clr/1980/1980_1_425.pdf

(1)(on the applicationfor stay of execution) that there does not arise any question of granting a stay of execution of the judgment by means of which the action was dismissed, 425 Ioannou v.Demetriou andOthers

(1980)especially since in dismissing it no order as regards its costs was made against any party thereto.

(2){withregardtotheotherreliefs)that thetrial Court possesses jurisdiction to grant the reliefs sought bythe applicant bymeans of her present application; that she ought to have applied for 5 them, in the first instance, to the trial Court, before applying to the Supreme Court; that, consequently, though this Court possesses jurisdiction to make the orders applied for by the applicant itshouldnot, intheexerciseofitsrelevant discretionary powers, proceed to make any such order until an application 10 in this connection has been made to the trial Court; and that, accordingly, the application must be dismissed. Application dismissed. Cases referred to: Otto v. Lindford [1881] 18 Ch. D. 394; 15 Wilson v. Church (No. 1) [1879] 11 Ch. D. 576; Orion PropertyTrustLtd.. v. Du CaneCourt,Ltd., [1962] 3All E.R. 466; Erinford Properties Ltd., v. Cheshire County Council [1974] 2 All E.R. 448; 20 Polini v. Gray [1879] 12 Ch. D. 438; Wilson v. Church (No. 2) [1879] 12Ch. D. 454 at p.

1. Application. Application for, inter alia,a stay of execution of the judgment, by means of which applicant's action No. 5141/77 of theDistrict 25 Court of Nicosia was dismissed, pending the determination of Civil Appeal No. 6057 against such judgment. C. HadjiNicofaou, for the appellant. E. Vrahimi (Mrs.) with Chr.Christophides, for respondents 1 and
2. A. Magos, for respondents 3 and
3. Cur. adv. vult. TRIANTAFYLLIDES P. read the following decision. The applicant, who is the appellant in this appeal (Civil Appeal No. 6057), was the plaintiff in action No. 5141/77, before the District 35 Court of Nicosia, in which the respondents in this case were the defendants. Respondents 1 and 2 are the administrators of the estate of 426 30 1 C.L.R. loannou v. Demetriou and Others Triantafyllides P. the late Solon loannou, of Nicosia, who died intestate, on February 27, 1974,leavingashislawful heirshiswife,whoisthe presentapplicant,twosistersand onebrother,whoisrespondent 2 in these proceedings in hiscapacity as one of the two admini5 strators of the estate of the deceased. The estate of the deceased comprised immovable property, at Strovolos, under registration No. K737 of September 28,
4. In September, 1977, the administrators of the estate of the 10 deceased—respondents 1and 2—sold and transferred the said property to respondents 3 and 4at theagreed priceofC£33,
5. By means of the aforementioned action the applicant sought the setting aside of the sale and transfer of the immovable property in question and, alternatively, damages for an illegal 15 sale, as well as revocation of the letters of administration and other ancillary relief. The action was dismissed on December 19, 1979, and the present appeal (No. 6057) wasfiledon January 28,
6. When theaction wasdismissed there wasnot made any order 20 as regards its costs; and it was directed by the trial Court that the costs of the administrators should be borne by them in person and should not burden the estate of the.deceased. Theadministrators havefiledCivil Appeal No. 6058challengingthefailure ofthetrial Courttoadjudge thecostsoftheaction 25 against the appellant as an unsuccessful plaintiff. On June 19, 1980, the appellant filed the present application seeking, pending the determination of appeal No. 6057, a stay of execution of the judgment by means of which action No. 5141/77 was dismissed, an order restraining all the respondents, 30 and particularly respondents 3and 4, from alienating or otherwise dealing or interfering with the property under registration K737,anorder restrainingrespondents 1 and2from distributing or otherwise alienating the proceeds of the sale of the said property and an order restraining respondents 3 and 4 from 35 evicting the applicant from such property. Counsel for all respondents have opposed the making of all the orders applied for by the applicant. 427 Triantafyllides P. loannou v. Demetriou and Others

(1980)In my view there does not arise any question of granting a stay of execution of the judgment by means of which action No. 5141/77 was dismissed, especially since in dismissing it no order as regards its costs was made against any party thereto; and thus, in this respect, the present case differs from Otto v. Lindford, [1881] 18 Ch. D.

