clr/1987/1987_1_541.pdf

(1)— Contempt of Court — Ruling finding appellantsguilty ofcontempt—No appealliesbefore passing ofsentence. 5 Appellant 1isthe Acting Director of LandsandSurveysand appellant 2 an officialof thedepartment. 10 Upon application by the plaintiffs(respondents), theappellants were found by the Full Distnct Court of Nicosia guilty of contempt of Court for havi' j refusedtoeffecttransfer ofpropertyin accordance with an order of theCo jr* in another action into the name of the plaintiffs. The full District Court thi adjourned passing sentence to another date,evidently in order to afford thi. parties in the meantime the opportunity to comply with the order for Vie transfer of theproperty. 15 20 The question thatarose fordeterminationiswhether anappeal liesfromthe ruling finding the appellant guilty of contempt Counsel for the respondents submittedthat no appeal lies before the passing of sentence. Held dismissing the appeal. The findings of the tnal Court under appeal before this Court can only be described as an incomplete judicial determinationand,assuch, itisadecisionofaCourt againstwhichno appeal lies In ourview thedecision oftheNicosiaFullCourt isnotone against which an appeal lies mthesense ofsection25

(1)oftheCourtsofJusticeLaw, 14/60. It isonly when thejudicial process comes to an end,that isby the imposition ofsentence on theappellants, thatthey will have every right to appeal to this Court forthereview ofevery factualandlegalpointthat intheircase called fordecision. 25 Appeal dismissed with costs 541 Koteonl· ν , Elcourghta Lythrodonta

(1987)Casesreferredto· Jelson(Estates)Ltd ν Harveyfl984] 1AI1ΕR 12. HadjiCosta ν Anastasiades

(1982)1 C L R 296, AftomataEleourgiaLythrodontaLtd ν HolyMonasteryol'Machera

(1986)1 C L R 524, 5 In reΕ S (aninfant)

(1986)1C LR 119 Preliminary question. Counselfortheappellantsraised,asapreliminaryquestion,the issue whether the decision under consideration is an appealable decision. L. Loucaides,DeputyAttorney-GeneraloftheRepublic, forthe appellants. Chr.Kitromehdes, for therespondents. Cur.adv. vult. A. LOIZOU,J.:Thejudgment of theCourtwillbe delivered by 15 HisHonourMr. JusticeDemetriades. DEMETRIADES,J.: On the27th November, 1986, the Acting Director of Lands and Surveys Mr. Andreas Kotsonis and an official of thatdepartment,Mr.MichaelTsangarides, were found guilty of contempt of Court for failing to obey an order of the 20 DistrictCourtofNicosia. The facts that lead to the proceedings for contemptof Court against thetwo officers of theLandsandSurveysDepartmentare the following: Onthe29th May, 1984, Boyadjis, the Presidentof theDistrict 25 CourtofNicosia,withtheconsentofcounselwhorepresentedthe parties in Action No. 3511/84, ordered that the field under Registration No.31328, plot927 of Sheet PlanXXXIX/36 of an extent of one donum, two evleks and 2800 sq feet (the whole) situated at locality «Avladjin» of Lythrodontas village, be 30 transferred and registered in the name of the plaintiffs in that Action. The owners of the property atthe material timewere theIera MoniMachera,thedefendants intheAction.Theplaintiffs, who, 542 10 1 C.L.H. KotoonU v.Deourghia Lythrodonta D«metrladc· J. as it appears from the record of the proceedings, had agreed to purchase thesaid 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 5 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. 10 On the 13thJanuary, 1986,counsel for theplaintiffs addressed a letter tothe Director askinghim to comply with the order of the DistrictCourtofNicosiabuttheDirector,byhisletterdatedthe23rd January, 1986, which was signed on his behalf by Mr. Michael Tsangarides, refused to comply again, putting forward as ground 15 for his refusal to do so that the consent of the Holy Synode was necessary.Asaresult,onthe24thFebruary, 1986,theplaintiffs in theActionfiled anapplication withtheDistrictCourtofNicosia,by which they prayed for the punishment of Mr. Kotsonis and Mr. Tsangarides forcontempt and, also,fordamages.The application 20 came fortrialbefore theFullDistrictCourt of Nicosia which, after hearing arguments by counsel representing the applicantsplaintiffs in the Action and the two officers of the Lands ar J Surveys Department, ruled that the two officers were guilty o ( contempt. It then adjourned passing sentence to another date 25 evidently in order to afford the parties in the meantime f^e opportunity to comply with the order for the transfer of tns property. Before thedatefixedbytheCourtforimposingsentence onthe two officers, they unsuccessfully applied for a stay of execution. 30 Theirapplication wasbased ontheground thattheyhad appealed against the finding of the Full Court that they were guilty of contempt of Court. Having failed intheir application before the DistrictCourtfor a stay,theappellantsfiled an application before theSupreme Court 35 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 oftheirappealagainstthefindingofthatCourt that they were guilty of contempt of Court.That application was also dismissed. 543 Dcmetriadea J. Koteonis v. Eleourghta Lythrodonta

(1987)Inthe meantime, the two officials, who inallproceedings were and are represented by counsel from the Attorney-General's Office, filed, asweare informed, certiorariproceedingsand,also, an appeal against the finding of the FullCourt that they are guilty of contempt. Atthe beginning of the hearing of thisappeal, the preliminary issue was raised that no appeal could lie at this stage as no sentence had been imposed on the two officials and thusthe trial Court did not pronounce its final decision. Therefore, it was sumbitted the finding of the trial Court is not a decision against 10 whichanappeal liesunderOrder35oftheCivilProcedure Rules. Inanswertotheabove,theDeputyAttorney-General submitted that the decision ofthe trialCourt, bywhich thetwo officials were found guiltyof contempt, wasofafinal natureand had immediate consequences inthat itcanaffect theirstatus.Counsel argued that 15 as contempt proceedings are dealt with by Courts in exercise of their civiljurisdiction, an appeal lieson the basisofthe 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 acourt 20 exercising civil jurisdiction shall be subject to appeal to the High Court.» He further argued that since sub-section

(1)ofsection 25 gives right of appeal in civil proceedings against «every decision» and sub-section

(2)ofthesamesectiondistinguishestherightofappeal 25 in criminal proceedings between decisions which amount to conviction and decisions bywhich sentence isimposed, a rightof appeal liesin the present case. Finally, the Deputy Attorney-General insisted that the decision of the trial Coiirt wasa final one and thus subject toappeal. 30 Counsel for the applicants argued that there is not a final decision upon which an appeal liesand relied on 0.35, r.2,of the CivilProcedure Ruleswhich fixthetimewithinwhichalitigantcan appeal. He gave emphasis onthewords«becomesbinding on the intending appellant» and submitted that the right of appeal 35 emerged at the time the decision of the trial Court or its order becomes binding. 544 1 C.L.R. 5 Kotsonis v.Eleourghla Lythrodonta Dcmetriades J. Inthe present case,he contended thatthe Court, byfinding the appellant guilty of contempt, it really meant nothing because no sentence waspassed, nofinewasdecided upon tobepaid.Thus, theprocedurewasincomplete andtherighttofileanappeal could only arise after sentence and not before sentence. Counsel further argued that the principles applicable in civil contemptsarethoseofthecriminalprocedureratherthanthoseof civilprocedure and thissubmission hebased onthecase oiJelson (Estates)Ltd. v. Harvey, [1984] 1 All E.R. 12, in which it was 10 accepted that the principle of autrefois acquit applied in civil contempts. InHadjiCostav.Anastassiades,

(1982)1C.L.R. 296,PikisJ.,in delivering the judgment of the Court in that case, said this (at p. 298):15 20 «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 thejudgment that isdefinitive of therightsofthe parties,can be made the subject of appeal as opposed to the remaining part of thejudgment, explanatory ofthedecision.Thisismadeclearbytheprovisionsofs.25

(1)of the Courts of Justice Law 14/60, laying down that only a decision can be made the subject of appeal». 25 A. Loizou J., in delivering the judgment of the majority of the appeal Courtinthe application ofthe appellants inthisappeal 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 30 C.L.R. 524 said: •It should be stressed that it(s.47)empowers the Court to direct 'thatexecutionofsuchjudgmentbesuspendedforsuch time and subject to such termsor otherwise as to such Court may seem just'. 35 The question as regulated also by Order 35, rule 18, was considered inPhotiou andanother v.PetrolinaLtd.,

(1984)1 C.L.R. 708,where itwasheld that same confers no power to stay further proceedings in the action pending the determination ofan appeal. 545 Dcmetriades J. Kotsonle v.Beourghia Lythrodonta

(1987)On the totality of the circumstances before me and the meaning and effect of section 47 and rule 18of Order 35 as interpreted in the Photiou case (supra), Ihave 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.» 5 PikisJ., aswell,inaseparate judgment thathedelivered inthat Application, came tothesameconclusion,stating,interalia,inhis judgment the following: «There is no enforceable order of the Court. Averdict of guiltyisnot of itself enforceable». 10 Light on the question of whether an appeal lies against a decision of aCourt isthrown, also,bywhatwassaid inthecaseof InreE.S. (aninfant),

(1986)1C.L.R. 119. Thefinding ofthetrialCourtunderappealbefore uscanonlybe described asan incompletejudicialdetermination and assuch itis 15 a decision ofa Courtagainst which no appeal lies.Inourview 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. Itisonly when thejudicial process comes toan end, that isby the imposition of sentence on the appellants, that they 20 willhave every righttoappeal tothisCourt forthereviewofevery factual and legal point thatintheir case called for decision. In the result, this appeal isdismissed with costs and the case is remitted to the Full Court of Nicosia for passing sentence on the two appellants. Appeal dismissed withcosts. 546 25