1 C.L.R. 1987 September21 (TRIANTAFYLLIDES Ρ 1 OKIi» MYLIANIDt-S JJ 1 GRINDLAYS B A N K LIMITED O F NICOSIA, Appellants - Plamtif ν 1 2 C H R I S T O D O U L O S DEMETRIADES & C O L T D , C H R I S T O D O U L O S DEMETRIADES, 3 A N D R O U L L A C H R DEMETRIADES, Respondents-Defendants (Civil Appeal No 6902) L iiilΙΊικ edure Prelnmnnrv point oflaw — Factual ubstratumin dispute The bestcourse istoproceed with theheanng of the wnole action 5 10 On the day fixedforheanng oftheactioncounsel forthedefendants invited theCourt torule on thepointofLaw raisedinpara 1 ofthedefence Counsel appeanng for the plaintiffs,at least tacitly,acceptedthattheaforesaid course be followed The preliminary legal issue, which was thus heard by the tnal Court, isset out in the decision of the tnal Court as follows •The question which weare called toexamine in the present case as a preliminary point of lawis astowhether the facts of this case bnng the defendants under the wings of Law 24/79 or not» The factsof this case were neveragreedbetween the litigants 15 20 The tnal Court without heanng evidence concluded that theclaim is protected bythe provisions ofLaw 24/79, and that, therefore, such claim must be suspended Held, allowing theappeal, that asstated in Malachtou ν Armefti and Another
(1984)1CL R 548, if the factsare notsettled, thebestcourseisto proceed under Order 33, ιe the heanng of tt>e whole action Appea1 allowed No order as to costs Casesreferredto 25 Malachtou ν Armefti and Another
(1984)1CL R 548 461 Grindloys Bank v. Demetriades C o .
(1987)Appeal. Appeal byplaintiffs againstthejudgment ofthe DistrictCourtof Famagusta (Papadopoulos, P.D.C. and Eliades D.J.) dated 4th March, 1985 (Action No. 338/78) whereby it was decided that plaintiffs' claim for the sum of £2,000.= allegedly paid after 5 14.8.1974 isprotected by the provisions of Law No. 24/79 and was suspended. X. Clerides, for the appellants. A. Boyiadjis, for the respondents. Cur.adv. vu!t. 10 TRIANTAFYLLIDES P.: The judgment of this Court will be delivered byLoris, J. LORISJ.: The present appeal isdirected againstthedecisionof the FullDistrict Court of Lamaca on a point of lawraised by way of preliminary issueby the defendants intheirdefence in Larnaca 15 Action No.338/78. It is apparent from the record before us that the defendantsrespondentsneverappliedtothetrialCourtinwritingunderOrder 27, rule l.for thesettingdown for heanng before the trialCourtof thepointoflawraised intheirdefence;simply,asfarastherecord 20 goes, on the day fixed for hearing of the action learned counsel appearing for the defendants stood up and invited the Court to rule on the point of Lawraised in para. 1of the defence. Itseems - and there is nothing on record to the contrary - that learned counsel appearing for the plaintiffs, at least tacitly, accepted that 25 the aforesaid course be followed. The preliminary legal issue which was thus heard by the trial Court isset out inthe decision of the trialCourt as follows: «The question which we are called to examine in the present case asa preliminarypointoflawisastowhetherthe 30 facts of thiscase bringthe defendants under thewingsof Law 24/79 or not». Thequestion posed bythe leamecltrialJudgesiscorrectbutwe must remind them, with respect,(that «thefacts of.ihis case» were neveragreed between the litigants.Almosteveryallegation offact 35 inthesixteenparagraphsofthestatementofclaimisbeing denied inthedefence andwe could nottraceanystatementbycounsel to 462 1 C.L.R. 5 Grlndlays Bank v. Demetriades C o . Loris J . the effect W\afc at least crucial facts were agreed. On the contrary inspite of the tacit consent of learned counsel appearing for the plaintiffs-appellants atthehearingofthepreliminarypoint,wesee from the record that he wasinsisting inaddressing thetrial Court, on all the allegations of fact contained in the statement of claim which asalready stated were being denied bythe defence. Wehave noted thatlearned counsel appearing forthe plaintiffs strenuously argued before the trialCourt -and thisappears inthe sub-judice decision as well - that the plaintiffs were claiming the 10 amounts set out in the statement of claim, inter alia, by way of damages sufferred bythem asaresultofdefendants' fraud and/or misrepresentation (andparticularstothateffect weresetoutinthe statement ofclaim). The trial Court without hearing any evidence, and without 15 having before them settled facts rejected the allegations of the plaintiffs on facts bysaying«wecannot agree that Plaintiffs' claim isfor damages caused to them by the conduct of the defendants» and proceeded to conclude «that the claim of the plaintiffs ... is protected bytheprovisionsof Law24/79 and such claimmust be 20 suspended.» Wehadtheopportunity intherecentdecision oftheFullBench in Malachtou v. Armefti and Another
(1984)1 C.L.R. 548 (pp. 550-552) -todealatlength withapplications underOrder27,rule 1 of ourCivilProcedure Rules;wemay perhapsstressonce more 25 that: «the establishment with certainty of the state of facts from whichthereemergesthenecessityofapreliminarydecisionof a point of lawunder Order27rule 1,isinvariably a 'sine qua non' element.» 30 Anditisclearthatinthesub-judice decisionthestateoffactswas never established; the factual substratum was in dispute; and as stated inMalachtou case (supra)ifthe factsare notsettled the best courseistoproceed under Order33, i.e.the hearingofthewhole action. Intheresultthepresent appealisallowed;thepreliminary issue 35 willbe decided together withthe meritsof the case, bya Courtof different constitution; inviewof the circumstances of thiscase we have decided tomake no order astothe costsof thisappeal. Appeal allowed. Noorderastocosts. 463