1977 Febr. 19 — ANTONIOS MOUSKOS [TRIANTAFYLLIDES, P.] IN THE MATTER OF AN APPLICATION BY ANTONIOS MOUSKOS FOR AN ORDER OF CERTIORARI and IN THE MATTER OF ACTION NO. 696/69 IN THE DISTRICT COURT OF LARNACA BETWEEN: ANTONIOS MOUSKOS, Plaintiff, and LARNACA BEACH HOUSE LTD., AND ANOTHER, Defendants. (CivilApplicationNo. 3/71). Certiorari—Allegation of breachof rules of natural justice—Oral evidencesupplementingaffidavitevidence—Admissibility—Ana oralevidencebywitness whohadnotswornaffidavit—Whether receivable—Sections48 and2(definition of "civil proceeding") of the CourtsofJusticeLaw, 1960 (Law 14 of 1960). 5 Certiorari—Judge—Affidavit evidenceby. Certiorari—Natural justice—Right to be heard—Doesinclude, in a proper case, the right to legal representation—Articles 12.5(
- c)and 30.3(
- d)of the Constitution—Settlement (consent judgment) declared in applicant's presence and that of his \Q counsel and recorded by Court—Applicant alleging that he was no longer represented by his counsel and thatsettlement was declared without his consent—Delay in applying—No complaint by applicantabout any misconduct of either his counsel or of the Judges concernedmade to the Bar Council \g or to the Supreme Court—Applicant's version not believed— Not a proper case in which an order of certiorarimay be granted. Evidence—Affidavit evidence—Oral evidence—Certiorari proceedings. 20 Naturaljustice—Righttobeheard. The applicant in this case sought an order of certiorari to 100 quash the judgment given,by consent, by the District Court ot Larnaca, in civil action 696/69, on Maroh 31, 1971. 5 The subject-matter of the said action was a claim of the applicant (as plaintiff) for breach of contract regarding the payment of commission and was being tried by the President of the District Court of Larnaca and by a District Judge. The consent judgment in question was given after the action was partly heard and in uhe presence of both the parties anc' their counsel. )0 15 20 25 30 Applicant alleged that there has taken place an infringement of the rule of natural justice which required a fair hearing of the particular civil action, at which iie would have bee» represented by counsel of his own choice (as ordained, too.by Article 30 of the Constitution); and he complained*, in this respect, that on the date when the said judgment by consent was pronounced he had not been given enough time to find another advocate of his own choice, after he had disagree. regarding the further conduce of the case, with counsel who was till then appearing for him. Applicant further contended tnat ne never agreed to the settlement, on the basis of which the judgment by.consent was given, or—in the alternative— that he never consented freely to such settlement, and that he was never given to understand by the trial court that he was free not toconsentto such settlement. Defendant 2 in the action and the District Judge concerned swore affidavits** denying the allegations of the applicant and the then advocate for the applicant stated that he adopted the contents of these affidavits. In addition to the affidavit evidence the Court received orai evidence; and before dealing with the merits of the application it dealt with the procedural issue as to whether or not orai evidence was receivable on an application for certiorari. Held, (I) on theprocedural issue: 35
(1)That this Court has adopted the course oi receiving oral evidence because it felt that it was necessary, in the interests of justice, to allow oral evidence to be heard in the present case, in view of its rather special circumstances; that th?. •See his affidavit at pp. 107- 110 post. ••See these affidavits at pp. 110-111 and 111-112 post, respectively. 101 197V - Is: Febr IiJ R ~ ANTONIOS MOUSKOS 1977 F c b r 19 · JJ, R _ ANTONIOS MOUSKOS main grievance of the applicant was that, allegedly, he was not allowed by the Larnaca District Court to have a full trial of an action, which he had brought against the respondents, but was > instead, forced to have it settled, and had this Court not allowed him to give oral evidence, by way of supplementing his affidavit, 'hisgrievance, even mistaken,that he cannot geta fair hearing before the Courts would have been enhanced. (pp. 114-115 post). 5
(2)That as regards the three witnesses who were called by the applicant without having previously sworn affidavits for the 10 purpose of the present proceedings, their evidence wasprima facie receivable in view of the wide powers which are possessed by, interalia, this Court, under section 48 of the Courts of Justice Law, 1960 (Law 14/60) concerning the hearingof evidence in a civil proceeding and the present application is a 15 civil proceeding in the sense of the relevant definition in section 2of Law 14/60.
