clr/1987/1987_1_529.pdf

(1)The Civil Procedure Rules, 1954 previously citedas the Rules of Court, 1938, were in forcelong before the declaration of the Independence of Cypnis and embodied me rules tobe followed in all mattersconcerning the practice and civil procedure of the Court They remained m forceby virtue of the Rules of Court (Transitional Provisions) I960, issuedby the High Courtatthe bme underAr&ck 163of the Constitution (VideRule 3***thereof) ' Quoted*t ρ &31 **Th* relevantArticle» of the Conc&tutxM, namelyArticle·3 I, 34and 189wv quoted«t ρ 532 •"Queuedatρ 532 529 -Proodo· Ltd.-v. Pavloa ft Another

(2)Section4 ofLaw51/65providesthat«Notwithstandingtheprovisionof anylawanduntiltheenactmentofanyotherlawonthematter,anyprocedure before anycourtwilt continuetobe conductedinanyof thelanguages used inthecourtsuntiltoday>

(3)The object of theintroduction of Article 189 of the Constitution, the further reasonswhichledtotheneedof theenactmentof Law51/65,andthe validity of thislaw have been expounded by theFullBenchof theSupieme Courtinthe caseof Koumiv Kortan

(1983)1 C LR 856.atpp 859.860and 861. Inthatcase theCourtconsideredsuch law as valid on thebasis ofthe doctrine of necessity. Itfollows that thisappealshould be dismissed 5 10 Appeal dismissedwith costs Cases referred to Koumiν Kortan

(1983)1 C L R 856 Appeal. Appeal by plaintiffs against the order of the District Court of 15 Nicosia(Emphiedjis, Ag. D J.)datedthe27thMarch,1986(Action No.5519/85)setting aside thewrit of summonsondefendant

1. C. Emilianides, for theappellants N. Andreou,fortherespondents. Cur. adv. vult. 2 0 A. LOIZOUJ.:Thejudgment of theCourtwillbe delivered by Mr. Justice Sawides. SAWIDES J.:Thisisanappeal against anorderof theDistrict Courtof Nicosia(Emphiedjis, Ag. D.J.)settingaside theserviceof thewritof summons ondefendant
2. 25 Thefacts of thecase arebriefly asfollows:Theappellantson 12.6.1985issued a writofsummons against thedefendants inAction5519/85of theDistrictCourtofNicosia, claiming£824.-balanceofaninvoiceforworkdonebyappellants for the defendants. Copy of the writ of summons in Greek was 30 served on both defendants. Counsel for defendant 2 moved the Court by application dated 1stNovember, 1985,tosetaside the serviceof thewrit of summonsonsuch defendant, ontheground thatthewritofsummonsservedonthedefendant was inGreek,a language foreign tothedefendant who was Irishandhermother 35 language was English. The application was based on Order 58, rule 1of theCivil ProcedureRules.ThelearnedtrialJudge after hearingargumentonbothsides cametotheconclusionthatinthe 530 1 C.L.R. - P r o o d o · Ltd.» v. Pavloa ft Another Sawtdes J . light of the provisions of Order 58, rule 1of the Civil Procedure Rules,copyof the writofsummons served inCypruson a person whowasneither Greek-speaking norTurkish-speaking should be in English. 5 CounselforappellantsarguedthatthetrialCourt misinterpreted the relevant legislation and the Rules and ignored the express provisions of the Constitution which are superior to any law or rules. Therefore, it exercised its discretion wrongly. Counsel contended that under paragraphs 1 and 4 of Art. 3 of the 10 Constitution, theofficial languages oftheRepublicareGreek and Turkish and, therefore, service upon therespondent ofthewritof summons in Greek wasa proper one under the provisions of the Constitution. Order 58 of the Civil Procedure Rules dealswith the language 15 used inCourt. Rule 1providesas follows: «
3. Subject torule3 ofthisOrder, anydocumentservedin Cyprus shall, if served on a Greek-speaking person, be in Greek, and if served on a Turkish-speaking person, be in Turkish, and inallother casesbe in English.» 20 The CivilProcedure Rules, 1954previously cited asThe Rules of Court, 1938, were in force long before the declaration of the Independence ofCyprusandembodiedtherulestobefollowed in all matters concerning the practice and civil procedure of the Court. 25 The introduction ofOrder58wasobviouslynecessitated bythe recognition during the British Rule of the fact of the existence of the two main languages prevailing in Cyprus and used by the majority ofthepopulation whichconsistedofmembersofeitherof thetwocommunitiesoftheIsland,GreeksandTurks.The English 30 language wastobeusedincaseswhereservicewastobe effected on parties who were neither Greek-speaking nor Turkishspeaking Cypriots but belonged to any other class of people speaking a foreign language. English was at the time a language which was mostly spoken by all foreigners and which was the 35 official language.Thiswasthereason fortheprovision inthe rules thatserviceofdocumentsondefendants whowereneitherGreekspeaking norTurkish-speaking should be in English. Thesaid RulesofCourtremained inforce byvirtueoftheRules of Court (Transitional Provisions) 1960, issuedbytheHigh Court 40 atthetime under Article 163ofthe Constitution. 531 Savvides J. «Proodo·Ltd.»v. Pavlou ft Another

