clr/1984/1984_1_189.pdf

(1984)counsel for the respondent in Nicosia and was posted forthwith to his law office at Larnaca, but such notice never reached its destination and as a result, counsel for respondent was not aware of the date of the hearing of this appeal. Counsel for the appellant did not contest these facts, did not oppose the application and left the matter at the discretion of the Court. 5 Held, that though there is no provision in the rules enabling the Court to excercise jurisdiction in the matter it is within the inherent power of the Court to deal with an application in 10 the nature of the present one; and that though it is desirable that litigation should come to an end as soon as it is reasonably practical, in the special circumstances of this case and bearing in mind that the alleged facts have not been contested by counsel appearing for the appellant and the application has 15 not been opposed by counsel for appellant who is concerned with the speedy outcome of this appeal, this Court has decided. though not without great reluctance and without laying down a general rule in this respect, to grant the application and allow the applicant to address the Court in this appeal. 20 Application granted. Observations: Before concluding, however, we wish to draw the attention of advocates from other districts who have an office for address of service in Nicosia, that they have a duty to make such arrangements Ihrough such 25 office to be kept informed in time about the date when an appeal in which they appear is fixed, or make inquiries through the Registry of the Courl as to the position of their appeal, especially in view of the fact that civil appeals are fixed well ahead of the date of 30 hearing. Cases referred to: Kyriacou v. Georghiades

(1970)1 C.L.R. 145; HjiPanayi v. HjiPanayi

(1974)1 C.L.R. 60; Georghiou v. Republic

(1968)I C.L.R. 411; Ataliotis v. Police

(1963)1 C.L.R. I l l ; Orphanides v. Michaelides

(1968)1 C.L.R. 293; 190 35 1 C.L.R. Markides Europa v.VassosEliadesLtd. Hession\. Jones [1914] 2 K.B. 421; Edwardsv. Edwards[1968] 1 W.L.R.

1. Application. Application by the plaintiff, respondent in the appeal, for 5 leave to address the Court or be heard in this appeal in which judgment has been reserved. M. HjiCltristophi, for the applicant. A. Dikigoropoullos, for the respondent. Cur. adv. vult. 10 HADJIANASTASSIOU J.: The decision of the Court will be delivered by Mr. Justice Savvides. SAVVIDES J.: This is an application on behalf of plaintiff, the respondent in this appeal, foi leave to address the Court or be heard in this appeal in which judgment has been reserved. 15 It is, in fact, an application to reopen the hearing of the appeal. The material facts to the present application are briefly as follows: 20 25 30 35 The appellant-defendant before ths trial Court - filed this appeal challenging thejudgment given against him in an action brought by the applicant in the District Court of Nicosia. The appeal cameupfor hearing on the 17thOctober,
2. Counsel for the appellant attended the hearing, whereas counsel for the respondent failed to attend. The Court having been satisfied that notice of the hearing of the appeal had been served at the address for service of counsel for the applicant, proceeded, in compliance with rule 14 of Order 35 of the Civil Procedure Rules, to hear the appeal in the absence of the respondent. Counsel for appellant addressed the Court in support of the appeal and the judgment was reserved. When counsel for the applicant cameto knowabout thissituation,filed this application on the 23rd January, 1984, asking for leave to be heard. The facts relied upon in support of the application are set out in three affidavits, ons sworn by him, the other by his partner Mr. 7acharias Mylonas and the third one by Lysandros HadjiDemetriou, an advocate of Nicosia, whose office wasthe address for service of counsel for applicant. The contents of such affidavit are to the effect that thenotice of hearing of this appeal was received by the office which was the address for service of 191 Saνιides J. Marktdes Europa *. Vasws Eliades Ltd.

(1984)applicant in Nicosia and was posted forthwith, to his law office at Larnaca, but such notice never reached its destination and as a result, counsol for applicant was not aware of the date of the hearing of this appeal. This application was not opposed by couns;l for the appellant who left the matter at the discretion of th»; Court. 5 Under the Civil Procedure Rulos wh.n an appeal is called for hearing, if the respondent appears and the appellant docs not. the appeal may, on the application of the respondent,be dismis­ sed or otherwise dealt with as the Coiut of Appeal may think 10 right. (Order 35, rule 13). if, on the other hand, the appellant appears and the rv.-spondi.nt does not, the Court of Appeal may upon proof of service on the respondent, hear the appellant and dispone of the appeal as though the respondent were present. (Order 35, rule 14). The Court exercising its powers and dis- 15 cretion under rule 14, heard counsel for the appellant and re­ served itsjudgment which till the heaiing of the application had not been delivered and is still pending waiting for theoutcome of this application. The application is based on Order