(3)That as the issue as to whether or not oral evidence was receivable has not been argued before this Court so as to enable it to decide one way or the other, the course which has 20 adopted in these proceedings is not to be regarded as creating a precedent. Held, (II) on themerits:
(1)That this Court does not believe at all the applicant's version that, then, a settlement was declared in his presence 25 and was recorded by two Judges in open Court, in the presence of two counsel, while the applicant was all the time protesting that he was not accepting such settlement; that it ispossible that the applicant was thinking, according to his own assessment of the case, that the settlement was not as beneficial 30 an outcome of his action as he had thought that he was entitled to, and that, therefore, he felt upset to a certain degree, but this Court does not believe his version that, in the end, he did not agree, even though after some hesitation, to the proposed settlement. 35
(2)That it is, indeed, quite significant that though the said settlement was declared on March 31, 1971, the application for leave to apply for certiorari was made only on May 12, 1971: that if the applicant had left the Larnaca District Court on March 31. 1971,full of indignation because, as he alleges, 40 a settlement was declared notwithstanding his vociferous and 102 categorical refusal to accept it, he would have been expected to have come to the Supreme Court much earlier, as soon as he would have had time to instruct counsel for this purpose. 5 10 15 20 25
(3)That moreover, the applicant did not complain either to the Supreme Court or to the Bar Council about what, alle gedly, happened on March 31, 1971; that the applicant did not complain about any misconduct of either his counsel or of the Judges concerned; and that it would, in the opinion of this Court, have been very wrong to declare and record a settlement in open Court, fully knowing, all the time, that one of the parties, the applicant, was no longer represented by the advocate who was declaring the settlement, and that such party wanted the case to be heard and determined and was refusing to consent to a settlement, as the applicant's version, which is not believed.
(4)That though an order of certiorari can be made when there has occurred a breach of the rules of natural justice; and that though the right to be heard does include in a proper case the right to legal representation, this Court has, in the light of all the foregoing, reached the conclusion that this is not a proper case in which to grant an order of certiorari for the purpose of removing to this Court and quashing the sub judice judgment by consent; and that, accordingly, this appli cation will be dismissed. Application dismissed. Cases referred to: R. v. Llanidloes Licensing Justices, Ex parte Davies [1957] 2 A11E.R. 610; 30 Rex v. Northumberland Compensation Appeal Tribunal. Ex parte Shaw [1952] 1 K.B. 338 at pp. 352. 353; R. v. Southampton Justices, ex parte Green [1975] 2 All E.R. 1073 at pp. 1078-1079; R. v. Wandsworth J.J., Ex parte Read; [1942] 1 All E.R. 56 at p. 57; 35 Tourapis v. Pelides, Liquidator for the Liquidation of the Tseri Co-operative Society
(1967)1C.L.R. 5; General Council of Medical Education and Registration of the United Kingdom v. Spackman [1943] 2 AH E.R. 337; Regina v. Woking Justices, Ex parte Gossage ΓΙ973] 2 W.L.R. 40 529. 103 1 9 7 7 Febr - 19 IN RE ANTONIOS MOUSKOS :977 e ^_ )N RE <V.NTONTOS MOUSKOS Application. Application for an order of certiorari to remove into the Supreme Court and quash the judgment given, by consent, by the District Court of Larnaca, (Georghiou P.D.C. 5 a n d Orohanides, D.J.) in civil action No. 696/69, on the 31st March, 1971. M. Christophides, for the applicant. G. Nicolaides, for the respondent. Ph. Clerides, advocate, appears in person, as a party affected by theproceedings. 10 Cur. adv. vult. Thefollowing judgment was delivered by:TRIANTAFYLLIDES, P.:In this case the applicant seeks an order of certiorari to quash the judgment given, by consent, by the District Court of Larnaca, in civil action 15 696/69, on March 31,1971. The relevant court record reads as follows: "31.3.1971. For plaintiff present. Mr. Ph. Clerides. For defendants Mr. G. Nicolaides. 20 Defendant 2 present, in her personal capacity and as director of defendant 1. AT THIS STAGE both counsel state that since last evening, they have discussed and reached a final settlement whereby the defendants will submit to 25 judgment in the sum of .£.550.-with £ 100.- against costs, payable as follows:(
