(1983)1983September 21 [HADJIANASTASSIOU, STYLIANIDES, PIKIS, JJ.] GEORGHIOS CONSTANTINIDES (AKINITA) LTD., AND OTHERS, Appellants-Plaintiffs, v. GEORGHIOS MAVROGENIS AND OTHERS, Respondents-Defendants. (Civil Appeal No. 6440). Contract—Construction—Contract of lease—Covenant to effect repairs after vacating premises—Subsequent agreement relieving tenants of such obligation—Its constructionfell to be determined as a matter of law by the Court—Principles governing its construction. 5 Evidence—Opinion evidence—Inadmissible unless witness an expert— Exceptions to the Rule. The respondents-defendants were the tenants of certain premises belonging to the appellants-plaintiff's. Following an order ofejectment, onthe application ofthe appellants,the respondents \Q vacated the premises on 18.3.1978. The trial Judge dismissed appellant's action for damages for breach of the contract of lease arising out of the breach of a clause therein "to restore the premises, upon leaving them, to the excellent condition they had acknowledged to have received them, and make good any 15 damage that might be occasioned to the premises by unauthorised alterations", having held that the relevant clause relied upon by the appellants was rescinded by a subsequent agreement* of the parties. The trial Judge, sustained partly the claim of the appellants for mesne profits and awarded to them a sum of £150.-. In The relevant part of the subsequent agreement reads as follows: "It is understood that they shall (meaning the respondents) be entitled, when leaving the premises, to take all movablearticleswhichare intheir own property and they will not be obliged to make any repairs for the purpose of bringing the premises in their former state". 662 20 1C.L.R. Constaotloides (Akinlta)Ltd.,v. Mavrogenis support of this claim the appellants adduced opinion evidence, emanating from appellant 3, regarding the rental value of the property at the time. · 5 10 15 20 25 30 35 40 Held,
(1)that like any agreement the construction of the subsequent agreement fell to be determined as a matter of law bythe Court; that the relevant question isnotwhat the parties intendedto conveybythephraseology employedto signify their agreement but what they conveyed thereby as objectively reflected bythewording ofthe relevantclauses read inthe context of the agreement as a whole; that the said subsequent agreement clearlyaimed to relievethe respondents ofevery obligation to effect repairs after vacating the premises, thereby absolving them ofthecontractual obligations setup byappellants inaidof their claim; that the effect ofthisagreementwasto absolvethe respondents of the obligations under the clauses of the tenancy agreements relied upon to support the claim for breach of damages; accordingly this part of the appeal must necessarily be dismissed.
(2)That the opinion evidence of appellant 3 on the rental valueoftheproperty wasinadmissible andought strictlytohave been rejected because, subject to well-defined exceptions, the opinion of awitnessincontra-distinctionto what heperceivesas a fact, isinadmissibleunlessheisanexpert, acceptedassuchby the Court, in the field of knowledge in which he expresses an opinion; and that the opinion of an expert is received subject always to factual premises being proved like any other fact; that in the absence of evidence tending to establish the rental value of thepremises the course adopted by the trial Judge, of determining the damage of the appellants by reference to ihe rental payable at the time, which was the only admissible evidence marginally bearing on the subject, cannot be faulted; accordingly this aspect of the appeal must fail as well. Appeal dismissed. Cases referred to: Saab andAnother v.HolyMonastery of AyiosNeophytos
(1982)1 C.L.R. 499; G.I.P. Constructions Ltd. v. Assiotis
(1982)1 C.L.R. 535; Bahamas TrustCo.v. Threadgold[1974]3All E.R. 881(H.L.); Loucaidesv. CD. Hay and Sons Ltd.