1. 5 In deciding whether or not to grant the other reliefs sought by the applicant I have had to examine if it was proper for the applicant to seek such reliefs from this Court without asking, first, the trial Court to make the applied for orders. 10 It is correct that on the strength of Wilsonv. Church(No. 1), [1879] 11 Ch. D. 576, it isstated in the Supreme Court Practice, 1979,vol. 1,para. 59/13/1,p.910,that "wherean action has been dismissed in the Court below, that Court has no jurisdiction, e.g., to restrain a defendant from parting with a trust fund 15 pending an appeal: the application for that injunction must be made to the Court of Appeal", and in Halsbury's Laws of England, 4th ed., vol. 17,para. 454, p. 272, that "if the action has been dismissed the Court of first instance has no jurisdiction to stay execution (except for costs), and the application must be 20 made direct to the Court of Appeal." The above approach has not, however, been adopted in Orion Property Trust Ltd. v. Du Cane Court, Ltd., [1962] 3 All E.R. 466 and Erinford PropertiesLtd. v.Cheshire CountyCouncil, [1974] 2 All E.R. 448: In the Orion case,supra, Pennycuick J., 25 after referring to the Wilsoncase, supra, as well as to the Otto case, supra, and to Poiini v. Gray, [1879] 12 Ch. D. 438 and Wilsonv. Church(No. 2),[1879] 12Ch. D.454,said the following (at p. 471): "I have found considerable difficulty in reconciling entirely 30 what is said in the four cases which I have cited, and it may be that only the Court of Appeal itself can givean authoritative statement as to the principle to be applied in these cases. So far as I am concerned here, I think that it would be right for meto adopt and apply the statement of principle 35 by Cotton, L.J., in Poiini v. Gray." The statement of principle made by Cotton L.J. in the Poiini case, supra (at p. 446), which is referred to in the above-quoted dictum of Pennycuick J., is as follows: 428 1 CX.R. 5 10 15 20 25 loannou v. Demetriou and Others Triantafyllides P. " 'The only question we have to consider is, whether or no the Court has jurisdiction in a proper case to stay all dealings with a fund pending an appeal to the House of LordsalthoughtheCourthasdecidedagainstthetitleofthe plaintiff and dismissed the action. I see no difference in principle between staying the distribution of a fund to whichtheCourthasheldtheplaintiff nottobeentitled,and staying the execution of an order by which the Court has decided that a plaintiff is entitled to a fund. In that case, as in this case,the Court, pending an appeal to the House of Lords, suspends what it has declared to be the right of one of the litigant parties. On what principle does it do so? It does so on this ground, that when there is an appeal about to be prosecuted the litigation is to be consideredasnotatanend,andthatbeingso,ifthereisareasonableground of appeal, and if not making the~order to'stay the execution of the decree or the distribution of the fund would make the appeal nugatory, that is to say, would deprive the appellant, if successful, of the results of the appeal, then it is the duty of the Court to interfere and suspend the right of the party who, so far as the litigation has gone, has established his rights. That applies, in my opinion,just asmuch to thecasewheretheaction hasbeen dismissed, as to the case where a decree has been made establishing the plaintiff's title." In theErinfordcase,supra, the Orion case,supra, was referred to with approval by Megarry J. and was followed. In my view, therefore, the trial Court possesses jurisdiction to grant the reliefs sought by the applicant by means of her 30 present application; and she ought to haveapplied for them, in the first instance, to the trial Court, before applying to the Supreme Court. In this respect useful guidance is to be found, by analogy, in rule 19, of Order 35, of the Civil Procedure Rules, which 35 reads as follows: "
2. Wherever under these rules an appHcation may be made either to the Court below or to the Court of Appeal, or to a Judge of either Court, it shall be made in thefirst instance to the Court or Judge below." 429 Triantafyllides P. loannou τ. Demetrion and Others

(1980)Also, in the Erinford case,supra, Megarry J. said the following (at p. 454): " I accept, of course, that convenience is not everything, but I think that considerable weight should be given to the consideration that any application for a stay of execution 5 must be made initially to the trial Judge. He, of course, knows all about the case and can deal promptly with the application. The Court of Appeal will not be troubled with it unless one of the parties is dissatisfied with the decision of the Judge, in which case the Court of Appeal 10 will at least have whatever assistance is provided by knowing how the Judge dealt with the application. Although the type of injunction that I have granted is not a stay of execution, it achieves for the application or action which fails the same sort of result as a stay of execution achieves 15 for the application or action which succeeds. In each case the successful party is prevented from reaping the fruits of his success until the Court of Appeal has been able to decide the appeal. Except where there is good reason to the contrary (and I see none in this case), I would apply the 20 convenience of the procedure for the one to the other." Consequently, I have reached the conclusion that though I do possess jurisdiction myself to make the orders applied for by the applicant I should not, in the exercise of my relevant discre­ tionary powers, proceed to make any such order until an applica- 25 tion in this connection has been made to the trial Court. As a result this application fails and it is dismissed for the reasons given in this Decision, but, in the light of all relevant considerations, I have decided to make no order as regards its costs. Application dismissed. No order as to costs. 430 30