Cyprus court dismisses defendant's injunction application as counterclaiming defendant is not a 'plaintiff' under section 32 of Courts of Justice Law 1960.

[*262] 1982 April 5

(GL·. MICHAELIDES, D.J.)

IN THE DISTRICT COURT OF FAMAGUSTA SITTING AT LARNACA

Margarita F, Symeou,

Plaintiff,

v.

Georghios Adamou Michael,

Defendant.

(Action No. 175/80).

Injunction

- Interlocutory injunction - Cannot he applied for Toy a defendant - A counterclaiming defendant is not a "plaintiff" within the meaning of section 32. of. the Courts of Justice Law, 1960 (Lav/ 14./60).

T. Economou, for Applic ant -Defendant.

G. Pittadjis, for Re s pondent-Plaint iff.

RULING

The following ruling was delivered by:-

GL. MICHAELIDES. D . J. : - At the end of the [*263] hearing of the present application, learned counsel appearing for the respondent-plaintiff raised the point that the Court has no jurisdiction to grant the intehbcutory injunction applied for, as a defendant in Cyprus has no right to apply for an injunction.

The proper course for the respondent, was to have raised the point before the date of trial, a thing which would have saved time and costs. (See The Heirs of the late Theodora Panaghi v. The Administrators of the Estate of the late Stylianos Georghi Mandrio ti (1963 ) 2 C.L.R. p. 167 and Michaelides v. Diakou (1968) I C.L.R. 392 at p. 395 where Josephides J. repeated the following which were said in the Mandriotis’ case:

"We would like to add that in cases where an objection is taken in the defence the interested party must apply to the Court to have a particular point of law under

0.27 formulated and set down for trial and he should not wait until the day of trial when all the parties and their witnesses are before the Court, when considerable costs may be incurred. An application under 0.27 should normally be made on the summons for directions".

The object of an interlocutory or interim injunction is to preserve matters, pending the trial of matters in dispute. (See Beese v. Woodhouse (1970) I All E.R. 769)· The injunction is pre-eminently a discretionary remedy but a Court must exercise its discretion judicially and in [*264] accordnace with recognised principles. (See Beddow v. Beddow (1878) 9 Ch. D. 89 at p. 93 per Jessel M.R.).

In England a defendant could, under the old Order 50 r. 6, after appearance file an interlocutory application for an injunction. (See the Annual Practice I960 p. 1204).

In Sargant v. Read (1876) I Ch. D.6OO, Jessel M.R. had this to say:-

"There is no abstractreason why a defendant should not move for a receiver as well as a plaintiff. I see no reason why a defendant should go through the preliminary formality of bringing a cross action".

The relief sought by the defendant should have arisen in respect of the plaintiff 's cause of action. If the relief sought by the defendant was outside the plaintiff's action the defendant could not move for an injunction until he had delivered a counterclaim, but should institute a cross-action. (See Carter v. fey (1894)2 Ch. 54l. 546. Collison v. Warren (1901) I Ch. 812.

The position today is that a defendant may after appearance, apply for an interlocutory injunction and the relief sought by the defendant need not necessarily arise in respect of the plaintiff's action. See 0.29 r.1 and 0

15 rr. 2, 5(2).

In Cyprus the relevant provisions are found in sections 4 - 9 of the Civil Procedure Law, Cap. 6 and section 32 of the Courts of Justice Law, 1960 (14/60). [*265]

S.4(l) of Cap. 6 is as follows:

"The Court may at any time during the pendency of any action therein make in the action an order for the sequestration, preservation, custody, sale, detention, or inspection of any property, being the subject of the action, or an order for preventing any loss, damage, or prejudice, which but for the making of the order might be occasioned to any person or property, pending a final judgment on some question affecting such person or property or pending the execution of the judgment".

In Nemitsas Industries Ltd. v. S.& S Maritime Lines Ltd., and others (1976) I C.L.R. 302 at p. 308 A.Loizou, J. had these to say on s. 4(1):

" This is the first time, as advised, that section 32 came up for interpretation in the present context, although it was on the Statute Book since 1960. The only other case where an effort was made to restrain Bank from remitting the money out of the jurisdiction, is to be found in Sophocles Mamas & Co. v. Carl Borgward, 1962 C.L.R. p.209, but the appellant in that case applied under section 4(1) of the Civil Procedure Lav, Cap. 6 and relying on the case of Cyprus Palestine Plantations v. Olivier and Co., l6 C.L.R. 122 the Court held that section 4(1) was not applicable and that the Court had no power under section 4 of the said law to make an [*266] order affecting property not itself the subject of the action, but as I have already said, section 32 was not considered and therefore, there is no precedent on the subject. It is relevant, therefore to see what are the facts and circumstances of this case that would justify the granting of the order applied for."

While section 4(l) speaks about "preventing any loss, damage, or prejudice" which might be occasioned to any person or property, s. 5(2) provides that no order may be made restraining the defendant from parting from his immovable property "unless the plaintiff has a good cause of action". S. 4 however is further qualified by section 7 of Cap.

