(1984)1984 June 28 [TRUNTAFYLUDES, P., A. LOIZOU, LORIS, STYLIANJDES, PJKIS, JJ.] TOULLA G. MALACHTOU, Appellant-Defendant, v. CHRISTODOULOS K. ARMEFTI AND ANOTHER Respondents-Plaintiffs. (Civil Appeal No. 6616). Civil Procedure—Practice—Preliminary point of law—Order 27, rule 1 of the Civil Procedure Rules—Only pure issues of law should be dealt with thereunder which if decided in one way are going to be decisive of litigation between the parties—And only when facts are settled, otherwise the best course is to proceed 5 with the hearing of the whole action under Order 33—Treatment of this case as an exceptional one. At the opening of this appeal, which was directed against the decision of the Full District Court of Limassol on an application under Order 27, rule 1 the Civil Procedure Rules 10 the Court of Appeal, acting ex proprio motu, raised the preliminary issue whether it could deal with the present appeal, in view of the fact that the trial Court gave their ruling on a point of law which savoured of a decision "in abstracto" taking into consideration that the factual substratum on which the 15 said ruling* was based was neither proved nor agreed to by the litigants but on the contrary it was still bitterly contested. Held, that though only pure issues of law should be dealt with under Order 27, rule 1, which if decided in one way are going to be decisive of litigation between the parties and the 20 factual substratum thereof must not be in dispute; that though the Court called upon to decide a preliminary point of law should first know the undisputed facts giving rise to the legal issues he is invited to resolve and if the facts are not settled the best The relevant part of the ruling is quoted at p. 550 post. 548 1 C.L.R. 5 Malachtou v. Armefti and Another course isto proceed under order 33i.e.the hearing of thewhole action; and that though decision under Order 27, rule 1 when the facts are not settled will inevitably lead to declarations in abstracto or will decide academic questions something impermissible and quite outside the task entrusted to the Courts, this Court has decided, very reluctantly, to treat this case as an exceptional one and proceed with the hearing of the main appeal trusting that costs will be thus saved. Order accordingly. 10 Percuriam: We feel it our duty to state though that we must not betaken to laydown either a deviation from thegeneral principle stated above nor that weconsider casesof the same or similar nature with the present appeal as cases which can be treated as exceptional cases. 15 Cases referred to: Georgallides v. Constantinides, 1961 C.L.R. 95 at p. 97, Overseas Shipping&ForwadingCo. ofLebanonv.Kappa Shipping Co. Ltd. and Others
(1977)1 C.L.R. 248; Heirs of Theodora Panayi v. Administratorof the Estate of 20 thelateStylianos Mandrtotis
(1963)2C.L.R. 167at p. 170; Michaelides v. Diakou
(1968)1 C.L.R. 392; Papamichael v. Chacholiades ,
(1970)1 C.L.R. 305 at p. 309; Stephenson Blake&Co.v. Grant Legros &Co,86L.J. Ch.439; Jupiter Electrical(Overseas) Ltd. and Another v. Christides{\975) 25 1C.L.R. 144; Carl-Zeiss-Stiftungv. Hcrbet Smith & Co. and Others[1969] 1 Ch. '93 at p. 94. Appeal. Appeal by defendant against the ruling of the District Court 30 of Limassol (Chrysostomis, P.D.C. and Stavrinides, DJ.) dated the 26th September, 1983.(Action No. 3107/82) whereby it was ruled, that provided a paternal affiliation is established, a child born out of wedlock has the same right of .succession in the estate of the father and of a member of his father's family 35 as if it had been born in wedlock. A. Triantafyllides with R. Michaelides, for the appellant. C. Melas, for the respondents. 549 Malachtou v. Armefti and Another (198-4) TRIANTAFYLLIDES P.: Mr. Justice Lofis will give the ruling of the Court on the preliminary issue. LORIS J.: At the opening of the present appeal, which is an appeal from thedecision ofthe Full District Court of Limassol on an application under Order 27, rule 1of our Civil Procedure 5 Rules in Limassol Action No. 3107/82, we have raised, acting ex proprio motu, the preliminary issue whether we can deal with the present appeal, in view of the fact that the trial Court gave their ruling on a point of law which savours of a decision "in abstracto" taking into consideration that the factual sub- 10 stratum on which the said ruling was based was neither proved nor agreed to by the litigants but on the contrary it is still bitterly contested. The relevant part of the ruling of the trial Court as it appears in the drawn up Order of 26.9.1983 reads as follows: 15 "This Court DOTH HEREBY RULE, provided that a paternal affiliation is established, that a child born out of wedlock has the same right of succession in the estate of his father and of a member of his father's family, as if it had been born in wedlock". 