(1988)1988September22 (MALACHTOS,PIKE,HADJTTSANGARIS.JJ.) KYPROWLDESIGNSLTD., Appellants-Applicants, v. PANOSENGLEZOS&CO. LTD., Respondents. (CaseStatedNo.237). Judgments—Finality of—Appeal —Effect of—First instance judgment retains attribute offinality unless reversedon appeal— Dictumin Stephanidou v. loannides
(1985)1 C.L.R. 718,that lodgment of appeal deprives judgment of itsnnality, obiter and wrongin law. 5 Rent Control—TheRentControlLaw36/75,section28—Theperiod of two months starts running from date of orderof ejectment— Runningoftimenotaffectedbylodgmentofappeal. Rentcontrol—Procedure—Costs—Principlesapplicable. TheRentControlCourtorderedunderLaw36/75theevictionof 10 theappellantsfrompremisesinNicosiaonthegroundthattheywere required by the owners for material alterations. Execution of the order, which had been issued on 22.12.1980, was stayed until 31.1.1981.Anappealwaslodged,butitwaseventuallywithdrawn, subjecttotheextensionoftheperiodofstaytill31.12.
- 15 On 4.6.1981 the appellants sent a notice to the respondent demanding a new tenancy undersection 28of Law36/75.Asthe demand wasnotsatisfied theybegan proceedingsbefore theRent ' ControlCourtTheproceedingsweredeterminedunderthenewRent ControlLaw23/
- 20 This is an appeal from the judgment of such Court, whereby appellants' application for a new tenancy was dismissed, on the ground mat the notice of 4.6.1981 was out of time, i.e. the two monthsfromtheissueoftheorderofejectmentprovidedbysection 28ofLaw36/
- 25 546 1 C.L.R. Kyproxil Designs v. Panos Eaglezos The appellants* argument was that the lodgment of the appeal deprivedtheorderof22.4.1980 of itsfinality. Held,dismissingthe appeal: 5 10 15 20
(1)ThestatementinStephanidou v.loannides
(1985)1 C.L.R. 718 that «And,therefore, though thefirstinstance judgment wasfinalat the time it was given, it ceased to be of final nature as soon as an appeal hasbeen made against», isclearly obiter. Itis,alsowrongin law.
(2)Theprinciplepermeating everyaspect ofourjudicialsystemis thatfirstinstant judgments are final; an attribute they retain unless reversed on appeal. Even in that situation, the reversal operates •egrospecrively. {3}Therightofappeal isregulated byStatute.Anappeal does not operate as a stay of execution (0.35, r.18 of the Civil Procedure Rules).Thetwofundamental considerationsthatmustbebalancedin the exercise ofthe discretionary powersvested inthe Courtto grant stayofexecution pendingappeal are: (a) The right of the successful litigant to enjoy the fruits of his gficcess,and (b)Thesustenanceoftheefficacy oftherighttoappeal, by seeing that the exercise of the right to appeal is not rendered nugatorybythe execution ofthe first instance judgment.
(4)InEngland,asinCyprus,anappeal isbywayofrehearing, but such process has never been held to entail suspension offinalityof thefirstinstancejudgmentupon thelodgmentofan appeal. 25 Held further, as regards the order for costs made against the • presentappellantsbythetrialCourt: 30 •
(1)The rule that costs follow the event does not apply in the inelastic way it applies to other civil litigation. Nonetheless, the outcome of the case remains a weighty consideration, a factor that maywellprove decisive.
