Court dismissed plaintiff's late evidence application due to lack of diligence and surprise allegations.

[*239] 1982 March

(FR. NICOLAIDES, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Phivos Papadopoullos & Another,

Plaintiff,

v.

Panayiotis Christodoulou & Others,

Defendants.

(ActioEs Nos. 717/78, 572/78,

1414/78).

Civil Procedure - Practice - Evidence - Evidence in rebuttal - Application by plaintiff to adduce evidence in rebuttal after the close of the case and after judgment had been reserved - Principles applicable - Applicant had ample time to consider how to conduct his case and call the witnesses he needed - And he did not show reasonable diligence in securing the evidence which he was seeking to adduce - Application refused - Order 33 rule 7 of the Civil Procedure Rules.

P. Petrakis, for A. Eftychiou, for the Applicant.

N. Pelides, for Respondent 1 .

E. Papandreou, for M. Christ of ides $ for Respondent 2.

A. Agrotis, for Respondent 3.

RULING

The following ruling was delivered by:-

FR. NICOLAIDES, D.J.: - By the, present [*240] application the applicant seeks to adduce evidence in rebuttal after the close of the case. The applicant is plaintiff in action no. 572/78 and defendant I in actions Nos. 717/78 and 1414/78. All three consolidated actions were tried together and after the case closed and the judgment of the Court, was reserved, the present application was filed.

In the affidavit filed in support the plaintiff alleges that Panayiotis Papakyriakou, defendant in all actions, in his evidence suddenly and for the first time, made certain allegations as regards how the accident happened. The applicant further alleges that the said allegations are not mentioned in the pleadings and therefore as the applicant has been taken by surprise it is necessary for him to adduce evidence in order to rebut the said allegations. The applicant, however, fails to give any details or to state at all which are the allegations put forward for the first time during the trial and how and why he was taken by surprise. He further alleges that the whereabouts of the person he intends to call as a witness were made known to him only after the judgment was reserved.

I pause here for a moment in order to mention that no opposition was filed by any of the other parties in the present proceedings and no help at all was given to the Court by the learned counsel for the respondents.

0.33 r.7 regulates the proceedings at trials:-[*241] "The proceedings at the trial shall be as follows:-

(The party on whom the burden of proof lies is called in this Rule “the first party”, and the other party is called 'The second party’). (i) Where the issues between the parties involve legal points only and the parties state that no evidence is being adduced, the first party may address the Court, then the second party may do likewise, and finally the first party may reply.

(ii) In other cases -

(a) The first party may open his case and adduce his evidence; after he has done so, the second party shall be asked whether he intends to adduce evidence and if he states that he does not so intend, then the first party may address the Court for the purpose of summing up the evidence; and finally the second party may address the Court. If the second party states that he does intend to call evidence, then this party may open his case and adduce his evidence; and after he has done so, he may sum up the evidence, and finally the first party may reply.

(b) The first party may not adduce evidence in reply except by leave of the Court. If he desires “to adduce such evidence, he must ask for leave “immediately after the second party’s evidence is [*242] “concluded. If such leave is granted, the second party’s summing up shall be postponed until after "the evidence in reply is heard.

”(c)When the first party has replied, or, if he has no right to reply, when the second party has addressed the Court, the case shall be closed, unless the Court directs either party to adduce further evidence or itself calls any witness."

From a mere reading of the last paragraph it is obvious that the evidence must be adduced before the case is closed and when the parties have addressed the Court and the judgment is reserved no additional evidence may be adduced as in order for such evidence to be adduced, the case must be re-opened, something out of the powers of the District Court.

In a proper case and always before the close of the case leave may be granted for any party to adduce additional evidence or evidence in rebuttal. When the case is closed no further evidence may be adduced.

When the onus of proof on all issues is on one party, that party must ordinarily, when presenting his case, adduce all his evidence, and may not, after the close of his opponent's case, seek to adduce additional evidence to strengthen his own case (Jacobs v. Tarleton, (1848) II Q.B. 421)

The judge, however, has a discretion to allow a party to produce further evidence, even where such evidence [*243] could have been produced in the first instance, if he considers that it is necessary in the interests of justice to admit such evidence or even for his own satisfaction. (Doe d.Nicoli v. Bower, (1851) 16 Q.B. 805; Rogers v. Manley (1880) 42 L.T. 585; Budd v. Davison

(1880) 29 W.R. 192.)

The judge will generally allow such evidence to be produced where the party who seeks to produce it has been taken by surprise and for that reason did not produce it in the first instance (Bigsby v. Dickinson, (1876) 4 Ch. D. 2k C.A.).

Evidence in reply, whether oral or by affidavit, must, as a general rule, be strictly confined to rebutting the defendant’s case, and must not merely confirm that of

the plaintiff (Gilbert v. Comedy Co., 16 Ch.D. 594; see also Barker v. Furlong, (1891) 2 Ch. 172; Jacobs v. Tarleton (supra).

Moreover, where the issues on the claim and counterclaim are identical, evidence in rebuttal cannot be called, as it must necessarily be confirmatory (Green v.Sevin,13 Ch.D. 589).

Rebutting evidence may be called by the plaintiff in answer to evidence of the defendant in support of an issue, the proof of which lay upon him (Williams v. Davies, I Cr. & M. 464).

The discretion of the Court may also be exercised in favour of the plaintiff where the nature of the defence became apparent during cross-examination of his own witnesses (Shaw v. Beck, 8 Exch. 392). [*244]

In the affidavit the applicant alleges that he was taken by surprise as a witness for the defence put forward certain allegations not covered by the pleadings.

The said allegation of the applicant is very vague. I have gone through the record and I was unable to trace any ground for such an allegation. The purpose of adducing this additional evidence is to discredit the evidence given at the trial. If certain allegations are not covered by the pleadings the applicant's counsel ought to object to such evidence and not to ask for leave to adduce additional evidence in order to rebut it. Anyhow it is well settled that evidence not covered by the pleadings is inadmissible and the Court will not attribute weight to such evidence. After all, the evidence now sought to be introduced was essentially part of the plaintiff’s case and the witness ought to have been called then. It is a well-known principle that a plaintiff may not split his case. (See Jacobs v. Tarleton, (1848) II Q.B. 421).

The applicant alleges in his affidavit that the address of the witness was made known to him after the close of the case. I am very reluctant to accept such an allegation. The applicant did not at any stage of the trial mentioned that he had any other evidence and he did not even apply for an adjournment in order to trace the said witness. I consider the above allegation as an afterthought which purports only to strengthen the grounds of this application.

The applicant had ample time to consider how to conduct his case and call the witnesses he needed to prove [*245] his case. He declined to do it when he had every right to do so. It is too late now to make such a request particularly when the reasons given do not justify such request.

I feel that the applicant did not show reasonable dilligence in securing the evidence which now seeks to adduce. In cases like the present one the Court faces a dilemma; on the one hand everything should be done in order to ascertain the truth; on the other hand there should be some finality in litigation. This is the reason why rules regulate the proceedings and the right of the parties to adduce evidence. The Court must impose some limit to the re-opening of issues, even at the risk that injustice may result, or it may appear that there is a possibility of injustice resulting (Braddock v. Tillotson's Newspapers Ltd. (1950) I K.B. 47).

No statutory provision or rule was even intended to relieve a party at trial from the duty of placing before the Court all available relevant evidence.

For all the above reasons and especially in the light of 0.33 r.7 the present application must fail.

In the result the application is dismissed but taking into consideration that all the other parties concerned failed to show any interest at all about the present application, I decided to make no order as to costs.

Application dismissed with no order as to costs.