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(1988)1988April6 (A.LOIZOU,P.,LOR1S,STYUANIDES,JJ.) THELMATRIFONIDES, Appellant-Defendant, v. ALPAN(TAKIBROS)LIMITEDANDANOTHER, Respondents-Plaintiffs. (CivilAppeal No. 6937). Equity —Maxims of equity —Equity does not actinvain—A decree of specific performance ofacontractoflease willnot be grantedafter expiration of the term of the lease, even if the term had not been expired atthe time ofthe filingofthe wnt of summons. Contracts—Specific performance of contractoflease —See Equity — Maxims of equity. 5 Appeal —Evidence —Freshevidence —Principlesapplicable. Appeal —Powers of Court ofAppeal — The Civil Procedure Rules, O. 35, r.
  1. On 21.4.81 the litigantsentered intoa contract oflease inrespect 10 ofashopinLimassol.Atthattimetheshopwasoccupiedbystatutory tenants.Theleasewastocommence on 1.7.81,providedthatifsuch tenants failed to vacate theshop by thatday, the lease would begin on 1.9.
  2. The period of the lease was for 5 years, ending on 30.6.
  3. The respondents (lesseesunderthelease)had an option tocallfor the renewal of the lease fora further period for 5yearsupon certain terms and conditions relating to rent. The option should have been exercised atleastthree monthsbefore the expiration of the lease. The statutory tenants who were in ocupation of the shop at the 2 0 timeofthe contract ofleasefailed tovacatethepremisesinquestion. Infact they vacated the premises on 1.3.
  4. On 28.4.84 the respondents instituted proceedings against the appellant for specific performance of the contract of lease and for damages in lieu orinaddition tospecific performance. 2l> 224 15 1CLR. 5 Trifooldeav.Alpan(TaU Βίο*) The trialCourt, having found thatthecontractof lease hadneither been abandoned by the lessees (as alleged by the lessor) nor frustrated, granted a decree of specific performance infavour of the respondents. Thetrial Courtfurther held thattherespondents failed toprove damages. This is an appeal by the lessor. As the decree for specific performance was stayed the respondents did nottake possession of theshop. 10 ThisCourt,having unanimously held thatthetrialcourtdid noterr in finding that the contract of lease was neither abandoned nor frustrated, Heldfurther, allowing theappeal,A. Loizou,P. dissenting: 15 20 25 30
(1)Noevidence was adducedas regards theexercise of the option forrenewing thelease forafurtherperiodof5years. Iftheoption was exercised, then, with reasonable diligence and in the light of the principles governing reception of fresh evidence (See Tryfonides v. Alpan (TakiBros.)Ltd. and Others
(1987)1C.L.R.479),evidenceof thiscould have been adduced before thisCourt.
(2)Specific performance is an equitable remedy. Equity does not act in vain and there is ample authority that no decree for.specific performance willbe madewhere theagreed termhas expired orwill expire before a decree canbe obtained'.
(3)Inthelightof theauthorities.'specific performance ofacontract .oflease willnotbeorderedbyaCourtafter theexpirationoftheterm, even ifitwas capable of being specifically executed atthetimeofthe filing of the action, irrespective of whether there is delay in the prosecution of thejudicial proceedings.
(4)Γηthe circumstances the only remedy of the respondents for the period up to30th June, 1986, is in damages. This issue willbe dealt with intheAppeal filed by therespondents tothisappeal. * . . . -, Appeal allowed. No orderas to costs. : Casesreferred to: Trifonides v. Alpan (TakiBros.)Ltd.and Others
(1987)1C.L.R. 479; 225 Trifonldec v.Alpan (Taki Bros)
(1988)Nesbittv. Meyer, 36 E.R.366; Waltersv. NorthernCoalMiningCo,43E.R.1015; Wilkinsonv. Torkington, 160E.R.586; DeBrassacv. Martyn [1863]9L.T.
  1. Appeal. 5 Appeal by defendant against thejudgment of the DistrictCourt of Limassol (Hadjitsangaris, P.D.C.andArtemis, S.D.J.) datedthe 29th April, 1985 (Action No. 1064/84) whereby defendant was ordered to deliver to the plaintiff immediately a shop at Makarios Avenue, Limassol. 10 G.Cacoyannis, for the appellant. K.Michaelides, for the respondent. Cur.adv. vult. A. LOIZOU, P.:Thejudgment of the Courtwillbe delivered by His Honour Stylianides, J.: *5 STYLIANIDES,J.:Thisappealisdirectedagainst aJudgmentof the District Court of Limassol, whereby specific performance, requiring the defendant-appellant to deliver thesubject premises -shop atMakariosAvenue -totheplaintiffs immediately tooccupy it,pursuant tothe terms of a Contractof Lease, was ordered. 20 The appellant is the owner of ashop atMakarios Avenue 116, Limassol, which atthe material timewas under the occupationof a statutorytenant. On 21st April, 1981, the litigants entered into a Contract of Lease-Exhibit
  2. The period of the lease was for five years, commencing on 1st July, 1981 and ending on 30th June,
  3. Clause3(ζ)provided thatincase thepresenttenantsof the shop do notvacate iton the date of thecommencementof the present 226 25 1CUR. Trilonldeav. Alpan (TaldBros) Stflanldea J. tenancy and the delay in the delivery of possession of the said shop tothelesseesdoes notexceedtwo monthsfrom thedateof the commencement of this lease, then the lessees willhave no claimfrom landlord andthecommencementofthetenancywillbe 5 postponed to 1stSeptember,
  4. In 3
(9), however, it is clearly stated that the tenancy ends on 30thJune, 1986. Intheclause for theduration ofthetenancy itis written:- 15 «... του Ενοικιαστούέχοντος το εκλογικόν δικαίωμα να προβήεις ανανέωσιντης ενοικιάσεως δΓάλλαπέντε
(5)έτηεάντοενοίκιοντοοποίονθα καταβάληδιάτορηθέν κατάστημα θα είναι το ενοίκιον το οποίον θα καταβάλλεταιδιόπαρόμοια καταστήματα επίτηςιδίας περιοχής τα οποία θα προσφέρονται προς ενοικίασιν κατάτον Ιούνιον1986.» 20 «... the tenant having the option to renew the lease for a further period of five
(5)years, provided the rent, which he shall pay for the saidshop, shallbe equal totherent, which willbe payable for similar shops in the same area, offered to be letduring June,1986». 10 And paragraph 3(θ)reads:- 25 30 «θ) Τρεις μήνας προ της λήξεως της παρούσης ενοικιάσεως ο ενοικιαστής υποχρεούται να ειδοποίηση την ιδιοκτήτριαγραπτώς εάν θα ασκήση το δικαίωμα της ανανεώσεως της ενοικιάσεως με τους ως άνω αναφερομένους όρους περί ενοικίου. ...» «(i) Three months before expiration of the present lease the tenantmustnotify theowners inwriting, ifhewillexercisethe optiontorenew theleaseinaccordance with thesaidtermsin respect of rent ». In the course of the hearing of this appeal, counsel for the respondents -lessees stated thatreference to the rents of similar shops in the same area was to rents in the free market and not controlled premises. 227 Styttanldes J. Trifonlde» v. Alpan (TakiBros)
(1998)The statutory tenantsdid notvacate the premises and on4th July, 1981, therespondents sent letter - Exhibit 2,which thetrial Court,rightly,consideredasprematureinviewoftheprovisionsof paragraph 3(ζ)of thecontract. The appellant filed before the RentControlCourtApplication No. 157/81, seeking order of ejectment against the statutory tenants. (See Exhibit6). 5 Inthemeantime,LawsNo.28/82,41/82and69/82,prohibited the issueof, andtheenforcement of, any orderof eviction; finally the RentControlLaw, 1983 (LawNo.23/83)cameintoforce on 10 22nd April,
  1. Itwas theversion oftheappellantthatasfrom August 1981the respondents did notcommunicatewith her, orwith her husband -agent,until30thDecember, 1983,whentheysenttoheraletter. They did let anothershop on thesame avenue, near the subject 15 shop,where they housed theirbusiness in Limassol. P.W.I - Managing Director of the respondents companies testified that he had some telephone communications with appellant' s husband, and the trial Courtaccepted thatcontacts were made,duringtheperiod thatfollowed,between theparties, 20 which were not frequent after the summer of thatyear 1981.It, further, accepted thatthere was no reason for more contacts,as they knew thatthe premises werestill occupied by the statutory tenants. Those tenants started making arrangements to vacate the 25 premises, which they ultimatelydidon 1stMarch,
  2. On 30th December, 1983, letter -Exhibit 3, was sent to the appellant,which reads:«Irefer to my letter dated4/7/1981and I request to have youranswer theshortestpossible.» Consequently to this letter, the appellant and her husband arranged a meeting with the respondents at their offices in Nicosia.Thereweretwo conflicting versions ofwhattranspiredat that short meeting. The trial Courtfound thatP.W.I wanted the letting of the premises to start from the date of delivery of 35 possession and not from 1st September, 1981; and that he was rude to the appellant and her husband, something which finally led them to leave and resort to their lawyer. Thereafter, letter- 228 30 1CUB. Trifonldeev.Alpan(TakiBros) StyUanlrfe*J. Exhibit5-wassent.ThetrialCourtfound, further, thattheattitude of P.W.I wasnot such astoshow that he considered the contract of lease atan end.Theyinterpreted hisconduct asawishto force theothersidetosignanewleasetohisbenefit, whichshould start 5 from the date of delivery of vacant possession; the trial Judges further said in their Judgment that P.W.I erred in the interpretation of the lease itself as to the time of commencement of the lease, but his conduct did not actually lead the defendant and her husband to believe that he considered the contract at an 10 end. On 28th February, 1984, this action was filed, whereby the plaintiffs claimed:(A)Declaration that the contract of lease of 21st April, 1981,is validand enforceable. 15 (B)Orderfor specific performance of thesaid contract. (C) £3,000 - per month as from 1st September, 1981 for ten years damages for breach of the said contract in lieu of and/or in addition tospecific performance. The defendant-appellant desisted and denied the claim and 20 contended, inter alia, that the contract was not valid for uncertainty, it was abandoned, it was frustrated. The plaintiffs were not entitled to the remedy of specific performance and that theysuffered no damages atall. The trial Court found that the contract was not abandoned, 25 relyingon the facts towhich reference wehave made earlier; that the contract was not a contingent one, on the vacation of the premises by the aforementioned tenants. And that the period started definitely on 1st July, 1981, and ended on 30th June, 1986; thatthe contract was not frustrated; the time wasnot of the 30 essenceofthecontractandthedateofbreachwas 1stSeptember,
  3. Havingdealt withthequestion of damages,itfound that no damages were proved, because the claim for damages was not substantiated by the evidence adduced, and, finally, it ordered specific performance as aforesaid. 35 Itisto be noted that as itemerges from thefile,a Judge of the District Court of Limassol granted stay of execution of the Order forspecificperformance andtheplaintiffs-respondents have never taken possession of the shop. 229 StyUanldes J. Trifonldes v.Alpan (Tald Bros) (19S8) The trialCourt had before it,and we have before us,a contract of definite duration -five years-ending on 30th June, 1986.This partofthecontractisneitheruncertain,norsuffers from any defect in law. Withregardtotherightofoption fortheperiodafter 30thJune, 1986, weshall revert later on. 5 We gave due consideration to the argument for abandonment and wehavenotbeen persuaded thatthecontractwasabandoned by the respondents. Abandonment is a question of fact to be found, either from the primary facts, or from inferences drawn 10 from such facts. Withregard tofrustration, asnothing intervened, havingregard totheprinciplesgoverningfrustration ofcontractsofthisnature,as pronounced inthevariouscases,thiscontract was not frustrated. Itisplainthatthespecificperformance ordered bythetrialCourt 15 was for the unexpired period up to 30th June,
  4. This was a contract of lease for a period overayear, which under section 77 of the Contract Law,Cap. 149,to bevalidand enforceable, ithas to be in writing, signed at the end thereof by the party to be chargedinthepresenceofatleasttwowitnessesatthesame time. 20 There was no allegation inthepleadings, oratany stage of the proceedings of variation of anyterm of the contract. There was no evidence before the trial Court that the right of option was exercised. Itwas certainly premature at that stage. In the Judgment -p. 78 of the record -we read:25 «Oneshould notlosesightofthefact oftheoptionavailableto the Plaintiffs, which, ifexercised, would stillgivethem a very substantial term for occupation of thisshop.» An appeal is governed by section 25 of the Courts of Justice Law, 1960 (Law No. 14/60) and by Order 35 of the Civil 30 Procedure Rules. An appeal shall be by way of rehearing. Rule 3 of Order 35 is almost identical to Rule 1 of Order 58 of the Rules of Court in operation in England before
  5. The material part of Rule 8of Order35 reads:«...The Court of Appeal shall have power to draw inferences of fact and to give anyjudgment and make any order which 230 35 1 C.L.R. Trifonldee v.Alpan (TaldBros) StyDanWee J . ought to have been made, and tomake such further or other order asthecase may require.» IntheAnnual Practice of 1949we read atp. 1335:5 «An appeal to the C.A. isby way of rehearing (r.l) and the court may therefore make such order as a judge of first instance could have made ifthe case had been heard before him on the date on which the appeal was heard.» Further, evidence maybeadmittedbytheCourtofAppeal.The matterisgoverned byrule8ofOrder35, whichisalmost identical 10 tothe old English Rules,Order 58, rule
  6. Evidence which is relevant to the issues before the Court and which could not, with reasonable diligence, be traced and produced, may be heard bythe Courtof Appeal. Tojustify thereception offresh evidence,threeconditionsmust 15 be fulfilled: First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at a trial; second,theevidencemustbesuchthat,ifgiven,itwould probably have an important influence on the result of the case; third, the evidencemustbesuchasispresumablytobebelieved,i.e.,it rimst 20 be apparently credible - (Thelma Trifonides, v.Alpan (TakiBros) Limited and Others,Decisiondeliveredon24thNovember, 1987, notyetreported)*. No evidence wasadduced before us,though thehearing of the appeal started very recently, long after 30th June, 1986,that the 25 option envisaged in the contract was exercised. Therefore, it is unnecessary to deal with the rival arguments advanced on the validity and enforceability of thissecond part of the contract, the period which followed the expiration of the five years - fixed duration of the contract. 30 Theclaimwasfor specific.performance and/orfor damages for ten years. If the option was exercised, then, with reasonable diligence, evidence of this could have been adduced before this Court. Specific performance isan'equitable remedy. Equity does not 35 act invain and there isampleauthority thatno decree for specific *Reported in
(1987)1C.L.R.
  1. 231 StyUanides
  2. Trifonidesv.Alpan<T«UBros)
(1988)performance willbe made wheretheagreedtermhasexpiredor willexpirebefore adecreecanbeobtained. Ifacontract, capable ofbeingspecifically executed atthetime oftheissuingofthewrit,hasbylapseoftimebetweenthatandthe trialbecomeincapableofexecutionintheordinaryway,soasto 5 confer future benefit, thequestionarises,whatcourseoughttobe pursued. InNesbittv.Meyer,E.R.36,p.366,whereabillwasfiledbefore thetermexpired,foraspecificperformanceofacontracttoaccept a lease,but, without fault on eitherside,theterm expiredbefore 10 thehearing,PlumerM.R.saidthattheCourtwouldnotdecreethe execution of aformal lease after theexpiration oftheterm.(See, also, Walters v. Northern CoalMiningCo., E.R. 43, p. 1015; Wilkinsonv. Torkington,E.R. 160 p. 586 and De Brassac v. Martyn[1863] 9 L.T. 287. See Woodfall Landlord and Tenant, 15 paragraph 1-0361andFryonSpecificPerformance, 6thedition pp. 432-434.) In view of the aforesaid authorities, the Law is settled that specific performance ofacontractofleasewillnotbeorderedby a Court after the expiration oftheterm,even ifitwascapable of 20 being specifically executed atthetimeof thefilingof the action, irrespective of whether there isdelay in the prosecution of the judicial proceedings. It is impossible for a plaintiff to obtain an orderforspecific performance whenthetermofthecontracthas come to an end. This isbroadly speaking an application of the 25 maxim«equitydoesnotactinvain». Therefore, havingregard tothecircumstancesofthiscase,that on the material before thisCourt theperiod of lease expired on 30thJune,1986,andthisappealisdeterminedtoday,thoughwith somedelay,specificperformancecannotbegrantedandtheorder 30 ofspecific performance cannotbeenforced.Thecontractcannot bevariedormodified bytheCourt.Thedatescannotbechanged or moved onwardsand theorderfor specific performance isnot permissibleunderthecircumstances. Inthecircumstancestheonlyremedyoftherespondentsforthe 35 period up to 30th June, 1986, is in damages. They adduced evidence for which the trial Court pronounced until the dateof theirjudgment,butthereisevidenceonwhichwecouldourselves pronounce. 232 1CJ-B. Trifonidesv.Alpan(TaUBros) StvfianidesJ. In view, however, of Civil Appeal 6955, taken by the respondents inthisappealagainstthepartoftheJudgment of the Trial Court, whereby their claim for damages was dismissed, we considerthatitisconvenient andproperthattheissueof damages 5 be determined bythe Bench, which willhear that appeal. For the foregoing, the Order for Specific Performance is set aside. In the circumstances, there will be no order as to costs, either before the DistrictCourt orbefore this Court. 10 LORISJ.: Ihadtheopportunitytostudyand discussthe matter. Iagree with what was said by my brother Mr.Justice StyUanides and I have nothing further to add. A.LOIZOUP.:Ineed notdelvewithmostaspectsofthecase as the judgment just delivered by His Honour StyUanides, J., with 15 whichHisHonourLorisJ.,agrees,answersmostofthegroundsof appeal and I find myself in agreement with the approach to the extentonlythatthere hasbeen neithera frustration ofthe contract oflease,thesubjectoftheseproceedings,noranabandonmentby the tenants. Icannot, however, agree with the approach of my 20 Brethren regarding the issue relating to the remedy of specific performance granted bythe trial Court. Ihold theviewthaton appeal Ihad to examine the correctness ofthe approach ofthe trialCourt ingranting thisremedy asat the time itdid grant itand not as at to-day. Iwould therefore dismiss 25 theappeal,asIfindnoreasontointerfere withthejudgmentofthe trialCourton any ground. COURT: In the result the appeal is allowed by majority as regardstheorderofspecific performance withnoorderastocosts here and inthe Court below. 30 Appeal allowed by majority. No orderasto costs. 233

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