(1971)1 C.L.R. 134; EnglishExporters{London) Ltd. v. Eldonwall [1973] Ch. 415. 663 Constantinides(Akinita)Ltd.,v.Mavrogenls
(1983)Appeal. Appeal byplaintiffs against thejudgment of the District Court of Nicosia (Arttmides, Agl P.D.C.) dated the 6th April, 1982 (Action No. 3092/78) whereby in an action, for the recovery of damages for breach cf-contract of leasedefendants wereordered 5 to pay £150.-. C. Ch. Velaris, Jor the appellants. A. Papacharalambous, for respondents 1, 2, 4 and
- A. Haviaras, for respondent
- Cur. adv. vult. \Q HADJIANASTASSIOU J.: The judgment of the Court will be delivered by Mr. Justice Pikis. Pitas J.: The appellants were the owners of centrally located premises at Nicosia, leased to the respondents for use as a discotheque. It seems that in due course the respondents \5 became statutory tenants. On 5.4.77 an order of ejectment was made, on the application of the appellants, directing the respondents to vacate the premises. Following an arrangement between the parties the Court sanctioned the suspension of the enforcement of the order upto 15.1.
- The respondents over- 20 stayed the extension but not for long. They vacated the premises on 18.3.
- This appeal arises from the unsuccessful action of the appellants to recover damages for breach of the contracts of lease that first regulated the relationship of landlord and tenant 25 between the parties and survived the convertion of the tenancy into a statutory one. The pertinent clauses breached in the contention of the appellants, attached liability tothe respondents to restore the premises, upon leaving them, to the excellent condition they had acknowledged to have received them, and 30 make good any damage thatmight beoccasioned to the premises by unauthorised alterations. A sum of £1,835.-was claimed as damages resulting from breach of the aforementioned clauses of the two agreements that established the relationship of landlord and tenant between the parties. 35 in the same action the appellants joined a claim for mesne profits for the unauthorised occupation of the premises by respondents after 15.1.78: The claim was for a period longer 664 1 C.L.R. Constantinides (Akinita)Ltd.,v.Msvrogcnis Pibis J. than the period between 15.1.78 and 18.3.78 when the premises werevacated; it included-a claim for damagesfor an additional period allegedly needed for effecting the repairs for which the respondents were allegedly liable, upto July,
- 5 The respondents denied liability for damage for breach of contract as well as any liability for repairs or restoration work. The relevant clauses, notably 12 and 13, relied upon by the appellantsto support their claim, wererescinded by a subsequent agreement of the parties preceding or forming part of the settle10 ment of 5.4.77,intheproceedings,abovementioned, for recovery of possession. The existence of this agreement was admitted by the appellants; there was no dispute about its content either. On any view of its wording it purported to absolve the respondents of some or all their obligations under clauses 12and 15 13, forming the basis of the action of the appellants. The relevant part of the agreement read: 20 "It is understood that they shall (meaning the respondents) be entitled, when leaving the prenises, to take all movable articles which are in their own property and they will not be obliged to make any repairs for the purpose of bringing the premises in their former state." Surprising as itmay appear, the appellants framed their claim and fashioned their prayer for damages without reference to the agreement of the parties of 5.4.77, a fact duly noliced by the 25 learned trial Judge. Like any agreement, its construction fell to bedetermined as a matter of law by the Court. The relevant question is not what the parties intended to convey by the phraseology employed to signify their agreement but what they conveyed thereby as objectively reflected by the worcing of the 30 relevant clausts read in tht context oi the agreement as a wholeSee, Saab and Another v. Holy Monastery Ay. Neophytos
(1982)1 C.L.R. 499; G.LP. Constructions Ltd. v. Assiotis
(1982)1 C.L.R. 535; Bahamas Trust Co. v. Threadgold [1974] 3 All E.R. 881 (H.L.). 35 The learned trial Judge was not required to perform an unduly complicated task. The agreement of the parties was expressed in plain language and the meaning was fairly straight forward. It was held that it absolved the respondents of the 665 Pikis J. Constantinides (Akiaita) Ltd., v. Mavrogenis
(1983)obligations allegedly breached. That put an end to the claim of the appellants for damages for breach of contract. The learned trial Judgeinclined to the viewthat thedamage caused was substantial but dismissed the contention that it wascaused maliciously out ofa desir.·torevengetheappellantsforevicting 5 them from the premises. Of course it was unnecessary forthe Judge to debat* this aspect of the case at all. Fcr the claim sounded exclusively in contract and the remedies confined to damages for breach of contract. Likewise it is unnecessary for us to go into the various sub- 10 missionsmadebycounselfor theappellants astotheliabilityof respondents for damages outside the realm of contract. We mayremind oftheobservationsmadeinLoucaides v.C.D.Hay andSonsLtd.
