(1978) 1 CLR 57
[*57] 1976 October 29
[TRIANTAFYLLIDES, P., STAVRINIDES, L. LOIZOU, JJ.]
ZYGMUNT SIECZKO,
Appellant (Applicant),
v.
F. HOFFMANN-LA ROCHE & CO. A. G.,
Respondents.
(Civil Appeal No. 4901).
Foreign judgment—Registration—Section 4 (1) of the Foreign judgments (Reciprocal Enforcement) Law, Cap. 10—Territorial Jurisdiction of District Court—Definition of " District Court" in s. 2 (1) of the Law—Interpretation of the expression—Meaning of "property" in the said definition—Prerequisites for registration—Residence of judgment debtor—Concept of "residence"—Material date at which there should exist the prerequisite of residence— Events subsequent to the filing of the application for registration can be taken into account for the purpose of deciding "residence" of judgment debtor—Evidence material to the determination of issue of "residence"—Court not exercising a discretion in determining issue of "residence"—Burden of satisfying trial Court that judgment debtor was resident in Cyprus, was on the judgment creditor—But once the trial Court found that he was so resident, the onus was on the judgment debtor to persuade Court of Appeal that the trial Court was wrong in so finding—Appellant (judgment-debtor) failed to discharge such onus.
On February 1, 1969 the respondent applied to the District Court of Famagusta and registered in such Court a judgment of the Court of Appeal in England which he obtained against the appellant on July 30, 1968. The registration was effected under the provisions of section 4 (1) of the Foreign judgments (Reciprocal Enforcement) Law, Cap. 10. [*58]
The appellant applied to have the said registration set aside and his application was dismissed. Hence the present appeal:
The main contention of the appellant was that the trial court erred in finding that the appellant was resident in Cyprus and in particular in the Famagusta District. Counsel submitted in this connection (a) that the trial court wrongly took into account facts subsequent to the filing of the application for registration, for the purpose of deciding whether or not the appellant was resident in Cyprus on the material date and (b) that the trial Court, for the purpose of coming to a conclusion regarding the appellant's residence at the material date, wrongly relied on two documents, namely a notice under s. 102 of the Companies Law, Cap. 113, and a notice under s. 102 (1) of the English Companies Act, 1948, wherein appellant described Famagusta as his usual residence..
Counsel for the appellant submitted, further, that the question of the registration of a foreign judgment was a matter of judicial discretion and that the relevant discretion was wrongly exercised.
Counsel for the respondents, on the other hand, contended that it was not necessary for the purposes of registration of the English judgment to find that the appellant was resident in Cyprus, or in the Famagusta District in particular; and has submitted in this respect that the trial court erred in holding that residence of the appellant was a prerequisite for registration.
What has given rise to the above arguments is the definition of the expression " District Court" by means of s. 2(1) of Cap. 10 which runs as follows:
" 'District Court' means the District Court in the district in which the judgment debtor or any of the judgment debtors resides or in which any property to which a judgment relates is situate;".
Counsel for the respondent further submitted that an alternative to the residence of the judgment debtor was, by virtue of the above definition, the existence in a particular District in Cyprus of any property to which a judgment relates.
Held, (1) the definition of " District Court" in s. 2 (1) of Cap. 10 though primarily intended to determine the territorial [*59] jurisdiction as between District Courts in Cyprus, introduces, also, a residence requirement of a judgment debtor for the purposes of the application of the provisions of s. 4 (1) of Cap. 10 as regards the registration of a foreign judgment in Cyprus; and the term "property" referred to in the said definition must be property to which the foreign judgment relates and this is not so in the instant case. (See s. 4 of the Interpretation Law, Cap. 1 and pp. 62-65 post).
(2) (After dealing with the concept of residence vide pp. 68-73 post). The material date, in relation to an application for registration of a judgment under Cap. 10, at which there should exist the prerequisite of the residence of the judgment debtor, is the date on which the application for registration is made (see also Sinclair v. Sinclair [1967] 3 All E.R. 882).
(3) Events subsequent to the date of the filing of the application for registration could be taken into account for the purpose of deciding whether or not the appellant was resident in Cyprus on the material date because they were relevant in the sense that they could enlighten the trial Court as regards the intention, at the material time, of the judgment debtor to take up residence in Cyprus; and the mere absence of the appellant from Cyprus on the date of the filing of the application for registration of the foreign judgment cannot be regarded as fatal as regards the possession of jurisdiction by the District Court of Famagusta (see r. 8 of the Foreign Judgments (Reciprocal Enforcement) Rules).