- a)The costs shall be paid within five days. Out of these, £ 5 0 . - will be paid directly to Mr. Phivos Clerides in full settlement of his costs 30 including a sum of £ 5 0 . - which he had received from plaintiff. The balance of £50.· shall be paid to Mr. Achilles, the original advocate of the plaintiff. (
- b)The sum of £550.- in two equal monthly in- 35 stalments the first payable on the 30.4.1971 and thelast on the31.5.1971. 104 (
- c)Default of payment of any oneinstalment, will make the whole amount due and payable forthwith. 5 10 COURT: In the result, we enter judgment in favour of the plaintiff and against both defendants for £550.- with £100.- against costs, payable as fol lows:(
- a)£100.- within five days from to-day; (
- b)£275.- on the 30th April, 1971; (
- c)thebalanceof £275.-on the31st May, 1971. Provided that if defendants fail to pay on or be fore the 30.4.1971 the first instalment of £225.then the whole amount of this judgment shall be due and payable and liable to execution on the 1.5.1971. 15 31st March, 1971 President, District Court. (Sgd) G.M. Georghiou 20 I, J. Syrimi, Court Stenographer, 1st Grade, at tached to the District Court of Larnaca, hereby certify that this is a complete and correct typewritten transcript of the shorthand notes taken by me to the best of my skill and ability in Act. No. 696/69. 29th April, 1971. 25 30 35 (Sgd) J. Syrimi, Court Stenographer, 1st Grade". The reason for which the applicant seeks an order of certiorari to quash the above judgment by consent is that there has taken place, allegedly, an infringement of the rule of natural justice which required a fair hearing of the particular civil action, at which he would have been re presented by counsel of his own choice (as ordained, too. by Article 30 of the Constitution); the applicant com plains, in this respect, that on the date when judgment by consent was pronounced in the action in question he had notbeen given enough time to find another advocate of his own choice, after he had disagreed, regarding the further conduct of the case, with counsel who was till then appear ing for him; the applicant contends, further, that he never agreed to the settlement, on the basis of which the judg105 1977 Febr^i9 1Ν RE ANTONIOS MOUSKOS 1977 Febr. 19 IN RE ANTONIOS MOUSKOS ment by consent was given, or—in the alternative—that he «ever consented freely to such settlement, and that he was never given to understand by the trial court that he was free not to consent to such settlement. Another ground which was initially raised in support of 5 the present application, that is that one of the two Judges of the Full District Court in Larnaca which gave the judgment by consent (namely the, at the time, President of the District Court of Larnaca) was related to a shareholder of a company which wasdefendant 1in the action, was even- 10 tually abandoned and, therefore, it need not be dealt with in this judgment. When this application was filed it was served, at the instance of the applicant, on the Attorney-General of the Republic and on the said President of the District Court 15 of Larnaca, as being parties to the proceedings, but at the commencement of the hearing of the application counsel for the applicant stated that hedid not propose to continue the proceedings in relation to them. As, however, in view of the nature of the case, very serious allegations were 20 being made against both the two Judges involved in the pronouncement of judgment by consent in the action concerned, it was directed by the Court that both of them should be given notice of this application, and, furthermore. counsel who appeared for the applicant and declared 25 the settlement of the said action on his behalf was allowed to take part in the proceedings for the protection of his own interests. Tn support of the present application the applicant has 30 sworn an affidavit dated May 12, 1971. and he has produced the whole record of the hearing of action No. 696/ 69. including the declaration of the settlement of such action on March 31, 1971. The subject-matter of the action was a claim of theapplicant (as plaintiff) for breach 35 of contract regarding the payment of commission. As it appears from the ?aid affidavit, the applicant was initially represented in the action by Mr. G. Achilles, an advocate from Larnaca. who had to withdraw from the proceedings for reasons of health, and then the applicant 40 instructed Mr. Ph. Clerides. an advocate from Nicosia. The defendants in the action (and now the respondents to 106 this application) have been represented all along by Mr. G. Nicolaides, an advocate from Larnaca. 