clr/1981/1981_3_271.pdf

(1981)related to the novelty of the legal points involved in the appeal and the possibility of its success. Held, (after stating theprinciples governing extension oftime —vide pp. 275-78 post) that in this case there was failure on the part of the litigant to take appropriate steps for the filing 5 of an appeal ; that the failure of the advocate or the litigant to take the appropriate steps for thefilingof an appeal within the time prescribed by theRules is not a sufficient ground upon which the discretion of the Court should be exercised in favour of granting extension (see Pavlouand Another v. Cacoyiannis 10

(1963)2.C.L.R. 405) ; that bearing in mind the facts of this case this Court has come to the conclusion that it should not exercise its discretion in favour of granting an extension of time as the reasons given in the affidavit relied upon by the applicants for notfilingtheir appeals within the prescribed 15 time are not sufficient to justify such an enlargement ; accordingly the applications must fail. Held, further, regarding the ground of novelty of the legal point and the possibility of success of the appeal the applicants should have adopted the course of attaching a copy of the 20 grounds of appeal to their application to enable the Court to assess the possibility of such success, though this point is not in this case decided against the applicants in any way (see Turkish Co-operative CarobMarketing Society Ltd. v. Kiamil and Others

(1973)1 C.L.R. 1). 25 Applications dismissed. Cases referred to : Loizou v. Konteatis

(1968)1C.L.R. 291 at p. 293; Hadjimichaelv. Karamichael and Others

(1967)1 C.L.R. 61 ; Pavlouand Another v. Cacoyiannis

(1963)2 C.L.R. 405 ; 30 Kourtisand Another v. Iasonides

(1972)1 C.L.R. 56; Branco Salvage Ltd. v. Republic

(1967)3 C.L.R. 213 ; Georghiou (No. 3) v. Republic

(1968)3 C.L.R. 563; Attorney-Generalv. Hji Constanti

(1968)2 C.L.R. 113; Edwardsv. Edwards[1968] 1 W.L.R. 149 at p. 150; 35 Turkish Co-operative CarobMarketing Society Ltd. v.Kiamil and Others

(1973)1 C.L.R. I ; Weldonv. De Bath, 3 T.L.R. 445 at p. 446; Georghiouv. Republic

(1968)1 C.L.R. 411 ; Graig v. Phillips[1877] 7 Ch. D. 249 at p.

1. 40 272 3 C.L.R. Cyprian Seaway Agencies v. Republic Applications. Applications for an order enlarging the time within which to file an appeal against the judgment delivered in each of the above recourses. 5 E. Psillaki (Mrs.), for the applicant. A. Evangelou, Senior Counsel of the Republic, for the respondents. Cur.adv.vult. A. Loizou J. read the following judgment. These three 10 applications for an order of the Court enlarging the time for filing an appeal against thejudgment delivered in each of the aforesaid recourses were heard together upon a direction made withtheconsent ofboth sidesastheypresentcommon questions of law and fact. In fact, the three recourses in question were 15 heard together for the same reason. OnNovember 17,1980,thisCourt gavejudgment* dismissing the above recourses. On January 17, 1981, that is, 19 days after the time of 42 days prescribed by the relevant Rules for filing an appeal, the apphcants filed these applications for 20 extension of time within which to file an appeal. 25 30 The grounds in support of these applications are stated in paras. 2-6 of the affidavit sworn by counsel for the apphcants which run as follows: "
2. The Applicants in the above recourse are members of the Cyprus Shipping Association, for whom our firm acts as legal advisers, and the policy followed by Applicants and all other members of the said Association • aswellasanystepsthat theymaydecidetotakevis-a-vis any Cyprus Authority including the Department of Customs and Excise have to be decided and/or approved - and/or sanctioned by the said Association.
3. Thefilingof the above recourse was made following the decision ofthe said Association, bywhich theApplicants abided and instructed our firm accordingly. 35
4. The Judgment of the Honourable Court in the above recourse was communicated to the said Association for their consideration and the matter of whether or * See

(1980)3 C.L.R. 592. 273 A. Loizou J. Cyprian Seaway Agencies v. Republic

(1981)not an Appeal should bemade therefrom wasconsidered a matter for an Extraordinary General Meeting of the Associationinviewofitsgreatimportancetoitsmembers. Such meeting wasfixedin accordance with the Articles of the said Association for the 2nd January, 1981, the 5 Committee of the Association not being aware of the time limit existing for making an Appeal.

