clr/1974/1974_1_48.pdf

(1963)2 C.L.R. Π7. Appeal. Appeal by defendants against the decision of the District Court of Famagusta (Sawides, P.D.C. and Nikitas, D.J.) dated the 6th August, 1973, (Action No. 2334/68) dismissing their application for an order directing the joinder of a party to the action, namely ex-defendant No. 1, against whom the plaintiff had earlier on withdrawn her claim. 48 v. J. Kwiktides, for the appellants (defendants). 1974 0 Jdn. I B N. Pelides with Chr. Solomis, for the -respondent (plaintiff). «SEF •G. Economou with E. Efthymiou (Miss), for the respondent (ex-defendant No. 1). The judgment of the Court was delivered by:TRIANTAFYLLIDES, P.:"- The appellants, who are the defendants in the action in relation to which this appeal has arisen, applied on December 3, 1971, for an order directing the joinder of a party to the action, namely exdefendant 1, as against whom- respondent, who is the plaintiff in the action, had earlier on withdrawn her claim. The court below decided to refuse the joinder and by the present appeal it is sought to set aside the decision in question. The said decision was clearly of a discretionary nature; it suffices to refer in this respect to Vandervell Trustees Ltd. v. White and Others [1970] 3 All E.R. 16, as well as to The General insurance Company of Cyprus Ltd., v. Georghiou and Another

(1963)2 C.L.R.

