Trespass claim dismissed where defendant acted on authority of true owner despite plaintiff's constructive possession.

[*355] 1977 November 15

(ARTEMIDES, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Antonios Apostolides,

Plaintiff,

and

Chryssanthos Charalambous,

Defendant.

(Action No. 5425/76).

Trespass - Trespass to land - Turkish cypriot properties situate, in the areas controlled by the lawful government - Requisition - Setting up of Central Committee to administer those properties - plaintiff lessee of olive-trees from Central Committee - Defendant also lessee of same olive-trees from mukhtar of the village acting on the authority of Central Committee - Actioh based on trespass - Action for trespass may be brought at the suit of person in possession of the land - Slight possession suffices - Even constructive possession emanating from contractual interest in land sufficient - Intention to enter into possession - Defendant did not interfere wrongfully with plaintiff's rights but on the authority of "true owner” - Action dismissed.

T. Eliades, for the Plaintiff.

A. Eftychiou, for the Defendant,

JUDGMENT

The following judgment was delivered by:-

ARTEMIDES, D.J.:- The plaintiff claims from [*356] the defendant the sum of £40.- as damages for trespass on his immovable property, i.e. 7 olive-tree standing on plot No.

270 in Mathiatis village. The alleged trespass consisted in the collection of the olives from those olive-trees by the defendant in the end of October, 1976. The defendant denies that he trespassed on the plaintiff's property. He admits having collected the olives from the material olivetrees but alleges that he had done this pursuant to a contract entered into between him and the representative of the lawful possessor of the property.

The facts of the case, which are not contested at all, are the following:-

After the turkish invasion in 1974 as a result of which 40% of the territory of the Republic fell under the control of the turkish troops, the turkish cypriots living in the south, i.e. the part remaining under the control of the lawful government, moved to the north. During this evacuation the turkish cypriots left behind all their movable and immovable property and the government was thus faced with the problem of preserving and protecting these properties until their lawful owners return and retake possession of them.

By virtue of a requisition order published in the official gazette of the 11th September, 1975, Appendix 3, Part II, Notification No. 671, all the movable and immovable property situate

anywhere in the territory controlled by the lawful government and owned by turkish [*357] cypriots who have moved to the north, was requisitioned for the

purpose of protecting and preserving it. In furtherance to the purposes of this order a committee was established, namely the Central Committee for the Protection of the. Abandoned Turkish Cypriot Properties, headed by the Director-General of the Ministry of Interior. There were also established sub-committees in each district chaired by the District Officer of each district respectively. The functions of the Central and sub-committees are the preservation and protection of the property, movable and immovable, belonging to the turkish cypriots. Houses are being let to greek cypriots who became homeless after the invasion. Fields are also being let on hire for the purpose of preserving and protecting them but also to yield some income to their lessees.

All the above facts emanate from the testimony of Andreas Protopapas (P.W.1), an administrative officer in the District Officer’s office, responsible for the administration of the turkish cypriot properties in the Nicosia District. Mr. Protopapas has also said the following in connection with the present case:-

The sub-commettee of each district proceeds as follows to administer the properties of the turkish cypriots: It may lease itself some property to a greek cypriot and for this purpose a formal contract of lease is signed between the committee on behalf of the Cyprus Republic and the lessee. Such a contract (see exhibit No.1)[*358] was signed between the Central Committee and the plaintiff in this action, attached to which there is a list with the number of plots let to the plaintiff. This contract was signed on the 17th June, 1976, but the period of lease commenced on 17th November, 1975 - 31st October, 1976.

The sub-committees, however, of each district authorise the mukhtars of the villages in each district to lease also to their covillagers immovable property belonging to the exturkish cypriots - inhabitants of their village. In this respect each year the committees supply the mukhtars with a list of all the plots which the mukhtars may lease to the inhabitants of their village. What happened in the present case is this:-

The plaintiff had entered into the afore-cited contract of lease with the Central Committee in which plot No. 270 is included. It seems, however, that due to an oversight the committee forwarded a list to the mukhtar of Mathiatis village in which plot No. 270 was also included. In September, 1976, the mukhtar of the village held an auction in the village coffeehouse for the lease of all those properties. The defendant attended this auction and he was the highest bidder for certain plots. He paid the price of lease, i.e. £61.-, to the mukhtar, who forwarded, it to the Central Committee, and was granted a receipt in this respect (see exhibit No. 2), on which all the plots which fell to him at the auction are being listed. In this list plot No. 270 is also included. [*359] The defendant in the end of October, 1976, went into plot No. 270 and collected the olives. The plaintiff on 12.14.77 lodged a complaint with the Central Committee although this action was filed earlier, that is to say, on 26th November, 1976.

These are the facts of the case and the question that poses for consideration is whether on these facts the plaintiff can in law maintain an action for trespass against the defendant.

Trespass to immovable property is defined in our Civil Wrongs Law, Cap. l48, s.43 of which reads as follows:-

"43. (1) Trespass to immovable property consists of any unlawful entry upon, or any unlawful damage to or interference with, any such property by any person.”

”(2) Where the acts complained of are permitted by local custom, such custom if established shall be a defence but in any action brought in respect of any trespass to immovable property the onus of showing that the act of which complaint is made was not unlawful shall be upon the defendant."

