clr/1984/1984_1_435.pdf

(4)(2>) oj the Courts of Justice Law, I960 (Law 14/60)—And ij the amount in dispute or the value of the property exceeds the limits of the jurisdictionoj ajudicial ojficer, he lacksjurisdiction and the trial is a nullity. 10 The following issues arose for determination in this appeal: (

1. a)Can a point of law as to jurisdiction of the trial Court be raised for the first time by the Supreme Court? 15 (
2. b)Had the trial Judge - a District Judge - jurisdiction to determine a question arising in the course of execution ofa District Courtjudgment ina casewherethevalueof the subject property exceeded the limits of his jurisdiction?* Held,that a point of law going tojurisdiction of a Judge of the The CivilJurisdiction of a District Judge under section 22(2Xb)of the Courts of Justice Law, I960 (as amended) is limited to actions where the amount in dispute or the value of the subject-matter does not exceed C£5,000. 435 Ctntrul Co-Opentme Bank ». CY.K.M.S.

(1984)District Court is a matter of public policy and even if not raised by the parties or the trial Judge and (he trinl proceeds, and even if not raised in the notice of appeal, the Appellate Court has a .duty to raise it of its own moiion: that questions arising in the course of execution of a District Court judgment, as the point raised in the sub judice decision. -:-.re not orders "not disposing of theaction on its merit',"'vitbia the meaning <>f section 22(4}(b> of Law 14/60 a>id, therefore, if the amount in dispute or the value of the property exceed t'ic limits of the jurisdiction of a judicial officer, he lacks jurisdiction and the irial is a nullity. 5 10 Appealallowed. Cases referred to: Thompson v. Shit I [1840] 3 Ir. R. 135: R. r. Dennis [1924] I K.B. 867 at p. 86S: Simpson and Another v. Crowle avrf Others [1921] 3 K.B. 243; 15 Smith r. Smith [1925] 2 K.B. |A«: Smith r. Baker & So.ts [1891] AX. 325 at -p. 333; Davics v. Warwick [1943] 1 All E.R, 309 at p. 313; Snell v. Unity Finance Ltd. [1963] 3 AH C.R. 50 at p. 60; •Oscrojt & Others v. Btnabo & Another [1967] 2 All E.R. 548; 20 Whall and Another v. Β,ιΙηιωι [1953] 2 AH E.R. 306; Pilavachi ά Co. Ltd. :: fnhrnjtional Chemical Co. Ltd.

(1965)I C.L.R. 97 at p. M

1. appeal. Appeal by defendants against the judgment of the District 25 'ourt of Nicosia (Ioannides, D.J.) dated the 25th June, 1983 Action N o . 5071/80) dismissing their application for an order •fthe Court staying the execution of a writ of movables which •as issued by the plaintiffs against the movable piopcity of the iefendants and also for the return of the seized movables to the 30 iefendants. X. Clerides, for the appellants. K. Michaelides, for the respondents. Cur. adv. vult. A. Loizou J.: The judgment of this Court will be delivered »y Stylianides, J. STYLIANIDES J . : The plaintiffs-respondents obtained judgnent against the respondents-deferdants for C£148,536.67 1/
2. 436 35 I C.L.R. Central Cc-Operative Dank >. CY.E.M.S. Stylianides J. In execution of the said judgment they requested and caused the issue of a writ of seizurv and sale of movable ptoperty of the judgment-debtors. On 2.12.82 movable property of the judgment-debtors was 5 seized by the baiiiif of the District Court of Nicosia. On 7.12.82 the appellants took out a summons undei s.21 of the Civil Procedure Law, Cap. 6, Civil Procedure Rules, Cap. 12, 0.4I, r.3, and 0.44, and s.20 of the Co-operative Societies Law, Cap. 114, whereby they sought order of the Couit airesting the 10 execution that was issued by the plaintiffs-respondents against the movable property of the defendants-debtors and the teturn of the seized movables to the possession of the respondentsdcbtois on the giound that they had a number of chaiges charging the piopcrty of the debtors as security for loans and faci15 litir.s granted by them, which were registered in accordance with the provisions of ss. 20 and 21 of Cap.
3. The application was opposed and it was hcaid and detetmined by ? District Judge who concluded as follows:20 25 30 "From a careful reading of the provisions of s.20 of Cap. 114 and having in mind the above referred definition and chaiaclcristics of floating and fixed chaiges, I have come to the conclusion that the charges created under s.20 of Cap. ] 14arcfloating charges onthe properties oftht cooperative industries and not fixed charges. These floating charges first must be crystallised under the teims of the charges and since the Bank did not take any steps for crystallisation the charges continue to befloating chaiges and the Bank is not entitled to the properties charged which continued to belong to the defendants' industries and are liable to seizure and execution by the plaintiffs. The Bank therefore is not entitled to a stay of execution and to a return of the pioperties to the defendant industries and the present application should be dismissed." The appellants took this appeal on a number of grounds. 35 The District Courts were established under the Courts of Justice Law, 1960 (Law No. 14/60) in furtherance of the constitutional provision of Article 152,that thejudicial powei shall be exercised by a High Couit of Justice and such inferior Courts 437 Mvlianides J. Central Co-Operatne Bank v. CY.E.M.S.