1. rules !
2. 13 and 14, 20 Order 48, rules I - 9, Order 50, rule I, Order 51, rule I and Order
3. We wish to point out straightaway, that none of these rules contains any provisions as to what remedy is open to a respond­ ent if he fails to attend at thehearing of the appeal and theCourt 25 proceeds to hear the appeal as though tho respondent were present, and we have been, unable to trace any other provision in the rules applicable to such cases. Rules 12, 13 and 14 of Order 35, provide for tho course open to the Court of Appeal to dispose of an appeal when either party is absent when theappeal 30 is called on for hearing. Rules 1 -9 of Order 48 deal with the form of applications to be made under the Rules and Order 50 rule 1 for the need to furnish an address for service within the municipal limits of the town within which the Registry of the Court in which an action was instituted, is situated, and in case 35 of appeal before the Supreme Court an address for service in Nicosia. Order 51 provides as to how service has to be effected. 192 1 C.L.R. Markides Europa \. Vas&os Eliades Ltd. Savvides J. It should be noted that under rule I of Older 51 it is provided that - 5 ** and everything done on any proceeding whereof notice has been served or given according to these rules shall be binding on a person so served or notified, whether he attends on the proceeding or not." Order 64 has no application cither, as it deals with the effect of non-compliance with the rules and with irregularities in the proceedings. 10 Counsel for applicant has submitted that the matter is within the discretion of the Court in the exercise of its inherent jurisdiction and that in the present case beaiing in mind all the circumstances of the case as verified by the affidavits in support of the application and which have not been contested by the other 15 side and also the fact that judgment has not yet been delivered and no injustice will becaused to theappellant ifthis application isgranted, the Court should exercise such discretion in favour of the applicant. 20 25 30 35 Thecasesreferred to by counsel for applicant insupport ofhis argument that this Court has a discretion in the case and the modeastohowsuchdiscretionmaybeexercised, thatisKyriacou v. Georghiades,

(1970)I C.L.R, 145, Hj.Panayi v. Hj.Panayi

(1974)1 C.L.R. 60 and Georghiouv. The Republic

(1968)1 C.L.R. 411, cannot lender any assistance to the applicant, becausesuchcaseswerecasesinwhichthediscretion ofthe Court was exercised under the relevant provisions in the Civil Procedure Rules. The first two cases were cases of reinstatement of an appeal which was dismissed for failure to take the steps mentioned in Order 35,lule 1,within the period of three months of lodging a notice of appeal and for which provision is made under Order 35, rule 22 that the Court of Appeal may, if it so deems fit, to reinstate th? appeals upon such terms as may be just. The third case, was a case of extsnsion of time to file an appeal after the "datefor filing same had expired and Order 57, rule 2wasrelied upon insupport of the application whichprovides that the Court has power to extend the time fixed by the Rules upon such terms as the justice of the case may require. "In Ataliotis v. The Police

(1963)1 C.L.R. I l l , which was a criminal appeal and counsel for appellant failed to attend the 193 SavWdes J. Markides Europa v. Vassos Eliades Ltd. (19S4) hearing of the appeal although notice of the hearing was duly served onhisagent andasa result theappealwasdismissed and the conviction affirmed, the Court of Appeal after Ithad ascertained that notice of thehearing of the appeal was duly served on the address for serviceof counsel for the appellant, had this 5 to say at page 113: "Wetaketheviewthatadvocatesfrom otherdistricts,whsn theygivealawyer'soffice or anyplaceinNicosiaasaddress for service,they mustbesurethat theyhavemade sufficient arrangements for the agent here to take the responsibility 10 involved. On the other hand, any person in charge of an office given as an address for service for Court documents connectedwithproceedings,presumably withhisknowledge and consent, must bear in mind that there are certain responsibilities involved, which he must bear." 15 Orphanides v. Michaelides

