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(1979)1979 April 13 [TRIANTAFYLLIDES, P., STAVRINIDES, HADJIANASTASSIOU, J J.] ANTHOULLA MELAISI, Appellant-Defendant, v. M. & M. GEORGHIKI ETERIA LTD., Respondents-Plaintiffs. (CivilAppealNo. 5218). Statutes—Retrospective operation—Presumption against—Not applicable to enactments affecting onlytheprocedure or practice of the Courts—Section 2 of the Sale of Land (Specific Performance) Law, Cap. 232, as amended by section2 of Law 50/70 not only of a procedural nature—Cannot bepresumedto 5 be of retrospective effect and applicable tocontractsenteredinto prior to itsenactment. Sale of Land (Specific Performance) Law, Cap.232—Section 2 as amended by section2 of Law 50/70—Not only of a procedural nature—Cannot be presumed to be of retrospective effectand 10 applicable to contracts enteredintoprior to inenactment. Contract—Sale of land—Whether time of completion of the essence of the contract—Principles applicable—Undertaking by seller to complete "onpayment of the whole purchasepriceandatany rate not later than" a specifiedtime—Offer by buyers to pay 15 about a month later than specifiedtime—Even if time of the essenceofthecontractbreach thereofnotbroughtaboutbybuyers —Because theirfailure toperform it at a specified time rendered it voidable at the option of the seller who, however, took no steps to avoidit onsuchground—Section 55of theContract Law, 20 Cap.
  1. By a contract of sal£, entered into on May 6, 1970, the appellant-defendant sold to the respondents-plaintiffs certain shares in four plots of la^pd,situated in the vicinity of Morphou, at theagreed price of £4.
  2. £1,500waspayable onthe signing 25 of the contract and the balance was payable not later than six months thereafter with interest at 9% from the date of the contract The appellant undertook to transfer the properties 748 1 CX.R. 5 10 15 20 25 Melalsi τ. Georgbikl Eteria sold on payment of the whole price andat anyrate notlater than the6th November,
  3. On May9, 1970,therespondents deposited at theNicosia District Lands Office a copy ofthe contract of saleundertheprovisions of the Sale of Land(Specific Performance) Law,Cap.
  4. Byletter'dated December1, 1970 therespondents requested theappellant tofixa date for the transfer and,also, informed himthat they were ready to pay "the balance of the sale price". As the appellant failed to respond to the above request andto three similar subsequent requests which were made byletters dated January 15, February 19 and March6, 1971 therespondentsfiledan action for specific performance. At thetimewhen thecontractwas enteredthelegislative provi­ sions under which specific performance of such contract could have been secured were those insection 2* ofthe Sale ofLand (Specific Performance) Law, Cap. 232 paragraph (d)of which provided that a contract could be specifically enforced "if an action has been instituted within two months from the date when the contractwasmade tocompel the specific performance thereof". On May29,1970, therewas enacted the Sale of Land (Specific Performance) (Amendment) Law, 1970(Law 50/70) by means of which thesaid paragraph (d) was amended** soas tomake possibletheinstitutionof theactionwithinaperiod ofsix months and the reckoning ofsuch period from adate later than thedate of thecontract. Respondents' actionwasnotfiledwithin two monthsfrom the date when thecontract was made, but,much later, onMarch 31,
  5. 30 35 The trial Court, having held that the time specified inthe contract was only a formal part andwasnotof the essence of the contract andthat theamendments of Law 50/70, being of a procedural nature,could beapplied tocontracts of sale made prior totheir enactment,made anorder of specific performance against the appellant. * Quoted in full at p. 759post. *· Seethe relevant amendment at p. 762post. 749 Melaisi τ. GeorghikJEteria
(1979)Upon appeal; Held, thatno statute shall beconstrued tohave a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implica­ tion; that though the presumption against retrospective constru- 5 ction has no application to enactments which affect only the procedure or practice of the Courts, the provisions of section 2 of Cap. 232, as amended by theprovisions of section 2 of Law 50/70, cannot be regarded as being only of a procedural nature, so that they could be presumed to be of retrospective effect and 10 applicable to contracts entered into prior to their enactment, such as the contract between the parties nor can be found in them any express or implied intention of the Legislature that they should have a retrospective effect, so that they could be treated as applicable to thesaid contract (pp.767-8post); that, 15 therefore, in the present case it was notopen to the trial Court to apply theprovisions of Law 50/70to thecontractwhich is the subject matter of