(1987)1987March 1] ΙΑ LOIZOU LORISPIKIS JJ1 Ρ &A ENTERPRISES(LARNACA)LTD. Appella ηts-Plaint\f(s υ L O U I S TOURIST A G E N C Y L T D . Respondents Defendants (CivilAppeal No 6840) Civil Procedure—Pleadings—One should not leap ίν/o/v on·' ι >nw- '•> tin-sfj/e Departure from previous pleading—Meaning of Civil Wrongs - Trespass to immovable property - Section 43 of the Civil Wrongs Law, Cap 148- Installation of an aenal on the terrace at the top of a multi storey building by thelesseesofastorey without theconsentofthepossessors of the terrace - Once the unlawful interference has been established, it was incumbent on thedefendants(lessees)toshow thattheactwasnot unlawful 5 Immovable property - Horizontal ownership - The Immovable Property (Tenure Registration and Valuation) Law. Cap 224 - Section 6 sub sections
(1)and
(2)as amended by s2 (a)and 2(b) of Law 16/80 - Terrace on the top of a 1 0 multi-storey building - In this case it is not the roof of the whole building referred to in s6
(2)—Absence of evidence thatthe "terrace wasspecifiedas of common use in the relevant division pemnit of the building - In the circumstancesthe terraceisnot of common use The appellants-plaintiffs brought an action for trespass against the respondents-defendants, alleging m the statement of claim that the latter unlawfully and without their consent interfered with their possession of a terrace on the top of a mulb-storey building and installed thereon an aenal The respondents alleged in their defence that being the lessees of tenements in the said building leased tothem by the appellants they installed the aenal 2 0 in virtue of (a)The express and/or implied consent of the appellants, (b) An express and/or impliedtermof the relevant contractof lease,(c)operation of law, astheinstallationtantamountstofundamentaluseofspacesallocatedfor common use in the building aforesaid The appellants in their reply denied, inter alia, having ever acquiesced to the installation of the aenal in question 2 5 and maintained that under the contract of lease such installation would require their consent in writing,which was never given At the heanng of theactionthe appellants calledasingle witness, who inter alia, speaking about the terrace, laid stress on the fact that «it is locked and anyone has no right to go upthere» (Η ταράτσα είναι κλειδωμένη και δεν 3 0 δικαιούται να βγαίνει οιοσδήποτε πάνω). The respondents did not call any evidence 142 1 C.L.R. P. & A. Enterprisesv. Louis Tourist The tnatJudge concluded that by their reply the appellants departedfrom the initial cause of action, that is trespass, and attempted to build a case of breach of contractof lease, that there was no evidence of trespass,that there was no breachofthe contractof lease, asthe lease relatedonly totheground and first floors of the building and that the terrace was allocated to the commonuseofall«possessors» oftheseveralstoreysofthebuildingpursuant tos6
(2)ofCap.224 AsaresultthetrialJudgedismissedtheaction.Hence the present appeal 5 Held, allowing the appeal:
(1)There has been no «departure in pleading» in connectionwith appellants' reply In draftinga pleading it isnot necessary to anticipate the answer of the adversary To do so accordingto Hale C J.is «likeleapingbeforeone comestothestile» The allegationinthereplythatthe installation tnquestionwould, under thecontractotlease,require appellants' consent inwritingconstituted ananswertoan allegation inthe defence.Such answercouldnot be included in thestatement ofclaim because that would in effect be «like leaping before one comesto thestile» 10 15
(2)Trespass to immovable property is governed by s.43* of Cap. 148. From the provisions of s43
(1)it isclear that every unlawful interference with the terrace in question constitutes a trespass The evidence established that the terrace was in the possession of the appellants and that the aenal was installed without theirconsent It follows thattherewas evidence of trespass. 20
(3)Once the alleged unlawful interference was established it was incumbent on the respondents (s43
(2)) to show «that the act of which complaint is made was not unlawful». The allegation that the respondents «c i^j . . , . / . , . . .... ... . . . . o n e u UIIUCI αιι « Λ μ ι ι ; » anu/ui iiiijjueu Lunbeiu u i me appeuaim.was [«uuiieu by appellants' single witness. There cannot be tracedin the contractof lease (produced at the trial) any express or impliedtermallowing the respondents • the use of the terrace.It follows thatwhat remains tobeexamined is whether s 6
(2)of Cap. 224 justifies the interference in question. 30 35 40 ~
(4)TheTelevantpTovisions arethose'containedinsub-sections
(1)and
(2)**~ of s.6 of Cap. 224, as amended by s2 (
- a)and 2(
