clr/1982/1982_1_129.pdf

(1982)employed therein, by the author thereof was quite confusing he proceeded to ascertain the dimensions of the right of way in the light of the surrounding circumstances emanating from the evidence before him. He evaluated theevidence of thewit­ nesses before him and after accepting theevidencecalled by the 5 defence he found that the length of the right of way was 5 feet andthewidththereof 11/2feet andthattherewas nointerference with the right of way as alleged by the plaintiffs. Upon appeal by the plaintiffs it was mainly contended that the trial Judge erred in fixing the dimensions of the right of 10 way as he didanderredindecidingthattherewas nointerference with the right of way of the plaintiffs. Held, that as the use of the word "extent" ("εκτασις") in the settlement in Action No. 604/40 created an ambiguity the trial Judge rightly resorted to evidence of surrounding circum- 15 stances in order to beenabled todefine thelengthandthewidth of the right of way; that in so far as the length of the right of way is concernedthe trial Judge was right in accepting theevi­ dence as he did as such evidence was moreconsistent anddirect to the point; that, furthermore, it was open to him to arrive 20 at the conclusions he did, which were quite compatible with certain conclusions which could be deduced from thorough examination of the settlement (vide pp.135-6post); that it was open to the trial Judge to reach the conclusions he did both on the issue of the width of the right of way and the issue of 25 interference with theright of way; accordingly theappeal should be dismissed. Appeal dismissed. Cases referred to: Edmundsbury andIpswich DiocesanBoardof Finance anaAnother 30 v. Clark (No. 2) [1975] 1 All E.R.

1. Appeal. Appeal by plaintiffs against the judgment of the District Court of Nicosia (A. Ioarmides, D.J.) dated the 6th October, 1979 (Action No. 1412/74)whereby their claim for an injunction 35 restraining the defendants from inlerfering with their right of way recognised in Action No. 604/40 and for a demolition 130 1 C.L.R. Touloumi v. MUtladou order in respect of thebuilding or wall allegedly erected by the defendant incontravention ofasettlement inAction No.604/40 were dismissed and a declaratory judgment was given by the trialJudgefixingthedimensions oftheright ofwayandordering 5 that same he registered through the D.L.O. L. N. Clerides, for the appellants. • Ch.Velaris, for the respondent. Cur.adv. vult. LORIS J. read the following judgment of the Court. This 10 isan appeal from thejudgment ofthe District Court of Nicosia (Ioannides,D.J.)inActionNo. 1412/74wherebytheappsllantsplaintiffs were claiming, inter alia:- 15 (a) An injunction restraining the defendant-respondent from interfering with their right of way "recognised" in Action No. 604/40; (b) Ademolition order inrespectofthe"buildingorwall" allegedly erected by the respondent in contravention of the lerms of settlement in Action No. 604/
2. Theallegations ofthelitigantsasemergingfrom thepleadings 20 of the action under appeal are briefly as follows:Theappellants-plaintiffs allegethat the defendant-respondent had in May, 1973,interfered (by erecting a wall or earthbank) withtherightofwaythroughPlot918ofSheet/PlanXXXV1II/52 ceded by the predecessor in title of the defendant-respondent 25 to the predecessor intitle of plaintiff 1 byvirtue of a settlement inAction No. 604/40infavour of Plots 917and 919(asrevised) of the same sheei/plan situated at Palechori village. The respondent-defendant in her defence alleges that she never intcrfeied with the aforesaid right of way and maintains 30 that in fact the appellants in January, 1969,interfered with her (respondent's) property by demolishing part of the earthbank situated within her properties; for this demolition she instituted Action No. 672/69 (D.C. of Nicosia) which was disposed of by ihe Court on 16.2.1973 by a pronouncement in her favour 35 in respect of the earthbank; in May, 1973—the respondent concludes—in order to protect her own property did restore her earthbank to its pre-1969 condition without having in any way interfered with the right of way of the plaintiffs. 131 Loris J. Touloumi v. Mtltiadou

(1982)At the hearing before the trial Court 5 witnesses testified for the plaintiff, including the D.L.O. clerk (P.W.I) who carried out a local inspection of the locusin quo and prepared a sketch thereof which is exhibit 1in this case; plaintiff 2, husband of plaintiff 1, gave evidence as well (P.W.5). 5 The defendant gave evidence herself (D.W.7) and called 6 more witnesses in support of her case. Several documents were also produced before the trial Court apart from exhibit 1; the most important one being the settlement in Action No. 604/40 (exhibit 4), by virtue of which the 10 right of way was created on 30.4.1941. The trial Judge went into the material before him ia order to ascertain the length and the width of the right of way; in thisrespect it must beborne in mind always,that the sub-judice right of way was created by a grant, the terms of which were 15 embodied in the settlement of Action No. 604/40 which was recognised and sanctioned by the judgment of the Court on 30.4.1941 (exhibit 4). Obviously the trial Judge did not find much assistance from exhibit 4; the word "extent" employed therein, by the author 20 thereof, was quite confusing; so, he proceeded to ascertain the dimensions of the right of way in the light of the surrounding circumstances emanating-from the evidence before him; he evaluated the evidence of the witnesses before him, he prefeired that of the witnesses called by the defence and, relying on the 25 evidence as he accepted it, found:(