these proceedings; and that, consequently, no order for its specific performance could have been made,the only remedy of the respondents being damages for dreach of 20 such contract which have to be assessed by the trial Court. On the questionwhether the trial Court was right in finding that timewas not of theessence of thecontract between the appel­ lant and the respondents: Held, (after referringto the relevant principles of law—vide 25 pp. 754-7post) that even if thisCourtwereto reach a conclusion different from that which has been reached by the trial Court on this point—as it has been invited to do by counsel for the appellant— this would not result in its finding in favour of the appellant to the effect that it was the respondents, and not 30 herself, who brought about a breach of the contract because under the provisions of section 55 of the Contract Law, Cap. 149 any failure of the respondents to perform the contract at a specified time rendered it voidable, and yet the appellant took no steps to avoid it on such a ground; and, that, furthermore, 35 after the time specified for its performance had elapsed, she was repeatedly called upon by the respondents to perform the contract, in exchange of the respondents performing their own obligations under such contract, but she failed to respond in 750 1 C.L.R. Metals)τ. GeorgtaiklEteria a positive manner; with the result that there has taken place a breach of the contract for which she is responsible. Appeal allowed. 5 10 !5 20 25 30 35 Cases referred to: Stickney v. Keeble andAnother [1915]A.C. 386 at pp. 415-416; Smith v. Hamilton [1950] 2 All E.R. 928 at pp. 932-933; Shiacolas v. Michaelides and Another
(1967)1 C.L.R. 290 at p. 300; Avgoustisv. Papadamou and Another
(1968)1 C.L.R. 66 at PP. 73-76; Xenopoullos v. Makridi
(1969)1 C.L.R. 488; " Avgi" Yerolakkos Buses Co. Ltd. v. Administrators of the Estate of CostasChristou
(1971)1 C.L.R. 1 at p. 13; Inre Chapman;Cocks v. Chapman [1896] 65 Law J. Rep. Chanc. 170 at p. 172; R. v. Harm (Richard) [1970] 3 AH E.R. 746 at p. 754; Williams v. Williams
(1971)2 All E.R. 764 at pp. 770-771. Appeal. Appeal by defendant against the judgment of the District of Nicosia (Stylianides, P.D.C. and A. loannides, Ag. D.J.) dated the 11th June, 1973, (Action No. 1998/71) whereby an order of specific performance of a contract of sale of land was s made against her. L. N. Clerides with T. Eliades, for the appellant. K. Mickaelides, for the respondents. Cur. adv. vult. TRIANTAFYLUDES P. read thefollowing judgment of the Court. The appellant challenges a judgment of the District Court of Nicosia by means of which there was made against her, as a defendant in theactionbefore the trial Court,an order of specific performance of a contract of sale of land dated May 6, 1970, which was entered into between her and the respondents, who were the plaintiffs in the said action. Counsel for the appellant has, inter alia, contended, during the hearing of this appeal, that the judgment of the trial Court is erroneous inthat itwas wrongly held by it that the respondents had not broken theaforesaid contractby contravening a term of 751 Triantafyllides P.
(1979)Melalsi v. Georghikl Eteria it as to thetime of its performance, which was an essential term, and, also, because the trial Court was not entitled to order specific performance of the contract in question, either on the strength of the law applicable to it or in the course of a proper exercise of its relevant discretionary powers. 5 The uncontested facts of this case, as they are set out in the judgment of the trial Court, are as follows:" On 6/5/70 the Defendant by a contract of sale (exh. 2) sold to the Plaintiff Company 1124223/40642560 shares of the following properties situated in the vicinity of Morphou 10 and known as Merra: Plot No. Block 35 3 6 23 F G Κ L Plot No. Block 26 142 150 Μ Μ Μ The sale price was agreed at £4,
  1. £1,500 was payable on the signing of thecontract; thevendor acknowledged in the contractexh. 2 that she received this amount of £1,500 and undertook topay £1,000 thereof to theCharteredBank 20 towards her mortgage debt, as the properties subjectmatter of the sale were mortgaged in favour of the said Bank. The balance was payable not later than 6 months thereafter with interest at9% from thedate of thecontract. The Defendant undertook to transfer the properties sold 25 on payment of the whole price and at any rate not later than the6/11/
  2. TheDefendantonthedateof thesigningof thecontract— 6/5/70—issued a receipt (exh. 3) acknowledging thereby that she received from the Plaintiffs £1,500 on account of 30 the 'contractof saledated 6/5/70'. ThePlaintiffs on9/5/70 by A 13/70 (exh. 1)deposited at the Nicosia District Lands Office a copy of the contractof sale under theprovisions of theSale of Land (Specific Performance) Law, Cap.
