clr/1987/1987_1_547.pdf

(1981)1C.LR. 551 atp. 553 citedwithapproval. 5 CivilProcedure— Pleadings— Fraud— TheCivilProcedure Rules, Order19, Rule 5 — Failureto prove some of the alleged particularsof fraud — Immaterial, if the particulars proved point unequivocably to fraud having been committed by thedefendantagainsttheplaintiff. Thefactsofthecaseappearsufficientlyin thejudgmentofthe Court. 10 Appeal dismissedwithcosts. Casesreferredto: Kynacouv.KortasandSons

(1981)1C.L.R.551. Appeal. Appealby defendantsagainst thejudgmentoftheDistrictCourt 15 ofNicosia(Kramvis, D.J.)datedthe22nd December, 1986 (Action No. 3269/81)whereby the registration of 1/6 undividedshareof plot394underSheet/Plan XXX/42atPsimolophouvillagein the nameofdefendant No 1,effected invirtueof D.L.O. Declaration of SaleNoD.S. 789/78,was cancelled. ™ Appellantsappearedin person. 547 KakouNoa v.KakouUou

(1987)N. Hjiloannou, for the respondent. Cur. adv. vuit. TRIANTAFYLLIDES P.: The Judgment of the Court will be delivered byLoris J. LORISJ.: The present appeal isdirected againstthejudgment oftheDistrictCourtofNicosia (KramvisD.J.)inNicosiaActionNo. 3269/81, whereby the registration of 1/6 undivided share of plot 394 underSheet/Plan XXX/42vill.,atPsimolophou village,inthe name of Appellant No. 1,(effected on 3.12.78 invirtue of D.L.O. Declaration ofSale under No. D.S.789/78) was cancelled. 5 10 The salient facts of thiscase arebriefly as follows: Defendant No. 1(Appellant No. 1)isthewife of Defendant No. 2 (Appellant No.2)and sisterof the Plaintiff-Respondent. Respondent who was residing abroad, visiting his village Psimolophou on occasions, executed on 20.8.1976 a general 15 power of attorney, constituting appellant No.2hisagent;the said power of attorney was filed with the D.L.O Nicosia under No. 61/

1. On 3.2.1978 appellant No. 2 presented himself to the District LandsOffice Nicosiaand onthestrength oftheaforesaid power of 20 attorney, transferred bywayof sale (D.S.789/78) in the name of hiswife (Appellant No. 1)the 1/6 undivided share inthe property covered by survey reference: Sheet/Plan XXX/42 vill., plot No. 394, at Psimolophou village,standing registered at the time inthe name of the Respondent. 25 The sale price declared in D.S. 789/78 forthe saleof 1/6 share in the said property was £55.-, but as the District Lands Office declined toaccept the amount declared, assessing itssale priceat £180.- as on 3.2.78, the sale price of £180.- was inserted in the said declaration form. 30 The respondent, who allegedly came to know about the aforesaid transfer considerable time after its occurrence, addressed, through counsel, aletterdated 28.5.1981 to appellant No. 1 callinghertore-transfer inhisnamehisaforesaid shareinthe propertyinquestion and upon herrefusal tocomply,institutedthe 35 present action. 548 1 C.L.R. 5 10 Kakoullou v. Kakoullou Lorls J. The respondentalleginginthe statement of claim, thatthe said transfer in the name of appellant No. 1 was effected fraudulently by both appellants acting in concert, maintains inter alia, that he was induced by appellant No. 2 to execute the said power of attorneywith aviewtoenabling himtoissueinrespondent'sname (who was residing abroad) latter's hereditary share in properties inherited from his deceased father but insubstance and in fact he never authorised appellant No. 2 tosell respondent's share inthe property in question to anybody. It was further alleged by the respondent that he was never informed by appellant No.2, oranyone of theappellants, thathis share in the property in question was transferred in the name of appellant No.
2. nor did he ever receive any money for the purpose. 15 Bothdefendants intheirjointdefence, drafted by counsel acting on theirbehalf at thetime,deny the allegations of fraud set outin the particulars of thestatement of claim, and allege interalia,that the respondent executed the said power of attorney freely, without any inducement by the appellants and in fact authorised 20 appellant No.2 to sell respondent's properties in Cyprus to any person «atany pnce».Theappellants statefurther intheir defence, thatappellant No.2actingonthestrength ofthepower ofattorney aforesaid sold the 1/6 share of the respondent in the property in question to appellant No. 1 at the sale price of £200.-, the said 25 price being fair and reasonable according totheassessment made_ by the DistrictLands Office, Nicosia. It κ further alleged in the defence that the respondent was informed of the aforesaid sale of his property to appellant No. 1, inAugust 1978 when therespondent«came toCyprus again»and 30 he (therespondent)ratified the said transfer. In this connection it is significant to note that appellant No.2 when cross-examined during the trial of the action, stated verbatim the following: 35 «Τα χρήματα τα εισέπραξα κατά την ώ ρ α της μεταβίβασης... Επιμένωότι εισέπραξατις £200.- και τις έδωσα στον ενάγοντα όταν ήλθετο καλοκαίριτου
3. Επήρα και απόδειξη, δεν την έχω μαζί μου, δεν την βρήκα ...». 549 Lorls J. Kakoullou v. Kakoullou

