clr/1989/1989_1_239.pdf

(1989)The material facts, as far as thelegal principles, which have been summarized hereinabove are concerned, are briefly the following, namely(

1. a)Various claims by the appellant against the respondent and various claims by the respondent against the appellant were submitted toarbitration. b
2. ib)Some time after the issue of the award of the arbitrator the parties declared a settlement in a Recourse for annulment by the appellant against the respondent concerning a refusal of thePublic Service Commission to revoke a previous decision, whereby the 10 applicant hadbeen demoted from Ambassador to Counsellorinthe foreign serviceof the Republic.Thissettlementisquotedatpp. 242243 post. (
3. c)Followingdeclarationof thesettlement,theCourtdismissed the recourse. (
4. d)At some time after the declaration of the settlement the 15 appellantappliedtotheDistrictCourtofNicosiatohavetheawardof the arbitrator set aside. Two preliminary questions of law were set down for hearing. Thesecond - which istherelevant question as far asthisappeal isconcerned-was whethertheappellantwas estopped by reason of the said settlement from proceeding with his 2 0 application. The outcome depended largely on the interpretation of theterm «foregoes» us^H in the settlement. Though this term had been interpreted bytheCourtofAppeal inotherproceedingsbetween the parties,theplea ofresjudicatawas neverraised atthetrial.Thisisan 2 5 appeal from thejudgment,whereby theappellantwas heldestopped by res judicata from proceeding with his application to have the award set aside. Appeal dismissedwithcosts. *^0 Casesreferredto: Re Goile,Exp. SteelbuildAgencies Ltd.

(1963)N.Z.L.K.6όυ; Georghiades v.Attorney-General

(1984)1J.S.C.

1. Appeal. Appeal by applicant against the ruling of the District Court of Nicosia ( U o u t a s ,S.D.J.) dated the 8th March, 1986 (Appl. No. 8/ 3 5 81) whereby his application to set aside the award issued on 19.8.78 by Chr. Stephanis whom the parties had appointed as a sole arbitrator of their disputes was dismissed. 240 1 C.L.R. Georghiadesv.Republic Appellantappeared in person. R. Gavrielides, Senior Counsel of the Republic, for the respondent. Cur.adv. vult. 5 STYLIANIDESJ.:Thejudgment of the Court willbe delivered byBoyadjis, J. BOYADJISJ.:Thisisanappeal from the rulingofajudgeofthe District Court of Nicosia dated 8th March, 1986, whereby the appellant's Application No.8/81 tosetaside the award issued on 10 19.8.1978byChr.Stephaniswhomthepartieshadappointed asa solearbitrator of their disputes, was dismissed. The history of events which led to the present appeal isshortly this: Between 1963and 1979the appellant wasacivilservant inthe 15 diplomatic service of the Republic. During this period certain differences ofa financial nature had arisen between the appellant and the respondent Republic. By their written agreement dated 29th August, 1975, the parties referred all their aforesaid differences toarbitration and nominated Mr.Chr.Stephani asthe 20 sole arbitrator with whose award they agreed to be bound. On 20.10.1976, the Ministry of Foreign Affairs delivered to the arbitrator, and totheappellant particularsofthe Republic'sclaims againsttheapplicant,whicharesetoutinSchedule 1 totheAward which is Exhibit «A»attached to the appellant's affidavit filed in 25 support of his aforesaid application. On 26th January, 1977, the appellant delivered totheArbitratorandtotheMinistryofForeign Affairs hisfinalstatement ofclaimwhichissetoutinSchedule IIto the Award and which isdescribed bythe appellant as«practically identicaltotheone submittedon26th October, 1976».Altogether 30 34 meetings were held for the hearing of the disputes between 22ndOctober, 1976and6thApril, 1978.TheArbitratordelivered hisaward on 19thAugust,
2. By hisAward the Arbitrator refused to allow several claims by the Republic against the appellant and several claims by the 35 appellant against the Republic for the reasons set out therein. Summarising in paragraph 158 of the Award his findings the ArbitratorallowedtotheRepublicclaimsagainsttheappellantofa total amount of £2,975.- and to the appellant claims against the Republic of a total amount of £1,293.- He then set off the latter 241 BoyadjisJ. Georghiadesv. Republic

