(1988)1988Februaiy5 (TRIANTAFYLLIDES,P.,LORIS,STYL1AN1DES,JJ.] DEMECOCOMPANYLIMITED, Appellants-Defendan ts. v. BECKHOFFGASELLCHAFTMBH, Respondents - Plaintiffs. (CivilAppeal No. 7198). Evidence —Documents produced as exhibits by consent — Record shows thatthey wereput inasevidence and not foridentification. Sale of goods — F.O.B. contract— Seller's obligations thereunder — When theproperty inthegoods passes tothebuyer— When the risk passes to the buyer. 5 CivilProcedure —Pleadings —Purpose of— A caseshould be decided on itspleaded facts. The judgment appealed from adjudged the appellants (defendants) to pay £4,412.51 for the price of goods sold and delivered to them bytheplaintiffs. 10 No oral evidence was adduced and the trial Court relied on admissionsinthepleadingsandtwobundlesofdocuments produced bycounsel for the parties. The grounds on which this appeal was argued were: (a) The aforesaid documents were not evidence asthey were put in for the 15 limited purpose of identification, (b) The trial Court erroneously considered para. 3 ofthe defence asan admission ofthe contractof sale, (c) The goods were not delivered and ownership in them was nottransferred tothedefendants, and (d)The plaintiffs accepted the return of the goods and therefore released the plaintiffs. 20 Held, dismissingthe appeal:
(1)Theproduction ofadocument for the limited purpose of identification does not make itevidence. The recordofthetrialCourtleavesnoroom fordoubtthatthedocuments in this case were formally put in evidence and the contents thereof were evidence before the trialCourt. 82 25 I C.L.R. DemecoCo.v.Bedthoff
(2)The pleadings in conjunction with the documents adduced made itclear that there wasa contract for the sale of thegoods. 5 10
(3)Such contract was a F.O.B. contract. The seller's contractual dutywasto deliver the goods on board shipat hisown expense for carriage to the buyer. There were no terms in the contract of the litigantsdisplacingthepresumption thattheseller'sdutyistogiveup possessionofthegoodstotheshipuponthetermsofreasonable and ordinary Bill of Lading and that the property passes to the buyer upon shipment.
(4)Nofactsareset out inthepleadingofthe appellants-defendants, from whichthequestionraisedbyground(d)couldbedeterminedby the trial Court. A Court of Law has to confine itself to the issues as appearing at the close of the pleadings or properly added toatthe date of the hearing. 15 Appeal dismissed. No orderasto costs. Casesreferredto: Galip v.Suleyman
(1963)2 C.L.R. 129; Stock v.Inglis [1884] 12Q.B.D.564; 20 CarlosFederspiel and Co. S.A. v. Charles Twing and Co. Ltd. [1957] 1Lloyd'sReport 240; lordanou v.Anynos (1959-1960) 24 C.L.R. 97; Loucaidesv. CD. Hayand Sons Ltd.
(1971)1C.L.R. 134; HjiPavlouv.Jinaro Terra
(1982)1C.L.R. 433; 25 Courtisand Othersv.lasonides
(1970)1C.L.R. 180; Mahattou v. ViceroyShipping Co. Ltd.andAnother
(1979)1C.L.R. 542; FederatedAgencies v. Tsikkos
(1979)1C.L.R. 134. Appeal. 30 Appeal by defendants against thejudgment of the District Court of Nicosia (Demetriou, Ag. P.D.C.) dated the 30th April, 1986 (Action No. 2569/84) whereby they were adjudged to pay to the plaintiffs the sum of£4,412.51 cent for the price of goods sold and delivered to them by the plaintiffs. 83 DemecoCo.v.Beckbofl
(1988)G.Papatheodorou, forthe appellants. R. Stavrakis, for the respondents. Cur.adv. wit. TRIANTAFYLLIDES P.: The Judgment of the Court will be delivered byMr.Justice Stylianides. 5 STYLIANIDES J.: This isan appeal by the defendants against the Judgment of the District Court of Nicosia, whereby the defendants were ordered and adjudged topaytotheplaintiffs the sumof£4,412.51withinterestthereon at6% perannum from 30/ 4/86 to dateof payment, forthepriceofgoodssold and delivered 10 bythe plaintiffs to the defendants. The plaintiffs, a West German company, ismanufacturing and dealing in aluminium products. The defendants are a company registered in Cyprus, carrying onbusinessofimport,export,manufacture andsaleofaluminium. 15 Theplaintiffs bythisaction claimed C£4,412.51,the equivalent of 21,008.25 German marks, being the price of a quantity of aluminium shutter profiles sold by them and delivered to the defendants under a F.O.B. contract. No oral evidence was adduced and the trial Court relied on 20 admissions in the pleadings and two bundles of documents produced by counsel for the parties. The grounds on which thisappeal wasargued are:(
- a)That the trial Court erroneously used and relied on the documents produced on24/10/85, asallegedlythese documents 25 were not evidence as they were produced for a limited purpose only. (b)ThatthetrialCourterroneously considered theallegationsin paragraph 3 of the statement of defence as an admission of the contract of sale. 30 (
- c)That the goods were not delivered and ownership was not transferred to.the defendants. (d)Thattheplaintiffsbyenteringintoanewagreementtoaccept the return tothem ofthe subject goodsreleasedthedefendantsof their obligation to paythe pricethereof. 84 ^ 1CL.R. DemecoCo.v.Beckbofl StytianideeJ. In connection with the first ground, it is well settled that the contents of a document, as in this case, isprimary evidence; the documents have tobe produced as evidence. Order33,rule8oftheCivilProcedureRulesprovidesthatevery 5 -document or other exhibit put in evidence shall be marked by a Judge or byan officer of the Courtwhen itisputin,and the mark placed thereon shall be noted inthe minutes of the Court. TheminuteskeptbythetrialJudgearebefore us.On 24/10/85 itwasrecorded bythetrialJudge:10 «Both counsel applythattwobundles ofdocuments be put in by consent. The one by the plaintiffs and the other by the defendants. They aresomarked asput inbythe parties. Court:Bundles put in and marked Exhibits la-7 and 2a-e respectively.» 15 Itwascontended bycounsel for the appellants-defendants that these documents were produced for identification purposes only and relyingonSaid Galipv. UmitSuleyman
(1963)2C.L.R. 129,. invited the Court, notto consider them as evidence. The production' of a document for the limited purpose of 20 identification doesnotmakeitevidence.Itmustbeformally putin evidence. Inthepresent case,however,therecordofthetrialCourt leaves no room for doubt that these documents were formally put in evidence, andthecontents thereof were evidence before the trial 25 Court and itwasrightlyconsidered assuch. With regard to the second ground, the admission in the third paragraph of thestatement of defence {thatthere was agreement in principle for the sale and delivery by the plaintiffs to the defendant ofthealuminium products,described inparagraph 4of 30 thestatementofclaim,butthattheplaintiffs neverdeliveredtothe defendants the goods ordered according to the terms of the agreement), inconjunction with the contents of the documentary evidence,makeitabundantly clearthatanagreementwasentered intobetween thepartiesforthesale ofthealuminiumproductsby 35 theplaintiffs tothedefendants atthestipulated priceaspleadedby the plaintiffs. 85 Styiianldee J. Demeco Co.v. Beckboff
(1988)This was a F.O.B. contract; that is «Free on Board»; and the seller's contractual duty insuch a contract isto deliverthe goods on board -ship at the contractually appointed port (Hamburg in thiscase), athisown expense for carriage to the buyer. Therewerenotermsinthecontractofthelitigantsdisplacingthe 5 presumption that the seller's duty isto give up possession of the goods to the ship upon theterms of reasonable and ordinary Bill of Lading and that the property passes to the buyer upon shipment. The delivery contemplated by their F.O.B. contract is deliveryon board -ship,andnototherwise -(Stock v.Inglis[1884] 10 12Q.B.D. 564; CarlosFederspiel &Co. S.A. v. Charles Twigg& Co. Ltd. [1957] 1Lloyd'sRep.240). The goods were ascertained, they were specific goods, they were loaded on the ship at Hamburg and the risk passed to the buyer upon shipment - (see Halsbury's Laws of England, Fourth 15 Edition, volume 41, paragraphs 931, 933, 934, 935, 936 and CarverCarriagebySea,Thirteenth Edition,volume2, paragraphs 1618, 1621). With regard to the last ground of appeal, we have to observe thatinthestatement ofclaim,paragraphs 7and8, itisallegedthat 20 due totheconduct ofthedefendant theplaintiffs accepted thatthe goods be returned to them, provided that they would be in the same good condition they were at the time of delivery by the plaintiffs to the defendants; but itwas ascertained that the goods were completely damaged and were not of merchantable quality 25 any more. Theseallegationsaresimplydeniedinthestatementof defence. The pleadings inan action arethe foundations of the litigation; they must be carefully prepared astheset of railsupon whichthe _„ train of the case will run. Nofactsaresetoutinthepleadingofthe appellants-defendants, from which the question raisedbythisground of appeal could be determined bythe trial Court. ACourt ofLawhastoconfine itselftotheissuesasappearing at the close of the pleadings orproperly added to,atthe date of the 35 hearing- [Eleni Panayiotou lordanou v. Polycarpos Neophytou Anyftos (1959-1960) 24 C.L.R. 97, at p. 106; Christakis Loucaides v. CD. Hay and Sons Ltd.
(1971)1 C.L.R. 134 and Hjipavlou v.Jinaro Terra
(1982)1C.L.R. 433). 86 1CL.B. DemecoCo.v.Becbboff StyUanldeeJ. The case isdecided on itspleaded facts to which the Law must be applied. If in the course of the trial it appears that a party's pleading requires amendment, steps for that purpose must be taken as early as possible in order to give full opportunity to the 5 parties affected by the amendment to meet the new situation; to run theircase on thenew rails-(Homeros Th.Courtisand Others v. Panos K. lasonides
(1970)1 C.L.R. 180 at p. 183; Andreas Mahattou v. Viceroy Shipping Co. Ltd. and Another
(1979)1 C.L.R. 542; and Federated Agencies v. Tsikkos
(1979)1 C.L.R. 10 134). Apoint raised by counsel in his address, not based on factual averments inthe pleadings,should notbe taken up bythe Court. For the foregoing reasons this appeal fails and is hereby dismissed. 15 Inview, however, of allthecircumstancesofthecase,we make no order for costs in this appeal, but we leave undisturbed the Order in favour of the plaintiffs-respondents, made by the trial Court. • Appeal dismissed. Orderforcostsas above. 20 87