  3. By letter dated 1/12/70 (exh. 8) the Plaintiffs requested 35 the Defendant to fix a date for the transfer and make the necessary arrangements for the cancellation of the charge 752 15 1 C.L.R. Mclaisi v. Georghiki Eteria Triaotafyllides P. in favour of the Bank. They informed the Defendant that they were ready to pay 'the balance of the saleprice'. 5 10 15 20 25 By a second letter dated 15/1/71 the Plaintiffs requested the Defendant to transfer the properties subject-matter of the contract of sale within 8 days; it was brought to her knowledge that the properties had been impeded according to the law; the Defendant was further notified that if she failed to comply, the Plaintiffs would resort to the Court and claim specific performance. (See exh.9). The Defendant, not only did not comply with the aforesaid request but did not even reply. On 19/2/71 Mr. K. Michaelides, the Plaintiffs' advocate, sent to the Defendant by double registered post, a notice (exh. 10) whereby he called upon the Defendant for the last time, within 8days,tofixa day for the transfer of the properties sold in the name of the Plaintiffs. The Defendant did not respond. On 6/3/71 by double registered letter the same advocate called upon the vendor to appear on 12/3/71 at
  4. a.m. before the Land Registry Office of Nicosia and transfer to Plaintiffs, free of any charge or encumbrance, the immovable properties sold to them by the contract of sale of 6/5/
  5. This letter was received by the Defendant on 8/3/71 (see exh. 11 and 11a). As nothing was heard of the Defendant this action ensued." Section 55of the Contract Law, Cap. 149,reads as follows:- 30 35 "55.
(1)Whena partyto acontract promisestodo a certain thing at or before a specified time, or certain thingsat or before specified times, and fails to do any suchthingat or before the specified time, the contract, or so much of it as has not been performed, becomesvoidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.
(2)if it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or 753 Triaotafyllides P. Melolsi τ. GeorghiklEteria
(1979)before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.
(3)If, in case of a contract voidable on account of the promisor's failure to perform his promiseat thetimeagreed, 5 the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-perform­ ance of the promise at thetimeagreed, unless, at thetime of such acceptance, he gives notice to the promisor of his 10 intention to do so." The above provision is the same as section 55 of the Indian Contract Act, 1872 (see Pollock and Mulla on the Indian Contract and Specific Relief Acts, 9th ed., p. 386). As it is stated in Pollock andMulla,supra(atp.387)"thePrivy 15 Council has observed that this section does not lay down any principle, as regards contractsto sell land in India,different from those which obtain under the law of England"; therefore, also, our own section 55 of Cap. 149, above, does not lay down the law in a manner different from the corresponding principles of 20 English Law. In Stickney v. Keeble and another, [1915] A.C. 386, Lord Parker of Waddington stated (at pp. 415-416) the following:" My Lords, in a contractfor the sale and purchase of real estate, the time fixed by the parties for completion has at 25 law always been regarded as essential. In other words, Courts of law have always held the parties to their bargain in this respect, with the result that if thevendor is unable to make a title by the day fixed for completion, the purchaser can treat the contractas at an end and recover his deposit 30 with interest and the costs of investigating the title. In such cases, however, equity having a concurrent jurisdiction did not look upon the stipulation as to time in precisely the same light. Where it could do so without injustice to thecontractingparties it decreed specific perfor- 35 mance notwithstanding failure to observe the time fixed by thecontractfor completion,and as an incidentof specific performance relieved the -party in default by restraining proceedings at law based on such failure. 754 1 C.L.R. 5 10 15 Melaisi v.Georgblki Eteria TriantafyllidesP. This is really all that is meant by and involved in the maxim that in equity the time fixed for completion isnot of the essense of the contract, but this maxim never had any application to cases in which the stipulation as to time could not be disregarded without injustice to the parties, when, for example, the parties, for reasons best known to themselves,had stipulated that the timefixedshould be essential, or where there was something in the nature of the property or the surrounding circumstances which would render it inequitable to treat itasanon-essential term of the contract. It should be observed, too, that it was only for the purposes of granting specific performance that equity in this class of case interfered with the remedy at law. A vendor who had put it out of his own power to complete the contract, or had by his conduct lost the right to specific performance, had no equity to restrain proceedings at law based on the non-observance of the stipulation as to time." In Smith v. Hamilton, [1950] 2 All E.R. 928, Harman J. said (at pp. 932-933): 20 25 30 35 40 " This was a contract for the sale of land, and it goes without saying at this date that, unless there was something special, the time limited inthe conditions of salefor completion was not a date which, in the words of the old law, was of the essenceofthecontract. In otherwords, the equitable view which now prevails in regard to all contracts and has prevailed for a very long time in the case of real estate is that the Court looks to the substance of the matter and will not allow provisions relating to dates to control the general view that the contract, when made, is to be performed if it isjust and equitable so to do, notwithstanding that time be over-run. There are, of course, circumstances in which timecan besaid to be-of the essense of the contract from the beginning. Everybody knows, for instance, that on a sale of licensed premises, or a sale of a shop as a going concern, and, perhaps, the sale of animals in certain circumstances, time is of the essence because it necessarily must be so. Apart from that, however, it would need very special circumstances to make time of the essence of the contract on a sale of an ordinary private dwelling-house with vacant possession. 755 Triantafjllldes P. Melaisi τ. Georghttd Eteria