- b)of Law 16/80. Section 6 regulates the ownership of storeys held in horizontal ownership. What the tenant of astorey in amulti-storey building gets?That would depend on the termsofthelease butmany event hecouldnotgetmorethanthelessor would be himself entitledto.In the case under consideration the respondents could get only what was stipulated in the lease, a question that has already been examined. Even assuming that the respondents were the owners of the ground and first floors, the installation in question would not have been justified under s.6
(2),because the "terrace"in question isnot the roof ofthe whole building referred to verbatim in $.6
(2)and there is no evidence that the terrace was 'Quotedatp 149post "Quoted atpp 151-152post. 143 P.& A. Enterprisesv. LouisTourist
(1987)allocated for common use inthe divison permit of the building Appeal allowed with costs Injunction intermsof prayer(a) -** Casesreferredto Wardν Roubma
(1970)1C LR 88 Appeal. Appeal by plaintiffs against thejudgment of theDistrictCourtof Nicosia {loannides, DJ )dated the 20th October, 1984 (Action No 3167/82) whereby their action against the defendants for 10 trespass to the terrace on the top of a multi-storey building in Nicosia was dismissed L Papaphthppou, for the appellants Ρ loannides, for the respondents Curadv vult. 15 A LOIZOU J The Judgment of the Courtwill be delivered by LorisJ LORISJ The present appeal is directed against the judgment of a Judge of the Distnct Court of Nicosia (A loannides DJ )in Action No 3167/82, whereby the aforesaid action of the 20 appellants-plaintiffs against the Respondents-defendants, founded on alleged trespass to the terrace on the top of a multi storey building abutting Evaghoras and King Paul A* Avenues in Nicosia,was dismissed, with costs The nature of appellants' claim as it transpires from the 25 pleadings, is to the effect that the respondents unlawfully and without the consent of the appellants who were the lawful possessors thereof atthematenal time,interfered with theterrace on the top of the aforesaid multi-storey building and installed 144 1C.L.R. P.&A.Enterprise·v. LouisTourist Lorie J. thereon an aerial which the respondents failed and/or refused to remove inspite of the fact that they were called bythe appellants todoso. 5 The plaintiffs alleging that they as a consequence thereof have sufferred special damage totalling £150.- claim an injunction restraining the respondents from interfering as aforesaid with the terrace inquestion as wellasdamages for trespass. Therespondents intheirdefence - averywidepleading indeed - maintain interalia that beingthe lesseesoftenements within the 10 aforesaid multi-storey building, leased tothem by the appellants, haveinstalledtheaerialinquestion on theterraceonthetopofthe said buildinginvirtue of: (
- a)The express and/or implied consent ofthe appellants. (
- b)An express and/or implied term of the contract of the 15 aforesaid lease which allegedly confers on them the right of use and enjoyment of places allocated for common use on the building inquestion, including the use and enjoyment of the roof thereof. (
- c)Operationoflaw,asallegedlytheinstallationoftheaerialin 20 question tantamount? to fundamental use of sDacesallocated for common use inthe building aforesaid. The appellants in their reply deny, inter alia, having ever acquiesced, either expressly or impliedly,tothe installation of the _ aerialin question,.which they term as_wireless aerial attracting 25 lightningsand maintain thatsuch an installation would, under the contractoflease,requiretheirconsentinwriting,whichwasnever given. Atthe hearing of the action in the Court below, the appellants called a single witness, namely Pantelis Demetriou, managing 30 director of appellant company. He gave evidence vivavoce and produced (i)the contract of lease (exh. 1) executed on the 17th April 1970, whereby the appellants as lessors leased to the respondents5 shopson thegroundfloorand thewholeofthe1st floorofthebuildinginquesiton,whichconsistsoftheground floor 35 and five more floors, (
- ii)The letter of counsel for respondents dated26.4.82 (exh.2)inreplytoaletterof 26.3.82addressedby 145 Lotto J. P.& A. Enterprisesv. LoulsTourist
(1987)counsel for appellants to respondents requesting them to remove the said aerial they have installed. We shall confine ourselves atthisstage tonotethatintheletter of26.4.82 (Exh.2)counsel for respondentsstates ontheirbehalf: "Our clients did not commit any unlawful interference with the terrace of the multi-storey building of your clients. The installation of an aerial on the terrace is a fundamental use of space of the building allocated for common use, towhich our clients are absolutely entitled..." 