The law in the matter has been the

subject of consideration by our Supreme Court in the case of Adamou v. Christofi, (1974) 1 C.L.R. 100 where HadjiAnastas siou, J., in delivering

the judgment of the Court, said the following - (page 104):-[*360]

"It has been said in a number of cases that trespass to land consists in any unjustifiable intrusion by one person upon land in the possesion of another. Trespass, therefore, is actionable at the suit of the person in possession of land, in spite of the fact that he is neither the owner nor does he derive title from the owner. Once, therefore, the plaintiff was in occupation or physical control of the land in question and because he has planted those trees, he is holding the land as a de facto possessor and it is too late for the defendant - who never had any title to the land - or indeed she never genuinely believed the land to be hers, to allege that the plaintiff had no right of action against her because the Government is the owner of that land".

Hadjianastassiou, J., proceeds further in the judgment of the Court to deal with the kind of possession that is required in order to entitle the plaintiff to maintain an action on trespass. He refers to the case of Bristow v. Cormican, (1878)

3 App„ Gas. 6i+1 , from which he cites an extract from the judgment of Lord Hatherley which I also borrow for the purposes of this judgment

"There can be no doubt whatever that some possession is sufficient, against a person invading that possession without himself having any title whatsoever, as a mere stranger, that [*361] is to say, it is sufficient as against a wrong-doer. The slightest amount of possession would be sufficient to entitle the person who is so in possession or claims under those who have been or are in such possession, to recover as against a mere trespasser".

In this judgment, i.e. Adamou v. Christofi, the Supreme Court was dealing with the defence of jus tertii raised by the appellant in an action for trespass against him and held that the principle of jus tertii a applies equally to a case of land and not only to torts. Since the defendant in the present action alleges that he had authority to enter upon the land and collect the olives from the representative of the lawful possessor of the land, i.e. the Government of

Cyprus, I shall refer to another passage from the above judgment relevant to the case in hand. Hadjianastassiou, J., had this to

say at pege 104:-

"In our view, jus tertii is no defence to the action, unless the defendant can how when trespassing that he acted under the authority of the true owner or of some person having such a right. Therefore, we find ourselves unable to follow the argument of counsel on

behalf of the appellant, because in our opinion, the principle of jus tertii applies equally to a case of land and not only to [*362] torts

as contended by counsel. We would reiterate that in a case of trespass the defendant has to plead and prove that he had rights to possession of the land at the time of the alleged trespass, or that he acted under the authority of some person having such right".

The case of Adamou v. Christofi was followed and applied in the case of Liassidou and Another v. Papademetriou, (1975) 1 C.L.R. 122 , where Andreas Loizou, J., at page 127, said the following:-

"Consequently, the present appeal could be determined against the appellants-defendants on the issue that trespass, the cause of action in both cases, is actionable at the suit of the person in possession of land, possession meaning the occupation or physical control of same and anyone who disturbs such possession may be sued and it is no answer to such an action to show that the title and right to possession is in another person, unless the act complained of was done by the authority of the true owner". (The underlining is mine).

Although and pursuant to the authorities I have referred to, the slightest possession is enough for the plaintiff to found his claim on trespass, yet it seems that even if the plaintiff succeeds in establishing a sufficient right or interest in the property, he can [*363] still maintain an action on trespass. In the present case, and although the plaintiff had an agreement of lease, yet he had not entered into possession of the land, subject-matter of this action, until the time of the collection of the olives, that is to say, in the end of October, 1976, when the olives had already been collected by the defendant. To my judgment, however, since the plaintiff had an interest in the land by the entering into the material agreement of lease and his intention was to enter upon the land for the purpose of collecting the olives as per his agreement, he had in the circumstances constructive possession of the land. This possession was enough to entitle him to bring an action for trespass against the defendant, if, of course, the other prerequisites of the law were present.(See Thompson v. Ward, (1953) 1 All E.R. p. 1129).

A recent case of the English Appeal Court dealing with trespass on land and in particular the burden of proof lying on the plaintiff and the defendant respectively is that of Portland Managements Ltd. v. Harte and Others, (1976) 1 All E.R. 225·

In the light of the law as same has been judicially considered in the authorities I have mentioned earlier, it becomes quite apparent the the plaintiff's action must be dismissed. The defendant proved - and this is uncontested - that he had leased the properties, for which there is an allegation that he trespassed upon, from the mukhtar of the village who had authority from [*364] the Central Committee to let on hire the properties in question. The act of the defendant, therefore, was done on the authority of the true owner and an authority from the owner to enter upon his land cannot result in a wrongful interference with the rights of the person in possession of it.

Following established practice, and in case my decision is appealed from, I have to deal with the matter of damages in case the plaintiff is successful before the Supreme Court.

The plaintiff alleges that his damages amount to £140.- He said that he had visited the olive-trees and noticed that they had yielded a good crop. He estimated that the produce of the olives would have been around 100 okes and by multiplying the okes by the current prices of olives at 400 mils, he arrives at the figure of £40.- However, the plaintiff does not make any deductions for the cost of labour and other ancillary expenses he would have incurred for the collection of the olives. The defendant, who in fact collected the olives, said that he produced about two litres of oil from them which he sold at £7.-

Doing the best I can and in the absence of independent evidence, I am of the opinion that the amount claimed by the plaintiff is exaggerated but the defendant also is putting the figure on the very low side. In my opinion, the plaintiff, in case he succeeded [*365] in his claim, an amount of £20.- would have been sufficient to compensate him.

Before concluding, I think it would not have been inappropriate if I would make the following comment: It is apparent that this litigation commenced by the plaintiff who is an innocent party against the defendant, an equally innocent party, due to a mistake --no doubt a bona fide one -- by the Central Committee. It would, therefore, not be unjust if in the circumstances the Contrail Committee, after taking into consideration this judgment, could see its way in making good the loss suffered by the plaintiff.

The action is, therefore, dismissed but in the circumstances I make no order as to costs.

Action dismissed.

No order as to costs.