(1989) 1 CLR 230
[*230] 1989 April 24
(SAVVIDES HADJITSANGARIS, BOYADJIS, J J.)
ELENI M. TSIAMANTA,
Appellant Plaintiff,
v.
MARIA M.TSIAMANTA,
Respondent-Defendant.
(Application in Civil Appeal No. 7052).
Appeal — Amendment of notice of appeal by adding new grounds, whereby the basis of the appeal will be considerably extended — Application for amendment filed at a very late stage — The matter is within the discretion of the Court, which, however, should be zealously exercised — Review of case law.
In the light of the case law and the principles emanating therefrom and the particular circumstances of this case, the application for amendment was dismissed.
Application dismissed with costs.
Cases referred to:
Vassiades v. Michaelides Bros. (1973) 1 C.L.R. 80;
The Attorney-General of the Republic (No.1) v. Adamsa Ltd. (1975)1 C.L.R.8;
St Nicholas Shipping Co. Ltd. v. Nissho-Iwai Co Ltd. (1984) 1C.L.R. 604.
Application.
Application under 0.35, rules 4 and 8 of the Civil Procedure Rules for leave to amend the notice of appeal by adding further grounds of appeal.
A. Eftychiou with M. Pierides, for the applicant.
M. Papapetrou, for the respondent. [*231]
SAVVIDES J. gave the following judgment of the Court. This is an application under 0.35, rr.4 and 8 of the Civil Procedure Rules for leave to amend the notice of appeal by including therein further grounds of appeal.
This appeal is directed against the judgment of a Judge of the District Court of Nicosia in Civil Action 4433/82 which was delivered on 19th September, 1985. The notice of appeal was filed on the 26th October, 1985 and after enumerating the grounds of appeal at the end of it there appeared the following:
«Further grounds of appeal may be submitted when the record of the proceedings is made available».
The record of the proceedings as it appears from the file was made available on the 2nd January, 1986, and the appeal was fixed for hearing on the 10th November, 1987 and counsel for the appellant were notified that this appeal was so fixed; a copy of the full record of the case was made available and in fact received by counsel for appellant long before the date of the hearing of the appeal but no application came forward for the amendment of the notice of appeal for the addition of further grounds.
At the hearing of such appeal after certain observations made by the Court counsel for appellant applied for an adjournment on the ground that he needed some time to consider his position and that he intended to apply for amendment of the grounds of appeal. As a result the appeal was adjourned to afford counsel for the appellant the opportunity to file such an application.
As no application for amendment had been made till September, 1988, counsel for the respondent applied for a date of hearing to be fixed for the appeal and the appeal was fixed on the 2nd February, 1989 and counsel appearing for both parties were notified accordingly by the Registrar on the 13th October, 1988.
On 10th January, 1989, counsel for the appellant filed the present application for leave to amend the notice of appeal by including therein further grounds of appeal set out therein. As to the scope of the proposed amendment the following appear in the affidavit accompanying the application which was sworn by one of the counsel appearing for the appellant:
«
2. After further study of the above appeal it has been ascertained that the amendments applied for are necessary. [*232]
3. The amendments applied for are absolutely necessary for the better adjudication of the sub judice matters and for the better administration of justice in the case».
The application was opposed by counsel for the respondent who by their opposition contended that it was not just and reasonable in the case that the amendments applied for should be granted in view of the fact that this application was made at a very late stage and after the expiration of three years from the filing of the notice of appeal. Also that the said grounds were entirely new and had no relation with those submitted in the original notice of appeal.
In the course of the hearing of this application counsel for the appellant contended that the grounds sought to be introduced in his notice of appeal were in fact explanatory of the previous grounds and that they did not modify the basis of the appeal. This statement of counsel is not consistent with what was alleged by the other counsel appearing for the appellant in his affidavit in support of the application from which the inference that may be drawn is that they are new grounds the inclusion of which is necessary for the just determination of the appeal.
It is quite clear that by the proposed new grounds the appellant is seeking at this very late stage to extend considerably the basis on which he challenges the judgment appealed from.
If, according to the submission of counsel for the appellant, the new grounds sought to be introduced are covered by the grounds already contained in the notice of appeal as originally filed then there was no reason for him to file this application as he could expound such grounds to the extent they are referred to in the notice of appeal. But the position, as already explained, is not so because by the proposed amendments the appellant seeks to introduce new grounds which extend, as mentioned, considerably the basis on which he challenges the judgment appealed from.
It is well settled by a line of decisions of this Court that though an amendment of the notice of appeal is a matter within the discretion of the appellate Court nevertheless such discretion should be zealously exercised bearing in mind the particular circumstances of the case. [*233]
In Vassiades v. Michaelides Bros. (1973) 1 C.L.R. 80, at p.81, the Court of appeal in dealing with a similar application held that:
«It is quite clear that by the proposed new ground the appellant is seeking, at this very late stage, during the hearing of the appeal, to extend considerably the basis on which he challenges the judgment appealed from. In the light of the particular circumstances of this case we are not prepared to exercise our discretion in favour of the appellant; and, therefore, the application is dismissed»
(See also The Attorney-General of the Republic (No.1) v. Adamsa Ltd. (1975) .1 C.L.R. 8; St. Nicholas Shipping Co. Ltd. v. Nissho-Iwai Co. Ltd. (1984) 1 C.LR. 604 in which the above dictum in Vassiades case was cited with approval.
In the light of the particular circumstances of this case we are not prepared to exercise our discretion in allowing the application as by deciding otherwise we would have, at this very late stage, allowed the appellants to extend and alter considerably the basis on which the judgment appealed from is challenged; of course anything contained in the reasons given in support of the disallowed new grounds, which may fairly be said to be covered by the grounds already contained in the notice of appeal as originally filed, can still be raised in argument during the hearing of the appeal to the extent they are so covered.
In the result the application is dismissed with costs.
Application dismissed with costs.
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