(1989)amount against the former and directed thatthe appellant should pay to theRepublic thebalanceof£1,682.-infull settlementofthe financial differences between the parties which were referred to arbitration. On 21st September, 1978, feeling aggrieved with the 5 arbitrator's Award, the appellant, acting without the advice of counsel, filed against theAward Civil Appeal No.5879before the Supreme Court where it remained pending until 17th February, 1981, when itwas withdrawn with reservation of the appellant's rights, the latter having obtained to that effect the leave of the 10 Court. In the meantimeand before-the appellant filed Application No. 8/81 before theDistrictCourtof Nicosia,thefollowing events had occurred: On 16th May, 1978, theappellantfiled withtheSupremeCourt 15 in its Revisional Jurisdiction, Recourse No. 243/78 against the Public Service Commission challenging the latter's refusal to revoke itsdecision date430th April, 1969, whereby theappellant was demoted from Ambassador toCounsellorΛfollowing histrial and conviction for a disciplinary offence. On 24th November, 20 1978, this Recourse was withdrawn and dismissed. Itiscommon ground that the withdrawal of the recourse was made in furtherance of an agreement reached between the parties, embodied in a document filed on 24th November, 1978, and marked Exhibit 1 in the aforesaid Recourse No.243/78, which 25 reads as follows: «(

1. a)In view of the new material which came to light the whole case has been re-examined and the Respondent admits, subject to the ensuing provisions, that the Applicant should notbe considered as having losthissubstantive postof 30 Ambassador a post which is deemed tohold tillto-date; (
2. b)The parties after going through any possible claims which the Applicant could have had against the Republic of Cyprus in respect of any difference in salary, emoluments, remuneration, allowances and other benefits whatsoever in 35 respect of thatpost have been found thatany such claim has been settled and satisfied and, the Applicant declares unreservedly that he has no claim whatsoever in respect thereof against the Republic; 242 1C.I, R 5 10 deurghiddes \ Republic Bovddjis J (
3. c)Notwithstanding paragraph (
4. b)above, the Republic of Cyprus foregoes any claim in respect of any sum found to be due by the Applicant to the Republic m the arbitration held between the Ministry of Foreign Affairs and Mr Lefkos Georghiades Mr Lefkos Georghiades hereby admits that he received the sum of £1,389 -in full satisfaction of any other claim he may have against the Republic of any nature whatsoever andhehereby declares thathehasnootherclaim against the Republic arising from any cause andof any nature whatsoever, (
5. d)it is understood that the applicant's pension, however shall innoway beaffected by what isstated inpara (
6. b)above 15 (e;Viewing all theabove theRespondenthas no objection to the annulment of the decision, the subject matter of this recourse (No 243/78), without any order abtocosts» It is also common ground that, following the delivery of the Award by the Arbitrator, the appellant kept submitting to the Republic several new claims and complaints against the Award andthattheamountof £1 682 which according toparagraph(
7. c)20 of theabove settlement,was foregone by theRepublic,was in fact taken by the Republic intoconsideration inarriving atthefigure of £1,389 - which according tothesame settlement,was paidtoand was received by the appellant in full settlement of all his claims against the Republic «ansing from any cause and of any nature 25 whatsoever» Relying on the last aforementioned fact, the appellant in 1980 filed acivilactionagainst theRepublicclaiming paymenttohimof theaforesaid amountof £1,682 - allegedly due tohimby virtue of the aforesaid settlement dated 24 11 1978 reached in Recourse 30 No 243/78 His claim was heard and dismissed by the District Court of Nicosia Hethen filed Civil Appeal No 6539 against the judgment dismissing his claim, which was also dismissed on 8th March, 1984 Thejudgment of theSupreme CourtinCivil Appeal No 6539 isreported in

