(1984)1984 July 30 [L L o i z o u , HADJIANAMASSIOU A M I M A I A C H I O V JJ ] CREON CONSTANTiNOU. Appellant-Defendant I PAVLOS l»AN\YH>LS. Rispotuhnl-Phunlifl (Ct.il Appeal No 5240) shand anil wije—-tinHe'mint of wtji Ctm\e oj tution oj entutment —Recognised by the tonmwn law- And π theiejorepart of oat law by virtue oj section 29(l)(<) oj tin Couits of Justue Law, I960 (Law 14/60)eventhoughitha\b.in abolish dbystatute in England nmnon Law—Section 29(l)(() of tin Couits of Justice Law, I960 (Law 14/60)—Intoiporatis the tommon lah as applicable tn England at any one time and not as modtjictl bv statitu— Entut ment pait of our law betausi it MIS rctogmsed by the tommon law, even though it has hetn abolished b\ statute 5 The sole issue in this appeal was whether the cause of action of enticement was part ol our law it was submitted thatentice ment ceased to be part of our law because it has been abolished by statute in England, and that it is not expressly included in the Civil Wrongs Law, Cap 148 10 Held, that section 29<l)(c) of the Courts of Justice Law, I960 I 5 (Law 14/60) makes the common law applicable in Cyprus; that what is applicable in Cyprus is the commonlaw, not thecommon law as it came to be modified by statute in England, that the said section 29
(1)(c) incorporates the common law not English Law as applicable in Englaiid at any one time, that since 20 enticement was a cause of action recognised by thecommon law, in fact it is a cause that was recognised as actionable many centuries ago, it is part of our law and as such applicable in Cyprus Appeal dimussed. 'er curiam: That one can argue that the action of enticement is in 466 25 1 C.L.R. Conslantfnou v. Panayides some respects outdated but it hasnot ceased to be pan of our law. Cases referred to: Place v. Scale [1932] All E.R. (Rep.) 84 at p. 85. 5 Appeal. Appeal by defendant against the judgment of the District Court of Limassol (Loris, P.D.C. and Hadjitsangaris, S.D.J.) dated the 26th September, 1973 (Action No. 3781/71) whereby he was ordered to pay to plaintiff the sum of £300.- for enticing 10 away plaintiff's wife. L. N. Clerides, for the appellant. B. Vassiliades, for the respondent. Cur. adv. vulf. L. Loizou J.: The judgment of the Court will be delivered 15 by Mr. Justice Hadjianastassiou. HADJIANASTASSIOU J.: This is an appeal by the defendani against thejudgment of the District Court of Limassol in Action No. 3781/71 whereby he was ordered to pay to the plaintiff the sum of£300.-damages for enticing away the plaintiff's wife. He 20 was also ordered to pay the costs of the action. It was the allegation of the plaintiff before the trial Courl that the defendant for a long time prior to the 29th August. 1971, had been trying to and on that day did manage to wrong-' fully entice and procure the wife of the plaintiff, namely Niki 25 Panayidou, unlawfully and against his will to depart and remain absent from the house and society of her husband. It was also the allegation of the plaintiff that the defendant wrongfully and against the will of the plaintiff received and has ever since harboured and detained the said Niki Panayidou and refused to 30 deliver her to the plaintiff although requested by the plaintifl to do so. The defendant in his defence denied both enticing away and harbouiing plaintiff's wife. The marriage of the plaintiff with his wife was celebrated in 1954 according to the rites of tht 35 Greek Orthodox Church and has never been dissolved nor were divorce proceedings instituted by either spouse till the presero day despite the fact that ever since the 29th August, 1971, thej 467 Hadjianastassiou, J. Constantino*] v. Panayides
(1984)have been living apart. From their marriage the couple had only ont child, a son born in
- Hisnameis Andrikkos and he was born deaf and dumb. The couple were much worried over this condition of their son and they took him to several doctors in Cyprus as well as abroad but unfortunately it was in 5 vain. The last doctor they took him to, a German doctor in Tel Aviv advised them that it was useless taking him anywhere else as ii was a hopeless case and they would only be spending their money. Naturally the couple were in despair. It was at that timethatthecouplecametobeintroduced throughacertain 10 \ngelos Chryssakis to the defendant a spiritualist who was jting as a medium in spiritual seances held at the time in the >use of a certain Costakis K. Lanitis of Limassol. The first spiritual seance attended by the couple in the house 'thesaid Costakis Lanitis,which was atthesametimethefirst 15 :tting together of the couple and of the defendant, was thus ascribed bytheplaintiff inhissworn testimonybefore the Court. The plaintiff said that he had gone there with his wife and hild. During the seance the defendant, who was acting as a 'tedium, told