20 Thus the ruling on the aforesaid point of Law was made subject to the establishment of a "paternal affiliation", a fact which is hotly contested by the pleadings and eventual failure of proving same willdefinitely render the substance of the ruling a mere declaration in abstracto. 25 In Chan's E. Georghallides v. Andreas Constantinides, 1961 C.L.R. 95 it was stated by the then High Court of Justice (at p. 97)that "it isnot thepractice of the Courts to decide academic questions or make declaratory orders unless they relate to rights of one or more parties ". 30 In the case of OverseasShipping&Forwarding Co. of Lebanon v. Kappa Shipping Co. Ltd. and others
(1977)1 C.L.R. 248 it was held by a Judge of this Court (on the issue of jurisdiction) that "it is true that such an order should be made only in respect of matters on which no further light would be thrown 35 550 1 C.L.R. Malachtou v. Armefti and Another Loris J. at the trial(Isaacs&SonsLtd. v. Cook [1925]2K.B. 391applied in Tavernerv. GlamorganCounty Council[1941] 57 T.L.R. 243) nor should such an order be made where theie are facts in dispute". 5 This Court after repeatedly drawing the attention on the procedure to be followed in respect of points of law raised under Order 27, rule 1 (vide: The heirs of the late Theodora Panayi v. The Administrator of Estate of the late Stylianos Mandriotis
(1963)2 C.L.R. 167 at p. 170 and Maroulla Athanassi Michae10 lides v. Pinelopi HjiMichael Diakou
(1968)1 C.L.R. 392) laid down in the case of Michael PapaMichael v. KlitosChaholiades
(1970)1 C.L.R. 305that onlypurepoints of lawshould be dealt with under the provisions of Order 27, rule 1 whilst cases of mixed lawand fact or fact alone should betried under Order
- 15 This is the relevant extract from page 309 of the report: 20 25 "We must say that we find the procedure followed in this case rather unorthodox. If it was a preliminary point of law then the provisions of Older 27 should have been followed If it was a question of mixed law and fact, or a question of fact alone, the trial Judge should have followed the procedure laid down in Order 33 regarding the hearing of the action-". Our Order 27, rule 1is similar toOrder 25, rule2 of the Rules of the Supreme Court in England as they were in force before
- (Now the corresponding rule in England is rule 11 of Order 18 read together with rules 3 and 4
(2)of Order 33). In the Annual Practice 1953 Vol. 1 at p. 418 we read the following in respect of the English Order 25, rules 2 and 3 under the heading Scope of Rules. 30 35 "The Court is not justified under the above Rules, even with the consent of the parties, in deciding abstract questions of law raised by the pleadings. Its function is 'to decide questions of law when arising between the parties as the result of a certain state of facts"'. (Stephenson, Blake & Co. v. Grant Legros & Co. 86 L.J. Ch. 439— GlasgowNavigations Co. v. iron Ore Co. [1910] A.C. 293). 551 Loris J. Malachtou v. Armefti and Another
(1984)In the case of Stephenson, Blake & Co., v. Grant Legros & Co. (supra) upon appeal on a dismissal of an application for the determination of six points of law under OrderXXV, rules2and 3,theCourtofAppealrefused todecidethequestions of the law as to copyright and designs raised as points of law, 5 leavingtheaction to gototrialin theordinary way;Warrington L.J. stated inter alia the following: "—The function of the Court is not to decide abstract questions of law, but to decide questions of law when arising between the parties as the result of a certain state 10 of facts—" (vide p. 440 of the report). The establishment with certainty of the state of facts from which there emerges the necessity of a preliminary decision of a point of law under Order 27, rule 1,is invariably a "sine qua non" element in all Cyprus authorities and in the vast 15 majority of English casesto which wehave looked for guidance. The case of Jupiter Electrical (Overseas) Ltd. and another v. SavvasCostaChristides