5 The said singlewitness called by theappellants stated vivavoce the following interalia: 10 The respondents leased initially from the appellants the shops on the ground floor as well as the whole 1st floor. This lease is referred to in Exh. 1. Later they have also leased from the appellants an office only situated onthe2nd floor. Thislatterlease 15• was embodied in another contract of lease (which was not produced). In this multi-storey building, which consists of the ground floor and 5 more storeys - thereexistfour terraces.Thethreeoutof the four, which should be properly described as verandahs and not 20 terraces, are situated on the 1st floor and they are being used by therespondents.The4thoneisactually aterraceandissituatedon the top of the building, on theroof. The witness speaking about this latter terrace laid stress on the fact that "it islocked andanyone has norighttogo up *here." (H 25 τ α ρ ά τ σ α είναι κλειδωμένη και δεν δικαιούται να βγαίνει οιοσδήποτε π ά ν ω ) . It is on this tercace that the witness observed some time in February or March 1982 that the respondents had installed the aerial in question; the aerial is 6 metres high and is supported by moulds penetrating into the 30 terrace. The witness went on tosay thattherespondentdid never ask or obtain from the appellants oral or written consent for such installation and that they refused to remove it after oral requests and request in writing through appellants' counsel before action. 35 Heconcludedthattheaerialinquestion isstillthereontheterrace. 146 1 C.L.R. P.& A. Enterprises v. LouisTourist Lorls J. After the evidence of this witness counsel for appellantsplaintiffs closed his case. Counsel for respondent-defendants stated thathedoes notintendtoadduceanyevidence whereupon counsel for appellants addressed the court; counsel for 5 respondents addressed the court submitting that the appellants failed toprove their case. The trial judge in his considered judgment after examining the effect of the pleadings concludes thatthe appellants by means of their reply have departed from theirinitial cause of action,which 10 was trespass tolandand attemptedtobuild upacase for breachof the contractof leaseby the respondents. After holding that (a) there was no evidence of trespass whatever; (b)There could have been no breach of thecontractof lease(Exh. 1) as itreferred totheleaseofground floor and 1st floor 15 buildings onlywhilstthecomplaintoftheappellants was inrespect of unlawful interference with the terrace on the top of the whole building, which was not included in the contract of lease; (c)the terrace on the top of the building is a space allocated for the common use of all "possessors" of the several storeys of the 20 building pursuant to the provisions of s. 6
(2)of the Immovable PropertyLaw, Cap.224 dismissed theactionwithcostsagainst the appellants. Hence the present appeal the grounds of which are briefly the following: 25 30
- The Court erred in holding that the reply constituted a departure from theinitial cause of action.
- TheCourterced inholding thattheinstallation of theaerialin question on the terrace did not constitute unlawful interference with theterrace.
- TheCourterred inholding thatthe teπace on the topof the building isaspace allocated forcommon useintheabsence of any evidence tothat effect. 4.TheCourtmisconceived theprovisions ofs.6
(2)of Cap. 224. Learnedcounsel for theappellants elaborated atlengthwiththe 35 effect of the pleadings and argued forcefully that the evidence adduced which stands uncontradicted proves the case of the appellants; he submitted that inview of theprovisions of s. 43
(2)147 Lorto J . P.&A.Enterprisesv. LouisTourist
(1987)oftheCivilWrongsLaw,Cap. 148andinviewofthefactthatexh. 1could notbe ofanyassistancetotherespondentsandtakinginto consideration that the respondents did not adduce any evidence, there couldhave been no otherresultbutajudgmentinfavourof appellants for an injunction as per para (a) of the prayer in the 5 action, in view of the fact that the claim for damages has been abandoned during the hearing of the action. Learned counsel for the respondents strenuously argued that the express and/or implied terms of the contract of lease (exh.1) confers on the respondents the right of use and enjoyment of the 10 terrace inquestion whichisaplaceallocatedforcommon use and enjoyment to occupiers of the several storeys of a building pursuant tothe provisions of s. 6
(2)of Cap.224. Wehave considered thejudgment ofthetrialjudgeafter having gone very carefully through the record, but we find ourselves 15 unable toagree with him. Inthefirstplacewecouldnottraceany "departure inpleading" inconnection withthe replyas found bythe trialjudge. "A departure takes place when in any pleading the party desertstheground thathe took up inthe preceding pleading, 20 and resorts to another and a different ground" (Odger's Pleadingand Practice 22nd ed. p.212). A summary of the effect of the pleadings appears at the beginningofthisjudgment. Itisabundantly clearfrom the statementofclaimthattheaction 25 oftheappellantswasanaction ontrespasstoland;their complaint wasunlawful interference withtheterraceintheirpossession, such interference having been caused by the alleged unlawful installation thereon by the respondents of the aerial in question. The statement of claim contained the material facts, inrespect of 30 such complaint, which should be pleaded atthe time. In this connection it must be borne in mind that "the pleader should never allege any fact which isnot material at the present stage of the action, even though he may reasonably suppose that it may become material hereafter It is not necessary to 35 148 1C.L.R. P.& A. Enterprises v. LouisTourist Loris J. anticipatetheanswer of theadversary; todoso according toHale C.J. is 'like leaping before one comes tothe stile.' Itis no part of the statement of claim to anticipatethe defence and tostate what theplaintiff would have tosay inanswer toit..." 5 (Odger's supra atp. 101). As already stated the respondents intheirdefence alleged inter alia that they have installed the aerial in question in virtue of an" express and/or implied term inthecontractof lease (exh. 1). Theappellants inviewof theaforesaid allegation inthe defence 10 stated in their reply thatthe installation in question would, under the contract of lease, require their consent in writing, which was never given. It is quite clear that the latter allegation of the appellants was raised in answer to the relevant allegation of the defence. Itisobvious thatitcould notbe raised inthestatementof 15 claim because that would in effect be «like leaping before one comes tothe stile». We need notgo further and examine thestrict necessity of the reply inthisparticular case inview of the fact that there was no counterclaim, but we shall confine ourselves in stating this much: We hold the view that the reply as pleaded 20 cannotbe considered by any stress of imagination as constituting Λ Hpparture from the statement of claim; definitely it does not desert the ground of trespass and cannot be considered as «resorting to another and different ground». Itsimply attemptsto strengthen theoriginal ground by depriving therespondents from 25 one of their defences. Turning now to the gisFof the case underthe'presentappeal notablytrespass totheterrace inquestion.Trespass to immovable property is dealt with unders. 43 of our Civil Wrongs Law, Cap. 148 which reads as follows: 30 35 "43.
(1)Trespass to immovable property consists of any unlawful entry upon, or any unlawful damage to or interference with, any such property by any person.
(2)Where the acts complained of are permitted by local custom, such custom, if established shall be a defence butin any action brought in respect of any trespass to immovable property theonus of showing thattheactof which complaint ismade was notunlawful shall be uponthe defendant." 140 Loris J . P.&A.Enterprises v. LouisTourist
(1987)It is clear from the provisions of s. 43
(1)above, that every unlawful interference with the terrace in question constitutes trespass tothe said terrace. Inthisconnection theonlyevidenceadduced isthatofthesingle witness called by the appellants who testified on oath and his 5 evidence stands uncontradicted, the respondents having chosen toadduce no evidence whatever This evidence isto theeffect that the terrace inquestion which was in the possession of the appellants, (admitted even by the respondents in their letter(ex.2)- kept under lock and key- was 10 interfered with by the respondents having installed thereon, without the consent of the appellant.' oral or written, the aerialin question which is supported by moulds penetrating into the ten-ace. Itistherefore clear thatthe court below went wrong inholding 15 that no evidence whatever wasadduced inrespect oftrespasson the terrace; we hold the view that the said evidence adduced by the appellants, which stands uncontradicted proves the trespass alleged by the appellants ontheir terrace. The appellants having thus established the alleged unlawful 20 interference with their aforesaid terrace itwas incumbent on the respondents, pursuant to the provisions of s. 43
(2)above, to show «that the act of which complaint is made was not unlawful». Asalreadystated therespondentsdidnotadduceany evidence whatever. As the oral evidence of the single witness 25 called by the appellants does not only prove trespass on the terrace but also rebuts the allegation of the defence that the respondents acted under an express or implied consent of the appellants, it remains to consider the remaining two legs of the defence notably (i)expressand/or implied term inthe contract of 30 leaseallegedlyallowingtherespondentstheuseandenjoymentof the terrace in question; (ii) justification of the tresspass on the terrace byoperation of lawpursuant totheprovisionsofs.6
(2)of Cap. 224. The contract of lease wasproduced inthecourtbelowandwas 35 marked exhibit 1.We havegone carefully through exh. 1and we mustsaythat we could not trace initany expressor implied term 150 1C.L.R. P.&A. Enterprisesv. LouisTourist Loris J allowingtothe respondentstheuse and enjoyment of theterrace on thetopof themultt-storeybuilding inquestion,onthecontran, it was pointed out by learned counsel for appellants and we are inclined to agree with him. that para 7 of the lease (exh 1 5 excludes expressly even the placing on the said terrace of ar advertisement orposter eitherelectrical or otherwise Itremains toconsiderthe allegedjustification of theinstallation of theaerial inquestion on theterraceby operation of law, thatis invirtue of theprovisions of section 6
