clr/1983/1983_1_567.pdf

(1983)to the expiration of the time within which the appellants could appeal against the aforesaid decision of the District Court. Counselfor theappellantscontended,byrelyingonregulations 8

(2)and 9 of the Immovable Property (Grant of Right ofWay) Regulations, 1967, that the fresh evidence to be adduced was relevant totheoutcomeofthisappeal inasmuchasthepremature lodgment of the amount of compensation, prior to the expiry of the period for appealing to the Supreme Court, nullified the decision of the Director regarding the access of respondent 2 over the property of the appellants. 5 10 On the applicationto adduce fresh evidence: Held, that this Court has to hear this appeal by way of rehearing; and that though in acting as a Court of Appeal is empowered not only under section 25 of Law 14/60, but, also, under rule 8ofOrder 35of theCivil Procedure Rules, to receive 15 further evidence as regards, inter alia, matters which have occurred after the date of the decision from which an appeal has been brought it cannot receive on this occasion further evidence onappeal sinceitwould not beproper toallow counsel for the appellants to adduce evidence as regards the fact that 20 the compensation in respect of the right of access was lodged by respondent 2 prior to the expiration, and, actually, on the last day, of the period within which an appeal could befiled by the appellants to the Supreme Court against the decision of the District Court concerned; and this Court is of this view 25 because even if such lodgment was, as alleged, not made in accordance with regulation 8

(2)of the relevant Regulations of 1967it cannot hold that,ona fair construction of theprovisions of regulation 9 of the same Regulations, it could decide the present appeal in favour of the appellants on the ground of 30 the premature lodgment of the compensation awarded to them in respect of the right of access in question. In the opinion of this Court the said regulation 9is intended to secure, among other things, the payment of compensation, in respect of a right of access, in accordance with regulations 7 and 8 of the 35 aforesaid Regulations, butit cannot ever beapplied in a manner extinguishing suchrightincase the amount of the compensation is lodged prematurely. Accordingl} the application must fail. Application dismissed. 568 1 C.L.R. HjiSoteriou \. Director of Lands and Surveys Cases referred to: Coudounaris v. Coudounaris

(1980)1 C.L.R. 581 at p.585; Loizouv. Konteatis

(1968)1C.L.R. 291 at p. 293; 5 The Turkish· Co-operative Carob Marketing Society Ltd. v. Kiamil

(1973)1 C.L.R. 1at p. 5; TheElectricity Authorityof Cyprus v. Kipparis, 24 C.L.R. 121 at p.130; Charalambous v. Demetriou, 1961C.L.R. 14at p.22; Pyrghas v. Stavridou

(1969)1C.L.R. 332 at p.342; 10 TheAttorney-General v. Birmingham, Tame andRea District Drainage Board[1912] A.C. 788 at pp. 801,802; . Murphyv. Stone Wallwork (Charlton) Ltd. [1969] 2All E.R. 949 at p.952; 15 Engineers7 andManagers' Association v. Advisory, Conciliation andArbitration Service (No.2) [1979] 3 All E.R. 237at p. 236; [1980] 1 All E.R. 896; Paraskevas v. Mouzoura

(1973)1C.L.R. 88at p. 98; Evdokimou v. Roushias

(1975)1 C.L.R. 304 at p. 308; Pavlidou v, Yerolemon

(1982)1C.L.R.

1. 20 Application. Application bycounsel for theappellants for leave to adduce evidence in order to establish that thecompensation of C£900.was lodged with the appropriate District Lands Office prior to the expiration of the time within which the appellants could 25 appeal against thedecision of the District Court of Famagusta dismissing their appeal under section 80 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap.
2. J. Kaniklides, for the appellants. 30 CI. Antoniades, Senior Counsel of the Republic, for respondent
3. A. Triantafyllides, for respondent
4. Cur. adv. vult. TRIANTAFYLLIDESP. read thefollowing judgment ofthe Court. The appellants have filed thepresent appeal against a decision 569 Triantafyllides P. HjiSoteriou v. Director ofLandsandSurveys