(1968)1C.L.R. 293,to which reference was made by counsel for applicant, is distinguishable from the present case. Theapplication in that casewas for an orderthat an appealwhichhad alreadybeenheardandinwhich judgment had been delivered, should be heard further on its 20 merits by theJudges of the Supreme Court, who had already heard and decided the appeal in the exercise of the Supreme Court's appellate jurisdiction. The application which was heard by the Full Bench of the Supreme Court was dismissed and Triantafylhdes, J. (ashe then was),after reviewing English 25 caselaw on the question asto whether the Court which hasdelivered a judgment can hear further argument and alter its judgment, had this to say at page 299: "It appearstobenowwell-established in Englandthat until a judgment or order has been completed and perfected, 30 through being drawn up and entered, the Court which has delivered it has theright, in a proper case,to reconsider it. It is quite clear that the English Courts have taken the view that ajudgment is not completed and perfected until it has been drawn upand entered, because of the existing 35. practice in England regarding trial of civil cases, where judgment is usually delivered orally, without it being reserved." And then he proceeded to draw a distinction between the 194 1 C.L.R. Markides Europa v. Vassos Eliades Ltd. Savvides J. position in England and in Cyprus and concluded as follows at pages 302, 303: 5 10 15 20 25 30 "The practice in Cyprus regarding delivery of reserved judgments on appeal isradically different from thepractice regarding oral judgments in England. In each casewhere judgment has been reserved in Cyprus, such judgment is prepared and printed finally, and, as soon as it has been read in open Court, it is signed by the Judges who have delivered it,and theoriginalisfiled asa matter ofrecordin theofficial Courtfile (asithasbeendoneinthiscaseonthe 15th December, 1967); and copies are given out at once, thereand then,to thepartiesintheappeal,as,again,ithas been done in the present case. Weare oftheview,therefore, that looking at theessence of things, and not losing sight of it through procsdural technicalities, the position in Cyprus,in relation to a reservedjudgment is that suchjudgment is completedandperfected (just as it happens in England when an orally pronouncedjudgment is drawn up and entered) when it isdeliveied, signed and filed, and whatever there remains to be donebywayofformally enteringit, ontheapplication ofa party, isnot necessary for itscompletion orperfection, but it may well be a formality necessary for other purposes. Therefore, once, in Cyprus, a judgment has been delivercd, signed and filed, there can be no possibility for the Court which has delivered it to rehear argument and to change it, or set it aside, except, of course, to the extent to which it has, always, been possible to correct an error in a judgment under the provisions of Order 25, rule 6 (whichis known as the'slip'ruleand corresponds to Order 20rule 11 of the Rules of the Supreme Court in England) and under the inherent jurisdiction of the Court". Notwithstanding the fact that Orphantdes case is distinguishable from the present one, nevertheless as it appears from the 35 dictum of Triantafyllides, J., (as he then was), in England it is well established that there is inherent powei in the Court to exercisea discretion ina proper caseand reconsider itsjudgment before such judgment has been peifected through being drawn up and entered. A point which was earmarked in that 195 Savvides J. Markides Europa v. Vassos Eliades Ltd.

