Court refused one new appeal ground for lack of merit but allowed two others to clarify existing arguments.

[*408] 1972 February 29

(TRIANTAFYLLIDES, P., HADJIANASTASSIOU, MALACHTOS, JJ.)

APPELLATE JURISDICTION

Maria HjiSolomou,

Appellant-Plaintiff,

v.

Georghios Manolis, as administrator of the estate of the deceased Savvas Christodoulou,

Respondent--Defendant.

(Civil Appeal No. 4926).

Civil Procedure - Appeal - Notice of Appeal - Application for leave to amend made during the hearing of appeal - No valid reasons given in support of addition of one of the proposed grounds - Amendment, therefore, refused - Other two proposed grounds intended not only to amplify existing grounds but to specify more precisely the grounds on which the appeal will be argued - Amendment allowed subject to terms.

L. Papaphilippou, for the Appellant.

D. Liveras, for the Respondent.

RULING

The ruling of the Court was delivered by:-

TRIANTAFYLLIDES, P.: In this case counsel for the appellant has applied for leave to amend the [*409] notice of appeal. The application, which was filed during the hearing of the appeal, has been opposed by counsel for the respondent.

We might start with the proposed new ground of appeal in relation to the issue of estoppel: The reasons given in support of the addition of this ground are not, in our opinion, valid reasons. It is not correct, as alleged in the present application, that what was found, by the trial Court, to operate against the appellant as an estoppel by conduct was not specially pleaded; such an estoppel was quite clearly pleaded in paragraph 3 of the statement of defence; and consequently, the remaining reason given in support of the addition of this new ground of appeal, viz. that

the learned trial judge reached his conclusion as to the estoppel ex proprio motu by relying on evidence adduced by the respondent

which was not related to the contents of the statement of defence, is also devoid of any merit. Moreover, it is not correct, as stated in the affidavit in support of the application, that it is as a result of what was said during the hearing of this appeal that it became necessary to amend, in this respect, the notice of appeal; the relevant paragraph in the statement of defence has been there all the time and the finding in question, in the judgment of the trial Court, had come within the knowledge of counsel for the appellant long before the hearing of this appeal.

We, therefore, dismiss the application in so far as this new ground of appeal is concerned. It is, of course, [*410] open to counsel for the appellant to argue, none the less, the issue of estoppel if he can persuade us that such issue may legitimately he raised in relation to any other ground of appeal which is already contained in the notice of appeal.

Regarding, next, the other two proposed new grounds of appeal, concerning the evaluation of evidence by the trial Court, they do not appear to be merely amplifications of relevant grounds of appeal already on record, in which case no amendment of the notice of appeal

would he necessary in order to enable the applicant to put forward in argument the contents of such new grounds (see Sabbar

v. Yusuf, (1972) 3 J.S.C. 182): they seem to he intended not only to amplify existing grounds but to specify more precisely the grounds on which this appeal will be argued on behalf of the appellant (see Papadopoullou v. Polykarpou, (1968)

10 J.S.C. 1066).

In the light of all relevant considerations we have decided to allow the notice of appeal to be amended accordingly, even at this rather late stage of the proceedings, but we would

like to make it quite clear that by doing so we are not allowing any point to be raised, in relation to the two new grounds

concerned, which is inconsistent with the pleadings.

No amended notice of appeal need be filed and the appeal will be fixed for hearing on an application by counsel for

appellant that it should be so fixed. If he does not apply within one month from today the appeal will be deemed to have been abandoned and will

stand dismissed [*411] with costs against the appellant.

The costs of this application are, in any case, awarded against the appellant.

Order in terms.