Court dismisses late appeal extension due to applicant's lack of diligence and failure to act promptly.

[*293] 1981 March 14

(S. NICOLAIDES, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Maroulla Kypraiou,

Applicant,

v.

Loizos Socratous,

Respondent.

(Application No. 437/80).

Civil Procedure - Appeal - Time - Extension of time within which to appeal - Discretion of the Court - Lack of diligence by applicant - Application dismissed - Order 35 rule 2 of the Civil Procedure Rules.

G1. Raphael, for the Applicant.

C. Emilianides for the Respondent.

RULING

The following ruling was delivered by:-

S. NICOLAIDES. D.J.: This is an application [*294] made under Order 35, Rule 2 of the Civil Procedure Rules whereby the applicant applies

for an Order of the Court extending the time within which to file an. appeal against the judgment given by the District Court of Nicosia on 30.12.80, in Application No.437/80.

The application was made Ex parte filed on the 20.1.81 and was supported by an affidavit sworn by the applicant on the same date to which I shall hereafter refer as affidavit No. 1. On 23rd January 1981, the application was fixed for the first time and was left to be considered on 24.1.81; on this date another affidavit in support of the application and supplementary to affidavit No.1 sworn by the applicant on the same date was filed, hereinafter called affidavit No.2. On 24.1.81 directions were given that copies of the application and affidavits be served on the respondent who in turn opposed the application.

At the hearing on 19.2.81 applicant gave oral evidence in support of his application. Paras.2 and 4 of affidavit No.1 and paras 3,4 of affidavit No.2 are relevant to this application. They read as follows:-

Affidavit No.1, dated 20.1.81

Para. 2 Την 30.12.81 εξεδόθη απόφασις δι΄έξωσιν μου εκ του

καταστήματος της αιτητρίας, αντίγραφον δε της αποφάσεως μου επεδόθη την 13.1.81

[*295]

Para 4 “Κύριος λόγος της μη καταχωρήσεως της εφέσεως εμπροθέσμως

είναι το γεγονός ότι τα πρακτικά της υποθέσεως δεν είναι εισέτι έτοιμα δια να

δυνηθή ο νέος μου δικηγόρος να μελετήση ταύτα και να δυνηθή να ετοιμάση την

καταχώρησιν της εφέσεως.”

Affidavit No.2, dated 24.1.81

Para 3 “Την 23.1.81 έχω πληρώσει προς τον δικηγόρον της αιτητρίας

όλα τα καθυστερημένα μέχρι σήμερον ενοίκια ανερχόμενα εις £425.- , ως η διαταγή

του Δικαστηρίου με καθυστέρησιν μόνον 2 ημερών.”

Para 4 “Περαιτέρω λόγος της μη καταχωρήσεως της εφέσεως

εμπροθέσμως ήτο τω ότι ήμουν με την εντύπωσιν και γνώσιν ότι η προθεσμία δια

καταχώρησίν της ήτο 6 εβδομάδες ως προνοούσεν ο ισχύων Νόμος μέχρι της

θεσπίσεως των πεί Ενοικιοστασίου Διαδικαστικών Κανονισμών του 1975, θεσμός

1.1.”

In.his oral evidence applicant stated that:-

(a) he was informed of the judgment of the court on 30.12.80 when his advocate Mr. A. Haviaras passed from his shop and informed him accordingly.

(b) Less than 10 days after judgment he contacted another advocate who advised him that the time limited for filing an appeal was six weeks from the date of the judgment. [*296]

(c) Within one week from the judgment of the court he visited the Registrar of the District Court of Nicosia and asked for the minutes of the case. He was told that he would have them on the first opportunity. He, however, never applied in writing for the minutes and copy of the judgment.

(d) He later asked again orally for the minutes of the case but was told to apply in writing.

(e) He was informed that the time for appeal expires on the 14th day after judgment.

(f) He resorted to his present counsel after the time for filing an appeal expired.

The application was opposed mainly on the grounds that the applicant up to the 14.2.81 did not comply with the judgment.