1. The said Association failed to ask the Applicants to instructustofileanAppealpendingtheirdecisionwhether one should be made or not, because they considered 10 this step as one affecting their relationship with the Respondents adversely and because they thought that this may not bea proper useof theprocessof the Court.
2. Thelegalpointsraisedbytheaboverecoursearecompletely novel and interesting ones and seriously affect the 15 interests of a large number of Cyprus Citizens and of the Government of Cyprus. The consideration of suchpointsfurther onappealisinmyhonestand reasonable belief of the utmost importance and should the saidAssociation decide,after fully consideringthematter 20 from all aspects, to allow its members to instruct us to appeal, we should be able to file an Appeal latest by the 5th January, 1981". It is significant to note that though the affidavit was sworn onthe 30thDecember, 1980,that is,onedayafter theexpiration 25 of the prescribed time limit, these applications were filed much later, i.e. on January 17,
3. Another point worthy of note is that in para. 4 of theaforesaid affidavit it is stated that the judgment was communicated to the Association "for their consideration" but it is not mentioned when this was done. 30 The legal position with regard to the power of the Court to enlarge the time for appeal is to be found in a number of judgments of this Court to which reference will be made. The relevant rule from which this power emanates is rule 3 of the Supreme Court (Revisional Jurisdiction) Appeal Rules, 1964 35 which provides that— "The provisions of Order 35 of theCivilProcedure Rules relating to appeals shall apply, mutatis mutandis, to an 274 • 3 C.L.R. Cyprian Seaway Agencies v. Republic A. Loizou J. appeal from a decision of a Judge or Judges exercising revisional jurisdiction under sub-s.

(2)of s.11 of the Law". By r. 2 of that Order, 5 "subject and without prejudice to the power of the Court of Appeal under Order 57, r. 2", the time for bringing an appeal may be enlarged; and by the latter rule, 10 "a Court or Judge shall have power to enlarge the time appointed by these Rules for taking any proceeding although the application for the same is not made until after the expiration of the time appointed or allowed". The overriding principle is that this power is a matter of discretion (see Loizou v. Konteatis

(1968)1 C.L.R. 291 at p. 15 293); and the discretion of theCourt under theRules is perfectly free and the only question is whether upon the facts of any particular case it should be exercised. Mistake or misunderstanding by the appellant or his legal advisers may be accepted as a proper ground for extending the time but whether it will 20 be so accepted depends again on the facts of the particular case (see Hadjimichaelv. Karamichael &Others

(1967)1 C.L.R. 61). The failure of the advocate or the litigant to take the appropriate steps for the filing of an appeal within the time prescribed by the Rules is not a sufficient ground upon which 25 the discretion of the Court should be exercised in such an application (see Pavlou & Another v. Cacoyannis

(1963)2 C.L.R. 405), which was followed in the Konteatis case (supra). In Kourtis &Another v. lasonides

(1972)1 C.L.R. 56, it was stated "The more appropriate course in the circumstances was 30 for "the appellants to apply before the expiration of the time within which to appeal for an order enlarging such time". In Branco Salvage Ltd. v. The Republic

(1967)3 C.L.R. 213, a Revisional Jurisdiction case' decided by the Full Bench of this Court, Triantafyllides, J., as he then was, expressed the 35 view that "The discretion which does exist under the rules in question, should be exercised and can be exercised only in cases in which, according to relevant Administrative Law principles developed in Greece, time does not run against applicant 275 A. Loizou J. Cyprian Seaway Agencies v. Republic

(1981)or appellant, i.e. in cases where he is prevented from filing proceedings due to force majeure". Stavrinides, J., refused the application on the ground that the delay in appealing "was not duetoeitherforce majeure oranyotherfact orcircumstance on which under the rules the Court could exercise its discretion 5 in applicant's favour". Vassiliades, P., dismissed the application on the ground that an apphcation for extension of time should normally have been made before expiry of the time set by the rules. L. Loizou, J., agreed with the dismissal of the application; and finally Josephides and Hadjianastassiou, 10 JJ., having dismissed the application left open the question whether an extension of time in revisional jurisdiction cases is granted only in cases of force majeure. In Georghiou (No. 3) v. The Republic

(1968)3 C.L.R. 563 Triantafyllides, J., following the BrancoSalvagecase (supra), 15 Konteatiscase (supra), and Attorney-General v. Hji Constanti

(1968)2 C.L.R. 113, stated the following at p. 565: "In all the circumstances of this case I find myself unable to find that the Applicant has satisfied me of the existence of adequate grounds justifying an extension of the time 20 for appeal; especially, as this is a revisional jurisdiction case and it is of the utmost importance in cases of such a nature that litigation should be instituted and pursued within the prescribed time limits, so that once they expire there should be finality in such matters, with consequent 25 certainty in relation thereto, in the interests of proper and good public administration". In the Hji Constanti case (supra) the following were stated by Vassiliades, P.: "Generally speaking where the legislator sets a period of time for the taking of a step in proceedings of 30 a judicial character, such provision must be strictly enforced. It isconnectedwiththepublicinterestinthefinalityoflitigation; and it affects directly the parties' rights therein". In Edwardsv. Edwards[1968] 1 W.L.R. 149, the following were stated at page 150: "Thirdly and most relevant of all to this application it is desirable that disputes within society should be brought to an end as soon as is reasonably practical and should 276 35 3 C.L.R. Cyprian Seaway Agencies v. Republic A. Loizou J. not be allowed to drag festeringly or for an indefinite period". In Turkish Cooperative Carob Marketing Society Ltd, v. Kiamil &Others

