clr/1989/1989_1_201.pdf

(1)(a)—Thewords *any other matterrelated thereto» (οιονδήποτε έτερον συναφές ζήτημα) must be interpreted ejusdem generis—Courtdoes not 5 havepowertoorderthe transferofthemortgage toanotherplotof land—Mortgagee's residence unknown —RightlytheCourt did not makeanorderastothegivingofnoticetothemortgagee— As under thelawthegiving of noticeis discretionary, thereisno contravention of the Rules of Natural Justice,if a mortgage is 10 cancelledwithoutpriornoticetothemortgagee. 15 20 The respondent obtained an order for the cancellation of a mortgage under the saidsection ofLaw 9/65 on condition thathe would deposit the money with theTreasury Department ofthe Government.Uponexparte application toconditionwas setaside, butanOrderwas grantedforregistrationofanewmortgage.Upona secondexparteapplicationanorderwasissuedforthetransferofthe mortgagetoanotherplotofland. Having obtained theleave, theapplicant applied for certiorari quashing the orders obtained upon the said two ex parte applications. Theprinciplesappliedingrantingtheapplication and quashingtheordersappearinthehereinaboveheadnote. Application granted. No orderastocosts. 201 In reAttornej-General

(1989)Application. Application foran orderof certioraritoremove totheSupreme Court and quash the orders made by the DistrictCourtof Nicosia .on 5.12.87 and 16.2.88 in Application No. 65/87 whereby previous orders were amended so thata new mortgage would be registered in favour of the mortgagee and that the original mortgage would be transferred το another plot of land without 5 depositing the money with theTreasury Department. Gi Hjipetrou, for the applicant. Chr, Triantafyllides, for the respondent. Cur adv. vult. KOURRISJ. read thefollowingjudgment. Thisisanapplication for an Order of certiorari toremove into this Courtand quash the Orders made by the District Court of Nicosia on 5.12.1987 and 16.2.1988, inapplication No. 65/87. 1ο On 29th October, 1988, leavewas granted toapplicantto move this Court for an Order of Certiorari and, in pursuance of such 15 leave, applicant filed the present application. The facts of the case as they appear from the affidavit filed in support of the application for leave to apply for an Order of Certiorari by M. Tsangarides, Lands Officer, 1st Grade, are as follows:On the 15thAugust, 1987, anapplicationby summonswas filed by the respondent of this application for the cancellation of a mortgage under Law 9/65 and a Judge of the District Court of Nicosia granted the application on 17.9.1987 on conditionthat the money would be deposited with the Treasury Departmentof 25 the Government. On 5th December, 1987, theapplicant (presentrespondent) in thatapplication filed anex parteapplicationfor theamendmentof the Ordergrantedon 17thSeptember, 1987, andthesame Judge granted the Order amending the previous Order. The second 30 Orderamendedtheconditionthatthemoneywould be deposited with the Treasury Departmentof theGovernmentand grantedan Order that a new mortgage would be registered in favour of the mortgagee, at the same time setting aside the condition thatthe money would be deposited with theTreasury Departmentof the 35 Government. 202 20 1C.L.R. In re Attorney-General KourrisJ. Again, on the 1st February, 1988, the applicant, (present respondent) in that application filed another ex parte application fortheamendmentof theoriginal Ordergranted by theCourt.The same Judge again amended thesaidOrder on the 16th February, 5 1988: he granted an Order that the original mortgage would be transferred to another plot of land without depositing the money with theTreasury Departmentof theGovernment.' Thegrounds on which thepresent application is based are;. (a)the said amending orders were wrong inlaw and there isan ΙΟ error of law apparent on the face of the record; (b)thatthe trialJudge acted inexcess orabuse orjurisdiction to issue thesaid amending orders; and (c)the said Orders were made in breach of the rules of natural justice. 15 Counsel for theapplicantargued thatalltheOrdersof theCourt under consideration were made without affording an opportunity to the mortgagee to be heard, in breach of the rules of natural justice. Counsel also contended that the learned Judge acted in excess of jurisdiction in that he made the orders dated 5th 20 December, 1987 and 16th February, 1988, contrary to ss. 4,5,8,28 and 36 of the Immovable Property (Transfer and Mortgage) Law, 1965 (Law 9/65). Counsel for the respondents argued, that the Judge of the District Court did not act in excess of jurisdiction, that he was 25 empowered tomake theamending orders, inview of the wording of s.36 of the Law, and thatthere has been no breach of the rules of natural justice. Thus, the outcome of the present application turns on the interpretation of s.36 of the Immovable Property (Transfer and 30 Mortgage) Law 1965; and particularly ons.36(l)(c) which reads as follows:«36.-

(1)Εις οιανδήποτε των ακολούθων περιστάσεων, ήτοι(α) 35

(6)'. (γ) εάν ο ενυπόθηκος δανειστής είναι αγνώστου διαιιονής, ή είναι εταιρεία ή συνεταιρισμός ουχί πλέον 203 KourrisJ. In reAttorney-General

(1989)εν ζωή, ήαπέθανεκαιοπροσωπικός αντιπρόσωποςή οι κληρονόμοι αυτού είναι άγνωστοι, και εις οιανδήποτε των ως είρηται περιπτώσεων είτε ο ενυπόθηκος οφειλέτης αδυνατεί,ωςεξοιουδήποτετων προμνησθέντων λόγων, ναπλήρωση ειςτονδικαιούχον 5 το διάτης υποθήκης εξασφάλιζαμενόν ποσόν αφού τούτο κατέστη πληρωτέον, είτε ή δια της υποθήκης εξασφαλιζομένη υποχρέωσις εξωφλήθη ή έπαυσεν υφισταμένη, ο ενυπόθηκος οφειλέτης δύναται να ζητήση παράτου ΕπαρχιακούΔικαστηρίουτηνέκδοσιν 10 ακυρωτικού της υποθήκης διατάγματος, το δε ΕπαρχιακόνΔικαστήριον άματη υποβολήτηςτοιαύτης αιτήσεως δύναται να εκδώση το κατά το δοκούν δίκαιον υπόταςπεριστάσεις διάταγμα, αναφορικώς προς τηνγνωστοποιησιν τηςγενομένης αιτήσεως προς 15 οιονδήποτε πρόσωπον, τηνακύρωσιν τηςυποθήκης, την κατάθεσιν χρηματικού τίνος ποσού παρά τω Επαρχιακοί) Δικαοτηρίω, την διάθεσιν του ούτω κατατεθησομένου ποσού και οιονδήποτε έτερον συναφές ζήτημα». 20 TheEnglishtranslation prepared by theMinistry ofJustice reads as follows:«36.-

(1)Inany ofthefollowingcircumstances thatistosay(

1. a)(c)where the mortgagee isofunknown residence, oris a company orpartnership which isno longer inexistence, or has died and his personal representative or heirs are unknown, andinanyof the cases hereinbefore mentioned either theliabilitysecured bythemortgagehas been satisfied 30 or has ceased to exist, orthe mortgagor is for anyofthe reasons aforesaid unable topaythe amount secured bythe mortgage, after such amount hasbecome payable, to the person entitled thereto, the mortgagor may apply tothe DistrictCourtfor anordercancelling themortgage, andupon 35 such application the DistrictCcirt i.iaymakesuch orderasto the giving of notice of theapplication toany person, the cancellation ofthe mortgage, the deposit ofany money into theDistrictCourt,thedisposalofanymoneysodeposited and 204 1C.L.R. Ιαre Attorney-General KourrlsJ. any other matter related thereto as the District Court may deemjust.» The argument of counsel for the respondents is thatwhere the mortgagee is of unknown residence, as in the present case, the 5 DistrictJudge, uponanapplication by the mortgagor, may cancel the mortgage and inthe exercise of his discretion, may make any order which it may deem just. He went on to say that it is not obligatory upon the District Court to make an Order, upon the cancellation of the mortgage, todeposit any money intheDistrict 10 Court. The District Court, he said, may make any Order it may deem just where the mortgagee is of an unknown residence and thisis apparent,he said, from the wording of the said section and particularly the words «και οιονδήποτε έτερον συναφές ζήτημα» which in English is «and any other matter related 15 thereto». He submitted thatthe DistrictJudge by the amendingOrderof 16.2.1988, whereby he made an Order for the transfer of the mortgage to another plot, he secured the mortgagee sufficiently because he had before him the report of an expert valuer who 20 assessed the value of the plot on which the mortgage would be transferred at £50,000 whereas the mortgage debt was £8,000 only. Counsel for the applicant disputed the fact that the Turkish Bank,themortgagee inthepresentcase,isof unknown residence 25 and relied on paragraph 8 of the affidavit in support of the application for leavetoapply for anOrderof Certiorariwhere itis stated thatthePostal Authorities of the Republic of Cyprus accept and deliver letters, through the United Nations, to known addresses totheTurkish Occupied area of Nicosia. 30 I agree with learned counsel for the·respondent that this evidence is not sufficient to establish that the mortgagee is of known residence and address. Assuming that the Turkish Bank operates within theTurkish occupied part of Nicosia, then still its address is unknown because none is stated in the affidavit. 35 Furthermore,the affidavit does not state thatthe Turkish Bank is one of the known addresses where the post office accepts and deliversletterstoit.Consequently,for thepurposes ofs.36(l)(c)of the law, I shall consider that the mortgagee is of unknown residence. 205 KourrisJ. In re Attorney-General (19891 Counsel for the applicant argued that the object of s.36 of the law is to enable a mortgagor to apply to the Court for an Order cancelling the mortgage and the Court may make an Order as to thedeposit ofany moneyintotheDistrictCourtandthedisposal of any moneyso deposited. Hecontendedthatthedepositofmoney into Court is a prerequisite for the granting of the Order for cancellation of the mortgage unders.36 of the law. Hewent onto say that this becomes obvious when s.36 is read in conjunction with s.35 of the law. 5 Ihave considered thearguments of bothcounsel and I amof the 10 viewthatinthepresent case theejusdem generis rule is applicable and the general words will be restricted to things of the samt: nature as those which have been a mentioned, (vide Halsbury's Laws of England, 3rd edn.,Vol. IIparagraph 693, p. 430). Inthepresent case, I amof theviewthatthewords ins.36 «and 15 any other matter related thereto», (και οιονδήποτε έτερον συναφές ζήτημα), it refers to the powers of the District Court with regard tohisdiscretion for making anOrder(
2. i)astothegiving of notice of the application to any person, (
3. ii)the cancellation of the mortgage; (iii) the deposit ot any money into the District 20 Court, and (
4. iv)the disposal of any money so deposited. The DistrictJudge has no power to make any order apart from those enumerated inthe section, orany othermatterrelatedthereto. Ihold the opinion that rightly the District Judge exercised his discretion not to make an Order as to the giving of notice of the 25 application to the mortgagee, as the mortgagee was of unknown residence and address, but I think he acted outside the law when he made an Order for the transfer of the Mortgage. He was not empowered to do so under s.36 of the law or under any other section of the law. He could make an Order cancelling the 30 mortgage on condition that the mortgagor would deposit any money intothe DistrictCourt. For these reasons, Iam satisfied thatthe said amending Orders werewrong inlaw andthereisanertoroflaw apparentonthe face of the record and, furthermore, Iam satisfied thatthe trialJudge 35 actedin excess of jurisdiction toissue the said amending Orders. NowIproposetodealwiththethirdgroundoftheapplicationto le effect thatthesaid Orders were made inbreach of therules of natural Justice. 206 1C.L.R. InreAttorney-General KournsJ. Inmyview,thesaidOrderswerenotmadeinbreachoftherules jf natural Justice, because the trial Judge under s.36 of the law had discretion to make an Order as to the giving of notice of the application to any person. I think the trial Judge exercised his discretion properly not to give notice of the application to the mortgagee because he was of unknown residence. Therefore, there hasbeen no breach ofthe rulesof naturaljustice. Forallthese reasons, I direct thatthe proceedings reviewed be quashed. Order of certiorari toissue.Noorder for costs. Order of certiorarigranted. No orderasto costs. 207