5 1 0 The action was being tried by the then President of the District Court of Larnaca, Mr. G. Georghiou, and by the then District Judge, and now Senior District Judge, Mr. T. Orphanides. On March 30, 1971, there were heard three witnesses and the hearing was to be continued on the following day, when, eventually, the settlement, which led to the making of the disputed order by consent, was declared. Paragraphs 4 to 10 of the applicant's aforementioned affidavit give as follows his version of what has happened on March 31, 1971: 15 20 25 30 35 40 "4. Την 31.3.71 αμα τη ένάρξει της διαδικασίας ό Πρόεδρος τοϋ Δικαστηρίου ήρώτησε τους δικηγό ρους εάνκατέληξαν είς οιανδήποτεδιευθέτησιν της υποθέσεως. Ό δικηγόρος των εναγομένων ήρχισεν ομιλών περί τίνος συμβιβασμού της υποθέσεως ό δε δικηγόρος μου ήρχισε διαπραγματευόμενος. 5. Άκούων τον Δικηγόρον ναδιαπραγματεύεται συμβιβασμόν έπενέβην και διεμαρτυρήΟηνπρός τον δι κηγόρον μου και είχον εντονον μετ' αΰτοΰ στιχομυθίαν είς έπηκοον τοϋ Δικαστηρίου το δε Δικαστήριον μοΰ παρέσχε λόγω τούτου την εύκαιρίαν να συζητήσοι επί δεκάλεπτον μετά τοΰ Δικηγόρου μου το δλον θέμα κατ' ιδίαν έξωθι τοϋ Δικαστηρίου. 6. Έδήλωσα ρητώς εις τον Δικηγόρον μου.οτι δεν έπεθΐμουν συμβιβασμόν. Ό δικηγόρος μου με έπληροφόρησε οτι εάν δεν άποδεχόμην τον προτεινόμενον συμβιβασμόν θά άπεσυρετο άπό την ύπόΦεσιν, εγώ δε συνέχισα επιμένων μη αποδεχόμενος συμβιβασμόν. Είπον είς μίαν στιγμήν εις τον Δι κηγόρον μου ενώπιον τρίτων οτι θαήτολιποτάκτης εάν με έγκατέλειπεν. 7 · Έπανελθόντες εις την αίθουσαν τοΰ Δικαστηρίου και άρξαμένης της συνεδρίας, ό Δικηγόρος μου εγερθείς ήρχισεν ομιλών άγγλιστί. Διεμαρτυρήθην, διότι μή γνωρίζων την άγγλικήν γλώσσαν. δεν άντελαμβανόιιην τι έλεγε. 'Τποδείξει τοΰΠροέδρου τοϋ Δικαστηρίου ώμίλησεν είς την έλληνικήν και είπεν οτι παραιτείται άπο Δικηγόρος μουδιότι δενήκολού9ουν τάς σύμβουλος του. 107 I977 Feb ^19 *** R E M^USKOS5 1977 c ^ ΙΝ R E ANTONIOS MOUSKOS 8. 'Ακολούθως ό Πρόεδρος τοΰ Δικαστηρίου με ήρώτησε: 'τι θα κάμης τώρα κ. Μοΰσκο;' 'Απάντησα και είπα. "Αφοϋ ό Δικηγόρος μου παρητήθη και δέν εχω δικηγόρον παρακαλώνά άναβληθη ήύπόθεσίς μου διά νά σκεφθώ τι θάκάμω και νά βάλω 5 Δικηγόρον'" ό κ. Πρόεδρος μοϋ έτόνισεν οτι δένήδύνατο νά άναβάλη τήν ύπόθεσιν. Παρεκάλεσα έν συνεχεία νά μοϋ δώσουν τουλάχιστον μιας ώρας άναβολήν διά νά εξεύρω δικηγόρον και μοϋ εδόθη αναβολή 30' της ώρας. 10 Έτρεξα αναζητών δικηγόρον πλην όμως δενήδυνηθην νά εΰρω Δικηγόρον της αρεσκείας μου και επέστρεψα είς το Δικαστήριον άπρακτος. Άρξαμένης της συνεδρίας ό κ. Πρόεδρος με ήρώτησε τι έκαμα και τοϋ απήντησα οτι με τά 30' τά οποία 15 μοΰ έδωσε δέν ήδυνήθην νά κάμω τίποτε. Επανέ λαβαν το αίτημα μου δι' άναβολήν διά νά δυνηθώ νά διορίσω δικηγόρον πλην όμως δέν έγένετο δεκτόν. "Εκαμα τήν σκέψιν νά αποχωρήσω άπδ το Δικαστήριον αλλά έσκέφθην οτι θά ήτο προσβολή 20 προς τόΔικαστήριον και έτσι παρέμεινα. 9. Δικασται και Δικηγόροι ήρχισαν ακολούθως συνομιλοΰντες ότέ μεν άγγλιστί. ότέ δέ ελληνιστί. 'Αν τελήφθην νά όμιλοϋν διά τά δικηγορικά των κ.κ. Κληρίδη καΐ κ. Άχίλλη. 25 10. Έ ν τέλει είς τό Δικαστήριον, παρουσία και τοϋ κ. Φοίβου Κληρίδη, ό όποιος δέν είχεν εισέτι απέλθει της Αιθούσης, έδηλώθη ό συμβιβασμός ό όποιος επισυνάπτεται ως τεκμήριον 1, άνευ της συγκαταθέσεώς μου και χωρίς νά εχω συναινέσει εις τον 30 τοιούτον συμβιβασμόν. Μέ άπογοήτευσιν και μέ πικρίαν εΐπον εϊς τους έντιμους Δικαστάς ότι θεωρώ τοΰτο άδικίαν και ότι δέν τό δέχομαι, έξελθών δέ εύθυς άμέσεως είς τό προαύλιον τοϋ Δικαστηρίου διεμαρτυρόμην μετ άγανακτήσεως λέγων ενώπιον 35 τρΐτονν 'έκαμαν ό.τι έθέλασι. έν νά κάμω εφεσιν'." ("4. On 31.3.71. when the proceedings commenced, the President of the Court asked counsel if they had reached a settlement of the case. Counsel for the defendants started talking about a settle- 40 ment of the case, and my counsel began nego tiating. 108 5 10 15 20 25 30 35 40 5. When I heard counsel negotiating about a settlement I intervened and protested to my counsel, and I had a heated exchange with him in the presence of the Court, which, as a result, afforded me an opportunity to discuss for ten minutes with my counsel the whole matter privately, outside the Court. 6. I stated expressly to my counsel that I did not desire a settlement. My counsel informed me that if I were not to accept the proposed settlement he would withdraw from the case, but I continued to insist that I would not accept a settlement. At some stage I told my counsel, in the presence of other persons, that if he left me hewouldbea deserter. 7. When we returned to the court room and the proceedings were resumed, my counsel stood up and began talking in English; I protested because, not knowing the English language, I could not understand what he was saying. On the suggestion of the President of the Court he spoke in Greek and said that he was ceasing to act as my counsel because I was not following his advice. 8. Then the President of the Court asked me; 'What are you going to do now Mr. Mouskos*. I said in reply: 'Since my counsel withdrew and I have no counsel I ask for an adjournment of my case in order to think about what I shall do and instruct counsel'; the President stressed to me that he could not adjourn the case. I then requested to be granted at least an adjournment for one hour in order to find a lawyer, and an adjournment for 30 minutes was granted to me. I rushed in search of a lawyer but I was unable to find one of my choice and I returned to the Court emptyhanded. When the proceedings were resumed the President asked me what I had done and I replied that within the 30 mi~ nutes which he had given me I did not manage to do anything. I repeated my application for adjournment in order to be enabled to instruct 109 1977 Febr. 19 IN RE ANTONIOS MOUSKOS .1977 Heb ^_ 1 9 JN RE ANTONIOS MOUSKOS counsel, but it was not granted. I contemplated leaving the court room, but 1 thought that this would be an affront to the Court, and so I remained there. 9. Then the Judges and counsel began talking, sometimes in English, sometimes in Greek. I realized that they were talking about the remu neration of Mr. Clerides and Mr. Achilles. 5 10. Finally in Court,in thepresence of Mr. Phoebus Clerides, who had not yet left the court room, 10 the settlement which is attached hereto as exhi bit 1 was declared, without my consent and without my having agreed to such settlement. With disappointment and bitterness I told the Honourable Judges that I regarded it as an in- 15 justice and that I did not accept it, and having immediately gone out, in the court yard, I was protesting with anger, saying, in front of others, 'they did what they wanted, I will file an ap peal.' " ) . . 20 Respondent Loulla Marcellou, who was defendant 2 in action No. 696/69, swore an affidavit for the purposes of the present proceedings, on January 20, 1972; the mate rial parts of it are paragraphs 3 to 6 which read as fol lows:" 3 . Κατά την 31.3.71 μετά τήν δοθεϊσαν άναβολήν ήτις ήτο διά 45 λεπτά δέν έζητήθη άλλη αναβολήΰπό τοϋ ενάγοντος,τουναντίονόενάγων έδήλωσε οτιδέχεται τον συμβιβασμόν. 4. Τελικώς ό συμβιβασμός αυτός κατεγράφη τη υ- 30 .ταγορεύσει τοΰ Δικαστηρίου, έδηλώθη δέ Ελληνιστί υ πό τοϋ δικηγόρου τοΰ ενάγοντος κ. Φοίβου Κληρίδη, όστις ένήργει ώς δικηγόρος τουκαιτοΰ κ. Γ. Νικολαΐδη διά τους εναγομένους,ούδενόςένισταμένου. ό. Ό ενάγων ουδόλως ανέφερε οτι δεν δέχεται τον 35 εΐρημένον συμβιβασμόν. ι 6. Ο ενάγων απλώς έλεγε ότι έκλεισε ό συμβιβασ μός on αδικήθηκε άπό τον συμβιβασμόν αλλά δεν πει ράζει. Ώ ς προς τό σημεϊον αυτόκαι έγώ ήμην της γνώ μης οτι ό γενόμενος συμβιβασμός δένσυνέφερε είς ημάς 40 110 25 τους εναγομένους, εάν δέ δέν ήτο ζήτημα αρχής δέν θά είχα δυσκολίαν νά εκφράσω τήν άποψιν όσον άφορα έμέ, όπως άκυρωθή". 5 10 15 20 25 ("3. On 31.3.71, after an adjournment was granted, which was for 45 minutes, no other adjournment was requested by the plaintiff; on the contrary the plain tiff declared that he accepted the settlement. 4. Finally this settlement was recorded, having been dictated by the Court, and it was declared in Greek by counsel for the plaintiff, Mr. Phoebus Cle rides, who was acting as his counsel, and by Mr. G. Nicolaides on behalf of the defendants, without ob jection on thepart of anyone. 5. The plaintiff did not state at all that he did not accept thesaid settlement. 6. The plaintiff was only saying, when the settle ment had been reached, that the settlement was to his prejudice, but that it did not matter. Regarding this point, I was, also, of the view that the settlement was not beneficial for us, the defendants, and had this not been a matter of principle I would have no difficulty to express the view that, in so far as I am concerned, it should be set aside".). Also, on February 26, 1972, Judge T. Orphanides swore an affidavit—after he had been served with notice of these proceedings—which reads as follows:" Ό υποφαινόμενος Τάκης Όρφανίδης,δικαστής, νϋν έκΛάρνακος,ορκίζομαικαι,λέγω τά έξης: 30 35 40 1. Είμαι ό 'ΕπαρχιακόςΔικαστής Λάρνακος όόποϊος παρεκάθησα μετάτοΰ εντίμουπροέδρου τωνΔικαστη ρίων Λάρνακος -'Αμμοχώστου έν Λάρνακι κατά τάς ακροάσεις της αγωγήςτοϋ Ε.Δ. Λάρνακοςυπ' άρ. 696/ 69. 2. Κατά τό τελικόν στάδιον της ακροάσεως της είρημένης αγωγής και κατόπιν διαλείμματος ταύτης επί χρονικόν τι διάστημαπαρουσιάσθησαν είς τό Δικαστή ριον ό ένάγοϊν 'Αντώνιος Μοΰσκος μετά τοϋ δικηγόρου του κ. ΦοίβουΚληρίδη καθώς επίσης και οί εναγόμενοι μετά τοΰ δικηγόρου των οπότε και έδηλοόθη και κατεΥράφη ό συμβιβασμός όπαρουσιαζόμενοςεις τά πρακτι111 1977 e τ _ ^ ΙΝ ANTONIOS MOUSKOS 1977 e ^_ ΙΝ R E ANTONIOS MOUSKOS κά της ώς άνω αγωγής, άφοϋ τό Δικαστήριον έβεβαιώθη παρά τοϋ ενάγοντος και τής 2ας εναγομένης ότι ό συμβιβασμός αυτός ετύγχανετης εγκρίσεως των. 3. Ουδόλως ανταποκρίνεται είς τήνπραγματικότητα ότι ό ενάγων ανέφερε δ,τιδήποτεπερί μή αποδοχής τοϋ 5 εΐρημένουσυμβιβασμού". ("I the undersigned Takis Orphanides, a Judge now of Larnaca, swear and say as follows:1. I am the Larnaca District Judge who sat with the Honourable President of the Larnaca - Famagusta Courts in Larnaca for the hearing of action No. 696/69 before the Larnaca District Court. 10 2. At the final stage of the hearing of the said action, and after a break for a certain period of time, there appeared in Court the plaintiff, Antonios Mou- 15 skos, with his counsel, Mr. Phoebus Clerides, as well as the defendants with their counsel, and thereupon the settlement appearing in the file of the said action was declared and recorded, after the Court had been assured by the plaintiff and by defendant 2 that such 20 settlement had their approval. 3. It does not at all correspond to the truth that the plaintiff stated anything about not accepting the said settlement".). In my opinion Judge Orphanides was entitled, in view 25 of the particular circumstances of the present case, to swear the above affidavit (see, inter alia, the Guide to Crown Office Practice by Griffits
(1947), p. 83, and R. v. Llanidloes Licensing Justices, Ex parte Davies, [1957] 2 All E.R. 610). 30 Mr. Ph. Clerides stated in Court, during the hearing of this case before me. that he adopted the contents of the affidavits of Mrs. Marcellou and of Judge Orphanides, and that he was ready to give evidence on oath, if so re quired by me; I did not deem it fit, however, to make a 35 direction to that effect. During the hearing of the present application counsel for the applicant called his client as a witness, as well as three other witnesses, in order, as he has put it, to corro112 borate parts of the evidence of the applicant; also, counsel for the respondents called respondent 2, Mrs. Marcellou, as a witness. Before allowing the said witnesses to be called 1made 5 the following Ruling: "Any oral evidence to be adduced in these proceedings is received subject to the Court deciding at the end whether or not, and to what extent, if any, such evidence isreceivable". Regarding the admission of evidence by affidavit in re10 lation to an application for certiorari the following have been stated in Rex v. Northumberland Compensation Appeal Tribunal. Ex parte Shaw, [1952] 1K.B.338,by Denning L.J., as he then was (at pp. 352, 353):15 20 25 30 "The next question which arises is whether affidavit evidence is admissible on an application for certiorari. When certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary. When it is granted on the ground of error of law on the face of the record, affidavit evidence is not, as a rule, admissible, for the simple reason that the error must appear on the record itself: see Rex v. Nat Bell Liquors Ld.1 Affidavits were, however, always admissible to show that the record was incomplete, as, for instance, that a conviction omitted the evidence of one of the witnesses (see Chitty's Practice, Vol. 2, at p. 222, note (d)), or did not set out the fact that the justices had refused to hear a competent witness for the defence (see Rex v. Anon2), whereupon the court would either order the record to be completed, orit mightquash theconviction at once". Lord Denning M.R. reiterated his above view in R. v. Southampton Justices, ex parte Green, [1975] 2 All E.R. 1073, wherehesaid (at pp. 1078 -1079):- 35 "Finally, the question arose whether it was open to this court to make an order of certiorari. It was suggested that there was no error of law here on the face
(1)[1922] A.C. 123, 156.