(1979)It is quite true that the negotiations of the parties before the contract is made may have the effect of making time of the essence, and I was referred by counsel to a case where LORD HALDANE, in delivering the judgment of the Judicial Committee of the Privy Council, made a number of illuminating observations on this subject. It was an Indian Appeal, Jamshed Khodaram Irani v. Burjorji Dhunjibhai, [1915], 32 T.L.R. 156, wliich turned on a provision in theIndianCode. LORDHALDANEsaid, after reading the section of the Code (32 T.L.R. 157): 5 10 * Their Lordships did not think that that section laid down any principle which differed from those which obtained under the law of England as regarded contracts to sell land. Under that law equity, which governed the rights of the parties in cases of specific 15 performance of contracts to sell real estate, looked not at the letter but at the substance of the agreement, to ascertain whether the parties, notwithstanding that they named a specific time within which completion was to take place, really and in substance intended 20 no more than thatit should take place within a reason­ able time The special jurisdiction of equity to disregard the letter of thecontractin ascertaining what the parties to the contract were to be taken as having really and in substance intended as regards the time of 25 its performance might be excluded by any plainly expressed stipulation. But to have that effect the language of the stipulation must show thatthe intention was to make the rights of the parties depend on the observance of the prescribed time limits in a fashion 30 which was unmistakable. The language would have that effect if it plainly excluded the notion that those time limits were of merely secondary importance in the bargain, and that to disregard them would be to disregard nothing that lay at its foundation. Prima 35 facie, equity treated the importance of such time limits as being subordinateto the main purpose of the parties, and would enjoin specific performance notwithstanding that from the point of view of a Court of law the contract had not been literally performed by the plain- 40 tiff as regards the time limit specified. That was merely an illustration of that general principle of 756 1 C.L.R. 5 10 15 Melalsl v. Georghiki Eteria Triantafyllldcs P. disregarding the letter for the substance which Courts of equity applied when, for instance, they decreed specific performance with compensation for a nonessential deficiency in subject-matter. ,But equity would not assist where therehad been undue delay on thepart of one party to the contract and the other had given him reasonable notice that lie must complete within a definite time. Nor would it exercise its jurisdiction when the character of the property or when other circumstances would render such exercise likely to result in injustice, in such cases,thecircumstances themselves, apart from any question of expressed intention, excluded thejurisdiction. Equity would further infer an intention that time should beof the essence from what had passed between the parties before the signing of the contract." In the light of the above exposition of the relevant principles of law it has to be examined whether the trial Court was right infindingthat, in the particular casebefore us, time was not of 20 theessenceofthecontractbetweentheappellant and therespondents;ithasstatedthefollowing,inthisrespect,initsjudgment:- 25 30 35 40 " We revert to the facts and circumstances of the case under consideration. In the contract (exh. 2) the parties named a specified time at which completion was to take place. The Plaintiffs/purchasers undertook to pay the purchase price 'not later than six months from today' and the Defendant/vendor to transfer the land free 'on payment of the wholepurchase price and at any rate not later than the6thNovember, 1970'. In sequenceoftimethepayment would precedethe transfer. The payment and the transfer, in our view,would substantially take effect simultaneously. The subject of the sale is land—shares of plots of land. They were charged with a mortgage in favour of a Bank. Thecontract provided for the.payment of interest from the date of the contract on the unpaid purchase price at the maximum rate permissible by the relevant law. Having regard to all the circumstances of this case, in ourjudgment, the object of the parties was the sale of the land;thePlaintiffs tookuponthemselvestopaythepurchase price and the Defendant to transfer the land in thenameof 757 Triantafyllides P. Mclalsl v. Georghiki Eteria
(1979)the vendor. The time specified in the agreement is only a formal part and wasnot of the essence of the contract." Even if we were to reach a conclusion different from that which has been reached by the trial Court on this point—as we have been invited to do bycounsel for the appellant—this would 5 not result in our finding in favour of the appellant to the effect that it was the respondents, and not herself, who brought about a breach of the contract; because under the provisions of section 55 of Cap. 149 any failure of the respondents to perform the contract at a specified time rendered it voidable, and yet the 10 appellant took no steps to avoid it on such a ground; and, furthermore, after the time specified for its performance had elapsed, she was repeatedly called upon by the respondents to perform the contract, in exchange of the respondents performing their own obligations under such contract, but she failed to 15 respond in a positive manner, with the result that there has taken place a breach of the contract for which she isresponsible. The sequence of the relevant events is set out in the passage already quoted above, in connection with the uncontested facts, from the judgment of the trial Court. 20 Before concluding this part of our judgment it is useful to refer to the case of Shiacolas v. Michaelides and another,
