Court dismisses application for admissibility of documents due to failure to cite specific procedural rule.

[*82] 1983 June 17

(MILTIADOU, D.J. )

IN THE DISTRICT COURT OP PAPHOS

Bank of Cyprus Ltd.,

Plaintiffs,

v.

Kyriacou Galatariotou,

Defendant.

(Action No. 102/82).

Evidence - Documentary evidence as to facts in issue - Admissibility of - Principles applicable - Section 4 of the Evidence Law, Cap. 9.

Practice - Application by summons - Not stating the specific Rule upon which it is founded - Cannot be entertained

- Order 48 rule 2 of the Civil Procedure Rules.

P. Sivitanides, for the Applicants.

G. Chlorakiotis, for the Respondent.

JUDGMENT

The following judgment was delivered by:-

MILTIADOU, D, J.:- The applicants-plaintiffs in the above action, on the 2. 4.83 applied for an order that the statements mentioned in the documents scheduled in the above application be made admissible in evidence at the trial of the above action.

The respondent did not oppose the application and gave her consent to the issue of the above order. The Court, however, due to the novelty of the application and of the seriousness of the matters involved, in the interest of justice, did not make, the, order before considering the said application.

The application is based on The Evidence Law, Cap. 9 sections 4(1) and (2) and section (5) and on the Civil Procedure Rules, Order 48 rule 2.

Section 4(1) and (2) of Cap. 9 provide:-

(1) In any

civil proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document

and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied. that is to say:-

(a) …

(b)…

(2) In any civil proceedings, the Court may, at any [*84] stage of the proceedings, if having regard to all the

circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is

mentioned in subsection (l)

of this section shall be admissible as evidence or may, without any such order having been made, admit such a statement in

evidence:-

notwithstanding (a)…………………………………………………………………………………....

(b)……………………………………………………………………………………….………………"

From the construction of the above subsection (l) of section of Gap. 9, it is clear that, in civil proceedings, it makes admissible statements of fact in a document, in cases where direct oral evidence, of such facts, is admissible in evidence, by the maker of such statements provided the conditions set out therein are satisfied.

While subsection (2) gives a discretionary power to the Gourt, to make an order as to the admissibility of such statements before the trial of the action or to admit such statements in evidence at the trial of the action.

I think that subsection (2) aims to convenience the party to know, whether or not documentary evidence in his possession is admissible before he prepares for trial. If an order is refused, it may, in some cases, rot be worth proceeding any further though in some others to give him the opportunity and the time to adduce oral evidence of such statements if possible. (See Friend v, Wallman, (1946) 2 All [*85] p. 237 and Yiannakouris & Another v. Cyprus Sea Cruises Limassol Ltd., (1965) 2 C.L.R., 393).

Section 5 of the Evidence Law, Cap. 9 provides:-

(1) "In estimeting the weight, if any, to be attached to a statement rendered admissible as evidence by section 4 of this Law, regard shall be had to all circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent the facts.

(2) For the purpose...... of the statement".

I think that the above section has nothing to do with the question of the admissibility of the statement, on the contrary, if one looks at it, this section, after such statement was made admissible by the Courts, provides the considerations as to what weight ought to be attached to those statements.

The above application is finally based on the Civil Procedure Rules, Order 48, rule 2 which provides:- [*86]

(1) "Save where other provision is made, every application to the Court shall be in writing stating the nature of the order or direction sought and referring to the specific section of the Law or to the specific Rules of Court upon which it is founded.

(2) "Applications made ex-parte shall

(3) In the case of applications... relied upon”.

The above rule I think, provides generally, as to the formal requirements and other prerequisites of an application made to the Court, and nothing more, and in no way provides as to the disposition of the above application by the Court.

Under our legal system, the procedure before the Civil Courts is regulated by the Civil Procedure Rules, which prescribe time limits, ways and methods to the litigants to be adopted in the pursuit of their legal rights and no departure or non-compliance with them is allowed other than therein provided.

The applicants if they are really interested to the Order applied for, Order 30 of. the Civil Procedure Rules, gives them the answer and which is not mentioned in the above application, such failure is in my opinion fatal to the above application

because under Order 48,rulesl and 2, the Rules of Court upon which an application is founded must be specifically referred in the application. [*87] missing

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