Kotsonis Andreas and Another ν. Aftomata Eleourghia Lythrodonta Ltd
(1987)1 CLR 541 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1987)1 CLR 541 [A. LOIZOU. DEMETRIADES. PIKIS. JJ.] ANDREAS KOTSONIS AND ANOTHER, Appellants, v. AFTOMATA ELEOURGHIA LYTHRODONTA LTD., Respondents - Plaintiffs. (Civil Appeal No. 7275). Appeal - The Courts of Justice Law, 1960 (14/60), section 25
(1)- Contempt of Court - Ruling finding appellants guilty of contempt - No appeal lies before passing of sentence. Appellant 1 is the Acting Director of Lands and Surveys and appellant 2 an official of the department. Upon application by the plaintiffs (respondents), the appellants were found by the Full District Court of Nicosia guilty of contempt of Court for having refused to effect transfer of property in accordance with an order of the Court in another action into the name of the plaintiffs. The full District Court the adjourned passing sentence to another date, evidently in order to afford the parries in the meantime the opportunity to comply with the order for the transfer of the property. The question that arose for determination is whether an appeal lies from the ruling finding the appellant guilty of contempt. Counsel for the respondents submitted that no appeal lies before the passing of sentence. Held dismissing the appeal: The findings of the trial Court under appeal before this Court can only be described as an incomplete judicial determination and, as such, it is a decision of a Court against which no appeal lies. In our view the decision of the Nicosia Full Court is not one against which an appeal lies in the sense of section 25
(1)of the Courts of Justice Law, 14/60. It is only when the judicial process comes to an end, that is by the imposition of sentence on the appellants, that they will have every right to appeal to this Court for the review of every factual and legal point that in their case called for decision. Appeal dismissed with costs. Cases referred to: Jelson (Estates) Ltd. v. Harvey
(1984)1 AII E.R. 12. HadjiCosta v. Anastasiades
(1982)1 C.L.R 296; Aftomata Eleourgia Lythrodonta Ltd. v. Holy Monastery of Machera
(1986)1 C.L.R 524; In re E.S. (an infant)
(1986)1 C.L.R. 119. Preliminary question. Counsel for the appellants raised, as a preliminary question, the issue whether the decision under consideration is an appealable decision. L. Loucaides, Deputy Attorney-General of the Republic, for the appellants. Chr. Kitromelides, for the respondents. Cur. adv. vult. A. LOIZOU, J.: The judgment of the Court will be delivered by His Honour Mr. justice Demetriades. DEMETRIADES, J.: On the 27th November, 1986, the Acting Director of Lands and Surveys Mr. Andreas Kotsonis and an official of that department, Mr. Michael Tsangarides, were found guilty of contempt of Court for failing to obey an order of the District Court of Nicosia. The facts that lead to the proceedings for contempt of Court against the two officers of the Lands and Surveys Department are the following: On the 29th May, 1984, Boyadjis, the President of the District Court of Nicosia, with the consent of counsel who represented the parties in Action No. 3511/84, ordered that the field under Registration No. 31328, plot 927 of Sheet Plan XXXIX/36 of an extent of one donum, two evleks and 2800 sq. feet (the whole) situated at locality «Avladjin» of Lythrodontas village, be transferred and registered in the name of the plaintiffs in that Action. The owners of the property at the material time were the Iera Moni Machera, the defendants in the Action. The plaintiffs, who, as it appears from the record of the proceedings, had agreed to purchase the said field, are a limited company. On the 18th June, 1984, the parties to that action appeared before the District Lands Office of Nicosia for the purpose of effecting the said transfer but the Director of the Lands and Surveys Department refused to transfer the property into the name of the plaintiffs, asserting that the transfer could not take place without the consent of the Holy Synode of the Greek Orthodox Church of Cyprus. On the 13th January, 1986, counsel for the plaintiffs addressed a letter to the Director asking him to comply with the order of the District Court of Nicosia but the Director, by his letter dated the 23rd January, 1986, which was signed on his behalf by Mr. Michael Tsangarides, refused to comply again, putting forward as ground for his refusal to do so that the consent of the Holy Synode was necessary. As a result, on the 24th February, 1986, the plaintiffs in the Action filed an application with the District Court of Nicosia, by which they prayed for the punishment of Mr. Kotsonis and Mr. Tsangarides for contempt and, also, for damages. The application came for trial before the Full District Court of Nicosia which, after hearing arguments by counsel representing the applicants-plaintiffs in the Action and the two officers of the Lands and J Surveys Department, ruled that the two officers were guilty of contempt. It then adjourned passing sentence to another date evidently in order to afford the parties in the meantime the opportunity to comply with the order for the transfer of the property. Before the date fixed by the Court for imposing sentence on the two officers, they unsuccessfully applied for a stay of execution. Their application was based on the ground that they had appealed against the finding of the Full Court that they were guilty of contempt of Court. Having failed in their application before the District Court for a stay, the appellants filed an application before the Supreme Court by which they prayed for an order of the Court to suspend the effect of the ruling of the District Court pending the final determination of their appeal against the finding of that Court that they were guilty of contempt of Court. That application was also