clr/1988/1988_1_673.pdf

(1)Section 28ofCap.274wasjudiciallyexaminedbythisCourtin the caseofNicolaides v. Yerolemi,

(1984)1C.L.R.742.Thesection does notpurporttoempower aDistrictCourt todeclare nullwithout any legal effect an adoption order or to order the annulment or avoidance of the order. 673 In re Demosthenous

(1988){2) Regulation 44 of the Adoption Rules introduces the Civil Procedure RulesincludingofcourseOrder64.However,whatcan be remedial under Order 64 of the Civil Procedure Rules is a procedural irregularity for non-compliance with the rules of Civil Procedure. Order 64 does not expand the substantive law and 5 consequentlyitdoesnotconferaremedywherenoneisgivenbythe law.

(3)The Adoption Law, Cap. 274, vests no such power in the DistrictCourtandnoneistobefound inanyotherenactment.

(4)Theproperprocedureincasessuchasthepresentispossiblyto 10 applyforanextensionoftimetofileanappeal. Appeal dismissed. No orderastocosts. Casesreferredto: Nicolaidesv.Yerolemi

(1984)1 C.L.R.

1. 15 Appeal. Appeal byapplicants againstthejudgment of the District Court of Nicosia (Michaelides, D.J.) dated the 29th September, 1987 (Adoption Appl. No. 9/79) whereby their application toset aside an adoption order was dismissed for lack ofjurisdiction. 20 L. Papaphilippou, forthe appellants. No appearance for the respondent. Y. Frangou (Mrs.), on behalf oftheAttorney-General asamicus curiae. Cur. adv.vult. 25 STYLIANIDESJ . : TheJudgment oftheCourtwillbe delivered by Mr.Justice A.KOURRIS. KOURRISJ.:Thisisanappealagainstthedecisionofajudgeof the District Court of Nicosia bywhichhedismissed an application filed bytheapplicant/appellant tosetaside an adoption order, on 30 the ground that he had nojurisdiction to entertain same. The facts leading tothe present appeal shortlyareas follows:Appellants filed an application on4.6.1979 inthe DistrictCourt of Nicosia for the adoption of a girlwho wasbom on 26.2.1970.· The application came before the District Court on 9.8.1979 and 35 674 1 C.L.R. Inre Demostfaenoos Koturis J. the Judge having been satisfied that all the prerequisites to the making of theadoption orderhavebeen satisfied and having also been satisfied that the adoption order was for the benefit and the welfare of the child he made the adoption order. 5 On 22.6.1982 anapplication wasfiled bythe appellantsfor the cancellation and/or annulment of the adoption order; this application was withdrawn and dismissed accordingly on 22.9.
2. Appellants on 15.9.1984 filed a fresh application through a 10 different counsel bywhich they prayed for:(a)Adeclaration thattheadoption orderdated 9.8.1979 isnull without anylegal effect; (b)Anorder oftheCourtordering theannulment or avoidance of the said order; and . 15 (c)Anyother order or remedy. The learned trial Judge in dealing with the application said as follows:- 20 25 «Thisapplication issupported byan affidavit composed of sixpagesand 22paragraphs.Thegistofwhatisstated therein isthat thegirlneverfeltatease with her adoptive parents and thatthewelfare officer whoprepared thesocialwelfare report. had noauthority todeal withtheapplication ashername was not among thelegallyauthorized officers under the Adoption Law.The welfare report isalsoattacked for being misleading and inadequate inmany respects.» Duringthe hearing oftheapplication and after thetestimonyof two witnesses the trial Court considered it"expedient to raise ex proprio motu the point of jurisdiction and the application was adjourned to enable counsel to address the Court on the matter 30 before proceeding further with the hearing. The trial Judge having considered the arguments of counsel concluded that he had no jurisdiction to entertain the application and held thathe had nopowerunderthe Adoption Lawto annul or declare void an order of this nature made by another judge of 35 theDistrict Court. Counsel for the appellants in arguing the appeal before us relied on section 28 of the Adoption Law, Cap. 274, Regulation 675 H o a r d s J. In re D e m o s t h e n o u s

(1988)44 of the Adoption Rules and Order 64 of the Civil Procedure Rules Section 28 of Cap 274 was judicially examined by thisCourtin the case of Lambros Nicolaides ν Manna Yerolemt

(1984)1 C.L R 742 Pikis J who delivered the judgment of the Court at 5 page 748 said as follows «The appellant largelyrested hiscase onSection 28 of Cap 274 The provisions of which we quote below 'Noadoption shall bevalidandhave anyeffect unless made in accordance with the provisions of the law ' *^ He construed the above provisions of the law as empowenng any court at any future date to enquire into the validity of the order and thatitwas open toa courtotherthan that issuing the order to enquire into the existence of the prerequisites for the making of the adoption order With 15 respect we disagree with the interpretation of section 28 favoured by counsel for theappellant. Toour comprehension what section 28 purported toaccomplish was tolay down that only adoption orders madeby a competentCourtunderCap 274 could be heeded inlaw Thelegislator did notaim,by the 20 enactment of section 28,to throw an adoption order made by a competent Court,as in thiscase, inthemelting pot of future litigation. Given our construction of section 28, the case for the appellant is considerably weakened » Thus itisapparent from theconstruction given toSection 28 of 25 Cap 274 thatadoption orders onlycouldbe madeby thisSection And itdoes notpurporttoempower a districtcourttodeclare null without any legal effect an adoption order or to order the annulment or avoidance of the order We agree with the tnal Judge that there is no provision in the 30 Adoption Law, Cap. 274 empowering it to annul an adoption order Therefore theappellants cannotavailthemselves of Section 28 of Cap 274 to move a distnct court for the annulment of an adoption order and consequently this ground fails. The second pointraised by learned counsel for theappellants is 35 that Order 64 of the Civil Procedure Rules enables the appellants to apply to the District Courttoset aside the adoption order His argument was to the effect that Regulation 44 of the Adoption 676 1 C.L.R. Inre D e m o s t h e n o u s Kourris J. Rules introduces the Civil Procedure Rules including of course Order 64. We are unable to agree with thissubmission of counsel for the appellants. What can be remedied under Order 64 of the Civil 5( Procedure Rules isa procedural irregularity for non-compliance with the rules of Civil Procedure. Order 64 does not expand the substantive law and consequently it does no confer a remedy where none isgivenbythe law. In this case we are concerned with the competence of the 10 District Court, ifany, to set aside an adoption order; in fact to set itaside yearsafter itsmaking.TheAdoption Law, Cap.274,vests nosuch powerinthe DistrictCourtand none istobe found inany other enactment. Thatbeingthe case Order64isirrelevantto the matter inissueand consequently inapplicable. 15 Wethink, and we leave the matter open, thatthe procedure to befollowed incasessuchasthepresent ispossiblytoapplyfor an extenstion of timetofilean appeal. In the circumstances the appeal isdismissed but with no order for costs. 20 Appeal dismissed. No order astocosts. 677