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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1985) 1 CLR 387
1985 May 14
[A. LOIZOU, J.]
IN THE MATTER OF ARTICLE 155.4 OF THE
CONSTITUTION AND S. 3 OF THE COURTS OF
JUSTICE (MISCELLANEOUS PROVISIONS) LAW, OF 1964,
AND
IN THE MATTER OF AN APPLICATION BY:
1. JULIA S. HJISOTERIOU
2. J.U.E.L. (HOTEL) CO., LTD., FOR LEAVE TO
APPLY FOR AN ORDER OF CERTIORARI.
(Civil Application No. 24/85).
Certiorari-Leave to apply for-Principles applicable.
Civil Procedure-Interim order made upon an ex parte application-Whether it can be discharged upon an ex parte application made by the respondent-Order 48, rule 8(4) of the Civil Procedure Rules.
The applicants were the owners of certain premises at Limassol which they leased to the defendants. After filing an action against the tenants the applicants applied ex parte seeking an interim order preventing the tenants from carrying out any building works on the premises in question. The application was granted on the 13th March, 1985 on terms as to security and was made returnable on the 16th March, 1985 whereupon the defendants opposed same. On the 19th of that month the defendants filed their notice of opposition supported by an affidavit. Its hearing was fixed on the 21st March, 1985 but was adjourned to the 29th March 1985. On the 22nd March 1985 the defendants applied ex parte for an order canceling and or discharging the interim order which was granted ex parte and the trial Judge discharged the order. Hence an application for leave to apply for an order of certiorari quashing the discharge order. The application was mainly based on the ground that the Court wrongly and in excess of power discharged the ex parte order in view, in particular, of Order 48, rule 8(4) of the Civil Procedure Rules.
Held, that for leave to apply for an order of certiorari to be granted there must firstly be shown at this stage that there exists a prima facie case on the face of the record, that the decision was erroneous in point of Law, that is not an unanswerable case but, an arguable one, and secondly provided, the requisite grounds exist certiorari will lie although a right of appeal has been conferred by statute; that on the totality of the material placed before the Court the necessary, prerequisites exist for the grant of leave; and that, accordingly, the applicants will be granted leave to apply for an order, of certiorari.
Application granted.
Cases referred to:
In re Andreas Constantinou (1983) 1 C.L.R. 410;
In re Economides and Others (1983) 1 C.LR. 929;
In re Kakos (1985) 1 C.L.R. 250;
Attorney-General of the Republic and Another (No. 1) v. Savvides (1979) 1 C.L.R. 323, at p. 325.
Application.
Application for leave to apply for an order of certiorari, for the purpose of quashing an order given by a District Judge of the District Court of Limassol (Hadjihambis, D.J.) on the 27th March, 1985 by which he discharged a previous order made by him ex parte on the 13th March, 1985.
Chr. Clerides with L. Parparinos, for the applicants.
Cur. adv. vult.
A. LOIZOU J. read the following judgment. This is an application for leave to apply for an order of certiorari for the purpose of quashing an order given by a District Judge of the District Court of Limassol on the 27th March, 1985, by which he discharged a previous order made by him ex parte on the 13th March, 1985.
The facts of the case appear sufficiently in the affidavit filed in support of the application and the documents attached thereto. In brief they are as follows:
The applicants are the landlords who by a contract of lease dated 30th April 1984, let their premises known as the Limassol Palace Hotel. It has been claimed by the applicants that it is an express term of the said contract of lease that the tenants should not effect alterations to the premises or to its installations including the electrical installation and the water supply without the written consent of the landlords.
It was claimed, by the applicants that in breach of the1 said term the tenants effected certain structural and other alterations to the premises in question and in consequence thereof filed in the District Court of Limassol action No. 1251/85.
Upon filing the said action they applied ex parte seeking, an interim order against the defendants preventing them from carrying out any building work or other construction work in relation to the said hotel and factory and other sites referred to in the said contract of lease and ordering them to put an end to any such works. The application was granted by the learned trial Judge on terms as to security and was made returnable on the 16th March, 1985 whereupon the defendants opposed same. On the 19th of that month the defendants filed their notice of opposition supported by an affidavit of even date, attached thereto. Its hearing was fixed on the 21st March, 1985 but was adjourned to the 29th March 1985.
On the 22nd March 1985, however, the defendants applied ex parte for an order cancelling and or discharging the interim order granted ex parte on the 13th March, 1985.
Although, as put by the learned trial Judge in his ruling of the 27th March, 1984, "at the hearing of the present application learned counsel for the applicants to whose knowledge it had come that the application was fixed, appeared in order to express his views - and assist the Court".
Indeed the arguments advanced by Mr. Christos Clerides are summed up on the said ruling as follows:
"I also had the benefit of Mr. Clerides' views who argued that the application of Mr. Melas could not be entertained because 0.48, r.8(4) of the Civil Procedure Rules requires that an application to discharge an ex parte order must be made by summons and that s. 9 of the Civil Procedure Rules, on which Mr. Melas based his ex parte application, does not apply in cases in which it is expressly stated: that the application must be made by summons but only applies to applications for orders which the Court can make under the Civil Procedure Law and, in particular, Under sections 4 and 5. He further expressed the view that the application, having been based on s. 32 of the Courts of Justice Law, satisfied the requirements of the Law and that there was power in the Court to make an ex parte application under s. 32 of the Courts of Justice Law."
The learned trial Judge ultimately for the reasons given in his ruling discharged, as already mentioned the order made ex parte on the 13th March, 1985 and in respect of which there were pending the proceedings before him and fixed for hearing on a later date.
The grounds upon which leave is sought are the following:
"1. The Court wrongly and in excess of power discharged the ex parte order, its previous order dated 13th March, 1985, in view in particular of Order 48, rule 8(4).
2. The Court wrongly and in excess of power relied on section 9 of Cap. 6 (The Civil Procedure Law as giving to him the power to discharge by an ex parte application a previous judgment/order of the same Court.
3. The Court wrongly and in excess of power annulled by ex parte application a previous order of the same Court and Judge with the reasoning that:-
(a) There were urgent and peculiar circumstances and
(b) The original order of the Court should be discharged as the ex parte application was not based on section 9 of Cap. 6, because he did not take into account that:-
(a) The Court itself when granting the order did not dismiss the application for the reasons appearing in (b) above.
(b) The Court itself gave direction that an objection be filed on point (b) above for the issue to be tried.
(c) The Court could not discharge the order for the reason which it gave as it acted in the circumstances as an Appellate Court from its own decisions.
(d) The Court could not discharge the order for the reason that (a) as the subject of urgency had been decided by its directions that the opposition be fixed for determination on the 29th March, 1985, and that (b) the omission basing the original ex parte application for the issue of the order is explained fully by the case of Kouppas v. Vassiliades (1981) 1 J.S.C. 120, on which wrongly the Court- relied and furthermore the reference of section (9) (1) to peculiar circumstances does not include legal points but only factual issues.
4. The Court wrongly decided that an ex parte application by virtue of section 9 of Cap. 6 cannot be based on the inherent power/jurisdiction of the Court in the absence of an express provision- on the subject.
5. The Court and the learned trial Judge HadjiHambis acted in excess of power."
The principles governing the granting of leave to apply for an order of certiorari have been expounded in a number of cases. One may refer to the more recent ones namely in Re Andreas Constantinou (1983) 1 C.L.R. 410, in Re, Phaedon Economides and Others (1983) 1 C.L.R. 929 and by the Full Bench in Re Kakos (1985) 1 C.L.R. 250. I need not therefore repeat them here. The two basic principles that are relevant to this application are firstly that there must be shown at this stage that there exists a prima facie case on the face of the record, that the decision was erroneous in point of Law, that is not an unanswerable case but an arguable one, and secondly provided the requisite grounds exist certiorari will lie although a right of appeal has been conferred by statute. (See the Attorney- General of the Republic and Another, (No. 1) v. George Savvides (1979) 1 C.L.R. 323 at p. 325 et seq).
On the totality of the material placed before me and the legal issues raised thereon I make the following order as I am satisfied that the necessary prerequisites exist:
(a) The applicants are granted leave to apply in this, case for an order of certiorari within one month from today. Any opposition to be filed within one month thereafter.
(b) All proceedings in relation to the said order dated the 27th March, 1985 are hereby stayed for one month as from to-day and if the applicants apply within that period for an .order of certiorari then such stay shall continue to be operative until further order of this Court, provided that any party affected by the stay of proceedings ordered as above shall be at liberty to show cause at any time why such stay should not continue to be operative.
(c) Copy of this letter to be delivered to the Registrar of the District Court of Limassol.
Order accordingly.