(1973)1 C.L.R. 1,Triantafyllides P.,delivering 5 the judgment of the Court stated at page 7: "Notwithstanding theneed to conform strictlywith prescribed timelimits the power to grant extension of time for appealing exists and its exercise is a matter within the discretion of the Court on the basis of the particular facts of each individual case". 10 15 In Weldon v. De Bathe, 3 T.L.R. 445, at page 446, which was referred to in the Turkish Cooperative case (supra),the following were stated by Bowen, L.J.: "The Courtought not tofetter itsdiscretion astoextending the time for appealing by laying a strict definition on the point but would always exercise its discretion for the purpose of doing justice". InGeorghiouv. TheRepublic

(1968)1 C.L.R. 411,the majority of the Court of Appeal granted extension having held (vide pages 417-418): 20 25 30 35 "To sum up, the discretion of the Court being a perfectly free one, the only question is whether upon the facts of a particular case that discretion should be exercised. The fact that the omission to appeal in due time was due to inadvertence, negligence, or mistake on the part of a legal adviser, may be sufficient cause to justify the Court in exercising its discretion, but it isnot to be thought that it will necessarily be exercised in every set of facts. As I conceive the rule, there is nothing in the nature of such inadvertence, negligence or mistake as to exclude it from beingapropergroundfor allowingtheappealtobe effective though out of time; and whether the matter shall be so treated must depend upon the facts of each individual case. There may be facts in a case which would make it unjust toallowtheappellantto succeeduponthat argument (cf. Gattiv. Shoosmith [1939]3All E.R. 916,at page 919). Reverting now to the present case, we have to consider howonthefactsofthisparticularcaseourdiscretion should beexercised. Putbriefly, thisisacasewherethe applicant, 277 A. Loizou J. Cyprian Seaway Agencies v. Republic

(1981)who is a foreign national, was deported from Cyprus immediately after delivery of thejudgment atfirstinstance, that she has been out of Cyprus ever since, that she did not have the necessary facilities of getting in touch with her legal advisers before she was deported, and that due 5 to counsel's inadvertence or negligence the application to extend the time for appeal was filed three days out of time. If this were a civil appeal I have no difficulty in saying that, speaking for myself, I would have exercised my discretion in favour of the applicant. 10 The question which remains for consideration iswhether this being a revisional matter our discretion should be exercised in a different way. Considering that this particular decision does not affect any other person except theapplicant,and that it doesnot appear tohaveanyother 15 implications or any consequential repercussions on the Administration, I would still be prepared, in the special circumstances of this case, to exercise mydiscretion in the applicant's favour and grant her application, subject to the payment of the costs of this application". 20 Reverting to the facts of this case in para. 5 of the affidavit in support, it is stated that "the Association failed to ask the applicants" to instruct counsel to file an appeal. There is thus failure on the part of the litigant to take appropriate steps for thefilingof an appeal which as was held in the Cacoyannis 25 case(supra) isnot a sufficient ground upon which the discretion ofthe Court should beexercisedinfavour ofgrantingextension. Theapplicants donot invoke "inadvertence, negligence, mistake or misunderstanding" so that the case might be brought under theprinciplesformulated inthecaseofGeorghiouv.TheRepublic 30 (supra)and the Hadjimichael case (supra). Contrary to what happened in the Turkish Cooperative case (supra),where the judgment was made available to counsel only until aboutfive days before the last day of the period prescribed for appealing, whereas the judgment in this case was made available on the 35 date of its delivery. Moreover, the application for extension in the Turkish Cooperative Cocietycase was made before the expiry of the time limit, while in this case 19 days after the expiry, and as was said by Sir George Jessel M.R. in Graig v. Phillips [1877]7 Ch. D., 249, at p. 252: "a person who comes 40 to ask the Court to relax provisions of the rules concerning 278 3 C.L.R. Cyprian Seaway Agencies v. Republic A. Loizou J. time must show great diligence and not unnecessary delay in doing so". Regarding the novelty of the legal point and the possibility of success of the appeal as stated in the Turkish Cooperative case (supra),the apphcants should have adopted 5 thecourseof attaching a copy of thegrounds ofappeal to their application to enable the Court to assessthepossibility of such success, though this point is not in this case held against the applicants in any way. Bearing in mind the facts of this case, 1 have come to the 10 conclusion that I should not exercise my discretion in favour of granting the extension of time applied for as the reasons given inthe affidavit relied upon bythe applicants for not filing their appeals within the prescribed time are not sufficient to justify suchan enlargement. Theviewsofthe Cyprus Shipping 15 Association of which the applicants are members, could be and ought to have been given within the prescribed time and if not so given, the applicants themselves could, in compliance with the relevant rules, have filed their appeal in time. If for any reason the Association disagreed and they wanted to 20 abidebythecollectivewishoftheircolleagues,therewasnothing toprevent them from discontinuing suchappeals. Furthermore the applicants could have applied for an enlargement of time before the expiration of the period prescribed bytheRules. For all the above reasons these applications are dismissed 25 but in the circumstances I make no order as to costs. Applications dismissed. No order as to costs. 279