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Colonial Cases

Antoniades v. Catsarides, 1884

[res judicata]

Antoniades v. Catsarides

Supreme Court of Cyprus
Bovill C.J. and Smith J., 21 May 1884
Source: (1884) 1 Cyprus Law Reports









The Predecessor in title of the Defendant in the year 1289 obtained an order of the Sheri Court restraining the Plaintiff from exercising a certain right of way.  In 12292 the defendant herself brought an action against the Plaintiff claiming the same relief, relying on the order of the Sheri Court as providence of her right.  The Daavi Court dismissed her action and no appeal was made against this judgment.

   HELD: (in an action brought by the Plaintiff against the Defendant to restrain her from interfering with the same right of way) that the defendant by bringing her action before the Daavi Court must be taken either to have abandoned the rights she might have claimed under the order of the Sheri Court, or that the Daavi Court must have considered that order not to be binding and tryst therefore the judgment of the Daavi Court against which no appeal has been made was decisive of the matter.


   APPEAL from the District Court of Papho.

   The plaintiff brought this action to restrain the defendant from interfering with his eight of way over defendant's land.

   The defendant relied upon an Ilam of the Sheri Court obtained by her predecessor in title in the year 1289, in an action brought by him against the Plaintiff, whereby the latter was ordered not to make use of the right of way.

   The plaintiff relied upon the fact that in the year 1292 the defendant had herself brought an action in the Daavi Court of Paphos claiming the same relief as was claimed by her predecessor in title before the Sheri Court and that this action had been dismissed and no appeal had been made against the judgment.

   The District Court basing their decision upon this judgment of the Daavi Court gave judgment for the plaintiff.

   The defendant appealed.

   Kypiades for the appellant. - Under the judgment of 1289 the plaintiff was ordered to close his door.  Against this judgment the plaintiff has never appealed and under Section 2632 of the "Cyprus Courts of Justice Order, 1882," this judgment is final and conclusive.

   Pascal Constantinides for the respondent. - The judgment of the District Court is based upon that of the Daavi Court, dated 1292.  This action was between the same parties and in respect of the same subject matter.  There was no appeal against it and it is conclusive of this case.

   Judgment:  The defendant in this case appealed from a judgment of the District Court of Pahpo, dated March 26th 1884, and a point of some interest is raised by her appeal

   It appears from the documents produced to this court that a certain Yanko Catsarides was the owner of a small piece of land at Papho, situate in front of his store which lay some short distance from the road.  The plaintiff, who is the owner of a house abutting on this piece of land, some time prior to 15 Sepher. 1289, opened a door in the side of his house on to the land in question and made use of the land to obtain access to his house.  Yanko Catsarides brought an action in the Sheri Court against him and on 15 Sepher. 1289, obtained a judgment under which the present plaintiff was ordered to close up his door and was restrained from making use of the land.  The judgment appears never to have been carried out and, in 1292, Mariou Catsarides petitioned the Daavi Court to restrain the plaintiff from making any use of the door opening on to his land, basing her claim upon the Ilam of the Sheri Court of 15 Sepher., 1289.  There was no evidence as to how the interest of Yanko Catsarides in the property became vested in Mariou Catsarides.

   The Daavi Court decides that she had lost her right under this Ilam and dismissed her claim.  Against this judgment no appeal was made and matters reasoned on the same footing  down to the present year, the present plaintiff, Youanni, making use of the land in  dispute to obtain access to his house.  In the present year the defendant appears again to have attempted to prevent his user of the land and he thereupon commenced this action to restrain her interference.  The District Court, basing their opinion upon the judgment of the Daavi Court, gave judgment in his favour and retrained the defendant from obstructing the plaintiff's use of the land in order to obtain access to his door.

   The question we have to decide therefore is, which of two contradictory judgments, given on the same cause of action, one subsequent in date to the other, is to prevail.

   It is claimed for the defendant that the Ilam Sheri of 1289 bars the plaintiff's claim and is conclusive as to the defendant's right to the sole possession of this land, whilst the plaintiff relies upon the judgment of 1292.  The District Court has decided that the judgment of the Daavi Court must prevail and has therefore given judgment for the plaintiff.

   We are of the opinion that the decision of the District Court was right.  Either the defendant was entitled to the benefit of the judgment given by the Sheri Court in 1289 in favour of Yanko Catsarides or she was not.  If she was entitled to the benefit of it, her proper course was to obtain execution of it, and if, instead of applying for execution of it, she chose to being a substantive action claiming the same relief as had been granted in the former axiom, we think she must be taken to have abandoned her rights under the judgment in that action as a judgment though she apparently relied upon it as evidence of her claim in the second action.

   We are of opinion that where there are two contradictory judgments, each given by a Court of competent jurisdiction, as is the case here, it must be held that either the person having the benefit of the first of these judgments had neglected to assert  his rights under it, and thus has abandoned it, or that the court giving the second judgment has considered the first and for some reason has concluded that it is not binding and has therefore felt in a position to upset it; and if no appeal against the  second judgment be made it must be valid and binding.

   If she was not entitled to the benefit of the judgment obtained by Yanko Catsarides then we need consider only the effect of the judgment of the Daavi Court of 1292.

   The result is, that whether she is entitled to the benefit of the judgment given in favour of Yanko Catsarides or not, we are of opinion that the judgment of the Daavi Court must prevail. The proper course of the defendant was, to have appealed against that judgment and as she has not done so the District Court was right in deciding that this matter was res judicata and in giving judgment for the plaintiff.  The appeal musty therefore be dismissed with costs.

   Order:  Appeal dismissed with costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School