1. Before deciding whether there exist adequate grounds for our interfering with the exercise of the discretion of the Court below we must refer to certain aspects of the proceedings : The record of the Court below in respect of December 6, 1971, reads as follows :"DECISION : As stated in the opening stage of the proceedings to-day, this action was fixed after further adjournment for hearing on the 6.5.1971 to be continued on the 7th and 8th of that month. On that day, 6.5.1971, on the application of the defendants * which was granted with costs against them, the hearing of this action was adjourned for today, to-morrow and to be continued until final determination, and in fact arrangements have been made by the Court for at least three days of hearing. At the same time on that day the action by plaintiff was withdrawn against defendant 1 with no order as to costs. 49 "*> <mtERS v - ELENI ACAROU (nfe LYSANDROU) ;t»74 Jan. 18 J d # r OTHERS V. BUM ..iflnftOll ti«fcYSANDftOU) We are to-day confronted with the present two applications, one ex parte and the other by summons on the same subject, to wit, defendants apply to join Mr. Loizos Theocharides again as a co-defendant, the main, ground of these applications being that the defendants engaged. one Mr..Stavros loannides, a civil engineer of Nicosia, who inspected the house forming the subject-matter of this action and that he after such inspection, said that in Ms.considered view Mir. Loizos Theocharides is directly involved in the issues fanning, the subject-matter of tins •action. (Vide paragraph 3 and 4 of the . affidavit sworn by Mr. Kaniktides). It was admitted) by Mr. Kaoiktides on. behalf of the defendaats, that" they had engaged. Mr. loannides.only a few days ago. As the practical result of this application m relation to the hearing of this action is that the hearing would by necessity be adjourned,.we thought fit to entertain the two applications to-day though the application by. summons was.fixed by the Registrar for to-morrow and an opposition has not yet been filed and it was served only last Saturday 4th instant. Counsel were ready to argue their case. This action was filed in 1968, and the pleadings concluded in 1969 and the defendants should have been well acquainted with all the facts of this case, and yet on the 6.5.1971, they had not said a word against the withdrawal of Use action against defendant
2. On the other hand the intervening time between the last date of hearing of the action and to-day's date is exactly seven months, and yet it was only a few days ago that defendants had engaged the services of a civil engineer for the purposes set out in the affidavit in support of the application and it is unfounded to hear from them to-day that they could not have secured the services of an architect or civil engineer in good time to do the work which Mr. loannides did. There is no scarcity at all of these professional men in Cyprus. It is quite evident that defendants have shown unpardonable inactivity in taking these steps; they could have filed their application in good time, without disturbing the hearing pf the action to-day. 50 197 4 On tins ground, we are not prepared to.grant an adjournment of the hearing of the action, though the plaintiff was lukewarm whether or not the Court could grant the adjournment. It is a well-trodden . · « . ,. t . , a _ GEORMBBS ΑΚΜΠ**5Ϊ j principle that adjournments are granted on good cause and there is absolute absence of such good cause in this instance. AND OTHERS v ECCNI , ACAROU into LYSANDROU) We shall proceed with the hearing now. The result of exercising our discretion against granting an adjournment is that the applications before us have become abortive. (To Mr. Kaniklides): As we said these applications which you have filed so late in the day have a direct relation to the hearing of the action, and therefore, it was appro­ priate to decide whether we would grant an adjournment or not, and we have called on you to show good cause for granting an adjournment. Now that you have heard our decision that we refuse an adjournment and an interruption of the hearing of the action, what do you intend to do with your applications? Mr. Kaniklides: With which applications? President District Court: These applications to join Mr. Theocharides as a co-defendant. Mr. Kaniklides: Should I understand your Honour to ask me what would be the further step'' President District Court: No, what do you· want? Do you withdraw them or do you want us to give you a considered decision on the merits of the application? Mr. Kaniklides: Yes, of course. President District Court: We will adjourn this on another date and we will proceed now with the hearing of the action. Will you make an opening Mr. Pelides? Mr. Pelides opens and the hearing proceeds". 51 of the case 1974 Jan. 18 - GEORGHIOS ANASTASI AND"OTHERS An appeal—Civil Appeal No. 5035—was lodged by Mr. Kaniklides as regards,the manner in which the matter of the joinder had been dealt with, as above, and the following is the record of this Court, in relation to that appeal, on February 25, 1972 :- V. ELENI ACAROU late LYSANDROU) At this stage, in answer to a question by the Court, counsel on both sides state that they are in agreement that,. as it appears from the record, the trial Court has not dealt with the substance of the application of the appellants for the joinder again as a defendent of ex-defendant No. 1, but, instead. this matter was treated by the trial Court as being merely a question of adjourning or not the hearing of the action between the parties in view of the said application; counsel state, also, that they share the view that the better course is for the application for the joinder of a defendant to be decided before the further hearing of the action and that in case either side appeals against the relevant decision of the trial Court then the hearing of the action should await the outcome of the appeal. Counsel add that they have agreed that the costs of the present appeal should be costs in the cause. Court: We do think that counsel for the parties are right and we have, therefore, decided to dispose of this appeal by ordering that the trial Court, before proceeding any further with the hearing of the action, should deal with the substance of the said application for the joinder of a defendant; and in case there is an appeal against its relevant ruling then it should await the outcome of such appeal. The costs of this appeal to be costs in the cause". When the matter went back before the trial Court the then President of the District Court of Famagusta, who is no longer in the judicial service, but who was one of the judges who had dealt with the question of the joinder on December 6, 1971, decided to refer it for determination to a differently constituted bench. By that time, however, the bench which dealt with the matter of the joinder—and refused an adjournment of the 52 hearing—on December 6, 1971, had in the meantime reserved their decision on an application of the appellants for amendment of their statement of defence; that application had been filed on December 7, 1971, that is to say, on the day after the hearing of the action had commenced; during that part of the hearing there were heard three witnesses who had been called by the respondent, as plaintiff. It is quite clear that the amendment was intended to lay the foundation for a claim to be made in the action by the appellants against ex-defendant
3. Unfortunately the then President of the District Court had not delivered—prior to his retirement from the judicial service—the reserved decision on the application for amendment, before a differently constituted bench dealt with, and refused, the application for the joinder of exdefendant 1, with the result that there was filed the present appeal; and there was relied on in the reasoning for re­ jecting the application for the joinder the fact that the appellants had not raised by their pleading the issue of the liability of ex-defendant
4. It emerges, therefore, from the foregoing that the decision appealed from was reached on the basis of an approach completely divorced from the rest of the pro­ ceedings in the action, because when the joinder of exdefendant 1 was refused for, inter alia, the reason that the appellants had not raised by their pleading the issue of the liability of ex-defendant 1, the appellants were still waiting to know whether their application for amendment of their statement of defence would be allowed so as to enable them to put forward a claim against such exdefendant. ' The said approach, which was obviously an erroneous one, resulted, in our opinion, in a wrong exercise of the judicial discretion as regards the fate of the application for the joinder of ex-defendant 1 and we have, for this reason, to set aside the decision appealed from. It is, therefore, directed that the application for amend­ ment of the statement of defence of the appellants should be heard afresh and be determined first—(by necessarily an" entirely new bench)—and when this has been done 53 W* GEOROHIOS ANASTASI v ELENI (ηέβ LYSANDROU) 1 97"* _ cBORouios ANASIASI ΑκΐΓί then the application for the joinder of ex-defendant 1 should, be dealt with by the same new bench, and then the hearing of the case should commence afresh before such bench; in any case the hearing would have to start de ίΥΠ-fPOS novo due to the fact that part of the hearing, on December 6, 1971, took place before a bench of which the then, and ELENI by now retired, President of the District Court of Fan^ai^iysANDRou) S u s t i w a s a member. The costs till now of the application for the joinder p(! ex-defendant 1, and of this appeal, to be costs in the cause in the action, but the costs of this appeal not to be awarded, in any event, against the appellants. '• Appeal allowed. Orderfor costs as above 54