(1984)ismay, subjecttotheprovisionsofthisConstitution, be provided •>y a law made theieunder. The civil jurisdiction of a District Judge under the Couits of lustice Law, 1960, as amended by Laws No. 58/72 and s.4(b) of LawNo. 35/82,is limited to actionswheiethe amount indispute 5 >r the value of the subject-matter does not exceed C£5,000.Section 22

(2)(b)). The amount in dispute and/or the value of he subject pioperty, as it emeiges ftom the material in the file. :>y fat exceeds C£5,000.-. At the commencement of the hearing o r this appeal the Court ;x proprio motu laised the question of jurisdiction of the trial Couit and invited counsel to argue on it. 10 X. Clerides for the appellants conceded that the trial Court iiad no jurisdiction. K. Michaelides for the respondentsmdgment creditors submitted that this Court cannot raise the 15 ssue of jurisdiction as it was not raised either before the trial Court oi in the notice of appeal; fuither that the appeal rests on legal points and no useful purpose would be served if the question of jurisdiction weie determined, as, if his submissions were not accepted by this Couit. the litigation would be pro- 20 tracted to the injustice of the parties. Two questions pause for deteimination:fa) Can a point of law as tojurisdiction of the trial Court be raised for the first time by this Court? By "jurisdiction'" it is meant the authority which a Court has 25 todecide matteis that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute under which the District Court is constituted. Jurisdiction must be acquired before judgment is given -(Thompson v. Shiel,

(1840)3Ir. Eq. 30 R. 135). Thejurisdiction of theinferior Couits in thiscountry isderived from and must be traced in the statute establishing them. A trialand decision byan inferioi Court on amatteronwhichit has no jurisdiction is a nullity. In R. v. Dennis, [1924] 1K.B. 867, Avory, J., at p. 868 said:"It isalways the duty of this Couit, evenalthough objection 438 35 1 C.L.R. Central Co-Operative Bank \. CY.E.M.S. Stylianides .1 is not put foiward by counsel, or in the notice of appeal,tc take note of a point which goes to the jurisdiction of th· Court of trial". In Simpson &Another v. Crowle&Others, [1921] 3 K.B. 243 5 it was held that the mere fact that the parties proceeded with th trial without the point as to jurisdiction having been raised di» not confer jurisdiction upon the County Court Judge. Lush J., at p. 255 said;10 15 "We should be obliged, when the absence ofjurisdiction wa pointed out to us, to hold that there was none. We coul» not affirm a judgment and ignote the fact that the actio) ought not to have been heard. The question ofjurisdictioi isone for the Court, and it would be our plain duty to holthat there had been an absence of jurisdiction, if we wer satisfied that it was so". And at p. 257:- 20 "Veiy large consequences would follow if we were to hol· that any kind of action can be tried and a binding judgmer given in a county Court provided the parties to the proceed ings consent to the Court trying it". In Smith v.Smith, [1925]2 K.B. 144,an action was brought i thj County Couit to recover a money claim under an agreement and also for a declaration as to future payments undei tht agree ment. It was held that the County Court had no power to mak 25 a declaration which might involve the payment of sumsof mone by the defendant in excess of the limit of £100 piesciibed b s.56 of the County Couits Act, 1888. Scrutton, L.J., said a p. 150:30 35 *'Acounty couitjudge isajudge of limitedjurisdiction; h cannot dual with money claims of over £100; and how, a hecannot deal with money claims of over £100, hecan hole that a defendant is liable to pay £240 a year for the lifetim< of the plaintiff, I do not understand. It seems to me cleai that the judge exceeded his jurisdiction when he made J declaration that that was a liability of the defendant" The declaiation was set aside by the Court of Appeal foi lacl of jurisdiction of the County Couit. 439 Stylianides J . Central Co-Operatne Bank v. CY.K.M.S. (19K4) In Smith v. Baker ά Sons, [1891] A.C. 325, at p. 333, the iu!e was laid down that "a matter of law can be made the subject of appeal, but then only when the point has been taiscd at the trial before the learned judge". This rule, however, has no application to points of law which it is the duty of the judge himself to take oven if neither of the parties did so. These points of law go (

