Court grants stay of execution to prevent successful appeal from being rendered nugatory.

[*375] 1985 March 6

(P. KALLIS, D.J.)

IN THE DISTRICT COURT OF NICOSIA

The Attorney-General of the Republic,

Applicant,

v.

Eteria Akinita Anthoupolis Ltd., and Others,

Respondents.

(General Application No. 37/84).

Judgments and Orders - Execution of

- Stay of execution pending appeal - Principles applicable - Review of authorities.

Chr. Triantafyllides, for the Applicants.

E. Papadopoullou, (Mrs.), for the Respondent.

RULING

The following ruling was delivered by:-

P. KALLIS. D.J.:- On August 13, 1984, the applicant applied ex parte for an order of the Court permitting the District Officer, Nicosia to enter upon certain property of the respondents at Anthoupolis in order to make enquiries or to take measurements in connection with the pumping of water.

The application was based on s.16(1) of the Wells Law, Cap. 351 as amended by Law 47/1961 which, as translated, reads as

follows:- [*376]

“16(1) - The District Officer is entitled either with the consent of the occupier or under an order of the Court, at reasonable times, to enter upon any land where a well site or well or water pumping installation exists in order to make enquiries or to take measurements in connection with the pumping of water”.

The above application was fixed for hearing on the 14th August, 1984, before a Judge of the District Court of Nicosia who on the same day granted the order applied for.

As against the above order, the respondents filed an appeal; and by means of this application they applied “for an order of the Court staying execution of the order given by the Court on the 14th August, 1984, pending an appeal which the above-named applicants have already brought against the said order”.

The application was based on Order 48, rules 1, 2, 3, 4, 8 and 9, on Order 35, rules 18 and 19, of the Civil Procedure Rules, on section 47 of the Courts of Justice Law, 1960 (Law 14/60) and on Law 47/61, section 7.

In an affidavit which was sworn by Andri Charalambous, an advocate working in the office of counsel for the applicants, it was alleged that the appeal is based both on grounds of substance and on grounds of procedure; that there arise questions which refer to the constitutional [*377] rights of the applicants and to the rules of natural justice; that by the relief applied for no damage will be caused to the other side because the order under appeal refers to the right of the District Officer to enter upon the property of the applicants and make enquiries in connection with their private boreholes; that the said enquiries may be made after the determination of the appeal in the event of it being decided against them; that, on the contrary, refusal of the relief applied for will render the appeal and the exercise of their said constitutional right nugatory; that it is very probable that the appeal will succeed because the application on the basis of which the order under appeal was given is bad both as regards the law and as regards the procedure.

On the other hand, by means of an affidavit sworn by an officer of the District Officer’s office, Nicosia, which was filed in support of the opposition, it was contended that by staying the order there will be caused hardship, delay and inability to realize the aims and objects of the issue of the Order which are clearly objects relating to the planning of a study of the water problem existing in the area in which the boreholes of the respondent are found; that for proper results to be arrived at there must take place measurements throughout the year, a fact manifesting that by granting a stay the enquiries will be delayed for a year. [*378]

The appeal was founded on seven grounds of appeal, the main of which were: (a) that the said order was erroneously made without the consent of the appellants; (b) that the said order was erroneously given upon an ex-parte application and/or without a prior notice to the appellants of the existence of the application; (c) that the procedure on the basis of which the order was given was bad in law and/or violated the constitutional rights of the appellants and the rules of natural justice.

In his written address in support of the application, learned counsel for the applicants mainly contended that they have good grounds of appeal and that if successful in their appeal it will be rendered nugatory if the order applied for is not granted.

On the other hand, learned counsel for the respondent, in her written address submitted that the grounds of appeal are not good in law and the consent of the applicants for the issue of the order was not necessary; and that by the execution of the order no damage, harm or loss will be caused to the applicants even if they would succeed in their appeal whereas considerable hardship and injustice will be caused to the respondents if the enquiries are delayed for a year.

It has been established that a matter of this nature is purely a matter of discretion depending on the particular circumstances of each case (see The Ratata, (1897) P.

118, 132, cited with approval by [*379] Triantafyllides, P., in Katarina Shipping v. Ship “Poly”, (1978) 1 C.L.R. 355 at p. 361).

In London & Overseas Co. v. Tempest Bay Shipping, (1978)

1 C.L.R. 367, Malachtos, J. stated the following at p. 373:

“It is a well established principle that the Court has power to grant or refuse a stay which is purely a matter of discretion depending on the particular circumstances of each case (see Becker v. Earl’s Court Ltd.

(1911) 56 S.J. 206; The Ratata (1897) P. 118 at page 132). However, the Court does not make a practice of depriving a successful litigant of the fruits of his litigation pending an appeal (see the Annot Lyle (1886) 11 P.D. 114, at page 116). It has also been said that when a party is appealing, exercising his undoubted right of appeal, the Court ought to see that the appeal, if successful, is not nugatory”.