(1971)1C.L.R. 134,that it isessential that cases betried and determined onthebasisoftheissues,asdefined by 15 the pleadings. The decision of the Court that respondents were not answerable for damages for breach of contract, also put an end to the claim of the appellantsfor damagesfor unauthorised occupation ofthepremisesfor anyperiodbeyond the date the premises were emptied, viz. 18.3.78. 20 Counsel for the appellants made a faint attempt to question theconstruction favoured bythetrial Court oftheagreementof 5.4.77. To be specific, he submitted that the agreement accompanying the settlement of 5.4.77 meant to relieve the respondents of repairs they might be liable to make under the 25 contract, but not for damagecaused after the settlement. Such interpretation would be arbitrary and contrary to the plain wording of the agreement of the parties. The agreement clearly aimed to relieve the respondents of every obligation to effect repairsafter vacatingthepremises,therebyabsolvingthem 30 of the contractual obligations set up by appellants in aid of their claim. In agreement withthelearned trial Judge,werule that the effect of the settlement of 5.4.77 was to absolve the respondents of the obligations under the clauses of the tenancy agreementsrelied upontosupporttheclaim for breachofdama- 35 ges. This part of the appeal must necessarily be dismissed. The claim for mesne profits for the period between 15.1.78 to 18.3.78 amounting to £180.-,waspartly sustained, a sum of 666 1C.L.R. Constantinides (Akinita) Ltd., v.Mavrogenls Pikis J. t £150.- was awarded and judgment was entered accordingly. Counsel for the appellants argued that the decision was wrong because it ignored or overlooked material evidenceconsisting of 5 10 15 (
- a)the opinion of Michalakis Constantinides, one of the appellants - the manager of appellants 1- that the rentalvalueofthepropertyatthetimewas£3.-perday, and (
- b)evidence of the rent at which the property was leased subsequent to the repairs. There was evidence before the trial Court that at some stage subsequent to repairs, theproperty was leased at a rental of £175.-per month, butnotfor long. Shortlyafterwards therental fetched from theleaseoftheproperty dropped to£50.per month, a fact suggestive of the instability of the market. AsthelearnedtrialJudgerightly concluded, soit seemstous, the above evidence offered no basis for the rental value of the property. The evidence of Michalakis Constantinides on the subject of the rental valueof theproperty was inadmissible and 20 ought strictly to have been rejected. Subject to well-defined exceptions, that need not concern us here, the opinion of a witness in contra-distinction to what he perceives as a fact, is inadmissible unless he is an expert, accepted as such by the Court,inthefield ofknowledgeinwhichheexpressesanopinion. 25 The opinion of an expert is received subject always to factual premisesbeingproved likeany other fact. See,English Exporters (London) Ltd. v.EldonwallLtd. [1973]Ch.415. In England the reception of expert evidence in civil proceedings is now regulated by the Civil Evidence Act 1972, that made substantial 30 changes tothelawrelevant to thereceptionofexpert testimony. Its provisions need not concern us for they have no application to Cyprus. Intheabsenceof evidencetendingtoestablishtherentalvalue ofthepremises,eitherbyreference totherental fetched from the 35 lease of comparable premises or the capital outlay, the trial Judge was faced with virtually no evidence on the subject. He stirred a course that cannot, in the circumstances, be faulted. Hedetermined thedamageof the appellants by reference to the rentalpayableatthetimewhichwastheonlyadmissibleevidence 667 PikisJ. Constantinides(Akinita)Ltd.,r.Mavrogenis
(1983)marginally bearing on the subject. And inorder that such rent might best reflect market forces he took it at the level it would be unreduced by the provisions of the Rent Control Law 36/75 (the reduction of 20%). If anything, it was a course favourable to the appellants about which they can have no 5 legitimate complaint. Therefore, this aspect of the appeal fails as well. The appeal is dismissed with no costs. (Costs were not claimed). Appealdismissed with noorder astocosts. 10 668