clr/1977/1977_1_95.pdf

(1970)1 C.L.R. 180; Loucaidesv.CD. Hay &Sons,Ltd.

(1971)1C.L.R. 134. 95 1977 Febr. 18 IFlGENTA PATSALIDOU v. ANDREAS COSTA KYRIAKIDES 1977 Febr. 18 IFIGENLA PATSALIDOU v. ANDREAS COSTA KYRIAKIDES Application. Application by plaintiff for leave to amend the statement of claim, madein thecourseof thehearing of anappeal against thejudgment of theDistrict Court ofNicosia (Chr. loannides, P.D.C, and A.loannides, D.J.) dated the 4th December, 1975 (Action No. 5930/71) whereby the defendant was ordered to pay to plaintiff the sum of £1,027.150 mils asmoney received by defendant byvirtueof apower of attorney. L. Papaphilippou,for theappellant. D. Lambides,fortherespondent. 10 Cur.adv.vult. Thejudgment oftheCourt wasdeliveredby:STAVRINIDES,J.:i n this appeal theplaintiff isapplying for leaveto amend thestatement of claimbyaddingat the endthereof aparagraph alleging fraud. 15 The applicant is the respondent's sister. On April 8, 1971, she executed a power of attorney authorising the respondent, inter alia, to transfer into his name the registration of a house belonging to her and to withdraw £1,121 odd standing toher credit intheBank of Cyprus. The material part of the statement of claim reads: "3. The plaintiff executed the abovepower of attorney while she was seriously ill and after moral and undue influence on the defendant's part. 20 25 Particulars (

1. a)The defendant persuaded theplaintiff tomove tohis house suggestingtoherthat herlifewas indangerwithherhusband. (
2. b)The plaintiff wassoill that shedidnot havea 30 free will and thus gave in to the influence of the defendant and moved to his house. (
3. c)The plaintiff living in the defendant's house became prey to his pressures. The defendant was representing to her that her death was 35 near and in view of this that the plaintiff should execute a generalpowerof attorney to 96 enable the defendant to administer her property". Theproposed newparagraphreads: 5 10 "10. Further and in the alternative the plaintiff alleges that the defendant persuaded the plaintiff to sign the said power of attorney and he acted on the basis thereof fraudulently and/or with intent to defraud and convert to hisown use the above-mentioned property of the plaintiff and/orin abuse of confidence. Particulars 15 (
4. a)The defendant persuaded the plaintiff toexecute the said power of attorney saying to her that his intention wasthat 'ameans should be employed to protect her house from her husband', whereas his object was and in fact he converted all the property of the plaintiff to hisownuse. 20 (
5. b)The defendant converted to his own use the above-mentioned property of the plaintiff and refuses torestoreitintohername". Counsel for the applicant relieson Order 35, r. 8, and Order 25, r. 1 et seq., of the Civil Procedure Rules and three Cyprus cases,viz.Kemalv.Kasti, 1962C.L.R. 317; 25 Karmiotisv. Pastellis,1964 C.L.R. 447;-and Courtisv. lasonides,

(1970)1 C.L.R. 180. In the first and third of these cases the application for amendment was made to the District Court, sothat they are of no assistancein the instant case.In the second case, whereit wasmadeto this 30 court,itwasrefused, andtherelevant partof thejudgment reads(pp.452,453): 35 "At the opening of the appeal before us,Mr. Tornaritis applied for amendment of the pleadings which, as pointed out in the judgment of the trial court, would be required to connect plaintiff's claim with the evidence adduced. His client's claim is twofold, learned counselsaid.Sheclaimed therightof passage over a public pathway; but if the evidence failed to establish a public path, then plaintiff, as owner and 97 1977 Kebr. 18 1977 Febr. 18 IFIGENIA PATSALIDOU v. ANDREAS COSTA KYRIAKIDES occupier of plot 173 claimed a right of way to her plot over 194,nowbelongingtothedefendant 2,and plot 174 belonging to a third person, not a party in this action. Weindicated at that stagethat wewould dealwith 5 the application for amendment, if necessary, after hearingappellant'scounselonthemerits.Andhaving doneso,wedo not thinkthat thislitigation should be allowed to go on further. We refuse the application for amendment, and wefind itunnecessary to callon 10 therespondentonthemerits. As we have pointed out during the hearing of the appeal, therightto use apublicpathway, or apublic road as such, is, legally, of a different nature to the right of owner or occupier of immovable property to 15 pass over property belonging to another person, for certain purposesconnected with theenjoyment of the dominant property. The matter is so obvious that it requires no further elaboration. The claim to the exercise of a right of way over the servient property 20 is inconsistent with the allegation for theexistenceof a public pathway thereon. The evidence to establish a right of way attached tothe enjoyment of property would, normally, disprove the existence of a public path there. 25 By her present action the plaintiff claimed judicial remedies against interference by the defendant with her (plaintiff's) useof an allegedpublicpathway.The existence of such a pathway having been denied by thedefendants, theplaintiff setout to proveit.But at 30 the conclusion of the trial it was submitted on her behalf that plaintiff had established a privaterightof way; a right which did not form part of the claim in the action. We are, therefore, of the opinion that plaintiffs action was rightly dismissed. And this ap- 35 peal must fail. On the other hand let it be made quite clear that this litigation cannot, and does not purport to, adjudicate upon the existence of any right of way not forming partof theclaimherein;norcanitdetermine 40 the existence,orotherwise,of apublic path, asfar as 98 the public authorities are concerned, or other membersofthegeneralpublic". In our view thesecond case presents a cogent analogy to the present one. Just as, in that case, in the District Court the plaintiff rested his claim on a public right of way and on appeal sought to rely on a private right of way, so the plaintiff here, having relied in the District Court onundueinfluence, nowseekstorely on fraud; and just as different considerations apply to a claim based on 10 a public right of way and to onebased on a private right of way, so here different considerations apply to a claim based on undue influence and to one based on fraud. In thecircumstances itwouldbewrong toallowtheproposed amendment in thiscourt. 15 For these reasons the application.must be dismissed. Reference may also bemade to Loucaidesv.CD. Hay & Sons, Ltd.,

(1971)1C.L.R. 134, where Hadjianastassiou, J., giving the judgment of the court, referred to the testtobeappliedindeterminingan applicationfor amend20 ment of pleadings in a passage at pp. 143, 144 which reads: 25 "On theparticular facts of this casehaving regard to what took place at thetrial,I cameto theconclusion that an injustice would be done to the other sideby allowing the amendment and I would, therefore, not accept the submission of the counsel for the respondentonthispoint". Wethink it appropriate to concludebyparaphrasing in a shortened form the last paragraph of the passage we 30 have cited from the judgment in the Karmiotiscase: On theotherhand let usmakeitquiteclearthatthislitigation cannot, and does not purport to, adjudicate upon the existence of any right to aremedy in respect of the registration of the house in the respondent's name which may be 35 based on fraud. Application dismissedwithcosts.Theappealtobefixed bytheregistrarforhearing. Applicationdismissedwithcosts. 99 1977 Febr. 18 IFIGENIA PATSALIDOU v. ANDREAS COSTA KYRIAKIDES