(VASSILIADES, P., TRIANTAFYLLIDES, JOSEPHIDES, JJ.] ORHAN MEHMET EMIN, Appellant-Defendant, ARGYR1S CHARALAMBOUS KOMODROMOS AND ANOTHER, Respondents-Plaintiff's. (Civil Appeal No. 4872). Contract—Oral contract—No finding by trial Court as to what was the contract—Court of Appeal will not make a finding on this issueespecially whenit dependson the issue of credibility of witnesses—// isfor the trial Court to find the contractbetween the parties—Retrial ordered. The main complaint of appellant's counsel in this appeal was that the trial Judge failed to make a finding on the main issue in this action, namely what was the contract between the parties ; and he asked the Court of Appeal to proceed with the hearing of the appeal and make a finding on this issue from the evidence on record. Held,
(1). It is for the trial Court to find the contract between the parties ; especially when that issue appears to depend on the credibility of witnesses, this being a verbal contract.
(2). Appeal allowed and a new trial ordered before a different Judge. Appeal allowed; retrial ordered. Appeal. Appeal by defendant against the judgment of the District Court of Paphos (Pitsillides, D J . ) given on the 23rd Ja nuary, 1970 (Action N o . 1184/68) whereby he was adjudged to pay to the plaintiffs the sum of £18.750 mils as remune ration for work done. C. J. Myrianthis, for t h e appellant. N. MavronicolaSy for the respondents. 343 1970 Oct 30 0RHAN E CHA^IMBOUS KOMODROMOS *ND ΑΝΟΠΙΙ* 1970 Oct. 30 ORHAN MEHMET EMIN AROYRIS CHARALAMBOUS KOMODROMOS AND ANOTHER The judgment of the Court was delivered by: VASSILIADES, P. : Counsel for the appellant opened bis case before us this morning with the complaint that the trial Judge failed to make a finding on the main issue in this action, namely what wasthe contract between the parties. The pleadings show clearly that the plaintiff (respondent in the appeal) alleged one contract andthe defendant (appellant) in his pleading alleged a different contract. Theresult ofthe action must, obviously, depend on thecontract between the parties. On this fundamental issue, the trial Judge made no finding ; andyetthe determination of an action depends on the findings of the trial Court on the issues arising from the pleadings. Counsel for the appellant asked us to proceed with the hearing of the appeal andmake a finding on this issue from the evidence on the record. He suggested that wecan take the evidence as it stands ; and, if necessary, draw also inferences from the established facts, as they have been found by the trial Judge. We take the view that this is not the proper course to follow in the matter before us. It is for the trial Court to find the contract between the parties ; especially when that issue appears to depend onthecredibility of witnesses, this being a verbal contract. We must allow this appeal and order a newtrial before a different Judge (in view ofthefact that matters of credibility have been considered in the abortive trial). As regards costs, wethink that the costs in the District Court should be costs in cause. The costs in the appeal to bealso costs incause, butinnocase against the appellant. Appeal allowed ; retrial ordered ; order for costs as above. 344