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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1982) 1 CLR 831
1982 May 26
[TRIANTAFYLLIDES, P.]
IN THE MATTER OF AN APPLICATION BY
CHRISTOS SAVERIADES AND EMILIA CHR. SAVERIADOU
FOR LEAVE TO APPLY FOR AN ORDER OF PROHIBITION.
(Civil Application No. 7/82).
Prohibition—Excess of jurisdiction—Earliest time for applying for prohibition—No issue of lack of jurisdiction arising in this case but only the issue whether or not inferior Court should refuse to grant certain applications—Application for leave to apply for order of prohibition refused.
The applicants in this case sought leave to apply for an order of prohibition preventing the District Court of Nicosia from dealing with applications of the Cyprus Popular Bank (Finance) Ltd. by means of which there is sought a writ of attachment and sequestration as against the first applicant and an order calling upon both applicants to show cause why they should not be imprisoned or ordered to pay a fine on the ground that they failed to comply with an interim order made by the said Court on the 4th September, 1981.
The application for an order of prohibition was based on the ground that the District Court of Nicosia has been divested of jurisdiction to deal with the above application because subsequent to the making of its orders which the applicants were alleged to have disobeyed there was reached an agreement between the parties by virtue of which it was agreed that the said orders would not be executed by the Bank.
Held, that though "prohibition may be applied for as soon as the complete absence of jurisdiction is apparent on the record of the proceedings of the inferior court, without the question of jurisdiction being raised in that Court" in the present instance it is not contended that the District Court is going to usurp jurisdiction which it never possessed; that, therefore, there does not arise at all in this connection an issue of lack of jurisdiction, but only the issue whether or not the District Court of Nicosia should, on proper cause been shown, refuse to grant the applications in question of the Cyprus Popular Bank (Finance) Ltd., if the District Court is satisfied that by a subsequent agreement, or otherwise, its orders concerned should not be enforced; that if the applicants come to be aggrieved by any decision in this respect of the District Court they can challenge it on appeal; accordingly the application for leave to apply for an order of prohibition will be refused.
Application refused.
Application.
Application for leave to apply for an order of prohibition preventing the District Court Nicosia from dealing with an application in action No. 5238/80 for the issue of a writ of attachment and an application calling upon the applicants to show cause why they should not be imprisoned or ordered to pay a fine on the ground that they failed to comply with an interim order made by the said District Court.
A. Eftychiou, for the applicants.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following decision. The applicants seek leave to apply for an order of prohibition preventing the District Court of Nicosia from dealing with the following applications:
(a) An application which was filed on 26th March 1982, in action No. 5238/80, in the District Court of Nicosia, by the Cyprus Popular Bank (Finance) Ltd., as the plaintiffs in that action, and by means of which there is being sought, as against applicant Christos Saveriades, in his capacity as a defendant in that action, a writ of attachment and sequestration of his property, on the ground that he has failed to comply with an order made in the action on 2nd September 1981.
(b) An application which was filed on 26th March 1982, in action No. 3978/81, in the District Court of Nicosia, by the Cyprus Popular Bank (Finance) Ltd., as the plaintiffs in that action, and by means of which there is being sought as against both the applicants, in their capacity as the defendants in that action, an order calling upon them to show cause why they should not be imprisoned or ordered to pay a fine, as the District Court of Nicosia may decide, on the ground that they failed to comply with an interim order made by the said District Court on 4th September 1981.
Both applications were initially fixed before the District Court for hearing on 26th April 1982 and they now stand fixed for hearing tomorrow, the 27th May 1982. The present application for leave to apply for an order of prohibition was filed on 24th May 1982.
As it appears from the Statement filed in support of this application it is being contended by the applicants that the District Court of Nicosia has been divested of jurisdiction to deal with the aforementioned two applications, which are now before it, because, subsequent to the making of its orders which the applicants are alleged to have disobeyed, there was reached an agreement between them and the aforesaid Bank, on 18th Feburary 1982, by virtue of which it was agreed, allegedly, that the said orders would not be executed by the Bank; and it has been submitted that, as a result of that agreement, the District Court was deprived of its jurisdiction to deal with the applications of the Bank seeking to enforce the said orders.
In Halsbury's Laws of England, 4th ed., vol. 1, p. 142, the following are stated, in paragraphs 135 and 136:
"135. When court has exceeded jurisdiction. Prohibition will issue as soon as the inferior tribunal proceeds to apply a wrong principle of law when deciding a fact on which the jurisdiction depends. Where proceedings are pending before an inferior court, part of which is within, and part is outside, the jurisdiction of the Court, no prohibition lies until the court has actually gone beyond its competency and jurisdiction. In any event, where the jurisdiction of the inferior court depends on the judicial determination of facts the order does not lie until the court has wrongfully on these facts purported to give itself jurisdiction.
136. Earliest time for applying for prohibition. Prohibition may be applied for as soon as the complete absence of jurisdiction is apparent on the record of the proceedings of the inferior court, without the question of jurisdiction being raised in that court.
Even though the jurisdictional defect is not patent, an applicant will not be required first to take objection before the tribunal whose proceedings he seeks to impugn when the question is one of law, not dependent on disputed issues of fact, or when he is contending that the tribunal is improperly constituted because of the likelihood of bias.
In any event it appears that prohibition may issue once steps have been or are about to be taken involving a usurpation of jurisdiction".
In the present instance it is not contended that the District Court is going to usurp juridiction which it never possessed; it has only been argued that it has been divested of jurisdiction—which it normally possesses—because of the alleged agreement between the parties to the aforementioned two civil actions not to enforce orders made in such actions.
In my view there does not arise at all in this connection an issue of lack of jurisdiction, but only the issue whether or not the District Court of Nicosia should, on proper cause been shown, refuse to grant the applications in question of the Cyprus Popular Bank (Finance) Ltd., if the District Court is satisfied that by a subsequent agreement, or otherwise, its orders concerned should not be enforced; and if the applicants come to be aggrieved by any decision in this respect of the District Court they can challenge it on appeal.
In view of the foregoing I refuse to grant leave to the applicants to apply for an order of prohibition.
Application refused.