[ losi riiini s SIA\KIMIMS IJ KYI'ROS Λ. HADIIANAMASSUHI At. S I J KYPKIANIDCS I960 Oct 14 KVPRIW Appellant-lhUndant ., S. KYPRIANIDIS " SVMLON lOANNOU SYMION lOANNOU. Ris-pondent-Pla.nttlf {Cnd \ppeal \» 4^91) Spa HIII\ nuhnsed win inula outer 2 tuh 6 of tin Cnd Pimedire Rides Sunnnai \ pul-ment -Apphaitton lain to deli til Coiiihlinind htne to th/uid \>ianl<d toi Ouhi Piiiitnc Ιίί ink Ι (ίί) ,md tide (> Distietion of 'In Hud (iioumls on wluth tin ( ο·η t nf ippeal ma\ mlaleie ΙΙΊΙ-Ι with ι he i\imst In the Jutl^t of l,i\ thstiction iimhr Ouhi IS Ilie ( tunt ol t/ipiai will not a.nifeie unless theie has han some triors -d pi//κ ph οι nnsappu htnsion of hut on tin ριο t of tlit lathi m unit \\ he has Η Ί Κ / Ι undue weight to a pmtxittai aspet t id the ftuts lane to deft rut Re<pii\ite\ ol dtf, ndnnt's atluhmt It niusi ι,'/w sn/luunt fads and pui in idui s to show flat time is a lion,ι Iule deleiue It "must (oiuh'stend upon ptntiiulai\ ' demitd denials and \a«ue allegations with nut suffue Ihe (ml Puneduie Huh s (hdti IS files I 2 and 0 ///c In»hsh Rid, ( / M i ) Oidei II IIn Inn den is on tin tleieinlant to •uiish tin (omt thai he Las a bona lulc th'fiiue to the tut ion Older 18, rule 1 ((/) Judgment Sununur\ pidi^nieni Applualion foi Opposition to— Defendant's allida\it Retpusites of Harden on tin thlindant In satis/] ihe Court that lie has a good diftita lo the adioii Sie aho\e Distietion I \emse of distrelion h\> the tnal Coails (.otuiuds upon ninth the Court of \ppad will uittifere with the t \enise of sudi distielmn paituulailv under order 18 (supia) -See under pruitue Appeal Court aho\e of Appeal Intohuutotv •JIMIII; <onditional lea\e to defend appeal Jiom Dtstrction an oj tin Print iples upon wluth ilu Court of Appeal will tnterjeie sueh distietion - See undei Proline order .Indue— with aho\e This is on appeal Irom Ihe order of a District Judge ί*ιant ing KJIHIIIIOIKII leave to the appellant-defendant lo defend 265 1966 Oct. 14 the cyse in Ihe a c l i o n , i n s i i u i l e d by ihe KYI*ROS C i v i l Procedure Rules, Order 2, rule 6 c l a i m i n g S. KVI'KIANIDES />. SYMION IOANNOU respondent-plaintiff, by way o f a w r i t o f summons specially indorsed under the £105 o n a b o n d in customary f o r m w i t h i n the provisions o f section 80 o f the C o n t r a c l Law. Cap.
- The order appealed f r o m is as f o l l o w s : " Leave to defend granted on c o n d i t i o n lhal defendant shall, w i t h i n 20 days, deposit the a m o u n t o f the c l a i m . plus t l 8 costs, in C o u r t ". Π ι ο appellant's point is that on the a f f i d a v i t filed by h i m . {Note : T h e affidavit is set out in the j u d g m e n t o f the Supre me C o n n . post), ihc trial Judge ought to have gi anted him u n c o n d i t i o n a l leave to defend since the defence raised there by was a defence o f illegality viz. that the " a l l e g e d b o n d was m i l l and void as it arises f r o m an (a g a m b l i n g illegal transaction", hansaelion). The Supreme C o u r t in dismissing the appeal : H e l d . ( I ) (a) O r d c i .