(4) It was not wrong for the trial court to rely on the aforesaid documents for the purpose of coming to a conclusion regarding the residence of the appellant on the material date. Though the said documents could not be treated as conclusive by themselves—and they were not so treated—they were relevant pieces of evidence forming part of the overall picture.
(5) In determining the issue of the residence of the appellant at the material time—which was the only disputed issue—the trial court was not called upon to exercise any discretion, but it had to resolve an issue of mixed law and fact.
(6) The appellant has not discharged the onus of persuading us that the trial Court was wrong in finding that, at the material time, he was a resident of this country, in Famagusta. The [*60] burden was on the respondents to satisfy the trial court that he was so resident, but once the trial court has made that finding, the onus of upsetting it was on the appellant.
Appeal dismissed.
Cases referred to:
F. Hoffman—La Roche and Co. A. G. v. Inter-Continental Pharmaceuticals etc. (1969) 1 C.L.R. 106;
Re Wykes' Will Trusts. Riddington v. Spencer [1961] 1 All E.R. 470 at p. 477;
Altenburger v. El Taghouri, 17 C.L.R. 161, 162;
Power v. Beha, 23 C.L.R. 116;
Pickles v. Foulsham, 9 T.C. 261 at p. 274;
Attorney-General v. Yule and Mercantile Bank of India [1931] All E.R. Rep. 400 at pp. 405, 408;
In re Adoption Application 52/1951 [1952] Ch. 16 at p. 25;
Matalon v. Matalon [1952] 1 All E.R. 1025;
Ex parte Breull. In re Bowie, 16 Ch. D. 484 at pp. 486, 487;
Sinclair v. Sinclair [1967] 3 All E.R. 882 at p. 892;
Foreman v. Beagley [1969] 3 All E.R. 838 at p. 841;
Fox v. Stirk and Bristol Electoral Registration Officer, Ricketts v. Cambridge City Electoral Registration Officer, [1970] 2 Q.B. 463, at p. 475;
Brokelmann v. Barr [1971] 3 All E.R. 29 at pp. 36, 37;
Keshmir v. Hantal and Others, 18 C.L.R. 130 at p. 132;
Kohn v. Rinson & Stafford (Brod). Ltd., [1947 2 All E.R. 839.
Appeal.
Appeal by applicant against the judgment of the District Court of Famagusta (Georghiou, P.D.C. and Pikis, D.J.) dated the 16th May, 1970 (Application No. 10/69) whereby his application for the setting aside of the Registration in Cyprus, under the provisions of the Foreign Judgments (Reciprocal Enforcement) Law, Cap. 10, of a judgment of the Court of Appeal in England, given on July 30, 1968, was dismissed.
Chr. Demetriades, for the appellant.
A. Triantafyllides, for the respondents.
Cur. adv. vult.
The facts sufficiently appear in the judgment of the Court which was delivered by:
TRIANTAFYLLIDES, P.: The appellant has appealed against a decision of the District Court of Famagusta by means of which [*61] there was dismissed an application of his for the setting aside of the registration in Cyprus, under the provisions of the Foreign Judgments (Reciprocal Enforcement) Law, Cap. 10, of a judgment of the Court of Appeal in England, given on July 30, 1968.
The registration was effected in the District Court of Famagusta, on February 1, 1969, under section 4 (1) of Cap. 10, which reads as follows:-
" 4.(1) A person, being a judgment creditor under a judgment to which this Part of this Law applies, may apply to the District Court at any time within six years after the date of the judgment, or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings, to have the judgment registered in the District Court, and on any such application the Court shall, subject to proof of the prescribed matters and to the other provisions of this Law, order the judgment to be registered:
Provided that a judgment shall not be registered if at the date of the application -
(a) it has been wholly satisfied; or
(b) it could not be enforced by execution in the country of the original Court."
By virtue of such judgment the appellant and others were ordered to pay to the respondents—as plaintiffs—the sum of nearly £14,000 by way of costs of proceedings for contempt of Court.
