Court adjourns debt relief application pending Supreme Court constitutionality ruling and confirms single judge jurisdiction.

[*94] 1981 November 5

(DEMETRIOU, S.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Sonco Canning Ltd. and Others,

Applicants,

v.

National Bank of Greece S.A.,

Respondents.

(Application No. 155/80).

Debtors Relief (Temporary Provisions) Law, 1979 (Law 24/79) - Proceedings thereunder not brought under the Courts of Justice Law, 1960 but under the Rules enacted under Law 9/75 - They are not civil proceedings and they are within the jurisdiction of a single Judge notwith-standing amount of the debt - Above Rules still in force - Section 11 of the Interpretation Law, Cap.1.

St. Ambizas with A. Timothi (Mrs.), for the Applicants.

Chr.Demetriou (Mrs.) for G. Cacoyiannis for the Respondent.

DECISION

The following decision was delivered by:-

DEMETRIOU. S.D.J.: By the present application which is brought under the Debtors Relief (Temporary Provisions) Law 1979 (24/79) the applicants pray for a declaration that they are stricken debtors on the ground that they were unable to meet their contractual obligations towards the respondents as a result of the tragic events of 1974. When the application came up for hearing learned counsel for the respondents raised certain preliminary issues which were put before the Court for determination before the commencement of the hearing. [*95]

In his second submission which I propose to deal with first, Mr. Cacoyiannis argued that the Court should not proceed with the hearing of the application in view of the fact that the constitutionality of the law is challenged in a case stated now pending before the Supreme Court. In his reply Mr. Ambizas agreed that the issue is a preliminary one and that it should be decided before the commencement of the hearing. He also appreciated the view that this Court should not proceed to decide upon the issue which is now before the Supreme Court for the same purpose, and asked the other side to withdraw this objection but Mr. Cacoyiannis refused to do so.

It appears, from what has been stated by learned counsel that they both subscribe to the view that it -is undesirable at this stage for this Court to resolve questions which are now before the Supreme Court for decision. The submission advanced by both counsel finds me in complete agreement and for the reasons given I shall adjourn this application pending the decision of the Supreme Court on the matter.

Although with the adjournment I propose to grant, the application is disposed of for the time being, I consider it pertinent to decide on the other issues raised and leave, in this way, no questions pending before me for decision, in case the Court proceeds eventually with the hearing of the application. [*96]

In his argument Mr. Cacoyiannis submitted by way of a second point preliminary to the hearing although he makes no reference to it in his defence, that the application should be treated as a civil proceeding as defined in section 2 of the Courts of Justice Law (Law 14/60) and as such it should be tried by a Full District Court, given the fact that the subject-matter in this application exceeds the sum of £3,000.- Mr. Ambizas on the other hand submitted that the issue at the trial in cases such as the present one is not the amount owed by the debtors to the creditors but whether the applicants are. stricken debtors within the meaning of the law. He ended up by submitting that one judge may try the issue irrespective of the sum involved. No authority was cited to by either side and, although I could not personally trace one directly on the point, I find myself in full agreement with Mr. Ambizas on the matter. The issue to be tried by courts constituted under the law is set out in the case of Tryfonos & Another v. Famagusta Shipping Co. (1957) Ltd.(1981) 1 C.L.R. p.137 where A. Loizou J. makes it clear that: -

“…an application under section 3 what are determined are the rights between the parties in relation to a particular debt, the subject of such application…”. [*97]

In order to resolve this point the Court should decide whether the applicants are stricken debtors within the meaning of the law, the definition of which is given in section 2 of the law. It is my considered view, therefore, that the trial of the issue under an application such as the present one is not the amount involved an issue which should be the subject-matter of a civil action. This is a tribunal specially constituted by section 8 of the law and is governed by the rules acted for the purposes of the law 9/75, to which I shall refer presently. The proceedings, therefore, are not brought under the Courts of Justice Law but instituted by an application under the 1975 rules and tried by a specially constituted court. Section 7 of the 1975 law by which only one judge appointed for similar issues lends support to my findings.

The final point I am asked to determine, to which I have indirectly made some reference in the previous issue, is whether the proceedings should have been commenced with a writ of summons or an originating summons. Mr. Cacoyiannis argued that the rules made under Law 9/75 do not apply because they refer to a specially constituted tribunal and submitted that as a result of its repeal the procedure of originating summons should take its place. Mr. Ambizas replied that the rules made under Law 9/75 were not repealed because Law 25/79 is an extension and improvement of the original Law (9/75) and made reference to section 11 of Cap. 1. [*98] In order to resolve this problem as well as the other issues I have studied the provisions of the two laws in connection with those of section 11 of Cap.1 respecting this point. By applying the provisions of this section the rules enacted under law 9/75 should remain in force until revoked or replaced or, if they are inconsistent with the provisions of law 24/79. This is not so in the present instance. On the contrary one may argue that the objects of both laws are the same, namely to help stricken debtors meet their financial obligations after the calamity which struck Cyprus in 1974. The rules of 1975 should, therefore, be adapted to meet the requirements of law 24/79. They are, therefore, in force today and the proceedings were rightly instituted by an application under these rules.

So much so for the issues raised by learned counsel by way of preliminary points of law. As I have already said, however, the application should be adjourned pending the determination of the constitutionality of the law by the Supreme Court. This application is, therefore, adjourned to 12.1.82 for mention.

Order accordingly.