(1988)1988April4 {DEMETR1ADES,LOWS,STYUANIDES,JJ.) MARIAM.FATSITA, Appellant-Defendan t, v. SOPHIA FATSITAANDANOTHER, Respondents-Plaintiffs. (CivilAppeal No. 7068). Constitutional Law—Laws in force on Independence Modification of— Constitution, Art.
- Day— Constitutional Law —Right of access to Court/Fair and Public Hearing—Constitution, Art. 30.1 and 30.2—The Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, section 80 —Repugnant and inconsistent with Articles 30.1 and 30.2 TlieEuropean Convention fortheProtectionofHuman Rights,ratifiedby Law 39/62 —A public and fairhearing, implies a right of access toCourt — Art.6.
- Immovable Property— The Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 —Director—Powers of— Confined totechnicalmatters,asopposed toadjudicationonrights. Contract —Specific Performance — The Contract Law, Cap. 149, Section 76— Codifies English Law (except asregardscontractsfor thesaleof land). Constitutional Law—Determination of Judicial causes within a reasonable time — Constitution, Art. 30 — What is a «reasonable time»—Judges should notallowthemselves tobedrawnby counsel orlitigants. Civil Procedure —Adjournment of trial—Principles applicable — Constitution, Art.
- The parties in this appeal are sisters. They, together with explaintiff 2, were the co-ownersof a plotof land. Each held one third share upmdiviso.Bya writtencontractmadein1966theyagreed to 210 1 C.L.R. Fateltav.Fatslta& Another divide itinanagreed way. As from theday ofthecontracttheparties took possession oftheirrespective plots. 5 10 As, however, theappellant refused to give herconsent for the purpose of effecting the partition through the District Lands Office, the respondent and ex plaintiff 2 issued a writ for specific performance of the contract for partition. Appellant's defence was that explaintiff 2 failed to constructproperly a road and aconcrete channel,asagreed. The trialCourtdid notaccept this allegation. Explaintiff 2withdrew theaction as, atsome time,he transferred hisshare in the landto theappellant. The Courtgrantedadecree ofspecific performance. 15 Hence thisappeal.Theissuesraised are: (a)Aspartitionoflandis, under section 34of Cap.224, within thepower of the Director, the Court had nojurisdiction toissue adecree of specific performance. (b)Thatthepartitionmightbe contrarytotheprovisions ofsection27 of the same Law relating to division of immovable property, {c) Specific performance should nothave been granted. Held,dismissing the appeal: 20 ος a
(1)(
- a)Theactionisoneforspecific performance ofa contract and person isnotprecluded bythe provisions of Cap.224to institute and prosecute such actionbefore aCourt. (
- b)Furthermore, the provision of section 80 of Cap.224 is repugnant to andinconsistent with Articles 30.1 and30.2 ofthe Constitution. Theprinciple whereby a civil claim must be capable of being submitted to a Judge ranks as one of the universal «recognized» fundamental principles of Law. 30 This conclusion was reached by theEuropean CourtofHuman Rights underArt. 6.1oftheEuropeanConventionforthe Protection of Human Rights*. InArt.30.1 -and it is significant that such a provision is notfound in the Convention -the right to access is expresslymentioned. 35 The guarantee oftherightofaccess to the Courtsdoes notdebar the legislature from providing for some sortofregulation ofthisright, provided that the regulatory provision is not arbitrary or unreasonable and does notlabour asan infringement oftherightof access toaCourt. (c)Inthis country, even before the coming into operation ofthe Constitution,theCourtinterpretedthepowers vested inthe Director *Ratified in CyprusbyLaw 39/62 211 Fatsltav. Fatslta&Another
(1988)as limited torathertechnicalmattersandnotmattersof vindicationof nghts
(2)The second pointwas never raised before thetnalCourt
(3)Section 76 of theContract Law, Cap 149, inasummary form, codifies the English Law on specific performance of contracts. However, inthe case of sale of landthissection does not apply. 5 As section 76 encompasses the pnnciples of the English Law on specific performance it should be interpreted and applied accordingly, as, indeed, itwas inthis case
(4)Article 30 2of ourConstitutionandArticle 6
(1)oftheEuropean 10 Convention onHuman Rightsguaranteethenghtofapersonto have his civil rights and obligations determined by a competent Court established by Law withinareasonable time The reasonableness of thelength of proceedings mustbeassessed in each case according totheparticularcircumstances,including the complexity of the case, the conduct of the applicants and the competent authonty, and what was at stake for the former, in addition only delays attributable totheStatearerelevant (A passage from MMZimmermann and Sterner, E.C.H.R.,SeriesA,No.66 cited with approval) " 15 20 In this case numerous adjournments were granted on insufficient grounds.Judges should notforget thatthey are performing a public duty towards society, irrespective of whether theyarecalled uponto adjudicate pnvate nghts between two members of the society ^5 Appeal dismissed. Noorderas to costs. Cases referred to: Lawless Case, ΕC ΗR Series A,Vol. 3,p.52Delcourt,ΕC.H.R.Senes A Vol l i p 14-15 IrrigationDivision«Kafei/os» v. Republic
(1983)3 C L R. 1068; 3 Q Colder Case, E.C.H.R,Series B,Vol. 16 p.42; Ibrahim ν Souleyman
(1953)19 C.L R. 237; Hassidoffv. Sanff and Others
(1970)1C.L.R. 220; Avgoustiv. Papadamou and Another
(1968)1C.L.R. 66; Xenopoulos v. Makridi
(1969)1C.L.R.488. Melaisi v. Georghiki Etena
(1979)1C.L.R 748; 212 35 1 C.L.R. Fatslta v.Fatslta & Another Georghalidesv.Theodoulou, 1962C.L.R.'115; TsiartasandAnotherv.YiapanaandAnother, 1962C.L.R. 198; Antoniouv.Elmaz
(1966)1 C.L.R. 210; Charalambousv. KazanouandAnother
(1982)1 C.L.R.326; 5 ACT. TextilesLtd. v.Zodhiatis
(1968)1C.L.R. 89; MMZimmermannandSteiner, E. C.H.R.Series,A,No.
- Appeal. Appealbydefendants againstthejudgmentoftheDistrictCourt of Nicosia (Ioannides, D.J.) dated the 3rd October, 1985 (Action 10 No. 1700/72) whereby specific performance of the written contract between thepartiesdated 19.6.1966and the registration in the name of the parties of the sub-plots of land which were allotted to each one of them was ordered but plaintiff's claim for damages was dismissed. 15 A.Scordis, for the appellant. P. Frakalas,forthe respondents. Curadv. vult DEMETRIADESJ.:TheJudgmentoftheCourtwillbe delivered byMr.Justice Stylianides. 20 STYLIANIDES J.: The parties in this appeal are sisters. They, withex-plaintiff 2-theirbrother,wereco-ownersofonethirdeach upindivisooflandsituateinthevicinityofAyiosTheodoras Soleas village, localitty «Kangelia», Plot 35, Sheet/Plan 28/54, under Registration No.
- 25 Bya written contract, dated 19.6.1966, signed by all three coowners, they divided the said land. The plaintiff-respondent undertook toopen upa newroad leading from thepublicroad to the sub-plot allocated by the said agreement to the other contracting parties, and the construction of a concrete water 30 channel.-Bythesaidcontracttheyundertook totakethe necessary stepswiththeLandsOffice fortheimplementation ofthepartition. Asfrom thedate ofsuch contractthepartieswerein possession of theirrespective sub-plots. 35 On 20th April, 1971, the respondent and ex-plaintiff No. 2 submitted anapplication totheDistrictLandsOffice ofNicosia for the implementation of the partition, i.e.theissueofseparatetitledeedstoeach oneofthem.Thedefendant-appellant failed and/or 213 StytlanldesJ. Fatsltav.Fatslta&Another
(1988)refused to sign the necessary consent requested by the Lands Office. Theplaintiffs filedactionagainstthepresentappellant, whereby they claimed specific performance of the written contract of 19.6.1966 and registration inthe name of the parties of the sub- 5 plotsof land which were allocated toeach one ofthem, under the said contract. They, further, claimed damages. The defendant in her statement of defence admitted the contract and that each one waspossessing, without interference, his separate holding. She, however, alleged that the plaintiff did 10 not construct and/or did not construct properly the road and the water channel to which reference was-made above. The last paragraph of the statement of defence reads: «The defendant is ready to do anything for the performance of the contract of 19.6.1966 subject to the execution of the aforesaid conditions», 15 meaning the construction of theroad and water channel. Local inquiry was carried out and plans were prepared by the D.L.O. In the meantime the plaintiff 2 - Petros Fatsitas - sold and transferred his registered share in the name of the defendant. 