(1988)1988February 8 [TRIANTAFYLUDES, P.,LORIS,STYUAN1DES,JJ.] ΑΝΝΓΓΑGLAFCOUMICHAELIDOU, Appellant-Plaintiff, v. SOLON GREGORIOUANDOTHERS, Respondents -Defendants. (CivilAppeal No. 6341). Jurisdiction — Inferior Court — Their jurisdiction emanates from the Statute under which they areconstituted — TheJurisdiction of the DistrictCourts isgoverned bysections 21-24inclusiveof the Courts ofJustice Law, 14/1960 — Theparties cannot conferjurisdiction by consent. ^ Jurisdiction — DistrictCourts — The Courts ofJustice Law,section 21
(2)— The phrase many other matter relating to immovable property» should not be interpreted ejusdem generis with«partition» or«sale* — A claim for damage to immovable property caused by fire is a claim «relatingto immovable property» (Cyprus Hotels Co. Ltd. v. 10 Hotel Plaza Enterprises Ltd.
(1968)1C.L.R.423distinguished)— It is,also,a claimforacivilwrong. Jurisdiction — Lack of—The District Court should not dismiss the action, butonly stay the proceedings. Wordsandphrases: «Anyother matterrelatingtoimmovable property»in 15 section 21
(2)of the Courts ofJustice Law 14/60— Itshould not be interpreted ejusdem generis to «partition» or «sale» of immovable property. The appellant is the owner of premises situated intheDistrictof Nicosia. By a contract of lease dated 16.3.79 she leased them to 2 0 defendants 1, 2 and
- Defendants 4, 5 and 6 guaranteed, the discharge of theobligations of defendants 1,2 and
- Defendant 7 took part in the management of the businessforwhich the premises wererentedand,atsometime,becametheownerofsuchbusiness. All defendants reside withintheDistrictofNicosia. On 20.6.80thepremises wereextensivelydamaged by fire. Asa result the appellant brought an action before the District Court of 88 ^ 1CX.R. MichaeUdouv.Gregoilou Lamaca against the said seven defendants claiming damages for breach ofthe contract of lease,conspiracy and negligence. 5 Originally,thedefendants objectedtothejurisdiction oftheDistrict CourtofLamaca.Theylaterwithdrewtheobjection.Thesaid Court heard the evidence, but, at the end, having found that the plaintiff's claimsdo not sound incontract, dismissedtheaction on the ground oflack of jurisdiction. Hencethisappeal. 10 15 20 25 30 35 Held, allowingthe appeal:
(1)The material facts contained in the statement of claim, coupled with the evidence adduced, leave no room fora cause ofaction ex-contractu.
(2)•Jurisdiction» meansthe authority which aCourthasto decide matters that are litigated before it or to take cognizance of matters presented ina formal wayforitsdecision.The limitsofthisauthority are imposed by the statute under which the District Court is constituted.Jurisdiction mustbe acquired before judgment isgiven. Atrialand decision byan inferior Court on a matter on which ithas no jurisdiction isa nullity.The District Courtsare inferior Courts set up by the Courts of Justice Law, 1960, {Law No. 14/60) made in pursuance of Article 152 of the Constitution. Their jurisdiction is limited bythe provisions ofsections21-24 inclusive.
(3)The question of jurisdiction is a matter of public policy and cannot be waved by the parties. The parties cannot confer jurisdiction upon a Court that does not possess same by virtue of thestatute establishing it.
(4)«Any other matter relating to immovable property» in section 21 subsection
(2)do not refer to things ejusdem generis with «partitionorsaleofimmovableproperty»,becausetheLegislatureby using the words «any other matter» intended to show that a wider sensewasintended.Thiscaseisclearlydistinguishable from thecase of CyprusHotels Co. Ltd. v.HotelPlazaEnterprisesLtd.and Others
(1968)1C.L.R. 423.
(5)The claim for damage to immovable property by fire isa civil wrong, but at the same time is a claim relating to immovable property. On either view the District Court of Lamaca lacked territorialjurisdiction todeal withthisclaim. The conspiracy wascommitted inNicosia. 89 Mfchacfidoav.GTegorioa
(1988)
(6)Inthelightof0.33,r.10oftheCivilProcedureRulestheaction shouldhavebeenstayed,notdismissed. Appealallowedwithcosts. JudgmentofDistrictCourtof Lamacasetaside. Proceedings 5 stayed. Casesreferredto: CyprusHotelsCo.Ltd. v. HotelPlazaEnterprisesLtd. andOthers
(1968)1 C.L.R. 423; Thompson v. Shiel
(1840)3Ir.Eq.R.135; 10 HadjiNicola v. HadjiPavhu, 10C.L.R. 45; Theofanousv.Georghiou
(1969)1 C.L.R. 203; MouyiosandOthersv.ThePolice
(1974)2C.L.R. 23; R. v. Dennis[1924]1 K.B.867; SimpsonandAnotherv. CrowleandOthers[1921] 3K.B.243; 15 Attorney-GeneralandAnother(No.2)v.Sawides
(1979)1C.L.R.
- Appeal. Appeal by plaintiff againstthejudgment of the DistrictCourtof Lamaca (Pikis,P.D.C.and Eliades,D.J.)dated the4thNovember, 20 1981(ActionNo.812/80)wherebyheractionfordamages caused to her property in breach of the term of the contract of lease was dismissed. K.TalarideswithA. Poetisfor the appellant. P.Angelides, for the respondent. 25 Cur.adv. vult. TRIANTAFYLLIDES, P.: The Judgment of the Court will be delivered by Mr.Justice Stylianides. STYLIANIDES,J.:Thisappealwasmade againstthe Judgment oftheDistrictCourtofLamaca bymeansofwhichplaintiffs action 30 wasdismissed for want of territorial jurisdiction. The plaintiff-appellant isthe owner of immovable property -a twostoreybuildingand yard -situatedatNicosia, 105Prodromou Street. 90 1CL.R. Michaclidoav.Gregorioa StyUanklesJ. By a written contract, dated 16/3/79, done at Nicosia, she leased the said premises to defendants 1,2 and 3 for a period of five years, commencing on 1/3/
- Defendants 4, 5 and 6 guaranteed the discharge of the obligations of the tenants5 defendants under the said written contract.There isa term in the contractthatthepremiseswould be usedasacafe-restaurant. The tenants took up possession of the premises. Defendant 7,wife of defendant 1 -not in any capacity party of the aforesaid written agreement -took part in the management of the business and at 10 some stageshe became the owner of the business. Intheearlyhours,shortlyafter0200hours, of20thJune, 1980, a fireerupted inthepremisesthatcaused extensivedamagetothe buildingand destroyed itscontents. Theplaintiff filed thisaction againstallsevendefendants, but, as 15 no service waseffected within the period of one year, envisaged by Order 4, rule 1of the Civil Procedure Rules, on defendants 3 and5,thewritofsummonsexpired and thecaseagainstthemwas abandoned and dismissed. Theplaintiff bythegenerallyindorsed writofsummonsclaimed 20 damages caused to her premises in breach of the term of the contractofthelease,forconspiracyand fornegligence,relyingon the provisions of section 53 of The Civil Wrongs Law, Cap. 148, whereby the occupier of premises is liable in damages for loss emanating from fire. 25 Allthe defendants have theirordinary residence atNicosia and theiraddresses,asgiveninthewritofsummonsarewithinthearea ofEngomi,asuburb oftheCapital withinthedistrictof Nicosia. «Defendants» hereinafter refer to defendants 1,-2, 4, 6 and
- Thedefendants denied anddesistedtheclaim.Inparagraph 1 of 30 theirdefence theyraisedthepreliminaryobjection thattheDistrict Court of Lamaca had nojurisdiction to trythis action. Whenthecasewassetdownforhearing,afterthecompletionof the pleadings, counsel for the defendants withdrew the objection totheterritorialjurisdiction of the trial Court. 35 Thehearingfollowed itsnormal courseand attheaddressstage thelearned trialJudgesinvitedcounseltoaddresstheCourton the question ofjurisdiction. 91 StyUankle·J. MfchaeHdouv.Greeoriou
(1988)The trialCourt found thatthestatement ofclaim as formulated, and the evidence adduced by the plaintiff are such that plaintiffs claimdoesnotsound incontract.Itisplainlyaclaimfor negligence inthecontext ofsection 53oftheCivilWrongsLawandthe Court found that defendants 1,2and 7 were liable to the owner for the 5 damage caused tothebuildingof theplaintiff asaresultofthe fire that started inthe premisesinthe earlyhoursof 20th June, 1980. TheCourtfurther found thatdefendants 1 and 7wereguiltyofthe tort of conspiracy that led to the setting of the fire and the considerable damage caused asa resultthereof. 10 The Courtdecided thatitsjurisdiction waslimitedbysection 21 ofThe Courts of Justice Law, {LawNo. 14/60), and theyhad no jurisdiction to take cognizance of the dispute and dismissed the action withcosts. Counsel for the appellant submitted thatthe finding of thetrial 15 Court-thatthereisnobreachofcontract-waserroneous;thatthe substantivejurisdiction of theDistrictCourtissetoutinsection 22 ofThe CourtsofJustice Law;thatsection21regulatesthevenue; that the objection as to venue may be waved by the defendant whounconditionallysubjectstojurisdictionandconsentofaparty 20 confers territorialjurisdictionon aDistrictCourt;andlastlythatthe provisionsofsection21
(2)donotincludethepresentcase,having regard to the interpretation of the expression «relating to immovable property», in the case of Cyprus Hotels Co. Ltd. v. Hotel PlazaEnterprises Ltd. and Others
(1968)1C.L.R.423. 25 Counselfor therespondents, on theotherhand, submitted that territorialjurisdiction issubstantive provision and not procedural; that consent, expressed or implied, cannot enlarge the territorial jurisdiction and the provision of section 21, isan insurmountable obstacle in the way of the prosecution of the case before the 30 Lamaca District Court. We have given due consideration to the argument of counsel, but on the material before us we are unable to accept the submission thatthiswasan action forbreach of contract. Weneed not setout seriatimthe statement of claim;suffices to 35 say that the material facts contained in the statement of claim, coupled withtheevidenceadduced, leavenoroomforacauseof action ex-contractu. 92 1 C.L.H. MichaeUdou v.Gregorioa StytianJdes J. «Jurisdiction» means the authority which a Court has to decide mattersthat are litigated before itortotakecognizance of matters presented in a formal way for its decision. The limits of this authorityareimposed bythestatuteunderwhichtheDistrictCourt 5 is constituted. Jurisdiction must be acquired before judgment is given -{Thompson v.Shiel,
(1840)3 Ir.Eq.R. 135). Thejurisdiction of the inferior Courts inthis country is derived from and must be traced in the statute establishing them. Atrial and decision by an inferior Court on a matter on which it has no 10 jurisdiction isa nullity. The District Courts are inferior Courts set up byThe Courts of Justice Law, 1960, (LawNo. 14/60) made inpursuance ofArticle 152 of the Constitution. Their jurisdiction is limited by the provisionsof sections21-24 inclusive. 15 Sections 21 and 23 refer to the territorial jurisdiction of the DistrictCourtsincivilmattersandincriminalmattersrespectively. The material parts of section 21 are paragraphs (a) and (b)of subsection
(1)and the first paragraph ofsubsection
(2)which read as follows:- 20 25 «21.-
(1)ADistrict Courtshall,subject tothe provisionsof section 19, have original jurisdiction to hear and determine any action in accordance with the provisions of section 22 where (a) the cause of action has arisen either wholly or in part withinthelimitsofthedistrictinwhichthecourtisestablished; (b)thedefendant oranyofthedefendants,atthetimeofthe institution of the action, resides or carries on business within the districtinwhich the court isestablished; 30
(2)Where the action relates to the partition or sale of any immovable property or any other matter relating to immovableproperty,suchactionshallbetaken inthe District Court of the district within whichsuch property issituate.» Itwassubmitted bylearned counsel for theappellant that thisis a procedural provision and may be waived by the parties. In the 35 present case,though thedefendants objected tothejurisdiction in their statement of defence, later, at the commencement of the hearing,withdrewtheirsuchobjection andconsequently question 93 StyUanldes J. Mfchaelidou v. Gregorioa
(1988)ofjurisdiction does notarise.Thecaseof ChristophiHajiNicola v. Haji Michael Haji Pavlou, 10 C.L.R. 45 and a number of California authorities were citedin support. The HajiNicola case was decided in 1911 when the Order in Council of 1882 was in operation. The Order did not limit the 5 territorialjurisdiction of the DistrictCourts.Atp.47we read:«Withregard totheobjection thattheNicosiaDistrictCourt. had no jurisdiction to try the case, properly speaking the objection should have been not that the Court had no jurisdiction, but that the action was irregularly instituted. The 10 Order in Council which confers on the District Courts jurisdiction to try all Ottoman actions, does not limit their jurisdiction to matters arising, or persons residing within the special district of the Court. Order II., Rule 2, which declares that every action (other 15 than an action relating to immovable property) shall be instituted 'either in the District Court of the District within which the Defendant or any Defendant resides, or in the District Court of the District within which any breach of contract, or any wrongful act on which the action isfounded 20 isalleged to have occurred' isa rule of procedure. Aruleofprocedure cannoteitherconferjurisdiction ortake awayjurisdictionalreadyexisting.Itsfunction istoregulatethe exerciseofjurisdiction.Thisrulemusttherefore be interpreted not as limiting the jurisdiction of the District Courts but as 25 regulating itsexercise.» InKyriacos Theofanous v.Artemis Georghiou
(1969)1 C.L.R. 203, no objection to thejurisdiction was taken before the District Court, but itwasraised forthefirsttime intheappeal.Atp. 205of the reportitwassaid:«Thequestion astotheterritorialjurisdictionwasnot raised inthe course of the hearing and itwasraised forthe first time as a ground of appeal. It is well settled that a point as to jurisdiction maybetaken atanystageifallthefacts are before the Court; Norwich Corporation v. Norwich Electric Tramways Co., Ltd. [1906] 2 K.B. 119; Westminster Bank Ltd. v.Edwards [1942] A.C.529.» 94 30 35 1 C.L.R. Mlchadldou v. Gregoriou Styllanldee J. The Court of Appeal dealt with the issue of jurisdiction, but on the facts of the case it found that the trial Court had territorial jurisdiction todealwiththatcase. Inthecriminalcase VasiliosLazarouMouyios and Othersv.The 5 Police
(1974)2 C.L.R. 23,the accused were charged before the District Court of Nicosia for offences committed at Lamaca and Paphos.Theypleaded guiltyand weresentenced.Theyraised the question of the territorial jurisdiction for the first time before the Appeal Court. It was contended by learned counsel for the 10 respondents that itistoolate forthe appellants to raise on appeal theissueofjurisdictionandthatbytheappealtheywere precluded from raising such a point. The Court of Appeal relying on the English authorities and particularly on R. v.Dennis [1924] 1K.B. 867, decided that counsel for the appellants could not be 15 prevented from raising the issue as to the jurisdiction of the trial Court, even though such issue was not raised at the trial. On the substance of the objection itwasdecided thatthe DistrictCourtof Nicosia did not possess jurisdiction to deal with the counts to which the appellants pleaded guilty, and therefore the 20 proceedings were a nullity. The question of jurisdiction is a matter of public policy and cannot be waved by the parties. The parties cannot confer jurisdiction upon aCourtthatitdoes notpossesssamebyvirtueof the statute establishing it - (Simpson & Another v. Crowle & 25 Others, [1921]3 K.B. 243). It was submitted that an action for damages caused by tire to immovable property is outside the ambit of «any other matter relating to immovable property». Reference was made to Cyprus Hotels Co. Ltd. v.Hotel PlazaEnterprises Ltd. and Others
(1968)30 1C.L.R. 423. We agree with the trial Courtthat «anyother matter relating to immovable property» in section 21 subsection
(2)do not refer to things ejusdem generis with «partition or sale of immovable property», because the Legislature byusingthe words«any other 35 matter»intended toshow that a widersense was intended. The present case isclearly distinguishable from that of Cyprus Hotels (supra), where it was held, by majority, that an action commenced in the District Court of Nicosia, by means of which therewasclaimed(a)aninjunction restrainingthedefendants from 95 Styllanldes J . Mlchaelldou v. Gregoriou
(1988)takinganyfurther stepsforthepurposesofarbitration proceedings between the parties to that action under an arbitration clause ina written agreement concerning immovable property in Limassol, (
- b)a declaration that the matters contained in a «notice for arbitration» served by the said defendants on the plaintiffs inthat 5 action didnot fallwithin the arbitration clause inquestion, and(
- c)a declaration that the aforementioned agreement was valid, subsistingand binding,wasan action withinthejurisdiction ofthe District Court of Nicosia under the provisions of subsection
(1)of section 21 of Law 14/60 and that such jurisdiction was not 10 excluded by the provisions ofsubsection
(2)of thesame section. The second subsection of section 21 was considered by Triantafyllides, P. in Attorney-General & Another (No. 2) v. Sawides
(1979)1 C.L.R. 349. Theclaimfordamagetoimmovableproperlybyfireisbothacivil 15 wrong, but at the same time is a claim relating to immovable property.On either view the District Court of Lamaca lacked territorialjurisdiction to dealwith thisclaim. The conspiracy was committed in Nicosia. Having regard to what wehave said earlierabout theclaimsof 20 the appellant in the action, the pleadings, the findings of the trial Court and bearing in mind the definition of «cause of action> in section 2ofLaw1460,wearefirmlyoftheviewthatthetrialCourt lackedterritorialjurisdiction totrythe action. Order 33, rule 10 of the Civil Procedure Rules provides that 25 where on the trial of any action it appears to the Court before which suchaction isbeing triedthatitshouldhave been instituted inanother Court,theCourttryingtheactionshallnotdismissitbut shallstaytheproceedingstherein and order theplaintiff topaythe defendants' costs. The District Court of Lamaca did not stay but dismissed the action. The next question that arises, therefore, iswhat order isto be made by us? We have to set aside the Judgment dismissing the action and 35 make anOrder consonant to theRules,stayingthe proceedings. % 30 1 C.L.R. Mlchaelldou v.Gregoriou Styllanldes J. Mechanism isprovided inthe CourtsofJustice Law 1460 for thetransfer ofthecasetotheappropriate DistrictCourt. Intheresulttheappealisallowedasabovewithcosts. Appealallowedwithcosts. 97