clr/1961/1961_1_95.pdf

(2)Theappeal willbedismissed butnocosts will beallowed to the successful respondent in view of his attitude and conduct throughout these proceedings. He has delayed and obstructed asfar ashe could thelandlord (appellant-plaintiff) from recovering possession of the property to which hewas entitled. Appeal dismissed without costs toeither party. Directions to Judges: In future, the judges ofthe District Courts should indicate the grounds onwhich they refuse orallow thecosts. 95 1961 April 27, 28 CHARIS E. GEORGHALLIDES v. ANDREAS CONSTANTINIDES 1961 April 27, 28 Interlocutory Appeal CHARIS E. Interlocutory appeal by the plaintiff (appellant) against order of the District Court of Nicosia (Pierides, D.J.) dated the 18.3.61 (Action No.3426/59) granting stay of execution of a writ of possession until 18.4.61, in an action for an order of ejectment and/or recovery of possession of a shop belonging to plaintiff and situated at Ledra Street No. 210, Nicosia and payment by defendant to plaintiff of the sum of £80.000 mils per month as mesne profits from 1st September 1959 till the evacuation of the premises. GEORGHALLIDES ANDREAS CONSTANTINIDES t he The appellant in person. S. Devletian for the respondent. The facts sufficiently appear in thejudgment of the Court which was delivered by :— O' BRIAIN, P. : We have considered, to the best of our ability, the very interesting and able arguments that have been addressed to this Court by the advocates engaged in this appeal. The appeal is against the order of a District Court Judge of Nicosia dated 18th March, 1961, and the appeal is against the whole of that order. The grounds of appeal are twofold:

(1)"That the learned Judge of the Court below in making the order for a stay of execution of the writ of possession has wrongly applied Rule 7(b), Order 40 of the Civil Procedure Rules as the facts of the present case and the remedy granted do not come under the provisions of the aforementioned rule". That order for a stay is in the following terms: "This Court Doth Hereby Order that the execution of the writ of possession in this action be stayed until the 18th April, 1961, on condition that applicant will deposit with the Court all money due by him to the respondent as from the 1.11.1960 until the 31.3.1961, not later than the 27.3.

1. In case he fails to do so by the 27.3.1961 then execution to proceed on the 28.3.1961". And the other part of the order, is the second ground of appeal, which is "no order as to costs". In fact the applicant/defendant did fail to make the lodgment in Court on or before the date mentioned in the order. As from the 28th March, 1961, the stay became inoperative because, by the express terms of the order, the plaintiff was 96 entitled to proceed to execute as from the 28th March,
2. That was the position from the 28th March, 1961, onwards. On the 31st March, three days later, the present appeal was started by a notice of appeal. It is the view of this Court that, on the date the appeal was commenced, the first ground of appeal was purely an academic one not directly affecting or capable of affecting the rights either of the plaintiff or defendant. It is not the practice of the Courts to decide academic questions or make declaratory orders unless they relate to rights of one or more parties. Accordingly, this Court is not, at this stage, prepared to make any order with regard to the first ground of appeal. The second ground of appeal was that the learned trial judge did not exercise ajudicial discretion in making the order in the terms "no order as to costs". This in effect means that the plaintiff, who had come to Court to resist an application by thedefendant for extension of time,wasnot given hiscosts. Mr. Georghallides pointed out that the trial judge does not give any reasons for the order he made as to costs. He is silent on the point. The argument for the appellant is that the trial judge acted improperly or did not exercise judicial discretion in making that order in the circumstances of this case. The argument contra, which was veiy ably put, is that a trial judge when dealing with the question of costs is expressly vested with a judicial discretion by statute and Rules of Court and unless this Court finds that he acted without ^judicial discretion we cannot interfere with the order whatever this Court's own views as to allowing the costs are and irrespective of what thejudges of this Court might have done had they been dealing with costs in the Court below. The statement of law as put forward by the respondent is, in our view, correct. This Court can only interfere with the trialjudge's order on the matter of costs if wehold that he did not exercise a judicial discretion. All four members of this Court would probably have allowed the plaintiff hiscosts, or some of them, in this matter if weourselves had been dealingwiththecasebut wemust haveregard tothefact that different people may take different views of the same case. The Court is unanimously of the opinion that it would have assisted the parties and this Court if the learned judge had given some indication in hisjudgment as to what were the 97 1961 April 27, 28 CHARIS E. GEORGHALLIDES V. ANDREAS CONSTANTINIDES 1961 April 27, 28 CHARIS Ε. GEORGHALLIDES V. ANDREAS CONSTANTINIDES considerations that moved him to withhold the costs from both parties. In future, the judges of the District Courts might bear that in mind, and they should indicate the ground on which they refuse or allow the costs. Having considered the matter fully and taken into account that the trial judge did not give any reasons for his order we have come to the conclusion, not without some hesitation, that we cannot say in this case that he acted in such a way as to entitle us to say that he did not exercise his discretion in a judicial manner. In the circumstances we are not at liberty to intefere with the learned trialjudge's order as to costs and consequently the second ground of appeal, also fails. The appeal is dismissed. The only matter that remains is the.question of costs of this appeal. We have no difficultty about this point. We have not been impressed with the attitude and conduct of the defendant throughout these proceeedings. He has delayed and obstructed as far as he could the landlord from recover­ ing possession of the property to which the Court has already declared that he is entitled. We shall not allow any costs. Appealdismissedwithoutcoststo eitherparty. 98