Appeal dismissed because interim order depends on witness credibility and evidence preponderance, not visible chance of success.

[*4] 1986 June 9

(A. LOIZOU, DEMETRIADES, PIKIS, JJ.)

APPELLATE JURISDICTION

Sylvia Mousourau and Others,

Appellants-Defendants,

v.

Antonios Mousouros,

Respondent-plaintiff.

(Civil Appeal No. 6829).

Interim Order - Conversion of property - Outcome of action depended on the findings as to the credibility of witnesses and in any event on whether by preponderance of evidence the claim was proved or not - In such circumstances it is difficult to say at the stage of interim order that there is no visible chance of success or that the balance of convenience does not favour the granting of the order applied for.

S.. Papakyriacou, for the Appellants.

S. Sofroniou, for the Respondent.

JUDGMENT

The following judgment was delivered by: -

A. LOIZOU, J. :- It is unfortunate that this case came before us on matters which we consider trivial but whose importance is exaggerated by the very fact of the strained relations that exist between the litigants.

They are husband and wife but for some time now have been living apart. According to the allegation of the husband the wife left the conjugal home and took with her [*5] with the assistance and cooperation of her parents, appellants 2 and. 3, certain items from the conjugal home which he claims to be his. An action for the recovery of these items was instituted and it was thought necessary, although we doubt it if was so urgent, to apply for an interim order to preserve the items, subject-matter of the proceedings.

The order as it was expected in these cases of strained relations between spouses was opposed and after protracted litigation at which unnecessary oral evidence was also heard and the issue was not confined to the affidavit filed, the learned trial Judge gave his ruling which has the character of a compromise rather than a pronouncement on legal principles. He referred to the case of Odysseos v. Pieris Estates and Others (1982) 1 C.L.R.

557 and in which case this Court reviewed all previous case law and set down

the principles, the essential prerequisites to the invocation of s.32 of the Courts of Justice Law, 1960. Unfortunately, in dealing

with the facts he used expressions that might be considered as applying wrongly the principles laid down in the Odysseos case but we do not go about judging expressions but the substance of matters. It is with the substance we deal and the claim before him was conversion of property in respect of which, ultimately, there are going to be two versions and the outcome of the case will depend, which of the two versions the trial Judge will accept based on the credibility of the various witnesses and in any event whether by preponderance of evidence the claim was proved or

not. In such circumstances it will be difficult to say at the [*6] stage of an .interim order that there is no visible chance of

success or that the balance of convenience does not favour the granting of the order or its keeping same in force.

We do not think that we would be fair to the parties if we prolong unnecessarily these proceedings by sending this case back for retrial on this issue. We feel that in the circumstances the appeal should be dismissed and there will be no order as to costs.

Appeal dismissed.

No order as to costs.