them that the spirit of Professor John Davidson 20 •as incarnated in him and he would see the child; in fact he isited the child who was lyingin a bed in an adjacent roomin le house of Mr. Lanitis, and he examined the child medically. v fter he had finished his examination,he told themthat he was ι a position to make the child well,to make him hear and talk 25 ke any other normal child. Even high-qualified persons were resent he said, but hedid notwant to mentiontheir namesand <pose them. When the seance was over it was about 2.30 or .00 a.m. and as they had difficulty infinding a taxi to gohome ley set off on foot. As they approached their house they 30 Oticed again some sort of lights and a smell of incense. His ife said something and they both believed, and they went to eep happy and full of hope that their child would get well. ideed, this first seance attended by thecouple was followed by lnumberable others which were being convened in thehouse of 35 le couple. Finally, the plaintiff said that his wife had blind uth inthedefendant and alleged that defendant did overpower is wife's personality. On the contrary, the defendant alleged hat when he was visiting the house of theplaintiff, the plaintiff vasalwayspresent. Itis also commonground thatduiing these 40 468 1 C.L.R. Constantinou v. Panayides Hadjianastassiou J. seances the defendant was acting as a medium and was saying that different spirits would get incarnated in him, and among these spiiits were those of Professor John Davidson, Father Andronikos, mother Eleni and others 5 The plaintiff and witness Artoulla (P.W. 3) and Neoclis (P.W. 6) alleged that during some of these seances, "Professor John Davidson" incarnated in the defendant, was performing "operations"; but the defendant vehemently denied that he performed any operation during those seances. 10 The year 1971 was full of events, decisive events for both litigants. At the beginning of 1971, the wife of the defendant died; the defendant continued visitingthe house of the plaintiff occasionaIy as late as the beginning of August,
- 15 During summer 1971 the plaintiff had gone to Platres in order to run a hotel there; his wife did not follow him and pieferred to stay in their house in Limassol. Round about the 10th August, 1971, according to plaintiff's version, the plaintiff returned to Limassol and having forgotten the key of his house, 20 he rang the bell; his wife opened the door for him and went straight to her room, saying that she was not feeling well. The nextday she refused to havesexual intercourse with her husband, she looked at him in a strange way and when her husband asked, "what is wrong with you, you have no regard for me, do you 25 want a divorce?", she simply nodded. The next day the plaintiff went to the defendant's shop and accused him of being the cause of whatever was happening at home with hiswife, and asked him not to go to hishouse for the sake of the plaintiff's wife who wanted a divorce. Then the 30 defendant replied that hecould not closethe door to anyone, the plaintiff got angry and said to the defendant "You are a rotten. perverted and wretched man; what would you say if I interfered in your home in the same way." In addition, the plaintiff's wife in giving evidence had alleged 35 that she herself decided to leave the conjugal home and maintained that the main reason for leaving her husband wasthe fad that for the last two years prior to August, 1971, he became sexually impotent and he was making her suffer. She furthei 469 idjianusta\siou .). Constantinou \. Panayides
(1984)Ided that she made her intentionto leave known to the plaintiff rlicr. Plaintiffs wife left the conjugal home on 29.8.71 and is still vay from same. On leaving she went and stayed alone in a >use at Ayios NicotaosQuarter in Limassol; she stayed there 5 •r a short timeand thenshe travelled toAthens in order to find job, as she alleged. On her return from Athens, about 8 days ter, she went to the same house again where she stayed for tother 3 days and then for certain reasons she gave, which >pear on record and we do not intend to repeat it, she moved 10 »the house of Andreas Zissimos (D.W. 2),the son-in-law of the Pendant where she is still residing. In the aforesaid house the iid Zissimos is residing with his family; the house in question in the same building site where the house of the defendant is tuated. The two houses are separated by a wire fence. It is 15 le allegation of plaintiff's wife that she herself pays to Andreas issimos £25 per month, £10 being rent, as she explained andthe ilance for her meals. Plaintiff's wife admitted that her son did not stay in the afoielid house with her and stated that ever since November 1972 ι has been attending a special school in Athens. 