(1989)1989ΑρηΙ24 (SAWIDES. HADJITSANGARIS. BOYADJIS,JJ ) ELENIM. TSIAMANTA, Appellant-Piaintiff, v. MARIA M.TSIAMANTA, Responden t-Defendant (Application in Civil Appeal No. 7052). Appeal — Amendment of notice of appeal by adding new grounds, whereby the basis of the appeal will be considerably extended — Application for amendment filed ata very latestage— The matter is·, within me discretion of the Court, which, however, should be zealously exercised — Review of caselaw. In the light of the caselaw andthe principles emanatingtherefrom and the particular circumstances of this case, the application for amendment was dismissed. Application dismissed with costs. 10 Casesreferred to: Vassiades v. Michaelides Bros.
(1973)1C.L.R.80; The Attorney-General of theRepublic (No.l) v. Adamsa Ltd.
(1975)1 C.L.R. 8; St. Nicholas Shipping Co. Ltd. v. Nissho-lwai Co. Ltd.
(1984)1 C.L.R.
- 15 Application. Application under 0.35, rules 4 and 8 of the Civil Procedure Rules for leave to amend the notice of appeal by adding further grounds of appeal. A. Eftychiou with M. Pierides, for the applicant. M. Papapetrou, for the respondent. 230 20 I C.L.R. Tsiamantav. Tsiamanta SAWIDESJ. gave the following judgment ofthe Court.Thisis anapplication under0.35,rr 4and8ofthe Civil Procedure Rules for leave to amend the notice of appeal by including therein further groundsof appeal. 5 This appeal isdirected against the judgment of a Judge of the District Court of Nicosia in Civil Action 4433/82 which was delivered on 19th September, 1985.The notice of appeal was filed on the 26th October, 1985 and after enumerating the grounds of appeal atthe end ofitthere appeared the followinq: 10 «Further grounds of appeal may be submitted when the record of the proceedings ismade available». The record of the proceedings as it appears from the file was made available on the 2nd January, 1986, and the appeal was fixed forhearing on the 10th November, 1987and counselforthe 15 appellant were notified that thisappeal wassofixed;acopyofthe full record of the case wasmade available and in fact received by counsel for appellant long before the date of the hearing of the appeal butnoapplication cameforward fortheamendmentofthe notice of appeal for the addition of further grounds. 20 Atthehearingofsuchappealafter certainobservationsmadeby theCourt counselforappellantappliedforanadjournment onthe groundthathe needed sometimetoconsider hisposition andthat he intended toapply foramendment ofthe groundsofappeal.As a result the appeal was adjourned to afford counsel for the 25 appellant the opportunity to filesuch an application.' As no application for amendment had been made till September, 1988,counsel fortherespondentapplied foradateof hearingtobe fixed fortheappeal and the appeal wasfixed onthe 2nd February, 1989 and counsel appearing forboth partieswere 30 notified accordingly by the Register on the 13th October,
- On 10th January, 1989, counsel for the appellant filed the present application for leave to amend the notice of appeal by including therein further grounds of appeal set out therein. Asto thescope oftheproposed amendmentthefollowingappearinthe 35 affidavit accompanyingtheapplicationwhichwasswornbyoneof the counsel appearing for the appellant:
- After further study of the above appeal it has been ascertained thattheamendments applied forare necessary. 231 SavvidesJ. Tsiamantav.Tsiamanta
(1989)3. The amendments applied for are absolutely necessary forthebetteradjudication ofthesubjudicemattersandforthe better administration ofjusticein the case». The application was opposed by counsel for the respondent who by their opposition contended that it was not just and 5 reasonable inthecasethattheamendmentsapplied forshould be granted inviewofthefact thatthisapplication wasmadeatavtry latestage and after the expiration of three yearsfrom the filingof the notice of appeal.Alsothatthesaidgroundswere entirely new and had no relation with those submitted inthe original notice of 10 appeal. In the course of the hearing of this application counsel for the appellant contended that thegrounds sought tobe introduced in his notice of appeal were in fact explanatory of the previous grounds and thattheydidnotmodify thebasisoftheappeal.This 15 statementofcounselisnotconsistentwithwhatwasallegedbythe othercounselappearingfortheappellantinhisaffidavit insupport of the application from which the inference that may be drawn is that they are new grounds the inclusion of which isnecessary for thejustdetermination of the appeal. 20 Itisquite clearthatbytheproposed newgroundsthe appellant isseekingatthisverylatestagetoextendconsiderablythebasison which he challenges thejudgment appealed from. If, according to thesubmission of counsel for theappellant, the newgroundssoughttobe introduced arecovered bythegrounds 25 already contained in the notice of appeal as originally filed then there was no reason for him to file this application as he could expound such grounds to the extent they are referred to in the notice of appeal. Butthe position, asalready explained, isnot so because by the proposed amendments the appellant seeks to 30 introduce newgroundswhichextend,asmentioned, considerably thebasisonwhich hechallengesthejudgmentappealed from. ItiswellsettledbyalineofdecisionsofthisCourtthatthoughan amendment ofthenoticeofappealisamatterwithinthediscretion of the appellate Court nevertheless such discretion should be 35 zealously exercised bearing in mind the particular circumstances ofthe case. 232 1C.L.R. Tsiamanta v.Tsiamanta SawidesJ. In Vassiadesv.Michaelides Bros.
(1973)1 C.L.R. 80, atp.81, theCourtofappealindealingwithasimilarapplicationheldthat: 5 10 «It is quite clear that by the proposed new ground the appellant isseeking,atthisverylatestage, duringthe hearing of the appeal, to extend considerably the basis on which he challenges the judgment appealed from. In the light of the particular circumstances of this case we are not prepared to exercise our discretion in favour of the appellant; and, therefore, the application isdismissed» (See also The Attorney-General of the Republic (No.l) v. Adamsa Ltd.
(1975)1C.L.R. 8;St NicholasShipping Co. Ltd. v. Nissho-Iwai Co. Ltd.
(1984)1 C.L.R. 604 in which the above dictum in Vassiadescase was cited with approval. Inthelightoftheparticularcircumstancesofthiscasewearenot 15 prepared to exercise ourdiscretion inallowingthe application as by deciding otherwise we would have, at this very late stage, allowed the appellants to extend and alterconsiderably the basis on which the judgment appealed from is challenged; of course anything contained in the reasons given in support of the 20 disallowed new grounds, which may fairly be said to be covered by the grounds already contained in the notice of appeal as originallyfiled,canstillberaisedinargumentduringthehearingof the appeal tothe extentthey areso covered. Inthe resultthe application isdismissed with costs. 95 Application dismissed withcosts. 233