1. i)That the length of the right of way was 5feet and the width thereof 1 1/2 feet; (
2. ii)That the earthbank in question was reconstructed by the respondent-defendant in 1973 on the space 30 it was occupying prior to the creation of the right of way in 1941, hence he found no interference with the right of way as alleged by the plaintiffs-appellants. Having pionounced against the plaintiffs on the gist of their action, the trial Judge dismissed their claims for injunction and 35 132 1 CL.R. Touloumi v. Miltiadou Loris J. demolition of the earthbank and gave a declaratory judgment fixing the dimensions of the right of way as established before him, ordering at the same time the registration of same through the D.L.O. 5 Against the judgment the plaintiffs appeal complaining that the trial Judge:(
3. a)Erred in fixing the dimensions of the right of way as he did; 10 (
4. b)Erred in deciding that the "earthbank" in question wasnot interfering with theright ofway ofthe plaintiffs and that same was not constructed within the right of way; 15 (
5. c)Erred in deciding that the said "earthbank" was built in 1973 on the same space it was occupying prior to 1940; and, 20 (
6. d)Should find on the construction of exhibit 4 and the evidence adduced that the width of the right of way should be at least 5 feet and, therefore, the plaintiffs should be entitled to the claims which have been dismissed by the trial Judge. In spite of the fact that in the fourth ground of appeal reference is made to the "true construction of the consent judgment in Action No. 604/40", all the grounds of appeal tantamount to an attack against the findings of fact made by the trial Judge; 25 and all the complaints are directed mainly against the fixing by the Court of the width of such right to 1 1/2 feet. The sub-judice right of way was created by the settlement in Action No. 604/40 between the predecessors in title of the properties of the defendant and plaintiff 1 in the present case. 30 This settlement, which is handwritten in Greek, is exhibit 4 in the present case. At the preamble thereof it makes reference to skelchplan, exhibit 1; the said exhibit 1 in Action No. 604/40 is part of exhibit 6 in the present case. 133 Loris J. Touloumi v. Miltiadou

(1982)The settlement in question consists of several paragraphs, six of which are numbered. At the end thereof it states: "Judgment as per settlement", and bears underneath the signature of the then Magistrate Soteriades. Paragraph 2 thereof contains the particulars of the right of way so granted whilst paragraph 3 refers to the consideration for the grant. 5 The route of the right of way is thus stated in Cheek: " Άττό τό άκρον τοϋ κτήματος τοΰ Λευτέρη Πιερή καΐ τη; συζύγου του Χριστίνα$, κατά μήκοςτων συνόρων των γειτονικών κτημάτων τών διαδίκων, εκτασιν 5 ποδών κσΐ els τό μέροξ τοΰτο ή ενάγουσα αναλαμβάνει ούτε νά κτίοη οίπε νά τό καλλίφγήση.". ("From the edge of the land of Lefteris Pieri and his wife Christina along the boundaries of the neighbouring lands of the parties an extent of 5feet and on this partthe plaintiff undertakes neither to built nor to cultivate it."). 10 15 Theinterpretation of a written documentis generally speaking a matter of Law for the Court;the position is different, however, when there is an ambiguity in it. In St. Edmundsbury and 20 Ipswich DiocesanBoard of Finance and Another v. Clark (No. 2), [1975] 1All E.R. 772, it was held that the words of a conveyance containing thereservation of aright of way wereto be construed according to their naiural'meaning in the documentas a whole in the light of the surrounding circumstances,such sunounding 25 circumstances being a question of fact. In the case in hand the unfortunate use of the word "extent" (εκτασιν)by the author of the document created an ambiguity and the trial Judgs rightly resorted to evidence of surrounding circumstances in order to be enabled to define the length and 30 the width of the right of way. In so far as the length of the right of way is concerned we hold the view that the trial Judge was right in accepting the uvidence as he did as such evidence was more consistent and direct to the point; furthermore it was open to him to arrive 35 at the conclusions he did, which are quite compatible with the 134 1 C.L.R. Touloumi τ. Miltiadou Lorls J. following which can be positively deduced from the thorough examination of the document itself:— (A) The word "extern" recurs twice in the text of exhibit 4. 5 Itappearsfor thefirstlime inline4of thedocument,inrespect of the earthbank and it is being employed for a second time in respect of the grant of the right of way. in the first instance the Greek text reads as follows: 10 "Συμφωνούν δέ δτι ή χαλασθεϊσα δώμη είναι τό μέρο$ τό φαινόμενον §ν τω προσαχθέντι σχεδίω μέ κόκκινος γραμμάς έταάσεω$ 9 ποδών". ("They agree that the demolished earthbank is the part shown in red lines on the plan which was produced of an extent of 9 feet"). Here clear icference is made to the sketch-plan, exhibit 1 15 in the action of 1940; a mere glance of this sketch-plan will verify immediately that the red lines thereon, as well as number 9in red ink, denote the length of the earth-bank. Once the author of the whole document has employed the word "extent" meaning obviously "length", we see no reason 20 why "extent" should not be held to have the meaning of "length" when used in the second instance in respect of the right of way. (B) The second part of the second paragraph of exhibit 4 describing the route of the right of way granted reads as follows in the Greek text: 25 " 'Από τό άκρον τοΰ κτήματος Λευτέρη Πιερήκαιτης ουζύyou του Χριστίνας κατά μήκος των συνόρων των γειτονικών κτημάτων των διαδίκων, εκτασιν 5 ποδών και είς τό μέρος τοϋτο ή ενάγουσα αναλαμβάνει,οϋτε νά κτίοη οϋτε ι>ά τό καλλιεργήση". 30 ("From the edge of the land of Lefteris Pieri and his wife Christina along the boundaries of the neighbouring lands of the parties anextent of 5feet and on this part the plaintiff undertakes neither to built nor to cultivate it"). (The underlinings have been inserted by us). 35 In respect of the second underlining above it is to be noted that at the beginning thereof, immediately after the comma of 135 Loris J. Touloumi v. MUtiadou