dismissed. In the meantime, the two officials, who in all proceedings were and are represented by counsel from the Attorney-General's Office, filed, as we are informed, certiorari proceedings and, also, an appeal against the finding of the Full Court that they are guilty of contempt. At the beginning of the hearing of this appeal, the preliminary issue was raised that no appeal could lie at this stage as no sentence had been imposed on the two officials and thus the trial Court did not pronounce its final decision. Therefore, it was sumbitted the finding of the trial Court is not a decision against which an appeal lies under Order 35 of the Civil Procedure Rules. In answer to the above, the Deputy Attorney-General submitted that the decision of the trial Court, by which the two officials were found guilty of contempt, was of a final nature and had immediate consequences in that it can affect their status. Counsel argued that as contempt proceedings are dealt with by Courts in exercise of their civil jurisdiction, an appeal lies on the basis of the provisions of section 25
(1)of the Courts of Justice Law, 1960 (Law 14/60), which reads: «25.-(l) Subject to Rules of Court every decision of a court exercising civil jurisdiction shall be subject to appeal to the High Court.» He further argued that since sub-section
(1)of section 25 gives right of appeal in civil proceedings against «every decision» and sub-section
(2)of the same section distinguishes the right of appeal in criminal proceedings between decisions which amount to conviction and decisions by which sentence is imposed, a right of appeal lies in the present case. Finally, the Deputy Attorney-General insisted that the decision of the trial Court was a final one and thus subject to appeal. Counsel for the applicants argued that there is not a final decision upon which an appeal lies and relied on 0.35, r.2, of the Civil Procedure Rules which fix the time within which a litigant can appeal. He gave emphasis on the words > and submitted that the right of appeal emerged at the time the decision of the trial Court or its order becomes binding. In the present case, he contended that the Court, by finding the appellant guilty of contempt, it really meant nothing because no sentence was passed, no fine was decided upon to be paid. Thus, the procedure was incomplete and the right to file an appeal could only arise after sentence and not before sentence. Counsel further argued that the principles applicable in civil contempts are those of the criminal procedure rather than those of civil procedure and this submission he based on the case of Jelson (Estates) Ltd. v. Harvey, [1984] 1 All E.R. 12, in which it was accepted that the principle of autrefois acquit applied in civil contempts. In HadjiCosta v. Anastassiades,
(1982)1 C.L.R. 296, Pikis J., in delivering the judgment of the Court in that case, said this (at p. 298):- «An appeal only lies when the trial Court has, by its decision, failed to vindicate a right or grant a remedy asked for, in the same way that the trial Court can only take cognizance of an action, disclosing a litigable cause. Only a decision that is, that part of the judgment that is definitive of the rights of the parties, can be made the subject of appeal as opposed to the remaining part of the judgment, explanatory of the decision. This is made clear by the provisions of s. 25
(1)of the Courts of Justice Law 14/60, laying down that only a decision can be made the subject of appeal». A. Loizou J., in delivering the judgment of the majority of the appeal Court in the application of the appellants in this appeal for the suspension of the effect of the ruling of the trial Court, that is Application in Civil Appeal No. 7275 Aftomata Eleourgia Lythrodonta Limited v. Holy Monastery of Machera
(1986)1 C.L.R. 524 said: «It should be stressed that it (s. 47) empowers the Court to direct 'that execution of such judgment be suspended for such time and subject to such terms or otherwise as to such Court may seem just». The question as regulated also by Order 35, rule 18, was considered in Photiou and another v. Petrolina Ltd.,
(1984)1 C.L.R. 708, where it was held that same confers no power to stay further proceedings in the action pending the determination of an appeal. On the totality of the circumstances before me and the meaning and effect of section 47 and rule 18 of Order 35 as interpreted in the Photiou case (supra), I have come to the conclusion that the process before the Full District Court of Nicosia has not been completed as the committal for contempt has not been decided upon.» Pikis J., as well, in a separate judgment that he delivered in that Application, came to the same conclusion, stating, inter alia, in his judgment the following: «There is no enforceable order of the Court. A verdict of guilty is not of itself enforceable». Light on the question of whether an appeal lies against a decision of a Court is thrown, also, by what was said in the case of In re E.S. (an infant),
(1986)1 C.L.R. 119. The finding of the trial Court under appeal before us can only be described as an incomplete judicial determination and as such it is a decision of a Court against which no appeal lies. In our view the decision of the Nicosia Full Court is not one against which an appeal lies in the sense of section 25
(1)of the Courts of Justice Law, 14/60. It is only when the judicial process comes to an end, that is by the imposition of sentence on the appellants, that they will have every right to appeal to this Court for the review of every factual and legal point that in their ease called for decision. In the result, this appeal is dismissed with costs and the case is remitted to the Full Court of Nicosia for passing sentence on the two appellants. Appeal dismissed with costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο