(1988)1988June 20 (MALACHTOS,STYLIANIDES.PIKISJJ.) KYRIACOS PHOTIOU, Appellant-Plaintiff, v. LAZAROSM. HADJIFORADOS Respondent-Defendant. (CivilAppeal No. 7303), Contempt —Civil contempt—Enforcing obedience to orders of a Court — Prerequisites— The CourtsofJusticeLaw, 14/60, section 42 —Power thereunder exercisable subject to the Rules of Courts — 0.42A, rules1 and 2 of the CivilProcedureRules — Rule 2 clear and unambiguous —// an endorsed copy of the relevant 5 order is not served, the application for punishment for contempt must be dismissed—Endorsed copy of interlocutory injuction issued ex parte served on defendant —Injunction made absolute after some modifications effected by consent —A new order— Therefore,serviceofan endorsed copy thereofwasaprerequisitefor 10 enforcing obedience to itby contempt proceedings. Judgment and Orders— Orders— Obedience to—Importance of. Interlocutory injunctions —Ex parte application for— The' Civil Procedure Law, Cap. 6 section 9—Period for which such an injunction issued exparteremains inforce. 15 Upon exparteapplicationbytheplaintiff (appellant)thetrialCourt issued an interlocutory injunction. Anendorsed copywasserved on the defendant (respondent). On the day when the order was returnable the defendant stated that he would oppose it. The trial Court adjourned, consequently, the application for hearing.On the 2 0 dayofthe hearingtheinterlocutoryinjunction wasmadewithcertain modifications absolute by consent. The defendant failed to obey it, whereupon the plaintiff initiated contempt proceedings. The trial Court dismissed the application ofthe plaintiff on thegroundthatan endorsed copy of the order made as aforesaid by consent had not 2 5 been servedonthedefendant asprovidedbyorder42ARule2ofthe Civil Procedure Rules. 384 1 C.L.R. Photiou v. HadjlForados Hence this appeal. The appellant argued that as the final interlocutory order was the same as that which had been issued ex parte,therewasnoneedtoserveanendorsed copythereof. 5 10 15 20 Held, dismissing the appeal:
(1)The power of the Court in virtue ofsection 42ofLaw 14/60toenforce obedience toanyorder issued byitisexercisedsubject toanyRulesofCourt.TherelevantRulesare 0.42A, Rules l a n d 2.
(2)0.42A rule2isclearand unambiguous.Thecontrollingwordis «shall». Personal service of duly endorsed copy of an order, either mandatory or prohibitory, is a condition precedent to its enforcement under section 42 of the Courts ofJustice Law.
(3)Subsection
(1)of section 9, of Cap. 6 clearly empowers the Court to make an interim order ex-parte. This interim order, however, shallremain inforcefornolongerperiodthanisnecessary for service of notice of it on all persons affected by itand enabling them toappear before the Court and object to it.Atthe end of such period itceases to be in force, unless the Court otherwise directs.It isonly upon the hearing of the partiesor anyof them thatthe Court hasa discretionary powerto directthatitremainsinforce for alonger period, which inpractice normally isuntilthe final determination of the action.
(4)The Order made by consent is in view of the modifications effected different from the Order issued upon the ex parte applications. 25 Appeal dismissedwith costs. Casesreferredto: Canadian Metal Co. Ltd. v. Canadian Broadcastig Corp. (No.2), 48D.L.R.641;" 30 Mou2ouris and Another v. Xylophaghou Plantation Ltd.
(1977)1 C.L.R. 287; HjiCosta v. Eteria Thomaides Bros (Cyprus)Ltd.
(1979)1 C.L.R. 476. ' Appeal. 35 Appeal by plaintiff against the order of the District Court of Lamaca (Constantinides, S.D.J.) dated the 10th January, 1987 (Action No. 1140/86) whereby his application for the arrest, imprisonment, imposition of fine or sequestration of respondent's property for disobedience of the Order of the Court was dismissed. 385 Photiou v. HadjlForados
(1988)Chr.A. Theodoulou, forthe appellant. A. Koukounis, for the respondent. Cur. adv. vult. MALACHTOS J.: TheJudgment of the Courtwillbe delivered by Mr.Justice Stylianides. STYLIANIDES J.: This appeal raises a single point - is the service of an endorsed copy of an order an essential prerequisite for the prosecution of an application for enforcing obedience to such order? The appellant-plaintiff isthe owner of ashop situate atHermes 10 Street, No. 109, shown on D.L.O. maps as Plot 67, Block D. Sheet/Plan XLI/57.I.III, Scala town. The respondent is the owner of immovables abutting the property of the appellant. On30th April, 1986,theappellant filed thisaction,wherebyhe 15 prayedforaninjunction, damagesandotherconsequentialrelief. On an ex-parte application of the appellanttheDistrictCourtof Lamaca on 30th April, 1986, made an Order «restraining the defendant and/or hisservantsand/orhisagentsfrom demolishing and in any way interfering with the immovable of the plaintiff- 20 applicant, includingawall,situateinLarnaca, HermesStreet 109, Registration No. D65, XLI/57.I.III, Plot 67, Block D, Scala, until the hearing and final determination of the action and/or until further orderoftheCourt, unlessthedefendant appearsbefore the Court on 13th May, 1986 and show cause whythe Order should 25 notcontinue tobe inforce». Endorsed copy ofthe saidOrder was served on the person of the respondent on thesame date. The respondent appeared by counsel and opposed the application. The trial Court adjourned theapplication forhearing onthe 1st 30 July, 1986.On 25th June, 1986, counsel forthe respondent filed notice of intention to oppose the application supported by an affidavit sworn by the respondent. On 1st July, 1986, the Court, on the motion of both counsel, visited the locus in quo in the presence of the partiesand theirrespective counsel. Negotiations 35 took place, which were meticulously recorded by the Court stenographer and finally the interlocutory order was made by 386 5 1 C.L.R. Photiou v. HadjiForados Styllanldes J . consent absolute, subject to the following modification: The respondentwasentitled,withinseven days,toplaceinfront ofthe disputed wall a block-board, which should neither abut, nor be supported bythe existing wall and, further, he was entitled to cut 5 out the part of an arch protruding over his own space up to the plaster of the disputed wall. On 21st October, 1986, the appellant applied by summons for thearrest,imprisonment, imposition offine orsequestration ofthe property of the respondent for disobedience to the Order of the 10 Court, dated 1stJuly,
- Thisapplication wasbasedonsection42oftheCourtsofJustice Law, 1960(LawNo. 14/60) and the CivilProcedure Rules, Order 42A, rules 1,2and 6and Order 48,rule
- The District Court of Lamaca dismissed thisapplication on the 15 ground thatan endorsed copy ofthisOrderwasnotserved on the respondent as required byOrder 42A, rules 1and
- Hence this appeal. Counsel for the appellant submitted that the Order of 1stJuly, 1986, was not different from the Order of 30th April, 1986, 20 endorsed copy of which was served on the respondent and no new service was required. The respondent is a physical person and the Order sought to be enforced was made absolute on 1st July, 1986 in his presence. Furthermore, he invited the Court to makeadifferentiation between mandatory andprohibitory orders 25 and to construe the relevant rule liberally so as to enable the enforcement of the Order of the Court. Aninjunction, includingan interlocutory injunction, isa solemn and authoritative form of order made by the Court expressly enjoining a party either to do a particular act, in which case the 30 injunction isknown asa mandatory injunction, ortorefrain from doing a particular act, in which case the injunction isknown as a prohibitory "injunction. The duty of a person so enjoined is to comply strictly with the termsof the injunction. The judgments of the Court have to be obeyed for the private 35 interest, togive tothe individual-litigant the full fruits of the remedy giventohimbytheCourt,andthepublicinterest,associetyhasan interest in the obedience of the orders of the Courts and the application of the Rule of Law. 387 Styllanides J. Photiou v. HadjiFoiados (19S8) 0 ' Leary J. in Canadian Metal Co. Ltd. v. Canadian Broadcasting Corp. (No.2)(\975) 48 D.L.R. 641 at p. 669 said:«To allow Court orders to be disobeyed would be to treat theroad towardsanarchy.IfordersoftheCourtcanbetreated with disrespect, the wholeadministration ofjusticeisbrought into scorn ...Ifthe remedies thatthe Courtsgrantto correct... wrongscanbeignored,then therewillbenothingleftfor each person buttotakethe lawintohisownhands.Lossof respect for the Courts will quickly result in the destruction of our society.» 5 10 Section 42 of the Courts of Justice Law 14/60 provides that every Court shall have power to enforce obedience to any order issued byit,directing any acttobe done or prohibiting the doing of any act, by fine, imprisonment, or sequestration and such powers shall be exercised subject to anyRules of Court. 15 ApersonwhodisobeysajudgmentororderoftheCourtisguilty of civil contempt. The Rules of Court, which concern this appeal, are the Civil ProcedureRules,Order42A,rules1 and2,whichreadasfollows: «1.WhereanyorderisissuedbyanyCourtdirectinganyact 20 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 theperson requiredtoobeyit,amemorandum inthewordsor tothe effect following: 'If you, the within named A.B.,neglect to obey thisorder, 25 by the time therein limited, you will be liable to be arrested and tohave your property sequestered
- Anoffice copy oftheordershallbeservedonthe person to whom the order is directed. The service shall, unless otherwise directed bythe Court oraJudge, be personal.» 30 The wording orrule 2 of Order42Aisclearand unambiguous. The old English Order 41, rule 5 has material differences from jur rule. Even the new Order 45, rule 7, which applies to a udgment orordertodo an actaswellastoabstain from doing an act, isstillcontrasted toour Rules. The controlling word in rule 2 is «shall». It is a mandatory 388 ^ 1 C.L.R. Photiouv.HadjlForados Styllanides J. provision and not directory.Onlystrictcompliance thereto opens thewayfortheexercisebytheCourtofitspowerundersection 42 of the Courts of Justice Law. There is no room for any other interpretation (see Antonis Mouzouris and Another v. 5 Xyhphaghou Plantations Ltd.,
(1977)1C.L.R. 287 Georgoulla Hjicostav.Eteria Thomaides Bros. (Cyprus)Ltd.
(1979)1 C.L.R. 476). InMouzourisandHjicostacases(supra)itwasheldthatthe nonservice of an endorsed copy of the order of the Court on the 10 person disobeying such order renders the whole proceedings a nullity and the trial Court is bound to dismiss the application for the issue of the writ of attachment and sequestration as ithas no discretion inthe matter. Personal service of duly endorsed copy of an order, either 15 mandatory or prohibitory, is a condition precedent to its enforcement under section 42 of the Courtsof Justice Law. Isthe Order of 1stJuly, 1986 the identical Order of 30th April, 1986? In general a Court in granting a remedy, even interlocutory 20 injunction, byvirtue ofthepowervested init,normallyhearsboth parties.The rule audi alteram partem iswellrooted inour system of administration of justice. For the proper administration of justice, however, and the issue of prompt and effective orders there is a deviation from this rule and orders nisi are made ex25 parte, without the Court having the oportunity to hear the other party. Bydefinition of «an ex-parte» application the party against whom the order issought isabsent. 30 TheCivilProcedure Law, Cap.6, section 9 reads as follows: «9.
(1)AnyorderwhichtheCourtshaspowertomake may, upon proof of urgency or other peculiar circumstances, be made on the application of any party to the action without noticetothe other party. 35
(2)Before making any such order without noticethe Court shall require the person applying for it to enter into a recognizance, with orwithoutasuretyorsuretiesasthe Court thinks fit, as security for his being answerable in damages to the person against whom the order issought.
(3)Nosuchordermade withoutnoticeshallremain in force for a longer period than isnecessary for service ornoticeofit 389 Stylianldes J. Photiou v. HadjiForados
(1988)on all persons affected by it and enabling them to appear before the Courtand object toit;and everysuch ordershallat the end of that period cease to be inforce, unless the Court, upon hearingthe partiesoranyofmem,shallotherwise direct; and every such order shall be dealt with in the action as the 5 Court thinksjust.
(4)Nothing in this section shall be construed to affect or apply to the powers of theCourt to issuewritsof execution.» Subsection
(1)of section 9,above clearly empowers the Court to make an interim order ex-parte. This interim order, however, 10 shall remain in force for no longer period than is necessary for service of notice of it on all persons affected by it and enabling themtoappearbefore theCourtandobjecttoit.Attheendofsuch period itceases tobe in force, unlessthe Court otherwise directs. It isonly upon the hearing of the parties or any of them that the 15 Courthasadiscretionarypowertodirectthatitremainsinforce for longer period, which in practice, normally is until the final determination of the action. The Order of 1stJuly, 1986, inview of the modification made with the consent of the parties,isdifferent from the Order of 30th 20 April, 1986. Before concluding, we observe that in the drawn up Order of 1st July, 1986, attached to the application, the respondent is recorded to have appeared in person, whereas he was represented bycounsel, as inmore detail we have referred earlier 25 inthis Judgment. Inviewoftheforegoing, theappealfailsandishereby dismissed with costs. Appeal dismissed withcosts. 390 30