Cypriot Supreme Court dismisses late application to set aside default judgment due to strict 15-day filing rule.

[*40] 1975 June 16

(BOYIADJIS, S.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Georghios Argyrides,

Plaintiff,

and

Elpidha Andreou and Another,

Defendants.

(Action No. 1884/74).

Civil Procedure - Judgment obtained by default of appearance at the trial - Application to set it aside - Must be filed within 15 days after the trial - Rule 5 of Order 33 of the Civil Procedure Rules.

E. Nicolaou, (Miss), for L. Clerides, for Applicants-Defendants.

N. Andreou for Messi-Argyridou (Mrs.), for Respondent-Plaintiff.

RULING

The following ruling was delivered by:-

BOYIADJIS, S.D.J.: By their application filed in [*41] Court on 2.4.1975, the applicants-defendants seek to set aside the

judgment of this Court given against them on 17.2.1975 in their absence.

The indorsed claim of the plaintiff against both defendants was for value of goods sold and delivered to the 1st defendant under the written guarantee of the 2nd defendant.

As it appears from the record of the proceedings both defendants entered an appearance in the action on 4.4.1974. Immediately afterwards, the plaintiff applied in Court for summary judgment against them under 0.18, r.1. The application was opposed by the defendants and after it had been adjourned twice due to the failure of the defendants to file notice of opposition, the parties finally agreed on 29.6.1974 that leave to file defence would be granted provided the action is put on the short trial list. The action was there and then adjourned for hearing to 12.9.74 with directions that the defence should be filed within 10 days.

On 12.9.1974 the hearing could not proceed because the defendants had failed to file their defence and the action was again by consent adjourned for hearing to 15.10.1974 with directions that the defence be filed within 10 days.

On 26.9.1974 the Defence was filed.

It was therein alleged that defendants were debited with a [*42] higher sale price than the one agreed and defendant 1

further counterclaimed for £300.- being her travelling expenses and her commission for services allegedly rendered to the defendant.

On 15.10.1974 the plaintiff was abroad and the action was again adjourned by consent to 9.12.1974 this time for mention with a view of settlement. On 9.12.1974 in the absence of both litigants their counsel applied for a new date for hearing and the action was adjourned for hearing to 17.2.1975.

On 17.2.1975 the defendants did not appear in Court. In fact the defendants had never appeared on any of the previous dates. Their counsel informed the Court that he had duly notified them in writing of the new date of hearing and because they had failed either to call at his office for the instructions necessary for the trial, or to appear in Court as requested, he applied for and obtained leave of the Court to withdraw. After his withdrawal the plaintiff proved his case against them under the provision of 0.33, r. 3 and judgment was given by the Court against them as per claim with costs; the counterclaim was dismissed.

The judgment was drawn up on 19.2.1975 and a writ of execution against defendant’s movables was issued. Defendant 1 was approached for the purposes of the execution of the said writ.

Soon afterwards the defendants filed their present application. In fact 44 [*43] days had elapsed between the date of the judgment and the

date their application was filed.

The respondent-plaintiff opposed the application on the ground that it was filed out of time and also that there is no defence to the action and defendants’ intention is to prolong unreasonably the proceedings.

The facts upon which the application is based appear in the affidavit sworn in support thereof by defendant 1 on 31.3.1975. It is therein alleged that defendant 1, being abroad on 17.2.1975, did not receive the letter of her counsel informing her of the date of the hearing. Defendant 2 did not receive any letter because, as his counsel explained in Court, he was always informed through defendant 1 and not directly. Both sides relied on their respective affidavits and neither adduced any other evidence nor did they give any notice to have any of the affiants in Court for purposes of cross-examination.

The application is stated to be based on 0.33, r.5 which reads as follows:-

"Any judgment obtained where one party does not appear at the trial may in a proper case be set aside by the Court upon such terms as may seem fit, upon an application made within 15 days after the trial." [*44]

Learned counsel for the applicants submitted that 0.33, r.5 gives the Court the necessary discretion to allow or refuse the application and that the present case is a proper one for the exercise of the discretion in applicant’s favour. With reference to the period of 15 days mentioned therein, counsel for the applicants urged the Court to interpret the enactment as meaning that the aforesaid period will run from the date when defendants had actual knowledge of the issue of the judgment against them i.e. in or about the end of March, 1975, and not earlier. The object of the Rule, she added, is to give a party to the action a second chance to be heard, and any other interpretation would result to complete frustration of its object.

The Court has power to set aside a judgment under several orders other than 0.33, r. 5. Under 0.17, r.10 the Court may set aside a judgment obtained by default of appearance; under 0.26, r.14 a judgment obtained by default of pleadings, under 0.26, r.15 at the application of a stranger, a judgment allowed to be obtained by the default of the defendant; and under 0.33, r.15, at the application of any person, a judgment obtained by fraud.

All the above enactments have something in common in that they allow the Court to intervene only in a proper case and it is in this sense that the discretion of the Court comes into the picture. Yet, none of these [*45] orders places any limitation as to the time within which the application should be filed. Only 0.33, r.5 requires in a mandatory language that the application must be filed within 15 days after the trial. To my mind it is very clear that the Court can go into the merits of the application and exercise any discretion at all only in case the application was filed within 15 days after the trial.

The meaning of the words "after the trial” is clear and explicit. The period of 15 days starts after the trial is concluded, i.e. after judgment is given by the Court finally disposing of the issues raised in the action. This period elapsed long before the present application was filed.

Learned counsel for the applicants is asking me to read words into the Rule which the legislature have omitted, in order to give effect, as she alleges, to the intention of the legislature and the object and purpose of the enactment. But "if the words of the statute are in themselves precise and unambiguous no more is necessary than to expound these words in their natural and ordinary sense the words themselves in such case best declaring the intent of the legislature”:- per Hadjianastassiou, J. In Anthoulla Papadopoulou v. Xenophon Polykarpou, (1968) 1.C.L.R. 352, at p. 375. [*46]

However unjust or inconvenient the unambiguous meaning conveyed by words construed in their ordinary sense, may be, it must receive its full effect; once the meaning is plain, it is not the province of the Court to question the enactment's wisdom or its policy or to try to make the Law reasonable. See also Loizos Chr. Kanaris v. Osman Tosum (1969) 1 C.L.R. 637; Nina Siman v. The Municipality of Famagusta, (1972) 11 J.S.C. 1584; and Marabou Floating Restaurant Ltd., v. The Republic,(1973) 6 J.S.C. 693.

0.33, r.5. properly construed by reference to the explicit meaning of the unambiguous words used therein, does not result to either an absurdity or repugnance. On the contrary, by adhering to the aforesaid fundamental rule of construction the true and clear intention of the legislature is given "force and life1'. After all, it is in the public interest that there should come a time when litigation should finally come to an end.

The application must, therefore, be dismissed as filed out of time. Even if I were not considering myself bound to dismiss the application for the above reason alone, I would have again dismissed it on its merits. I would have never exercised my discretion in favour of the applicants by coming to their aid, once they exhibited the behaviour stated earlier in my judgment and did their best to prolong the case by employing delaying tactics throughout the proceedings; they never [*47] appeared in Court and repeatedly showed no respect at all to any of the provisions of the Rules relating to time. Furthemore they could and they should inform beforehand their counsel of their intention to go abroad and not leave him in the dark thus obliging him to apply for the leave of the Court to withdraw.

In the result, the application is dismissed with costs against, the applicants to be assessed by the Registrar.

Application dismissed with costs.