(1975)1C.L.R. 144 is not a deviation fiom the above principle bearing in mind always that the two issues of law which were raised in the aforesaid case were (
- a)20 the issue ofjurisdiction of the trial Court which turned on the interpretation to be placed on s.3 of the Civil Wrongs Law, Cap. 148, i.e. a purely legal issue and (
- b)what was the law applicable in thecase (the Cyprus or Libyan law); in this latter respect itis well settled that the matter of the law to beapplied 25 can betieated asa preliminary issueto bedealt with before the trial. It is true though, that we have come across English cases, mostlyrecent,inwhichtherewasslightdeviationfrom theabove principle, cases which were rather treated as exceptional ones 30 owing to their specific facts. One of these cases is the case of Carl-Zeiss-Stiftung v. Herbet Smith & Co. and others[1969] 1 Ch. 93. The facts of this case in brief appear at p. 94 of the report: "A plaintiff brought an action against solicitors for an 35 account and payment of all moneys they had received and were to receive from defendants in respect of fees, costs and disbursements in defending a passing-off action still proceeding in which the plaintiff claimed, as the soli552 I C.L.R. 5 10 Malachtou v. Anneftl and Another . Lorls J. citorsadmittedly knew,that all theassets ofthe defendants wereand alwayshad beentheplaintiff's property;considerable fees, costs and disbursements would be incurred in future in defending the passing-off action preceding and duringtrialtoestablishmattersinissuebetweentheplaintiff and the defendants. In the action against the solicitors the plaintiff aveired matters which were in issue in the passing-off action, and the solicitors moved for an order for the trial as a preliminary issue of the question whether the solicitors would be accountable to the plaintiff, for the moneys admittedly received, if the plaintiff established the matters averred. Pennycuick J. Dismissed the motion". On appeal it was held that since a decision-^in favour of the 15 solicitors on the issue would dispose of the claim against them irrespective of the passing-off action the trial of the preliminary issue should be ordered. Lord Denning M.R. in delivering the unanimous judgment of the Court of Appeal stated inter alia the following: 20 25 " I quite agree that in many cases the facts and law are somixedupthatitisveryundesirable tohaveapreliminary issue. I always like to know the facts before deciding the law. But this is an exceptional case. The solicitorshave receivedingoodfaith moneysfor thedefence cf thisaction. They ought to know at once whether they can safely go on leceiving them. If the issue of law is decided in their favoui, it willdispose of theclaim against themirrespective of the main action. I would older a pieliminary issue to be tried™." (vide [1969] 1 Ch. 93 at pp. 98-99). 30 Reverting now to the present preliminary issue;after hearing addresses of counsel on both sides, having given to this issue our best consideration, we have decided, although we must say very reluctantly, to treat this case as an exceptional one and proceed with the hearing of the main appeal trusting that 35 costs will be thus saved. Wefeel it our duty tostatethough that wemustnot betaken to lay downeither a deviation from the general principlestated above noi that weconsider cases of the same oi similar nature 553 Loris J. Malachtou τ. Annefti and Another
(1984)with thepresent appeal ascases which can betreated asexcept ionalcases, Only pure issues of lawshould bedealt with underOrder27, rule 1,which if decided inone wayaregoing tobedecisive of litigation between theparties;andthefactual substratum thereof 5 must not be in dispute. The Court called upon to decide a preliminary point of law should first know the undisputed facts giving rise to thelegal issues heis invited to resolve. If thefacts arenotsettled thebestcouiseistoproceedunder Order 33 i.e. thehearingofthe whole action. Adecision undei Older 10 27, lule 1 when thefacts arenotsettled will inevitably lead to declarations in abstracto oi to use the wording inthecaseof Georgallides (supia) to decide academic questions something impermissible and quite outside thetask entiustedtotheCouits. Order accordingly. 15 554