doubt, between the parties is whether the defendant has destroyed the grafts of carob trees to the property in which the plaintiff is entitled, and it may seem a technicality that his action should be dismissed, because he has asserted in his writ that the trees are situate in a place where they are not. The answer to this is, that the plaintiff had it in his power to ask for the relief to which he is really entitled, and chose to ask for something else. The Rules of Court, with regard to amendments in writs, were designedly drawn strictly in order to compel litigants to define with exactitude the relief they desire to claim. We have already pointed out the difficulty of amending the writ, in this case, and though we had some doubt about the matter, we have come to the conclusion that we cannot interfere with the decision of the District Court. The plaintiff should not, of course, be debarred from preferring any claim he may desire to make in respect of the trees situate outside his land, and to obviate all doubt on this point, we shall insert a statement in our judgment to the effect that the judgment is to be without prejudice to his right to bring another action for that purpose. In conclusion, we may say that this question is largely a question of costs. The costs of the settlement of issue and of the hearing of the Court below would have been thrown away owing to the action of the plaintiff, himself, and had we felt ourselves at liberty to give judgment for him, we should have directed that these costs would be the defendant's in any event. Without lodging this appeal, the plaintiff might have attained his object more expeditiously and more cheaply, by commencing a new action, which having regard to the terms of the judgment of the Court below, and the statement in the notes that the plaintiff was non-suited, we think the District Court considered, and rightly considered, that he could do. We should not, therefore, have ordered the defendant to pay the plaintiff's costs of appeal. This appeal must be dismissed with costs. Appeal dismissed. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο