1 C.L.R. 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). 5 10 15 20 25 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 ofjurisdiction is apparent on the record of the proceedings of the inferior court, without the question ofjurisdiction 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, theie 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 831 In re Saveriades and Another
(1982)should, on proper cauLe been shown, refuse to grant the applications in question of theCyprus Popular Bank (Finance) Ltd., if the District Court issatisfied 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 5 thisrespect of theDistrict Court theycanchallengeit 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 15 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 appli- 20 cants 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 25 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 30 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 35 both the applicants, in their capacity as the defendants in that action, an order calling upon them to show cause why they should not beimprisoned or ordered to pay afine,as the District 832 10 1 C.L.R. ID re Saveriades and Another Triantafyllides Ρ. 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 5 Courtfor hearing on 26th April 1982 and they now stand fixed for hearing tomorrow, the 27th May 1982. The present appli cation for leave to apply for an order of prohibition wasfiled on 24th May 1982. As itappearsfrom theStatementfiledinsupportof thisappli10 cation 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 15 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, theDistrict Court was deprived of its jurisdiction to deal with the appli20 cations 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: 25 30 35 "135. Whencourthas exceededjurisdiction. Prohibition willissueas soon as theinferior triburfal proceeds to apply a wrong principle of law whendecidinga fact onwhichthe 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 liesuntilthecourthas actually gone beyond itscompetency and jurisdiction. In any event, where the jurisdiction of the inferior court depends on the judicial determination of facts theorderdoesnotlieuntilthecourthas wrongfully on these facts purported to give itself jurisdiction. 136. Earliesttime for applying for prohibition. Prohibition may be applied for as soon as the complete absence ofjurisdiction is apparent on therecord of the proceedings of the inferior court, without the question of jurisdiction being raised in that court. 833 Triantafyllides P. In re Saveriades and Another
(1982)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 isoneof law,not dependent on disputed issues of fact, or when he is contending that the tribunal 5 is improperly constituted because of the likelihood of bias. In any event it appears that prohibition may issue once stepshavebeenor areabout tobetakeninvolvingausurpation of jurisdiction". In the present instance it is not contended that the District 10 Court is going to usurp juridiction which it never possessed; it has only been argued that ithas been divested ofjurisdiction —which it normally possesses—because of the alleged agreement between theparties totheaforementioned twocivilactions not to enforce orders made in such actions. 15 In my view there does not arise at all in this connection an issue of lack ofjurisdiction, but only the issue whether or not the District Court of Nicosia should, on proper cause been shown,refuse togrant theapplicationsinquestionoftheCyprus Popular Bank (Finance) Ltd., if the District Court is satisfied 20 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. Inviewoftheforegoing Irefusetograntleavetotheapplicants 25 to apply for an order of prohibition. Application refused. 834