Court dismisses summary dismissal application against former club secretary as case facts are not plain and obvious.

[*272] 1982 April

(NIKITAS, P.D.C. AND FR. NICOLAIDES, AG.S.D.J.)

IN THE DISTRICT COURT OP NICOSIA

Loucas Papastratis,

Plaintiff ,

v.

Glafkos Petrides,

Defendant.

AND AS AMENDED BY ORDER OF THE COURT DATED

5 MARCH. 1982.

Loucas Papastratis,

Plaintiff,

V.

1. Glafkos Petriaes, personally,

2. Andreas Kyriallis, in his capacity as Secretary of the Club "TRUST” Nicosia, and as representative of the members and council of the said Club,

Defendants.

(Consolidated Actions Nos. 443/79,

189/79).

Civil Procedure - Practice - Preliminary point of law - Disposal before trial - Principles applicable - Order 27 rules 1 and 2 of the Civil Procedure Rules - Jurisdiction thereunder to be very sparingly exercised and only in very exceptional cases - Expulsion of club member - Claim against ex-secretary of club in his personal capacity - Application for summary dismissal of the action as no cause of action is disclosed against him - Case not plain and obvious so as to justify exercise of such an exceptional jurisdiction and more light will be thrown in the case during the hearing - Application dismissed.[*273]

L. Papaphiilippou,. for the Plaintiff.

N. Zomenis, for the Defendant,

RULING

The ruling of the Court was delivered by:-

FR. NICOLAIDES, AG. S.D.J.;- At the date [*274] of the hearing of the present consolidated actions, and before the plaintiff opened his case defendant I raised a preliminary objection and applied orally to the Court for the dismissal of the action against him summarily as no cause of action is disclosed against him in the statement of claim.

Briefly the facts of the said application are as follows:-

By his action the plaintiff prays for a declara­tion that the resolution of the Extraordinary General Meeting of the Club "TRUST" by which the plaintiff was expelled is void and an order restraining the defendants and the members of the said club giving effect to the aforementioned resolution or from interfering with the exercise of the right of the plaintiff as member of the said club.

Originally only defendant 1 was sued personally and in his capacity as Secretary of the Club "TRUST" and as representative of the members and council of the said club.

At a later stage and on March 5, 1982, the new secretary of the Club was added to the proceedings as defendant 2 and a few days later, i.e. on March 20, 1982, the statement of claim was amended by the addition of the following paragraph;-

"3. Defendant 1 is sued personally and defendant 2 "in his capacity as secretary of the club and as "representative of the members of the said club, "as he succeeded defendant 2 on or about 27.11.80".[*275]

It is the contention of defendant 1 that as defendant is now sued in his capacity as secretary of the Club, no cause of action can be sustained against defendant 1 , the former secre­tary, and in any event no cause of action is disclosed in the statement of claim.

The application is based on' 0.27 rr.

1 and 2 which read as follows:-

"1. Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Court at any stage that may appear to it convenient.

2. If in the opinion of the Court the decision of such point of law substantially disposes-of the whole action, or of any distinct cause of action, ground of defence, counterclaim, or reply therein, the Court may thereupon dismiss the action or make such other order therein as may be just".

Order 27 has been made in the past the subject of judicial interpretation in a number of cases.

We must say from the very start that the trend is for the jurisdiction of the order to be very sparingly exercised and only in very exceptional, cases.

Josephides J. in Michael Papamichael v. Klitos Chaholiades (1970) 1 C.L.R.305 put it in a very strong language:-[*276]

"The Court has considered the provisions of Order

27 in a number of cases in the past and I think we have made it clear that the jurisdiction ought to be very sparingly exercised and only in very exceptional cases".

In Lawrance v. Norreys (Lord)

(1890) 15 App. Cas. 210, Lord Herschell speaking of the jurisdiction to dismiss actions in limine said at p.219:-

"It is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases".

The same strong language was used in the case of Costas Mavromoustakis v. Iacovos Yeroudes (1965) 1 C.L.R.176;-

"It has been held in many cases that it is only in plain and obvious cases that recourse should be had to the summary process under the Rule and that this procedure can only be adopted when it can be clearly seen that a claim is, on the face of it, obviously unsustainable or that the case is clear beyond doubt. So long as the statement of claim discloses some cause of action, or raises some question fit to be decided by a court, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out".

In Dyson v. Attorney-General (1911) 1 K.B, 410, Fletcher Moulton, L.J. said at p. 418:- [*277]

“…To my mind it is evident that our judicial system would never permit a plaintiff to be driven from the judgment seat in this way without any court having considered his right to he heard, excepting in cases where the cause of action was obviously and almost incontestably bad".

Tucker L.J. in Law v. Dearley

(1950) 1 All E.R.124, at p.127 said:-

"If there is a point capable or worthy of being argued it was clearly impossible to strike out an action in limine".

The above were cited with approval in Mavromoustakis v. Yeroudes (supra).

In Jupiter Electrical (Overseas) Ltd. & Another v. Savvas Costa Christides (1975) 1 C.L.R. 144, Trantafyllides P., taking the same stand uses an extract from the judgment of Lord Denning M.R. in the case of Carl Zeiss Stiftung v. Herbert Smith & Co. and Others (1969) 1 Xh. D.93:-

"I know that it has been said on one or two occasions that a preliminary, issue should be ordered only when, whichever way it is decided, it is conclusive of the whole matter. That was said by Lord Evershed M.R. in Windsor Refrigerator Co. Ltd. v. Branch Nominees Ltd. (1961) 1 All E.R. 277; and Harman L.J. in Yeoman Credit Ltd. v. Latter, (1961) 1 W.L.R. 828, 835. I do not think that is correct. [*278]

The true rule was stated by Romer L.J. in Everett v. Ribbands (1952) 1 K.B. 112: 'Where you have a point of law which, if decided in one way, is going to be decisive of litigation, then advantage ought to be taken of the facilities afforded by the Rules of Court to have it disposed of at the close of pleadings, or very shortly after the close of pleadings'.

I have always understood such to be the practice. I quite agree that in many cases the facts and law are so mixed up that it is very undesirable to have a preliminary issue. I always like to know the facts before deciding the law. But this is an exceptional case. The solicitors have received in good faith moneys for the defence of this action. They ought to know at once whether they can safely go on receiving them. If the issue of law is decided in their favour, it will dispose of the claim against them, irrespective of the main action. I would order a preliminary issue to be tried".

In the very recent case of Soteris Paschalis v. The Ship "Tania Maria" ex "Constantis Fotinos" (1977) 1 C.L.R.53, A. Loizou J. said at pp. 57-58:-

" ... the Court acceded being obviously of the opinion that his decision on such point [*279] of law substantially disposed of the whole action and so saved the costs by disposing same before trial. It was indeed a proper course to be followed as there was no disagreement on the material facts and it was consonant with what was stated by Romer L.J., in Everett v. Ribbands (1952) 2 Q.B.198 at page 206, that;-

‘Where there is a point of law which if decided one way is going to be decisive of litigation, advantage ought to be taken of the facilities afforded by the Rules of Courtto have it disposed of at the close of pleadings or very shortly after’'’.

And in Overseas Shipping & Forwarding Go. v. Kappa Shipping Go. Ltd. and Others (1977) 1 .L.R. 248, it is added at p.252:-

"It is true that such an order should not be made in respect of matters which, on account of their nature, factual or legal, have to be decided at the trial and should be made only in respect of matters’ on which no further light ’would be thrown at the trial'. (See Isaaks & Sons Ltd. V. Cook (1925) 2 K.B. p.391, applied in Taverner v. Glamorgan County Council (1941), 57 T.L.R. 243). Nor should such an order be made where there are facts in dispute". [*280]

In A.G. of Duchy of Lancaster V. L. & N.W. Railway Cc.,(1892) 3 Ch. 274 C.A. , it was held that the summary procedure under Old English Order 25 (corresponding to our Order 27) can only be adopted when it can he clearly seen that a claim or answer is on the face of it obviously unsustainable.

In Wenlock v. Moloney (1965) 2 All E.R.87, C.A., it was held that on an application to strike out the statement of claim and to dismiss the action, it is not permissible to try the action on affidavits when the facts and issues are in dispute and that so long as the statement of claim discloses some cause of action, or raises some question fit to be decided by a Judge or a jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out.

In Nagle v. Feilden and Others

(1966) 1 All E.R. 689, Danckwerts L.J. said at p. 695:-

"The summary remedy which has been applied to this action is one which is only to be applied in plain and obvious cases, when the action is one which cannot succeed or is in some way an abuse of the process of the Court".

It is the contention of defendant 1 that no cause of action lies against him in his personal capacity and that originally legal proceedings were instituted against him in his capacity as secretary of the Club.

S.19 of The Registration of Clubs

Law, Cap. 112, provides that all actions or other legal Proceedings by or [*281] against a club shall be brought by or

against the secretary of such club as representing the members thereof.