- rule I (a) o f the C i v i l Procedure Rules provides l h a l s u m m a i y j u d g m e n t for i h c p l a i n t i f f may be given o n his a p p l i c a t i o n " unless the defendant shall sa tisfy the C o u r t l h a l he has a good defence to the action on Ihc i n c u t s , ο ι disclose such tacts as may be deemed sufficient l o entitle l u m to defend ". A n d ι ule 6 provides that leave ' · defend " may be given " u n c o n d i t i o n a l l y or subject l o • us. (/>) h will iluis be Μ Χ Ί Ί that lite burden is o n the defendant l o saiisly the C o u r t that lit* lias a good defence, and in decid ing this m a i l e r the Judge has to exercise his discretion. (e) In ihe picscnt case the Judge, h a v i n g exercised his -'is( !-(•!''•" aftei h e a i m g counsel and considering Ihc material .ι. · . o f a f f i d a v i t s put before him granted c o n d i t i o n a l leave lo defend. (d) :' is well settled that where a Judge has exercised hts d i s c r c i i ' - i uiulei o i d c r 18 (supra) and imposed c o n d i t i o n s as a let in o f g i v i n g a defendant leave l o defend the C o u r t o f Appeal Ί η · Ί i n l e i f e i e w i t h the exercise o f his discretion miles*. 111· e has been some e i r o r o f principle or misappre hension >; Λ Ι on his p a i l , or unless he has given undue weigh! to .t p.iiiicular aspect οΐ the faels (Gordon v. Cratioek |Ι·)Ι·Ϊ| 2 All l".K. 121). ••(V. 1966 Oct. 14
(2)(
- a)This appeal may be decided on a very short p o i n t , that is, l h a l ihe defendants-appellant's affidavit (note: It is set o u t in the j u d g m e n t , post), does n o t give s u f f i c i e n t K.YPROS facts t o show that there is a g o o d defence, n o r does it disclo S. KYPRIANIDES P. se such facts as may be deemed sufficient to entitle h i m t o SYMFON ΪΟΛΝΝΟΙΓ <\i:\'cm\. , A s decided i n a number o f English cases o n the (
- h)corresponding English Rules (R.S.C. Order 14), sufficient facts and particulars must be given to show that there is a bona tide defence. Λ mere general denial that the defendant is indebted will not suffice (IVallingford v. Mutual Society 1I8X0| 5 A p p . Cas. 685. at p. 704) T h e defendant's a f f i d a v i t mtisi "condescend upon particulars " a n d should as far as possible, deal .specifically with the p l a i n t i f f ' s c l a i m and affi davit, and slate cleat ly and concisely what the defence is. and what facts are lelied upon as s u p p o r t i n g i t . (<·) In this particular case the a f f i d a v i t sworn by counsel f o r Ihe defendant (post) simply slates that his " i n s t r u c t i o n s arc lhal the alleged b o n d is null and v o i d and not lecoverable in law as it arises f r o m an illegal transaction ". N o facts o r particulars are given. In the f o l l o w i n g paragraph c o u n sel slates "theie is no valuable or l a w f u l consideration in respect o f the alleged bond and repiescnts money paid on g a m b l i n g " . There again no specific facts are given t o show that there is a bona fide defence.
(3)-l-oi ihesc reasons ihe appeal is dismissed w i t h costs. We a l l o w Ihe defendant-appellant a f u r t h e r 15 days to-day to c o m p l y w i t h ihe c o n d i t i o n s imposed from by the t r i a l Judge. Appeal dismissed a further trial with costs. \ 5 days to comply Order allowing with conditions the defendant imposed by the Judge. Cases referred Gordon to : v. Cradock Wallinglord [I963J 2 A l l E.R. 121, f o l l o w e d ; v. Mutual Society [1880] 5 A p p . Cas.
- at (i. 704 applied. Appeal. A p p e a l against t h e j u d g m e n t o f t h e D i s t r i c t C o u r t o f N i cosia ( l o a n n i d e s , D.J.) d a t e d t h e 1st July, 1966, ( A c t i o n N o . 267 ι 1966 Oct. 14 1157/66) granting conditional leave to the appellant-defen dant to defend the case. ΚΥPROS s. KYI'RIANIDRS A. Ceorghiaths, for the appellant. J- Mavronkohts with />. Theocharhles, for the respondent. o. SYMKON IOANNOU The judgment of the Court was delivered by : JOSI-HIIIM-S, J. : This is an appeal from the order of a District Judge granting conditional leave to the appellantdefendant to defend the case. The order of the learned Judge was as a follows : " Leave to defend granted on condition that defendant shall, within 20 days, deposit the amount of the claim, plus £18 costs, in Court " . The plaintiff's claim was staled to be based on a bond in customary form for the sum of £105 plus interest. The writ of summons was a specially indorsed writ, under Order 2, rule
- After service of the writ on (he defendant, which was sub stituted service on his wife as he was absent from Cyprus, appearance was entered on his behalf and subsequently the plaintiff applied for summary judgment under the provisions of Order 18, rules 1 and
- The application for summary judgment v\as supported by an affidavit giving particulars of the claim and staling that the bond had been examined by defendant's advocate and copy thereof handed lo him. In fact, the bond has been inspected by us, and it would appear lhal it is a bond in customary form within ihc provisions of section 80 of the Contract Iaw, Cap.