(1987)(EnglishTranslation): «Ireceived the money at the time of the transfer... Iinsist that I collected the £200.- and gave them to the plaintiff (respondent) when he came (to Cyprus) in the Summer of 1979.1obtained areceiptaswell,Idonothavesamewithme, 5 I did not find it...» We shall confine ourselvesatthisstage in noting: (

1. a)That the transfer through D.L.O of the share of the respondent inthepropertyinquestion waseffected inthenameof appellant No. 1on 3.2.78. (
2. b)that in the defence it is stated that the respondent was informed of the said transfer in August 1978 when he visited Cyprus and he then ratified same; nowhere in the defence is mentioned that the sale price was paid over by the appellant No. 2 tothe respondent. (c)thatappellantNo.2whencross-examinedatthetrialinsisted that he paid over the money to the respondent inthe summer of 1979 and got a receipt from the respondent which he never produced tothe trial Court. During the hearing of this case in the Court below three 20 witnesses were called by plaintiff's side:The plaintiff himself, the D.L.O clerk, who carried out a local enquiry on the basis of the pleadings and produced inter alia a sketch of the property in question and certainotherdocumentsconnected withthe transfer of the property in question in appellant's No. 1name, including 25 the power of attorney executed by therespondent on 20.8.1976, constituting appellant No. 2 his agent. Finally the brother of the plaintiff namely loannis Kyriakou Kakoullou, thepresent attorney of the plaintiff through whom the action was instituted and the present appeal was defended, gave evidence for the plaintiff- 30 respondent. ThesinglewitnesscalledbythedefencewasappellantNo.2the husband of appellant No. 1. Thelearned trialJudgeafterhearingtheevidence adduced, the addresses of learned counsel of both sides and examining the 35 various documents produced before him, accepted the evidence adduced by plaintiffs side on the substantial issuesand rejecting the evidence of the single witnesscalled by the defence, notably 550 10 15 1C.L.R. Kakoullouv.Kakoullou LorisJ, the evidence ofappellant No.2,as«absolutely incredible»,gave judgmentfortheplaintiff asperparagraphAoftheprayerordering the cancellation oftheregistration of 1/6 shareinthepropertyin question effected in the name of appellant No. 1on 3.12.78in 5 virtueofD.L.O.DeclarationofSaleunderNo.D.S. 789/78. Both appellants feeling aggrieved filed the present appeal in person. Thegroundsofappealmaybeconvenientlysummedupunder twobroadheads: 10 (A)Credibility of witnesses: apart from the general complaint that the judgment of the trial Court is against the weight of evidence(ground6)therearecertainothercomplaintsconnected with credibility of witnesses scattered in most of the remaining groundsofappeal. 15 (B)Deviationfrom thepleading. Atthehearing of thepresent appeal both appellantswerenot representedbycounsel.AppellantNo.2addresseduselaborating onthegroundsofappeal. Hiswife,appellantNo.1,confinedherselfinindorsingwhather 20 husbandsaidinsupportofthisappeal. AppellantNo.2referringtothecomplaintsgroupedunderhead (A)above maintained that the trial Court failed to evaluate his evidence and at the same time lost sight of the innumeral contradictionsintheevidenceoftheplaintiff andhiswitnesses. 25 In connection with complaints under (B) above he drew our attention to the provisionsof Order 19,rules4 &5 of theCivil ProcedureRulesandinvitedustofindthatthestatementofClaim doesnotcomplywithOrder19,rules4&5obviouslymeaningthat «in all cases in which the party pleading relies on any 30 misrepresentation, fraud, breach of trust,wilful default or undue influence, full particularsthereof shallbestatedinthepleadings» (Rule5). AppellantNo.2submittedfurtherthatwhilstinthestatementof claim the power of attorney executed by the respondent 35 constituting him (appellant No.2) as hisagent, isreferred to as having been made on or about 1977, it was in fact made on 20.8.76 as itappears from the evidence of D.L.O clerk and the documentitselfwhichwasproducedintheCourtbelowasExhibit 5. 551 LorlsJ. Kakoullon v.KakouUoa