1. i)to thejurisdiction of the Court, and (
2. ii)to the illegality of the contract sued on. 5 In Davies v. Warwick, [1943] I All E.R. 309, at p. 313. Goddard, L.J., as he then was, said:- 10 "It was said in thecourse of theargument that, PStheproper question was not raised at the trial, it could not be taken on appeal. In answer to that it was said that the rule that a point cf law not taken in tin county court cannot be raised on appeal, as laid down in Smith v. Baker & Sons, does not 15 apply to appeals undci these Acts (i.e., the Rent Acts). I think the proposition which is to be found in Rent and Mortgage Interest Restrictions, 18th Edn., by the Editors of Law Notes, p.183, is too widely stated. The cases cited show that the effect of s.3 of the Act of 1933, which re^tiicts 20 the powei of the court to giant orders foi possession, ii not to afford a statutory defence to a party, but to linvt the jurisdiction of tho couit. If the couit of trial oi the Court of Appeal finds that the caic is one in which : t is debarred from granting an order for possession, it is the duty of the 25 couit to refuse it, even though the statute is not taised by the defendant, because ihcre is no jurisdiction to grant it. But that, in my opinion, is all that the cases quoteel establish". In Snell v. Unity FinanceLtd., [1963] 3 All E.R. 50, Diplock. L. J., said at p. 60 referring to the lule in Smith v. Baker & Sons: 30 "That case was not concerned with points of law which went to eithei of those matters which it is the duty cf the court itself to take even if neithci paity dot-s. i.e., poinU of law which go (
3. i)to thejurisdiction of the couit, or (
4. ii)to the 35 illegality of the contract sued on. It is a cleai rule of public policy that such points should be taken by the- couit ir­ respective of the wishes of the parties; and if not tpken by the judge at trial, should be taken of its owi. .t>'ti:'V 440 I C.1..R. Central C'o-Opmiihe Bank *. CY.E.M.S. Stylianides J. by an appellate court. In my view the rule laid down in Smith v. Baker <S Sons has no application'to 1points of law which it was the duty of the judge himself t o take even if neithei of the parties did so". 5 10 15 20 In Oscrojt & Others v. Betwho ami Another, [1967] 2 All'E.R. 548, it was decided that a question going to the jurisdiction of the County Court or to illegality, even though not raised'before the trial Court or in. the notice of appeal, as a matter of public policy may be taken up by the Court of Appeal on its own motion. (See, also, Whall' and Another v. Bulman] [1953] 2 All E.R. 306). A point of law as to the jurisdiction of an inferioi Court is a matter of public policy. The trial Couit, even if the parties do not raise it, has a duty to take it up of its own motion. Even if not raised by the paitics before the trial Court and not introduced in the notice of appeal, the Appellate Court has a duty on notic­ ing that a case was being tried by a judge without jurisdiction to raise the point of its own motion as the determination by a trial Court without jurisdiction is a nullity. If found that the trial Court lacked jurisdiction, the duty of this Couit is to set aside such judgment. (
5. b)Had the trial Judge jurisdiction to determine the application, of thu appellants? 25 The jurisdiction of the trial Judge is limited, as aforesaid, to disputes in which the amount does not exceed £5,000.-. Section 22