(1984)1J S C 4 35 In the meantime and in particular on 24th March, 1981, the appellant filed with the Distnct Court of Nicosia the Onginating Application No 8/81 undersections 19 and 20 of the Arbitration Law, Cap 4, praying for an orderinthefollowing terms «

(1)Διάταγμα του Σεβ Δικαστηρίου διατάττον την 243 ItovudjisJ. Ceorghiades v. Republic

(1989)ακύρωσιν και/ή παραμεριομόν και/ή παρατιομτιήν προς επανεξέτασιν υπό του Διαιτητού Χρ. Κ. Στεφανή ή οιουδήποτε ετέρου Διαιτητού ως ήθελεν θεωρήοη οκόπιμον να διορίση το Σεβ. Δικποτήριον μέρους της εκδοθείσης αποφάσεως του εν λόγα> Διαιτητού κατά 5 την 19.8.78 αφορούσης τας υπό του Αιτητού εναντίον των καθ' ων η αίτησις Απαιτήσεως υπ' αριθμόν 2, 3, 4, 5, ft, 7,11,16 και 17όπως επίσης και τας υπό των καθ' οϊν η αίτησις εναντίον τ ο υ Αιτητού Απαιτήσεις υπ' αριθμόν 3 και 4 ως αύται απαριθμούνται εν τη ί ο απόφαση του Διαιτητού λόγω τ ο υ ότι ο Διατητής κακώς και/ή εσφαλμένως εχειρίσθη την υπόθεσιν (misconducted himself) και/ή διεξήγαγεν την Διαιτησίαν και/ή εξέδο>σεν την απόφαοιν του ακαταλλήλως και/ή εσφαλμένως (improperly procuredthe arbitration or the a- 15 ward) ή τ ο ι : (α) Πράγμασι και/ή Νόμω εσφαλμένη. (β) Παραγνώρισις θεμελιωδών Αρχών Δικαίου. (γ) Παρα8ίασις και/ή παραγνώρισις άρθρων 6 και 28 του Συντάγματος. (δ) Παραγνώρισις μαρτυρίας. αξιόπιστου και/ή 20 αποδεκτής (ε) Ανακάλυψις νέας μαρτυρίας. (στ) Εσφαλμένη ερμηνεία και/ή εφαρμογή Νόμου εμφαινομένη καταφανώς εις την απόφασιν τ ο υ 25 Διαιτητού. (ζ) Σκόπψος και/ή δολία απόκρυψις μαρτυρίας υπό των καθ' ων η αίτησις. (η) ΠροκατάλειψιςΔιαιτητού ειςβάρος Αιτητού». Itfollowsfrom the aboveprayerthat the appellantseekstohave 30 part of the Award either set aside or remitted for reconsideration by the Arbitrator and the main ground relied upon is the alleged misconduct or improper procurement, of the Award by the Arbitrator. The Arbitrator himself was made respondent to the application. 35 On being served with copy thereof, he opposed the application 244 I I M..R. (leurRhiades*. Republic Itovadjis .|. and in his affidavit sworn in support oi his opposition on 7th Seotemher, 1982, he denied that he either misconducted himself or theproceedings or that he improperly procured the Award. The Republic also opposed the application. In the affidavit 5 sworn on 18th January,

1. by Mikis Zapitis in support of the opposition, much reliance is laid on the settlement reached in Recourse No.243/78whereby, itisalleged, theappellant waived and/or isestopped from seeking thesetting aside of the award. After several adjournments Application No. 8/81 was fixed for 10 hearing on 22.4.1983.The appellant and the two respondents to the application appeared in Court on that date through their counsel who made a joint statement in Court to the effect that there were two preliminary legal issues involved in the application, namely, (a) whether the appellant had followed the 15 correctprocedurebyfilinganapplication instead ofanaction,and (b) whether the appellant is estopped by the terms of the settlement reached on 24.11.1978 in Recourse No. 243/78 from proceeding with his application. Counsel then applied for an adjournment toprepare themselves and address the Court on the 20 abovepreliminaryissuesand theCourtgranted the adjournment. The Application was finally heard on 4.7.1985 inthe presence oftheappellant andthe Republiconly.TheArbitratordid not take part,evidentlybecause heknewnothingofthesettlement reached between the appellant and the Republic after the delivery of his 25 Award.Mr.GavrielidesfortheRepublicwasthefirsttoaddressthe Court on the preliminary issues (a) and ib) above. In fact, he confined himself to issue (b)above.The appellant who appeared without his counsel, stated that he was not ready and applied for an adjournment; he also stated that he wished to cross-examine 30 theaffiant whohadsworntheaffidavit insupport ofthe Republic's opposition. The hearing was adjourned to 19.12.1985 when the Court allowed the appellant who had again appeared without his counsel, to cross-examine the Republic's affiant, though the purpose of the hearing was the resolving of the preliminary legal 35 points set out herein-above. At the conclusion of the crossexamination, the appellant addressed the Court. The reserved ruling of the Court was delivered on 8th March,
2. Appellant's application was thereby dismissed for the following tworeasonstaken cumulatively: 245 BojadjisJ. Georghiades v.Republic

(1989)(a)Paragraphs (b)and (

1. c)ofthesettlement reached in Recourse No. 243/78, properly construed, cover all claims ofthe applicant against the Republic of whatever nature including his right to apply tohave the Award of the Arbitrator setaside for whatever reason; and (
2. b)Theaforesaid settlement operates by way of res judicata whereby theappellant isestopped from adjudicating afresh onthe matters covered thereby. Against the above ruling of the Nicosia District Court the appellant lodged the present appeal against the whole ofthe said ruling on the following grounds: *« «1. The Trial Court erred in dismissing the Applicant's application (motion) as formulated in paragraph 1 of the application and/or erred in finding and/or ruling and/or deciding that the written statement «ο δικαστικός συμβιβασμός» filed on the 24th November, 1978,in the Supreme Court operated as estoppel and/or erred in interpreting the said written statement and/or failed to interpret correctly thesaid statement. 2. The Trial Court wrongly found and/or decided that estoppel applied to claims ofthe applicant which were never submitted tothe CouncilofMinistersforconsideration. 15 20 3.TheTrial Courterred inLaw when itthoughtthatitought not to examine the essence of the Application for the remission of theaward inthecase of Government claims 3 25 and 4 and rejected theApplication, because there wasno evidence atallentitling theTrial Courttodoso. 4. The Trial Court erred in Law when it reached the conclusion that the applicant withdrew his application for setting aside orfor remission oftheaward ontheconclusionof 30 his Agreement with theGovernmentashedidwith Recourse 246 I C.L.R. 5 20 15 Georghiades v. Republic Bojadjis .1. No.243/78on the24thNovember. 1978.Onthecontrarythe record shows that the application was before the Supreme Court on the 17th February, 1981.when itwas pointed out immediately that this application should not have been submittedtotheSupreme Court buttotheDistrictCourt.The Applicant carried out the ruling of the Supreme Court. 5. The Trial Court ought not act on the affidavit of Mr. M. Zapitis. whose good faith was challenged and ought not to sustain an objection of the respondent preventing the crossexamination of the affiant. 6. The Trial Court erred in Law when it reached the conclusion that the agreement operated as an estoppel and/ orreleaseoftheclaimswhich mightariseafter theremissionof the arbitrator's award because, as a matter of Law and/or upon grounds of public policy, the Republic cannot be released of its obligations in respect of unpaid emoluments and/or benefits to public servants otherwise than by actual payment ofthesame». Theappellant conducted hisappeal inperson, withoutthe help 20 of counsel. Inhis address he advanced several arguments which mayconveniently begrouped as follows(A) The settlement reached in Recourse No. 243/78, which would have indeed operated as an estoppel had the Republic performed its own obligations under it, does not so operate 25 following the failure of the Republic to forgo the amount of £1,682.- referred totherein.The fact that therepublic has instead deducted that amount from a sum larger than the amount of £1,389.-before the lattersum waspaid tohim insettlement ofall his claims, in breach of its obligation under the settlement, has 30 released him, appellant added, from his corresponding obligations under the same settlement. (B)ThetrialCourtdidnotconstruecorrectlyparagraph (c)ofthe settlement and inparticularthe word «forgoes» found therein. (C)ThetrialCourtwronglyheldthatthesettlementcovered the 35 claimstowhich hisApplication No.8/81 referred. 247 flotadjis J Georghiades v. Republic (19S9) 'D) Thetrial Court wrongly failed toexamine theaward and his application on theirmerits (L)The trial Court did not conduct a fair tna! in that it did not allow him to cross-examine the Republic s affiant on relevant manors (F) The trial Court wrongly ignored the fact that the appellant, being acivil servant cannotvalidlyabandon hisrights tohis salary and other emoluments covered by the post in the civil service which he was holding We ^hall deal with theabove arguments in the aforesaid order 10 We shall consider the first two arguments together Arguments (A)and (B) in support of his argument that, in the circumstances of the present case, he is not estopped by the settlement reached in Recourse No 243/78, the appellant relied on the following 15 extract from the Book Estoppel by Representation by Spencer Bower and Turner 3rd Ed .atρ 395 « it cannot be inequitable to proceed to enforce legal rights, notwithstanding a promise nottodo so, if thatpromise was in turn dependenton theperformance of anothermutual 20 promise, m respect of which the representee has not nerformed his part of the undertaking» The above passage was in fact taken from the judgment of the Court of Appeal of New Zealand in Re Goile, Ex ρ Steelbuild Agencies Ltd

(1963)N Z L R 666, CA , to which he also 25 referred We must state from theoutset thatwe find ourselves unable to agtee with the opinion expressed by the trial Court that the doctrine of res judicata applied in the present case None of the contentsof thesettlementnow inissuewere eithermattersinissue 30 or the subject of adjudication and judicial decision by the Administrative Judge in Recourse No 243/78 which was dismissed following the extrajudicial agreement reached between the parties The mere fact that the terms of thatagreement were filed in Court as an exhibit does not constitute its terms a matter 35 adjudicated upon by the Administrative Judge The estoppel in thiscase does notanse from theapplication of thedoctrineof res judicata,butfrom thecontractorsettlementof thepartiesitselfand 248 ^ 1 C.L.R. Geoi ghiades ν Kepubhi BojadjisJ itisimmaterialwhetheritwas filedmCourtornot Estoppel arising from contract, being a species of estoppel by repiesentation entitles the one party to the contract to insist in apioper case ιe where his promise is dependent on the performance of another 5 mutual promise by the other party tothe contiact.that before he be held boundandestopped by his promise, theotherparty must also perform his own corresponding obligation The mutual promise by thepromisee, the respondent Republic inthis case is its undertaking toforgo any claim in r espect of any sum found to 10 be due by the appellant tothe Republic in the Arbitrator's award ι e the amount of £1,682 The appellant complained that thp Republic did notperform theabove promise andinviewof this he now allegesthattheRepublic cannotinsist thdthebe boundand/ or estopped by his mutual promise not to raise any other claim 15 whatsoever against the Republic 20 25 30 35 "" As itiscommonground that,inreaching a*thesum of £1,389 paid totheappellant infull settlement of his claims,theamouniof £1 682 - due by huntotheRepublic undertheArbitraior's award had been deducted from alarger amount, itbecomes pertinentto examine whether thi-> deduction constitutes a breach of the aforesaid obligation of the Republic under the sub judice settlement This same matter has been adjudicated upon and determined by the District Court of Nicosia that tned the appellant's action against the Republic for payment to him of the same sum of £1,682 By its judgment .n the action the Nicosia Distnct Court had placed a differrent construction on the words «the Republic of Cyprus foregoes» set out in para (c) of the settlement, than theone suggested by the appellant and repeated before us, and dismissed, as a result, the appellant's claim That judgment of the Distnct Court was confirmed on appeal by the Supreme CourtinLefkos Georghiades ν Attorney-General of the Republic

(1984)1J S C 4 (Civil Appeal 6539) The judgment in the last aforesaid case gives nse to the doctnne of res judicata whereby the appellant is estopped from adjudicating afresh the matters covered by the judgment, which include the correct interpretation of the settlement as far as his claim to the sum of £1,682 -isconcernedandhisallegation thattheRepublic failed to perform its obligation under the settlement concerning the same amount Be that as it may, although in their corresponding addresses before us both parties referred to the judgment'in Civil Appeal 6539(supra), none referred toitortoits repercussions before the 249 Bojadjis J . Georghiades v. Republic

(1989)inalCourt Thejudgmentwas issued after theRepublichadfiled its opposition and, therefore, it was impossible to refer to it in the affidavit accompanying it Yet, Application No 8/81 was heard long after the issuing of the above judgment and the Republic could have raised the matter m a supplementary affidavit They 5 failed however, to do so with the result that the matter was not raised oi argued at all before the trial Court Pursuant to authonty (see in this respect 1) Chnstodoulos Nissis(No 2) ν TheRepublic

(1967)3 C LR 671, 2) Stavros Othonos and Another ν The Republic (Rev Appeal No 720, not yet reported*, and 3) 10 Republic ν Ρ HadjiPanteh (Rev Appeal 827,judgment delivered on 25 4 1989*, not yet reported), the matter cannot, in the circumstances be taken onappeal Hadthisbeen permissible, the judgment in Civil Appeal 6539** would have been conclusive answer tothe appellant's present arguments (A)and (B) 15 Although for the reasons just explained, we refuse to treat the judgment inCivil Appeal No 6539asgivingrise tothedoctrineof resjudicata, itstill carries the force of judicial precedent regarding the correct interpretation of the word «foregoes» mthe contextof the sub judice agreement Delivenng the unanimousjudgment of 20 the Court,A Loizou,J ,(ashe then was) said thefollowing onthe matter now in issue at pp 14-15 of the report «We have no difficulty in dismissing this appeal as the settlement (Exhibit 1)referred to and,inparticular, paragraph (

1. c)thereof, makes it abundantly clear that the amount of 25 £1,389- received by the appellant was arnved at after deducting from a bigger amount, namely, the amount of £3,071 -as shown inExhibit 5,theamountof £1,682 -which had been found by theArbitrator as due tothe respondent The argument advanced onbehalf of the appellant thatthe 30 Republic has foregone payment of thisamountand therefore it had to be refunded to him once it was deducted from the claims, cannotstand as itwas obvious thatthe whole dispute was settled by the payment of the £1,389 - amved at after deducting this amountfrom the total claims made and thisis 35 made clearby reading paragraph (
2. c)of thesettlement, Exhibit 1 in the context of that settlement and not by isolating a particular part of itanddisconnect itfrom the rest *(J988) Tobe reportedin

(1989)3 CL R *· See Georghiades ν Attorney Generalof Ae Republic

(1984)1J S C 4 250 1 C L.R. Georghiadesv. Republic BoyadjisJ. For allthe above reasons thisappeal isdismissed and very reluctantly we follow the course adopted by the trial Judge andmake noorder astoco^ts» Weadopttheaboveinterpretation andwereject thesubmission 5 of the appellant that the Republic has not performed its mutual promise under the agreement Itfollows that there isno merit in the allegation set up by the appellant as an excuse for retreating from hispromiseunder theagreement Theappellant who, under and by reason of the settlement, has received the amount of 10 £1,389 -«infullsatisfaction ofanyotherclaimhemayhaveagainst the Republic of any nature whatsoever and he hereby declares that he has no other claim against the Republic arising from any cause and of any nature whatsoever», isby the same agreement estopped from raisinganyclaim covered byit,provided of course 15 that the agreement is not invalid or uneforceable for any of the other reasons put forward by the appellant which v*e shall presently examine Argument (C) Thequestion iswhether para (c)ofthesettlement coversornot 20 the claims of the appellant which by his award the Arbitrator refused to allow to him and/or the claims of the Republic which theArbitratorallowedagainsthim Theanswertothequestion isin the affirmative The words inpara (c)of the agreement are clear and unambibuous and too general to admit any exception The 25 appellant argued that, even if he is estopped by the sub judice agreement forraisinganyclaimsagainstoftheRepublic,sincethe settlement does not refer to the claims of the Republic allowed bytheArbitratoragainsthim,heisfree tochallengethepartofthe award whereby a total sum of £2,975 - claimed by the Republic 30 was allowed against him We reject thisargument Out of all the claimsofthe appellantagainsttheRepublictheArbitrator allowed a total sum of £1,293 - which was set off against the aforesaid amount of £2,975 -leaving a balance of £1,682 -stillpayable to the Republic Ifwe were to accept the argument of the appellant 35 the result would have been that he would be free to raise a claim jgainst the Republic at least for the sum of £1,293 - which was found duetohimbutwassetoff againstthelargersumof£2,975 allowed by the Arbitrator against him and in favour of the Republic We are convinced that by virtue of para (c)of the sub 40 judice agreementtheappellant isestopped from challenging each and every partof theArbitrator's award 251 Ho)adjis.I Georghiades ν Republic

(1989)Argument (D) The appellant complains that the trial Court wrongly failed to examine and adjudicate upon the merits of his application andof his compaints against the award and against the conduct of the Arbitrator This argument is completely untenable As it appears 5 from the record of the proceedings, the Court had acceded toa common suggestion andrequest of counsel appcanngforall sides on 22 4 1983 which was repeated on 23 11 1983 thatthe Court would first hear and determine the preliminary issue of whether the appellant is estopped from prosecuting further his application 10 by reason of the settlement reached on 24 11 1978 in Revisional Junsdiction Case No 243/78 ThetnalCourtsetthecase down for hearing the above issue pursuant to the joint suggestion of the parties and conducted the trial on that ISSUPalone and not on the merits of the matters raised by the appellant's application 15 Argument (E) The appellant complains that the trial Court sustained an objection raised by counsel for the Republic whereby he was denied his right tocross-examine onrelevant mattersMikisZapitis who had sworn the affidavit filed in support of the opposition of 20 the Republic He drew our attention to the relevant parts of the record which show thatin atleast two occasions questions put by the appellant tothewitness were disallowed by thetnalCourt after objection raised by counsel for the Republic We have examined the record of the proceedings and the 25 rulings of the tnal Court challenged by the appellant and we are satisfied that the Court was nght in disallowing the appellant's questions as irrelevant On one occasion theappellant had asked the witness of his opinion regarding the meaning of the word «foregoes» found in para (c) of the sub judice agreement On 30 another occasion theappellant had asked thewitness whether his claims against the Republic which were disallowed by the Arbitrator are covered or not by the words used in the aforesaid agreement Both questions were clearly irrelevant The construction of a written agreement is a legal issue to be 35 determined by theCourtwith reference tothe meaningand effect of the words used and not with reference to the opinion of the witness 252 1 C.L.R. Georghiadesv. Republic Bojadjis J. Argument (F) ,Before the trialCourtthe appellanthas arguedthathecannotin law validly abandon his right to his earned salary and other emolumentstowhich he is entitled by virtue of the post which he 5 held. Herepeated hisargumentbefore usadding that,sincebythe sub judice agieement he purports to abandon his right to receive earned salaries andotherbenefits, theagreement isagainst policy and unenforceable. The trial Court wrongly failed to deal at all with the above 10 submission of the appellant in its ruling now under appeal. Insupport of hissubmission theappellantdrew ourattentionto. inter alia, the followin passage from the Greek textbook «Διοίκηση καιΔίκαιον» by A.G Tsatsosatp 187 15 20 25 «Ο δημόσιος υπάλληλος δεν δύναται να αρνηθη την λήψιν των αποδοχών αυτού, ως δενδύναται γενικώςνα αρνηθη τα παρεχόμεναεις αυτόν £κι ηςκαταστάσεως του πλεονεκτήματα. Συνεπώς, δεν δύναται να παραιτηθή του επί του μισθού δικαιώματος αυτού. Τοΰτο ώρισεν ο Υπαλληλικός Κώδιί, εν άρθροΜ π α ρ . 2, αναγαγών εις πειθαρχικόν π α ρ ά π τ ω μ α την μη είσπραξιν των αποδοχώνεκ μέρους του υπαλλήλου. Παραίτησις α π ό των αποδοχών γενικώς θα ήτο άκυρος και δεν θα απέκλειετην αναζήτησιναυτών, ως αντικείμενη ειςτηνδημοσίαντάξιν, λόγωτουωςείρηται χαρακτήρος των π α ρ ο χ ώ ν τούτων, αίτινες αποβλέττουσιν εις το <">·)μφέρον της δημοσίας υπηρεσίας». Itbecomes pertinentinthisrespect toexamine thenatureofthe appellant's claims against the Republic which the Arbitrator 30 disallowed either partly or fully and against which we have found that the estoppel raised by clause (c)of theagreement operates as having been unreservedly abandoned by the appellant. Those claims are adequately descnbed inthe Arbitrator's award which is before us.They are indentified thereinas Claims Nos. 1,2,3,4.5, 35 6, 8 f 11, 12, 14,16 and 17.Noneof those claims relates toearned salanes. Most claims concerntravelling expenses and subsistence expenses allegedly incurred by the appellant in connection with thehearings of hiscase before thePublicService Commission and expenses which he alleged thathe had incurredinordertosecure 253 Bfnadjis J Georghiades v. Republic

(1989)evidence from abroad to help his case Some claims concern special allowances or special subsistence or increased hospitality allowance or education grantsfor hischildren towhichhewasnot found entitled under the Government regulations, and his allegations that he had been orally promised such increased 5 benefits by the late President Archbishop Makanos had not been substantiated Another claimconcerned actualexpenses allegedly incurred for packing and transport of his household effects from Moscow to Nicosia which he could not, however, prove Oneof his claims was for subsistence for 946 days for hisstay in Nicosia 10 following his alleged recalling from Moscow, which was disallowed on the ground that he had been transferred and not recalled to Nicosia Another claim concerned travelling expenses of hiswife on three occasionstoaccompany him toa reception at Helsinski, to which he was not entitled under the Government 15 regulations Inview of all the above we are satisfied that bythe sub judice agreement theappellant hasnotabandoned eitherearnedsalaries orbenefits towhichhewasentitledundertherelevant regulations in force govern.ng the post which he was holding at the material 20 time In the circumstances, the question whether the sub judice agreement inagainstpublicpolicyorunenforceable doesnotarise since itsfactual substatrum, asalleged bythe appellant, remained unsubstantiated For the reasons which we have endeavoured to explain 25 hereinabove, the appeal is dismissed with costs against the appellant Appeal dismissed withcosts 254