(a) Not paying the rent for January 1981.

(b) He paid the arrears of five months rent some 15 days after the time appointed in the judgment and after the filing of the present application.

(c) That applicant was negligent and or did not show any diligence.

Before considering the legal aspect of this application I think it would be proper to say that after perusing the file of the court it appears that the only application made for the minutes of the case is dated [*297] 20.1.81. Grounds of appeal appear nowhere in the affidavits of stated in evidence, which would be advisable. (see The Turkish Co-operative Carob Marketing Society Ltd. v. Lutfi Kiamil and another, (1973)

1 C.L.R. 1 at p. 9 per Triantafyllides P.).

It is to be noted that the grounds for extending the time for appeal are progressively increased with each affidavit in support of the application and the oral evidence of the applicant.

I turn now to the legal aspect of the present application.

Section 25(3) of the Rent Control. Law 36 of 1975 limits the time within which an appeal may be filed to 14 days.

S.25(3) Οιονδήποτε

πρόσωπον το οποίο διαφωνεί με οιανδήποτε απόφασιν ληφθείσαν υπό του Δικαστηρίου

δύναται, εντός δεκατεσσάρων ημερών από της τοιαύτης αποφάσεως, όπως υποβάλη

έφεσιν εις το Ανώτατο Δικαστήριον.

The Rent Control Rules 1975, rule 10 provides:

Rule 10 Τηρουμένων

των διατάξεων του παρόντος Κανονισμού, ο περί Πολιτικής Δικονομίας

Διαδικαστικός Κανονισμός εφαρμόζεται με τας αναγκαίας προσαρμογάς εις πάσαν

διαδικασίαν προερχομένην εκ των Διατάξεων του Νόμου. [*298]

The Civil Procedure Rules 0. 35, r.2 reads as follows:

“…… no appeal from any interlocutory order, or from an order, whether final or interlocutory, in any matter not being an action, shall be brought after the expiration of fourteen days, and no other appeal shall be brought after the expiration of six weeks, unless the court or Judge, at the time of making the order or at any time subsequently, or the Court of Appeal shall enlarge the time. The said respective periods shall be calculated from the time that the judgment or order becomes binding on the intending appellant, or in the case of the refusal of an application, from the date of such refusal. Such deposit or other security for the costs to be occasioned by any appeal shall be made or given as may be directed under special circumstances by the Court of Appeal.”

In the Turkish

Co-operative Carob Marketing Society Ltd. v. Lutfi Kiamil and Another (1973) 1 C.L.R 1 at p. 5 Triantafyllides P., said:

The need for, as a rule, strict adherence to prescribed time limits in relation to bringing appeals has been stressed in a number of cases (see inter alia, Loizou v. Konteatis

(1968) 1 C.L.R. 291, and Andreou v. The Republic (1972)2C.L.R. 4).

Then proceeded further and said: [*299]

The same view is to be found in relevant English case law:

In Ratnam v. Cucarasamy and Another (1964) 3 All E.R. 933 Lord Guest, in delivering the judgment of the Privy Council in relation to an appeal against the refusal of extension of time for filing the record of appeal, stated (at p.935):

“ ‘The rules of Court must prima facie, be obeyed, and, in order to justify a Court in extending the time during which some steps in procedure requires to be taken, there must be some material on which the Court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.’ ”

In Revici v. Prentice Hall Incorporated and Others (1969) 1 All E.R. 772, Lord Denning, M.R., said in is judgment (at

p. 774):-

“ ‘Counsel for the plaintiff

referred us to the old cases in the last century of Eaton v. Storer (1882) 22 Ch. D. 91 and Atwood v. Chichester (1878)

3 Q.B.D. 722 and urged that time does not matter as long as the costs are paid. Nowadays we regard time very differently from what they did in the nineteenth century. We insist on the rules as to time being observed. We have had occasion [*300] ‘recently to dismiss many cases for want of prosecution when people have not kept to the rules as to time.’

