clr/1988/1988_1_257.pdf

(1988)oneversion ortheother».ThetrialCourtconcludedthat«theversion ofthedefendant ismore probable than thatoftheplaintiff». Thetrial Court didnot makeanyfindingsasregards credibility ofwitnesses. Held, allowing the appeal:-

(1)Evidently, the Courttooktheview that the evidence adduced wasuncertain and ofdoubtful value. 5 The statement as to the Court's duty in the face of uncertain evidence betraysa misconception. {2)The need to reason a judgment requires the Court to sum up (though nottorecapitulate)theevidenceanddeterminewhetherthe evidence adduced isacceptable and to what extent. The analysis of 10 the evidence must be accompanied by concrete findings of fact, an indispensable prerequisite forthe determination ofthecase. The omission on the partofthe Courttomakefindingsrelevant to the credibility ofwitnessesisfatal forthe deliberations ofthe Court.

(3)Another defect of theJudgment appealed from isthatthe trial 15 Court confused the issue of credibility with that of the standard of proof necessary tosubstantiate the cause litigated bytheaction. Itis obvious from the tenor of thejudgment that the trial court decided the credibility of witneses by reference to the standard of proof, a separate and distinct issue. In the absence of findings on the 20 credibility of witnesses, it was impossible for the Court to ponder theirevidence anddecided onabalanceofprobabilitieswhetherthe plaintiff withregardtotheclaimandthedefendant withregardtothe counterclaim,discharged theburden separately caston them.

(4)Adverse possession should be proved by positive evidence. 25 Consolidation ofseparate actionsorhearingtogetherofaclaim and counterclaim are procedural expedients designed to avoid multiplicity of proceedings. Theconjunction doesnot fuse separate actionsintoone nordoes itobliteratetheseparatenessofthe actions or the distinct burden cast on either party. In this case the Court 3 0 examined the evidence adduced on behalf of the defendant with a view to determining the claim.Theyomitted toponder the separate issue of deciding whether the defendant discharged the burden cast on himtoestablish bypositiveevidencethecounterclaim.Thisisyet another serious flaw of the judgment advocated by counsel for the 3 5 appellant. Appeal allowed with costs. Retrialordered* Cases referred to: Psarasand Another v.Republic

(1987)2C.L.R. 132; Stokkas v.Solomi, 21C.L.R.209; 258 w 40 1 C.L.R. Agaplou v. Panayiotou Arnaoutv. Zinouri, 19C.L.R.249; PioneerCandyLtd. v.TryfonandSons

(1981)1 C.L.R.540; loannidouv. Dikeos

(1969)1 C.L.R.235; 5 Christou andAnotherv.Angelidou andAnother

(1984)1 C.L.R. 492; Neophytouv. Police

(1981)2C.L.R.195; ParmaxiandAnotherv. Katsiola

(1985)1 C.L.R.633; Kadesv. NicolaouandAnother

(1986)1 C.L.R.212; Charalambousv. Republic

(1985)2C.L.R.

1. 10 Appeal. Appeal by plaintiff against thejudgment of the DistrictCourt of Limassol (Hadjitsangaris, P.D.C. and Artemis, S.D.J.) dated the 28th February, 1985 (Action No. 1075/70) whereby it was decided that PlotNo.32/1/6 ofSh/Plan 54/49atAyiaPhylaisthe 15 property of the defendant b y undisputed and uninterrupted adverse possession. Chr. Triantafyllides, for the appellant. E.Theodoulou, forthe respondent. Cur. adv. vult. 20 MALACHTOS J.: Thejudgment of the Court willbe delivered byPikisJ. PIKISJ.: Itiswith trepidation we reflect on the delay in hearing and disposing ofthiscase.Theaction wasinstituted on 16thApril, 1970, whereas judgment was given on 28th February,
2. 25 Therewerenumerousadjournments forsomeofwhichtheparties mustbeartheblame.Theonlyconsolation wecan drawisthatthe case was speedily heard when the appeal came up for hearing. The hearing of the appeal was concluded on 28th March,
3. Justice delayed isjustice denied. Thisaphorism must be in the 30 forefront of judicial thought and action. In no circumstances should courts of law countenance delays of this magnitude. The determination of judicial causes within a reasonable time is constitutionally safeguarded in Cyprus by article 30.2 of the Constitution. Therighttohave ajudicialcause determined within 35 a reasonable time is entrenched as a fundamental right with a corresponding duty caston theJudiciary toensure observance of 259 PiklsJ.

(1988)Agapiou v. Panaytotou thatright*.For our part we have done our best to prepare and deliverthisjudgmentasearlyaspossible. CostasEpaminondasandAnnetteMessaritou,neePanayiotou, feuded overaplotoflandof2donumsand2evlekssituateatAyia Phyla. Both claimed ownership of the land byvirtue of adverse 5 personalpossessionorpossessionbytheirpredecessors.Theland wasunregistered, asthepartiesacknowledgedbefore theDistrict Court,ofthe«arazimirie»category.Adversepossessionallegedly commenced prior to the enactment of the Immovable Property (Tenure, Registration and Valuation) Law, 1946, Cap. 224; 10 consequently, theland wassubject totherulesofprescriptionin force priorto1946,namelytenyears.Thepointwassettledsoon after the enactment of the lawin ChristosHadjiLoiziStokkasv. Christina Argyrou Solomi**. Failure to seek registration immediatelyafter thecompletion oftherequisiteperioddoesnot 15 estop the possessor or hissuccessors from applying tohave the propertyregistered intheirnameatanysubsequenttime***. Meantime,CostasEpaminondaspassedaway.Theclaimforthe registration of the property wastaken up bythe executor of the estate. By the action the executor sought a declaration for the registration ofthepropertyinthenameoftheestateandanorder restrainingthedefendant, hisservantsoragents,from trespassing upon the land. The defendant denied the claimand asserted by counterclaim a prescriptive right to the property and sought a 25 declarationfortheregistrationofthepropertyinhername,aswell as an injunction restraining the plaintiff, his servants or agents, from encroaching upon her land. The nexus between the facts founding theclaim and counterclaim made inevitable thetrialof thetwoactionstogether.Fivewitnesstestifiedfortheplaintiff and 30 sixforthedefendant insupportoftherivalclaimstoownershipof the property. Initsjudgment theCourtdirecteditself firstly ontheburdenof proof cast on a party seeking a prescriptive right. Adverse possession, it was correctly pointed out, must be proved by 35 positive evidence of acts of ownership such asthe nature of the 'PsarasandAnotherv. Republic

(1987)2C.L.R.

1. "21C.L.R.
2. ***(Amaoutv. Zinoun, 19C.LR.249). •2»\* y-i 20 1 C.L.R. Agaplouv.Panayiotoa PiUsJ. landadmits.Theburdenofproofremainsthroughoutontheparty asserting ownership. No complaint is made with regard to the direction affecting the burden of proof and the quality of the evidence necessary toestablish ownership by prescription. 5 The second task to which the Court adverted was the identification of the issues in dispute. No complaint ismade with regard tothisaspect of thejudgment either. The complaints that founded the appeal centre on the analysis made of the evidence, allegedlyinadequate, thefindingsand the 10 deliberationsoftheCourtaffecting thedischarge ofthe respective burdencast on the twoparties. The trial Court concluded that having sifted the evidence « the certainty of the events contained in each version leaves quite a lot to be desired». We cannot but infer that at that stage of the 15 case, reference to the version of the parties was meant to depict the appreciation of the Court of the quality of the evidence adduced in support of the case for the plaintiff and that for the defendant. Evidently, the Court took the view that the evidence adduced wasuncertain and of doubtful value. 20 Nevertheless, the Court proceeded with the following statement concerning itsduty in the circumstances: «However, it was our duty to decide, as we have said, with preponderance of theevidence,onone version ortheother«-astatement betraying an evident misconception of the duty of the Court in the face of 25 uncertain evidence.Seemingly,theCourtconsidered ititsdutyto decide the case one way or the other, notwithstanding the unsatisfactoriness of the evidence. And so they did as it emerges from the immediately succeeding passage inthejudgment of the Court, «After careful consideration of the two versions, we have 30 reached the conclusion that the version of the defendant is more probable than that of the plaintiff»; the unavoidable inference is that they decided the case on the basis of the least unsatisfactory evidence after ponderation of the degree of unsatisfactoriness of the case of each party. 35 • .i\ Counsel for the appellant submitted that the judgment of the trial Court is not only defective for misdirection but self contradictorytoo,inviewofthedirection madeattheoutsetofthe l <„r 261 - •'; - '*;;, ^ ' ;, \l Pikisj. Agaplou v. Panayiotou

(1988)judgment that the evidence necessary to establish a claim to ownership through a prescriptive right must be positive. Counsel for the respondents conceded thatthejudgment of thetrialCourt is fraught with misdirection,inthatthe Courtdid notsteer clearof the pitfall of confusing issuesaffecting credibility on the one hand 5 and, the standard of proof, on theother. Nonetheless, he invited us to support the verdict of the Court warranted by the evidence before it particularly, on a comparison of the quality of the evidence of witnesses for the defendant and that of witnesses for the plaintiff The Court made scanty reference tothe evidence of 10 individual witnesses, though nottoallof them,mostly confined to identifying specific weaknesses intheirtestimony. At no stage did they make findings of fact or indicate thetestimony acceptable to the Court as creditworthy. Moreover, they examined and evaluated the evidence for the defendant in the context of the 15 defence to the case for the plaintiff. At no stage did the Court advert to the testimony for the defendant in order to decide whether itprovided thesolid foundation necessary for theproofof a prescriptive right, The need to reason a judgment requires the Court to sum up (though not to recapitulate) the evidence and 20 determine whether the evidence adduced is acceptable and to what extent. The case of Pioneer Candy Ltd. v. Tryfon & Sons* itemises theform thatthereasoning of theCourtmusttake**.The analysis of the evidence must be accompanied by concrete findings of fact, an indispensable prerequisite for the 25 determination of the case. In a subsequent case, Neophytou ν Police*** it was pointed out that observance of the minimum requirementsfor thereasoning ofajudgment indicatedinPioneer, supra, is a fundamental attribute of the due administration of justice. The omission on the part of the Court to make findings 30 relevant to the credibility of witnesses isfatal for the deliberations of theCourt****. Thedutytoreason ajudgment isnot discharged by merely recounting the conflicting versions or commenting upon them*****. The failure of the trial Court to make findings respecting the credibility of thewitnesses made thedetermination 35 of the case vulnerable tobe set aside for lack of due reasoning. •

(1981)1C LR 540 "(See, also,Theodoraloannidou ν ChanlaosDtkeos

(1969)1CLR 235) ***

(1981)2CLR 195 ·*·* (See, Chnstou end Another ν Angehdou andAnother

(1984)1CLR 492) *"" (See,Paimaxi andAnother ν Katstola

(1985)1C LR 633,647) 262 1 C.L.R. Agapiou v. Panaylotou PikisJ. Another defect in the judgment of the trial Court, no less consequentialfortheoutcomeofthecase,derivesfromthefailure oftheCourttoexaminetheevidenceandmakefindings affecting thecredibilityofwitnessesinaproperperspective.Theyconfused 5 theissueofcredibilitywiththatofthestandard ofproof necessary tosubstantiatethecauselitigatedbytheaction.Itisobviousfrom the tenor of the judgment that they decided the credibility of witnesses by reference to the standard of proof, a separate and distinct issue.Aquestion of discharge of theburden cast on the 10 party affirming a cause of action can only arise in the face of credible evidence. In the absence of evidence to support it, the vacuumremainswhollyungauged andtheplaintiff isinnobetter position than hewaswhen hestarted theaction.Asexplainedin Kadesv.NicolaouandAnother*«adjudication onthecredibilityof 15 witnesses is a matter wholly separate arid distinct from the balancing of the evidence in order to ascertain on which sideit preponderates.Iftheevidenceofawitnessisrejectedasunworthy of credit, there isnothingtoweigh thereafter. The rules defining theburden of proof andthecircumstances ofitsdischarge,have 20 nothing to do with the credibility of witnesses. Awitness may eitherbebelieved ordisbelieved (whollyorinpart)accordingto theviewtakenofhiscredibilitybytheCourt».Asimilarwarningto guardagainstthelikelihoodofblurringtheissuesofcredibilityand thestandardofproofwasgiveninCharaiambousv.Republic**.It 25 wasobserved:«Thecredibilityofwitnessesisalwaysaquestionof fact for the fact-finding body» Inthiscase the Court determined the issue of discharge of the burden cast on the parties without making the necessary findings respecting the credibility of witnesses.Towhat extent the evidence of the several witnesses 30 whotestified before the Court wasaccepted ascreditworthy,we arewhollyinthedark.Whatweknowofarecriticismsmadebythe Court of the evidence of particular witnesses and the general reservationoftheCourtwithregardtothecumulativeeffectofthe testimony of the witnesses as a whole;testimony of a kind that 35 leaves «a lot to be desired». In the absence offindingson the credibilityofwitnesses,itwasimpossiblefortheCourttoponder their evidence and decide on a balance ofprobabilitieswhether theplaintiff withregardtotheclaimandthedefendantwithregard to the counterclaim, discharged the burden separately cast on 40 them. *

(1986)lC.L.R.212at

1. *'{1985)2C.L.R.97atl
2. 263 PilrieJ. Agaplou v.Panaylotou

(1988)Theconsolidationofthehearingofseparateactionsthatmaybe directed under Ord.14 of the Civil Procedure Rules and the hearing together of a claim and counterclaim that may be sanctionedunderOrd.33,r.9,areproceduralexpedientsdesigned to avoid multiplicity of proceedings and thereby savetimeand 5 costs.Theconjunction doesnotfuseseparateactionsintoonenor does it obliterate the separateness of the actions or the distinct burdencastoneitherparty.Inthiscase,whathappened,isthatthe Courtexaminedtheevidenceadducedonbehalfofthedefendant with a view to determining the claim. They omitted to address 10 themselves to the separate issue of deciding whether the defendant discharged the burden cast on him to establish by positive evidence the counterclaim. This is yet another serious flaw ofthejudgment advocatedbycounselfortheappellant. Regrettableasitiswehavenoalternativebuttoorderaretrial 15 oftheclaimandcounterclaim.Intheabsenceoffindings affecting the credibility of witnesses, weare wholly unable toponder the evidence ordrawanyinferences therefrom. Wesay«regrettable» because an action instituted in 1970willbe litigated eighteen or moreyearslater. Inthe resulttheappeal isallowed withcosts.Thejudgmentof the Courtissetasideandaretrialisordered. Appealallowed. Retrialordered. 264 20