clr/1981/1981_1_649.pdf

(1981)Held,

(1)that Civil Appeal No. 5583 has to be dismissed as a whole in so far as defendant2is concerned,becauseitappears that the plaintiff did not give notice of this Civil Appeal to this defendant.

(2)That the damages awarded to the plaintiff in respect of 5 thedamagecausedtohisalmondtreesshouldhavebeenassessed, in the light of the evidence which was adduced before the trial Court, at least C£l per tree and, therefore, the amount of da­ mages of C£65.250 mils, which was awarded in this respect by the trial Court, is increased to C£87;that,also, on thebasis 10 of the uncontradictedevidence of the plaintiff, he was entitled to the amount of C£8 for wages and expenses; and that, on the other hand, the trial Judge was right in finding that there was no proof that any one of the defendants was responsible for the destruction of the water channel in the property of the 15 plaintiff; accordingly appeal 5583 must be allowed to theextent indicated above.

(3)Regarding Civil Appeal No. 5584, the decision of thetrial Judge that defendants 1and 3 were liablefor thedamage caused by their goats to the almond trees of the plaintiff was fully 20 warranted by the evidence adduced at the trial and, therefore, such appeal must be dismissed. Appeal 5583 partlyallowed; Appeal 5584dismissed. Appeals. 25 Appeals by the plaintiff and the defendants against the judg­ ment of the District Court of Nicosia (A. Ioannides,D.J.)dated the 21st April, 1976 (Action No. 189/74) whereby the defendants were ordered to pay £65.250 mils to plaintiff by way of damages caused to 87 almond trees. 30 Appellant in Civil Appeal 5583 and respondent in Civil Appeal 5584 appeared in person. X. Xenopoulos, for respondents in Civil Appeal 5583 and appellants in Civil Appeal 5584. TRIANTAFYLLIDES P. gavethefollowing judgment of the Court. The appellant in Civil Appeal No. 5583 has appealed against the judgment given in Civil Action No. 189/74, by the District Court of Nicosia, which ths appellant had filed against the 650 35 1 C.L.R. Pitsillos v. HadjiNicolnou & Others Triantafyllides P. respondents in the said Civil Appeal, as the defendants in such action. The will be referred to herein-ftcr as the "plaintiff" and the "defendants". Bymeansofthe aforesaidjudgment theplaintiff wasawarded 5 C£65.250milibywayofdamagescausedtoeighty-sevenalmond treesofhis,atKato Moni,bygoalsbelongingtothedefendants. There was, also, given judgment in favour of the plaintiff and against the defendants for the amount of C£10 as remuneration of two valuers "who assessed the damage which was 10 caused, as above, to the almond trees of the plaintiff. Furthermore, there was made an order direcling defendant 1 to remove a water pipe from the property in question of the plaintiff. Onthe other hand,therewasdismissedaclaim ofthe plaintiff 15 for C£10damagesinrespectofthedestruction ofawaterchannel in his said property and, also, a claim of the plaintiff for C£8 wages and other expenses which were incurred by him in repairing the damage to the earth around his aforementioned almond trees,which had been caused by the goats of the defen20 dants. By means of Civil Appeal No. 5584 defendants 1 and 3 in the aforesaid action 189/74 challenged the finding of the trial Judge as regards their liability for the damage caused to the almond trees concerned. 25 These two appeals, Nos. 5583 and 5584, were heard together as they were made against one and the same judgment. Civil Appeal No. 5583 has to bo dismissed as a whole in so far as defendant 2 is concerned, because it appears that the plaintiff didnotgivenoticeofthisCivilAppealtothis defendant. 30 We have perused carefully all the material in the record before us, and in the light of the arguments advanced by the plaintiff, whoappealed in person, and bycounsel for the defendants, we have decided that the judgment of the trial Court should be varied as follows: 35 Thedamagesawardedtothe plaintiff inrespect oftht:drmage caused to his almond trees should have been assessed, in the 651 Triantafyllides P. Pttsulos v. HsdjlNIcolaou & Others

(1981)light of the evidencewhich wasadduced before the trial Court, at least C£l per tree and, therefore, the amount of damages of C£65.250 mils, which was awarded in this respect by the trial Court, is increased to C£

1. Also, on the basis of the uncontradicted evidence of the plaintiff, we find that he was entitled to the aforementioned amount of C£8 for wages and expenses. 5 On the other hand, in our opinion, the trial Judge wasright infinding that therewasnoproof that anyoneof the defendants was responsible for the destruction of the water channel in the 10 property of the plaintiff. Consequently Civil Appeal No. 5583 is allowed as against defendants 1and 3 in so far as the increased amount of C£87 damages awarded for the damage caused by the goats of the defendants to the almond trees of the plaintiff are concerned, 15 and, also, in respect of the amount of C£8 claimed by him as wages and expenses. In every other respect the said appeal is dismissed as against defendants 1 and
2. Regarding the fate of Civil Appeal No. 5584, we find that the decision of the trial Judge that defendants 1 and 3 were 20 liable for the damage caused by their goats to the almond trees of the plaintiff was fully warranted by the evidence adduced at the trial and, therefore, such appeal is dismissed. There should be,also,anorder asto thecostsofboth appeals in favour of the plaintiff and against defendants 1and
3. 25 CivilAppeal No. 5583 allowed as againstdefendants1 and 3 with costs; CivilAppeal 5584 dismissed with costs. 652