(4)of the Courts of Justice Law, N o . 14/60, readas follows :- 30 "

(4)Notwithstanding anything in any other Law contained and notwithstanding that the amount in dispute ui the value of the subject-matter is in excess of the jurisdiction confened upon him a Piosident or a Senior District J LU'.?•.: or a District Judge shall ha\c power (

1. a)to giw judgment in ;·ην action in which (
2. i)35 the defendant fail.; to e:iter ::.n appear 1 neu \\ 'hi'· the time fixed for si(ch appearana·. oi (
3. ii)cither parly tails to .ιρ, ΛΪΙ at the he:·mi;: of 'l·'- a-iio".. oi \\
4. h)ciiii ; ,\ i_ r.':is to tieir t any p!i\;Ji!i;- v..''*"- l>lianides J. Central Co-Operathe Bank \. CY.E.M.S.

(1984)the time appointed by the Rules of Court relating to civil procedure in foice fo. the time being; or (

1. iv)application is made for summary judgment under the Rules of Court relating to civil proceduie in force for the time being; or 5 (
2. v)the claim of any paity is admitted in whole or where admitted in part with regard to the part admitted; (
3. b)to make any order in any action not disposing of the action on its merits." 10 We think that para, (
4. a)above does not apply in this case. Having legard to the definition of the expression "action" ι s.2 of the Courts of Justice Law, there is no doubt that uestions which arise in the couise of theexecution of a District ouit judgment come within the ambit of that definition. 15 In the piesent case the tiial Judge determined and disposed of le rights of the parties on their merit. The Civil Procedure Law, Cap. 6, Part IV, is headed "Execuon by Sale of Movables". Section 21 makes provision for roceedings where any movable property seized in execution 20 nder any judgment or order is claimed by any person other lan thejudgment-debtor. Theclaimant oi the person to whom ie writ of execution is addressed, may apply to the Court to itermine the right to the property. The Court may make such rder for the trial and determination of the /ights of the parties 25 > it shall think expedient and for the custody in the meanwhile f the piopeity in dispute. The definition of "the Court" in 2 of the Civil Pioceduie Law, Cap. 6, does not extend the irisdiction of the District Judge conferred on him by s.22

(2)(b) fthe Courts of Justice Law. The trial Judge lackedjurisdiction 30 > the value of the property in dispute exceeded the limit of his irisdiction. We find support in this in Pilavachi& Co. Ltd. v. International 'hemicalCo. Ltd.,

(1965)1 C.L.R. 97, where Josephides, J., in clivering the unanimous judgment of the Court of Appeal lid (p.115):"The proceedings for the setting aside of the registration 442 35 I CUR. 5 10 Cenlral Co-Operati\e Bank v. CV.K.M.S. Stylianides J. of the foreign judgment are closely connected with the questions which arise in thecouise of execution of a District Court judgment, e.g. applications for writs of attachment, interpleader applications, etc. In those cases, if the propetty attached under the execution of the District Court judgment, or seized in execution ofthejudgment and claimed by a third party, exceeds in value the sum of £500, (the then jurisdiction of a District Judge), then the Full Court - and not a Judge sitting alone - has jurisdiction to hear and determine the matter". Tosum up,the point of law going tojurisdiction of a Judge of the District Court is a matter of public policy and even if not raised bythe parties or the trial Judge and thetrial proceeds, and even ifnot raised in the notice of appeal, theAppellate Couit has 15 a duty to raise it of its own motion. Questions arising in the course of execution of a Distiict Court judgment, as the point raised in the subjudice decision,are not orders"not disposing of the action on itsmerits" and, theicfore, ifthe amount in dispute or the value of the property exceeds the limits of the jurisdiction 20 of ajudicial officer, he lacksjurisdiction and the trial isa nullity. In view ofthe aforesaid, wehave no alternative but to set aside the judgment appealed against and to order a new trial of the application before a competent Court. With regard to costs,in the circumstances ofthis casewemake 25 no order as to costs. Appeal allowed. New trial of application ordered. No order as to costs. 443