It is useful to recall, at this stage, for the sake of procedural continuity, that in F. Hoffman-La Roche and Co. A. G., v. Inter-Continental Pharmaceuticals (Bletchley) Limited Curtis and Company Ltd. and Zygmunt (Chemists) Limited and The Chartered Bank of Famagusta (1969) 1 C.L.R. 106, this Court was called upon to deal again with the matter of the registration of the same foreign judgment which is involved in the present proceedings, but in relation to a different aspect, namely whether execution could be levied on the basis of such judgment in Cyprus after its registration and during the period within which the appellant judgment debtor was at liberty to apply for [*62] the setting aside of its registration; and it was held that this was not possible before the expiration of such period, or, if an application was made to set aside its registration, before the determination of such application.
During the hearing of the present appeal counsel for the appellant has abandoned, rightly in our view, two grounds set out in his notice of appeal, namely that the relevant provisions of Cap. 10 are unconstitutional, as being contrary to Article 30 of the Constitution, and that the amount due, under the English judgment in question, is a penalty within the meaning of section 3(2)(b) of Cap. 10.
Counsel for the appellant has argued his appeal on the ground that at no material time the appellant was resident in Cyprus, and in particular in the Famagusta District, and that the Court below has erred in finding to the contrary.
On the other hand, counsel for the respondents has contended that it was not necessary, in order to effect registration of the English judgment, to find that the appellant was resident in Cyprus, or in the Famagusta District in particular; he has submitted that, in this respect, the trial Court erred in holding that residence of the appellant was a prerequisite for registration.
What has given rise to the above arguments by counsel is the fact that the expression "District Court" in section 4(1) of Cap. 10 is defined, by means of section 2 (1) of the same Law, as follows:-
" 'District Court' means the District Court in the district in which the judgment debtor or any of the judgment debtors resides or in which any property to which a judgment relates is situate;"
It has been contended by counsel for the respondents that Cap. 10 was modelled on the Foreign Judgments (Reciprocal Enforcement) Act, 1933, in England (see Halsbury's Statutes of England, 3rd ed., vol. 6, p. 365), section 2 (1) of which reads as follows:-
" 2. Application for, and effect of, registration of foreign judgment [*63]
(1) A person, being a judgment creditor under a judgment to which this Part of this Act applies, may apply to the High Court at any time within six years after the date of the judgment or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings, to have the judgment registered in the High Court, and on any such application the Court shall, subject to proof of the prescribed matters and to the other provisions of this Act, order the judgment to be registered:
Provided that a judgment shall not be registered if at the date of the application -
(a) it has been wholly satisfied; or
(b) it could not be enforced by execution in the country of the original Court."
Counsel for the respondents has pointed out that nowhere in the aforementioned 1933 English Act is there any provision requiring residence of the judgment debtor in England in order to effect registration of a foreign judgment against him.
It should be observed, on the other hand, that there is not to be found in the said English Act a definition section, such as section 2 (1) of our Cap. 10, which contains the definition of “ District Court".
As regards the said definition section it is necessary to bear in mind that it is provided by section 4 of the Interpretation Law, Cap. 1, that "every section of a Law shall have effect as a substantive enactment without introductory words"; and it is useful, to refer, also, in this respect, to Re Wykes' Will Trusts. Riddington v. Spencer, [1961] 1 All E.R. 470, where Buckley J. said (at p. 477):-
" The intention of the legislature, like the intention of a testator, is primarily to be ascertained by reading the language employed, and it is not for this Court to corset that intention, if it be clearly expressed, into some shape which accords better with the fashion of professional legal thought than the natural meaning of the language employed. More particularly, I think, this must be so when one is concerned with a definition section, where [*64] one must presume that Parliament would be specially precise and careful in its choice of language."
In Altenburger v. El Taghouri, 17 C.L.R. 161, 162, it was held that the primary purpose of the definition of the territorial jurisdiction of District Courts, by section 15 of the Courts of Justice Law, 1935 (Law 38/35), was, no doubt, to determine the jurisdiction of such Courts as between themselves.
A similar view was taken in Power v. Beha, 23 C.L.R. 116, in relation to the definition of "Court" in section 2 of the Illegitimate Children Law, 1955 (Law 15/55—now Cap. 278 in the 1959 Revised Edition of the Statute Laws of Cyprus); the said definition reads as follows:-
" 'Court' means a judicial officer of the District Court of competent jurisdiction of the District where the child has his ordinary residence;"
In section 2, of Cap. 278 (as well as in Law 15/55) "illegitimate child" is defined as follows:-
" 'illegitimate child' means a child born out of lawful wedlock;"
In the Power case, supra, the following were stated by Zekia J., as he then was (at p. 138):-
" The fact that the requirement of the ordinary residence of the child is included in the definition of the word 'Court' and not in the words 'illegitimate child' supports the view that the primary object of the definition of 'Court' is to determine the territorial jurisdiction of a particular District Court in relation to the other Courts of the Island. This need not be however the sole object of the definition in question. This requirement might have to be considered not only in relation to other Courts but also independently as a prerequisite before the assistance of any Court is invoked in an application for legitimation or for an affiliation order."
Likewise, in the present case, bearing in mind all the foregoing, and reading together the relevant provisions of Cap. 10 as an integral whole, we have to hold that the definition of "District Court" in section 2 (1) of Cap. 10, though primarily intended to determine the territorial jurisdiction as between [*65] District Courts in Cyprus, introduces, also, a residence requirement of a judgment debtor for the purposes of the application of the provisions of section 4(1) of Cap. 10 as regards the registration of a foreign judgment in Cyprus; therefore, the submission to the contrary of counsel for the respondents cannot be upheld as correct.
Before we proceed any further it is convenient to deal with another point related to the definition of "District Court", in section 2(1) of Cap. 10, namely that an alternative to the residence of the judgment debtor is, by virtue of such definition, the existence in a particular District in Cyprus of any property to which a judgment relates.
We agree, in this respect, with counsel for the respondents that the two prerequisites of jurisdiction (residence and the existence of property) are alternative, but we cannot agree with him that "any property" means any property of the judgment debtor against which execution of the foreign judgment to be registered may be levied. From the express terms of the provision under consideration it is abundantly clear that it must be property to which the foreign judgment to be registered relates and this is not so in the instant case.
We, therefore, have to decide this appeal on the basis of whether the trial Court has properly found that the appellant was resident in Cyprus at the material time:
In relation to the issue of residence the trial Court stated the following in its judgment:-
" What remains to decide is whether the applicant Zygmunt Sieczko, was a resident of Famagusta District on 1.2.1969 when application for registration of the English judgment was made before the Famagusta District Court.
...............................................................................
It is well-settled that a person may reside in more than one place. For this to happen, a person must have a permanent residential association with more than one district or country. In such case, there must be a habitual physical stay in each of the two places, so much so that he be said to have two dwellings. If a person leaves the country where he resides and goes abroad leaving a house [*66] or a lodging behind him to which he intends to return, he will be considered as a resident of the country that he has temporarily left.
From the above it emerges (a) Presence in a country simpliciter will not give the Court jurisdiction to try the case; (b) temporary stay in the country will not make the person staying a resident of the country; (c) the duration of the presence of a person in a particular place must be such that such place can properly be described as his home. When such physical association is inclusive, the intention of the party to make the place occupied by him as his home or otherwise is a consequential factor.
The uncontested salient facts of the case are:-
(1) Applicant first came to Cyprus in October, 1968 and left in December of the same year.
(2) In October, 1968 he leased a flat at Famagusta for one year, terminable at 28 days' notice.
(3) During October and November, 1969, applicant had a sum of £18,000.- transferred in his name in a Cyprus Bank intended for investment.
(4) Apparently applicant lost no time in pursuing his business plans and soon after his arrival entered into a business association with a certain Yiamakis of Nicosia with whom he formed a company with long term projects, viz. manufacture of pharmaceuticals. In Exh. 2 applicant describes his Famagusta flat as his usual residential address, pursuant to s. 192 of Cap. 113.
(5) At all material times applicant has been the tenant of a flat in London—21 Denbigh House, Hans Place, London, S.W.I.
(6) In January, 1969, when in London, he signed a statutory notice—Exh. 3—pursuant to s. 102(1) of the 1948 Companies Act, where he describes himself as of 32 Verne Avenue Famagusta, and formerly of 21 Denbigh House, Hans Place, London, S.W.I. This is an important piece of evidence because it signifies the intention of the applicant regarding his residential association with his Famagusta address [*67] and at the same time evinces an intention to sever residential association with his London flat.
(7) Applicant came to Cyprus for business and holiday. This statement of fact is not conclusive, one way or another, because a person may or may not set up residence where he carries business. Holiday-making has a different connotation. People do not normally establish a residential association with a holiday resort but there may be exceptions to this.
The applicant could only enter the country on the strength of a visa; whenever he entered the country, he did so on the basis of a visitor's visa. There was no assurance that a visa would be issued to applicant automatically, and on one occasion in November, 1969, he was originally refused a visa. On the other hand, he visited Cyprus three times within a period of 18 months, which indicates that he faced no serious obstacles in entering the country.
Events subsequent to 1.2.1969 are irrelevant except where they may enlighten the Court as to the intention of the applicant to set up residence in Cyprus at the material date.
In February, 1969 the applicant visited Cyprus for the second time bringing with him a car with English registration. Applicant paid a third visit to Cyprus in 1970. On both occasions he stayed at the same Famagusta flat that he previously occupied and which was leased to him for a period of one year. In April, 1969 applicant resigned his directorship in Evagoras Investment and Finance Company, and transferred his founder's share to a certain Hanora Coops. On 18th January, 1969 the Evagoras Finance Investment was substituted as the leaseholder of the above flat but apparently without derogation to the right of applicant to occupy it when in Cyprus. Applicant has financial interests in the United Kingdom, Eire and Australia.
On the above facts, we find that at the material date, applicant was a resident of Famagusta. He had a flat rented at Famagusta that he treated as his home. On 1st February, 1969, he was in the U.K. but Exh. 2 affords [*68] strong evidence of his intention to return to Cyprus, which intention as it appears from the facts before us, materialised in February, 1969. Exh. 2 is also evidence of the intention of the applicant to relegate his London flat to a past residence. The stay of applicant at his Famagusta flat, the duration of the lease of his flat, coupled with applicant's express intention to set himself up in Cyprus as shown in Exhs. 2 and 3, afford strong evidence of applicant establishing a permanent residential connection with Famagusta, so much so that we can safely say that he was at the time of the institution of this application, a resident of 32 Verne Street, Famagusta. The transfer of a considerable sum of money, meant to be invested in Cyprus, entrenches this conclusion.
In concluding as above we have not overlooked that applicant's presence in Cyprus depends on the issue of a visa which may be withheld at some future time. The authorities however, nowhere suggest that inherent right to stay in the country is a prerequisite of residence. In fact most 'residence' cases concern newcomers to a country intending to set up a new home for themselves."
We shall deal first with the concept of "residence":
It is useful, in this connection, to quote the following passage from Halsbury's Laws of England, 4th ed., vol. 8, p. 329, para. 444:-
" 444. Residence in general. The term 'residence' bears varying meanings according to its context, and great caution must be exercised before authorities on the meaning of 'residence' in such contexts as bankruptcy, taxation, or the old poor law provisions, are applied in other contexts. In particular, it is clear that some degree of permanence is required for the acquisition of residence in some contexts, but not, or to a lesser extent, in others.
Generally, 'residence' means physical presence other than casually or as a traveller. In considering whether residence is established the Court considers a man's whole environment, especially in relation to his wife and family, and not merely his physical situation. In some cases, a man may be resident in England despite a temporary absence; and [*69] he may be held to be resident in two or more countries. It is possible to be resident in a country without owning or enjoying exclusive possession of any premises there."
Also, in Dicey and Morris on The Conflict of Laws, 9th ed., p. 95, the following are stated:-
" Residence. The word 'residence' has different meanings in different branches of the law. Thus for some purposes it is sufficient to describe a person as resident where he works, while for other purposes this is not sufficient; for some purposes a person is resident where his family lives, even though he himself is physically elsewhere; and again for some purposes residence connotes some degree of permanence, while for others it may be transitory. For tax purposes, it has been held that the word 'resident' has its ordinary meaning; and that the question where a person is resident within that meaning is one of fact. But the question must nonetheless be 'determined on proper legal principles'; and for other legal purposes the question has been described as 'a mixed question of law and fact It is a question of law whether any, and if so what, mental element must be proved to establish residence or whether any particular length or manner of presence is necessary."
In Pickles v. Foulsham, 9 T.C. 261, 274, it was pointed out by Rowlatt J. that "where a man resides is a question of fact, of course, to be determined in view of proper legal principles."
It is well-settled that residence is relevant to, but not the same thing, as domicil (see, inter alia, Attorney-General v. Yule and Mercantile Bank of India, [1931] All E.R. Rep. 400, 405, 408); a person may reside in certain places without necessarily being, also, domiciled there.
In re Adoption Application 52/1951, [1952] Ch. 16, Harman J. said the following (at p. 25) in relation to the notion of residence in section 2 of the Adoption Act, 1950:-
"The Court must be able to postulate at the critical date that the applicant is resident, and that is a question of fact. Residence denotes some degree of permanence. It does not necessarily mean the applicant has a home of his own, but that he has a settled headquarters in this country. It seems dangerous to try to define what is meant by [*70] residence. It is very unfortunate that it is not possible to do so, but, in my judgment, the question before the Court is in every such case whether the applicant is a person who resides in this country. In the present case I can only answer that question in the case of the wife by holding that she is not resident in this country; she is merely a sojourner here during a period of leave; she is resident in Nigeria, where her husband's duties are, and whither, in pursuance of her wifely duties, she accompanies him."
The above case was referred to in Matalon v. Matalon, [1952] 1 All E.R. 1025, where Hodson L.J. referred, too, to Ex parte Breull In re Bowie, 16 Ch. D. 484, where James L.J. had said (at pp. 486, 487) that:-
" There are cases in which it has been judicially decided, and I think rightly, that the words 'residence' and 'business' have no actual definite technical meaning, but that you must construe them in every case in accordance with the object and intent of the Act in which they occur."
In Sinclair v. Sinclair, [1967] 3 All E.R. 882, where the question of residence had to be examined in relation to an issue of judicial separation of spouses, the following were stated by Russell L.J. (at p. 892):-
" The test of jurisdiction (assuming no English domicil) is residence by the husband in England at the commencement of the suit. But for this purpose residence is not a simple question of bodily presence. Bodily presence at the critical date may not involve residence. Equally, bodily absence is not inconsistent with residence. If a man is bodily absent at the critical date, having been at some previous time (as was certainly the case here up to March, 1966) resident here, the inquiry must be directed to ascertaining whether he has at the critical date ceased to be relevantly resident here. In that inquiry it is, of course, of importance that at the time when he bodily removed himself there was a matrimonial home established here, but it cannot be conclusive. If the evidence were to show that he had determined never to return to that established matrimonial home, the fact that his wife and children remained there, even coupled with the fact that the tenancy was his and that he continued to meet his obligations as [*71] tenant, and that he contributed to the support of his wife and children, would not, it seems to me, make him relevantly resident here. Without such evidence those matters are strong pointers to continuing residence though there be bodily absence."
Also, in the same case Scarman J. said (at p. 899):-
" Applying this view of the law to the facts, 1 have no doubt that the present is a case in which the English Court has jurisdiction. A very important part of the husband's life was situate in England on Aug. 1, 1966, viz., his family. His words and actions, before and after that date, reveal the continuing importance that he was attaching to his family life. Whatever the wishes of his wife, he had neither abdicated personal responsibility for, nor cut himself adrift from, his family. When he returned to the London house in September, he returned as master, not as a guest or visitor. It was his to enter; it was the home of his wife and children, and he stayed until ordered by the Court to leave. There is nothing exclusive about residence. A man may reside in several places at one and the same time. Wherever else the husband may have established a residence, to deny that he had in the summer of 1966 a 'matrimonial residence' in the country where his wife and children were living would be to overlook the fact that at that time his family life had not, as he saw it, broken down; it was under great strain, which he was actively working to relieve, but it had not, he believed, irretrievably fallen apart."
In Foreman v. Beagley, [1969] 3 All E.R. 838, Sachs L.J. observed (at p. 841) that "the word 'resides' has been given varying meanings according to its context".
In Fox v. Stirk and Bristol Electoral Registration Officer, Ricketts v. Cambridge City Electoral Registration Officer, [1970] 2 Q.B. 463, the Court had to construe the notion of residence in relation to its being a statutory voting qualification and Lord Denning M.R. said (at p. 475):-
" I prefer to go by the ordinary meaning of the word 'resident'. I follow Viscount Cave L.C. in Levene v. [*72] Inland Revenue Commissioners [1928] A.C. 217, 222, where he said:
' …...... the word 'reside' is a familiar English word and is defined in the Oxford English Dictionary as meaning 'to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place' '.