(1967)1 C.L.R. 290, where Hadjianastassiou J. stated the following (at p. 300):" There is, therefore, no difficulty on our part in upholding 25 theJudgment of the trial Court on theview that even though time was of the essence originally, the appellant by his conduct deprived himself of the possibility of terminating his contracts with respondents on such a ground, but on the contrary having waived the stipulations as to time he later 30 on broke such contracts himself." There remains to examine, next, whether the respondents were entitled to the order of specific performance which was made in their favour: As was already stated the contract was entered into on May 35 6,
  1. At that time the legislative provisions under which specific performance of such contract could have been secured werethose in section 2ofthe Sale of Land (Specific Performance) Law, Cap. 232, which read as follows:758 1 C.L.R. 5 Melaisi v. Georghiki Eteria Trlantafyllldes P. "
  2. Subject to the provisions hereinafter contained, every contract for the sale of immovable property shall be capable of being specifically enforced under the order of a District Court or the Supreme Court, if it is a valid contract according to law and if the following conditions have been complied with in relation thereto, viz.:(a) if it is in writing; 10 15 (b) if the purchaser shall within twenty-one days of the date of the contract deposit or cause to be deposited at the District Lands Office of the district within which the property is situate a copy of the contract; (c) if the purchaser has before the institution of an action to compel specific performance of the contract, called upon the vendor to appear before a District Lands official and declare that he has agreed to sell the property mentioned in the contract; (d) ifan action hasbeen instituted within two months from the date when the contract was made to compel the specificperformance thereof." 20 25 30 35 Uisuseful, especially in relation to matters withwhich wewill have to dealwith later on inthisjudgment, toquote the following passages from the majority judgment in the case of Avgousti v. Papadamouandanother,
(1968)1C.L.R. 66(at pp. 73-76):" The principal ground onwhich the trial Court has refused specific performance was that the action had not been instituted within two months from the date when the relevant contract was made, as expressly provided for under section 2(d) of the Saleof Land (Specific Performance) Law, Cap.
  1. It has been argued by learned counsel for the appellant that the expression 'from the date when the contract was made', in the aforesaid section 2(d), should be interpreted as meaning, ineffect, from the date when the cause of action under such contract arose; actually, in the present case, in view of the terms of the contract between the parties, such cause of action did not arise until about one year after the contract was entered into, namely, on September,
  2. 759 Triantafytlidcs P. Melaisi v. Georghiki Eteria
(1979)We arc unable, in the face of the express wording of section 2(d) of Cap.232,to accept the submission of counsel for the appellant. It seems, in the last analysis, that the provisions of section 2 of Cap. 232 are designed to make possible specific performance in cases in which the right to sue does arise within a period of two months after the making of a contract for the sale of immovable property, as, for instance, when the stipulated time for performance expires, or there is an anticipatory breach of contract, within such period. 5 10 The last submission of counsel for the appellant has been that section 76 of the Contract Law, Cap. 149, which provides about specific performance of contracts in general, is applicable to cases of contracts' for the sale of immovable property, such as the present one, notwithstanding the 15 existence of the express provisions, governing specific performance of such contracts, in Cap. 232; counsel has submitted in this connection that the trial Court failed to consider the possibility of granting specific performance under section 76 of Cap. 149, and that whatever has been 20 stated in its judgment to the effect that this is a case in which, in any event, damages and not specific performance would be the appropriate remedy, has not been stated by reference to section 76, but by reference to section 8 of Cap. 232, only. 25 Sub-section
(2)of section 76 of Cap. 149 reads as follows :' Nothing herein contained shall affect the specific performance of contracts for the sale of immovable property under the provisions of the Sale of Land 30 (Specific Performance) Law, or any amendment thereof. In spite of the not very happy manner inwhich sub-section
(2)of section 76of Cap. 149has been phrased, we have really no doubt in our minds that what was intended to be 35 conveyed thereby is that the provisions of sub-section
(1)of section 76, regarding specific performance of contracts in general, shall not 'affect', in other words, shall not be applicable to specific performance of contracts for the sale 760 1 C.L.R. Melaisi τ. Georghiki Eteria TriantafyDides P. of immovable property, and that this matter should continue to be governed, as before, solely by the provisions of Cap.' 232. 5 10 15 20 We cannot sec any valid reason for which Cap. 232 should have been allowed to remain on the statute-book when section 76 of Cap. 149 was enacted, if it was intended to put contracts for the sale of immovable property on the same footing as all other contracts, in so far as specific performance thereof was concerned; we do think that it was not so intended, because of the special considerations which apply to the specific performance of contracts for the sale of immovable property in the context of the land registration system in force in Cyprus, and to which system the provisions of Cap. 232 are correlated in express terms. As at present advised we know of no case in which the view that section 76 of Cap. 149 does not apply to a case of specific performance of a contract for thesale of immovable property was ever doubted, and, on the contrary, in 1959 the then Supreme Court of Cyprus adopted, without question, such view in Jordanou v. Anyftos (24 C.L.R., p. 97).M The Avgousti case, supra, was followed in Xenopoullos v. Makridi,
(1969)1 C.L.R. 488. 25 30 35 After the conclusion of the contractfor thesale of the land, on May 6, 1970, the respondents proceeded to deposit it at thu appropriate District Lands Office on May 9, 1970, that is well within the period of twenty-one days specified in section 2(
