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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V10) 1 CLR 45
1911 January 13
[TYSER, C.J. AND BERTRAM, J.]
CHRISTOPHI HAJI NIKOLA
v.
HAJI MICHAEL HAJI PAVLOU.
ACKNOWLEDGMENT OF DEBT IN CUSTOMARY FORM-EQUITABLE DEFENCE-MEJELLE, ART. 1610.
CIVIL PROCEDURE-LOCAL JURISDICTION OF DISTRICT COURTS-AGREEMENT BETWEEN PARTIES THAT ACTION MAY BE INSTITUTED IN PARTICULAR COURT- ORDER II, RULE 2.
An acknowledgment of debt, though in customary form so as to be prima facie conclusive under Art. 1610 of the Mejelle, wilt not be enforced if it was given under such circumstances as to render it fraudulent or inequitable for the person to whom it was given to sue for its enforcement.
The Defendant not being able to agree with his co-heirs as to the division of his father's property and not wishing to bring an action against them, gave a bond to the Plaintiff on the understanding that he ivoul4 obtain judgment upon it, issue execution against his immoveables, obtain a partition marking off his share, buy in this share at the sale, and settle upon the Defendant's daughter, who was the god-child of the Plaintiff. This arrangement was never carried out and subsequently the Plaintiff sued upon the bond as acknowledging a personal debt.
HELD: That the acknowledgment was not enforceable.
The District Courts under the Cyprus Courts of Justice Order, 1882, have jurisdiction to entertain all actions without local limitations, but under Order II, rule 2, it is irregular for them to entertain any action not instituted in accordance with that rule. If a Court does entertain any such action its proceedings are consequently not a nullity, but only an irregularity.
An action irregulary instituted in a District Court is not regularised by a previous agreement between the parties providing that the action may be brought in that Court.
Objection to an action as irregularly instituted in the Court in question should be taken at the settlement of the issues so that the point may be determined, and, if necessary, carried to appeal before the action comes on for hearing.
This was an appeal from a judgment of the District Court of Nicosia.
The action was brought upon an acknowledgment of debt in the customary form.
The Defendant did not reside in the Nicosia District, nor was it declared in the bond that payment should be made in the Nicosia District, but it was provided that any action on the bond might be brought in the Nicosia District Court. At the trial the Defendant objected to the jurisdiction of the Court, but the Court overruled this objection on the ground of the express provision in the bond.
The circumstances under which the bond was given appear from the head-note and the judgment.
The District Court gave judgment for the Defendant.
The Plaintiff appealed.
Kyriakides for the Appellant.
Theodotou for the Respondent.
The Court dismissed the appeal.
Judgment: This is an action on an acknowledgment of debt in the ordinary form. The circumstances under which the document was in fact given were as follows:-
The Defendant, the giver of the bond, had inherited a share in certain properties belonging to his father, and was unable to agree with his co-heirs as to the manner in which they were to be divided. He did not wish to bring an action against members of his own family, so he adopted the following expedient. He gave this bond to the Plaintiff, on the understanding that the Plaintiff would recover judgment on the bond, issue execution against his immoveables, obtain a partition marking off the Defendant's share, buy in that share at the sale, and register it in the name of the Defendant's daughter, who is the godchild of the Plaintiff.
The arrangement is a very singular one, but the District Court has found as a fact that it existed, and there is no reason to disturb its finding.
The Plaintiff now, in fraud of the arrangement, seeks to enforce the document as proving an ordinary debt.
In a recent case, reviewing the law governing documents of this character, the Court declared that though they are prima facie conclusive, yet that the Defendant is entitled to set up any matter which by the existing law or practice can be regarded as a defence to the claim.
It is not possible or necessary to define or enumerate the defences which can be put forward under this decision. The present case however falls within a principle which has already been recognized by authority.
In the case of Sotiri v. Sotiri (1893) 2 C.L.R., 177, which carried the doctrine of the conclusiveness of these documents to its furthest length, and in which a bond of £150 was enforced though only £7 was actually due, the Court expressly intimates that their decision might have been otherwise if the Plaintiff had "obtained the execution "of this bond by fraud, or under such circumstances as would either "amount to fraud, or render it inequitable on his part to take these "proceedings." (p. 180). These words seem exactly to apply to the present case. In this case the Plaintiff obtained the bond under such circumstances as to render it fraudulent or at least inequitable that he should take these proceedings, and we think that this is a good defence to the claim.
With regard to the objection that the Nicosia District Court had no jurisdiction to try the case, properly speaking the objection should have been not that the Court had no jurisdiction, but that the action was irregularly instituted. The Order in Council which confers on the District Courts jurisdiction to try all Ottoman actions, does not limit their jurisdiction to matters arising, or persons residing within the special district of the Court.
Order II., Rule 2, which declares that every action (other than an action relating to immoveable property) shall be instituted "either "in the District Court of the District within which the Defendant "or any Defendant resides, or in the District Court of the District "within which any breach of contract, or any wrongful act on which "the action is founded is alleged to have occurred" is a rule of procedure.
A rule of procedure cannot either confer jurisdiction or take away jurisdiction already existing. Its function is to regulate the exercise of jurisdiction. This rule must therefore be interpreted not as limiting the jurisdiction of the District Courts but as regulating its exercise.
It is clear that the parties cannot by agreement beforehand between themselves make regular a proceeding which by the Rules of Court. is irregular, though a party may waive an irregularity, when the case is before the Court. The hearing of this action by the District Court was however not a nullity, but an irregularity. The proper course for the Defendant to have taken was not to object to the jurisdiction of the Court, but to apply to strike out the action as irregularly instituted. If this had been done, an appeal could have been made to the Supreme Court, before the action was set down for trial. This was not done, and accordingly the judgment of the Court, in spite of the irregularity in the proceedings, stands good. It is not like a case in which the Court had no jurisdiction.
As a matter of fact the point is not raised by the Appellant on the appeal, but was put forward by the Defendant on the hearing, and as both the judgment in the District Court and this Court is in favour of the Defendant it doesnot not now arise. We refer to it however in order to call attention to the proper method of raising such questions, with a view to saving the expense of a trial where an action is not regularly instituted, or when the Court has no jurisdiction to entertain it.
The appeal is dismissed with costs.
Appeal dismissed.