clr/1980/1980_1_1.pdf

(1980)he applied for leave to amend his statement of defence in the above action by theaddition of a newparagraph* tothe effect that the order of adoption, relating to the adoption of the respondent, was invalid in law and unenforceable because during its issue theprovisions of the Adoption Law,Cap. 274 5 had not been complied with. The application wasbased onthe ground that after thedelivery onthe 16thDecember, 1977, of the judgment appealed against there came into light new facts, namely that the adoption of the respondent was invalid inlaw in that nocertificate of Ecclesiastical adoption existed. 10 Held, thattheadministrationoftheestate hasbeendelayedfor almost ten years; that the amendmentsought isineffect introdu­ cing atthis very late stage a new ground of relief; that after the closing of the case and after judgment is delivered theCourt veryrarely should grant leavefortheamendmentofthepleadings 15 unless there are exceptional circumstances justifying such a course, once it is in theinterest of justice to finalize litigation between the parties; that in the absence of any exceptional circumstances andparticularly because of such a long delaythe amendment sought should notbeallowed; and that,accordingly, 20 the application must fail (Pourikkos v. Fevzi

(1963)2 C.L.R. 24 and Courtis and Othersv. Iasonides

(1970)1 C.L.R. 180 distinguished). Application dismissed. Cases referred to: 25 Pourikkos v. Fevzi

(1963)2 C.L.R. 24; Courtis and Others v. Iasonides

(1970)1C.L.R.180; AssociatedLeisure Ltd. andOthers v. Associated Newspapers Ltd. [1970] 2 All E.R.754 at p.757; Brownv. Dean [1910] A.C.373; 30 Murphy v. Stone-Wallwork (Charlton)Ltd. [1969] 2 AllE.R. 949; Paraskevas v. Mouzoura

(1973)1 C.L.R. 88. Application. Application for anorder ofthe Supreme Court amending the 35 statement ofdefence inAction No. 1114/76ofthe District Court of Paphos, the hearing of which was concluded andjudgment Quotedat p.3post. 2 1 C.L.R. Nicolaldes & Another τ. Yerolcml delivered onDecember 16,1977, madejustbefore thecommence­ ment of the hearing of the appeal which wasfiled against such judgment. E. Komodromos, for the appellants-defendants. 5 M, Houry, for the respondent-plaintiff. Cur. adv.vult. HADJIANASTASSIOU J. read the following judgment of the Court. Just before the appeal was called, counsel for the appellant applied to this Court by an interlocutory application 10 seeking an order of the Supreme Court to amend the defence filed in Action 1114/76 before the District Court of Paphos which was concluded and judgment was delivered on 16th December, 1977, by adding a new paragraph 8 which reads as follows:- 15 20 25 "The defendants in the alternative are alleging that the order of adoption which was issued in application No. 1/57 by the District Court of Paphos on 20th January, 1958, is invalid in law and unenforceable because during its issue theprovisions of Cap. 274 have not been complied with viz., with regard to the required substantial acts for the issue of an order of adoption i.e., the religious ceremony of adoptionby theChurch, an essential prerequi­ site which is necessary for the issue of a valid and lawful order of adoption, and which provision does not appear in the minutes of the District Court." This application is based on the Civil Procedure Rules, Cap. 12,and particularly on Order 25 r. 1, Order 27 r. 1and on the powers of the Supreme Court. Order 25 r. 1reads as follows:- 30 35 " TheCourtoraJudgemay,atanystageof theproceedings, allow either party to alter or amend his endorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for determining the real questions of controversy between the parties". Our order 25 was apparently taken from the English Rules of Court, Order 28

(1). The said application is based also on Order 27

(1)which deals with points of law raised by pleadings and is in these terms:" Any party shall be entitled to raise by his pleadings any 3 Hadjianastassioa J. Nicolaides & Another v. Yerolemi

(1980)point of law and any point so raised shall be disposed of by the Court at any stage that may appear to it convenient." In support of the present application, Mr. Lambros Nicolaides the administrator of the estate of the late Omiros Demetriades of Paphos, filed an affidavit in which he states in Greek:5 "

1. "Οτι £Ϊμαι ό εναγόμενος είς τήν έγερθεϊσαν κατ* έμοΰ υπό τήν άνω Ιδιότητα αγωγής No. 1114/76 τοΰ 'Επαρχιακού Δικαστηρίου Πάφου ύπό της Μαρίνας Μ. Γερολεμή έκ Πάφου, άΕιούσης κληρονομικόν δικαίωμαεπί της περιουσίας τοΰ ώς άνω είρημένου αποβιώσαντος Όμηρου Δημητριάδη 10 βάσει ΔιατάγματοςΥίοθεσίας ταύτης No. 1/57 'Επαρχιακού Δικαστηρίου Πάφου ύπό της προαποβιωσάσης θυγατρός τούτου Μαρίας Ο. Δημητριάδου μετά τοΰ συζύγου αυτής Μιχαλάκη Γερολεμή, ώς καΐ ό έφεσείων της ύπό τόν άνω αριθμόν καΐ τίτλον εφέσεως. 15
2. "Οτι καλή τη πίστει έκ παρουσιάσεως των έγγραφων υίοθεσίας ύπό τοΰ Τμήματος Κοινωνικής Ευημερίας καΐ πιστοποιημένου αντιγράφου τοΰ Δικαστικού Διατάγματος υΙοΘεσίας ήμερ. 8/1/1958 ύπό τοΰ έκ των υΐοθετησάντων Μιχαλάκη Γερολεμή, έπίστευον ότι συνετελέσθη κατά 20 Νόμον έγκυρος υιοθεσία ύπό αμφοτέρων των ώς ανωτέρω αναφερομένων συζύγων Μαρούλλας Μ.Γερολεμήκαΐ Μιχα­ λάκη Γερολεμή έκ Πάφου.
3. "Οτι κατά τήν μελέτην των πρακτικών τής ύπό έκδίκασιν εφέσεως ύπό τοΰ δικηγόρου μου κ. Ε. Κωμοδρόμου, προ- 25 έκυψαν ζητήματα έκ τοΰ ύποστηριχθέντος Ισχυρισμού ύπό τοΰ δικηγόρου τής εφεσίβλητου, ότι αύτη υίοθετήθη μόνον ύπό τής Μαρίας Μ. Γερολεμή ώς καΐ δι* άλλα συναφή θέματα, διάτήν έ^ακρίβωσιν των Οποίων κατέστη αναγκαία ή διεξαγωγή έρεύνης, τήν 26/5/1978, των πρακτικών τοΰ 30 φάϊλ τής ύπ* αριθμόν 1/57 υιοθεσίας, κατά τήν οποίαν διεπίστωσα ότι ό προβαλλόμενος Ισχυρισμός δέν ήτο βάσι­ μος άλλα καϊ δτι ουδέν ύπήρχεν πιστοποιητικόν συνελεύ­ σεως Εκκλησιαστικής ΥΙοΘεσίας ύφ* οίουδήποτε έκ των αναφερομένων ώς υΐοθετησάντων τήν έφεσίβλητον. 35
4. "Οτι κατά Νομικήν συμβουλήν τοΰ δικηγόρου μου, είναι άπαραίτητον νά προστεθή εϊς τήν έκθεσιν υπερασπίσεως τής έκδικασθείσης αγωγής ύπ' άρ. 1114/76 'Επαρχιακού 4 1 C.L.R. Ntcolaides &Another τ.Yerolemi Hadjlanastasslou J· Δικαστηρίου Πάφου 8η παράγραφος ήτις έχει ώς ακο­ λούθως:' ΟΙεναγόμενοι διαζευτικώςπρος τά ανωτέρωΙσχυρίζονται ότι τό Διάταγμα υΙοΘεσίας τό εκδοθέν εϊς τήν αΐτησιν ύπ' αριθμόν 1/57 ύπό τοΰ 'Επαρχιακού Δικαστηρίου Πάφουτήν 20/1/1958είναι Νόμωάκυρονκαΐάνεφάρμοστον καθ' ότι κατά τήν εκδοσιν του δέν έτηρήθησαν αϊ ύπό τοΰ σχετικού Νόμου Κεφ. 274 προβλεπόμεναι συστατικαΐ πράΕεις διά τήν εκδοσιν Διατάγματος υίοθεσίας ώς είναι ή θρησκευτική τελετή υΙοΘεσίας ύπό τής 'Εκκλησίας, στοιχεΐον έκ των ούκ άνω, δι' έγκυρον καΐ νόμιμον εκδοσιν τοΰ Διατάγματοςυίοθεσίας, στοιχείου μήπαρουσιαζομένου είς τά πρακτικά τοΰ Δικαστηρίου'." 5 10 And in English it reads:15 20 25 30 " 1 . That I am the defendant in the action No. 1114/76 brought against me in the District Court of Paphos in my aforesaid capacity as administrator by MarinaM. Yerolemi of Paphos who demands a hereditary right upon the property of the aforementioned late Omiros Demetriades on the strength of an Adoption Order No. 1/57 of the District Court of Paphos by his predeceased daughter Maria O. Demetriadou with her husband Michalakis Yerolemi, and also the appellant bearing the above number and title in this appeal.
5. That from the presentation of the adoption papers by the Social Welfare. Department and a certified copy of the adoption order of the Court dated 8.1.1958 by the adopter Michalakis Yerolemi, I believed in good faith that a valid adoption has taken place in accordance with the law by both the aforementioned spouses Maroulla M. Yerolemi and Michalakis Yerolemi from Paphos.
6. 35 That in the course of the study of the record of the appeal under trial by my lawyer Mr. E. Comodromos matters came into light from the allegations put forward by counsel of the respondent that she has been adopted only by Maria Yerolemi as well as other relevant matters for the ascertainment of which the carrying out of an investigation on the 26.5.1978, of the record of the file of the adoption under No. 1/57 became necessary from 5 Hadjianastassiou J. Nicolaides & Another v. Yerolemi

(1980)which I realized that the allegations put forward were unfounded and that no certificate of Ecclesiastical Adoption by any of the persons mentioned as having adopted the respondent existed. 4. That according to the legal advice of my lawyer it is 5 necessary toadd in thestatement ofdefence intheaction No. 1114/78 tried by the District Court of Paphos paragraph 8 which reads as follows:'The defendants in the alternative allege that the adoption order issued in the application under No. 1/57 10 by the District Court of Paphos on 20.1.58 is null in law and unenforceable because at its issue the provision of the relevant Law Cap. 274 regarding the acts constituent with the issue of an Adoption order viz., the religious ceremony for adoption by the Church, an essential 15 prerequisite necessary for the issue of a valid and lawful Order of adoption, an element not appearing in the court's record.*" Onthecontrary,onMay25,1978,counselfor therespondentplaintiff opposed the application viz., that the decision of the 20 trial Court should be varied, and asked

(1)to cancel the last paragraph of theoffice copy ofthejudgment which orders "that the costs of this action in favour of counsel for all parties be paid out of the Estate of the deceased Omiros Demetriades";

(2)to substitute for the above-mentioned order, if cancelled, 25 the following:- "And this Court doth further order that the costs of the Plaintiff's action bepaid by the Defendants-Appellants personally." The following are the grounds and reasons for seeking to have the decision varied on appeal:- 30 "

(1)The Appellant/Defendant (I) Lambros Chr. Nicolaides istheAdministrator oftheEstateofOmirosDemetriades, deceased, and is a practising Advocate.

(2)The Appellant/Defendant

(1)was appointed Administrator of the Estate of Omiros Demetriades on the 35 27.4.1967, and he delayed completing the administration for upwards of 10years.

(3)His first step to have the question of whether or not the 6 1 C.L.R. Nicolaides & Another v. Yerolemi Hadjianastassiou J. Plaintiff/Respondent is entitled to share in the Estate of the said deceased Omiros Demetriades was made by Originating Summons No. 58/76 in the District Court of Paphos on the 23.10.76. 5 10 15

(4)The Appellant/Defendant

(2)Iro Demetriades was at all material times mentally afflicted and the Appellant/ Defendant

(1)wasatallmaterial timestheAdministrator of her property.

(5)The issue of law whether the Respondent/Plaintiff was entitled to share in the Estate of Omiros Demetriades isnot a question whichjustified the Appellant/Defendant

(1)to employ any advocate as this was a simple issue whichcould havebeenresolved byhimself asa practising advocate.

(6)The Appeal now made has no merits." Therewasa further application dated 13th June, 1978,made by Marina M. Yerolemi of Paphos, respondent-plaintiff, opposing the application of Mr. Lambros Ch. Nicolaides, and thefacts relied upon inthe opposition areas follows:- 20 25 "(a)The order of adoption referred to in the affidavit attached to the application still stands valid and no steps have been taken by the Respondent/Plaintiff to have it set aside or declared null and void. (b) Any irregularity (which is not admitted) and which may be shown to have occurred in the making of the adoption order is not substantial and, in any event, Section 4

(5)(

1. b)of Cap. 274is qualified by Article 111 oftheConstitution which puts theprocess of adoption in the hands of the Civil Authority exclusively. 30 (
2. c)An ecclesiastical ceremony is not by ecclesiastical law shown to be necessary in order to validate the adoption order. There is no ecclesiastical law which makes such a ceremony necessary in order to validate an adoption by the Civil Court. 35 (
3. d)The Honourable Court should not allow the amendment applied for on the ground that the adopters of the Respondent/Plaintiff aredead and theEstateof the adopter father is not represented in these proceedings. 7 Hadjianastassloa J. Nicolaides & Another v. Yerolemi

(1980)(

1. e)The Application isnot supported by a proper affidavit containing allegations of fact which could lead the Honourable Court to allow the amendment to their pleadings claimed in the application. (
2. f)Certain of the allegations contained in the affidavit 5 areinferences drawnbyMr. E.Komodromosand they constitute hearsay evidence and should be excluded, from any consideration by the Honourable Court." This opposition was based on section 4

(5)(

1. b)of Cap. 274 and on the Civil Procedure Rules, Order 48 rule 4, and on the 10 Constitution, Article 111. It appears that from the statement of claim which was delivered on 20th December, 1976, the plaintiff Marina M. Yerolemi was the adopted daughter of Maroulla M. Yerolemi by virtue of an adoption order made by the District Court 15 of Paphos on 20th January, 1958. See application 1/57 and para. 3of the statement of claim. Finally the plaintiff claimed: (a)Adeclaration that sheisentitled to rank as anheiress ofthe late Omiros Demetriades. (b)Adeclaration that she isentitled to ta\e as her share in the intestacy of the Estate of the late 20 Orr.ros Demetriades, the share which Maroulla M. Yerolemi vjuld have taken had she survived her father the late Omiros Jemetriades namely one half of the said estate, (c)A declaration that she and the defendant 2 are entitled to share equally the estate of the late Omiros Demetriades. (
2. d)Costs. On 25 the contrary in the statement of defence filed by the administrator of the estate Lambros Ch. Nicolaides, a lawyer, on 8th January, 1977,no mention wasmade and no allegation that the order of adoption was invalid. On 16th September, 1977, the trial Court after dealing with 30 a number of issues—which are not necessary at this stage to refer to, had this to say at p. 42of thejudgment: " In view of ourfindingasabove, the Plaintiff succeedsin her claim and we made the following declarations: (
3. a)That the Plaintiff is entitled to rank as an heiress of 35 the late Omiros Demetriades. (
4. b)That she is entitled to take as her share in the estate 8 1 C.L.R. Nicolaides & Another v.Yerolemi Hadjianastassiou J. of the late Omiros Demetriades the share which Maroulla M. Yerolemi would have taken had she survived her father, namely, one-half of the said estate. 5 10 Costs of this action in favour of the Plaintiff to be paid out of the estate of the deceased. In view, however, of the nature of the case and the fact that the Defendants had to fight this case, we direct that the costs of advocate for the Defendants should also be borne by the estate of the deceased, Omiros Demetriades, and directions to that effect are hereby made to Defendant 1, the administrator of the estate of the deceased." Counsel for the appellants argued that once new facts came into light, after the delivery of the judgment, the Court had a discretion to allow the appellants in the interest of justice to 15 amend the statement of claim even at this stage of the proceedings. Counsel relies on Yiannakis Kyriacou Pourikkos v. Mehmed Fevzi

(1963)2 C.L.R. 24, and on Homeros Th. Courtis and Others v. Panos K. Iasonides

(1970)1 C.L.R. 180. The question which arises in these proceedings iswhether the legality 20 of the adoption was an issue properly raised at this stage. In the case of Pourikkos (supra) Josephides, J. had this to say at p. 32: 25 30 "Under Order 20, rule 2, of the Civil Procedure Rules the plaintiff must state specifically the relief which he claims either simply or in the alternative. The plaintiff in settling the claim for damages isnot restricted to the figures, if any, givenon the writ. If henames a figure, heshould claim the largest amount which he is likely to recover; for in the absence of amendment, he cannot recover more than the amount claimed. An amendment, however, may be allowed under the provisions of Order 25, rule 1, after verdict." Then having quoted a number of authorities on the same issue said: 35 " On these authorities I have no hesitation in holding that the plaintiff cannot recover the amount of special damage awarded in the judgment without having the indorsement of his writ and the prayer in the statement of claim amended. In my opinion in the circumstances of this case 9 Hadjiartflstassiou J. Nicolaides & Another τ. Yerolemi

(1980)no injustice will be done by allowing the amendment on appeal, if leave was asked for. But respondent's counsel has not asked for leave to amend. If an application for leave to amend is made before us and the desired amendment formulated we are prepared to grant such leave on payment of the costs by therespondent. 5 However, I think that it is important to make it quite clear that cases may very well occur in future where this loose way of dealing with pleadings may lead to grave injustice to the other side and in such a case I apprehend 10 that this Court would not be prepared to entertain an application for leave to amend on appeal." In Homeros Th. Courtis and Others (supra) Vassiliades, P. dealing with the question of the amendmentof the pleadings had this to say at pp. 182 and 183: 15 " The respondent's case before us, was mainly argued on the power of the Court to make the amendment complained of. Learned counsel referred to a number of cases to show that the trial Court had such power; and submitted that the Court had properly used it. We find it unnecessary to 20 deal with the different English cases to which counsel referred, because the power of the Court to permit or order an amendment of the pleadings is regulated by our Civil Procedure Rules (Or. 25); and was discussed in Yiannakis Pourikkos v. Mehmet Fevzi

(1963)C.L.R., Part II p. 24, 25 referred to during the argument. There can be no doubt that the Court has the power to allow amendment of a party's pleadings; and that in certain circumstances, such power'has also been used for"correcting formal mistakes or omissions before judgment. I would say it has been used 35 in a proper case. At the same time, the Courts in most of the English cases referred to, and this Court in the Pourikkos case, made it clear that the Court should be very slow and reluctant to order or allow amendments of the pleadings at a late stage in the proceedings; and that in 35 any case, such amendments should only be made if they are found necessary and as provided in the Rules. The pleadings in an action are the foundations of the litigation; they must be carefully prepared as the set of 10 1 C.L.R. 5 10 15 20 Nicolaides & Another v.Yerolemi Hadjianastassiou J rails upon which the train of the case will run. The Civil Procedure Rules (Or. 19 r. 4) are clear on the point; and daily practice lays stress on the need to apply strictly this rule. A case is decided on its pleaded facts to which the law must be applied. If in the course of the trial it appears that a party's pleading requires amendment, steps for that purpose must be taken as early as possible in order to give full opportunity to the parties affected by the amendment to meet the new situation; to run their case, so to speak, on the new rails. An amendment of the pleadings after the closing of the case and for the purpose of the judgment, is a matter which in exceptional circumstances may have to be done; but it should be avoided unless it is unavoidable in the circumstances of the particular case, in order to finalize litigation in the interests ofjustice. In the circumstances of this case, it is clear to us that the amendment in question should not have been allowed at that stage. It was contended on behalf of the respondent that the amendment made no difference to the outcome of the case. If that were so, it should have not been attempted. To us, it appears to have been a material amendment; and we must treat it as such." In Associated LeisureLtd. andothersv. AssociatedNewspapers Ltd. [1970]2 All E.R. 754 Lord Denning M.R., dealing with the 25 question of amendment of the pleadings had this to say at pp. 756 and 757: 30 35 40 " The application to amend came before the master and the Judge. Both refused to allow it. It was made, they thought, too late. It came at the eleventh hour. If allowed, it would mean a very considerable delay. The case would not come on for trial, at the earliest, before the end of this year, or the beginning of next. It was, they thought in these circumstances, unjust to allow the amendment. I start with the principle, well settled, that an amendment ought to be allowed, even if it comes late, if it is necessary to do justice between the parties, so long as any hardship done thereby can becompensated inmoney. That principle applies here. I think that justice requires that the matters alleged in this amendment should be investigated in a Court 11 Hadjianastassion J, Nicolaides & Another v. Yerolemi