20 Andreas Zissimos,(D.W. 2)testified totheeffect that plaintiff's ife is staying in his house and she is paying £25 for food and >dging. The trial Couit in dealing with the evidence had this to say t pp. 87, 88:- 25 "The plaintiff's evidence impressed us favourably and we accept it in toto. We are also satisfied that the witnesses called by the plaintiff spoke the Uuth. In connection with the so called 'operations*performed by the defendant when 30 'Professor John Davidson' was incarnated in him, we are satisfied that the defendant was pretending to peiform Operations' which were affording to him the oppoitunity to get into closer contact with individuals isolated foi the purposes of 'operations' -- the plaintiff's wife oi plaintiff's 35 sister-in-law for instance, for whom he had a patticular interest--,andthushecould say or dothingswhichalthough supposed to be part of the seancecould notbe said and done in the presence of other persons and in particular in the 470 1 C.L.R. 5 10 15 Constantioou v. Panayides Hadjianastassiou presence of the plaintiff or his brother. Needless to say tin 'opeiations' in the ordinary sense of the word were ne\ carried out,although it seems that at least Neoclis Agatha gelou (P.W. 6) as well as his wife (P.W. 3) believed in t genuineness of these operations; this, their belief, indica the influence exerted by the defendant on these simi minded persons through spiritualism. We reject absolutely the evidence of the defendant hi self; he attempted to deny almost everything uttered a done during the seances by alleging (
- a)that whilst in trance he did not know what he was talking about, andι that he could do nothing which entailed disjoining of t hands between those taking part in a seance as such d joining would wake him up. He attempted unsuccessfi to exonerate himself absolutely explaining hypocritici> that he had been always acting towards the plaintiff and : lattcr's wife out of brotherly love." Then the Court went on to add: 20 25 "The evidence of plaintiff's wife impressed us very ι favourably and wc cannot accept it. She was quite ι convincing when trying to explain the inexplicable and particular when putting forward the allegation that ; deserted the conjugal home after 17 years of married because, as she alleged, for the last 2 years her husband Υ become impotent. From the evidence as we have accepted it, we shall η proceed to consider, (
- a)whether plaintiff's wife was entit away by the defendant and (
- b)whether she was later h boured and maintained by the defendant." 30 35 Then the Court in dealing with the enticement had this to at pp. 88 - 89:"Plaintiff's wife left the conjugal home on 29.8.71. determining the question of whether there was enticemi by thedefendant we cannotshut oui eyesto what took pk before that date. We are perfectly entitled to look upon ι demeanour of the defendant and plaintiff's wife through) the years that preceded the desertion and give the t· construction upon the facts which resulted in the incidt : that began on or about the 10th August, 1971, of ul: ch 471 Hadjianastassiou J. OiW:mtnvnj \. P.muyidcs f19S4> climax was the desertion of the wife from the conjugal home on the 29.8.71 It is clear to us that through these seances the intinv.xy of thedefendant and plaintiff's wife was becoming more and more close, and the influence of the former over the latter was increasing in parallel. 5 We need not repeat here thedefendant's visitstothe house of theplaintiff when the latter was absent, northestay of the defendant at some time in the house of the plaintifl" accord ing to the directions of 'Father Andronikos' when the de- 10 fendant quarrelled with his own wife over the holding of the seances. Suffice it to say that the evidence as we have accepted it leads to the safe conclusion that the defendant wrongfully interfered with plaintiff's consortium and in duced plaintiff's wife to desert her husband. 15 Therefore, we find that plaiiuiffb wife left the conjugal home and consortium of the plaintiff on the 29th August. 1971 as a result οΓnor being enticed away by the defendant. In connection with the harbouring and maintaining by the defendant of plaintiff's wife, apart from the evidence ad- 20 duced by the plaintiff, there is no other evidence tending to establish that plaintiff's wife is being harboured and main tained by thedefendant. Proof by the plaintiff that his wife was seen on two occasions, over the period of almost one and a half years in the house of the defendant, certainly 25 cannot amount to harbouring. There is no evidence whatsoever on behalf of the plaintiff that the defendant was maintaining plaintiff's wife during this time. On the contrary, apart from the evidence of plaintiff's wife, there is the evidence of Andreas Zissimos 30 (D.W. 2) which although suspicious, stands uncontradicted to the effect that the wife of the plaintiff was paying to Zissimos £25 per month for food and lodging. In the result the second leg of this action, namely harbouring, fails." 35 Turning now to the enticement in Clerk & Lindscll on Torts, 13th Ed. para. 842, undei the heading "Husband's Action for Enticing or Harbouring Wife", we re:-.d inter alia the following:"If a wife is „__ enticedor persuaded to leave her husband, 472 1 C.L.R. 5 Constanliitou ι. Panayides Hadjianastassiou J. or, if, after having left, she is knowingly harboured and maintained, a Common Law action will lie. That will amount to procuring, enticing or persuading is a question of degree. It is not necessary for a husband to show that thewife's will has been overborne by the stronger will of the defendant. Mere advice is not sufficient, but it is enough if a wife of equal will with that of thedefendant, is persuaded to depart from the consortium of the husband __". In Place v. Searle [I932J All E.R. Rep, 84. at p. 85, Scrutton, 10 L.J. stated the law on enticement as follows: 15 20 25 "It seems to mc clear, at the present day, that a husband has a right to the consortium of his wife, and the wife to the consortium of her husband, and that either has a cause of action against a third party who without justification destroys that consortium. The old law has been alteied to this extent, that the means of enforcing the ιight to con sortium have been materialy weakened. In the old cases there are dicta to the effect that the husband has the do minion and property over the wife; but since the decision in R. v. Jackson [1891] 1 Q.B. 671, whatever lights the husband has he cannot enforce them by physical confine ment; he cannot seize his wife when she attempts to leave the consortium and lock her up. But there still remain means of enforcing the right of the husband and the right of the wife. The Court used to make orders for restitution of conjugal rights— _ ". The power to enforce by order money payments, and the fact that it is a matrimonial offence to desert, howevei that term may be defined, rest upon existing rights of consortium both in the 30 husband and in the wife. There being such a right, it follows, and it has been so decided in numerous cases, that any person who, withoutjustification interferes with that right, is liable to an action in tort. Counsel for the defendant agrees that the state ment in Lush's Husband & Wife (3rd Edition at p. 3) is correct, 35 namely, that it "is the duty of the wife to reside and consort with her husband. This is a duty which she owes to him and a person who tempts or entices her to violate this duty, commits a wrong towards the husband for which he is entitled to recover damages; unless the person who harboured her acted from 40 'principles of humanity' to protect her from her husband's ill 473 Hadjianastassiou J. Constantinou v. Pnnajides
(1984)treatment in which case, no action can be maintained, even though it should turn out that the wife's allegation was undounded". Only one real issue poses for determination in this appeal. It is this. Whether the cause of action of enticement is part of 5 our law. The submission is that because enticement has been abolished by statute in England it ceased to be part of out law. Also it has been submitted that it is not pait of oui law because it is not expressly included in the Civil Wrongs Law, Cap. 148. We are of the view that both submissions are ill-founded. 10 Section 29(l)(
- c)of the Courts of Justice Law defining the law applicable in this country makes common law applicable. The common law was fashioned over the centuries by the customs of the Agglosaxon as they came to be recognised and applied by judicial decisions. The common law was not moulded by 15 statute but by the customs of the people and judicial precedence. See "The Application of the Common Law and Doctrines of Equity in Cyprus" by G. M. Pikis- 1981,a publication in Greek. What isapplicable in Cyprus isthe common law, not the common law as it came to be modified by statute in England. 20 Section 29(l)(
- c)incorporates the common law (see Law 14/60), not English Law as applicable in England at any onetime. The enticement was a cause of action recognised by the common law, in fact it is a cause that was recognised as actionable many centuries ago. 25 As the Full Court of Limassol acknowledged in its judgment theaction of enticement ispart of our law and as such applicable in Cyprus. One can argue that the action is in some tespect outdated but it has not ceased to be part of our law. Peihaps the low award of damages granted by the trial Court, namely 30 £300.-, is in part explained by the fact that the cause of action is in many respects outdated. For all the above reasons we sustain thejudgment of the trial Court and the appeal is dismissed with costs. Appeal dismissed with costs. 474 -,