Civil action dismissed because plaintiff failed to notify Attorney-General prior to suing on a felony claim.

[*313] 1976 October. 21

(ARTEMIS, D.J.)

IN THE DISTRICT COURT OF FAMAGUSTA SITTING

AT LARNACA

Panayiotis Malli,

Plaintiff,

and

Georghios Toumpa and Others,

Defendants.

(Action No. 237/75).

Civil Procedure - Practice - Stay of proceedings - Claim based on felony - No written notification to the Attorney-General of the Republic prior to institution of the action - Action dismissed - Section 67 of the Civil Wrongs Law, Cap. 148 (as amended by Law 87 of 1973).

M. HadjiChristofis, for the Plaintiff.

A. Kramvis, for Defendants 1,3,4,5,6.

RULING

The following ruling was delivered by:-

ARTEMIS,D.J.: Soon after the hearing [*314] of this case commenced, the point was raised whether the facts upon which the present claim is based do not also constitute a felony, in which case the action could not have been instituted without prior notification in writing to the Attorney-General by the plaintiff. To a question put by the Court learned counsel for the plaintiff stated that no such notification had been given. This being a question of law, and feeling that a decision on the matter might dispose of the whole action thus saving costs and valuable time, if made at this early stage, I called upon counsel to address me on the matter with a view to determining the question here and now.

Mr. HadjiChristofis, citing authorities, argued that no felony was disclosed from the Statement of Claim with the required certainty, while Mr. Kramvis argued to the contrary. The relevant section of our law is s. 67 of the Civil Wrongs Law, Cap. 148, as amended by Law 87 of 1973, which reads:

"It shall be no bar to any action in respect of a civil wrong that the facts upon which such action is based constitute a crime or offence under the provisions of any enactment:”### [*315]

It is clear from the above provisions that notification to the Attorney-General is a condition precedent to the institution of proceedings and therefore, in its absence, if the tort is based on a felony, the action will be a nullity and will have to be dismissed. This provision and, in particular, as it was prior to its amendment by Law 87 of 1973, was a reproduction of the English rule finally formulated in the case of Smith v. Selwyn (1914) 3 K.B. 9, that in such cases an injured party should not be allowed to pursue his own remedy in preference to furthering the ends of public justice; he therefore has first the duty to prosecute the felon and then sue for his private remedy. The force of this principle has been impaired today as most prosecutions are brought by the police. It should also be observed that it does not cover misdemeanours, often more serious crimes than certain felonies. Nevertheless,

the rule was firmly established in Smith v. Selwyn (supra) and its principle was defended in Henry Haskin & Co. (Pty) v. Hooke (1954) V.L.S. 300

at p. 303. Originally it was said that the rule turned on a matter of public

policy and was thought that the civil wrong merged in the felony, (Higgins v. Butcher (1606) Yelv. 89; Stone v. Marsh (1827) 6B & C. 551) but then the rule was

that the private remedy is merely suspended, the sole object of the law being to guard against the stifling of prosecutions.

In Cyprus, after the amendment of s. 67, it is evident that the object of the law is to bring to the notice of the Attorney-General, the person responsible for public prosecutions, the commission of alleged felonies so that the [*316] furtherance of public justice may be achieved. This, if I may say so, is a much happier state of affairs as no delay is caused to the citizen in pursuing his private remedy as the only thing he has to do is merely the notification and as he need not await for the prosecution of the felon. The Court should not dismiss the action in the absence of written notification, unless it is shown conclusively that the plaintiff's claim is based on felony and on nothing else. The leading case on this point is that of Jack Clark (Rainham) v. Clark (1947) 176 LT 180; (1946) 2 All E.R. 683. In deciding the matter the Court need not confine itself to the Statement of Claim but may act on any relevant document produced or on any matter properly brought to its notice. In that case it was alleged in the Statement of Claim that the defendant without authority removed a container with money kept in a wardrobe, and refused to return the money. There was an affidavit by the defendant in another application in the same action, stating that she was a director of the company, owners of the property, and in view of this the facts were equally consistent with fraudulent conversion as well as larceny, the former being a misdemeanour. The application for a stay of proceedings was therefore held to have been rightly dismissed. The relevant parts of the Statement of Claim in the present case are as follows (in translation): -

"1. The plaintiff was the person in possession and/or owner of an ’IDEAL’ shotgun Reg. No. FG 1478.” [*317]

"3. On or about the 17.7.74 defendants 1 to

6 visited the plaintiff at his house at Lyssi and after threats and pressure forced him to carry and deliver the said shotgun to defendant 7 whom they had indicated.”

"4. The plaintiff as a result went and delivered without his free will his shotgun to defendant 7 who took delivery and possession of it.”

”5. It is the plaintiff’s allegation that the obtaining (###) of his shotgun by the defendants was effected unlawfully, unjustifiably and without any right.”

"7. The plaintiff repeatedly demanded from the defendants the return of his shotgun.... but they refused and/or failed to return the same".

If one compares the statement of claim in this case and that in Clark’a case (supra), one will find many similarities. No actual offence, i.e. larceny, is alleged by name in either claim while on the other hand the unlawful and wrongful nature of the removal of the property is actually alleged. Morton L.J., leaving aside the existence of the affidavit in that case, had this to say on the facts as disclosed by the Statement of Claim (at p. 684):-

" I think there is much force in the argument of counsel for the defendant that, looking at the statement of claim alone, It is consistent with an allegation of felony ". [*318]

He then went on to examine the said affidavit, on the basis of which the position was altered as the Statement of Claim should be seen in a new light.

Learned counsel for plaintiff argued further that the Statement of Claim should disclose the felony beyond doubt, basing himself on the words of Tucker, L.J., in the same case who said (at p. 685):-

"It is a very drastic step to stay an action at this early stage and I think it should only be done when the statement of claim discloses beyond a shadow of doubt that the action is one founded on felony ...the facts set out in the statement of claim do not use the word ’fraud' or ’fraudulently'. They do not use the word 'larceny'... the word 'theft'. That occurs to me to be curious if it can be said that beyond a peradventure of doubt the claim is one founded on felony. many of the necessary ingredients of larceny are not specifically alleged".

It is clear that some conflict may be discerned from the above two extracts of the judgments. While Morton L.J. seems to incline to the view that, were it not for the affidavit, the Statement of Claim would disclose larceny, Tucker L.J. has even doubts on this as the necessary ingredients of larceny are not expressly mentioned and the actual word larceny is not used in the Statement of Claim.

One, however, might explain the observations of Tucker L.J. as made in the light of the then existing affidavit, showing the possibility of the commission of a [*319] misdemeanour on which the claim might have been based. For, if it were otherwise, it would be unreasonable, with all due respect to the learned judge, not to stay an action if it were plain otherwise that the claim was based on a felony but all the ingredients were not specifically named and the felony was not expressly mentioned in the Statement of Claim.

What the Court has to decide, is whether it is satisfied that the Statement of Claim discloses the commission of a felony and nothing else, on which the claim is based. It has been stated in Court by Mr. HadjiChristofis that his case is that there was no "animus furandi" at the time of the taking. In my judgment, however, this is not a matter that should carry any force as it is not something that is "properly” before the Court, in the sense that the affidavit was in Clark' s case, and it should be disregarded, and the question should be decided on the Statement of Claim and the evidence already adduced before me.

Having carefully considered the facts set out in the Statement of Claim and all relevant material before me in the light of the above mentioned principles and having in mind the observations of Morton L.J. at p. 684 E. in conjunction with the Statement of Claim in Clark' s case, I am satisfied that the claim here is based on felony and nothing else, i.e. larceny by intimidation, and as there was no written notification to the Attorney-General prior to the institution of the action, I have no alternative but to dismiss the action. [*320]

The action is therefore dismissed. As the defendants could have applied from the initial stages of the proceedings for the striking out of the claim as disclosing no valid cause of action thus saving expenses and costs, I make no order as to costs.

Action dismissed. No order

as to costs.