Court allows amendment to claim compensation for injurious affection from future trunk road declaration.

[*7] 1973 May 12

(PIKIS, AG. P. D.C.)

IN THE DISTRICT COURT OP NICOSIA

Yiannis S. Yiannikouri,

Claimants

V.

The Republic of Cyprus,

Acquiring Authority.

(Reference No. 33/70).

Civil Procedure - Pleadings - Amendment - Discretion of the Court - Principles applicable - Compulsory acquisition - Proceedings for assessment of compensation - Subsequent declaration of road, abutting property subject-matter of proceedings, into a trunk road - Whether statement of claim can be amended so as to claim compensation in respect of injurious affection caused by virtue of said declaration.

A. Triantafyllides, for the Applicant.

K. Michaelides, for the Respondent.

RULING

The following ruling was delivered by:-

PIKIS. AG. P.D.C.: After the exchange of the [*8] documents prescribed by the Compensation Assessment Tribunal Regulations, the claimant seeks by the present application to amend his statement of claim so as to claim compensation in respect of the declaration of the main Famagusta-Nicosia road, and in particular that portion of the road abutting his property,into a trunk road. The application is opposed mainly on the ground that the matter sought to be introduced is irrelevant to the present proceedings so much so that had such an allegation been originally included in the claim, they would find themselves compelled to apply that it be struck out on the ground of total irrelevance.

Judging from a perusal of the affidavit sworn in support of the application, the main consideration that has prompted the applicant to move for this amendment is his anxiety to bring his grievance for the loss allegedly suffered in consequence of the declaration of the aforesaid road into a trunk road before the appropriate Court, being in doubt as to which Court has competence to entertain his complaint.

It is well settled that the Court will, before the hearing, readily accede to an application for amendment, provided that the matter sought to be introduced is relevant. The Court will not at this stage pronounce, or in any way go into the merits of an averment and must, as a matter of prudence, be very cautious before excluding, from the framework of the trial, allegations which in the view of the litigant who advances them are relevant and advance his cause. In the White Book, the 1962 edition, at pages 624 and 629, there is a detailed discussion of. the considerations [*9] that usually govern the exercise of the Court's discretion in allowing or refusing an amendment before and often during the hearing of the action. In the ordinary span of events, the discretion is freely exercised in favour of amendment: this will not, however, stop the Court from ruling against the application where the allegation sought to be introduced is evidently irrelevant and would be of no assistance to the determination of matters in dispute and protract the proceedings unnecessarily.

In accordance with Law 15/62, a special procedure is enacted for the assessment of the compensation payable to a party dispossessed or injuriously affected by an act of acquisition. In contrast to the order that prevailed before Independence, when jurisdiction to try case of acquisition was vested, in a Tribunal specially composed for the purpose, jurisdiction to determine compensation payable under Law 15/62 is vested in the District Court. This has apparently given cause to Mr. Triantafyllides to argue that there is no reason, in principle, why a Court seized of a notice referring to It a matter of compensation accruing under Law 15/62, should not, in the same spell, take cognizance of another limitation affecting the same plot of land imposed in virtue of another Law, albeit subsequently. Mr. Michaelides has strongly argued to the contrary and contended that there is no nexus between the two acts, so much so that the two could not be linked by any streak of the imagination.

I have carefully considered all that has been said and have in mind a number of decisions of the Supreme [*10] Court where it has been stressed that the interests of justice constitute the predominant consideration, subject to what has already been said, that should guide the Court in the exercise of its discretion whether to allow an amendment. It must be appreciated that the District Court, when moved to adjudge compensation under Law 15/62, though hot a special Court in any sense of the word, its jurisdiction is limited to matters fairly incidental to the acquisition. In the last analysis, subject to minor exceptions, it inherited the jurisdiction of the Compensation Assessment Tribunal, a Court specially assigned to adjudicate exclusively on matters of compensation because of the acquisition of land. There are very many decisions of the Supreme Court laying down that a party aggrieved by a limitation imposed in virtue of an administrative or executive act can have recourse to the District Court and claim compensation. Of particular help is the decision of the Supreme Court in Antoniou v. Municipal Committee,(1968)

8 J.S.C., p. 848 where it was decided that a decision affirming a street widening scheme may,depending on the

degree of injurious affection, amount to a limitation in the sense of Article 23(3), therefore giving rise to a claim

for the loss suffered before the civil Courts. It is also instructive to note the decisions of the Supreme Court in Araouzos

& Another v. Republic of Cyprus (1968) 5 J.S.C., p. 568 and Nicosia Tecalemit Co. & Another v. Municipality of Nicosia (1971) 9 J.S.C. p. 1208. Therefore, in my view, there is no

question of the claimant having no remedy in the event of proving before a civil court loss from a limitation. I go so far as to express a definite view on the matter, considering that this is a [*11] pure question of law. It is a fact that during the hearing of the application I remarked that in so far as matters concerning

injurious affection and betterment are decided as at the date of trial and in so far as the subject acquisition might

foreshadow the declaration of the road in question into a trunk road, this fact as such might be touched upon in the proceedings before the Court in case there is evidence tending to establish that in consequence of this possibility injury was occasioned to the οwner. On the other hand, I am definitely of the view that it would be impermissible to allow the applicant to raise in these proceedings matters relating to the consequence of the declaration of the road in question into a trunk road, a matter in respect of which this Court has no jurisdiction. My decision is that the applicant will be allowed, if he so wishes to amend his claim by making an averment to the effect that the act of acquisition in question caused injurious affection to his remaining property on account of the possibility

that the road might, in the future, be declared into a trunk road, but nothing more. The costs of this application and any

costs that may be thrown away are to be borne by the applicant.

Application partly allowed.

Costs by the applicant.