(1987)After hearingtheappellantsweconsidered itunnecessarytocall learned counsel appearing for the respondent to address this Court. In connection with complaintsunder (A)above referring to the credibility of witnesses, sufficing to say that matters relating to 5 credibility fall within the province of the Trial Judge who has the opportunity to see and hear the witnesses;and on appeal itmust be shown that the Trial Judge was wrong in evaluating the evidence and the onus ison the appellant to persuade the Court that this is so. (Vide inter alia Kyriakou v. Kortasand Sons Ltd 10

(1981)1C.L.R. 55Z at p.553).TheAppellants failed to persuade usthattheJudgewaswronginevaluatingtheevidence;itiscrystal clearfrom therecordthatthetrialJudgewentcarefully through the evidence before him evaluating same with utmost care. Itistrue thathe noted theslightest contradictions intheevidence adduced 15 by plaintiff's side, but it is equally clear that the only evidence adduced bythe defence, notably theevidence of appellant No.2 impressed the Court unfavourably and he rejected same as absolutely incredible. In connection with complaints under (B) above, notably 20 .deviation from the pleadings in the sense that the evidence adduced did not coincide with thepleadingsand the allegation of Appellants set out on appeal that the Court embarked on other groundswhich werenotpleaded, wehavecarefully gone through the record examining these complaints in the lightof the address 25 ofAppellant No.2 before us.Inthefirstplacewehave noted that this action which isbased on fraud was instituted under 0.2, r. 1 and that the statement of claim which ensued contains sufficient particulars of the alleged fraud pursuant to 0.19, r.5 contrary to theallegationsoftheappellants.Now,ifsomeoftheallegationsof 30 fraud in the statement of claim were not proved, that is another matter.The allegations proved point out unequivocally tothe fact that appellant No. 2 fraudulently transferred in the name of appellant No. 1 property belonging to the respondent, taking unfair advantage ofapower ofattorneyexecuted bona fide bythe 35 respondent constituting appellantNo.2 hisagent. Itissufficient in this connection to repeat what has been stated earlier on in the present judgment, that whilst the transfer in question was made throughtheDLOon3.278 therespondentwasneverinformed by either of the appellants to that effect, and the allegation of 40 552 1 C.L.R. Kakoullou v.Kakoullou Loris J. appellantNo.2totheeffect that hereceivedtheallegedpurchase money from appellant No. 1 and paid it over to the respondent sometime duringSummer 1979wasproved tobe false. We find no merit in the argument of the appellants that the 5 powerof attorney inquestion isbeing referred tointhe statement ofclaimashavingbeen executed on/or about 1977 whilstin fact it was made on 20.8.76 as it appears from exh. 5. In this connection itmaybeadded thattheappellantNo.2whoreceived theaforesaid powerofattorneyreferstoitinthedefence ashaving 10 been executed on orabout 1977 aswell. Foralltheabovereasonsweholdtheviewthatthereisnomerit in the present appeal which is doomed to failure and it is accordinglydismissed withcosts. Appeal dismissedwithcosts. 553