(1986)1986 October ΙΟ ΓΑ. L o i z o u , DEMETRUDES, PIKIS, JJ-] PANICCOS HJICHAMB1S, Appellant-ApplUant. v. ATTORNEY-GENERAL OF THE REPUBLIC AND OTHERS, Respondents. (Civil Appeal No. 6816). Elections—Village Authorities—Election Petition—The Village Authorities Law, Cap. 244, Section 9
(3)(h), as amended by Law 43/83—"Αίτηοιο" (Application or Petition) in the said sections—An application by summons under Ord. 48, rules J and 2 of the Civil Procedure Rules is f> not the appropriate form for commencing proceedings under the said section—Proceedings commenced by such an application are a nullity—The only appropriate sum mons to be used for commencing such proceedings is an Originating Summons. 10 Civil Procedure—The Civil Procedure Rules, Ord. 48, rules J and 2—A η application thereunder is incidental to the cause in respect of which proceedings are pending—Ord. 2, rule 1—Originating Summons, definition of—Cause, de finition of. 15 Civil Procedure—Commencement of Proceedings—Proceedings can only commence either by a writ of summons or in exceptional cases by an Originating Summons. Civil Procedure—Distinction between a nullity and an irregularity—Importance of dictinction—The Civil Procedure Rules—Ord. 64, rules I and 2, corresponding to the old English Rules, Ord. 70, rules 1 and 2. Words and Phrases: "Cause" in Ord. I, rule 2 of 386 the Civil 20 1 C.L.R. Hji Chambis v. Attorney-General ProcedureRules and section 2 of the Courts of Justice Law 14J60, and "Originating Summons" in the said Ord. 1, rule 2. 5 10 15 20 25 30 35 The question that arose in this case before the trial Court is whether an application by summons as prescribed by Ord. 48, rules 1 and 2 of the Civil Procedure Rules is the appropriate form of application that has to be used in proceedings for the annulment of an election as provided by section 9
(3)(h) of Cap. 244, as amended on this point by Law 43/83. It should be noted that no Rules of Court regulating the procedure under this section have been made. The trial Court found the whole process, which was commenced by such an application as aforesaid, to be a nullity and set aside the application. The applicant appealed. Held, dismissing the appeal:
(1)An Originating Sum mons, which is one of the ways of commencing pro ceedings, is defined in Ord. 1, rule 2 as "any summons other than a summons in a pending cause or matter" and the word "cause" is also defined in the said Order as including "any action or other original proceedings be tween a plaintiff and defendant", a definition which is also to be found in section 2 of Law 14/60. In contrast, an application under Order 48 is incidental to the cause in respect of which proceedings are pending before the Court.
(2)If the matter is not incidental to pending proceedings, then the cause cannot be brought before the Court in any other manner than that prescribed by the Rules, i.e. either by a Writ of Summons or in exceptional cases by an Originating Summons.
(3)Since the said section 9
(3)(h) provides for "Αίτησκ;™ (Application or Petition) for the annulment of an election, the only Summons that could be used under the Rules was an Originating Summons.
(4)As the defect in question did not constitute irregu larity, but was of a fundamental nature, the proceedings 387 Hji Chambis v. Attorney-General
(1986)were rightly found to be a nullity and, consequently, the appearance entered by the respondents could not remedy the situation. Appeal dismissed with costs. Caies referred to; 5 Spyropoullos v. Transavia Holland N. V. Amsterdam
(1979)1 C.L.R. 421 Re Pritchard (deceased) [1963] I AH E.R. 873; Lyssandrou v. Schiza
(1979)I C.L.R. 267; Evagorou v. Christodoulou and Another
(1982)1 C.L.R.
- 10 Appeal. Appeal by applicant against the judgment of the District Court of Limassol (Hadjitsangaris, P.D.C. and Artemis, S.D.J.) dated the 5th October, 1984 (Election Petition 15 No. 51/84) whereby his petition seeking the annulment of the election of P. Demou as a member of the Village Committee of Erimi and for an order of the Court cancelling the election of the Chairman of the said Village Committee, was dismissed. 20 Chr. Pourgourides, for the appellant. A. M. Angelides, Senior Counsel of the Republic, for respondent
- Y. Agapiou, for respondents 2 and
- Cur. adv. vuit. A. Loizou J. read the following judgment of the Court. The appellant filed in the District Court of Limassol, what purported to be a petition seeking inter alia, the annulment of the election of Pantelakis Demou, as member of the Village Committee of Erimi and also an order of the 30 Court cancelling the election of the Chairman of the said Village Committee and/or the re-election of a new Chairman. 388 25 1 C.L.R. 5 10 15 20 25 30 Hji Chambis v. Attorney-General A. Loizou J. On the application of the Attorney-General of the Re public who was joined as the first respondent, the other two being the aforementioned Pantelakis Demou and the AKEL Party of Nicosia, the whole process was found by the Full Court of Limassol to be a nullity and the petition was set aside en the ground that the form of application used was the wrong one and couid not as such commence the process and consequently no process was found to exist before the Court. The petition filed was an application by summons as prescribed by Order 48, rules 1 and 2 of the Civil Pro cedure Rules and the question which arose and was indeed as already said decided against the appellant,—applicant in the Court below—was, as to which is the appropriate form of application that has to be used in proceedings for the annulment of an election as provided by section 9
(3)(h) of the Village Authorities Law, Cap. 244, as amended on th : s point by Law No. 43 of 1983 and which provides that, "the competent for the trial of petitions for the annulment of elections or election offences, will be the com petent District Court of the District in which lies the re levant village". Whilst on this point it may be pointed out that no Rules of Court regulating the procedure under this section have been made. But we shall deal with this aspect of the appeal later. Now it is useful to refer to section 9
(3)(a) which in so far as relevant to the present proceedings provides:«
(3)(α) Τηρουμένων των εφεξής διατάξεων, πάσα εκλογή είναι μυστική, διεξαγόμενη συμφώνωά npoc τας διατάξεις του Εκλογικού Νόμου και των δυνάμει τούτου εκδοθέντων Κανονισμών, αναπροσαρμοζόμενος ως κατωτέρω προβλέπεται....» In English it reads: 35 "3 (a) Subject to the provisions hereinafter, every election is secret, and conducted in accordance with the provisions of the Electoral Law, and the Regula tions made thereunder adapted as hereinunder pro vided...." 389 A. Loizou J. Hji Chambis v. Attorney-General
(1986)The Regulations in question arc the Election of Members of the House of Representatives (Election Petitions) Rules of Court 1981, made under the provisions of section 57 of the Election of Members of the House of Representa tives Law 1979. 5 The trial Court found that the expression in section 9
(3)(a) "every election is secret, and conducted in ac cordance with the provisions of the Electoral Law and the Regulations made thereunder" refer only to the manner of election and not to the procedure and -the reference to 10 "Regulations made thereunder" (''εκδοθέντοςΚανονισμούς"), is not a reference to the aforementioned Rules of Court, of 1981 but to the Regulations made for the purpose of regulating the details of the conduct of elections of Village Authorities. 15 Hence, they concluded that in the circumstances the Regulations applicable to the case of Election Petitions in Court proceedings are the Civil Procedure Rules. As a result an election petition has to be made on the basis of their provisions and not by virtue of the Rules of Court of 20 1981. hereinabove referred to. Under the Civil Procedure Rules one of the ways for commencing proceedings, is by Originating summons which is defined in Order 1, rule 2 of the said Rules as "any summons other than a summons in a pending cause or 25 matter". Relevant is also the definition of "cause" in the same Order which "includes any action or other original proceedings between a plaintiff and defendant", a defini tion which is also to be found in section 2 of the Courts of Justice Law 1960, (Law No. 14 of 1960). In contrast 3Θ to this, under Order 48, an application made is incidental to the cause in respect of which proceedings are pending before the Court. It appears from its definition that an Originating sum mons is a summons other than a summons in a pending 35 cause or matter and it resembles to a writ of summons by which proceedings are commenced before the Court. If the matter is not incidental to pending proceedings al ready before the Court, then the cause cannot be brought 390 1 C.L.R. Hji Chambis v. Attorney-GeneraI A. Loizou J. before the Court in any other manner than that which is prescribed by the Rules, that is either by a writ or in ex ceptional cases by originating summons where provision to that effect exists in the Law cr the regulations. 5 Since therefore section 9
(3)(h) of the Law provides for "Αίτησις" application or petition,—to use the better and more often used English equivalent,—for the annulment of an election the only summons which could under the Rules be used and have the proceedings properly commenced be10 fore the Court was an originating summons which as of its nature entails an entirely different procedure than the one prescribed for summonses issued under Order 48. Upon this we have come to the conclusion that the trial Court rightly found that it was not possible the application 15 which was fried to have the proceedings commenced before the Court and that in substance no proceedings existed. Consequently the appearance entered by the respondent could not remedy it as the matter was not a mere irre gularity but a nullity. 20 25 30 35 40 This distinction between a nullity and irregularity is a fundamental one under Order 64, rules 1 and 2 which order corresponds to Order 70, rules 1 and 2 of the Old English Rules that can be found in the Annual Practice of 1958 at pp. 1986 to 1989 where instances of proceedings which are a nullity and instances which are merely irregu larities are set out by reference to decided cases. The importance of this differentiation was dealt with by this Court in case of Spyropoullos v. Transavia Holland N.V. Amsterdam
(1979)1 C.L.R. 421 in which in deHvering the judgment of the Court, I referred to Re Pritchard (deceased) [1963] 1 All E.R. 873, in which Upjohn L.J. said that it is not so difficult to draw a line between irregularities, which are defects in procedure which fall within R.S.C. order 70 and true nullities for which it can be said that the defect is fundamental to the proceedings and as a fundamental defect will make it a nullity, although he pointed out that Courts should not readily treat a de fect as fundamental and so a nullity and should be an xious to bring the matter within the umbrella of Order 70 (in our case Order 64), when justice can be done as a matter of discretion. 391 A. Loizou J. Hji Chambis v. Attorney-General
(1986): A class fication is then made on the basis of the au thorities which establish one of two classes of nullity and he summed up the position by naming them as being the following;"(
- i)Proceedings which ought to have been served out but have never come to the notice of the defendant at all... 5 (
- ii)Proceedings which have never started at all owing to some fundamental defect in issuing the pro ceedings; (iii) Proceedings which appear to be issued, but fail comply with a statutory requirement..." Ό to The distinction between void and viodable proceedings was discussed in two other decisions of the Supreme Court, namely Lyssandrou v. Schiza
(1979)1 C.L.R. 267, and 15 Evagorou v. Christodoulou and Another
(1982)1 C.L.R. 771. In the case of Lyssandrou a probate action was held to be void for failure to comply with an ind'spensable procedural step, that is support the action by the affidavit provided for in Order 2, rule 13 of the Civil Procedure 20 Rules. In Evngorou the Court made extensive reference to the distinction between void and irregular proceed"ngs. In the judgment given by Pikis J., it is stated at p. 775 "Nullity arises whenever the defect is fundamental and goes to the root of the proceedings.". 25 In the present case the proceedings instituted by the ap plicant were rightly found to have never started in view of the fundamental defect of having been instituted by an entirely different process. For all the above reasons the appeal is dismissed with costs. 30 Appeal dismissed with costs. 392