1962 Oct, 19 THE CIVILIAN ADMIN. OFFICER H.Q. MIRDLE EAST, AS THE AGENT OF THE SFCRHTARY OF STATE FOR AIR AND/OR AGENTOF THE AIR COUNCIL v. NlJBAR AYVASIAN [WILSON, P., ZEKIA, VASSILIADES and JOSEPHIDES, JJ.] THE CIVILIAN ADMINISTRATION OFFICER, HQ MIDDLE EASTAIR FORCE EPISKOPI, ASTHEAGENT O F THE SECRETARY OF STATEFOR AIR AND/OR AGENT OFTHEAIR COUNCIL, Appellant (Defendant), v. NUBAR AYVASIAN Respondent (Plaintiff') (CivilAppeal No.4390). Civil Procedure—Practice—Amendment of writ of Summons—Whether Court canamendwrit of summons although notasked for—Proper procedurefor suchalterations must befollowed. International Law—Constitutional Law—After Independence day (16th August I960) theCrownbecame a foreign Government In relation to Cyprus. The District Court Nicosia In dismissing the defendant's application t o set aside the writ of summons and all subsequent proceedings, before dismissal ordered the amendment of the style of the cause and the amendment of the indorsement of the w r i t of summons, although such relief was not asked for. The High Court allowing theappeal,— Held : (I) It Is our view that by these amendments the District Court substituted anewdefendant in the place ofthe defendant originally sued. The procedure prescribed by the Rules for such alterations not having been followed, we are of the opinion that the change in the style of cause and the amendment of the Indorsement could not have been made, in the circumstances, andthe part ofthe order affecting them, must, therefore, be set aside.
(2)For the purpose of this motion we are of the opinion that after August 16th, I960, the British Crown became a • foreign Government in relation to Cyprus and that the relief asked for in theoriginal notice of motion to setaside the writ of summons should be granted. Appeal allowed. Defendant to havehiscostsagainstthe 248 plaintiff, here and In t h · Court below.If demanded. Cases referred t o :— Krajina v. The Toss Agency and another
(1949)I All E.R.274; Sayce v.AmeerRuler Sadie MohammadAbbast Bahawatpur State
(1952)I All E.R. 326. Appeal. Appeal against thejudgment of the District Court of Nicosia (Pierides and Ioannides, D.JJ.) dated the 29th June, 1962 (Action No. 3326/60) dismissing defendant's application to set aside thewrit of summons, theservice thereof andall subsequent proceedings, inanaction for damages for wrong ful dismissal. · G.P. Cacoyannisfor the appellant. G. Tomaritis for the respondent. The judgment of the Court wasdelivered by:— WILSON, P.: This is an appeal by the defendant from the judgment and order of the District Court of Nicosia, dated 29th June, 1962, dismissing defendant's application to set aside'the writ ofsummons inthe action and all subsequent proceedings thereon. « Although the relief wasnot soasked, the District Court, before dismissing defendant's application, ordered theamend ment of the style of cause soasto read :— Nubar Ayvasian of Nicosia, plaintiff and The Civilian Administration Officer, HQ Middle East Air Force, Episkopi, as the agent of the Secretary of State for Air and/or agent of theAir Council,defendant. Furlheimorc the District Court ordered the amendment of the writ ofsummons byadding toιhe endorsement thereof, the words : "The defendant is sued in his capacity as agent ofthe Air Ministry in Cyprus and/or the Aii Council mid'or the Secretary of State forAir". It is our view that by these amendments the District 249 ne Oct. 19 THE CIVILIAN ADMIN. OIFICE* H.Q. MIDDLE EAST, AS THB AOENT OF THB SECRETARY ot STATE POR AW· AND/OR Αι.ΕΝΊ OF THE AIR COUNCIL V. NUBAR AYVASIAN 1962 Oct. 19 THE CIVILIAN A D M I N . OI-HCER H.Q. MIDDLE EAST, AS THE AGENT OF THE SF< RMARY or SIAIF FOR AIR ANtl/OR A t i E N I Of THt A I R 'COUNCH ν NUBAR AYVASIAN Wilson, P. Court substituted a new defendant in the place of the defen dant originally sued. The procedure prescribed by the Rules for such alterations having not been followed, we are of the opinion that the change in the style of causeand theamend ment of the indorsement could not have been made, in the circumstances, and the part of the order affecting them,must, therefore, he set aside. With respect to the original application, the affidavit of Peter Kenneth Walker of Episkopi, filed upon the motion and standing uncontradicted, discloses that the Civilian Ad ministration Officer of the Headquarters, Middle East Air Force, Episkopi, is a servant of the British Crown. This is a fair conclusion from the affidavit itself. Moreover, paragraph 2 of the statement of claim states tha f the defendant is the Administration Officer of the Royal Air Force, in Cyprus, and he is sued in his capacity as agent of the Air Ministry. This further strengthens the conclusion that even the original defendant was sued as a servant of the British Crown. In support of the appeal counsel referred to Krajina v. The Tass Agency and another
(1949)2All E.R. 274 and Sayce v. Ameer Ruler Sadie Mohammad Abbasi Bahawalpur State
(1952)1 All E.R. 326. For the purpose of this motion we are of the opinionthat after August 16th, 1960, the British Crown became a foreign Government in relation to Cyprus and that the relief asked for in the original notice of motion should be granted. For these reasons we think that theappeal must be allow ed as indicated ; and the defendant have his costs against the plaintiff, here and in the court below, if demanded. Appealallowed. Defendant to have his costs againstthe plaintiff, here and in the Court below, ifdemanded. 250