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Colonial Cases

Nicola v. Louka, 1883

[nationality]

Nicola v. Louka

Supreme Court of Cyprus
Bovill C.J. and Smith J., 29 May and 1 June 1883
Source: (18830 1 Cyprus Law Reports

 

YERASIMO PAPA NICOLA, Plaintiff,

v.

GEORGI LOUKA, Defendant.

 

NATIONALITY - OTTOMAN SUBJECT - GREEK SUBJECT - INHERITANCE - PROTOCOLS OF LONDON, 9TH MARCH, 1886 - LAW ON OTTOMAN NATIONALITY OF JAN. 19TH, 1869 - VIZIERIAL ORDER, 25 ZILHIDJE, 1281.

Mr. A. an Ottoman subject, left Cyprus about the year 1865 and resided in Greece, where, it was alleged, that he complied with certain formalities which entitled him to be regarded by the Hellenic Government as a Hellenic subject.  He subsequently returned to Cyprus where he died.

    HELD: that as A. was not a person who had acquired Hellenic nationality either under the protocols of London or the law on Ottoman nationality of the 19th January, 1869, and as his alleged acquisition of Hellenic nationality has never been especially authorised nor specially recognised by the Ottoman Government, his status as an Ottoman subject remained unchanged in ottoman territory.

   The plaintiff sued the defendant before the Daavi Court of Limassol to recover the property left by one Yanni, deceased.

   The plaintiff was the brother and the defendant the nephew of the deceased, who died unmarried.

   The defendant, who was a Hellenic subject, alleged that the deceased had acquired Hellenic nationality and that consequently he was entitled to succeed to the property to the exclusion of the plaintiff.

   The Daavi Court of Limassol gave judgment in favour of the defendant, dismissing the plaintiff's claim.

   The plaintiff appealed to the Temyiz Court.

   The defendant not appearing on the day fixed for the hearing of the appeal, the Temyiz Court gave a judgment by default, reversing the decision of the Daavi Court.

   The defendant subsequently made opposition to their judgment under Art. 74 of the Code of Commercial procedure.

   The matter was still pending before the Temyoz Court when the Cyprus Courts of Justice Order, 1882, came into operation, and under clause 160 of that Order the case was transferred to the Supreme Court.

   The matter came on for hearing on the 29th May, 1883.

   Diran Augustin for the defendant in support of his opposition.

   Pascal Constantinides for the plaintiff.

   Judgment: The question for decision in this action is - who is entitled to inherit the immoveable property of Joanni, who was by born an Ottoman subject, but who is alleged by the defendant to have validly acquired Hellenic nationality?

   This question arises by reason of the contention of the defendant that the immoveable Mulk property of a foreigner descends on his death to his heirs of the same nationality.  The plaintiff contends that whatever nationality the deceased may have been recognised to possess in the Hellenic Kingdom this does not affect his status in the Ottoman Empire if the Ottoman Government have not assented to the change of his nationality, and it appears to us that the point to be decided rests upon the question whether the deceased was to be considered in the Ottoman Empire as a Hellenic subject.

    The material facts of the case are as follows: The deceased being an Ottoman subject possessing immoveable property (Mulk and Erazi) in the Ottoman Empire, left his home about 1865 and resided in Greece for some time.  It is alleged that he there complied with certain formalities which entitled him to be regarded by the Hellenic Government as an Hellenic subject.  He then returned to his native country and continued to hold the land he possessed prior to his leaving his home, and after residing in his native country for some 14 or 15 years, he died, his nearest relative at the time of his death being a brother, who is an Ottoman subject, and the children of a deceased sister, some of whom are Ottoman subjects and one an Hellenic subject.

   Under these facts we have to decide whether the deceased acquired the status of an Hellenic subject with respect to the Ottoman Government.  It is the inherent right of every sovereign state to refuse to allow its subjects to shake off their allegiance or to divest themselves of the nationality of their birth, and to regulate the conditions under which its subjects shall be permitted to acquire a foreign nationality which it will recognise: in another country he may acquire another nationality; but this will not affect his status as a subject of the country of his birth, so far as the Government of that country is concerned.

   A person who is an original subject of any State may acquire a foreign nationality which will be recognised in a foreign country; but if he acquire such foreign nationality in any other manner than in compliance with the regulations laid down by the Government of his own country, that government is in no way bound to recognise him as a foreigner, but may continue to regard him in all respects as one of their own subjects.

   So far as we have been able to ascertain there are only two legal means by which Ottoman subjects have, generally speaking been able to acquire Hellenic nationality: 1st. under the protocols of London, and 2nd, under the law of 1869. [Leg. Ott. Vol. I, p. 7]

   The means of acquiring Hellenic nationality afforded by the protocols of London affect only those who left Ottoman territory to acquire Hellenic nationality prior to the middle of the year 1837, and the provisions of the law of 1869 are not retrospective.  If any other Hellenic nationalisations of Ottoman subjects are to be held binding on the Ottoman Government, they must have been either specially authorised before or specially recognised after they took place.

   In the case before us it is clear that the deceased did not acquire Hellenic nationality either under the protocols of London or by the law of 1869, and it is not suggested that he had any specials authority from the Sublime Porte to acquire such nationality.

   It is however contended that his Hellenic nationality was specially recognised by the Ottoman Government after his return to Cyprus, and in support of this it was alleged, though it was not proved, that the deceased was exempted from the payment of the Bede Aktieh.  Assuming this to be the case, we do not think that this affords evidence of recognition of the deceased by the Ottoman Government as an Hellenic subject.  We should ourselves have come to this conclusion having regard to the fact that the deceased resided and held Mulk property in the Ottoman Empire,, which would have been directly in opposition to the law were he to be regarded as an Ottoman subject who had acquired a foreign nationality, but our opinion has been greatly strengthened by the perusal of a Vizierial order, dated the 25 Zilhidje, 1281, which, after stating that many Ottoman subjects  who have emigrated to Greece have on their return to the ottoman Empire claimed to be regarded as Hellenic subjects, directs that they shall be exempt from the payment of personal taxes, but shall be liable to the payment of all taxes on land held by them, and that, notwithstanding  their exemption from the payment of personal taxes, they are not to be regarded as Hellenic subjects, but as persons whose nationality shall, pending a settlement of the  question by the two Governments, be considered as uncertain.  No settlement of this question has been arrived at, unless it be by the law of 1869 above referred to, which beeves does not affect the position of Ottoman subjects who prior to the date of that law had acquired a dirking nationality without authority.

   It therefore appears to us that such persons are from a legal point of view still to be regarded as Ottoman subjects, and that the deceased thus being at the time of his death an Ottoman subject, the plaintiff's claim in this action must prevail.

   For these reasons therefore our order is that the opposition of the defendant be rejected and that the judgment of the Temyiz Court given by default on the 8th November, 1882, be confirmed, and that the defendant pay to the plaintiff all costs of and occasioned by this appeal and this opposition.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School