ONOFRIOS J. JASSONIDES ν. ADA N. KYPRIOTI (V7) 1 CLR 80

(1)Actually believes the report, or

(2)Receives it from a person reasonably entitled to credence. It is not necessary that the "second claim" should be made at the first available opportunity after the "first claim." It is sufficient if it is made within such an interval as is reasonably necessary for the purpose in view of all the circumstances of the case. This was an appeal from the decision of the District Court of Limassol, dismissing a claim of pre-emption by the Plaintiff, as adjoining owner on the ground of his delay in asserting his right. The property in question was sold in the course of March, 1907, and the transfer was duly registered on the day of the sale. At the time of the sale the Plaintiff was abroad and. only returned to Cyprus, after a long absence, on Thursday, 4th April. On the following day (Friday) according to his evidence, he observed some furniture being moved from the property in question. He made enquiries from a young lady, Anna Talliadorou, then present and from her first learned of the fact of the sale. He then and there in the presence of Anna Talliadorou and another witness, Costi Katarina, also present, asserted his claim to preemption in accordance with Art. 1029 of the Mejell? (TalebMuwasebe). On the following day (Saturday) he made further enquiries from a clerk of the Land Registrary Office after office hours, and was advised to attend at the office on the following Monday. On the Monday he attended at the office and on verifying the fact of the sale, he again in clear terms, in accordance with Art. 1029 asserted his right of pre-emption. From the Land Registry Office accompanied by witnesses he proceeded to the property itself and there made the second and formal claim before witnesses (Talebtaqrirveish-had) in accordance with Art. 1030. The "third claim" by action for possession (Art. 1031) was made in due course. For the defence a priest Papa loanni Markouli stated that he called upon the Plaintiff on the day of his arrival (Thursday), and that the Plaintiff then informed him that he had already heard of the sale. (The conversation then alleged to have taken place was attributed by the Plaintiff to a subsequent day.) The defence also relied upon a passage in the evidence of the Plaintiff himself, viz.: his enquiry .addressed to Anna Talliadorou. "Is this the property which has been sold to Kyprioti's wife? "-as showing that he had already heard of the sale before the conversation with Anna Talliadorou, and also upon the evidence of the other witness to the first claim, Costi Katarina, who swore that the Plaintiff said. "I have heard of it . . . Once it is so I shall claim it." The District Court being of opinion that the evidence showed that the Plaintiff heard of the sale on the day of his arrival and did not make the "first claim" until the following day gave judgment for the Defendant. The Plaintiff appealed. Bucknill, K.A., and Kyriakides for the Appellant. Pascal and Theodotou for the Respondent. It is sufficient for us to show that news of the sale had reached the Plaintiff's ears before the occasion when he made the "first claim." Even if we are wrong in this contention, the Plaintiff delayed in making the second claim. He heard according to his own account on Friday afternoon, there was "time sufficient for him to act" (Mejell?, Art. 1033) on Friday and Saturday. Even assuming that he was entitled to verify the fact of the sale at the Land Registry Office he had time to do this on both these days. He was not entitled to delay the second claim till Monday. Bucknill, K.A., in reply cited Yoanni .Nicolaides v. Yosiflerodiaconos

(1892)2 C.L.R., p.

