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Colonial Cases

Nicola v. Yanni, 1888


Nicola v. Yanni

Supreme Court of Cyprus
Smith A.C.J. and Templer A.J., 4 June 1888
Source: (1888) 1 Cyprus Law Reports






Where parties enter into an agreement under a mutual misconception as to their respective rights, the agreement is liable to be s et aside as having proceeded on a common mistake.

      APPEAL from the District Court of Papho.

   Marion Haralambo died in 1882, leaving her husband the defendant, and  two uncles one of whom is the plaintiff, surviving her; but neither children, parents, brothers nor sisters.  The deceased left property consisting of amaze, mulk and movables.  After her decease a dispute arose between the plaintiff and the defendant as to the division of the property, and eventually on the 16th November, 1882, an agreement was drawn up and signed by the parties by which a certain partition of all the estate was agreed to, and defendant thereby bound himself to pay the sum of £150 if he interfered with plaintiff's possession of the property so assigned to him.  Five years afterwards the defendant brought an action against the plaintiff to recover possession of the lands assigned to plaintiff by the agreement, and the Court gave judgment in accordance with the claim.  Thereupon plaintiff brought third action claiming half £150 on the ground of the breach of the agreement as regards the lands.

   The District Court dismissed the action.

   The Plaintiff appealed.

   Pascal Constantinidess, for the Appellant: I appeal on two grounds: (1). There was no issue settled in the District Court.  (2). There was no fraud.  The defendant admitted making the agreement but alleged that the plaintiff had deceived him.  The Court was not justified in annulling this agreement, except on the ground of fraud (Art. 1610 Mejelle).

   Respondent, in person: The plaintiff knew he was not entitled to the lands and he and his brother deceived me.

   Judgment: This is an appeal from the judgment of the District Court of Papho dismissing the plaintiff's claim to recover £75 said to be due under a contract dated November, 1882.

   The circumstances under which this document was drawn up are the following:-

   The defendant married the niece of the plaintiff.  On the deceased of the defendant's wife, her property, moveable and immoveable, was divided between the plaintiff, his brother Sava and the defendant.

   On the division of the immoveable property, the document above referred to was drawn up.  It specified the lands, including apparently both erazie-mirie and mulk properties, to be given to the plaintiff and his brother as their shares, and ends with an engagement on the part of the defendant to pay them £150 if he disturbs them in their possession of the property so assigned to them.  The defendant admits that subsequently to the date of the document he brought an action against the defendant and his brother and recovered possession of certain fields described in the document.

   We understand that by the fields is meant the erazie-mirie properties.

   The plaintiff thereupon commenced this action and the District Court gave judgment against him, on the ground that they could not be certain that both parties had acted in good conscience.  We have had some difficulty in ascertaining what the meaning of the reason given by the District Court is, but in the vied we take of this case it is unnecessary to consider it further.

   Two objections are raised to this judgment: (1) that there was no issue settled and (2) that the Court could only set aside the document on the ground of fraud, and that there was n o sufficient evidence of fraud.

   With regard to the first objection, we have perused the proceedings which took place on the settlement of the matters in dispute, and find that after the plaintiff stated his claim, the defendant admitted the facts stated by the plain tiff, and then proceeded to allege that the plaintiff and his brother came to him, and informed him that they had ascertained on enquiry at the Tapou Office that they were entitled to share equally in the lands, that the villagers suggested that they should divide the lands without reference to the Tapou Office and that hew then consented to a division of the lands.

   The defendant also alleged that the moveable property of the deceased had been divided between the plaintiff, his brother and himself at the time of the death of the deceased.

   The plaintiff does not appear to have specifically admitted or denied the allegations of the defendant, and no further proceedings as the settlement of issue took place.  Strictly speaking, there were no facts in dispute between the parties, and no issue to settle, and the matter was referred by the judge to the District Court.  On the following day the parties appeared before the Court.  There is a very short note of the proceedings before the District Court, but we gather from it that the proceedings, on the settlement of issue, were reads over and that the Court considered the only question to be decided was, whether the document was entered into by mistake; and a date was fixed for the defendant to prove that the document was entered into by mistake.  The meaning of these proceedings appears to us to be that the statement of the matters in dispute was practically settled before the Court.  The action seems to have proceeded on this understanding and both parties seem to have been aware what the matter in dispute really was.  No application was made by the plaintiff for any other issue to be settled, and though the proceedings in this case appear to have been somewhat informal, it does not appear to us that the plaintiff was in any way prejudiced.  The main object of the settlement of an issue, i.e., to make both parties aware of what is really in dispute between them, appears to have been accomplished, and we must therefore decline to set aside the judgment on the ground that no issue was settled.

   With regard to the second point, the Court below seem to have had considerable difficulty in making up their mind as to whether the parties were both acting in good faith when this document was drawn up. There seems to be no satisfactory evidence of fraud on the part of the plaintiff, and the question we have to decide, is whether this document t, entered into when both parties were ignorant of their legal rights, can be allowed to stand.  We have looked through the Mejelle but can find nothing that helps us in a solution of this question.  This is not such a case as is provided for by Art. 1610 of the Mejelle quoted by Mr. Pascal where the signature to an acknowledgement of debt is denied, and where there is some suspicion that the document is a forgery, and the supposed debtor is called upon to swear that he is not indebted.

   We must therefore decide this case upon general principles.  It is a well grounded rule that every one is presumed to know the law, and that, in general, persons who have acted in ignorance of the law must abide by the consequences.

   This rule is probably of universal acceptance in all countries, and indeed it is difficult to see how the business of every day life could be carried out in the absence of such a rule, as it is impossible to foresee to what extent the excuse of ignorance might not be carried. There are, however, some well defined exceptions to this rule. There is a well known rule of the Civil Law.  On videntur, qui errant, consentire, and this rule is founded alike on common sense and common justice.  Where two person s have entered into a contract in material error as to circumstances material to it and its consequences, such a contract would appear, on genital principles, invalid.

   Again, there is a well known class of cases decided by the Courts in England on principles somewhat an analogous.  We allude to that class of cases where the Courts have decided it would be inequitable to enforce transfers and agreements relating to property which have been made or entered into by a party in ignorance of his own right to the property.  Thus we find that it

"has been laid down as unquestionable doctrine, that if a party acting in ignorance of a plain and settled principle of law, is induced to give up a portion of his indisputable property to another under the name of a compromise, a Court of Equity will relieve him."

   And again,

"where the party acts upon the misapprehension that he has no title at all in the property, it seems to involve in some measure a mistake of fact: that is of the fact of ownership arising from a mistake of law.  A party can hardly be said to intend to part with a right or title of whose existence he is wholly ignorant, and if he does not so intend, a Court of Equity will, in ordinary cases, relieve him from the lega effect of instruments which surrender such unsuspected right of title."

The present case seems to us to be one to which the principles above stated should apply.  It seems to us to have been assumed on both sides that the plaintiff and his brother were entitled to share with the defendant in the erazie-mirie left by the defendant's wife, and that this document was not intended in any way as a compromise of disputed or doubtful rights.  The defendant's engagement was entered into on the natural understanding that he was entitled only to one-third share of the erazie-mirie, and, but for this understanding, would not have been entered into t all.  A transaction like the present one, in which an ignorant peasant binds him self in a penalty of £150 to respect the terms of a document so entered into, is one which we regard with great suspicion, and we therefore consider that he is entitled to be relieved from his engagement to pay the £150.

   It was contended before us that the document was intended as a compromise of the right of the plaintiff in all the inheritance left by the defendant's wife, i.e., in both the moveables and immoveables: but it seems to us from a perusal of the document that this is not so, and that it only embraces the immoveable property.  The defendant alleged at the time of the settlement of the matters in  dispute that the moveables were divided at the time of the death of his wife, and the plaintiff not having denied this allegation must be taken to have admitted it.  It seems clear, too, from the evidence taken before the Court, that the moveables were divided between the plaintiff, his brother, and the defendant.

   For the reasons above stated, we are of opinion that the judgment of the District Court must be affirmed, and that the appeal must be dismissed with costs.

   Appeal dismissed.

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