(2)of Cap 224 15 Section 6 of the Immovable Properly. Tenure Etc Law Cap 224originally comprisingof four sub-sections wasamendedbys2 of Law 16/80, it is now comprising of six sub-sections altogether the relevant sub-sections 6
(1)and 6
(2)as amendedby s 2(a) anc 2(b)of Law 16/80 read as follows (Ihave inserted inbracketsthe relevant amendmentsintheirproper perspective) 20 «6
(1)When a building consists of morethanonestorey,each storey (or part of a storey) (η τμήμα ορόφου) which can properly andconveniently be held andenjoyed as a, separate and self-contained tenement, may be owned held and enjoyed separately as private property 10 25- 30 35
(2)Thesite onwhich thebuilding isstanding,thefoundations thereof, themamwallssupportingthewhole building, itsroof the main staircase leading to the vanous storeys, (O ανελκυστηρ εάν τυχόν υπάρχει τοιούτος οι κύριοι διάδρομοι αυτού)-("The Jift if there^is^one, the main corndors thereof") and any part of the ground or building which is of commonuse tothe owners of the vanous storeys (ήτμημάτωναυτών καιοιουδήποτε του εδάφους ήτης οικοδομής το οποίον ήθελε καθορισθή η ορίζεται ως ούτω κοινόχρηοτον εν τη αδεία διαχωρισμού της οικοδομής η οποία εξεδόθη υπό της αρμοδίας αρχής δυνάμει των διατάξεων τ ο υ περί ΡυθμίσεωςΟδών και Οικοδομών Νόμου ή των δυνάμει τούτουεκδοθέντων Κανονισμών) («orpartsthereof andany of theground orthe building which may or is defined tnthedivision permit of the building, which was issued by the competent authonty pursuant to the provisions of the Streets and Buildings 151 Loris J. P.&A.Enterprisesv. LouisTourist
(1987)Regulation Law or the Regulations issued thereunder as being of such common use») shall be owned, held and enjoyed byallof them inundivided shares"
(3)
(4)
(5)
(6)Undoubtedly section 6 of Cap.224 regulates the ownership of 5 storey held in horizontal ownership {Wardv. Houb.ina
(1970)1 C.L.R.88). The wording of s. 6
(2)referring in clear and unequivocal terms to ownership provides the various parts of the building and the site, which shall be of common use to the owners of the various 10 storeys.Some ofthevariouspartsofthebuildingareallocated for common use verbatim e.g. the main stair case, the roof of the building; whilst other partsare not soenumerated butthey are to be found in the division permit of the building issued by the appropriate authority. Now assuming that the owner of a storey in a multi-storey buildingleaseshisstorey.Whatwould thetenantget?Thatwould depend onthelease;butdefinitely whateverthetermsofthelease hecouldnotgetmorethanthelessorwouldbehimselfentitledto. Inthe case under consideration the respondentscould getonly 20 what was stipulated in the lease. And as already stated we could not trace in exh. 1 any express or implied term allowing to the respondentstheuseandenjoyment oftheterraceonthetopofthe multi-storey building inquestion. Thelearned counselforrespondentsarguedinteraliathats.6
(2)25 of Cap. 224 confers on the respondents the right of use and enjoyment of the terrace in question. He laid stress to the provision allocating for common use the roof of the whole building.Inthefirstplacetherightsoftherespondentsarederived from thecontractoflease;butassumingthatrespondentswerethe 30 owners of the 1st floor would they be entitled to the ten-ace in question? It must be made quite clear: the terrace we are concerned ismerely aterrace described sometimes as"terrace on the top" or "terrace on the roof. It is not the roof of the whole buildingreferred toverbatim insection 6
(2)ofCap.224;andwhat 35 isworsefortherespondentsisaten-ace"keptunderlockand key". 152 15 1C.L.R. P.&A.Enterprisesv. LouisTourist Loris J. On the other hand it was neither alleged nor proved that the terrace in question was allocated for common use in the division permit ofthebuilding. Fortheabovereasonstheallegedjustification ofthe installation 5 of the aerial in question on the terrace, by operation of s.6
(2)of Cap. 224 isdoomed tofailure aswell. Inthe result the appeal succeeds for the reasons stated above and the judgment of the trial court dismissing the action and adjudging the plaintiffs-appellants to pay the costs is hereby set 10 aside. Astheplaintiffs haveabandoned theirclaimfordamagesandas the unlawful interference by the respondents on the terrace in question which commenced some time in February or March 1982 wasstill being continued down to the hearing of the action 15 under appeal, judgment and order is hereby entered as per paragraph (a)oftheprayerinfavour oftheappellantsand against respondents; costshere andinthecourtbelowtofollow the event ofthis appeal. Appeal allowed. 153