- Defendant's counsel filed an opposition lo the plaintiff's application for summary judgment and in support thereof he relied on the following affidavit sworn by him : "
- 1 am the defendant's counsel retained in the above case.
- My instructions are that the alleged bond is null and void and not recoverable in law as it arises from an illegal transaction.
- There is no valuable or lawful consideration in respect of (he alleged bond and represents money paid on gambling. 268
- In the circumstances my client has a good defence which goes to the whole of the alleged plaintiff's claim.
- My client at present is outside Cyprus". The learned Judge, after hearing counsel, granted conditional leave to defend as quoted earlier in this judgment. He gave no reasons for his decision. The appellant's main argument before us was that by his affidavit he raised a defence of illegality for which the Judge ought to have granted him unconditional leave to defend. The material part of rule 1(a) of Order 18 provides that summary judgment for the plaintiff may be given on his application " unless the defendant shall satisfy the Court that he has a good defence to the action on the merits, or disclose such facts as may bedeemed sufficient lo entitlehim to defend". And rule 6 provides that leave to defend "may be given" unconditionally or subject lo terms. It will thus be seen that the burden is on the defendant to satisfy the Court that he has a good defence, and in deciding this matter the Judgehas to exercisehisdiscretion. In this case the Judge, having exercised his discretion after hearing counsel and considering the material in the form of affidavits put before him, granted conditional leave to defend. It is well settled that where a Judge has exercised his discretion under Order 18 and imposed conditions as a term of giving a defendant leave to defend, the Courl of Appeal will not interfere with the exercise of his discretion unless there has been some error of principle or misapprehension of fact on his part, or unless he has given undue weight to a particular aspect of the facts (Gordon v. Cradock [1963] 2 All E.R. 121). The appellant's point is that on the affidavit filed by him the trial Judge should have granted him unconditional leave. We think that this appeal may be decided on a very, short point, that is, that the defendant's affidavit does not give sufficient facts lo show that there is a good defence, nor does it disclose such facts as may be deemed sufficient to entitle him to defend. As decided in a number of English cases on the corresponding English Rules (R.S.C Order 14), sufficient facts and particulars must be given to show that there is a bona fide defence. A mere general denial that the defendant is inde269 1966 Oct. 14 t9f36 0 c V* bted will not suffice (Wtdlingford v. Mutual Society
(1880), S.KYI'RIANIDES 5 App. Cas., 685, at page 704). The defendant's affidavit must "condescend upon particulars", and should, as far as possible, deal specifically with the plaintiff's claim and affi- "' davit, and state clearly and concisely what the defence is, and κνPROS SYMH»N IOANNOU . L .. t . . . . what tacts arc relied upon as supporting it. In this particular case the affidavit sworn by counsel for the defendant simply states that his " instructions are that the alleged bond is null and void and not recoverable in law as it arises from an illegal transaction ". No facts or parti culars of the illegality are given. In the following paragraph counsel states "there is no valuable or lawful consideration in respect of the alleged bond and represents money paid on gambling". There again no specific facts arc gi\en to show that there is a bona fide defence. For these reasons the ap peal is dismissed. JirMPiiiini.s, J. ; A r c you claiming costs? Mr. Mavrt'iitcoltis: Yes, Your Honour. Josi-i'iiiDiis, J. : "(he appeal is dismissed with LOSIS. As the conditions imposed by the learned Judge on the 1:4 July, 1966, have not been complied with, wc allow the defendant a further 15 days from today to comply with those conditions. If the defendant shall fail to comply, the plaintiff may sign final judgment against him for the amount indorsed on the writ wilh interest and costs. Order accordingly. Appeal dismissed with costs. Order a/lowing defendant a further 15 days to comply with conditions imposed by trial Judge. 270