clr/1966/1966_1_274.pdf

1966 Oct. 7, Nov. 18 YIANNIS ASHIOIIS (VASMLIADLS Ad. P. JOSI-THIDLS, J. & Loi/.ou AG. J.J YIANNIS ASHIOTIS AND J3 OTHERS, Appellants-Defendants. A N D 13 OlllfcRS MICIIAH WHNI-K A s n 4 „„„.„,, MICHAEL WEINBR AND 4 OTHERS, Respondents-Plaintiffs. {Civil Appeal No. 4538). Practice -Appeal- -Further evidence—Application jor leave to produce further evidence /Evidence proposed to he adduced could have hecn made available at the trialCourt with reasonable di/igau e —Application, therejore, refused- Principles enunciated in Potirikos r. Fevzi {No. 2) 1962 C.L.R.

1. applicable. Appeal -further evidence on appeal-See above. Evidence -further c\idcn<e on appeal- Principles applicable--See above. Emilia evidence mi appeal- See above. Cases re/erred to : Pourikos v. Fevzi (No. 2) 1962 C.L.R. 283, followed ; Braddock v. Tillatsaiis Newspapers Ltd. [1950] I K.B.
2. The facts are set out in the judgment of the Court. Application. Application for leave to adduce further evidence made in the course of the hearing of an appeal against the judgment of the District Court of Nicosia (Stavrinides P.D.C and loannides, D.J.) dated the 13th March, 1965 (Action No. 638/58) whereby the respondents-plaintiffs were granted an injunction restraining the appellants-defendants from interfering with and/or unlawfully trespassing in certain running water and channels. St. PavlUles, for the appellants Chr. Mitsides with G. Constantinides for the respondents. 274 1 9 6 6 The following ruling was delivered by : Oct. 7, Νον VASSIUAOIS, A C P. . At this stage we have to deal with · l8 the application of the respondents, for leave to produce fur- YIANNIS Astuon·; ther evidence ; the evidence described in the application. AND ]3 mums I'ait of siieh evidence consists of land Registry records; an-. " Wt,NrR other pari is the testimony of the Chairman of the \ illaee M l C M A F I -AND 4 OTHIRS Authority of Pyroi village, and of records in his possession ; and further evidence from one oi' the parties who lias already given evidence before the trial Court, and now wishes to give supplementary evidence and produce document:· relating to the owneiship of the disputed channels. We !.ave heard e\tensive argument in support of the appli­ cation, al the end of which we found it unnecessary to call on the other side. It is clear al this stage that the matter is fully coveted by the judgment in Vourikos v. Fevzi (No 2) !')62 C I I! p. : f
3. We can dispone of the application before us by referring u> the pai: of the judgment of the President, Mr Justice Wil­ son, at page 286, where he was quoting from the judgment ot tucker I..J., in Hnult'och v.' '(Watson's Newspapers /,«/., [I9i)0j 1 Κ.ΙΪ.
4. It ts sull'icienl, for the purposes <»f the application IMVV Ivfore as, to repeat thai : In the piesent ease the plaintiff has'failed to ηκν. the lira ΛΜ, namely that it must be shown that the evidence e.'iilil \u>[ have been obtained with leasonable diligence for use al the trial and for thai reason alone this application imi-! fail (p. 238). It is obvious that the evidence which the respondent now piopo-.es In a'uduce, is evidence which, with reasonable diligence, could have been obtained and put before the trial Court. In lael, at the end of his argument, Mr. Constantinides agieed that the evidence regarding the title of his clients is already befoie the Court in the form of the Land Registry exhibits, and the evidence of the Land Registry witnesses. Adopting the same test in the present case, and for the same reasons, we are clearly of opinion that the application for leave to adduce further evidence must fail. Application tlistw'v->ed. 275