clr/1987/1987_1_479.pdf

(3)and The CivilProcedureRules,Order35, Rule 8—The threeconditionsthatmustbe fuihliftd)— Review of the case law 5 10 15 20 25 This is an application by the appellants for adducing further evidence before this Court The facts relied upon in support of the application are sufficiently summarised inthe judgment Held dismissingthe application

(1)The maxim interest repubhcaeut finis sit htium is well embedded in our system of administration of justice The evidence which is available or could with reasonable diligence be obtained mustbe produced before thetnalCourt Afurther principlethatisinvolved is that a successful litigant should not be depnved without good reason of the fruits of his success Justice, however, requires that evidence which is relevant to the issues before the tnal Court and which could not, with reasonable diligence, be traced andproduced, be heard by theCourtof Appeal Toexclude it would lead to injustice

(2)The Courtdeveloped threeConditions,which must be satisfied before further evidence can be received by theCourtof Appeal They were set out by Denning,LJ , as hethenwas, inLaoWv Marsha//

(1954)3 All ΕR 745 at ρ 748asfollows fiistitmustbeshownthattheevidence couldnothave been obtained with reasonable dibgence for use at thetnal second, the evidence mustbe such that,ifgiven,itwould probably have animportantinfluence on the result of the case, although it need not be decisive third, the evidence must be such as is presumably to be bebeved, or in otherwords, itmust be apparently credible, although itneed notbe incontrovertible 479 T r i f o n i d e · v. Alpan (TaklBros)

(3)The expression «for use atthe tnal» inthe first condition means at <my stage before delivery of judgment

(4)Inthiscase the firstpart of the evidence sought to be adduceddoes not satisfythefirstofthesaidconditions whilst thesecondpartt*Des notsatisfythe second condition 5 Application dismissed with costs Cases referred to Simadhiakos ν The Police, 1961C L R64, Laddv Marshall[1954] 3All ΕR 745. 10 Braddockv Tiliotson's Newspaper Ltd [1950]1 Κ Β47 Pounkkos (No 2) ν Fevzi,1962C L R283 HjiSawa and Others ν Panayiotou

(1966)1C L R 6, Ashiotis and 13 Others ν Wernerand 4 Others

(1966)1 C L R274, Felekkis ν ThePolice

(1968)2C LR 151, ^ Athanassiouv TheAttorney-General oftheRepublic {1969) 1 C L R 160, Papadopoulos ν Kouppis

(1969)1 CL R 584, Paraskevas ν Mouzoura

(1973)1C LR 88, Moumdzis ν Mtchaehdou and Others

(1974)1 CL R226, Evdohmou ν Roushias

(1975)1 C L R 304, 20 Kynacouv CD Hay& Sons andAnother

(1978)1C L R100, Pavhdou andAnother ν Yerolemou and Others

(1982)1C L R 912, HpSotenou ν Director of Lands and Surveys andAnother

(1983)1 C L R 567, Mobil Oil ν Ellmasand Others

(1987)1CLR 1 25 Application. Applicationby defendantfor leavetoadducefurtherevidence. P. Mouaimis, for the appellant. K.Michaelides with A. Yiorkadjis, for the respondents. Cur. adv. vult. 30 480 1 C.L.P Trifonides v.Alpan(TakiBros) Stylianldes J. A. L01Z0U, J.: The decision of the Courtwill be delivered by Mr.Justice Stylianides. STYL1AN1DES, J,: This is an application to this Court to hear further evidence. 5 Theapplication isbased ons.25{3) of theCourtsofJustice Law, 1960, (14/60) the Civil ProcedureRules,0.35, r.8and0.48 rr.l, 2 and 3. Thefacts relied uponaresetoutintheaffidavit of theappellant. This appeal is directed against the judgment of the Full District 10 Court of Limassol, whereby itordered specific performance of a contract of lease of theshop of the appellant. The evidence sought to be adduced is divided in the affidavit intotwoparts:thatwhich existed andwas withintheknowledge of the applicant prior to the pronouncement of judgment by the 15 District Court; and evidence which came into existence after the delivery of such judgment. The first part is that the interim order, restraining the appellant from selling, disposing, exchanging, leasing, orpartinginany way withthepossession of thesaid shopuntilthefinal determinationof 20 the action, ceased to be in force on 28/2/85, because the respondents failed tosatisfy theconditionof granting, by renewal, of a bank guarantee. Thatas therewas nointerimorderinforce,on 15/3/85 by virtue of acontractoflease she letthesubject shoptoKyros Chrysanthou 25 Ltd.,who started necessary constructionworks inthe said shop at considerable expenses. This came to the knowledge of the respondents, who were running a shop nearby on the same avenue. A large advertisement with the words «Προοεχώς Κύρος Χρύσανθου» was placed on the frontage of the shop. 30 Furthermore certain telexes, were exchanged between the counsel inconsequence of this lease. The second part of the evidence is that on 15/5/85 the respondents in this appeal filed in the District Court of Limassol ActionNo.2827/85 against theaforesaid KyrosChrysanthouLtd.; 35 they secured an interim orderrestraining the latterfrom entering, using, possessing, or interfering inany way with thesubject shop. The said interim order became final on 7/6/85on conditionthat therespondentsrenderedsecurity inthesumof£25,000.- by bank 481 Stytianides J. Trifonidcs v. Alpan (TakiBros)