20 Thereupon plaintiff No. 2 withdrew the action, as he had no interestany more. After many adjournments, to which we shall refer later in this Judgment, theaction washeardbyaJudge oftheDistrictCourtof Nicosia. The trial Judge found that the grounds, which the defendant raised for not giving the written consent for the registration of the separate holdings, as aforesaid, were unfounded, as the plaintiff had performed intoto her obligation contained inthe contract. He,then, directed hismindtotheprovisionsofsection 76ofthe 30 Contract Law, Cap. 149, the principles governing the equitable remedy of specific performance and, inexercise of his discretion, he issuedJudgment orderingspecific performance ofthe contract and registration oftheseparate holdingsinthenameoftheparties, as perthe contract of 19.6.1966. 35 The defendant being aggrieved took this appeal. Counsel for the appellant argued:(a)ThatthetrialCourthad nojurisdictiontoentertainthisaction and grant specific performance of the partition of land, as this is within the exclusive power under section 34 of The Immovable 40 214 25 1 C.LR. Fatslta v. Fatslta &Another StylianJdes J. Property (Tenure, Registration and Valuation) Law, 224 as amended, of the Director. (b) That the partition might be contrary to the provisions of section 27 of the same Law, relating to division of immovable 5 property. (c)Specific performance should nothave been granted. A.JURISDICTION: Cap. 224wasinforce onthedateofthecominginto operation of the Constitution. 10 Section 80 thereof provides, inter alia, that: «save by way of appeal as provided in this section, no Court shall entertain any action or proceeding on any matter in respect of which the Directorisempowered to act under theprovisions of thisLaw.» TheDirectorisempowered bysection 29,ontheapplicationof 15 any co-owner, where immovable property is held in undivided shares,tocauseapartitionofthepropertytobemadeamongstthe several parties entitled thereto and to register the holdings into whichthepropertyisdividedinthenamesofthepersonstowhom the same are respectively allotted. 20 Theownersinthepresentcasepartitionedtheirland,whichwas held inundivided shares, and two of them applied tothe Director for the registration of the|propertysopartitioned. Asthe defendant appellant did not give her written consent, the Director did not exercise his power to issue separate titles for the holdings into 25 which the property was divided in accordance with the termsof the contractof partition. Everylawinoperation onIndependence Daywassaved subject to modification, as may be necessary to bring it into conformity with the Constitution. «Modification» includes amendment, 30 adaptation and repeal. The action isone for specific performance of a contract and a person isnot precluded by the provisionsof Cap.224to institute and prosecute such action before a Court. Furthermore, the provision of section 80, to which reference 35 wasmadeabove,isrepugnantand inconsistenttoArticle30.1and 2 of the Constitution which read:- . «Article 30.1.No person shall be denied access to the Court assigned tohimbyor under thisConstitution 215 StyHenldes J. Fatslta v. Fatslta & Another
(1988)2. Inthedeterminationofhiscivilrightsandobligations orof any every person is entitled to a fair and public heanng within a reasonable time by an independent,impartial and competentcourtestablished bylaw.» Paragraph 2 of Article 30 isareplicaofparagraph 1ofArticle6 5 oftheEuropeanConventiononHumanRights,whichwas ratified by Law 39/62 The pnnciple whereby a civil claim must be capable of being submitted to a Judge ranks as one of the universal «recognized» fundamental pnnciplesof Law Therightof access constitutesan 10 element which is inherentin the nght stated in Article 30 of the Constitutionand6
(1)of theConvention TheEuropeanCourtonHumanRightsreachedtheconclusion, without needing to resort to «supplementary means of interpretation» as envisaged in Article 32 of the Vienna 15 Convention,thatArticle 6
(1)securestoeveryone thenghttohave anyclaimrelatingtohiscivilnghtsandobligationsbrought before a Courtortribunal Inthisway theArticle embodiesthe«nghttoa Court», of which the nght of access, that is the nght toinstitute proceedings before Courtsincivilmatters,constitutesoneaspect 20 only TothisareaddedtheguaranteeslaiddowninArticle6
