Contempt order for positive acts requires service; negative prohibition requires proof of interference post-service.

[*93] 1979 Nov.3

(HJICONSTANTINOU, S.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Costas Sp. Mavrides,

Plaintiff,

v.

Loukia Pambou Avraamide,

Defendant.

(Action No. 2823/74).

Contempt of Court - Committal -

Order directing an act to be done - Has to be served on the defendant before

the time limit fixed therein for compliance - Order prohibiting the doing of an

act - Plaintiff has to establish that after date of the order defendant did

some act of interference - Order

42A of the Civil Procedure Rules.

Practice - Judgment - Consent

judgment - Whether vitiated through absence of defendant.

Advocates - Advocate and client -

Consent judgment - An advocate binds his client - Advocate’s consent to an order presupposes the consent of his

client - Party’s absence does not vitiate a consent order.

L. Pelekanos for T.

Papadopoulos, for the Plaintiff.

L. Clerides and S.

Mamantopoulos, for the Defendant.

JUDGMENT

The following judgment was delivered

by:-

HJICONSTANTINOU. S.D.J.: An action was commenced [*94] on 23.4-.74 by the plaintiff

against the defendant, and on 11.5.77 the following record was made by His

Honour Judge Ioannides, President in the District Court of Nicosia :-

“Resumed on 11th May, 1977.

Appearances as before.

Parties present.

At this stage counsel state that

the action has been settled on the following terms :-

(1 ) The defendant acknowledges

that the whole area of plot 269 as described by P.W.1

and shown in Exhibit 1 is the property of the plaintiff.

(2) The defendant submits to an

order compelling her to vacate that part of the area mentioned above which is

shown red on the survey

plan attached to statement of claim on or before the 31st July, 1977, and

to remove therefrom whatever structures, fences and fixtures placed thereon and

prohibiting her from in any way interfering with the

aforesaid portion of the plaintiff’s property.

(3) The plaintiff covenants not

to erect any building on the part of his property extending beyond the

imaginary straight line commencing from the outer wall of the defendant’s house

on plot 275 facing ïoanninon Street on the eastern side and projecting in

a southwest direction along Larnacos Street (previous known as Ekatis Street). [*95] Provided that the plaintiff shall

be at liberty to erect on the aforesaid portion of his property any fence. made

of wire, bricks or other materials, in accordance with building regulations in

force from time to time.

(4) The defendant will pay £40.- towards the costs of the plaintiff.

(5) The defendant withdraws her

counterclaim. Both counsel apply for judgment and order as

per terms of the above

settlement.

Court:- Judgment and order as per above terms of settlement.

Counterclaim dismissed, with no order as to costs.”

On 19.2.79 the following order was

drawn up by the Registry of this Court:-

“Της αγωγής ταύτης παρουσιασθείσης πρός

ακρόασιν τη παρουσία του κ. Π. Ιωαννίδη, δικηγόρου δι’ ενάγοντα και του κ.

Λεμονάρη, δικηγόρου δι’ εναγομένην, και αφού ηκούσθη παν ότι ελέχθη υπό η εκ

μέρους των διαδίκων,

ΤΟ ΔΙΚΑΣΤΗΡΙΟ ΤΟΥΤΟ ΔΙΑΤΑΤΤΕΙ ΚΑΙ

ΑΠΟΦΑΣΙΖΕΙ όπως ολόκληρος η περιοχή υπό τεμάχιον 269, χωράφι, υπ’ αρ. εγγραφής

Β 219, Φύλλον/Σχέδιον ΧΧΙ. 47.4.1, τμήμα Β, ΤΟΠΟΘΕΣΊΑ “Κρεμασταρκές” εις

Παλλουριλωτισσαν, 3 στρεμμάτων και 1,753 τ.π. είναι περιουσία του ενάγοντος. [*96]

ΚΑΙ ΤΟ ΔΙΚΑΣΤΗΡΙΟΝ ΤΟΥΤΟ ΠΕΡΑΙΤΕΡΩ

ΔΙΑΤΑΤΤΕΙ όπως η εναγομένη εκκενώση εκείνο το μέρος του άνω περιγραφομένου

τεμαχίου το οποίον δεικνύεται δια κοκκίνου χρώματος επί του Χωρομετρικού

Σχεδίου, επισυνημμένου επί της εκθέσεως απαιτήσεως, την η προ της 31ης

Ιουλίου,1977 και μετακινήση απ’ εκεί οιασδήποτε κατασκευάς, περιφράγματα και

εγκαταστάσεις τοποθετημένας επ’ αυτού και δια του παρόντος εμποδίζεται από του

να επεμβαίνη καθ’ οιονδήποτε τρόπον εις το προειρημένον τεμάχιον της

περιουσίας του ενάγοντος.

