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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V21) 1 CLR 175
1956 October 11
[HALLINAN, C. J. and ZEKIA, J.]
MICHALAKIS CHRISTODOULOU,
Appellant,
v.
OLYMPIA EROTOKRITOU,
Respondent.
(Civil Appeal No. 4190).
Practice-Application for, summary judgment-Civil Procedure Rules, Order I8-Calling of plaintiff's evidence disapproved-Cross-examination of defendant-Mala fides established.
Plaintiff applied for summary judgment under Order 18. The application was opposed and the Court heard the evidence of the plaintiff and a witness and then the defendant was cross-examined on his evidence. The application was granted.
Upon appeal,
Held: The evidence of the plaintiff and his witness should not have been heard. However the affidavit of defendant was sufficiently suspect to warrant the Court allowing cross-examination thereon. This revealed the mala fides of his defence.
Appeal dismissed.
Appeal by defendant from the judgment of the District Court of LimassoI (Action No. 743/56).
K. C. Talarides for the appellant.
G. Cacoyannis for the respondent.
The facts sufficiently appear in the judgment of this Court which was delivered by:
HALLINAN, C. J.: In this case the plaintiff-respondent sued the defendant-appellant on a bond and for a further sum of money lent. The plaintiff moved for summary judgment under Order 18 and the defendant filed an affidavit that he had a good defence to the action. His defences were two: First, that the amount owned was not £150 but £140 and, secondly, that he had given the plaintiff £10 and in consideration of that sum the plaintiff had agreed to his paying the debt by instalments.
At the hearing of the application for summary judgment the trial Judge proceeded to hear the evidence of the plaintiff and a witness and then heard the evidence of the defendant-appellant, who was cross-examined. He came to the conclusion that the defendant's grounds of defence were not bona fides and he entered judgment for the plaintiff.
We may say at once that the procedure of calling the plaintiff and her witness was wrong. Normally if a defendant states that he has a good defence on the law or the merits and gives particulars which give no reason to think that his defence is mala fides, then the Court must refuse the application for summary judgment and allow the action to go for trial. But in this case, even on reading the affidavit of the defendant, it would not be unreasonable for a judge hearing the application to suspect the bona fides of the defendant and allow the defendant, to be cross-examined on his affidavit. Moreover, even if we completely disregard the evidence of the plaintiff and her witness, the cross-examination of the defendant does, in our view, reveal his mala fides.
Although we accept the submission of counsel for the appellant that the procedure in calling the plaintiff and her witness was wrong, nevertheless for the reasons already explained, we consider that the learned judge was right in giving the plaintiff her order for summary judgment; as there was an irregularity upon the hearing of the application which it was quite proper to have argued on appeal, we consider that no order should be made as to the costs of the appeal.