(1)as regards both the organization andcompositionof the Court,and the conductof theproceedings Insum,thewhole makes upthe nght to a fair heanng - (see Digest of Strasbourg, Case-Law relatingtotheEuropeanConventiononHumanRights,volume2, 25 pp 296-297) It would be inconceivable that Article 30 should descnbe in detail theproceduralguarantees afforded toparties inapending law suit andshould notfirst protectthat,which alone makes it in fact possible tobenefit from such guarantees, thatis, access toa 30 Court The fair, public and expeditious charactenstics of judicial proceedings are of no value at all, if there are no judicial proceedings -(see theJudgments of Ε C.H.R inLawless Case, SennesA volume3,ρ 52;Delcourt,SenesA, volume ΙΙ,ρρ 14- 35 15) TheguaranteeofthenghtofaccesstotheCourtsdoesnotdebar the legislature from providing for some sort of regulation of this 216 1 C.LR. Fatslta v.Fatslta &Another Styllanldes J . right provided that the regulatory provision is not arbitrary or unreasonable and does not labour asan infringement of theright of accesstoa Court. Whei2there areany limitations imposed bylawon the Court's 5 jurisdiction, it isthe Courtsthemselves who should decide in the event of dispute (Jacobs - European Convention on Human •Rights, 1975 p. 93, see, also, Irrigation Division *Katzilos»v. Republic
(1983)3 C.L.R. 1068). Itissignificant thatparagraph 1ofArticle30ofour Constitution 10 isnot found inthe international documents, whichform the basis c' the Chapter of the Constitution relating to fundamental rights and liberties. Paragraph 1makesspecial mention of therightofaccessto the Court assigned to him by, or under the Constitution. This 15 paragraph attracted comment on Golder Case,|(see SeriesB,vol. 16, p.42). ' ^ In this country, even before the coming into operation of the Constitution, the Court interpreted the powers vested in the Director as limited to rather technical matters and not mattersof vindication ofrights. In Sherife 'Moustafa Moutia Ibrahim v. Mehmet Souleyman
(1953)19C.L.R.237,theSupreme Courtexpressedtheviewthat section 56 (Now58),regarding aboundary dispute, did not apply where there wasa disputeastowhether thedescription ina deed 25 or delineation ina plan wascorrector not. AftertheestablishmentoftheRepublic,inAbraham Hassidoffy. PaulAntoine-AnstideSanti andOthers
(1970)1 C.L.R.220, itwas said that in a case concerning legal rights in |land, the parties affected should be given full opportunity ofvindicating theirlegal 30 rights inaCourtof Lawforanactionforadeclaratoryjudgment as to title or otherwise, with all the safeguards as to proof and admissibility of legal evidence. The plaintiff-respondent was not and should not be precluded by any provision inCap. 224 from vindicating in a Court of Law 35 therightsderived from a contract. B.SECTION27OFCAP.224: . Section 27 of Cap. 224 is a salutary provision introduced in 1946 to avoid the fragmentation of land into very small pieces. 217 StyllanldesJ. Fatsltav.Fatslta&Another
(1988)Land irrigated or capable of being irrigated from a perennial source of water should not be divided into holdings of less than one donum in extent of, if capable of being irrigated from a seasonalsource ofwater, intoholdingsoflessthantwodonumsin extent. 5 There is no allegation in the statement of defence that the partition contravenes this statutory provision. The point was not taken up before the District Court. The evidence before the trial Court indicates contrary to the argument of counsel. The whole land is over six donums; the 10 evidence istothe effect thattherearewaterchannelsand thatthe landisirrigated. Forthese reasonsthispoint fails. C. SPECIFIC PERFORMANCE: Section 76 of the Contract Law, Cap. 149,ina summary form, 15 codifies the English Law on specific performance of contracts. Onlyinthecaseofsaleoflandthissection 76doesnotapply-(see EleniAndrea Avgousti v.NioviPapadamou andAnother
(1968)1 C.L.R. 66; Xenis Xenopoulos v. ElliIsidorou Makridi
(1969)1 C.L.R.488;Melaisiv. GeorghikiEteria