(1987)Rule 3 of the 1960 Rules, reads as follows «3 Τηρουμένων των διατάξεων του Συντάγματος, π α ς κατά την αμέσως προηγουμένην της ημέρας ανεξαρτησίας ημέραν ισχύων διαδικαστικός κανονισμός, πίναξ δικαστικών τελών και η εν τοις 5 δικαστηρίοις ακολουθούμενη και νόμω καθοριζομένη πρακτική και δικονομία (practice and procedure) θα εξακολουθούν να ισχύουν μέχρις ου τ ρ ο π ο π ο ι η θ ο ύ ν δια μετσβολής,προσθηκης ή καταργήσεως, δυνάμει διαδικαστικού κανονισμού και θα ερμηνεύωνται και θα 10 εφαρμόζωνται μετά τοιούτων μετατροπών καθ' ο μετρον είναι τούτο αναγκαιον π ρ ο ς συμμόρφωσιν π ρ ο ς τας διατάξειςτου Συντάγματος » («Subject to the provisions of the Constitution, any rule of court, schedule of court fees and the practice and procedure 15 defined by law and followed inthecourts which were in force on the day preceding the day of independence will continue to apply until they are amended by alteration addition or repeal, on the basis of a rule of court and will be interpreted and applied with such changes as far as this is necessary for 20 compliance with the provisions of the Constitution») Paragraphs 1 and 4 of Article 3 of the Constitution, read as follows «1 The official languages of the Republic are Greek and Turkish 4 Judicial proceedings shall be conducted or made and judgments shall be drawn up in the Greek language if the parties are Greek, in the Turkish language if the parties are Turkish, and in both the Greek and the Turkish languages if the parties are Greek and Turkish The official language or 30 languages tobe used for such purposes in all othercases shall be specified by the Rules of Court made by the High Court under Article 163.» Under Article 189 the following provision is made «Notwithstanding anything in Article 3 contained, for a 35 penod of fiveyearsafter thedate of thecoming into operation of this Constitution- 532 25 1 C.L.R. «Proodos Ltd.»v.P a v l o u ft A n o t h e r SavvidesJ . (