ΚΑΙ ΤΟ ΔΙΚΑΣΤΗΡΙΟ ΤΟΥΤΟ ΠΕΡΑΙΤΕΡΩ ΔΙΑΤΑΤΤΕΙ

όπως ο ενάγων μη ανεγείρη οιασδήποτε οικοδομάς επι του τεμαχίου της περιουσίας

του της εκτεινόμενης πέραν της φανταστικής ευθείας γραμμής αρχομένης από τον

εξωτερικόν τοίχον της οικίας του εναγομένου επί τεμαχίου 275 με πρόσοψιν προς

την οδό Ιωαννίνων εις την ανατολική πλευρά και επεκτεινόμενης προς την

νοτιοδυτικήν κατεύθυνσιν κατά μήκος της οδού Λάρνακος (προηγουμένης γνωστής ως

οδού Εκάτης). Νοουμένου ότι ο ενάγων θα είναι ελεύθερος να ανεγείρη επί του

προειρημένου τεμαχίου της περιουσίας του οιονδήποτε περίφραγμα από σύρμα,

τούβλα ή από άλλα υλικά συμφώνως των από καιρού εις καιρόν ισχυόντων

οικοδομικών κανονισμών.

ΚΑΙ ΤΟ ΔΙΚΑΣΤΗΡΙΟΝ ΤΟΥΤΟ ΠΕΡΑΙΤΕΡΩ

ΔΙΑΤΑΤΤΕΙ όπως η εναγομένη πληρώση £45.250 μίλς έναντι των εξόδων του

ενάγοντος συμπεριλαμβανομένων των [*97] εξόδων της παρούσης αποφάσεως.

ΚΑΙ ΤΟ ΔΙΚΑΣΤΗΡΙΟΝ ΤΟΥΤΟ ΠΕΡΑΙΤΕΡΩ

ΔΙΑΤΑΤΤΕΙ όπως η ανταπαίτησις της εναγομένης απορρίφθη και δή δια του

παρόντος απορρίπτεται άνευ εξόδων.

Εδόθη την 11ην Μαΐου, 1977.

Συνετάχθη την 19ην Φεβρουαρίου, 1979.”

( Υπ.) Χρ.

Ιωαννίδης,

Πρ.

Έ. Δ.

The above drawn up order was served

on the defendant on 13.3.79. On the basis of an affidavit sworn by the

plaintiff on 15.3.79. there was filed on 23.3.79 on behalf of the plaintiff an

application whereby the plaintiff- seeks an order of the Court for the arrest

and committal to prison of the defendant and/or for the sequestration of her

property on the ground that she failed to comply with the Court order of the

11.5.77. Alternatively, the plaintiff seeks an order calling upon the defendant

to show cause why she should not be punished because she has failed to comply

with the aforesaid order of the Court.

The plaintiff’s application mentions

that it is based on the Civil Procedure Rules, 0.40, r.13, 0.42A, rr. 1 - 13

and 0. 48 rr. 1 - 3 as well as on section 42 of the Courts of Justice Law 14/60, and also on the general powers of the

Court.

Pausing here for a moment I wish to

point out [*98] that 0. 40, r.

13 refers to a judgment or order made against a corporation, and it has no

application in the present case where the defendant is a woman.

The plaintiff’s application has been

opposed by the defendant on 12.6.79 and it came on for hearing on 20.6.79.On

that date the learned counsel appearing for the parties addressed the Court on

the legal aspect of the case after having made a statement that each party

rests on the contents of each one’s affidavit and neither wishes to

cross-examine the other on their respective affidavits.

In his address, the learned counsel for

the defendant advanced argument on the following matters :-

He pointed out the contents of

paragraph 2(a) of his client’s affidavit wherein she states that on 11.5.77,

when the Court made the aforesaid order, she was not present, and that it is

wrong that she is mentioned as present in the record of the Court. The learned

counsel maintained that, as his client was not present in Court, she should not

be bound by that order.

I find no substance in this

contention; P counsel, binds his client and the counsel’s consent to an order

presupposes the consent of his client. So, it matters not whether or not the

defendant was present in Court on 11.5.77. I am, of course, aware of the

Supreme Court’s direction as to the desirability of the presence of a person against

whom an order (especially for ejectment) is made, but the absence of such

person does not vitiate a consent order. [*99]

The second point that was taken

by the learned counsel for the defendant concerns the wording of the order in

question. He said that the order that is turned against his client is in effect

a three-fold one: In the first part his clent is ordered to vacate the land in

question, in the second part she is ordered to remove therefrom structures,

fences and fixtures, and in the third part she is prohibited from in any way

interfering with the aforesaid portion of land.

As far as part one of the order

is concerned, the learned counsel submitted that 0.43A and not 0.42A of the Rules of Procedure applies, and

as there has been no compliance with the said Order, the plaintiff cannot

complain of contempt to the order of the Court. Counsel further submitted that

even if the Court find that 0.42A

and not 0.43A applies, again the plaintiff cannot

complain of contempt to the Court order because thesaid order was not served

on his client before the date by which she ought to have complied, contrary to

the provisions of 0.42A.

In my turn, I would classify the

Court order in question in only two parts: The

first part is that by which the defendant is ordered to do a positive act i.e.

to vacate the portion of land and remove therefrom all structures, fences and

fixtures. The second part is of a prohibitive nature, and by it the defendant

is prohibited from in any way interfering with the land in question. [*100]

“ The distinction in law

between an order to do an act and one which prohibits an act being done is not,

in my judgment, a merely historical or technical distinction. It depends on

practical considerations. If a man be ordered to do an act, so that his failure

to do it may lead him to prison, justice requires that he knows precisely what

he has to do and by what time he is to do it …….”(Per

STAMP, J. in RONSON PRODUCTS LTD. v. RONSON “FURNITURE,

LTD., (1966) 2 All E.R. 381 at

p. 384, “letter B.”).

This consideration finds its

expression in the memorandum that under the provisions of 0.42A must be

endorsed on the copy of the Court Order, where it must be stated that:

“If you, the within-named A.B.,

neglect to obey this order, by the time therein limited, you will be liable to

be arrested and to have your property sequestered.”.

Moreover, 0. 42A provides:-

“Where any order is issued by

any Court directing any act 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 the person required to obey it, a

memorandum in the words or to the effect following:” (and then follows the

aforesaid memorandum.) [*101]

In the provisions of 0.42A above, no reference is made to the

cases where the person against whom the

order is made is present, and to the cases where such person is absent. In my

view, these provisions apply in all cases where an order is made irrespective

of whether the person against whom the order is made is or is not present. This view receives

much support by the words any order and there shall be endorsed in the Order.

With reference to the submission of

the learned counsel for the defendant that 0. 43A

applies, I would not be inclined to agree. An order to vacate an immovable property

and remove therefrom any structures, fences and fixtures as in the present case

is not an order for the recovery or delivery of possession of such property as

is the case under the provisions of 0. 43A.

Following what I have stated above,

and with reference to the first part of the Court order in question, as I have

found it to be (i.e. the part that orders the defendant to do the positive acts

of vacating the land and removing therefrom any structures etc.) in view of the

fact that it was not served in time and before the time limit fixed in the

Court order and by which the defendant ought to have complied, I come to the

conclusion that the plaintiff’s complaintas to the defendant’s failure to

comply is unsustainable, and the defendant cannot be found to be in contempt of

the Court order.

I now proceed to consider the

position as regards the second part of the

Court order as I found it to be i.e. [*102] that part which prohibits the defendant from in any way

interfering with the land in question.

This is of a negative character and I would revert to

what STAMP, J. said in the RONSON case (supra) at pp. 384 - 385.

“Different considerations ……………………………………………… need not be

emphasized.”

However, in spite of the above,

having in mind the specific provision of 0.42A

and particularly the phrase “or prohibiting the doing of any

act” I would be willing to accept the necessity of service of such an order.

But in that case it is the plaintiff’s duty to prove that after such

service the defendant did some act

which she was prohibited from doing. There is no such allegation in the

plaintiff’s affidavit. The plaintiff had to establish that after the defendant

had been served with the order she did a certain particular act proving

interference which she had been prohibited from.

If I am wrong in my view that service

of this second part of the Court order is required, and this would be in line

with the aforesaid by STAMP, J.,

then again in my view the plaintiff had a duty to establish that after the date

of the consent Court order of prohibiting inference the defendant did some act

of interferance. No such evidence has been adduced in this respect. [*103]

Concluding, I find that this

application cannot suceed and is accordingly dismissed, but taking into

consideration all the aspects of the

case and the fact the application fails not because the defendant has in fact

complied with the consent order, I make no order as to costs.

Application dismissed with no order

as to costs.