clr/1983/1983_1_301.pdf

(1979)1 C.L.R. 267; Evagorou v. Christodotdou and Another

(1982)1 C.L.R. 771. Appeal. 20 Appeal by defendauts against the order of the District Court of Nicosia (Stavrinakis, P.D.C. and Papadopoulos, S.D.J.) dated the 19th December, 1974 (Action N o . 742/74) whereby their application for the dismissal of the action against them * Rule 13 reads as follows: "13. The sealing of a writ of summons in probate actions shall bepioccded by the filing of an affidavit by the plaintiff, or one of the plaintiffs, in verification of the indorsement on the writ". 301 Denietriou and Others v. I'rodfumou (1983 for failure to comply with rule 13of Order 2 of the Civil Procedure Rules was dismissed. A. Triantafyllides with A. Danos, for the appellants. L. N. derides, for the respondent. Ctir.adv. villi. I... Loizou J.: Thejudgment of the Court will be delivered by Mr. Justice Hadjianastassiou. HADJIANASTASSIOU J.: Preliminary to examination of the incrits of the dispute of the parties, the Court took cognizance of legal objections to the validity of the proceedings, objections Vj thai were dismissed after due consideration of the rival submissions. Thedefendants contended that theproceedings were void because of (

1. a)improper initiation of the proceedings vitiating their validity and (
2. b)so far as the alternative claim is concerned, the appointment of an administrator wasnot possi- if Mc before resealing. The Full Court of Nicosia dismissed objections to validity. With regard to (
3. a)above, they held that the rule contained in Order 2, rule 13isof regulatory nature and thatthe procedural requirements envisaged therein are not a condition precedent 20 lo itsvalidity. They discussed at length the background tothe rule and reasons for its enactment associated, it seems, with the existence of separate divisions ofthe High Court in England. In England therulehasbeen altered andsofaraswemaygather from thejudgment of the trial Court no valid reason exists for 25 giving it mandatory force. The case of Re-Pritchard {deceased) [1963], 1 AllE.R.p. 873) a most important decision with regard to the force of procedural rules isdiscussed in thejudgment ofthetrial Court. The learned Judges overlooked, it seems to us, with respect, oneof 30 the categories of cases that are listed as rendering proceedings void; the class that concerns proceedings that never came to being because of a fundamental defect in their issuing. Indeed this is the case before us. For Or. 2,r. 13 expressly lays down that probate actions shall be preceded by the filing 35 of an affidavit bytheplaintiff oroneofthe plaintiffs in verifying actions by the indorsement of the writ. 302 5 I C.L.R. Dcmetriou and Others \. Prodromou HadjiannstassUui > We feel, it is unnecessary to go any further than reciting the rule plainly mandatory on a consideration of its wording. particularly the employment of the phrase "shall be preceded". , It is settled that where a regulation is set in mandatory term* 5 and abservance of its provisions is made ;i condition for the validity of the proceedings the Court has no discretion to rcln\ it. See Lysandrou v. Schiza and Another

(1979)3 C.L.R. 267 and Evagoruu v. Christodoulouand Another

(1982)I C.L.R.

1. Whatever the rationale behind this rule "may have been 10 in probate actions the filing of an affidavit as provided in Or.
2. r. 13 is a condtion precedent to the valid initiation of the proceedings. The failure of the respondent to comply with the aforesaid rule, renders these proceedings abortive. They were never properly initiated. Consequently the pro15 ceedings in their entirety were void. This being the result, n is unnecessary to discuss the implications of reseating. The appeal succeeds. It is allowed with costs against iespondent. Appeal allowed with costs. 303