EVANGELOU & OTHERS ν. C.B.C. (1986) 3 CLR 755 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Not

Article 146of the Constitution and if so, whether this is a proper case for contempt.

Also whether the respondents in this application have complied with the annulling effects of the judgment of this court. In arguing the case for the applicants, counsel on their behalf contended that the respondents failed to comply with the judgment of the court and emplace the applicants in the existing post of Programme Officer A, Scale A 10 which was the post that replaced their previous post but emplaced them on a non-existing post of Programme Officer A, Scale A 8/9 pretending that by so doing they had complied with the judgment of the Court. After making extensive reference to French and Greek authorities on the matter of compliance with court judgments and the consequence of non-compliance, counsel for applicants submitted that contempt proceedings in the present case lie against all the respondents who were the persons responsible to give effect to the judgment of the Court. He further submitted that the decision of the respondents which was taken on 28.11.85 does not satisfy the judgment of the Court and it does not amount to compliance with such judgment and that against such decision a new recourse has been filed in the Supreme Court under No. 79/86 which is pending for trial. Counsel for respondents advanced three grounds on the basis of which the application should be dismissed. The first ground was that the judgment served on the respondents was not indorsed with the memorandum required by Order 42(A) of the Civil Procedure Rules in case of contempt proceedings. Second, no contempt proceedings can lie in the case of judgments of the Supreme Court in

Article 146

of the Constitution where the judgment of the court is only declaratory and of an annulling nature and is neither mandatory nor prohibitive. Third in the present case there has been compliance by the respondent Corporation with the judgment of the court by a new decision taken on 28.11.85 whereby effect was given to the said judgment of the court and that if applicants contest the validity of such decision, their remedy is to challenge same before the court, as they have done by filing recourse No. 79/

1. I shall deal first with the question whether the applicants have given proper notice of the terms of the order to the persons charged with contempt in this case and whether the procedure contemplated for attachment for contempt has been followed. In order to hold that a person has committed contempt, certain prerequisites have to be satisfied first It must be established that the terms of the order or judgment are clear and unambiguous and that the respondents have had proper notice of such terms. As it was held in Husson v. Husson [1962] 3 All E.R. 1056- "A person cannot be held guilty of contempt in infringing an order of the court of which he knows nothing." Rule 18 of the Supreme Constitutional Court Rules 1962, provides as follows: "The Civil Procedure Rules in force in the Republic on the date of the issue of these Rules shall apply mutatis mutandis to all proceedings before the Court, so far as circumstances permit unless other provision is made by these Rules or unless the Court or any Judge otherwise directs." The effect of such rule is that the Civil Procedure Rules are deemed to apply mutatis mutandis to proceedings in the Supreme Court in its revisional jurisdiction. The relevant order of the Civil Procedure Rules dealing with this matter is Order 42A which, inter alia, provides: "
2. Where any order is issued by any Court directing any act to be done or prohibiting the doing of any act there shall be endorsed by the Registrar on the copy of it, to be served on the person required to obey it, a memorandum in the words or to the effect following: 'If you, the within-named A.B. neglect to obey this order, by the time therein limited, you will be liable to be arrested and to have your property sequestered.'
3. An office copy of the order shall be served on the person to whom the order is directed. The service shall, unless otherwise directed by the Court or a Judge, be personal." In the marginal note to such order reference is made to the corresponding old English Rules, Order 41, rule .5, which, to the extent relevant to the present case, reads as follows (Annual Practice, 1960, p. 954): "Every judgment or order made in any cause or matter requiring any person to do an act thereby ordered shall state the time, or the time after service of the judgment, or order, within which the act is to be done, and upon the copy of the judgment or order which shall be served upon the person required to obey the same there shall be indorsed a memorandum in the words or to the effect following, viz.:- 'If you the within-named A.B., neglect to obey this judgment (or order) by the time therein limited, you will be liable to process of execution for the purpose of compelling you to obey the same judgment (or order).' " As one may notice from the wording both of Order 42A of our Civil Procedure Rules and Order 41, rule 5 of the English Rules, especially the expressions "there shall be indorsed." "shall be served," "shall state the time," compliance with the provisions of such order is mandatory. In the notes to the English Order 41, rule 5, we read the following: (see, Annual Practice, 1960, at p. 956): "An attachment of a person for disobedience to an order requiring him to do a given act within a given time will not be directed unless a copy of the order, with a proper indorsement has been personally served upon him in due time, or unless he has had notice of the order and is evading service thereof." It is an undisputed fact in the present case that what was served on the respondents, and after the filing of the present application, was a copy of this application to which copy of the judgment of the court was attached and at no time, prior to the institution of these proceedings, any order of the court indorsed by the Registrar in the terms provided under Order 42A, rule 1, has been served upon the respondents, disobedience to which would have rendered them liable for attachment for disobeying such order. Failure to comply with the provisions of order 42A renders any proceedings for attachment nugatory. Therefore, on this ground alone, the present proceedings have to be dismissed. Notwithstanding my above conclusion which disposes of the present application, I shall proceed and consider whether contempt proceedings lie in respect of non-compliance with annulling declaratory judgments delivered by this Court in

Article 146of the Constitution.

Both in our Constitution and in various other enactments provision exists, giving the courts jurisdiction to punish for contempt. Under Articles 150 and 162 of the Constitution, provision is made that the Supreme Constitutional Court and the Supreme Court respectively, have jurisdiction to punish for contempt of themselves. Also, under section 42 of the Courts of Justice Law, 1960, provision is made as follows: "Subject to any rules of Court, every Court shall have power to enforce obedience to any order issued by it, directing any act to be done or prohibiting the doing of any act, by fine or imprisonment or sequestration of goods. And the Court may in addition adjudge to the person in whose favour the order was made such amount by way of compensation as the Court may deem fit." Also section 44 as amended by Law 50/62, provides tor contempt of court and makes offences in the instances enumerated therein, punishable with imprisonment of six months or to a fine not exceeding £100 or to both such imprisonment and fine. Useful assistance as to whether proceedings for attachment for contempt of court in revisional jurisdiction judgments lie, may be derived from the judgment of A. Loizou, J. in Case No. 198/78, Kyriacou and others v. The Minister of Interior, delivered on the 21st February, 1986, in which an order of the Court was prayed ordering the imprisonment of the Chief of Police for contempt of Court, in that he failed to comply with an annulling judgment of the Court. I find it necessary to refer to the following extract from the judgment in the said case (pp. 310-313 and 318-320):- "Compliance is also required in respect of judgments given in relation to recourses under Article 146 of the Constitution, paragraphs 4 and 5 of which provide as follows: '4. Upon such a recourse the Court may, by its decision- (

1. a)confirm, either in whole or in part, such decision; or (
2. b)declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever; or (
3. c)declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed. 5. Any decision given under paragraph 4 of this Article shall be binding on all courts and; all organs or authorities in the Republic and shall be given effect to arid acted upon by the organ or authority or person concerned.' The remedies which are available under such Article are as can be seen, exhaustively set put in paragraph 4 thereof. Paragraph 5 on the other hand, provides that such declaratory judgments are to be binding and must therefore be given effect to, but the provisions of such paragraph do not grant an extra remedy to an applicant over and above those available under paragraph 4, nor do they on their own empower him to enforce such judgment or to proceed for contempt against the non-complying respondent. Such jurisdiction to entertain contempt proceedings in a proper case of course is given to the Court by Article 150 of the Constitution on the motion of any person interested in the judgment. Relevant is also what was stated by the Full Bench in the case of The Republic of Cyprus'y. Ivi Nrssiotou (1985V3 C.L.R. 1335 at p. 1350: 'In our opinion only paragraph 4 of Article 146 of the Constitution provides about the remedies to be granted in a recourse under such Article; arid' paragraph 5 of Article 146 does not provide for a separate or additional remedy, but can only be invoked and applied in relation to an application for punishment for contempt of Court under Article 150 of the Constitution.' And also at p. 1351:- 'Under Article 150 of the Constitution the Supreme Constitutional Court has jurisdiction to punish for contempt of itself; and, of course, one form of contempt is non-compliance with its judgments.' The requirement of compliance by the administration with the decisions of the Courts and in: particular the Revisional Courts exists also in Greece where compliance is required by the administration with the decisions of the Greek Council of State. The matter there is regulated by law where in accordance with section 50