clr/1984/1984_1_581.pdf

(1984)cannot beregulated bytheability of advocatesto appear before it". Thereafter counsel who appeared on behalf of counsel for the defendant informed the Court that hewasnot ina position to proceed with the further hearing and presentation of the case of the defendant and applied for leave to withdraw. 5 Thetrial Judgegranted him leaveto withdraw and after hearing the address of counsel for respondents, in the absence of the appellant and his advocate, gave judgment in favour of the plaintiffs for £562.675 mils, with costs, and dismissed, at the same time, appellant's counterclaim. Hence this appeal. 10 Held,{after stating theprinciples regarding the discretion of a trialJudgetograntanadjournment andtheprinciples regarding thepowers of the Courtof Appealto interfere with the exercise of suchdiscretion), that though this Court is in agreement with the trial Court that the work of the Court cannot be regulated 15 by the whims of advocates and that adjournments should be sparingly allowed each case must be considered in the light of its surrounding circumstances; that if the trial Judge had in mindtorefuse thewrittenapplication foradjournment ongeneral principles he should haverefused it straight away so that appel- 20 lant's counsel might have made arrangements for the appellant to be informed accordingly and be present at the date of the hearjng and be able to be represented by another advocate, whereas by leaving the matter to be determined on the date of thehearing and in theabsence oftheappellant whoobviously 25 took it as granted that the case was to be adjourned, deprived himof the opportunity tobeheard and present hiscaseand thus injustice wascausedtohim;that, further, counselfor respondents consented to both the oral and written applications for adjournment having been satisfied that there was a just cause for such 30 adjournment and it isobvious from hisattitude that no injustice would have resulted to the respondents if the adjournment was granted, whereas the refusal of the trial Judge to adjourn the case has caused injustice to the appellant who was deprived of the chance to present his caseand beheard; and that, there- 35 fore, the proper course is to set aside thejudgment of the trial Judge on the ground that the adjournment applied for on November 26, 1981in writing and repeated orally on November 30, 1981, the day of the hearing, was wrongly refused and it is ordered that there should be a retrial of the case, necessarily 40 before another Judge. Appealallowed. Retrial ordered. 582 1 C.L.R. 5 10 15 20 25 30 Kalti v. Makis Ltd. Cases referred to: Tsiarta and Anotherv. Yiapana and Another,1962 C.L.R. 198 at p. 208; HjiNicola\. Christofi andAnother

(1965)1C.L.R. 324 at p. 338; HjiNicolaou v. Gavricland Another

(1965)1 C.L.R. 421 at p. 431; Athanassiou v. Attorney-General of theRepublic

(1969)1C.L.R. 439 at p. 455; Edwards v. Edwards [1968] 1 W.L.R. 149 at pp. 150, 151; international Bonded Stores v. Minerva Insurance

(1979)1 C.L.R. 557; Maxwell v. Keun[1928] 1K.B. 645 at p. 657; Kranidiotis ν The Ship "Amor"

(1980)1 C.L.R. 297; Kier(Cyprus) Ltd. v. TrencoConstructions Ltd.

(1981)1C.L.R. 30; Zachariou v. Elmini Lioness Inc. and Others

(1982)1 C.L.R. 474; Ship "Maria" v. Williams and Glyns Bank

(1983)1 C.L.R. 706 at pp. 714, 715; Tofas and Anotherv. Agathangeou

(1980)I C.L.R. 560 at p. 565. Appeal. Appeal by defendant against the judgment of the District Court of Nicosia (Artemides, S.D.J.) dated the 3rd December, 1981 (Action No. 1759/79) whereby he was adjudged to pay to plaintiffs the sum of £562.675 mils for damages for breach by him of a building contract. .P. loannides, for the appellant. Ch. Ierides with Chr. Clerides, for the respondents. Cur. adv. vult. HADJIANASTASSIOU J.: The judgment of the Court will be delivered by Mr. Justice Savvides. SAVVIDES J.: This is an appeal by the defendant in Action No. 1759/79, before the District Court of Nicosia, whereby 35 he was adjudged to pay to the plaintiffs the sum of £562.675 mils, with legal interest and costs, and his counterclaim against them was dismissed. 583 Savvides,J. Kalli v.Makis Ltd.

(1984)Respondents' claim against the appellant was for damages for breach by the appellant of a building contract whereby he agreed and undertook to construct a building for the respondents. The appellant denied that he was in breach of the said contract or that he was indebted to them in any amount 5 andallegedthat hehad tocollectfrom therespondentsabalance for theworkdonebyhimwhichwasthesubstanceofhiscounterclaim. Respondents and their witnesses gave evidence and their case was concluded, and the case was adjourned for hearing 10 ofthecasefor theappellant. Onthedatefixedfor continuation of the hearing, counsel for appellant was unable to attend, being absent abroad, and counsel appearing on his behalf, applied for an adjournment of the hearing. Counsel for respondents did not oppose such application and consented to 15 the granting ofthe adjournment. In fact, counsel for appellant four days prior to the hearingfileda written application to the Court for an adjournment setting out the grounds for which the adjournment was asked, the main one of which was his absence abroad and that at that stage of the hearing the case 20 could not be handled by another advocate. Such application was left by the trial Judge to be decided on the date when the hearing of the action was to continue. The learned trial Judge refused to grant an adjournment, and the reason for doing so, as appearing in his ruling, was as 25 follows: "I find the application for an adjournment as unjustified. The fact that an advocate is absent abroad for other work, does not mean that the case which is before the Court and especially continued hearings, should be adjourned. 30 It was the duty of counsel before he left for abroad, to take care ofhiscaseswhich werepending before the Court, Thepresent day mode of work may require that advocates should, for the performance of their duties travel abroad. The Court's work, however, cannot be regulated by the 35 ability of advocates to appear before it and, in particular, it should not be inferred that when advocates are absent abroad their cases will definitely be adjourned in consequence thereof. Once an application was made to the Registry on the 26th November, 1981by which Mr. loan- 40 584 1 C.L.U. 5 10 Kali) v. Makis Ltd. Savrides J. nides was making known that he would be absent, he should have given instructions to another advocate to conduct the present hearing. The notes of the evidence, which was given on behalf of the plaintiffs, were ready and could be used. Furthermore, Mr. Ioannides had his own notes. Fromtheevidencewhichhasbeengivensofar, thenature ofthecaseisnotsuchthatitisdifficult for another advocate to take instructions and continue the hearing. For the above reasons the application for adjournment is dismissed". Asaresult,counsel whoappeared onbehalf of Mr. Ioannides informedtheCourtthathewasnotinaposition-tq»proceedwith thefurther hearingandpresentation of thecaseofthe defendant 15 and applied foi leave to withdraw. The trial Judge then proceeded to hear the address of counsel for respondents, in the absence of the appellant and his advocate, and gave judgment in favour of the respondents-plaintiffs for £562.675 mils, with costs, dismissing at the same time, appellant's counterclaim. 20 It has been the contention of counsel for the appellant that the trial Court wrongly exercised its discretion by refusing to grant an adjournment and proceeding to hear the case, without affording an opportunity to the appellant to adduce his evidence and be heard, thus having deprived him of his 25 constitutional right to defend himself. He further submitted that the trial Court failed to consider and examine the reasons on which the application for an adjournment was based and whether such reasons werejustifying the prayer for an adjournment and by his decision he gave a general reasoning which 30 was not applicable in the present case, as nothing is mentioned therein concerning the grounds on which the adjournment was prayed. He further argued that the refusal to grant an adjournment was wrong in law, bearing in mind the special circumstances 35 ofthecase,as put before theJudgeand assetout in an affidavit dated 9.1.1982 sworn by counsel for the appellant, the contents of which are briefly as follows: "On 7th November, 1981, counsel for appellant left for London for serious reasons and he was planning to return 585 Savvides J. Kalll v. Makis Ltd.

(1984)to Cyprus on the 20th November,

1. He was unable to return on the 20th November and he had to extend his stay in London till 2.12.
2. As the hearing of the case was fixed on the 30th November, 1981, he got in touch with his colleagues in Cyprus, to make arrangements for 5 an adjournment and in fact on the 26th November, 1981, an application was filed on his behalf with the consent ofthe respondent,foranadjournment ofthehearing. Such application was put before the trial Judge on the same day but he left it for consideration on the 30th November, 10 1981, the date of the continuation of the hearing of the action. On the 30th November, 1981,on his instructions, an advocate appeared before the Court and explained the reasons for the application for adjournment and his non appearance before theCourtand the fact thatcounsel 15 for respondents did not object to such adjournment. In the circumstances of the case and the fact that the case for theplaintiff hadalreadybeenconcluded,itwas a matter ofjustice for the appellant if such adjournment would be granted". In concluding his argument before us, counsel for appellant submitted that there were valid reasons before the trial Judge for granting an adjournment which the trial Judge failed to consider and in hisjudgment he did not mention anything that hehasnot beensatisfied about thetruthfulness ofthe allegations 25 and the circumstances which arose urging foi an adjournment. Once the adjournment was refused, counsel added, and the advocate whom he had instructed to appear on his behalf and applyfor theadjournment had to withdraw,instructions should have been given that the appellant should have been notified 30 ofthe fact, tomakearrangements toberepresented and advance his case. Before embarking on theissue before us, wefindit necessary to deal briefly with the history of these proceedings. The pleadings were concluded on the 13th November, 1979 35 and the action wasfixedfor hearing on 30.4.
3. On 19.
4. 1980, counsel for respondents-plaintiffs, filed a written application to whichcounsel for appellant signified his consent praying for an adjournment, on the ground that on that day he would be unable to attend, as he was engaged to appear before the 40 586 20 1 C.L.R. Kalli v. Makis Ltd. Savvfdes J. Full District Court of Limassol. As a result, the hearing was adjourned to 12.6.
5. On 13.5.1980,counsel for respodentsplaintiffs, applied onceagainfor anadjournment, ontheground that on 12.6.1980 he was engaged before the District Court of 5 Limassol. Counsel for appellant consented to such application, and the hearing was adjourned to 13.10.
6. On 16.9.1980,counselfor respondents applied again for an adjournment ofthehearing,ashewould beabsentabroad duetourgent business, to which application counsel for appellant consented 10 and the hearing was, as a result, adjourned to 14.1.
7. Up to 14.1.1981, this case was being handled by another Judge of the same Court but since 14.1.1981 the case was dealt by the Judge who finally tried the case. On 14.1.1981 counsel for appellant happened to be engaged before the Full District 15 Court of Nicosia in a continuing hearing. As a result, he filed with the Registry a letter informing theCourt ofhisinability to attend on 14.1.1981 and praying for an adjournment and on 14.1.1981counsel appearingonhisbehalf applied orally for an adjournment, to which counsel for respondents did not 20 object. In the circumstances of the case the Judge granted the adjournment because, as he found, it was in the interests of justiceandexpressedinstiongtermshisdisapprovalofsituations where counsel cannot cope with their obligations because they are engaged before more than one Court and stressed the fact 25 that counsel cannot have the confort of choosing the Courts they willattend to,whentheir engagementsclash. Thehearing was subsequently adjourned to 14.5.1981 when again counsel for appellant wasunable to attend dueto an urgent case before the Supreme Court in which he had to appear and counsel on 30 his behalf applied for an adjournment, to which counsel for respondents did not object. The adjournment was granted and the case came up finally for hearing on 6.6.1981 when plaintiffs and their Witnesses gave their evidence and the case for plaintiffs was concluded. The further hearing of the case 35 wasadjourned tothe 27th October
8. On the27thOctober 1981, counsel appeared before the Court for the continuation of the hearing but the file of the case could not be traced at the Registry and brought before the Court, although an effort was made till noon. As a result, the case was not heard on 40 such date and on the 29th October, 1981, presumably when the file was traced, it was adjourned for continuation of the 587 Snvvides J. Knlli v. Makis Ltd.

(1984)hearing on the 30th November, 1981 when the application for an adjournment was refused and the hearing was concluded. The undcsirability of delays in the hearing of casus and particularly when such delays are the result of repeated adjournments of the hearing of ucase,in the absence of unusual circumstances, 5 has been repeatedly stressed by our Supreme Court in a number of cases. In Tsiarta and Another v. Yiapana and Another, 1962 C.L.R. 198 at p. 208, Josephides, J. made the following observations concerning adjournments: "A further word needs to be said with respect to adjourn- 10 ments. They produce justifiable dissatisfaction by litigants and their witnesses, and statistical records of this Court confirm the opinion there arc far too many. If an action can proceed the first time it comes on for trial so much the better. When adjournments are necessary there should 15 not be more than one or two. After that there should be - no more adjournments except in unusual circumstances, as to which the Judge has to decide. Having made these comments it must be added these will be very unusual circumstances in which there may be many adjournments. 20 but they. should be few in number". in Nicola v. Christofi and another

(1965)1 C.L.R. 324. Vassiliades P. at p. 338 said the following: "Jn a judgment delivered by the High Court some time prior to the hearing of this case by the trial Judge, observa- 25 tions were made by the High Court deprecating the piecemeal hearing of a case and the delays in the delivery of reserved judgments by trial Courts. Furthermore, the view was expressed that adjournments should, as far as possible, be avoided, except in unusual circumstances, and 30 that once a trial was begun it should proceed continuously day in and day out, where possible, until its conclusion". Disapproval for delays in hearing of cases was also stressed in Eleni G. Hji Nicolaou v. Mariccou Antoni Gavrielandanother

(1965)1 C.L.R. 421 by Zckia, P. at page 431 as follows: 35 "Finally we desire to express once more our disapproval for the delays in the hearing of cases. In.a recent judgment (Nicola v. Christofi and Another, reported in this 588 1 C.I..R. 5 Kalli v. Makis Ltd. Savvides J vol. at p. 324) we had occasion to reiterate our previous observations deprecating the piecemeal hearing of casos and'the delays'in the delivery of reserved judgments. Wc also expressed the view that adjournments should, as far as possible, be avoided except in unusual circumstances, and that once a trial was begun it should proceed continuously day in and day out, where possible, until'its conclusion". •In Athanassiouv. The Attorney-General oj the Republic

(1969);10 1 -C.L.R. 439 at p. 455, Josephidcs, J. reiterated what was said 'by Sir Jocclyn Simon, P. in Edwardsv. Edwards [1968] 1W.L.R. -149 at pp. 150, 151: 15 " . _ it is desirable that disputes within society should ,bc brought to an end as soon as is reasonably -practical .and should not be allowed to drug festeringly on for an indefinite penod. That last principle finds expression in a max)m which English Law took over from the Roman Law: it is in the public interest that there should be some end to litigation. 20 As long ago as Magna Carta, King John was made to promise not only that justice should not be denied but also that it should not be delayed; and there have been times in our history when various Courts have come under severe criticism for their procedural delays". 25 The above authorities have been reviewed by me in International Bonded Stores v. Minerva Insurance

(1979)1 C.L.R. 557 in which I made also reference to the case of Maxwell v. Keun[1928] 1 K.B. 645and in particular, to the following dictum by Atkin L.J. at p. 657, as follows: 30 "The result of this seems to me to be that in the exercise of a proper judicial discretion no Judge ought to make such an order as would defeat the rights of a party and destroy them altogether, unless he is satisfied that he has been guilty of such conduct that justice can only properly be done to the other party by coming to that conclusion. 1am very far from beingsatisfied that that issointhis case; on the other hand, I am quite satisfied that very substantial 35 589 Sawides J. Kalli v. Makis Ltd.

(1984)injustice would be done to the plaintiff by refusing the application that this case should be postponed, and that that is the result of the present order". In the case of International Bonded Stores in the special circumstances of the case the application for adjournment was granted, but in concluding, I had this to say at pp. 564, 565: 5 "Before concluding, I wish to point out that when counsel have to appear for hearing before two Courts at the same time, they should make arrangements in time to instruct some other advocate to appear for them in one of the two 10 cases, or where this is not possible, they may adopt the procedure set out in a practice direction of the Supreme Court to the District Courts of the 28th December, 1965, which reads as follows: 'No adjournments need be granted by District Courts 15 or Assize Courts on the ground that counsel concerned has to appear before the Supreme Court, unless such counsel has contacted the Supreme Court through the Chief Registrar and the Supreme Court finds it proper to request a District Court or Assize Court 20 to consider granting such counsel an adjournment for the prupose. It isto beunderstood that thiscourse willbe adopted by the Supreme Court only on exceptional occasions as e.g. when an appeal before the Supreme Court 25 continues unexpectedly into the following day' ". Also, in Kranidiotis v. The Ship Amor

(1980)1 C.L.R. 297 where an application for an adjournment of the hearing made by thedefendants was strongly objected by counsel for plaintiffs, the principles expounded in International Bonded Stores Ltd. (supra) were reiterated and in granting the application in the special circumstances of that case, I had this to say at pp. 299, 300. "It has been repeatedly stressed by our Supreme Court in a number of cases that delays in the hearing of a case 35 are highly undesirable and that adjournments should be avoided as far as possible and that only in unusual circumstances they must be granted. The reason for this, is 590 30 1 C.L.R. 5 10 Kalli v. Makis Ltd. Savvides J that it is in the public interest that there should be some end to litigation and, furthermore, the right of a citizen to a fair trial within a reasonable time according to the Constitution and the Courts should comply with these constitutional provisions with meticulous care. The discretion of the Courtin granting an adjournment should beexercised in a proper judicial manner and an order for an adjournment should not be made if there is danger that the rights of a party before the Court will be prejudicially affected by such adjournment". Our case law has been reviewed in the cases of Kier (Cyprus) Ltd. v. TrencoConstructions Ltd.

(1981)1C.L.R. 30and Zachariou v. Elmini Lioness Inc. and others

(1982)1 C.L.R. 474. The first case was an appeal in which one of the grounds was 15 the refusal of the trial Court to grant an adjournment after several adjournments of the hearing had been granted by the trial Court at the request of the defendants and after the case had been put on the hearing agenda for over two years. A. Loizou, J. in delivering the judgment of the Court dismissing 20 the appeal, had this to say at page 39: -- ' 25 " As such it has to be examined on the particular facts of each caseand not in abstracto; whether an adjournment will be granted or not must always be considered in the light of the right to a hearing within a reasonable time as piovided by Article 30,para. 2, of our Constitution and Article 6, para. 1, of the European Convention on Human Rights of 1950, ratified by The European Convention on Human Rights (Ratification) Law, 1962 (Law No. 39 of 1962)". 30 The second case wasan admiralty casein which an application by defendants 2 for an adjournment, on the ground that an additional advocate had been retained by them who needed some time to study the file and the evidence given, was refused on the ground that no special circumstances were shown to 35 satisfy the Court that an adjournment was justified as applied for. The principles on which a Court of Appeal may review the exercise of judicial discretion concerning refusal to adjourn a case have been considered in the case of Ship "Maria'1'' v. 591 tides J. Kalli v. Makis Ltd.

(1984)Warn & Glyns Bank

(1983)1 C.L.R. 706, in which, Pikis J. givingthemajorityjudgment of the Full Benchofthe Supreme >urt (A. Loizou dissenting) had this to say at pp. 714, 715: "Theie is limited scope on the part of an appellate Court to inteiferc with the exeicise of discretionary powers by 5 a trial Court. It is a usurpation of powers to assume the exercise of discretionary powers vested in a Court of first instance. The principles relevant lo the review of discretionarypowerswerethe subject of discussion innumerous cases. See, inter alia, Efstathios Kyriacou & Sons Ltd. 10 v. Mouzourides

(1963)2 C.L.R. 1; Re E/eni Michael Hji Petri

(1973)1 C.L.R. 166;Karydas Taxi Co. Ltd. v.Andreas Komodikis

(1975)I C.L.R. 321. The premises upon which theCourt ofAppeal may interfere were lecently summarized in Phylactou v. Michael

(1982)1 C.L.R. 204. They are 15 confined to three instances; where the trial Court (

1. a)acted upon a wrong principle, (
2. b)arrived at a decision that results in injustice (injustice must be obvious) and (
3. c)went wrong on a specific issue. We are essentially required to review the exercise of 20 discretionary powers relevant to an adjournment that in turn requires us to examine the principles applicable thereto. In plotting the course of a trial and in resolving applications for adjournment the Court must balance, as held in Phylactou, two considerations vital for the proper admi- 25 nistration of justice—the need to safeguard effectively the right of every party to be heard in the proceedings, fundamental under the Constitution (Article 32), on the one hand and the need to uphold a litigant's right to the expeditious determination of his rights on the other. 30 Another consideration relevant to the exercise of judicial discretion resulting in the issue of a judgment is that of upholding finality of judgment (see the Observations of Megaw, L.J., in Lambert v. Mainland Market [1977] 2 AH E.R. 826, 833 (c-d). 35 Ordinarily, a Court will accede to an application for adjournment provided no irreparable damage is likely to be occasioned to the other side, irreparable in the sense of injury that cannot be remedied by an appropriate order 592 1 C.L.R. 5 Kalli v. Makis Ltd. Savvides J for costs. But, as acknowledged in Phylactou that i: not the sole consideration;an adjournment may be with held 'where the conductof the party applying to setasid« a judgment is inexcusable, contumelious to the extent ο gross disregard to thejudicial process or the rights of tin adversary' ". And at page 716: 10 15 20 "A Court of Law must not be astute to deprive a pail· of the right to be heard unless sucha course isinescapabh in the circumstances of a case. The entrenchment oftin right to be heard is fundamental for the administrationο justice. The imprint of finality attaching to a judgmen remains liable to be erased unless judgment is given or the meiits after hearing the parties thereto. Thisprinciph was eloquently expressed, if we may say so with respect by Lord Atkin in Evans v. Bartlam [1937]2 All E.R. 646 650 'the principle obviously is that, unless and until tht Court has pronounced a judgment upon the merits or b; consent it is to have power to revoke the expression of it: coercive power where that has been obtained only by ί failure to follow any of the Rules of Procedure' ". In his dissenting judgment in the above case, A. Loizou,J in dealing with the question of adjournments reiterated tht principles expounded by him in Kier (Cyprus) Ltd. v. Trenci 25 Constructions Ltd. (supra) and.said at pp. 720, 721: 30 35 "Suffice it to say that as it transpires from all the author itics, by reference also to the English ones, this Cornoughtto bevery slowtointerfere withthediscretionvestec in a Judgewithregard tosuchamatteras the adjournmen of thetrial of an actionbefore him,and very seldomdoe: - so . Itwill only do so if it appearsthattheresul of an order refusing suchanadjournmentwill be todefea therights of theapplicantsaltogetherand todothat,whicl the Courtof Appeal is satisfied, will be an injustice toon« or othei of the parties". On thequestion of thepower of anAppellate Courttointer fere with theJudge's decision in regard to the granting of ai adjournment, A. Loizou, J. in his.above judgment adoptet 593 Savvides J. Kalli v. Makis Ltd.

(1984)the following dictum of Croom-Johnson, J. in Dick v. Piller [1943] 1 All E.R. 627 at pp. 634, 635: "Although thisCourt haspower to interfere withthejudge's decision in regard to the granting of an adjournment, it will refrain from doing so unless it appears that such 5 discretion has been exercised in a way which shows that allnecessary matters havenot beentaken into consideration: Jones v. S.R. Anthracite Collieries, Ltd. In that case, in the absence of any reason being stated for refusing to allow an adjournment and there being no evidence upon 10 which a refusal could properly be based, this Court allowed an appeal. LORD STERNDALE, M.R., at p. 462 says: 'this Court would not interfere if it appeared to them that such discretion has been exercised in a way which showed that all necessary matters have 15 been taken into consideration although they might not agree with the learned county Court judge's decision' ". The above passage has also been quoted with approval in Tofas and Another v. Agathangelou

(1980)1 C.L.R. 560-at p. 20 565 in which Triantafyllides, P., in delivering the judgment of the Court of Appeal allowing an appeal against the refusal of the trial Court to grant an adjournment said at page 566: "In the present case we have been satisfied that the trial judge waswrong to refuse the adjournment applied for on 25 November 19, 1977; the witness concerned appears, prima facie, to have been an important witness for the case of the appellants and the result of the refusal of the trialjudge to adjourn the case, so that he could attend and give evidence, appears to havecaused an injustice to the appellants, 30 whereas any injustice caused to the respondent could have been remedied by an order of costs against the appellants if the adjournment applied for was allowed. The trial judge seems to have taken it for granted that the witness in question did not attend because he was not 35 summoned, whereas, as it appears from the material before us, he wasa witnesswho would have attended even without having been summoned, and, in all probability, he did 594 1 C.L.R. Kalli v. Makis Ltd. Savvides J. not attend on the date in question because, as stated to the trial Court, by counsel for the appellants, he was indisposed". Having dealt with the principles regarding the discretion of 5 the Court togrant an adjournment and the powers of this Court on appeal to interfere with the exercise of such discretion, we come now to consider whether the discretion of the trial Judge in refusing the adjournment and proceeding to hear the cast in the absence of the appellant and his advocate was propeily 10 exercised as not to require any interference on our part. In refusing the application for an adjournment the trial Judge was guided by the general principle that absence of advocates abroad for work is not by itself a sufficient ground for granting an adjournment as by allowing such course the Court's work 15 would be regulated by the ability of the advocates to appear • before the Court, who would take it as granted that when they are absent abioad their cases will definitely be adjourned in consequence theieof. There was a number of other factors in the present case which 20 should have been taken into consideration. Appellant's advocate when realising that he would be unable to attend due to this prolonged absence abroad, filed an application four days prior to the hearing, praying for an adjournment of the hearing due to his absence abroad, to which counsel for the respondents 25 signified his consent. If the trial Judge had in mind to refuse such application on geneial principles he should have refused it straight away so that appellant's counsel might have made arrangements for the appellant to be informed accordingly and be present at the date of the hearing and be able to be 30 represented by another advocate, whereas by leaving the matter to be determined on the date of the hearing and in the absence of the appellant who obviously took it as granted that the case was to be adjourned, deprived him of the opportunity to be heard and present his case and thus injustice was caused to 35 him. Furthermore, it should not escape one's attention the fact that when the case wasfixedfor continuation of the hearing on the 27th October and appellant and his advocate were ready inCourt waiting till noon, the case had to be adjourned due to no fault on their part but the fault of the Registry which mis595 Savvides J. Kalli \. Makis Ltd.

(1984)placed the file of the case and could not trace it in order to put it before the trial Court. We agree with the trial Court that the work of the Court cannot be regulated by the whims of advocates and that adjournments should be sparingly allowed but each case must be 5 considered in the light of its surrounding circumstances. In the present case there was a written application for an adjournment prior to the hearing to which counsel for respondents signified his consent; moreover, on the date of the hearing the application was renewed orally and counsel for respondent 10 consented to it having been satisfied that there was ajust cause for such adjournment. Itisobviousfrom theattitude of counsel for respondents that no injustice would have resulted to the respondents if the adjournment was granted, whereas the refusal of the trial Judge to adjourn the case has caused injustice to 15 the appellant who was deprived of the chance to present his case and he heard. In the light of ail relevant considerations we have decided that the proper course is to set aside the judgment of the trial Judge on the ground that the adjournment applied for on 20 November 26, 1981 in writing and repeated orally on November 30, 1981,the day of the hearing, was wrongly refused, and, we, therefore, order that there should be a retrial of the case, necessarily before an other Judge. As regards costs, in the circumstances of this case we make 25 no order for costs of this appeal, and the costs of the first trial should be costs in cause in the new trial. Appealallowed.Re-trialordered. 596