[*256] 1986 January 17.
(MILTIADOU, D.J.)
IN THE DISTRICT COURT OF PAPHOS
Divisional Police Commander Paphos,
1. Lambros Chr. Tsangaras,
2. Christodoula Demetriou,
Accused.
(Case No. 5334/85).
Wilful obstruction of a person charged with the execution of an order or warrant of a Court contrary to section 132 of the Criminal Code, Cap. 154 - The necessary prerequisites of the offence - Writ of movables - The deputy sheriff is lawfully charged with its execution (0.40, r.6 and 0.41, r.2 of the Civil Procedure Rules) The offence is committed by obstructing the “person” charged with the execution, not the execution itself - What constitutes “execution” - The Civil Procedure Rules 0.44, r.1 and 8(1)(2).
Civil Procedure - Execution by writ of movables - What constitutes execution - The Civil Procedure Rules, 0.44, r.1 and 8 (1) (2).
Civil Procedure - Execution by writ of movables - Deputy sheriff - A person lawfully charged with its execution - The Civil Procedure Rules, 0.40, r.6 and 0.41, r.2.
P.S. Loizides, for the Prosecution
A. Evzonas, for both Accused. [*257]
JUDGMENT
The following judgment was delivered by:
MILTIADOU, D.J.: Both accused are charged that on the 16th August, 1985, at Yeroskipos did wilfully obstruct Mikis Michaelides, a Senior bailiff, to executed Writ No. 1000/85 issued by the District Court of Paphos for the seizure and sale of the movable property of the 1st accused, contrary to sections 132 and 20 of the Criminal Code, Cap. 154.
To prove the above charge against the accused the Prosecution called two witnesses, namely -
P.W.1, Mikis Michaelides, who said he is a bailiff of the District Court of Paphos. He knows the accused. Against the 1st accused was issued on 18.5.85 a Writ No. 1000/85 for the seizure and sale of his movable property, in Action No. 500/77, which was produced by him and put in Court Exhibit 1.
On the 1.6.85 the above Writ was passed to him for execution and, he therefore, met the said accused several times, in order to pay it off, but, due to the fact, the 1st accused failed to response, on the 16.8.85, after a telephone communication, with the Mukhtar of Yeroskipos village, he visited the said village to execute it. [*258]
After several efforts of the witness, the said Mukhtar and the Rural Constable, he finally met both the accused at their house at Yeroskipos, where, he served on accused No.1 certain Court documents regarding another Action, and he thereafter explained to him the purpose of his visit and asked him to pay off the above Writ, otherwise he would have proceeded with the seizure and sale of his movable property. The accused No.1, then began shouting, threatening him with the following words: “τζείνος που θα αγγίξει την κινητή μου περιυσία θα του κόψω τα χέρια του”
The 1st accused, thereafter, and the witness at his request, visited the office of the Mukhtar. There again he explained to the said accused, that, because he was refusing to pay off the above Writ, he was bound to proceed with the seizure and sale of his movable property, but, his reply again was: “Δε θα επιτρέψω σε κανένα να μπει στο σπίτι μου τζιε όποιος μπει θα του κόψω τα πόδια.”
The witness then invited the said accused to follow them to his house, but the accused refused to do so, whereon, he with the Mukhtar and the Rural Constable of Yeroskipos, visited alone the accused’s house and there they met the wife of the accused 1 outside in the yard having their house locked. He then invited his wife, Accused No.2, to open the house to search therein for the property of the accused No.1, but she refused [*259] to do so and her reply was: “Δε σας επιτρέπω να μπείτε στο σπίτι μας”.
The witness in his cross-examination by the counsel of the accused, said, that when he first visited their house, he did so alone, the Mukhtar of Yeroskipos was not present, and his intention then was to ask the accused No.1 to pay off the said Writ and not to seize his movable property in execution thereof and that when movable property is seized in execution of a Writ the Mukhtar of the community is always present.
P.W.2, P.C. 3017 Neoclis Mitas, who said that the accused are husband and wife and they reside at Yeroskipos village. Upon a complaint made by the previous prosecution witness, he on the 26.8.85 visited the village of Yeroskipos and he formally charged both accused. The 1st accused after the usual caution he made a reply which was read over to him, which he signed as true and which was produced and put in Court Exh. 2. The said accused in his reply said: “Δε δέχομαι να εκτελεστεί το ένταλμα διότι το ένταλμα τούτο εξεδόθηκε που την Αγροτέχνικα λανθασμένα και έχω να παίρνω από κοντά τους ένα σετ τσάππες του τράκτορ.”
Both accused when called upon by the Court to make their defence, they elected and gave evidence on oath, but, they did not call any other witness to their defence. [*260] The first accused in his testimony said that on the 16.8.85, he returned with his wife, the 2nd accused, home from the sheepfold. Soon thereafter Mikis Michaelides, the bailiff, came, who demanded the payment of a debt for which a writ for the seizure of his movable property was issued. There was a discussion between them and he asked Mikis to give him one week time to pay it off but he refused and wished to proceed with its execution and insisted to seize the T.V. set in execution.
As he was in another room of the house to change into new clothes, he heard Mikis saying something to his wife regarding the T.V. set and then left. He soon after went too to the coffee-shops and Mikis invited him to return home but his answer was “if you want to seize the T.V. set go if they give it to you”.
In his cross-examination by the Prosecution the above accused said that when bailiff visited their house he explained to him about the debt and demanded payment of it, otherwise he would have to proceed to the seizure of his movable property in execution thereof. He knew that the said Mikis Michaelides was a bailiff and that his work was to execute writs issued by the Courts. He further said that he did not see the above bailiff to try to seize the T.V. set because he was in another room and was changing into his clothes. [*261]
The accused 2, on the other hand, in her testimony said that on the 16.8.85 she returned home with her husband, accused No.1, from their work, where Mikis came and demanded from her husband to pay off a debt, and to go together to the Mukhtar of Yeroskipos to discuss the whole matter and her husband agreed. The said Mikis then took off the plug of the T.V. set and she told him to leave it because it was hers whereof Mikis left to go to bring the Mukhtar. Soon after the said Mikis returned with the Mukhtar and the Rural Constable, the Mukhtar then asked her to open the house to seize the T.V. set but her answer was that the house was hers as well as everything therein. Mikis then intervened and said to her: “Are you not now allowing me to enter the house and to seize the T.V. set” and she replied “No”.
The above accused in her cross-examination by the prosecution said that the above-mentioned Mikis explained to them the purpose of his visit, and that with her husband together they went to the Mukhtar and that Mikis returned back with the Mukhtar and that Mikis then asked her to open the house to seize movable property belonging to her husband - accused 1 - in execution of the above writ but her reply was that everything was hers and refused to open. [*262]
I have carefully considered the whole evidence before me and I had occasion to see and watch the demeanour of all the witnesses when they were testifying before me in the witness-box. I was extremely well impressed by both the prosecution witnesses and it is clear in my mind that they were truthful and reliable witnesses and it is without any hesitation whatsoever that I accept their evidence as true and correct.
On the other hand, both accused impressed me very poorly and I am sure that they were not telling the truth. Their evidence is so conflicting and contradictory that I disbelieved them and in consequence I reject their evidence as totally untrue and unreliable.
In my judgment the true facts are as have been described by the prosecution witness Mikis Michaelides and with those facts in mind I will now proceed to examine if the offence charged has been committed.
THE LAW
Section 132 of the Criminal Code, Cap. 154, under which the accused are charged, provides as follows :
“Any person who wilfully obstructs or resists any person lawfully charged with the execution of an order or warrant of any Court is guilty of a misdemeanour, and is liable to imprisonment for one year.” [*263]
In my opinion the above offence is committed, when -
(a) The person obstructed was lawfully charged with the execution of an order or warrant of any Court.
(b) Such person was wilfully obstructed by the accused.
I will now proceed to consider whether said prosecution witness Mikis Michaelides was lawfully charged with the execution of the above writ for the seizure and sale of the movable property of the 1st accused and finally whether the behaviour of both the accused complained of amounts to obstruction.
Order 40 r.6 of the Civil Procedure Rules, under the heading “Execution in General” reads as follows: -
“Every writ of execution for the recovery of money shall direct the deputy sheriff to levy the money really due and payable and sought to be recovered under the judgment or order, stating the amount and the costs of the execution and the writ shall direct in what manner the money levied in execution is to be disposed of by the deputy sheriff.”
Order 41 r. 2 of the above Rules on the other hand, under the heading “Execution by Seizure and Sale of Movable Property” reads as follows: [*264]
“Writs for the seizure and sale of movable property shall be passed to a bailiff for execution and the provisions of Order 44 shall apply.”
From the above Rules and the facts, as I have accepted them, I find that Senior Bailiff Mikis Michaelides of the Paphos district Court, was as from 1.6.85 lawfully charged with the execution of the Writ No. 1000/85 of the District Court of Paphos, of the Seizure and Sale of Movable Property of the 1st accused in Action No. 500/77.
It was argued on behalf of the counsel of the accused that the above charge is bound to fail because the prosecution failed to establish that Senior Bailiff Mikis Michaelides did try to seize any movable property of the 1st accused in execution of the said writ and was then in any way obstructed by either of the accused, because execution under a Writ of Seizure and Sale of Movable Property is nothing less than the seizure of it and which must be effected in the presence of the Mukhtar of the village.
The Court has a completely different view because the relevant section provides:-
“Any person who ….. obstructs ……. any person ……. charged with the execution of ……. “and not “Any person who ……. obstructs ……. any person in the execution of ……..“. [*265]
Yet, despite my above different view, I feel bound to proceed to consider the above argument of the accused’s counsel.
Order 44 of the above Civil Procedure Rules under the heading Bailiffs, rules 1 and 8(1) (2) read as follows:-
“1. Every bailiff shall have power to do all things necessary for the execution of a writ for the seizure and sale of movable property, and upon receipt of the writ he shall take all steps necessary for its prompt and due execution.
8(1) Upon proceeding to execute a writ the bailiff shall obtain the assistance of the Mukhtar of the village in which the execution is to be effected, or, (in case of the Mukhtar’s absence, illness, or incapability or when the Mukhtar is himself the judgment debtor) of a member of the village commission, and shall seize in his company so much of the judgment debtor’s movable property as in the bailiff’s opinion would be amply sufficient to cover the amount on the writ and the expenses of the levy, and place him in possession thereof.
(2) The Mukhtar or such member of the village commission shall keep the property seized in safe custody and sell it at auction to the [*266] highest bidder after giving notice of the intended sale in the village, so soon as may be practicable after the lapse of three days “after seizure.”
In Re Overseas Aviation Engineering (G.B.) Ltd., (1962) 3 ALL E.R. p. 12, Lord Denning M.R. in his judgment at p.16 considering the term “execution” said:-
“The word ‘execution’ is not defined in the Act. It is of course a word familiar to lawyers. Execution means, quite simply, the process for enforcing or giving effect to the judgment of the Court: and it is ‘completed’ when the judgment creditor gets the money or other thing awarded to him by the judgment. That this is the meaning is seen by reference to that valuable old book ‘Terms de la Ley’, where it is said:
‘Execution is, where judgment is given in any action, that the plaintiff shall recover the land, debt, or damages, as the case is: and when any writ is awarded to put him in possession, or to do any other thing whereby the plaintiff should the better be satisfied his debt or damages, that is called a writ of execution; and when he hath the possession of the land, or is paid the debt or damages, or hath the body of the defendant awarded to prison, then he hath execution.’ [*267]
The same meaning is to be found in Blackman v. Fysh, when Kekewich, J., said that execution means the process of law for the enforcement of a judgment creditor’s right and in order to give effect to that right. In cases when execution was had by means of a common law writ, such as fieri facias or elegit, it was legal execution: when it was had by means of an equitable remedy, such as the appointment of a receiver, then it was equitable execution. In either case it was ‘execution’ because it was the process for enforcing or giving effect to the judgment of the Court.”
It is clear from the above Rules and authority, that, the term “execution” is the process for enforcing or giving effect to the judgments of the Court and when a writ for the seizure and sale of the movable property is passed to a bailiff, he, upon receipt of it, shall take all steps necessary for its prompt and due execution and the execution of it is completed when the judgment creditor gets the money awarded to him by the judgment.
In my judgment the said bailiff’s visit to the house of the accused and his efforts for the payment off by the 1st accused of the amount of the judgment debt form part of the process of executing that writ. It is only when a judgment [*268] debtor refuses to pay off the sum specified in the writ, that the bailiff in the company of the Mukhtar of the community will proceed to seize the movable property of the debtor, if any, and so much, as in the bailiff’s opinion would be amply sufficient to cover the amount on the writ and the expenses of the levy, and place the Mukhtar in possession thereof.
For the above reasons, I find that the argument of the counsel of the accused is without any substance and I disregard it.
What now remains for consideration is whether the behaviour of both the accused at the material time amounts to an obstruction.
In Hinchliffe v. Sheldon, (1955) 3 ALL E.R. p.406, Lord Goddard, C.J. in his judgment at p.408 a case of wilfully obstructing a constable when in the execution of his duty, had this to say about “obstructing”:
“I think that the police, in the execution of their duty, intended to get into the inn. They wanted to get in before anybody in the inn had an opportunity of putting things away and if they had knocked at the door and the licensee had not opened the door for several minutes, the justices could have found that the licensee was obstructing the police. [*269]
‘Obstructing’ means, for this purpose, making it more difficult for the police to carry out their duties. It is quite obvious that the appellant was detaining the police while giving a warning; he was making it more difficult for the police to get certain entry into the premises, and the justices were entitled to find as they did, therefore the appeal is dismissed.”
In Sykes v. Director of Public Prosecutions, (1961) 3 ALL E.R. p.33, Lord Denning in his judgment at page 41 dealing with the offence of wilfully obstructing any officer when in the execution of his duty said:
“……. It is an offence by statute wilfully to obstruct any constable or peace officer when in the execution of his duty. This offence is not confined to physical obstruction. If a policeman was investigating a crime, and someone wilfully misled him by false information, he might well be guilty of this offence. But it is one thing to obstruct a policeman. It is another thing to refuse to help him. Take the case in Australia where a man, who was shot and wounded in an affray, refused to disclose to the police the name of the person who had shot him. It would seem that he was engaged in gang warfare, for he said that he would ‘cop it sweet’ if he did disclose the name. [*270] He said he would attend to the matter himself, that is, take his own revenge. No civilized community can tolerate such behaviour. But his offence is not obstructing the police. It is misprision of felony.”
From the facts as I have accepted them and from the above mentioned authorities, I find that those threats of the 1st accused and also his refusal to follow the bailiff, who was accompanied by the Mukhtar of the community, and to go to his house, and the refusal of the 2nd accused to open the house, wherein they both resided, to search and seize any movable property belonging to the 1st accused and found therein, amount to wilfully obstructing the said bailiff with the execution of the above writ.
In the result, I find that the prosecution have proved their case against both the accused beyond all reasonable doubt and therefore I find them both guilty as charged.