(1984)case was the distinction between the English practice and our practice, concerning the time when a judgment is finalised and also that after such stage, there is no possibility for the Court which has delivered it, to r;-hear argument and to change it, except only in the case of correcting an error under the "slip 5 rule". That there is inherent jurisdiction to the Court to deal with this matter, reference may be made also to the case of Hessian v. Jones [1914J 2 K.B. 421, in which an application on behalf oftheplaintiff, therespondent on an appeal,torestoretheappeal 10 after the appellant had appeared and argued his appeal in the absence of the respondent and the Court had heard the appeal and came to a decision, was dismissed. The application was dismissed on the ground that after the order of the Divisional Court had been passed and entered, the 15 Court had no jurisdiction to grant the application. Bankes J. in delivering the judgment of the Court, had this to say at pp. 425, 426: 'Our jurisdiction therefore isin part a statutory jurisdiction regulated by the Rules of the Supreme Court, 1883, and 20 partly an inherent jurisdiction which we possess as judges of the High Court. The question is whether either by the rules or by reason of our inherent jurisdiction we have the power to reinstate this appeal. Order XXXVI., r. 33, is one of a number of rules dealing with the trial of an 25 action and applies only to verdicts and judgments at the trial. It might be contended that the existence of such a rule is rather against the plaintiff than in his favour, because, if there was an inherent jurisdiction to set aside an order where one party docs not appear at the trial, 30 the rule would not have been necessary. On the other hand it might be said that the rule was made ex abundant) cautsla, and so in myviewthat point isnot of much weight. Then does this application come within the special rules regulating the procedure of the Divisional Court in appeals 35 from inferior Courts? Read in their widest sense the words of Order LIX., r. 16, that the Court may 'make any other order, on such terms as the Court shall think just, to ensure the determination of the merits of the real questions in controversy between the parties', might afford 40 196 I C.L.R. 5 10 15 Markides Europa v. Vassos Eliades Ltd. Savvides J. grounds for the present application, but having regard to the position and context of those words, I think that it would be straining their meaning to make them cover this case. The rule is not aimed at applications of this class. In my opinion the rules do not confer on us thejurisdiction we are asked to exercise. Then as to the inherentjurisdiction of the Court. Before the Judicature Acts the Courts of common law had no jurisdiction whatever to set aside an order which had been made. The Court of Chancery did exercise a certain limited power in this direction. All Courts would have power to make a necessary correction if the order as drawn up did not express the intention of the Court; the Court of Chancery, however, went somewhat further than that, and would in a proper caserecall any decree or order before it was passed and entered; but after it had been drawn up and perfected no Court orjudge had any power to interfere with it". The present case is distinguishable from Orphanidescase and 20 Hession case in that the judgment in the present case has been reserved and is still pending. There isno provision, as already mentioned,intherulesenablingthe Court toexercisejurisdiction in the matter. It is clear, however, from the above authorities, that it is within the inherent power of the Court to deal with 25 an application in the nature of the present one. Having so found, we are now coming to consider whether in the circumstances of the present case, we are justified to exercise our discretion in granting this application. To the facts of the case, already related, we have to add the 30 following, after a perusal of the record of this appeal. This appeal was originally fixed for hearing on the 13th July, 1983 and it had to be adjourned for want of time in the presence of counsel, for the 5th September, 1983. Counsel for applicant was present on that day for the purpose of the hearing of the 35 appeal. On the 1st September, 1983 counsel were informed that the appeal was taken off the list of cases fixed on the 5th September, 1983 and was to be fixed on a future date. It was finallyfixedon the 17thOctober, 1983and thenotice for hearing 197 Savvides J. Markides Europa v. Vassos Eliades Ltd.

(1984)was ssrved on the address for service of counsel appearing in this case. It is clear from the argument advanced by counsel for the applicant that hewas opposing thisappeal and thisis manifested by his attendance on the day when the appeal was originally 5 fixed for hearing. The fact that the notice of ths hearing of the appeal was served at the law office which was the address for service of counsel for theapplicant inNicosia isnot disputed and according to the affidavits in support of the application, such notice was mailed to counsel for applicant to his office 10 at Larnaca. It appears also from the affidavit sworn by counsel for applicant and his pattner, that such letter never reached its destination. These facts have not been contested by counsel for the appellant who, in fairness to his colleagues, did not oppose this application and left the matter at the discretion of 15 the Court. It is a well established principle that "interest reipublieac ut sit finis litium" (it is in the interest of the State that litigation should como to an end). Such principle has been safeguarded by our Constitution which provides for a speedy trial and has 20 been repeatedly pronounced in our case law. In Edwards v. Edwards [1968] 1 W.L.R. 149 the President of the Probate Divorce and Admiralty Division of the High Court in England is reported to have said at page 150: "Most relevant of all to this application, it is desirable that 25 disputes within society should be brought to an end as soon as is reasonably practical and should not be allowed to drug festeringly on for an indefinite period". In the special circumstances of this case and bearing in mind that the alleged facts havenot beencontested by counsel appear- 30 ing for the appellant and the application has not besn opposed by counsel for appellant who is concerned with the speedy outcome of this appeal, we have decided, though not without great reluctance and without layingdown a general rule in this respect, to grant the application and allow the applicant to address 35 the Court in this appeal. Before concluding, however, we wish to drawn the attention of advocates from other districts who have an office for address 198 1 C.L.R. Markides Europa v. Vassos Eliades Ltd. Savvides J. ofservicein Nicosia, that they have aduty to makesuch arrangements through such office to be kept informed in time about the date when an appeal in which they appear is fixed, or make inquiries through the Registry of the Court as to the position 5 of their appeal, especially in view of the fact that civil appeals are fixed well ahead of the date of hearing. The costs of this application to be in favour of the appellant. Application granted. Costs of application infavour ofappellant. 199