clr/1962/1962_1_129.pdf

(1)dealing with applications in the first instance to District Courts for a maintenance the decision of the Supreme Constitutional Myrianthi order—Therefore, Court in the case of Tyllirou and Charalambos Tylliros 3 R.S.C.C. 21, de­ claring section 40

(1)of the Courts of justice Law, I960, unconsti­ tutional, has no application in matters within section 6 of Cap.16—On the controry, on the face of it Cap. 16 appears to give jurisdic­ tion to the District Certiorari—Emanates Courts. from the High Court under article 155. 4 of the Constitution—Grounds of quashing inferior court's decision- Error of law apparent on the face of the record—Scope of certiorari. Section 40

(1)of the Courts of Justice Law, I960 (Law of the Republic N o . 14/60) reads as f o l l o w s : " I f ' a n y ecclesiastical' tribunal of the G r e e k - O r t h o d o x Church or of a Church t o which the provisions of paragraph I of article 111 of the Cons­ t i t u t i o n apply (hereinafter referred t o in this section as " t h e C h u r c h " ) w o u l d have power t o entertain a matrimonial cause brought by a wife in respect of her marriage, and t h e husbandhas been guilty of wilful neglect t o provide reasonable mainte­ nance for his wife or infant children of the marriage, a President of a District C o u r t or a District Judge, on application by the wife, may make a maintenance o r d e r directing the husband to make to her such periodical payments as may be j u s t " Section 6 of Cap.16 (supra) provides for application t o the District Courts in Cyprus for confirmation of maintenance orders made in England or Ireland. 129 i „ h AMORNM (itNtRAI I'. Ί Ά NAY IDI is (. HfilSIOII 1962 June 27 T H E ATTORNEYGENERAL v. PANAYIOTIS CHRISTOU On the 25th January, 1962, the Assistant Secretary to the Ministry of Justice sent to the Registrar of the District Court of Larnaca under the provisions of section 6of the Maintenance Orders (Facilities for Enforcement) Law, Cap. 16 a certified copy of a provisional maintenance order against Panayiotis Christou (respondent) of Larnaca for the benefit of his wife Myrianthi P.Christou and his infant children, of London, made by the Clerkenwell Magistrate's Court, London, England,together with the depositions of witnesses and a statement of the grounds on which the order might have been opposed with a requisition that a summons be issued catling'upon the said Panayiotis Christou to show cause why that order should not be confirmed by the District Court of Larnaca. On the 17th February, 1962, the District Court of Larnaca authorised the Issue of the summons applied for which was duly issued and served upon the.respondent. On the date of the hearing of the aforesaid application the respondent although duly served with the summons failed to appear, but the Court, instead of proceeding to deal with the application before it, held that, in view of the decision of the Supreme Constitutional Court in the case Myrianthi Tyllirou and CharalambosTylliros3R.S.C.C. 21, it had nojurisdiction to deal with the application. In that decision the Supreme Constitutional Court held that an application for maintenance under section 40

(1)of the Courts of Justice Law, I960 (supra) is, by its very nature, a matter of civil dispute "relating to personal status" in the sense of articles 87, 152 and 160 of the Constitution, and consequently, the enactment of.a provision such assectlon 40

(1)(supra)was, in view of those articles, expressly reserved t o the Communal Chambers, and not within the competence of the House of Representatives and that, therefore, the aforementioned section 40

(1)is unconstitutional. The Attorney-General applied for an order of certiorari to remove into the High Court and quash the said order made by the District Court of Larnaca upon the ground that— (

1. a)The said order was wrong in law (
2. b)There was an error of law apparent on the face of the record ; and (
3. c)The said order was contrary to the provisions of the Maintenance Orders (Facilities-for Enforcement) Law, Cap.16. 130 Held : ( I ) The proceedings before t h e District C o u r t of Larnaca was not an application for a maintenance o r d e r under the provisions of section 40

(1)o f t h e Courts o f Justice Law, 1962 June 27 T H E ATTORNEYGENERAL l960,'(Law of the Republic N o . 14/60) but proceedings under V. section 6of t h e Maintenance O r d e r s (Facilities for Enforcement) PANAYIOTIS CHRISTOU Law, Cap. 16, for confirmation o f a provisional maintenance order made by a C o u r t in England according t o the Laws of England.

(2)Therefore, the decision o f t h e Supreme C o n s t i t u t i o n a l C o u r t inMyrlanthi Tyllirou and Charalambos Tytliros3 R.S.C.C.2I (supra) was not an a u t h o r i t y f o r t h e t r i a l C o u r t t o hold that it had no jurisdiction t o entertain the application. O n t h e o t h e r hand, t h e decision o f the Supreme Constitutional C o u r t just referred t o is a decision under paragraph 2 of article 144 of the C o n s t i t u t i o n and is only binding on the C o u r t by which the question has been reserved and on the parties t o the p r o ceedings and It operates as t o make section 40

(1)o f t h e Courts of Justice Law, I960, inapplicable t o such proceedings only.

(3)Under the legislation in force in the Republic only the D i s t r i c t Courts and no o t h e r Courts o r tribunals have t h e power and machinery t o enforce maintenance orders made by aC o u r t of the U.K. as provided by section 8 of Cap.16 and t h e Maintenance Orders (Facilities for Enforcement) Rules made under the Law.

(4)Since no objection was raised as t o the jurisdiction and in the absence of any express provision ousting jurisdiction o r any direct a u t h o r i t y declaring t h a t the D i s t r i c t C o u r t had no jurisdiction in the matter, it was incumbent on the D i s t r i c t C o u r t t o proceed and deal w i t h t h e matter before it under t h e provisions of section 6 of Cap.· 16.

(5)For the above reasons, there is an e r r o r of law apparent on the face of the record o f the D i s t r i c t C o u r t o f Larnaca and, therefore, the proceedings reviewed must be quashed. Order of certiorari to issue. Cases referred t o : Myrianthi Tyllirou and Charalambos Tylliros 3 R.S.C.C. 2 1 , distinguished : Rex v. Northumberland Compensation Appeal Tribunal. Ex-parte Snaw(l952) I K.3. 3 3 8 ( C . A . ) , principles laid d o w n by Lord Denning at p.p. 347 and 348, and L o r d Morris at p.357, applied. 131 1962 June 27 T H E ATTORNEYGENERAI. V. PANAYIOTIS CHRISTOU Application foranOrderof Certiorari. Application for an order of certiorari to remove into the High Court and quash the order made by the District Court of Larnaca (Vassiliades, D.J.)on the3rdMarch, 1962. in Maintenance Application No.1/62. A. Gavrielides with A. Frangos fortheapplicant. Respondentinperson. JOSEPHIDES, J. : This is an application for an order of certioraritoremove into this Court andquash theorder made by the District Court of Larnaca on the3rd March, 1962,in Maintenance Application No. 1/62 upon the ground that— (

1. a)the said order waswrong inlaw; (
2. b)there is an error of lawapparent on the face ofthe record ;and (
3. c)the said order wascontrary to the provisions ofthe Maintenance Orders (Facilities for Enforcement) Law, Cap.16. The order of the District Judge·as drawn up reads as follows : "Upon the presentation of an application for confirmation of a Maintenance Provisional Order made on the 5th December, 1961,at theClerkenwell Magistrates' Court, in the County of London, England, the respondent notappearing although duly served with a summons to appear andshow cause whythesaid Provisional Order should notbeconfirmed, this Court Doth Hereby Order that, in view of the decision of the Supreme Constitutional Court in Case No. 128/61, it hasnojurisdiction to hear this application". The Supreme Constitutional Court in Case No.128/61, (Myrianthi Tyllirou andCharalambos Tylliros),dated the22nd January. 1962, declared that "subsection (I) of section 40of the Courts of Justice Law, 1960(Law No.14of I960 enacted on the 17th December. 1960) is unconstitutional as being contrary to, and inconsistent with, articles 61.87, 152and 160". The question which wasreferred bytheDistrict Courtof 132 Nicosia to the Supreme Constitutional Court, under the provisions of article 144, paragraph 1, of the Constitution, was "whether having regard to article 111, paragraph 1 of the Constitution subsection

(1)of section 40 of the Courts of Justice Law No. 14 of I960 is wholly or partially unconstitutional " Thefacts in the present case,as appearing in the affidavit filed in support of the application for leave to apply for an order of certiorari, are that on the 25th January, 1962, the Assistant Secretary to the Ministry of Justice sent to the Registrar of the District Court of Larnaca, under the provisions of section 6 of the Maintenance Orders (Facilities for Enforcement) Law, Cap. 16, a certified copy of a provisional maintenance order against Panayiotis Christou of Larnaca (the present respondent) for the benefit of his wife Myrianthi P. Christou and his infant .children, of London, made by the Clerkenwell Magistrates' Court, London, England, together with the depositions of witnesses and a statement*of the grounds on which the order might have been opposed, with a requisition that a summons be issued calling upon the said Panayiotis Christou (respondent) to show cause why that order should not be confirmed by the District Court of Larnaca. On the 17th of February, 1962, the District Court of Larnaca authorized the issue of the summons applied for which was duly issued and served upon the respondent on the 19th February, 1962. On the date of the hearing of the aforesaid application, i.e. on the 3rd March, 1962, the respondent, although duly served with the summons, failed to appear but the Court instead of proceeding to deal with the application before it held that, in view of the aforesaid decision of the Supreme Constitutional Court in Case No. 128/61, it had nojurisdiction to hear the application. Ishallfirstdeal with thelawapplicable to proceedings for certiorari. Certiorariissues out of the High Court of Cyprus (under article 155..4 of the Constitution), in the same way as it issues out of the High Court in England, against any inferior Court or body or person having legal authority to determine questions affecting the rightsofcitizensand having the duty to actjudicially. It orders the removal of the record to the High Court, which will, if a defect of process is disclosed, order that the proceedings reviewed be quashed. The 133 1962 June27 THE ATTORNEY GENERAL v. PANAYIOTIS CHRISTOU Joscphidcs,J. 1962 June27 T H E ATTORNtYGENERAL V. PANAY κHIS CHRISIOU Josephides. J. grounds on which the decision will be quashed include any excess or want of jurisdiction, error of law on the face of the record,bias or interest on the part of the persons making the decision, and-the obtaining of the decision by fraud or per­ jury. This is a power conferred on the High Court in the exercise of its supervisory jurisdiction and controlling powers over inferior Courts. In the case of Rex v. Northumberland Compensation Appeal Tribunal. Ex parte Shaw

(1952)1 K B . 338 (C.A.) Lord Justice Denning said (at page 348) : "Of recent years the scope of certiorari seems to have been somewhat forgotten. It has been supposed to be confined to the correction of excess of jurisdiction, and not to extend to the correction of errors of law; and several Judges have said as much. But the Lord Chief Justice has, in the present case, restored certio­ rari to its rightful position and shown that it can be used to correct errors of law which appear on the face of the record, even though they do not go to jurisdic­ tion". Lord Justice Denning also said (at page 347): "The King's Bench does not substitute'its-own views for those of the tribunal, as a Court of Appeal would do. It leaves it to the tribunal to hear the case again. and in a proper case may command it to do so". Lord Justice Morris in the same case, at page 357, said: "It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of theissue raised in the proceedings. It exists to correct error of law where revealed on the face of an order or deci­ sion, or irregularity, or absence of, or excess of, juris­ diction where shown. The control is exercised by removing an order or decision, and then by quashing it". Now, with those authorities in mind 1 shall proceed to deal with the points raised in the present case. It was submitted on behalf of the Attorney-General that this was an application made underthe provisions of theMain­ tenance Orders (Facilities for Enforcement) Law, Cap. 16 for confirmation of a maintenance order made by an English 134 Court and that the District Judge was wrong in refusing to hear the application relying on the decision of the Supreme Constitutional Court in Case No.128/61. It was further submitted- that thai decision concerned the constitutionality of the provisions of sub-section

(1)of section 40in the Courts of Justice Law,

1. Here, it was said, we are concerned with the enforcement of a provisional maintenance order made by an English Court and that the competent Court to deal with the question of confirmation of the order is the• District Court and not a Court established under a communal law, or the Ecclesiastical Tribunal of any Church. As this was not an application under the provisions of section 40 of the Courts of Justice Law, the aforesaid decision of the Supreme Constitutional Court was irrelevant and inapplicable to the present proceedings. It was further contended on behalf of the Attorney-General that the provisions of Cap.16 are not within the competence of the Communal Chamber or any communal Court or Ecclesiastical Tribunal as these Tribunals have nojurisdiction to confirm or enforce an order made by a foreign Court. Finally, it was contended that the provisional maintenance order made by an English Court does not come within the meaning of the expression "civil dispute relating to personal status" which occurs in articles 87, 152 and 160 of the Constitution ; and that the maintenance obligation which is being enforced by the English Court is not an obligation envisaged by the Canon Law of the Greek-Orthodox Church but an obligation imposed by the provisions of the law in force in England ; and that, consequently, the confirmation of the English Maintenance order under the provisions of Cap.16 by the District Court does not come within the ambit of article 111 or articles 87, 152 and 160 of the Constitution. The respondent, who appeared in person, did not oppose the application nor did he make any submission on the point of law involved in this'case. In the formal order of the District Court of Larnaca it is staled, "this Court Doth Hereby Order that, in view of the decision of the Supreme Constitutional Court in Case No. 128/
2. il has nojurisdiction to hear this application". But, with gieat respect to the trial Judge, the proceeding before him was not .inapplication for a maintenance order under the .provisions of section
3. sub-section (I) of the Courts of >-(•-'• 135 1962 June 27 T H E ATTORNM· (iFNtRAL V. PANAYIOTIS CHRISTOU Joscphides, J. 1962 June 27 T H E ATTORNI YGfcNERAL V, PANAYIOTIS CHRIS*IOU Jnscphidcs.J. Justice Law, 1960, but proceedings under section 6 of the Maintenance Orders (Facilities for Enforcement) Law, Cap. 16, for confirmation of a provisional maintenanceordermade by a Court in England, according to the laws of England, and it would appear, therefore, that this is a different proceed­ ing. This is not the case where an application is made in the first instance to the District Court to make a maintenance order. The original proceedings here are taken before the English Court which has made the provisional maintenance order, and what the District Court of Larnaca is required to do. under the provisions of Cap. 16, is to decide whether to confirm or otherwise the maintenance order made by the English Court. Under the provisions of sub-section

(3)of section 6 of Cap.16, at the hearing before the District Court it is open to the respondent to raise a defence which he might have raised in the original proceedings before the English Court, under the English Law, but no other defence ; and the certificate from the English Court which made the provisional order stating the grounds on which the making of the order might have been opposed if the respondent had been a party to the original proceedings is conclusive evidence that those grounds are grounds on which objection may be taken. > Sub-section

(4)of section 6 provides that if the respon­ dent does not appear or, on appearing, fails to satisfy the Court that the order ought not to be confirmed, the Court may confirm the order either with or without modification. If, on the other hand, the respondent satisfies the Court that for the purpose of any defence it is necessary to remit the case to the English Court which made the provisional order for the taking of any further evidence, the Court fliay so remit the case (sub-section

(5)of section 6). By statute maintenance orders may be enforced recipro­ cally between the United Kingdom and most countries of the Commonwealth, including the Republic of Cyprus, and between different parts of the Commonwealth. The whole basis of the enforcement of these orders is reciprocity. If English maintenance orders are enforced in Cyprus then the English Courts will reciprocate in the case of maintenance orders made by the Cyprus Courts, This is provided under the English Maintenance Orders (Facilities for Enforcement) Act, 1920, section 12, and S.R. & Ο. 1921 No. 1395, which 136 continue to apply in relation to the Republic of Cyprus, under theprovisions ofthe English "Cyprus Act, 1960". Section 6 of our Cap.16 reproduces the provisions of section 4of the aforesaid English Actof 1920. Theobject of the confirmation ofa maitenance order isto have it enforced inCyprus in like manner asifthe order were for the payment ofacivil debt, and theofficers ofthe Court are enjoined to take allsuch steps forenforcing theorder asprovided in section 8 of Cap.16 andthe Maintenance Orders (Facilities for Enforcement) Rules made under that Law (see Rules Book

(1955), page 385). Under thelegislation in force in the Republic only theDistrict Courts, andnoother Courts or tribunals, have thepower andthemachinery to execute such orders. As the proceedings before the District Court of Larnaca was notan application under the provisions of section40, sub-section

(1),ofthe Courts ofJustice Law, 1960, thedecision ofthe Supreme Constitutional Court inCase No. 128/61 was noauthority forthetrial Judge tohold, asindeed he did hold, that in view of that decision hehadnojurisdiction to hear the application. Furthermore, as the decision ofthe Supreme Constitutional Court inthat case isadecision under paragraph 2ofarticle 144ofthe Constitution itis only binding on theCourt bywhich thequestion hasbeen reserved and ontheparties to theproceedings, andit operates as to make section 40

(1)ofthe Courts ofJustice Law, I960 inapplicable tosuch proceedings only (see paragraph 3ofArticle144). It wastheduly ofthetrial Judge toproceed todeal with the application forthe confirmation ofthe provisional maintenance order, under theprovisions ofCap.16, subject to any submissions which might have been made bytheparties. No question ofthe lack ofjurisdiction ofthe District Courtwas raised byany parly. In fact therespondent didnotappear before the'Court. If any relevant and material questions were raised byany party then itwasforthe"District Judgeto consider thematter andto apply all the relevant provisions of ihe laws and the Constitution, including the provisions of paragraph ,4ofarticle 188 rcgaiding thelaws saved under the .Constitution, ifapplicable: Onthe face ofitCap.16 appears to give jurisdiction to the District Court to deal with this matter and, without an> submission being made byany party astothelack ofjurisdiction andintheabsence ofany express 137 1962 June27 THE ATTORNLYGENERAL V. PANAYIOTIS CHRISTOU Josephides. J. 1962 — ^GENERAL"*" v. c Z T Josephides,J. provision ousting this jurisdiction or any direct authority declaring that the District Court had no jurisdiction in the m a U c r il w a s > incumbent on the District Judge to proceed to deal with the matter before him under the provisions of sec.ion 6 of Cap.!6. For all these reasons I hold that there is an error of law apparent on the face of the record of the District Court of Larnaca and I, therefore, direct that the proceedings reviewed be quashed. Order of certiorarito issue. No order as to costs. 138