(1979)1C.L.R.748). 20 Assection 76encompassestheprinciplesoftheEnglishLawon specific performance it should be interpreted and applied accordingly. The trial Judge properly directed himself to the principles goveming the matter.We need not inthisappeal expoundsame. 25 It suffices to say that, having regard to the principlesand criteria pertaining to the matter, he rightly exercised his discretion in granting specific performance. Fortheforegoing, thisappeal willbe dismissed. DELAYSANDADJOURNMENTS: Before,however, concluding,wewouldliketoobservethatthis case,whichwasfiledin1972,wasfinallydeterminedattheDistrict Court level after more than 14years.The recordspeaks foritself. The litigantsand especiallytheappellant,theadvocates-itshould be noted that counsel who appeared intheappeal stepped inthe 35 case at thefinalstage before the District Court -and some of the Judges who dealt with the case, were the cause of this unreasonable delay. 218 30 1C.L.R. Fatsltav.Fatslta&Another StyllanldesJ. Article30.2 ofourConstitution andArticle6
(1)of thelEuropean Convention on Human Rightsguarantee the rightof a person to have his civil rights and obligations determined by a competent Court established by Law within a reasonable time. Society at 5 large hasan interest inthespeedy determination bythe Courtsof the disputes. This is expressed in the Latin maxim «interest reipublicae utsitlitisfiniurn». The Supreme Court time and again expressed the need for speedydetermination ofcasesand itsdisapproval forthedelaysin 10 the hearing of cases. In Georghallides v. Theodoulou, 1962 C.L.R. 115 at p. 125it wassaid:- 15 «Finally, we would like to observe that, as it is the constitutional right of every person to have his case heard within a reasonable time, itishighly desirable that judgments reserved by Courts should, generally, be delivered without ' any delay.» With regard to the undesirability of adjourning cases, in Christodoulos St. Tsiarta&Another v.Kodros Kyriacou Yiapana 20 &Another, 1962 C.L.R. 198,atp. 208 itwassaid:- 25 30 «A further word needs to be said with respect to adjournments. They produce justifiable dissatisfaction by litigants and their witnesses, and statistical records of this Court confirm the opinion there arefar toomany. Ifan action can proceed the first time it comes on for trial so much the better.When adjournments arenecessarythereshouldnot be more than one or two. After that there should be no more adjournments except in unusual circumstances, as to which the Judge has to decide. Having made these comments it must be added these will be very unusual circumstances in which there may be many adjournments but they should be few in number.» InAntoniou v.Elmaz
(1966)1C.L.R. 210atp.213,theanxiety of this Court regarding the proper prosecution of trials which 35 includes the litigant's right to a hearing of his case within a reasonabletimebytheappropriateCourt,asdeclared inArticle30 of our Constitution, was once more reiterated - (see, also, Nicodemos Charalambous v. Loukia Kazanou and Another
(1982)1 C.L.R. 326 and ACT Textiles Ltd. v. Georghios 40 Zoc//i/afjs
(1986)lC.L.R. 89). '219 StyllanldesJ. Fatsltav.Fatslta&Another
(1988)The European Court of Human Rightsinthe casebroughtby MMZimmermannandSteiner,E.C.H.R.,SeriesA.No.66,where theapplicantsclaimedthatthelength ofproceedingsendingbya decisionoftheSwissFederalCourthadexceededthe«reasonable time»stipulated byArticle6
(1)of the Convention, observed that ^ reasonableness ofthelengthofproceedingsmustbeassessedin eachcaseaccordingtotheparticularcircumstances,includingthe complexity of the case, the conduct of the applicants and the competent authorities, and what was at stake for the former; in addition, onlydelaysattributabletotheStatewererelevant.The 10 Courtpointed out inthefirstplacethattheConvention placeda dutyontheContractingStatestoorganizetheirlegalsystemssoas toallowtheCourtstocomplywiththerequirementsofArticle6
(1), includingthatoftrialwithina«reasonable time». Inthepresent case most ofthe numerous adjournments were 15 grantedoninsufficient grounds,ontheapplicationofoneorother ofthecounseloftheparties. The Courts should not allow themselves to be drawn in this undesirable situation by counselorlitigants.The function ofthe Court is not only of interest to a litigant or the advocate 20 representinghim;itisapublicfunction ofgeneralinterest.Judges are performing a public duty towards society, irrespective of whethertheyarecalledupontoadjudicate privaterightsbetween twomembersofthesociety. For the foregoing, this appeal is dismissed, but, in all the 25 circumstances,wemakenoordersastocosts. Appealdismissedwith noorderastocosts. 220