(1983)of a Full District Court by means of which there was dismissed an appeal of theirs, which was filed under section 80 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, against a decision of the respondent Director of Lands and Surveys regarding, the grant of access to the property of 5 respondent 2 over the property of the appellants and the assessment of the compensation payable in respect of such access. The said decision of the Director was reached under the provisions of Cap. 224, as amended through the insertion of section 11A by means of the Immovable Property (Tenure, Registration 10 and Valuation) (Amendment) Law, 1966 (Law 10/66). At the commencement of the hearing of this appeal counsel for the appellants applied for leave to adduce evidence in order to establish that the aforementioned compensation, which amounted to C£900, was lodged with the appropriate District 15 Lands Office prior to the expiration of the time within which the appellants could appeal against the aforesaid decision of the District Court. Under the provisions of Order 35, rule 2, of the Civil Procedure Rules such appeal could be filed within fourteen days 20 frcm the date when the decision of the District Court was given. The lodgment of thecompensation waseffected onthe fourteenth day after the delivery of the decision of the District Court, not counting the day on which such judgment was delivered; and it iscorrectthat theday ofthelodgment wasthe lastday onwhich 25 the appeal to the Supreme Court could have been filed, because the relevant provision in Order 35, rule 2, has been interpreted so as to treat the relevant period of fourteen days as not including the day on which the decision appealed from has been delivered (see, in this respect, inter alia, the case of Coudounaris 30 v. Coudounaris,

(1980)1C.L.R. 581,585,and, also, the cases of Loizou v. Konteatis,

(1968)1C.L.R. 291,293 and The Turkish Co-Operative Carob Marketing Society Ltd. v. Kiamil,

(1973)1 C.L.R. 1, 5, which illustrate in practice the correct mode of computation of time as it was found to be in the Coudounaris 35 case, supra). It was the contention of counsel for the appellants that the fresh evidence to be adduced, as aforesaid, is relevant to the outcome of this appeal inasmuch as the premature lodgment of the amount of compensation, prior to the expiry of the period 40 570 1 C.L.R. HjiSoteriou v. Director of Lands andSurveys Triantafyllides P. for appealing to the Supreme Court, nullifies the decision of the Director regarding the access of respondent 2 over the property of the appellants; and counsel for the appellants has relied, particularly, in this respect, on regulations 8

(2)and 9 of the 5 Immovable Property (Grant of Right of Way) Regulations of 1967 (No. 255 in the Third Supplement to the Official Gazette of 30.3.67). In view of the powers granted to theSupremeCourtinhearing an appeal such as the present one, by virtue of section 25 of the 10 Courts of Justice Law, 1960 (Law 14/60), and rule 8 of Order 35 of the Civil Procedure Rules, it would be correct to say that this Court has to hear this appeal by way of rehearing to the extent permissible within the ambit of the proper exercise of the said powers. 15 It is useful to refer, too, in addition to the relevant provisions of rule 8ofOrder 35of the Civil Procedure Rules,to rule 3of the sameOrderwhichstatesexpressly that allappealsshallbebyway of rehearing (see, in this respect, inter alia, The Electricity Authority of Cyprus v.Kipparis, 24 C.L.R. 121, 130,Charalambous 20 v. Demetriou, 1961 C.L.R. 14, 22 and Pyrgas v. Stavridou,

(1969)1 C.L.R. 332, 342). In The Attorney-General v. Birmingham, Tame, and Rea District DrainageBoard,[1912jA.C. 788, Lord Gorell in delivering his judgment in the House of Lords in England stated the 25 following (at pp. 801, 802):- 30 35 "The appellants asserted, however, that on the appeal the Court of Appeal could not interfere with the order if it *were rightly made at the time. The respondents admitted that the order was rightly made at the time it was made, though there was a question as to what wasto bedone with regard to storm-water; but their point was that since the order they had completed the construction of fresh works, and that there was no longer any breach by them of the provisions of the Act aforesaid, and no necessity or reason for the injunction continuing. They maintained that the hearing before the Court of Appeal was a rehearing, upon which fresh evidence could be given, and that the Court should determine the matter as at the time of the rehearing. 571 Triantafyllides P. HjiSoteriou τ. Director of Lands and Surveys