  1. b)of Cap. 232; but, the action out of which this appeal has arisen was not filed by the respondents against the appellant within two months from the date when the contract was made, as envisaged by section 2(
  2. d)of Cap. 232, but, much later, on March 31, 1971. Actually, it was impossible to have filed the action within two months from the date of the conclusion of the aforementioned contract, because it was provided therein that it would be performed not later than within six months thereafter and, therefore, the cause of action for its breach did n^t arise within the period of two months envisaged by section 2(d), above, but much later. 761 TriantafylUdes P. Melalsi τ. GeorghikiEteria
(1979)Councel for the appellant has contended, therefore, that it was not, in the circumstances, possible for the trial Court to order specific performance of the contract concerned, as there had not been due compliance with all the prerequisites laid down by section 2 of Cap. 232. 5 On the other hand,counsel for the respondents has argued that it was rendered possible for the trial Court to order specific performance, because, in the meantime, there was enacted, on May 29, 1970, the Sale of Land (Specific Performance) (Amend­ ment) Law, 1970 (Law 50/70), section 2 of which reads as 10 follows :"2.—
(1)Paragraph (b) of section 2 of the principal Law is hereby amended by the deletion therefrom of the words 'twenty-one days* (first line) and the substitution therefor of the words 'two months'. 15
(2)Paragraph (
  1. d)of section 2 of the principal Law is hereby amended as follows: (
  2. a)by the deletion therefrom of the word 'two' (first line) and the substitution therefor of the word 'six'; (
  3. b)by the substitution of the full stop at the end thereof by 20 a colon and the addition immediately after of the following proviso: 'Provided that where in the contract a later date is specified or implied for the declaration of transfer of the immovable property mentioned therein, or for the 25 payment of the consideration, or for the payment of the last instalment of the consideration agreed to be paid off by instalments (including the case of a contract of hire-purchase), the period of six months prescribed by this paragraph shall begin to be reckoned from 30 such later date specified in the contract' ". The trial Court, in agreeing with theview of the respondents, on this point, stated the following in its judgment: " The amending law 50/70 only extended the time in which the action may be commenced. It does not affect the contract. It takes away no vested rights. No person has a vested right in any course of procedure. He has only the 762 35 1 C.L.R. 5 10 15 20 25 30 35 Melaisi τ. Georghiki Eteria Triantafyllides P. right of prosecution or defence in the manner prescribed for thetimebeing,by orfor theCourtinwhich hesues, and, if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode. (Maxwell on Interpretation of Statutes 9th Ed., p. 232). Provisions relating to thetime for the bringing of proceedings are regarded intheabsence of any indication to apply to all proceedings instituted after their commence­ ment,notwithstanding that the cause of action arose before that time. Thelegislator by theamendmentof para, (d)of Section 2 of Cap. 232 intended to make available the remedy of specific performance to numerous purchasers. Sales of immovable property during thedecade 1960-1970increased considerably. Those sales were rarely on a cash basis. Payment of the purchase price was by agreement made within a time much longer, than the two months period prescribed by the old law, or by instalments"which were spread in many cases over a number of years. The law was glaringly defective. The equitable remedy of specific performance was beyond thereachof many purchasers who performed their obligations. The law led to injustice and protected the defaulters (vendor) who, due to the galloping of.prices, obtained unfair advantage by opting to pay damages atcommonlaw undertheprovisions ofSection 73of theContractLaw. Thislegalremedy was inadequate. The aim of the legislator was to provide for this defect in the law. In our judgment, the object of law 50/70 would be defeated if we held that it does not apply to contracts of sale made prior to the date it came into operation. It is plain that the purchasers in contracts made prior to the enactment of law 50/70, who can bring themselves within the provisions of the amendment, are within the scope of the law." We are unable to uphold as correct theabove view of the trial Court: In Maxwell on Interpretation of Statutes, 12 ed., it is stated (at pp. 215, 216):- 40 "Upon the presumption that thelegislature does notintend what isunjust rests theleaning against givingcertain statutes 763 Trtantaf>Hides P. Melafsi τ. Georgliiki Eteria
(1979)a retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective 5 operation unless such a construction appears very clearly in the terms of theAct, or arises by necessary and distinct 1 implication . The statement of the law contained in the preceding paragraph has been 'so frequently quoted with approval 10 2 that it now itself enjoys almost judicial authority '". f'*J_ Inthis connection, useful reference may,also, be madetothe 7~r~>' judgment of our Supreme Court in "Avgi" Yerolakkos Buses Κ '"Co. Ltd. v. Administrators of the Estate of Costas Christou, •J^ -(Ϊ971) 1 C.L.R. 1,
  1. 15 .V -5 $ V.; - is meant by retrospective of avol. statute is explained inWhat Halsbury's Laws of England,effect 3rd ed., 36, p. 423, para. 643, as follows:" It has been said that the word 'retrospective' is somewhat ambiguous and that a good deal of confusion has been 20 caused by the fact that it is used in moresenses thanone. In general, however, the Courts regard as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or conse- 25 quences of transactions previously entered into or of other past conduct. Thus a statute is not retrospective merely because it affects existing rights; nor is it retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing." 30 The presumption against retrospectivity does not apply to procedural Acts; in this respect, the following are stated by
  3. West v. Gwynne [1911] 2 Ch. 1, per Kennedy L.J. Cf. Smith v.Callander [1901] A.C. 297; Re Snowdon Colliery Co., Ltd. [1925] 94 L.J. Ch.