In Erinford Properties Ltd. v. Cheshire County Council, (1974) 2 ALL E.R. 448, the following were stated at p.454:

“Putting it shortly, on a motion the question is whether the applicant has made out a sufficient case to have the respondent restrained pending the trial. On the trial, the question is whether the plaintiff has sufficiently proved his case. [*380] On the other hand, where the application is for an injunction pending an appeal, the question is whether the judgment that has been given is one on which the successful party ought to be free to act despite the pendency of an appeal. One of the important factors in making such a decision, of course, is the possibility that the judgment may be reversed or varied. Judges must decide cases even if they are hesitant in their conclusions; and at the other extreme a Judge may be very clear in his conclusions; and yet on appeal he held to be wrong. No human being is infallible, and for none are there more public and authoritative explanations of their errors than for Judges. A Judge who feels no doubt in dismissing a claim to an interlocutory injunction may, perfectly consistently with his decision, recognise that his decision might be reversed, and that the comparative effects of granting or refusing an injunction pending an appeal are such that it would be right to preserve the status quo pending the appeal. I cannot see that a decision that no injunction should be granted pending the trial is inconsistent, either logically or otherwise, with holding that an injunction should be granted pending an appeal against the decision not to grant the injunction, or that by refusing an injunction pending the trial the Judge become functus officio quoad granting any injunction at all. [*381]

There may, of course, be many cases where it would be wrong to grant an injunction pending appeal, as where any appeal would be frivolous, or to grant the injunction would inflict greater hardship than it would avoid, and so on. But subject to that, the principle is to be found in the leading judgment of Cotton L.J., in Wilson v. Church (No.2) ((1879) 12 Ch. D. at 458), where speaking of an appeal from the Court of Appeal to the House of Lords, he said, ‘when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal, if successful, is not nugatory’ ”.

In Gruno v. Ship “Algazera”, (1980) 1 C.L.R. 595, Demetriades, J. said the following at p. 598:

“The principles governing a

stay of execution pending an appeal can be summarised as follows (see Polini v. Gray, Sturla v. Freccia, (1879) 12 Ch. D. 438; Wilson v.

Church (No. 2) 12 Ch. D. 454; Orion Property Trust & Others v. Du Cane Court Ltd.

& Others, (1962) 3 ALL E.R. 466; Erinford Properties Ltd. v. Cheshire County Council, (1974) 2 ALL E.R. 448; London and

Overseas (Sugar) Co. & Another v. Tempest Bay Shipping Co. Ltd. & Others, (1978) 1 C.L.R. 367; Tafco (Foreign Trade Organization for Chemicals and Food-stuffs) of Syria (No.2) v. The Ship “Lambros L.” and her cargo, (1977) 1 C.L.R. 159) :-[*382]

(a) The Court, in granting or refusing a stay, has a discretion, depending on the particular circumstances of each case.

(b) The Court should not deprive a successful litigant of the fruits of his litigation pending an appeal.

(c) That when there is an appeal about to be prosecuted, the litigation is to be considered as not at an end, and that being so, if there is a reasonable ground of appeal, and if by not making the order to stay the execution of the order, it would make the appeal nugatory, not to deprive the appellant of the results of the appeal, and that if such is the case, it is the duty of the Court not to interfere and suspend the rights of the party who has established his rights for a stay of execution”.

In Doyle v. White City Stadium Limited, (1935) 1 K. B. 110, cited with approval by Triantafyllides , P. in “Phoenix” v. Al. Khalaf Exhibition, (1981) 1 C.L.R. 673, Lord Hanworth M.R. stated the following at p. 128:

“….. although a plaintiff who is successful in the Court of first instance is entitled to stand upon that judgment on the presumption that it is right, yet the defendants are entitled to take their case to a higher court …..“. [*383]

In a most recent judgment in the case of Mavrochanna and Another v. Michael, (1985) 1 C.L.R. 760, Triantafyllides, P. stated the following at p. 762:

“It is settled that the respondent, as a successful plaintiff, should not be deprived of the fruits of the litigation which till now has evolved in his favour and has culminated in the judgment of the trial court. On the other hand, care should be taken, in so far as this is compatible with a proper exercise of the discretion under r.18, Order 35, not to render the present appeal nugatory to the detriment of the appellants”.

Having anxiously considered all the facts and circumstances of this case in the light of the above principles and along with the grounds of appeal, particularly the ground relating to the granting of the order under appeal upon an ex parte application and in the absence of the applicants - in this proceeding - I cannot exclude the possibility that the judgment under appeal may be reversed. It is, therefore, right to preserve the status quo pending the appeal so that the appeal, if successful, will not be rendered nugatory. In the result, the application will be granted with no order as to costs.

Application granted-with no order as to costs.