clr/1987/1987_1_1.pdf

(1)Onthetotalityof the circumstancesit isobviousthattheexistence of the documentinquestion was known to the applicants/appellants,whocould, withreasonable diligence,haveobtainedit for useatthetnal

(2)Itfollows that the applicants/appellants failed to satisfy the first test gove/ningthe issueofwhenthisCourtgrantsleavetoadducefresh evidence, 1

(1987)MobUOUv.Effinas &Others that isthey failed toshow that the evidence sought tobe adduced could not have been obtained with reasonable diligence for useatthetrial. Application dismissed withcosts. Casesreferredto: PavlidesandAnother v. Yerolemou

(1982)1C.L.R.912; 5 Hadjisoteriou v. The Directorof Lands and Surveys and Another

(1983)I C.L R 567. Application. Application by respondents for leave to adduce further documentary evidenceinsupportofthereasoneddecisionofthe 10 LandRegistryOffice whichisthesubject ofthisappeal. A. Dikigoropoulos, fortheapplicants. E.Theodoulou,fortherespondents. A.LOIZOUJ.gavethefollowingjudgmentoftheCourt.Thisis anapplicationforleave.toadduce«furtherdocumentaryevidence 15 insupport of the reasoned decision of the Land Registry Office» whichisthesubjectofthepresentappeal.Theapplicationismade underRules13and17oftheImmovablePropertyRules1956and Order48,rule2,Order35,rule8,andsection25

(3)oftheCourts ofJusticeLaw1960,(LawNo.14of 1960). 20 The facts relied upon are set out in the affidavit of Kyriacos Theocharidesandtheyarethefollowing:* 2.Onpage4ofthejudgmentHisHonourthetrialJudge,refers totheneed fortheproduction ofallrelevantdocuments,to thenonproductionoftheconsentofamortgageebeforethe 25 31st December, 1982, by which date, according to His Honour the lease of the immovable property in question ought to have been registered in accordance with the provisionsofthelaw,andHisHonourrejectstheevidenceof LoucasFilis,theLandClerkinquestion,thattheproduction 30 of this consent was delayed on purpose so that the registration ofthe leasewouldbe frustrated, ontheground that no evidential facts supporting such allegation were produced. 3.Inasfarastheaffidavit evidenceofMr.LoucasFilistowhich 35 2 1 C.L.R. 5 15 20 MobU OHv. ElUnas&Others A. Loizou J . HisHonour thetrialJudge refers was repeated orally before His Honour the trialJudge when he (Filis)testified as tothe above named Respondents' witness and nosuggestion was made to him that his inferences as to the nonproductionof the mortgagee's consent before the 31st December, 1982, were unjustified, the Appellants had no reason to question the accuracy of the D.L.O.'s reasoned decision and affidavit evidence so as to require him to produce the said written consent of the mortgagee at the date of the trial before His Honour the trial Judge, especially since no reference was made to the mortgage in question in the search obtained from theL.R.Oon the 19th July.

1. photocopy o'whi u isattached heretoand marked Ά'.
2. After thejudgment of HisHonourthetrialJudge andinview of his commentsas tothe lack of evidence insupport of the conclusion of the District Land Officer, the Appellants applied totheD.L.O. Limassol undercover of a letterdated 21.6.1984 for a copy of the relevant consent of the mortgagee in Mortgage No. Y.961/81 and copy of this was made available to the Appellants/Applicants. A photocopy of his consent isattachedheretoand marked Exhibit 'B'.» Theapplication hasbeen opposed andthefacts relied uponare set outinthe accompanying affidavit which are ineffect these. --25^ 30 «B. Thesaid dogjment was inthehandsof theLand'sOffice as from _ the 3rd January 1983, and consequently its production on theday of thehearing the9th March r 1984, was easy and possibly more so as it is mentioned in the reasoned decision of the Director of the Department of Lands and Surveys dated 5th November 1983, signed by Mr. Petrakis Vassiliou, yet no search and/or the proper inquiry was made by the applicants in respect of this document which they allegewas essential for their case. C.The certificate of search applied for under Item Β showed that the applicants asked particulars of any mortgage in respect of the properties under Registration 6750 and
3. They did not, however, ask particulars for the propertyunderRegistration.8140 forwhich ItemB, speaks. D.Irrespective of the aforesaid the Court in page 5 of its 3 A.LotzouJ. MobDOUv.EUinu&Others

(1987)judgment says that'but even if matters were so Idonot think that this would have affected the issue due to the express and mandatoryprovision of section 65 lEa asto thedateby whichregistration hadtobeeffected'. Inother words the Court had this in mind but it did not affect its 5 decision. E.Mr.Loucas Philistheonly witness inthecase was notthe one who prepared the reasoned decision and therefore any allegations in itwere allegations of the authorof the decision who was not summoned as a witness by the 10 appellantsinordertomakepossible hiscross-examination on allthe allegations.» Thesoleissueturnsonwhetheradocumentwhichisthewritten consent for the replacement of the documents in a mortgage under· s.28 of the Immovable Property (Transfer andMortgage) 15 Law Ϊ965 (Law 9/65), which is appendedtotheaffidavitfiledin supportof theapplicationmarked*B\andwhichhasabearingin thecase,couldwithreasonable diligence have been obtainedfor useatthetrial. Reference to the document in question is to be found in the 20 reasoned decision filed by the Director of the Departmentof Lands and Surveys at the outset of the proceedings under the relevant rules and also in theaffidavit of Loucas Philis who was alsocalled andtestified orallyatthetrial. Thecomplaintoftheapplicants/appellantsisthatthereference 25 to anotherregistration, namely, registration No.8140, could not havebeenforeseen exceptafter aninspectionofthedocumentin question as the case had proceeded by reference to two other registrations. On the totality of the circumstances before us and bearing in 30 mind also the findings and conclusions drawn thereon by the learnedtrialJudge, itis obvious thatthispieceof evidence was a supporting document to the line pursued by the applicants all along at the trial and the existence of the documentinquestion was evidently known to them. They could, with reasonable 35 diligence, have obtainedsameforuseatthetrialwhichthey failed todo. Ontheprinciples governing theissueofwhenthisCourtgrants 4 1C.L.R. MobUOilv.EWnasftOthers A.LolzouJ. leave to adduce fresh evidence on appeal, which have been expounded in a number of decisions, inter alia, Pavlides and Anotherv.Yerolemou

(1982)1 C.L.R.912,andmorerecentlyin XanthosHadjisoteriouv.TheDirectorofLandsandSurveys, and 5 j4/ioiher

(1983)1C.L.R.567,wehavecometotheconclusionthat theapplicantshavefailedtosatisfythefirsttest,thatis,toshowthat the evidence could not have been obtained with reasonable diligenceforuseatthetrial.Therefore,wedismisstheapplication withcosts. 10 Applicationdismissed withcosts. j