  4. Carson v. Carson\\9(A)1 W.L.R. 511,perScarmanJ.at p.
  5. Cf.Croxford v. Universal Insurance Co., Ltd.
(1936)per Scott L.J. at p.
  1. 'That page (of Maxwell) seems to mc to contain an almost perfect statement of the piincipl'.· that you do not give a statute retrospective operation unless there is perfectly clear language showing the intention of Parliament that it shall have a retrospective applicjiion." 764 1 C.L.R. Metebl τ. Georghiki Eteria TrlantafyliidcsP. Maxwell,supra (at p. 222): "Thepresumptionagainst retrospe­ ctive construction has noapplication to enactmentswhich affect only theprocedureand practice of the Courts. No person has 1 a vested right in any course of procedure, but only the right of 5 prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and if an Act of Parliament alters that mode of procedure, he can only proceed 2 according to the altered mode . 'Alterations in the form of procedure are always retrospective, unless there is some good 3 10 reason or other why they should not be'. " It is not always an easy task to decide whether a statute is procedural, or, if it is not of such a nature,whether it has been framed insuch a way as to be intendedto begiven retrospective effect; theanswers tothesequestions aretobefound byconstru15 ingeach particular statute with the aid of appropriatecannons of interpretationof statutes, and in the light of the guidelines laid down, in this respect, by relevant case-law. In inre Chapman', Cocks v. Chapman, [1896]65 Law J. Rep. Chanc. 170, Kekewich J. said (at p. 172):20 25 30 35 '*Thereare many cases upon the general doctrine whether an Act of Parliament may be read retrospectively or not, and there are many cases upon the meaning of particular statutes. We have thegeneral law concisely stated by Lord Hatherley, in his Judgment in Pardo v. Bingham4, where he says: 'The question is whether on general principles the statute ought in this particular section to be held to operate retrospectively, the general rule of law undoubtedly being that, except there be - clear indication either from the subject-matter or from i"w wording of a statute, the statute is not to have a retrospective construc­ tion.' That is to say, generally you assume it is notretro­ spective, but you may find that presumption rebutted by a consideration of the subject-matter or by the language of the statute. Then he says: 'In fact, we must look to the general scopeandpurview of the statute,andat theremedy ... . . . . c 1.' 'Republic of Costa Rica v. Erlanger [1874] 3 Ch.D. 62, per Mellish ) .
  2. Wright y/ffaje [1860] 39LJ. Ex.40,per WUdeB.
  3. Gardner v. Lucas [1878] 3 App. Cas. 582, per Lord Blackburn at p.
  5. Law' Repl 4 Ch.
  6. -" *-<-ι· 765 TriantaFyllides P. Melaisi v. Georghiki Eteria
(1979)sought to be applied, and consider what was the former stateof thelaw, andwhatitwas thattheLegislature contem­ plated.' Of course that opens up a widefield of enquiry, but nowords canexpressbetter than thoseof Lord Hatherley what the duty of the Court is." 5 In R v. Harris (Richard), [1970]3All E.R. 746, MacKennaJ. said (at p. 754):" In this matter our Courts have always distinguished be­ tween statutes alteringthesubstantive law andthose altering rules of procedure or the law of evidence. Where thetrial 10 is held after the substantive law is changed,theyapply the old law to transactions taking place before the change was made and the new law only to subsequent transactions. But where thechangeis intherules of procedure or thelaw of evidence, the new law is applied in both cases." 15 In Williams v. Williams, [1971]2All E.R. 764, Lord SimonP. said (at pp. 770-771):" Rules about retrospection of statutes The rules about retrospection of statutes are set out in Maxwell on Interpretation of Statutes1 and Craies on 20 Statute Law2 in passages which have frequently been cited with approval: * A statute is deemed to be retrospective, which creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or 25 considerations already past. But a statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing2'. A distinction is to be drawn between statutes altering sub- 30 stantive law and thosealtering adjective law orprocedure
  1. 'In general, when the substantive law is altered during the pendencyof an action,the rights of the parties are decided according to the law as it existed when the
  2. 12th Edn, 1969, pp. 215, 220-
  4. See Craies, 6th Edn, p.
  6. Sec especially Maxwell, 12th Edn, pp. 220-
  7. 766 ^"»ί-*"'- 1 C.L.R. Melals! τ. Georghiki Eteria Triantafyllides P. action was begun, unless thenew statute shows a clear intention to vary such rights1.' 5 10 This rule is a presumption only; and it may be overcome either by express words in the statute showing that the provision is intended to be retrospective, or 'by necessary and distinct implication' demonstrating such an intention
  8. * The presumption against retrospective construction has no application to enactmentswhich affect only the procedure and practice of the Courts: alterations in the form of procedure are always restrospective, unless there is some good reason why they should not be ' 3 . It follows that this rule too (as to procedural provisions) is presumptive only." 15 Looking attheprovisions of section2of Cap.232,asamended by theprovisions of section2of Law 50/70, we have reachedthe conclusionthatwe cannotregard theamendmentsin question as being onlyofaproceduralnature,sothattheycouldbepresumed to be of retrospective effect and applicable to contractsentered 20 into prior to their enactment,such as the contract between the parties inthepresentcase. Norcanwefindinthemany express or implied intention of the Legislature that they should have retrospective effect, so that they could be treated as applicable to the said contract. 25 Theprovisions of section 2 of Cap. 232, as they stood before their amendmentin 1970, were not merely procedural, but they laid down theprerequisites which had to be f; '-'led in order to render a contractfor thesaleof immovable property specifically enforceable in case it was broken;andtheir amendment in 1970 30 did not alter, in any way, their essential nature. In our opinion, it is clear that it was not intended by the Legislature torendercontractsenteredintobefore the enactment of Law 50/70 specifically enforceable under such Law and the
  9. Maxwell, 12th Edn, pp. 220,
  11. See Maxwell, 12th Edn, pp. 215,
  13. Maxwell, 12th Edn, p.
  14. The quotation is from Gardner v. Lucas [1878] 3 App. Cos. 582 at 603 per Lord Blackburn. 767 Triantafyllides P. Melaisi v. Georghiki Eteria
(1979)sole object of Law 50/70 was to create greater possibilities of specific performance of contracts which would be entered into in future. In the present instance the contract concerned was deposited, as already stated, with aDistrict Lands Office within the period 5 of twenty-one days prescribed by section 2(
  1. a)of Cap. 232, as it stood before its amendment by Law 50/70; and, it was so deposited even before the enactment of such Law. We do not think that it could be seriously argued that ifit had not beenso deposited and if the said period of thetwenty-one daysexpired, 10 as it has expired, before the enactment of Law 50/70, then, because such period was extended to two months by means of the amendment introduced, in this respect, by Law 50/70, it would havebeen possibletodepositthecontract inquestionwith the District Lands Office within the extended period of two 15 months, thus rendering a contract in respect·of which the substantive rights of the parties had crystallized in the sense that it was ho longer specifically enforceable, a contract which had become, once again, specifically enforceable. In this way the substantive rights of the parties would have been directly and 20 materially affected ina manner not contemplated bythem at the time when they entered into the contract concerned. Nor can it be said that the provisions in paragraph (
  2. a)of section 2 of Cap. 232 relate to substantive rights, whereas the provisions in paragraph (
  3. d)of the same section are of a proce- 25 dural nature only; we regard all the prerequisites set out in section 2of Cap. 232,evenasnowamendedbysection2ofLaw 50-70, as being a closely interwoven and interrelated set of prerequisites which relate to substantive rights, even if they do have certain procedural elements which, however, are not 30 decisive as regards the essential nature of such prerequisites. We, therefore, find that in the present caseit washot open to the trial Court to apply the provisions of Law 50/70 to the contract which is the subject matter of these proceedings and, consequently, no order for its specific performance could have 35 been made; and the only remedy of the respondents is to be granted damages for breach of such contract, which have to be assessed by the trial Court. As regards the costs of the proceedings wevary the order of costs made by the trial Court so that the appellant should bear 40 768 1 C.L.R. Melaisi τ. Georghiki Eteria Triantafyllides P. onlyhalf ofthecosts oftherespondentsatthetrial,andweorder that therespondentsshould payhalf ofthecosts oftheappellant in this appeal. Appeal allowed. Order for costsas above. 769

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