6 which is as follows:

"If it appears to any Court that any order made by such Court under the last three preceding sections was applied for on insufficient grounds, or if the plaintiff's action fails, or judgment is given against him, by default or otherwise, and it appears to the Court that there was no probable ground for his bringing the action, the Court may, if it thinks fit, on the application of the defendant, order the plaintiff to pay to the defendant such amount as appears to the Court to be a reasonable compensation to the defendant for the expense and injury occasioned to him by the execution of the order. [*267] Payment of compensation under this section shall be a bar to any action for damages in respect of anything done in pursuance of the order; and any such action, if begun, shall be stayed by the Court in such manner and on such terms as the Court thinks just."

The whole matter, however, must be examined together with the provisions of s.32 of the Courts of Justice Law, 1960(14+/60). See Loucas Papastratis v. Glafkos Petrides, personally and as secretary of the club "Trust"

(1979) I C.L.R. 231 where Malachtos J. had these to say p.240:

"With the exception of cases where property is the subject matter of the action, in all other cases an application for an interlocutory order under section 4 of Cap. 6 cannot be considered independently of the provisions of section 32 of Law 14/60 Section 32 of Law 14/60 is of a wider application than section 4 of Cap. 6 and consequently, when an application is considered under this section the provisions of section 4 of Cap. 6 are automatically taken into account."

The relevant provisions are found in s. 32 of the Courts of Justice law 14/60 and read as follows:

"32(l). Subject to any Rules of Court every Court in the exercise of its civil jurisdiction, may, by order, grant an injunction (interlocutory, perpetual or mandatory) or appoint a receiver in all cases [*268] in which it appears to the Court just or convenient so to do, notwithstanding that no compensation or other relief is claimed or granted together therewith:

Provided that an interlocutory injunction shall not be granted unless the Court is satisfied that there is a serious question to be tried at the hearing that there is a probability that the plaintiff is entitled to relief and that unless an interlocutory injunction is granted it shall be difficult or impossible to do complete justice/at later stage.

(2) Any interlocutory order made under subsection (1) may be made under such terms and conditions as the Court thinks just, and the Court may at any time, on reasonable cause shown, discharge or vary any such order.

(3) If it appears to the Court that any interlocutory order made under subsection (1) was. applied for on insufficient grounds, or if the plaintiff's action fails, or judgment is given against him by default or otherwise, and it appears to the Court that there was no probable ground for his bringing the action, the Court may, if it thinks fit, on the application of the defendant, order the plaintiff to pay the defendant such amount as appears to the Court to be a reasonable compensation to the defendant for the expense and injury occassioned to him by the execution of the order. [*269]

Payment of compensation under this subsection shall be a bar to any action for damages in respect of anything done in pursuance of the order; and any such action, if begun, shall be stayed by the Court in such manner and on such terms as the Court thinks just."

As it transpires very clearly from the proviso to s. 32(1) and in particular from the second prerequisite contained therein, the person entitled to relief must be a plaintiff.

The question which now poses for an answer is whether the term "plaintiff" includes a defendant claiming by counterclaim as in the present case. The question is answered by reference to the interpretation section of law 14/60 where the term "plaintiff" is interpreted as follows:

(

“ενάγων” περιλαμβάνει παν πρόσωπο αξιούν οιανδήποτε θεραπείαν (πλήν εκείνης ην

αξιοί ο εναγόμενος δι’ ανταπαιτήσεως) καθ’ οιουδήποτε άλλου προσώπου υφ’

οιανδήποτε μορφήν διαδικασίας, είτε η διαδικασία είναι δι’ αγωγής, αιτήσεως,

αναφοράς, κλητηρίου ή άλλως.) (" plaintiff" includes every person asking any relief (with the exception of that which a defendant claims by (counterclaim) against any other person under any form of judicial proceedings whether by way of action, application, reference, summons or otherwise.)

It is clear from the above definition of the word "plaintiff" which is found in the proviso to s. 32(1), that [*270] a remedy which is being asked by a defendant by counterclaim cannot be considered as a remedy which a plaintiff may ask or, in other words, a defendant by counterclaim can not be considered a “plaintiff” for the purposes of the proviso to s.32(l) of the Courts of Justice Law, 14/60. It may be that the legislature intended a different thing, such as the definition of "plaintiff" in the Civil Procedure Rules 0.1 r.2 Where the plaintiff is defined as follows:

"plaintiff" includes every person asking any relief (other than a defendant asking relief by way of counterclaim) against any other person by any form of proceeding, whether the proceeding is by action, petition, motion, summary or otherwise".

It must be noted that whereas in the definition of "plaintiff" in the Court of

Justice Law exception is made of the relief (πλην εκείνης της θεραπείας) in 0.1 r.2, exception is made of the person (other' than a defendant

asking relief by way of counterclaim).

It is a cardinal rule of construction that words in a statute should be given their natural meaning. In determining the meaning of any word or phrase in a statute, the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute. (See Pinner v. Everett

(1969) 3 All E.R. 257 at 258 per Lord Reid.

With the above in mind I am of the view that [*271] the defendant cannot apply for an injunction in the present case and his application must be dismissed. Having in mind, however the late stage at which the point was raised I find it just and equitable to make no order as to costs.

In view of the above findings of the Court I consider it unnecessary to deal with the evidence adduced.

In the result, application is dismissed with no order as to costs.

Application dismissed with no order as to costs.