(1987)guarantee; Kyros Chrysanthou appealed against the said orderof the Court. The respondents, again, failed to renew the bank guarantee and the interimorder issued inAction 2827/85, which is subject to appeal, lapsed on 6/6/86; thereafter Kyros Chrysanthou proceeded with the completion of the works 5 necessary for the carrying out his business inthe said shop. The respondents opposed this application. The notice of opposition is supported by affidavit sworn by the Managing Director of the respondents. The main point on which the application is opposed isthatthe 10 further evidence sought tobe adducedbefore theCourtof Appeal was within the knowledge of the applicant before the delivery of judgment by the trial Court; and that the second leg of the evidence is irrelevant for the purpose of this appeal. The matterisgoverned by s. 25

(3)of the Courtsof Justice Law, 15 1960 and Civil ProcedureRules,0.35, r.

1. Sub-section 3 of s. 25 extended widelythepowers of theCourt of Appeal set out in previous legislation obtaining inthiscountry. Law 14/60 (Republic) was a new law envisaged by the Constitution after the colonial state came to an end and the new 20 Republic was declared. The provisions of thissub-section were considered by theHigh Court inSimadhiakos v. ThePolice, 1961 C.L.R.
2. The judicial dichotomy which was introduced by the Zurich Agreement and the Constitution has ceased to apply after the enactment of the 25 Administration of Justice (Miscellaneous Provisions) Law, 1964 (No. 33/64). Even in the early stages of this Republic the provisions of sub s.3 was notfavoured by theHighCourtand was given narrow interpretation. Rule 8 of 0.35 of the Civil Procedure Rules continues to be in 30 operation by virtue of 0.3 of the Rules of Court (Transitional Provisions), 1960, that reads as follows:«
3. Τηρούμενων των διατάξεων τ ο υ Συντάγμα-Ός, π α ς κατά την αμέσως π ρ οηγουμένην της ημέρας ανεξαρτησίας ημέραν ισχύων διαδικαστικός 35 κανονισμός, πίναξ δικαστικών τελών και η εν τοις δικαστηρίοις ακολουθούμενη και νόμω καθοριζομένη πρακτική και δικονομία (practice and procedure) θ α 482 1 C.L.R. 5 10 15 Trifonides v. Alpan(Takl Bros) StyllanldesJ . εξακολουθούν να ισχύουν μέχρις ου τροποποιηθούν διά μεταβολής, προσθήκης ή καταργήσεως, δυνάμει διαδικαστικού κανονισμού καιθαερμηνεύωνται και θα εφαρμόζωνται μετά τοιούτων μετατροπών καθ' ο μέτρον είναι τούτο αναγκαιον προς συμμόρφωσιν προς τας διατάξεις τ ο υ Συντάγματος». («Subject to the piovisions of the Constitution, every Rule of Court, table of Courtfees and thepracticeandprocedure followed by the Courtsand prescnbed by law in force onthe day immediately before the day of Independence will continue to be in force until amended whether by vanation, addition orrepeal, by Rules of Courtand shall be interpreted and applied with such modifications that are necessary for compliance with theprovisions of theConstitution») No new Rules were made either by the High Court, or by its substitute, the present SupremeCourt The matenal partof r 8 of 0 35, which relates tothe admission of further evidence, is almost identical to the provisions of r 9, 0 58 of the English Rule of Court(old) 20 The pnnciples governing the admission of further evidence by theCourtofAppeal uponquestionoffactareby noww· IIsettled The maxim interest reipublicae ut finis sit hour · is well embedded inoursystem ofadministrationofjustice Theevidence which is available or could with reasonable diligence b r t obtained 25 must be produced before the tnal Court We apply the adversary system inour Courts Thelitigantshave toadducetheevidencein support of their case before the tnal Court The Court of Appeal will not usurp the powers of the tnal Courtsin heanng evidence A further pnnciple that is involved is that a successful litigant 30 should not be depnved without good reason of the fruits of his success Justice,however, requiresth .tevidence which isrelevanttothe issue before thetnal Courtand which could not,with reasonable diligence, be traced and produced, be heard by the Court of 35 Appeal To exclude itwould lead to injustice Having regard to the aforesaid general principles, the Courts have developed three conditions which must be satisfied before further evidence can be received by the Court of Appeal. They 483 Styllanldes J. rriionldes v.Alpan (TaklBros)

(1987)were lucidlyset out byDenning, L.J., as he then was,inLadd v. Marshall[1954]3 AllE.R. 745 atp. 748 as follows:«... tojustify the reception of fresh evidence ora new trial, three conditions must be fulfilled: first, itmust be shown that the evidence could not have been obtained with reasonable 5 diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive:third, the evidence mustbesuch asispresumably to be believed,orinotherwords,itmustbeapparently credible, 10 although itneed not be incontrovertible.» The aforesaid conditions were adopted and applied by the Supreme Court in this country. Before Ladd case Tucker, L.J. in Braddock v. Tillotson's Newspaper Ltd. [1950] 1K.B.,47, atp.50 said:· 15 «Ithasbeen the invariable practice of the Court of Appeal in this country to confine the admission of fresh evidence, in circumstances such as this to evidence which could not reasonably have been discovered before the trial, and to evidence which, ifbelieved, eitherwould beconclusive or, as 20 hasbeen saidbysomejudges, toevidence whichwould lead tothereasonableprobabilitythattheverdictwouldhave been different.» The Supreme Court dealt with the question of admission of further evidence ina number of casessince 1960.(See, interalia, 25 Yiannakis Kyriacou Pourikkos (No. 2) v. Mehmed Fevzi, 1962 C.L.R. 283;HjiSawa and Othersv.Panayiotou

(1966)1 C.L.R. 6; Ashiotis and 13 Others v. Weiner and 4 Others

(1966)1 C.L.R. 274; Felekkis v. The Police

(1968)2 C.L.R. 151; Sawas Athanassiou v. The Attorney-General of The Republic

(1969)1 30 C.L.R. 160; Papadopouhs v. Kouppis

(1969)1 C.L.R. 584; Paraskevas v. Mouzoura

(1973)1 C.L.R. 88; Moumdjis v. Mich'aelidou and Others

(1974)1 C.L.R. 226; Evdokimou v. Roushias

(1975)1C.L.R. 304;Kyriacou v.CD. Hay &Sons and Another{\978) 1 C.L.R. 100;PavlidouandAnother v.Yerolemou 35 and Others

(1982)1C.L.R. 912;HjiSoteriou v.Director offends and Surveys andAnother

(1983)1 C.L.R.567;MobilOUv. Ellinas and Others

(1987)1C.L.R. 1.) 484 1C.L.R. Ttifonldes v.Alpan(TaltlBros) StyllanldesJ . In thepresent application thefirst part of the evidence was not only obtainable with reasonable diligence, but in fact was within the knowledge of the plaintiff prior to the pronouncement of judgment. 5 Theexpression intheconditions«foruse atthetrial»includesin our opinion any stage before judgment is delivered by the trial Court. The armory of the rules provides for machinery for application tore-open thecase and adduce such evidence, which was obtained, or was created after judgment was reserved. 10 Therefore the first part of the evidence does not satisfy the first condition. The second part of evidence satisfies the first condition. Doesit satisfy the second? IntheAnnual Practice 1958, vol. 1,at p. 1679 we read:15 «As regards the second condition Hanworth, M.R., inR.v.Copestake, [1927] 1K.B.468,atp. 474, thought'the evidence must be of such acharacterthatnotmerely isit relevant butofsuch importancethatitwould have affected thejudgmentof thζtribunalifithadbeen before themattheoriginal hearingofthe 20 case.'Scrutton. L.J., atp. 477, thought 'itmust be of such weight as,ifbelieved, would probably have animportantinfluence onthe result' (and see per Birkett, L.J., in Corbett v. Corbett, [1953] P. 205 at p.215). The Privy Councilin Hip Foong Hong v.Neotia & Co., [1918]AC. 888 at p.894, thoughtthattheevidence mustbe" 25 'of such a characterthatitwould, so far as can be foreseen, have formed a determining factor intheresult' (words adopted by Lord Maugham in Rowell v. Pratt, [1937] A.C. at p. 116, by Evershed, M.R.,inCorbettv.Corbett, supra,atp.215,andagain by the Privy Council inAndrew v.Andrew, [1953] 1W.L.R. 1454).» 30 We are of theviewthattheevidence which cameinto existence after the delivery of the judgment by the trial Court falls short of satisfying thesecondcondition. In the light of the aforesaid the application is dismissed with costs in favour of the respondents in thisappeal to be paid at the 35 final determinationof thisappeal. Application dismissed withcosts. 485