(1983)Under the Judicature Acts and Rules the hearing of an appeal from thejudgment of ajudge is by way of rehearing, and theCourthas power togiveanyjudgment and tomake any order which ought to have been made, and to make such further or other order as the Courtmay thinkfit (see 5 Order LVIIL, rr. 1 and 4). The Court also has power to take evidence of matters which have occurred after the date of the decision from which the appeal is brought (see Order LVIIL, r.4). It seems clear, therefore, that the Court of Appeal is 10 entitled and ought to rehear the case as at the time of re­ hearing, and if any authority were required for thispropo­ sition it is to be found in the case of Quilter v. Mapleson[1882] 9 Q.B.D. 672. In that case an action of ejectment had been brought under a proviso of re-entry 15 for breach of a covenant in a lease, and Lord Coleridge C.J. gave judgment for the plaintiff. The defendant appealed and obtained a stay, so that the plaintiff did not get actual possession. After the decision and before the appeal was heard the Conveyancing and Law of Property 20 Act, 1881, came into operation, under which power to relieve against a forfeiture was given, and the Court of Appeal, consisting of Jessel, M.R.and Lindley and Bowen, L.JJ., reversed the decision, and granted the relief sought for by the defendant, holding that on a rehearing such 25 a judgment may be given as ought to be given if the case came at that time before the Court of first instance. In my opinion the Courtof Appeal was entitled to make such order as the judge could have made if the case had been heard by him at the date on which the appeal was 30 heard". The relevant provisions regarding the powers of the Court of Appeal in England were then practically identical to the corresponding powers of this Court, as set out, in particular, in rule 8 of Order 35, above The above views of Lord Gorell were followed by the House of Lords in Murphy v. Stone Wallwork (Charlton)Ltd. [1969] 2 All E.R. 949, 952, and more recently in Engineers'and 572 35 1 C.L.R. HjiSoteriou v.DirectorofLandsandSurveys Triantafyllides P. Managers' Association v. Advisory, Conciliation and Arbitration Service (No.2), [1979] 3All E.R. 237, 236; the decision in the EMA v. ACAS (No. 2) case was reversed on further appeal to the House of Lords (see, Engineers' and Managers' Asso5 ciation v.Advisory, Conciliation and Arbitration Service (No.2), [1980 1 All E.R. 896)but not in a manner casting doubt about the correctness of following the aforequoted views of Lord Gorell in the Birmingham case, supra. TheSupreme Court in actingasa Court ofAppeal isempow10 ered not only under section 25 of Law 14/60, but, also, under rule8ofOrder 35ofthe CivilProcedureRules,toreceive further evidence as regards, inter alia, matters which have occurred after the date of the decision from which an appeal has been brought and,regardingtheexerciseofthispowerofthe Supreme 15 Court, useful reference may be made to, inter alia, Paraskevas v. Mouzoura,

(1973)1 C.L.R. 88, 98, Evdokimou v. Roushias,

(1975)1 C.L.R. 304, 308 and Pavlidou v. Yerolemou

(1982)1 C.L.R. 912. Wecannot,however,agreetoreceiveonthisoccasion further 20 evidenceonappealsincewedothink that iswould notbeproper toallowcounselfor theappellants toadduceevidenceasregards the fact that the compensation in respect of the right of access waslodgedbyrespondent2priortotheexpiration,and,actually, on the last day, of the period within which an appeal could 25 be filed by the appellants to the Supreme Court against the decision of the District Court concerned; and we are of this view because even if such lodgment was, as alleged, not made in accordance with regulation 8

(2)of the relevant Regulations of 1967wecannot hold that, on afair construction of theprovi30 sions or regulation 9 of the same Regulations, we could decide the present appeal in favour of the appellants on the ground cf the premature lodgment of the compensation awarded to them in respect of the right of access in question. In our opinion thesaid regulation 9isintended to secure, among other 35 things, the payment of compensation, in respect of a right of access, in accordance with regulations 7 and 8 of the aforesaid Regulations, but it cannot ever be applied in a manner extinguishing such right incasetheamount ofthe compensation is lodged prematurely. 573 Triantafyllides P. HjiSoteriou v. Director of Lands and Surveys

(1983)For the foregoing reasons the application of counsel for the appellants to be allowed to adduce evidence for the purposes of the determination of this appeal is dismissed with costs; and this appeal will be heard on its merits in due course. Application dismissed. 5 574