1. a)all laws which under Article 188 will continue to be in force may continuetobe in the English language; (
2. b)the English language may be used in any proceedings before any Courtinthe Republic.» 5 On 9th September 1965, a law entitled the Laws and Courts (Text and Proceedings) Law, 1965, Law No. 51 of 1965 was enacted,thepreamble of which reads as follows:•Whereas thetranslation of thetextof alltheLaws in force has notbecome possible until to-day: 10 And whereas inthecircumstancesthetemporarylegislative regulation oncertain matters relating totheprocedure before the Courtshas become necessary: Therefore theHouseofRepresentatives enactsas follows:» Under section 3 of thesaid Law, provision is made authorising 15 the Attorney-General of the Republic to look into and supervise the translationof theEnglish textof the lawsinforce atthecoming intooperationof thatlaw andthesaid lawsremained inforce until their translation became possible. Furthermore,under section 4, the following provision was made: 20 25 «4.Ανεξαρτήτως τηςδιατάξεως οιουδήποτε νόμουκαι μέχρις ου γίνη επί τ ο υ προκειμένουάλλη νομοθετική πρόνοια πάσα ενώπιον οιουδήποτε δικαστηρίου διαδικασία θα εξακολούθηση να διεξάγηται εις οιανδήποτε μέχρι τούδε εν χρήσει εντοις δικαστηρίοις γλώσσαν.» («Notwithstanding the provision of any law and until the enactment of any other law on the matter, any procedure before any court will continue to be conducted in any of the languages used inthe courts until today.») 30 The object of the introduction of Article 189 and the further reasons which led to the need of the enactment of Law 51/65, have been expounded by theFullBenchof the Supreme Courtin the case of Koumi v.Kortari

(1983)1C.L.R. 856, atpp.859,860 / where we read the following:- 35 «Itappearsfrom thislatterarticlethatwhen the Constitution was being drawn up,itsdrafters obviously tookcognizanceof the fact thatnotonly thelaws,rulesand regulations inforce at 533 SavvMcsJ. «Proodo*Ltd.»v.Pavlou ft Another

(1987)the time were written in English, but that the whole legal system of the then British colony was basically modelled on and followed the English Legal System -Hence the necessity to allow some time which they thought would have been sufficient in the circumstances to be five years for the 5 necessary changes in the language to be made. Circumstances proved that they were over optimistic as the English Common Law is not merely based oh rules and regulationswhichcouldbetranslatedbutoncaselawasitisto be found in law reports and commented upon in text-books 10 and writings that are all written in the English language. Moreover precedents of forms injudicial proceedings which are the products of the experience and knowledge of their drafters based onthecaselawarealsowritteninEnglish.Itwas therefore, discovered in 1965that that wasan immense task 15 whichbrought abouta necessitythathadtobefaced bysome legislative action so that there would not have followed a disruption and chaos in the administration of justice. ALaw entitled The Laws and Courts (Text and Proceedings) Law, 1965, (LawNo.51of 1965),wasenacted ..... 20 The validity of Law 51/65 has been considered by the Full Bench inKoumi v.Kortari(supra)whichheld (perA.Loizou,J)at p. 861 as follows:«Havinggiventhematterourbestconsideration and taking judicial notice of the existing situation as well as of the 25 contents of the Preamble highlighting a situation as ascertained by the Executive and the Legislative and the magnitude of the task that was to be faced by those responsible for the translation of the necessary material, we have come tothe conlcusion thatthislawisvalidonthebasis 30 of the doctrine of necessity in view of the necessity that has arisen and the temporary nature of the law which has been enacted tomeet it. ItmayalsobepointedoutthatthisLawdoesnotinanyway exclude the use of the Greek or Turkish languages in Court 35 proceedings and matters relevant thereto and which have in practicebeen extensively used. Itwastherefore, inviewofits provisionswrongtofindasirregularthefilingoftheStatement ofClaim in English.» 534 1C.L.R. 5 «Proodos Ltd.-v.Pavlou&Another SavvidesJ. The issue before the Full Bench in the'above case was the validity of an orderof the DistrictCourt of Limassol inActionNo. 1564/79 whereby itwasordered that the statement of claim filed intheabove action and drawn upinEnglishshouldbestruck out and anewstatement ofclaimbefiledand delivered inGreek. The appealwasallowedandtheorderofthetrialCourtwassetaside. Bearing in mind the legal position as above and the fact that Order 58, rule 1 stillcontinuestobe inForce,wefindthatthetrial .Judge was right in reaching his decision and ordering the setting 10 asideoftheservice of the writofsummons inGreek on defendant 2 anEnglish-speakingperson. Intheresultthisappealfailsandisherebydismissedwithcosts. Appealdismissed with costs. 535