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17 May 2019
On 22 March 2019 the Supreme Court of Cyprus issued its decision in Smith v Kefala (Civil Appeal 72/2012) following the appeal of a district court interim decision concerning an application to present oral evidence as part of an application/appeal against a decision by the director of the Land Registry.
The applicants had filed their application against the director's decision under Section 80 of the Immoveable Property (Tenure, Registration and Valuation) Law (Cap 224), on the basis of which he had granted a right of way to the respondent to the detriment of the applicants' immovable property.
During the application hearing, the applicants applied to the district court to present the oral evidence of a person who had not signed a written affidavit in the context of the proceedings. The district court rejected the application and the applicants appealed.
Although it decided that the interim decision could not be appealed in light of the case law on the matter, the Supreme Court proceeded and examined the subject matter of the appeal. It cited Regulation 10(3) of the Immoveable Property (Tenure, Registration and Valuation) Regulations 1956, which provides that:
The Court or Judge, after application or oral application, may for good reason, allow the filing of supplementary affidavits. The hearing of the application is conducted on the basis of the facts which are mentioned in the application or the affidavits subject to the option of cross-examination which is provided in Rule 39 of the Civil Procedure Rules.
The court decided that Regulation 10(3) does not allow oral evidence to be presented during the appeal hearings. According to the regulation, no party should be deprived of their right to present the evidence required to prove their case or disprove that of the other side. This can include filing a supplementary affidavit with leave of the court, provided that this course of action falls within the scope of 'good reason' set out in the regulation. Further, parties may cross-examine affiants under Rule 39.1 of the Civil Procedure Rules. In this way, the Supreme Court stated, the right to a fair trial of the parties is secured.
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