(2)
(1816)2 Chit 137. 113 1977 Hebrew IN R E ANTONIOS MOUSKOS , 1977 Feb 19 ^ IN RE ANTONIOS MOUSKOS of the record. The error only appears from the affidavits which have been produced to this court. Are they admissible to show the error? I think they are admissible on the ground that they go to show that the justices went outside their jurisdiction. In R. v. 5 NorthumberlandCompensation Appeal Tribunal,ex parte Shaw1, we considered whether affidavit evidencewasadmissible,Isaid2:'When certiorari is granted on the ground of want of jurisdiction, or bias,orfraud, affidavit evidenceis 10 not only admissible, but it is, as a rule, necessary'. This case comes within the category of 'want of jurisdiction'." In Halsbury's Laws of England, 4thed.,vol. 11, p.818, para. 1559, thereisto befound thefollowing passage:15 "Wherecertiorari is sought on the ground of errorof lawonthefaceof therecord, thecourt willnot admit any extraneous evidence: the error must be apparent from the record itself. Where certiorari is sought on the ground of absence or excess of jurisdiction, bias 20 by interest, fraud or breach of natural justice, extraneous evidence of these matters will be admissible, and indeed necessary, if they arenot apparent on the face of the record". At the hearing of the present application no authority 25 was cited for or against the course of receiving oral evidence when grounds such asthose relied on in supportof this application are involved; nor was there any objection raised against the reception of oral evidence; thus, the issue as to whether or not oral evidence wasreceivable on 30 an application for certiorari such as the present one has not been argued before me soas to enable meto decideit one way or the other; therefore, the course which I have adopted in these proceedings is not to be regarded as creating a precedent. 35 I have adopted such course because I felt that it was necessary, in the interests of justice, to allow oral evidence
(1)[1952] 1 K.B. 338.
(2)[1952] 1 K.B. at
- 114 to beheard in the present case,in view of its rather special ' circumstances; I had before me an applicant whose main grievance was that, allegedly, he was not allowed by the Larnaca District Court to have a full trial of an action, 5 which he had brought against the respondents, but was, instead, forced to have it settled, and I am of the view that had I not allowed him to give oral evidence, by way of supplementing his affidavit, his grievance, even if mistaken, that he cannot get a fair hearing before the courts 10 would havebeen enhanced. In any event, the applicant and respondent 2,Mrs. Marcellou, could have been ordered to attend the hearing of the present application for cross-examination, under rule 1 of Order 39 of the Civil Procedure Rules, and if one looks 15 at the record of their evidence it becomes abundantly clear that what has happened, through their having been called as witnesses, is, in substance, much the same; each one of them referred to his, or her, already filed affidavit and adopted its contents on oath once again, and was, then, 20 cross-examined by theother side. As regards the three witnesses who were called by the applicant without having previously sworn affidavits for the purposes of the present proceedings, namely his wife Christothea Mouskou, his son Christodoulos Mouskos and 25 Mouskis HadjiMatheou, I am of the view that their evidence was prima facie receivable in view of the wide powers which are possessed by, inter alia, this Court, under section 48 of the Courts of Justice Law, 1960 (Law 14/ 60), concerning the hearing of evidence in a civil pro30 ceeding; and the present application is a civil proceeding in the sense of the relevant definition in section 2 of Law 14/
- Before leaving this procedural aspect of the case 1 should point out that I have noticed in the report of R. v. 35 Wandsworth JJ., Ex parte Read, [1942] 1AU E.R. 56, at p. 57, that in that case the court, in dealing with an application for certiorari, relied on a statement, made by counsel who was appearing for the magistrates concerned, to the effect that they did not dispute the applicant's con40 tention that they had made an error, even though they had not said so in any affidavit filed by them; it does appear, therefore, that a court, in the exercise of the supervisory 115 1977 Fcbr. 19 IN RE ANTONIOS MOUSKOS y77 ι SOT. 19 IN RE ANTONIOS ..VIOUSKOS ,unsuicuon of certiorari, may take into account, for the jurpose of administering justice, everything that has been established before it. sna l l l deal, next, with the merits of thepresent case: .it is well settled that an order of certiorari can be made 5 /hen there has occurred a breach of the rules of natural ustice: this view has been adopted by this Court in, inter ilia, Tourapis v. Pelides, Liquidator for the Liquidation >* *he Τsen Co-Operative Society,
(1967)1 C.L.R. 5. Lt is useful, also, to refer, in this respect, to some rele- 30 'i'rtt case-law in England: 'ύ the case of the Wandsworth, JJ., supra, it was held that an order of certiorari quashing a conviction should be r.ade because the facts showed that there had been a de-i'a1of natural justice. 15 in the case of the General Council of Medical Educa tion and Registration of the UnitedKingdom v. Spackman, 119431 2 All E.R. 337, it was held by theHouse of Lords, affirming a decision of the Court of Appeal (which had ipheld as correct a dissenting opinion of Singleton J. in 20 the Kings Bench Division); that a refusal to hear fresh evidence had resulted in the non-holding of a due inquiry, vvith the result that there had occurred a breach of the "ules of natural justice and that an order of certiorari should be granted. 25 A breach of the rules of natural justice was treated as a ground for granting certiorari in Regina v. Woking Jus tices, Ex parte Gossage, [1973] 2 W.L.R. 529, even though in that case it was not established in the end that there had in fact taken place such a breach. The basic rules of natural justice are "the right to be heard" {audi alteram partem) and that "no man shall be d judge in his own cause" {nemo iudex in re sua)—(see Marshall on Natural Justice
(1959), p. 5, and Jack&on on .natural Justice
(1973), p. 1). Tn the present instance we are concerned only with the I'irst of the above two rules, to the extent to which it coin cides with the right to a fair hearing before a court of law; 116 30 35 and this is a right which is, also, expressly safeguarded by Article 30 of our Constitution.Indeed, as pointed out by 1 Jackson,supra(at p. 37) "that therules of natural justice apply to proceedings in a court of law, for example, is 5 hardly opentoquestion". The right tobe hearddoesinclude,in aproper case,the right tolegal representation (see Jackson,supra, at pp. 16 et seq.): and this viewis echoed inour Constitution, Arti cles 12.5 (
- c)and 30.3 (
- d)of which provide about the * υ right tobe represented by counsel of aparty's ownchoice. For thepurpose of deciding whether or notthereexists, in thelight of theforegoing, adequate grounds for making an order of certiorari in the present case I have to reach a conclusion as regards what has exactly happened on 15 March 31, 1971, in the District Court of Larnaca, when there was given the complained of judgment by consent. In the process of doing so I am, of course, entitled to take into account the contents of all theaffidavits which werefiled inthepresentproceedings. 20 As on thebasis of such affidavits only, and in the light of the relevant court record, I v/ould not be prepared to hold that theapplicant has substantiated his complaintsin a mannerentitling him to the applied for by himorderof certiorari, I have decided, ex abundanticautela and in an 25 effort to afford him every possible opportunity of fully presenting his case, to take intoaccount too,to theextent towhich this might work out inhis favour andnot against him, any relevant parts of the oral evidence that has been adduced. 30 Having looked at the material before me in the above described manner.I amof theview thattherewas, initial ly, somedisagreement, inthemorningof March31,1971, between the applicant and his counsel, Mr. Ph. Clerides, about the further conduct of the action in question and, 35 in particular, as to whether or not to settle it on certain terms; as a result the applicant—like many litigants who, • not being legally trained, feel mistakenly that they can evaluate better than counsel of their own choice thepro spects of their succeeding in particular court proceedings 40 —asked for. andwas granted, an adjournment in orderto go and find other counsel to represent him;but, he failed 117 197? Fetoi9 IN R E ANTONIOS MOUSKOS 1977 Febr^i9 IN RE ANTONIOS to do so;eventually,after ahalf-hearted attempt tosecure a further adjournment, which was refused in the exercise °^ t n e ^ ^ court's discretionary powers, the applicant did allow Mr. Clerides to continueappearing for him. MOUSKOS I donot believeatall theapplicant's version that, then, 5 a settlement was declared inhispresence and was recorded by two Judges in open Court, in the presence of two counsel, while the applicant was all the time protesting that he was not accepting such settlement. It is possible that the applicant was thinking, according to his own as- 10 sessment of the case, that the settlement was not asbeneficial an outcomeof his action as he had thought that he was entitled to, and that, therefore, hefelt upset to a certain degree, but I do not believe that, in the end, he did not agree, even though after some hesitation, to the pro- 15 posed settlement. It is, indeed, quitesignificant that though the said settlement was declared on March 31, 1971,the application for leave to apply for certiorari was made only on May 12, 1971; if the applicant had left the Larnaca District 20 Court on March 31,1971,full of indignation because, as he alleges, a settlement was declared notwithstanding his vociferous and categorical refusal to accept it, I would have expected him to have come to the Supreme Court much earlier, as soon as he would have had time to in- 25 structcounselfor thispurpose. Moreover, the applicant did not complain either to the Supreme Court or totheBar Council aboutwhat, allegedly, happened on March 31, 1971. It was stated by his counsel before me that the applicant did not report Mr. 30 Ph. Clerides to the Bar Council because of certain legal advice which he had been given. I do not know what that advicewas,but thefact remainsthat the applicant didnot complain about any misconduct of either hiscounsel orof the Judges concerned; and"it would, in my opinion, have 35 been very wrong to declare and record a settlement in open Court, fully knowing, all the time, that one of the parties, the applicant, was no longer represented by the advocate who was declaring the settlement, and that such party wanted thecasetobeheard anddetermined andwas 40 refusing to consent to a settlement, as the applicant's version,whichIdonotbelieve,is. 118 In the light of all the foregoing I havereached the conelusion that this isnot a proper case in whichto grant an order of, certiorari for the purpose of removing to this Court and quashing the sub judicejudgment by consent. 5 Consequently, thisapplication isdismissed. Feb ^_ IN RE ANTONIOS MOUSKOS I have decided, however, not to make any order as to costs against the applicant, becauseI do not want him to feel penalized for having invited this Court to examine what took place in the Larnaca District Court on March 10 31,1971. Applicationdismissed. No orderas to costs. 119 1977 19