(2)Thereisnoreasoninthiscasetointerferewiththeordermade. Appeal dismissed with costs. Casesreferredto: Stephanidou v.loannides
(1985)1C.L.R. 718; u - KyriacouandSonLtd. v.Rologis
(1985)1C.L.R.211; Papasira/isv. Pefrides
(1979)1C.L.R. 23V * 547 ' "·" ' KyproxilDesignsv.Panos Englezos
(1988)Ioannouv.DemetriouandOthers
(1980)1 C.L.R. 425; EVRICandOthersv. Kotsonis
(1986)1 C.L.R. 617; Pourikkosv. Fevzi, 1962C.L.R. 283; Attorney-Generalv.Georghiou
(1984)2C.L.R. 251; Galatariohsv. PolemitisandAnother,20C.L.R.(PartII) 70; 5 ElectricityAuthorityv. GeorgalletosandOthers
(1972)1 C.L.R. 77; Hadjicosta v. Anastassiades
(1982)1 C.L.R. 296; Katsiantonisv. Franzeskou
(1981)1 C.L.R. 566. Case stated. Case stated bythe Chairman oftheRent Control CourtNicosia 10 relative to his decision of the 28th June, 1985 in proceeding? under section 32
(1)of the Rent Control Law, 1983 (Law No.23/ 83) instituted by Kyproxil Designs Ltd. against Panos Englezos& Co. Ltd. whereby applicants' application for an ejectment order was refused. 15 Chr. Clerides, for the appellants. Th. loannides withP.Liveras, for the respondents. Cur.adv. vult, MALACHTOS J.: The judgment of the Court will be delivered by Pikis,J. PIKIS, J: On 22nd April, 1980, the Rent Control Court set up under theprovisionsofs.4 oftheRentControl Law, 1975 (36/75) ordered the eviction of the appellants from the controlled premises occupied at Makarios Avenue, Nicosia. The order of ejectment was made for the purpose of enabling the owners to 25 carry out material alterations to the premises. Execution of the order was stayed till 31st January, 1981. In the meantime, an appeal was taken against the decision that was eventually withdrawn and dismissed subject to prolongation of staytill31st December, 1982.The appellantsdid notapply for anewtenancy 30 under the provisions of s.28 of Law36/75 and failed tosend th? statutory notice within the two-month period from the date of the orderenvisaged bythatenactment. Anoticetothatend wasgiven much later,on4thJune, 1981.Theirdemandwasnotsatisfied and proceedingswereraisedthatweretriedand determined underthe 35 new Rent Control Law -23/83, that repealed and replaced Law 36/75.TheCourtrefused theapplication ontheground,interalia, 548 20 1 C.L.R. Kyproxil Designs v. Panos Englezos Pilds J. that the noticeserved on the respondents for a newtenancy was outoftime.Theyrejected thesubmission oftheappellantsthatthe lodgment of an appeal deprived the order of eviction made in 1980 of finality. 5 Counsel fortheappellant repeated thesamesubmission before us and candidly acknowledged that if the appellants fail on this issue, it would be superfluous to probe any of the remaining ftnattersraisedbythe notice ofappeal.Counselforthe respondents was of the sa'me view. As the Court too was of opinion that the 10 remaining issues might become of theoretical interest, we proceededtohearargumentsontheimplicationsofthefilingofan appealupontheoutcomeofafirstinstancejudgment. Counsel for the appellants acknowledged that the only support he could derivefortheproposition thatanappealsuspendstheoutcomeof 15 the case or deprives the first instance judgment of finality, is an obiter statement in Stephanidou v. loannides* (in the majority judgment inStephanidou). Relyingontheauthority.ofKyriacou& Son Ltd. v. Rologis** reiterating that an appeal ,is by way of rehearing inthe context of examination of the implications of the 20 provisions of s.32 of Law 23/83, the Court made the following observation: «And, therefore, though the first instance judgment wasfinal at the time itwasgiven,itceased to'be of final nature as soon asan appeal hasbeen made against it». Thisstatement was neither necessaryfortheoutcomeinStephanidou noracorollaryof 25 ifie judgment in Kyriacou.In Kyriacou(supra) it was decided that s. 32
(2)of Law 23/83 made the new law applicable to the determination of pending appeals notwithstanding the fact that they had been decided under the provisions of the repealed legislation, notably, Law36/75.30 In our judgment the statement in Stephanidou (supra) quoted above, was not only obiter but with respect also wrong. The principlepermeating everyaspectofourjudicialsystem isthatfirst instancejudgmentsarefinal;anattributetheyretainunlessreversed on appeal. Even in that situation, the reversal operates 35 retrospectively. The appellate process isnot an extension of the trial or a continuation of it. It is a forum for the review of'the soundness of the adjudication and the judgment, in no way designed todiminish the finality of first instancejudgments. *
(1985)1 C.L.R. 718, "
(1985)1C.L.R. 211. 549 PiktsJ. Kyproxil D e s i g n s V. P a n o s Englezos
(1988)The right to appeal derives from statute and its exercise is subject to its provisions and relevant rules of procedure. In accordance with thespecific provisions of Ord. 35, r.18, ofthe Civil Procedure Rules regulating the exercise of the right of appeal, anappeal doesnot operateasastayofexecution,thatis, 5 it does not upset the finality inherent inthejudgment ofthe trial Court or itssequential enforceability. An order of the Court is necessary for that purpose, involving the exercise of judicial power. Numerous decisions*onthe application ofr.18, Ord.35, suggest that the two fundamental considerations that must be 10 balanced inthe exercise ofthediscretionary powersvested inthe Court thereunder, are:(a)The rightofthesuccessful litigant to enjoy the fruitsofhissuccess,and(b)Thesustenance ofthe efficacy of theright toappeal, byseeing that theexercise ofthe rightto appeal is not rendered nugatory by the execution of the first 15 instance judgment. InEnglandtoosimilarconsiderationsapplytothesuspensionof the whole orpart ofa first instance judgment. Infact, ourruleis founded onthe correspondingrule ofthe oldEnglish Rulesofthe Supreme Court, that is, Ord.58,r.16
(12)**. In England, asinCyprus, anappeal isbyway ofrehearing, a processthathasnever been heldtoentailsuspension offinalityof thefirstinstance judgment upon the lodgment ofan appeal (See Ord. 35, r.3,ofthe Civil Procedure Rulesand the corresponding rule ofthe old English rules ofthe Supreme Court, Ord. 58,r.l). 25 The relevant procedural rules merely serve to define the framework ofan appeal and theprinciplesregulating itsconduct. InEVRIKand Othersv. Kotsonis***, theSupremeCourtadverted to'theconsiderationthatmustbebalancedindetermining whether stayshould be granted. Inthe contextofthatjudgment Imadethe 30 following observation Iconsider worth repeating: «Heisentitled (referring to the successful litigant) to the fruits of his success notwithstanding thechallenge ofthe decision byway of appeal. Thefinalityattached tofirst instancejudgments isnotsuspended * See, inter alia, Papastzatisv. Petndes
(1979)1 C.LR. 231 honi loannou v. Andreas Demetnou andOthers
(1980)1C.LR. 425,at429; TheAnnualPractice 1960,1695-1697, atpp. 345.348 &
- **SeeAnnual Practice1958,p. 1697,ontheapplicationofOrd.58 r.!
- '"
(1986)1 C.LR.617. 550 20 1CLR. Kyproxfl D e s i g n s v. P a n o s Englezos PfldeJ. when challenged by appeal. The imprint of finality attaches theretounless reversed by theCourtof Appeal. Underourjudicial systemfinalityisnotdependentuponconfirmationonappeal»* . The expansion of the right to appeal made by s.25
(3)of the 5 Courts of Justice Law (14/60), has not changed the basis of an appealastheSupremeCourtnotedin YiannisKyriakou Pourikkos v.Mehmed Fevzi** . In Attorney-General v. Georghiou*** , we debated in some detail the position of the trial Court and the effect of its 10 pronouncementsunder our judicial system. In criminal cases it was also affirmed thatthetaking of an appeal does notdiminish the finality of thefirstinstancejudgment. In view of the above the appeal must be dismissed. The only other question we must determine before leaving the case is 15 whether the order for costs made in favour of the respondents shouldbeupset Itissettled****matinRentControlproceedingsthe rulethatcosts follow theeventdoesnotapply intheinelastic way itapplies toothercivil litigation. InKatsiantonis v. Franzeskou***** we explained matthereasonjustifying a moreflexiblerule inrent 20 control proceedings lies in the fact that a large measure of discretionresides withtheCourt.Nonetheless,theoutcomeof the caseremainsaweighty consideration,afactormatmaywell prove decisive. jAnd surely ina case such as thepresentwhere theoutcomeof 25 the case turned, inter alia, not on the exercise of discretionary powers, but on the absence of the statutory prerequisites for success, the Court could very appropriately adjudge the appellants to pay thecosts. Nothingsuggested before us justifies interference withtheordermade. 30 Intheresult theappeal isdismissed with costs. Appeal dismissed withcosts. * Page623. **
(1962)CJ-R 283.288. ***
(1984)2 CJ-ft 251 (majority judgment) ·*** Gabiariofe v. Potermtis and Another. 20 C.LR. (PartΠ). 70-Electricity Authority ν Georgalletos and Others,
(1972)1 CLR. 77; HodpcosSa ν Anastasaades
(1982)1 C.L R.. 296 "***<1981) 1CLR. 566,atS73,574. 551