(1982)the previous phrase, there existed on the document the Greek preposition "ε!ί"; hence the reason that the next word "εκτα­ σιν" is met in the objective case; for some unknown reason this preposition was struck off; this is clear from the document itself. 5 One would remark though that the deletion of the preposition "els'* ought to have led the author in correcting the case of the word "εκτασιν" and converting same to the genitive, i.e. "εκτάσεως", in view of the fact that perusal of the whole docu­ ment can lead to the conclusion that the author thereof seems 10 to have had a fairly good knowledge of ihe Greek grammar and parsing. The answer to such a remark is that the time and thecircumstances underwhich deletion of the preposition "εί$" took place are unknown. Nevertheless, in spite of the use of the word "extent", even 15 in the objective case (εκτασιν), which is not clear and unequi­ vocal, the second underlining above, immediately after the comma, qualifies the first words underlined, i.e. "κατά μήκος τών συνόρωυ...„„ εκτασιν 5 ποδών ", and points strongly towards construing the word "extent" as meaning "length". 20 The issue of the width of the right of way is inteiwoven with the "earthbank" in this respect: it was alleged by the plaintiffs -appellants that the respondent in May, 1973, interfered with iheir right of way by u-reciing an earthbank within their right of way, whilst the defendant-respondent alleged that she did 25 restore her earthbank to its pre-1969 condition without having in any way interfered with the right of way of the plaintiffs. The trial Judge had to satisfy himself fust as to the width of the right of way in order to be enabled to decide whether the construction of the eanhbank was made within the space over 30 which the right of way was to be exercised according to the grant in

1. As the document creating the grant, i.e. exhibit 4, was silent ontheissueof thewidth of theright of way ceded,thetrial Judge examined the surrounding circumstances in the light of ihe evidence adduced and, accepting the evidence as he did, found that the width of the right of way, which has been so exercised since the grant, was 1 1/2 feet, i.e. it was covering the space from the western boundary of Plot 919/1 (registered in thename 136 35 1 C.L.R. Touloumi v. Miltiadou Loris J. of plaintiff 1) upto the "earthbank", which is situated within Plot 918 (the property of the defendant). The width of this space as given by the D.L.O. clerk (P.W.I) is 1 foot 6 inches. (Vidt exhibit 1 in this case). 5 10 Thetrial Judge ontheevidence,as heacceptedit, furthermore found that the "earthbank" marked Α-Β-Γ on exhibit 1 in thiscaseexisted in 1940 andthatitwas rebuilt when demolished in 1963 and reconstiucted in 1973 after iis paitial demolition in 1969 on the same space it was occupying originally, prior to
2. 15 We have examined the complaints of the appellants on these two issues as well and we must say lhat we are satisfied that it was opentothetrial Judge to reach theconclusions hedidboth on theissue of the width of the right of way as well as that of the "earthbank". Having given to the issue of costs our best consideration, we are disinclined to interfere with the relevant order of the trial Court. In the result the appeal is dismissed with costs. *" Appeal dismissed with costs. 137