(1980)of law. It would, I think, be very strange if this libel action were to be tried next month and damages awarded on the basis that there was nothing whatsoever to be said against theplaintiff;andyet,inOctober, theGamingBoard were to refuse them a certificate on the ground that they 5 were not fit and proper persons to supply and sell gaming machines. It is in the interests of consistency and justice that the reputation and character of theplaintiffs should be properly considered in this action, provided always, as I havesaid,thatanyhardshiptotheplaintiffs canbecompen- 10 sated for in money. I think it can so be compensated." For amendment of pleadings, see also 24 Halsbury's Lawsof England (3rd Edn.) 96, para.

1. Having considered very carefully the cases quoted, we have reached the conclusion that all three cases are distinguishable 15 from the facts of the present case. It is on record that the administration of the estate has been delayed for almost ten years. Theapplication for theamendment ofthepleadingswas filedon 31st May, 1978, after judgment was delivered, that is on 16th December,
2. In this application, the amendment 20 sought was alleged to be a material one, but in effect is introducing at thisverylate stagea new ground ofrelief. It is said timeand again that a caseisdecided on its pleaded facts to which the law must be applied. If in the course of the trial it appears that a party's pleading requires amendment, 25 stepsfor thatpurposemustbetakenasearlyaspossible,inorder togivetothepartiesaffected bytheamendment the opportunity to meet the new situation. After the closing of the case and after judgment is delivered, the Court very rarely should grant leave for the amendment of the pleadings unless there are 30 exceptional circumstances,justifying such a course, once it is inthe interest ofjustice tofinalizelitigation between theparties. In Brown v. Dean,[1910]A.C. 373H.L., Lord Loreburn L.C. delivering the first speech, in dismissing the appeal, said at p. 374:" My Lords, the chief effect of the argument which your Lordships haveheard isto confirm in mymind theextreme value of the old doctrine 'Interest reipublicae ut sitfinis litium,' remembering as we should that people who have 12 35 1 C.L.R. Nicolaides &Another v. Yerolemi Hadjianastassiou J. means at their command are easily able to exhaust the resources of a poor antagonist. 5 10 With great respect for the authority of Fletcher Moulton L.J., Iam of opinion that the order ofthe Divisional Court confirmed by the majority of the Court of Appeal is perfectly right. When a litigant has obtained a judgment in a Court ofjustice, whether it be a county Court or one ofthe High Courts,heisbylawentitled not to be deprived ofthatjudgment without verysolid grounds;and where(as in this case) the ground is the alleged discovery of new evidence, it must at least be such as is presumably to be believed, and if believed would be conclusive." InMurphyv.Stone-Wallwork(CharltonLtd) [1969]2AllE.R. 949, H.L., Lord Pearce delivering his speech had thistosayat 15 p. 953: 20 25 " It isanimportant principlethat thereshouldbefinalityin judgments or, if one prefers a Latin maxim, ut sit finis litium. For that reason a time limit is set within which any appeal to overset ajudgment must belaunched. Only in exceptional circumstances is this time limit extended. For the same reason the Courts have refused to re-open a case on appeal by the admission of evidence which the appealing party could have.made available at the trial. Only in very exceptional circumstances will it allow this. fresh evidence. The hardship in a particular case must be balanced against the general evil of'allowing judgments to be disturbed and thereby prolonging and extending litigation." See Savvas Paraskevas v. Despina Mouzoura

(1973)1 C.L.R. 30 88, where a number of authorities are reviewed. Inthelight oftheauthoritiesquoted andintheabsenceofany exceptional circumstances, and particularly because of such a long delay, it is clear to us in the circumstances of this case, that the amendment sought should not be allowed. We,there35 fore, dismiss this interlocutory application. Application dismissed with costs. Application dismissed with costs. 13