1. In view of the circumstances of the Plaintiff's arrival in Cyprus after a long absence the delay from Friday to Monday was not an unreasonable one. The following passages from writers of text-books were referred to by the Court in the course of the argument. Hedaya, Book XXXVIII, Chapter
2. "When news of the sale is brought to the Shafee, it is not necessary, according to Haneefa, that he assert his intention of claiming the Shaffa, before witnesses, unless the news be communicated to him by two men, or one man and two women or one upright man. The two Disciples maintain that he ought to declare his intentions before witnesses as soon as the news is communicated to him by one person, being either a freeman, or a slave, a woman or a child-provided, however, that the person be, in his belief a true speaker." Neil Baillie, Digest of Moohummudan Law, Book VII, Chapter
3. "Knowledge of a sale is sometimes obtained by the pre-emptor himself hearing or being present at the contract, and sometimes by his receiving information of it from another. In the latter case, then, are number and justice of the informants a necessary condition, as in the case of witnesses? Upon this point there was a difference of opinion among our masters, AbooHanife saying that it is a condition that there should be one or other of these, that is, either-as of two men or one man and two women-or justice; while according to EbooYoussuf and Mohammed, neither number nor justice is required. So that if one person were to give information of a sale, and the person entitled to preemption should remain silent, the right would be annulled according to them if the information should prove to be true, whether the informant were just or unjust, free or a licensed slave, adult or under puberty Kurukhee has said that this is the most correct of the reports (or opinions). Though the information should be given by only one unjust man, yet if the pre-emptor believes him, the sale is established, according to them all; but if he disbelieves the informant, the sale is not established according to EbooHanife, though the information should prove to be true; while according to the others, it is established in that case." Atuf Bey's Commentary on the Mejell?, Art.
4. "If the Shefi is present at the meeting of the contract of sale and hears of the intelligence personally or if the purchaser or his agent informs him of the contract of sale it is not conditional that there should exist the number of witnesses required by the Sheri (nissabishehadet) or uprightness (adalet) in the informant. But if some one else informs the Shefi of the contract of sale, according to ImanEbouHanife, there should exist either the nissab in the information or uprightness in the informant, that is to say, the information should be given by two males or one male and two females; or if there exists no nissab and one person gives the information it is indispensable that there should exist uprightness on that person. If there is only one informant who is considered not to be upright and the Shefi believes him he must make his claim of pre-emption and if he does not believe him it is not necessary that he should make his claim of pre-emption." Judgment: CHIEF JUSTICE: The question to be decided in this case is the proper interpretation of Arts. 1028 and 1029 of the Mejell?. There is no doubt that as soon as the Plaintiff was informed of the sale by the witness Anna Talliadorou he asserted his rights in the manner prescribed by Art.
5. It is contended however on behalf of the defence that the facts show that before the Plaintiff received information of the sale from Anna Talliadorou he had already heard of it from some other source. Assuming this to be so, is the fact that the Plaintiff failed to make an assertion of his rights as soon as the news reached him necessarily fatal to his claim? One naturally feels considerable diffidence in deciding such a question, inasmuch as it is a point on which the highest authorities or Mohammedan law, the Imams themselves, have expressed divergent views. Taking these early authorities together, the result seems to be this- that a man is not necessarily bound to act on every report that reaches his ears. He is not bound to declare himself unless the information is conveyed to him by a person whose character entitles him to credit, or, unless he actually believes the report. The result is that whichever of these two principles be adopted, the Defendant has not succeeded in displacing the effect of the Plaintiff's evidence. He has not shown that the news reached the Plaintiff from a person whom he ought to have believed, nor that as a matter of fact he actually believed it. On the contrary, so far as concerns the latter point, all the facts show that he did not believe it, but that he was continuing to make enquiries as to the truth up to the time when he verified the fact of the sale at the Land Registry Office. The Plaintiff having duly made the "first claim," I do not think he was guilty of any unreasonable delay in making the "second claim," and I am therefore of opinion that the appeal should be allowed, that the judgment of the District Court be set aside, and judgment entered for the Plaintiff. BERTRAM, J.: The question raised in this case is one of very great difficulty, and it is one on which the words of Art. 1029 of the Mejell? give us no assistance. It is necessary to have recourse to earlier authorities. The Mejell? was not intended to supersede these authorities, and I suppose that there can be no question that the utterances of"the Prophet" as recorded in the Koran and elsewhere and those of his earliest exponents the Imams, are still part of the law of this country, and that the articles of the Mejell?particularly on the subject of so peculiarly Mohammedan an institution as pre-emption are to be construed in the light of those utterances. The question for our decision is practically this. When a man makes a declaration of his rights which purports to be in compliance with Art. 1029 of the Mejell?, is it a sufficient answer to show that a reportof the sale had already previously reached him? In other words, for the purpose of securing his right to pre-emption must a man act upon any report which reaches his ears, irrespective of the character of the informant or the nature of the report? Taking the utterances of the Imams together, it seems to me that the true principle is this, that in order to put a man to his election it is necessary either that he should actually believe the report or that he should receive it from a person reasonably entitled to credence. I am inclined to think that some sort of report had previously reached the ears of the Plaintiff in this case but we know neither its source nor its nature, and he certainly does not seem to have, believed it. Under the circumstances I cannot, say that his failure to act on this report disentitles him to his rights. I was at first disposed to think that in view of the decision of this Court in the case of AthanassiChristofides v. Nicola Tofaridi

(1885)1 C.L.R., 21, a man was entitled to delay making any declaration of his rights until he had verified the fact that the sale had been completed by registration, but on reflection I think that this doctrine would be a dangerous one and not in accordance with the spirit of the institution. As to the delay in making the second claim, apart from authority I should have thought that the second claim ought to be made at the first available opportunity after the first, but this Court has decided that it is only necessary that the second claim should be made "within a reasonable time" (YoanniNicolaides v. Yosiflerodiaconos

(1892)2 C.L.R., p. 97) and under the circumstances I am not prepared to say that the delay from Friday afternoon to Monday morning was an unreasonable one. The principle seems to be that the "second claim" must be made within such an interval as is reasonably necessary for the purpose in view of all the circumstances of the case. Appeal allowed. NOTE.-The judgment of the Court being in the form of a declaration, it was thought fitting that the Plaintiff's right to costs should be made contingent on his actually taking out a qochan, but as in order to obtain a qochan it would be necessary for him to pay over the purchase money, and as he would thus lose his security for his costs, it was decided that judgment should be drawn up in the following form. This Court doth order that the judgment of the District Court be set aside and that it be declared that the Plaintiff is entitled as against the Defendant by right of pre-emption to the transfer into the name of the Plaintiff, on payment of the purchase price, of a certain propertypurchased by the Defendant, to wit :-a garden with a hut situated in St. Andrea's Street bounded two sides road, heirs of G. Kakathimi and OnofriosJassonides, on condition that the said right be exercised within one month of the date hereof and that on the production within one month from the date hereof of the qochan to the said property by the Plaintiff, the Defendant do pay the costs of the Plaintiff in the District Court and on appeal, and, the Defendant having undertaken through his advocate Mr. Pascal Constantinides to furnish security to the satisfaction of the Plaintiff for the payment of such sum as shall be adjudged on taxation to be due in respect of the said costs, it is further ordered that, in the event of the failure of the Defendant to furnish the said security the said purchase price, without prejudice to the above declaration, be paid into Court to await the order of the Court. Liberty to apply. This 16th day of December, 1907. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο