Court dismisses appeal where plaintiff confused public path claim with private right of way, refusing late amendment.

[*93] 1964 December 22

(VASSILIADES, MUNIR, JOSEPHIDES, JJ.)

APPELLATE JURISDICTION

Aliki Christodoulou Karmiotis, of Nicosia,

Appellant-Plaintiff,

v.

Michael Pastellis and another, both of Platres,

Respondent-Defendants.

(Civil Appeal No. 4471)

Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 - Interference with right of way - Claim for remedy against obstructing use of alleged pathway - Confusion between right to use public path and exercise of right of way attached to enjoyment of immovable property - Legally, two different rights - Evidence material in one, immaterial in the other.

Civil Procedure - Claim - Amendment of claim in final stages, refused.

G. C. Tornaritis, for Appellant.

A. P. Paikkos, for Respondent.

JUDGMENT

VASSILIADES. J.: This is an appeal from the judgment of the District Court of Limassol in an action to restrain the defendants from obstructing the plaintiff in her right to use an alleged pathway.

Plaintiff's claim, as indorsed on the writ is:-

"(a) for a perpetual injunction restraining the defendants, their servants or agents from in any way [*94] interfering with the pathway over which the plaintiff has a right of passage, situated at Pano Platres and next to the plaintiff's house under Reg. No.1787, plot 173;

(b) an order directing the defendants to remove any obstruction they have placed on such pathway whereby the plaintiff is prevented from exercising her right over such pathway and restoring it to its prior condition;

(c) damages;

(d) the costs of the action".

It is clearly a claim for a remedy against interference with the right of the plaintiff as a member of the public, to use a public path; i.e. a path within the definition of "public road" in section 2 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, covered by section

8 of the statute.

The statement of claim, however, contains allegations which would be immaterial - and thus irrelevant - to a claim for the right to use a public path, but material to a claim for the exercise of a right of way under section 11 of the statute, which is a right of, legally, a different nature. Paragraph 1 , of the statement of claim, for instance, refers to plaintiff's ownership of a house; and paragraph 2 to defendant's ownership of the adjoining house, which are immaterial to the right to use a public path; and paragraph 4 alleges that the plaintiff had "ab anticuo ..... the right of free and unobstructed use of the said pathway", equally immaterial to the rights over a public path. [*95]

The defence ignores the allegations regarding plaintiff's ownership of property; and particularly denies the existence of such a pathway.

On their first hearing before the Court (2.11.61), counsel on both sides agreed that a local inquiry by the Lands Office was necessary; and an Order was made accordingly, "on the basis of the pleadings".

Appearing for trial more than a year later (7.3.63), the plaintiff's advocate called a clerk of the District Lands Office (P.W.1) who produced an office-copy of a Land Registry plan (exh.1) showing the alleged pathway. This witness stated that there is a public path ending at plaintiff's property and shown on the Land Registry records, which the witness coloured blue on the exhibit. But this appears on the plans "as a blind alley" the witness said. It is common ground that there is no dispute or complaint for any obstruction on the pathway so marked. The Dispute constituting the subject matter of the action, is an alleged continuation of the path in question, (the blue path on the exhibit) through defendant's property, which the witness marked and coloured red on the plan. The witness added that this alleged continuation of the pathway "does not appear on the plan in use and is not shown on the registrations of the parties". (p.9.Ε.). The witness apparently was not asked and does not state whether he actually found a trodden path, open to public use, through defendant's property, when he carried out his local inspection for the purposes of this action. But at the end of his examination-in-chief (p.9.G.) he spoke of "three heaps of earth" in the alleged "right-of-way" - as he now described it - which the witness marked on the plan with a "deeper shade of red". [*96]

Further evidence was called by the plaintiff to prove the alleged pathway. Her husband (P.W.2) stated that it "is noticeable on the spot. It is about seven feet wide. The public were using the said pathway as well" he said; adding that "as from 1944 to 1960 it was open" until the first defendant "closed the pathway" in 1960. (p.11 D and E). Other witnesses, including the village Mukhtar (P.W.4) called by the plaintiff, testified as to the existence and public use of the pathway in question. Defendant's husband who has been living in her house since their marriage more than twenty years ago, stated in evidence that the public blind-alley ends at his wife's property; and that he has always prevented plaintiff, her tenants and othersfrom crossing over his wife's property to get from the blind-alley to the read above.

In his final speech, defendant's advocate submitted that the existence of the public path alleged in the statement of claim, was not proved by the plaintiff; and that as to a right of way under section 11 of Cap.224, no allegation was made in the plaintiff's pleading. Plaintiff's advocate now, Mr. Eliades at that stage, in his final submission said that "the alleged pathway is not a public pathway........... “It is a private pathway over which the right of passage has been exercised by the plaintiff and her predecessors in title".

This confusion as to what was the plaintiff trying to establish: interference with her right to use a public pathway; or, interference with a right of way over defendant's property, as provided in section 11 of Cap. 224, is apparent throughout the trial. [*97]

The learned Dittrict Judge, in his considered judgment, after dealing with the evidence and referring to the provisions of section 11, he concluded that the witnesses for the plaintiff failed to satisfy him that "the alleged right of way has been exercised by the plaintiff or by those under whom she claims, for the full period of thirty years without interruption" as required by the statute. (p.4.E. of the judgment; 21 of the record). And further down in the same page, the Judge, after referring to the allegation that the path in question was a "public pathway" added: "In the way the statement of claim is drafted, I hold the view that even if the evidence on behalf of the plaintiff had been accepted in toto, yet she could not succeed as this evidence does not support the statement of claim". For these reasons he dismissed the action with costs.

At the opening of the appeal before us, Mr. Tornaritis applied for amendment of the pleadings which, as pointed out in the judgment of the trial-court, would be required to connect plaintiff's claim with the evidence adduced. His client's claim is twofold, learned counsel said. She claimed the right of passage over a public pathway; but if the evidence failed to establish a public path, then plaintiff, as owner and occupier of plot 173 claimed a right of way to her plot, over plot 194 now belonging to the defendant (2), and plot 174 belonging to a third person, not a party in this action.

We indicated at that stage that we would deal with the application for amendment, if necessary, after hearing appellant's counsel on the merits. And having done so, we [*98] do not think that this litigation should be allowed to go on further. We refuse the application for amendment, and we find it unnecessary to call on the respondent on the merits.

As we have pointed out during the hearing of the appeal, the right to use a public pathway, or a public road as such, is, legally, of a different nature to the right of owner or occupier of immovable property to pass over property belonging to another person, for certain purposes connected with the enjoyment of the dominant property. The matter is so obvious that it requires no further elaboration. The claim to the exercise of a right of way over the servient property, is inconsistent with the allegation for the existence of a public pathway thereon. The evidence to establish a right of way attached to the enjoyment of property, would, normally, disprove the existence of a public path there.

By her present action, the plaintiff claimed judicial remedies against interference by the defendant, of her (plaintiff's) use of an alleged public pathway. The existence of such a pathway having been denied by the defendants, the plaintiff set out to prove it. But at the conclusion of the trial it was submitted on her behalf that plaintiff had established a private right of way; a right which did not form part of the claim in the action. We are, therefore, of the opinion that plaintiff's action was rightly dismissed. And this appeal must fail.

On the other hand let it be made quite clear that this litigation cannot, and does not purport to adjudicate upon the existence of any right of way, not forming part of [*99] the claim herein; nor can it determine the existence, or otherwise, of a public path, as far as the public Authorities are concerned; or, other members of the general public.

As to costs, we take the view that the respondents, having contributed to the creation of the confusion at the trial, by allowing irrelevant matter to get into the proceedings, should get no costs here. But we do not propose disturbing the orders for costs made in the District Court.

In the result, the appeal is dismissed, without any Order for costs in this Court.

Appeal dismissed.

Order for costs as

aforesaid.