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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V8) 1 CLR 87
1908 December 2
[TYSER, C.J. AND BERTRAM, J.]
GIULSUM OSMAN
v.
ZEHRA AHMED.
PRACTICE-AMENDMENT OF CLAIM-JUDGMENT-RIGHTS OF PARTIES AT TIME OF ACTION BROUGHT.
NUISANCE-OVERLOOKING-FALL OF PARTY WALL-ERECTION OF SCREEN ATJOINT EXPENSE-MEJELLÉ, ART. 1317.
A judgment determines the rights of the parties at the date of the issue of the writ.
An amendment of a claim cannot be granted unless it is justified by the circumstances existing at the date of the issue of the writ.
It is a condition precedent to the right of one co-owner of a fallen party wall under Art. 1317 of the Mejellé to an order of the Court for the erection of a screen at the joint expense of the co-owners so as to secure his house from overlooking, that he should have made an offer to the other co-owner to have the nuisance abated at their joint expense before action brought.
The Plaintiff brought an action claiming that the Defendant should rebuild a wall which the Plaintiff alleged to be her property and to have fallen by her negligence, on the ground that the fall of the wall subjected Plaintiff's house to overlooking. The Defendant denied the ownership of the wall. The District Court found that the wall was owned by the Plaintiff and Defendant in common and ordered the erection of a screen at the joint expense under Art. 1317 of the Mejellé.
HELD: (1.) That the order was not one that could be made in the action as it gave a remedy different from what was asked in the claim.
(2.) That no amendment could be made to the claim so as to enable the Court to make the order, inasmuch as at the date of the issue of the writ the Plaintiff had not offered to the Defendant to have the nuisance abated at the joint expense of the parties, and consequently was not entitled to the remedy accorded by Art. 1317.
This was an appeal from the judgment of the District Court of Nicosia.
The claim was for damages caused by the fall of a wall, said to belong to the Defendant and to have fallen through negligence and for an order for its re-erection, on the ground of overlooking. The Defendant at the settlement of the issues denied the ownership of the wall (asserting that it was the property of the Plaintiff), denied the alleged negligence, and denied the overlooking.
The principle issue framed was as to the ownership of the wall.
The Court, having heard the evidence and inspected the premises found as a fact that the wall was owned in common, and also that there was overlooking. It did not grant the claim as prayed, but purporting to act under Art. 1317 of the Mejellé, made an order for the erection of a screen at the joint expense of the parties.
The Defendant appealed.
Artemis for the Appellant. This order cannot be made upon this claim. The onus of proving that the Defendant owned the wall was upon the Plaintiff. He failed to prove it, and I was entitled to judgment. Had the Plaintiff originally offered to erect a screen at our joint expense, I might very probably have consented.
Theodotou for the Respondent. This is a mere question of form. The Court has found that my house is subject to a nuisance and that the Defendant is at any rate partly responsible for abating it. If necessary, even at this stage, I ask for leave to amend. If I have not proved the whole of my claim, I have proved part of it and I am entitled to judgment pro tanto.
The Court allowed the appeal.
Judgment: We are of opinion that the judgment of the District Court is wrong and must be reversed.
It gives the Plaintiff something which she does not claim. She claims the enforcement against the Defendant of duties, which would fall on the Defendant if she were sole owner of the wall.
The Court have ordered the Defendant to perform a duty which might be incumbent on her as owner in partnership.
This duty falls upon one co-owner under Art. 1317 of the Mejellé only where the other co-owner has asked him to rebuild the wall at their joint expense.
At the time when the writ was issued this had not been done.
The judgment has to determine the rights of the parties at the time when the writ was issued.
We must therefore find that in this action the Defendant was not under any obligation by virtue of Art. 1317.
If the Plaintiff had been ready and willing at the time of action brought to do her share of the work and had asked the Defendant to do her share and the Defendant had refused, then if the claim had been properly made, the judgment of the District Court would stand.
If this were the case, we should order an amendment, if asked for, subject to directions as to costs.
But no amendment would be of any use, because the Plaintiff was not ready and willing to do her share when she brought her action, and therefore could not, in this action, compel the Defendant to do her share.
The judgment must be reversed and the appeal allowed with costs.
Appeal allowed.