Counsel for defendant 1 relied

heavily on the case of Henderson v. Kane and Pioneer Club (1924) N.Z.L.R.1073, reported in the English and Empire Digest,

Replacement Volume 8(2), 1974 Reissue at p.625. In the said case it was held that a club which acting by its executive committee wrongfully and in breach of the club’s rules excludes a member from the use of the club’s premises commits a breach of contract and the member is entitled to recover damages. The members of the committee, acting within the scope of their authority, are not personally liable in tort for inducing or procuring such breach of contract.

On the other hand counsel for the plaintiff contended that there is a cause of action against defendant 1, as in the statement of claim and particularly in para.10 thereof it is alleged that defendant 1 is liable in. tort in his personal capacity as well and not only in his representative capacity. Relevant to this issue is also para. 3 of the amended statement of claim.

But what is a reasonable cause of action?

In point of law every cause of action is a reasonable one (per Chitty J. in Rep. of Peru v. Peruvian Guano Co., 35 Ch. D. 495).

Having perused the pleadings with the utmost care we feel that in the pleadings and especially in the statement of claim certain points of fact and law are raised and unless [*282] we Hear evidence we are not in a position to decide whether the action against defendant 1 is sustainable or not. What we can say is that the claim is not obviously unsustainable and the case is not clear. Furthermore, several matters would have to he considered and decided before we can properly come to the conclusion that the plaintiff’s claim against defendant 1 cannot succeed and the statement of claim raises some questions fit to be decided by a Court of law.

Before concluding we consider it pertinent to examine the procedure which ought to be followed in such cases.

As we said earlier one of the main objects of 0.27 is the avoidance of costs and the waste of time. Therefore it is the established practice that an application as the present one may be made on the summons for directions.

The Judge, as a rule, will only make the order when he sees that the objection raises a question of law, which, if decided in favour of the party objecting, would dispense with any further trial, or at any rate with the trial of some substantial issue in the action (Robinson v. Fenner (1913) 3 K.B. 835).

The order should not be made in respect of matters which, by reason of the obscurity either of the facts or the law ought to be decided at the trial; only in respect of matters on which no further light would he thrown at the trial (Per Roche J. in Isaacs & Sons Ltd. v. Cook (1925) 2 K.B.

401 , applied in Taverner v. Glamorgan County Council (1941) 57 T.L.R. 243). [*283]

The order for argument before trial should not be made where there are facts in dispute, and if made may he set aside at the hearing (western S.S. Co. v. Amaral Suther land & Go. ,

(1914) 3 K.B. 55.).

In the case of Cooke v. Smith

(1891) A. C. 297, an order has heen made as to whether the plaintiff had any title to sue.

In the case of The heirs of the late Theodora Panayi v. The Administrators of the estate of the late Stylianos Georghi Mandrioti (1963) 2 C.L.R. 167, it was said:-

"We would like to add that in cases where an objection is taken in the defence the interested party must apply to the Court to have a particular point of law under Order 27 formulated and set down for hearing before the date of trial, and he should not wait until the day of trial when all the parties and their witnesses are before the Court, when considerable costs may be incurred. An application under Order 27 should normally be made on the summons for directions".

The above was repeated in Maroulla Athanassi Michaelides v. Pinelopi HjiMichael Diakou (1968) 1 C.L.R. 392; Papamlchael V. Chaholiades (supra); Jupiter Electrical (Overseas) Ltd. & another v. Savvas Christ ides (supra). [*284]

Rules of procedure must always be observed and when there is a deviation from the set procedure the comments are rather strong.

In Michael Papamichael v. Klitos Chaholiades, (supra), Josephides J. and under relevant circumstances said:-

"We must say that we find the procedure followed in this case rather unorthodox. If it was a preliminary point of law. then the provisions or Order 27 should have been followed (see The heirs of Theodora Panayi v. The Administrators of the estate of S. Mandriotls (1963) 2 C.L.R. 167, at page 170; and Michaelides v. Diakou (1968) 1 C.L.R.392, at page 395). If it was a question of mixed law and fact, or a question of fact alone, the trial Judge should have followed the procedure laid down in Order 33, regarding the hearing of an action".

The above comments have equal application in the case in hand. Of course we understand that under the circumstances and as the statement of claim was amended only a few days before the hearing, it would be very difficult for defendant 1 to comply strictly with the procedure. Nevertheless, the Court had no help at all as no application or an affidavit as to the facts was filed. Concluding we find that the present case is not that plain and obvious so as to [*285] justify the exercise of such an exceptional jurisdiction and that more light will, most definitely, he thrown in the case during the hearing.

In the result the application is dismissed with costs against applicant-defendant 1, to he paid at the end of the proceedings.

Application dismissed with

costs against applicant-defendant 1.