And in the same case Edmund Davies, L.J. stated (at p. 774) in dealing with the question of whether it could be said that a party, who had exceeded the time-limit set by the. Rules, ‘ is entitled to have his time extended simply on under-taking to pay any costs occasioned by his delay’:-

On the contrary, the rules are there to be observed; and if there is non-compliance (other than a minimal kind), that is something which has to be explained away. Prima facie, if no excuse is offered, no indulgence should be granted: See Ratnam v. Cumarasamy

(1964) 3 All E.R. 933 at p. 935, per Lord Guest.’

Lastly, in McC (RD) v. McC (JA) and Another (1971 ) 2 All E.R. 1097, Sachs, L.J. said in his judgment (at p.1102 et seq.).

In the end it would be a sad thing if a solicitor, after a case was over and the time for appealing had expired, had in general to say to the successful litigant, ‘You cannot really put your anxieties at rest. If there is a change in the law, or if the Court can be persuaded that the judgment was unsatisfactory, you must be prepared for your anxieties to be revived and to go through all the pains of litigation over again.’ Save in really special [*301] circumstances, when the time for appealing has expired that litigant is entitled to an easy mind.’

Notwithstanding the need to conform strictly with prescribed time-limits the power to grant extension of time for appealing exists and its exercise is a matter within the discretion of the Court, on the basis of the particular facts of each individual case.”

In Niki Chr. Georghiou v. Republic (Minister of Interior and Another) (1968)

1 C.L.R. 411 at p. 417 Josephides, J. said:-

To sum up, the discretion of the court being a perfectly free one, the only question is whether upon the facts of a particular case that discretion should be exercised. The fact that the omission to appeal in due time was due to inadveretence, negligence, or mistake on the part of a legal adviser, may be sufficient cause to justify the court in exercising its discretion, but it is not to be thought that it will necessarily be exercised in every set of facts. As I conceive the rule, there is nothing in the nature of such inadvertence, negligence or mistake as to exclude it from being a proper ground for allowing the appeal to be effective though out of time; and whether the matter shall be so treated must depend upon the facts of each individual case. There may be [*302] facts in a case which would, make it unjust to allow the appellant to succeed upon that argument (cf. Gatti v. Shoosmith (1939) 3 All E.R. 916, at p. 919).”

In Andreas

P. Loizou v. P. Konteatis, (1968) 1 C.L.R. 291, at 294, Vassiliades P. said:-

“In the present case, the plaintiff-respondent acquired a vested interest in the amount of the judgment judicially declared. This was subject to an appeal filed within the time set by the Rules. After expiry of that time, the plaintiff’s rights under the judgment became final. We take the view that they should not now be interfered with, unless for good cause shown in the record and sufficient to move judicial discretion against him. The case put forward by the applicant before us, is far too short of that especially as counsel appearing for him to-day has stated that the applicant went to consult his new advocate after the time for appeal had already expired, and the application for extension of time must be refused.”

It is clear from the affidavits in support of the application and the oral evidence by the applicant that the applicant failed to take the appropriate steps either for obtaining the minutes of the case or to file an appeal within the time prescribed by the law; he did not show any diligence at all. [*303]

No grounds of appeal exist, as stated earlier, but from, the file it appears that the judgment sought by the original, application and granted by the court was an order of ejectment on the ground that the rents for the months of July and August, 1980 lawfully due were in arrear for more than 21 days after service on the Respondent (applicant in this application) oa notice in writing as provided by s 16(1)(a) of Law 36 of 1975. From the judgment it appears also that not only the rents of July and August 1980 were in arrear but no rents were paid until the judgment of the court. When theses rents were paid is stated in para 3 of affidavit no. 2.

I do not .believe the applicant that he was advised that the time within which an appeal may be filed was six weeks.

Applying all the above authorities to the circumstances of the present application I am satisfied that the exercise of my discretion in favour of the applicant would be unjustified, therefore, I refuse and dismiss the application with costs against the applicant. Costs to be assessed by the Registrar and be approved by the Court.

Application dismissed with costs.