I would also take into account, as the statute says, the general principles formerly applied and have regard to the purpose and other circumstances of his presence at or absence from the address. Hence I derive three principles. The first principle is that a man can have two residences. He can have a flat in London and a house in the country. He is resident in both. The second principle is that temporary presence at an address does not make a man resident there. A guest who comes for the weekend is not resident. A short-stay visitor is not resident. The third principle is that temporary absence does not deprive a person of his residence. If he happens to be away for a holiday or away for the weekend or in hospital, he does not lose his residence on that account."
Also, in the above case, Widgery L.J. said (at pp. 476, 477):-
" I also would begin, when considering what is meant by the word 'reside', by observing Viscount Cave's acceptance of the definition in the Oxford English Dictionary, which my Lord has read, namely 'to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place.'
That definition is coloured and enlarged by numerous references in the authorities, such as by Lord Coleridge C.J. in Barlow v. Smith, [1892] 9 T.L.R. 57 where he speaks of a man's residence as being where he lives and has his home. There are other references to a man's home, references which I find helpful, because, although I recognise that the word is in some ways an ambiguous word, I think it nevertheless follows that a man cannot be said to reside in a particular place unless in the ordinary sense of the word one can say that for the time being he is making his home in that place. With regard to the army officer in Ford v. Hart, [1873] L.R. 9 C.P. 273 it was said that when [*73] on service in Topsham Barracks he was living, sleeping and doing there all that constitutes residence. Indeed, this conception of residence is of the place where a man is based or where he continues to live, the place where he sleeps and shelters and has his home. It is imperative to remember in this context that 'residence' implies a degree of permanence. In the words of the Oxford English Dictionary, it is concerned with something which will go on for a considerable time. Consequently a person is not entitled to claim to be a resident at a given town merely because he pays a short, temporary visit. Some assumption of permanence, some degree of continuity, some expectation of continuity, is a vital factor which turns simple occupation into residence".
In Brokelmann v. Barr, [1971] 3 All E.R. 29, 36, 37, Ashworth J. followed the approach to the meaning of residence which had been adopted in the Levene and Fox cases, supra.
In the Altenburger case, supra, it was, in effect, held by clear implication (see p. 163) that the term "resident" in section 6 (2) (a) (iv) of the Foreign Judgments (Reciprocal Enforcement) Law, 1935 (Law 21/35)—now section 6 (2) (a) (iv) of Cap. 10—means resident in the ordinary sense of that term and not mere presence as a visitor for no matter how short a time; and the Altenburger case was referred to, subsequently, with approval in Keshmir v. Hantal and others 18 C.L.R. 130, 132.
A collateral matter, that has to be dealt with, at this stage, is what is the material date, in relation to an application for registration of a judgment under Cap. 10, at which there should exist the prerequisite of the residence of the judgment debtor. We are of the view that such date is the date on which the application for registration is made; since the residence requirement is tied up with the issue of the jurisdiction of the Cyprus Courts to register a foreign judgment it is only right that such requirement should be expected to be fulfilled when the jurisdiction of the Cyprus Courts is invoked by the filing of an application for the registration of a foreign judgment; and we are reinforced in such view by the Sinclair case (supra).
Counsel for the appellant has submitted that it was wrong for the trial Court to take into account facts subsequent to the filing of the application for the registration of the foreign [*74] judgment in this case for the purpose of deciding whether or not the appellant was resident in Cyprus on the material date. We cannot accept that this argument is well-founded, and we agree fully, in this respect, with the approach of the learned trial Judges, namely that events subsequent to the date of the filing of the application for registration, that is after February 1, 1969, were relevant in the sense that they could enlighten the trial Court as regards the intention, at the material time, of the judgment debtor to take up residence in Cyprus.
As a matter of fact on February 1, 1969, the appellant was away from Cyprus, having stayed here from October 1968, to December 1968, when he left for abroad, and he returned afterwards and stayed in Cyprus from February 22, 1969, to May 1969. But, we do not regard the mere absence of the appellant from Cyprus on the date of the filing of the application for registration of the foreign judgment, that is on February 1, 1969, as fatal as regards the possession of jurisdiction by the District Court of Famagusta, if the appellant was properly found to be resident in Cyprus, even though temporarily absent abroad, on that date. It is to be noted, in this respect, that rule 8 of the Foreign Judgments (Reciprocal Enforcement) Rules (see The Subsidiary Legislation of Cyprus, Revised Edition (1955), vol. 2, pp. 370, 372) provides that written notice of the registration of a foreign judgment must be served on the judgment debtor, if he is out of Cyprus, in accordance with the Rules of Court applicable to the service abroad of a writ of summons; we take rule 8 as a very strong indication that it is not absolutely necessary for an otherwise resident in Cyprus judgment debtor to be actually present in Cyprus at the time of the proceedings for the registration here of a foreign judgment against him.
Regarding the issue of the residence in Cyprus of the appellant, his counsel has submitted that the trial Court wrongly attached importance to two documents which are exhibits 2 and 3, respectively, in the present proceedings: As it appears from the judgment of the trial Court, it treated the said two documentary exhibits as indicative of the appellant's expressed intention to reside in Cyprus.
Exhibit 2 is a notice of appointment of a Receiver and Manager, in England, pursuant to section 102 (1) of the [*75] Companies Act, 1948, concerning the company ZYGMUNT (Chemists) Ltd. and such notice was given by the appellant on January 9, 1969; in it he describes himself as living in Famagusta, and being formerly of London.
Exhibit 3 is a bundle of documents in which there is included a notice given, under section 102 of the Companies Law, Cap. 113; in such notice the appellant refers to his Famagusta address as being his usual residential address.
A matter which has created some confusion in this connection is that, through apparently an oversight, the trial Court referred in its judgment to exhibit 2 as being exhibit 3 and to exhibit 3 as being exhibit 2; having, however, weighed fully the significance of this error in relation to the contents of the whole judgment of the Court below, we are quite satisfied that it has not really affected the importance which would have been attached by the trial Court to the said two documents, had the above oversight not occurred; in effect, these documents, taken together, were treated by the trial Court as indicating the appellant's intention to reside in Cyprus.
We cannot agree that it was wrong to rely on such documents for the purpose of coming to a conclusion regarding the residence of the appellant on the material date; of course, they could not be treated as conclusive by themselves, and they were not so treated by the trial Court; they were just relevant pieces of evidence forming part of the overall picture.
We have duly borne in mind that both such documents came into existence because of particular circumstances requiring that they should have been executed, and that they were not executed with the primary purpose of establishing where the appellant was residing at the material time; but, in our view, this consideration does not deprive them of their relative, though not conclusive, evidential value, and, on the contrary, it makes them rather significant, because they were executed in circumstances in which the appellant had no reason to state anything else but his actual residence at the time.
Counsel for the appellant has submitted, further, that the question of the registration of a foreign judgment, as in the present case, was a matter of judicial discretion, and that, in this respect, the relevant discretion was wrongly exercised; in [*76] order to establish that the registration of a foreign judgment is a matter of discretion he relied on the case of Kohn v. Rinson & Stafford (Brod), Ltd., [1947] 2 All E.R. 839; but, a careful perusal of the report of that case shows that what was really decided therein was only that the question of making an order as to security for costs in relation to proceedings for the enforcement of a foreign judgment was a matter of discretion. In our view, in determining, as in this case, the only disputed issue in relation to the registration of the foreign judgment concerned, namely that of the residence, at the material time, of the appellant, the trial Court was not called upon to exercise any discretion, but it had to resolve an issue of mixed law and fact.
Having carefully considered all the material before us, we have reached the conclusion that the appellant has not discharged the onus of pursuading us that the trial Court was wrong in finding that, at the material time, he was a resident of this country, in Famagusta. The burden was on the respondents to satisfy the trial Court that he was so resident, but once the trial Court has made that finding, the onus of upsetting it was on the appellant.
For all the foregoing reasons we find that this appeal should be dismissed; but, as the respondents have tried, and have failed, to persuade us that residence in Cyprus was not required for the registration of the judgment, we shall not make an order as to the costs in the appeal, because, in effect, the respondents have been unsuccessful as regards a material aspect of it.
Appeal dismissed. No order
as to the costs of the appeal.
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