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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V8) 1 CLR 122
1909 April 24
[TYSER, C.J. AND BERTRAM, J.]
POLICE
v.
MEHMED ALI.
CRIMINAL LAW-ENCROACHMENT ON PUBLIC SQUARE-JURISDTCTION OF MAGISTERIAL COURT-TITLE TO LAND-OTTOMAN PENAL CODE, ART. 264- POWER OP SUPREME COURT TO RESTRAIN EXCESS OF JURISDICTION.
The principle that in cases in which the title to immovable property comes into question, the criminal jurisdiction of a Magisterial Court is ousted does not apply to cases in which the immovable property in question is claimed as the property of the public, and in which the right of the public to the property is the foundation of the jurisdiction of the Magistrate.
The Defendant was charged under Art. 264 of the Penal Code with encroaching on a public square and claimed that the place in question was within the boundaries of his qochan.
HELD: That the Magistrate was entitled to enquire into the title of the property and that his jurisdiction was not ousted.
The question whether the Supreme Court has an inherent power to restrain excess of jurisdiction in inferior Courts raised but not decided.
This was an application to the Court to quash a conviction of the Magisterial Court of Famagusta. The applicant was convicted under Art. 264 of the Ottoman Penal Code of encroaching on a public square. He produced a qochan based upon a hojet, and claimed that the alleged square was his private property. The Magistrate decided that the qochan did not include the square, convicted him, inflicted a fine and ordered the removal of the obstruction.
Amirayan appeared for the prosecution and questioned the jurisdiction of the Court to entertain the application.
Michaelides for the Applicant. I appeal to the Court as a Court of Cassation. The Supreme Court, as the highest Court of the Island must have an inherent power of restraining inferior tribunals within the limits of their jurisdiction. Here the Magistrate had no right to enquire into the title to immovable property. He did so, and inflicted a fine, and from a fine no appeal lies. I have no other remedy, but an application to this Court.
The Court dismissed the appeal.
Judgment: THE CHIEF JUSTICE: This appeal must be dismissed. Even if we possessed the jurisdiction contended for (which is a point we need not determine), we could not in this case make the order asked for.
It may be a general rule that where the title to immovable property comes into question, the criminal jurisdiction of a Magisterial Court is ousted, but this rule cannot apply where the title is the very question which the Magistrate has to decide.
This is the .rule laid down by the English authorities. In Ex park Vaughan (1866) L.R., 2, Q.B:, 116, Cockburn, C.J., said, "where the title to property comes into question, no doubt the jurisdiction of justices is ousted, but that doctrine cannot apply to cases where the title is an essential element in the enquiry which the justices have to determine." So also in R. v. flung, 52 L.J., M.C., 55, where an Act gave the Magistrates jurisdiction over the offence of "throwing or laying down stones, iron, etc., or other materials in a Street," and the Defendant maintained that the spot on which certain iron had been laid down was his private property, it was held that the jurisdiction of the Magistrates was not ousted as the Act gave them power to determine what was a street.
Under this article of the Penal Code the Magistrate was bound to enquire whether the place in dispute was a public square, and if a claim was set up that it is private property he was bound to enquire into the title.
There may be cases in which a Magistrate, exercising a criminal jurisdiction, would not have power to enquire into a question of title, but this is not one of those cases.
BERTRAM, J., concurred.
Appeal dismissed.