clr/1984/1984_1_513.pdf

(1984)5 Although an application for leave to apply for the issue of an order of certiorari was made ex parte the Court judged it expedient to invite the views of all concerned in view of the novelty of the issue raised, particularly with regard to the ambit 10 of section 7 of Law 23/83; and having heard the parties it decided to treat the ex parte application as a substantive proceeding for the issue of a writ of certiorari and make a final resolution of the matter. In adoptingthiscoursethe Court had the concurrence of the parties. 15 Held,

(1)that prohibition lies to restrain an inferior Court from embarking upon, continuing or resuminga proceedingin excess of jurisdiction or in contravention of or defiance to the fundamental laws of the land; that no suggestion was made that the issue of an order of ejectment was outside the juris- 20 diction of the Rent Tribunal or that in making the order the Court ignored a fundamental rule of law; that, further, the order ofejectment isnotthesubject-matter oftheseproceedings; that inthe absence of an order of stay of execution, -herethere wasnone-itisperfectly legitimateforofficers of theRentTribunal 25 to proceed upon application with the execution of both the ejectment and money orders given in favour of the owners; accordingly the application for leave to apply for an order of prohibition must fail.

(2)That whenever an issue revolves round the application of 30 the law to given facts, it raises a pure question of law; that so long asthe facts to whichthe Court isrequired to apply thelaw are not called in question, the point is a legal one; that it merely raises questions bearing on the interpretation and the scope of the law; exploration of the ambit of the law is 35 always a question of law; and that, therefore, the point raised here,though it might havebeen morehappily formulated, raised a pure question of law; accordingly the order of the Rent 514 1 C.L.R. 5 In re HjICostas Tribunal refusing the statement of a case to the Supreme Court must be quashed. Order accordingly. Cases referred to: Ex parte EjrosyniMichaelidou

(1969)I C.L.R.

1. Application. Application for leave to apply for the issue of writs of prohibition and certiorari in order to prohibit the enforcement and seek the quashing of an order of the Rent Tribunal, whereby an 10 application for the statement, by way of appeal, of a case for the decision of the Supreme Court was dismissed. A. Efthychiou, for the applicant. M. Photiou, for the respondents. C. Velaris, for the owner. 15 Cur. adv. vult. 20 25 30 35 PIKIS J. read the following judgment. The applicant moved the Court for leave to apply for the issue of writs of prohibition and certiorari in order to prohibit the enforcement and seek the quashing respectively of an order of the Rent Tribunal dismissing an appUcation for the statement, by way of appeal, of a case for the decision of the Supreme Court. The application was dismissed for the reason that the points raised were not confined to pure questions of law and as such could not be made the subject of a case stated under section 7 of the Rent Control Law,
2. It is the case of applicant that the order is wrong in law, an error apparent on the face of the record. Prohibition is sought as an ancillary measure to restrain officers of the Rent Tribunal from enforcing the order in question until its discharge by this Court. I fail to see the relevance or usefulness of an order of prohibition considering that the order sought to be quashed is not the order of ejectment but the order declining the statement of a case for the decision of the Supreme Court. No suggestion was made that the issue of an older of ejectment was outside the jurisdiction of the Rent Tribunal or that in making the order the Court ignored a fundamental rule of law. The order of ejectment isnot the subject-matter of these proceedings. On the other hand the exercise of a right to appeal conferred by section 7of the Rent Control Law - 23/83- does not suspend the execution of a judgment. As in the case of judgments of 515 Pikis j . In re HjiCostas

(1984)District Courts the. taking of an appeal leaves execution unaffected1. Thus neither the discharge of the order under consideration nor the statement of a caseby wayof appeal under section 7 would have any bearing on the right of the owners to pursue execution. Consequently, prohibition is, in the context of these proceedings, a misconceived remedy. 5 Prohibition lies to restiain an inferior Court from embarking upon, continuing or resuming proceedings in excess of jurisdiction oi in contravention of or defiance to the fundamental laws of the land - See ex parte Efrosyni Michaelidou

(1969)1 10 C.L.R. 118, and Halsbury's Laws of England, 3rd Ed., Vol. 11, para. 211. In the absence of an order of stay of execution here there was none-it is perfectly legitimate for officers of the Rent Tribunal to proceed upon application with the execution of both the ejectment and money orders given in favoui of the 15 owners. I shall not, therefore, concern myself further with this aspect of the application i.e. the part directed towards the issue of a writ of prohibition. Although an application for leave to apply for the issue of an order of certiorari wasmadeexparte, and isordinarily dealt with 20 on that basis 2 , I judged it expedient to invite the views of all concerned in view of the novelty of the issue raised, particularly with regard to the ambit of section 7 of Law 23/83. Having heard the parties I decided to treat the ex parte application as a substantive proceeding foi the issue of a writ of certiorari and 25 make a final resolution of the matter. In adopting this course I had the concurrence of the parties. The jurisdiction of the Supreme Court to issue an order of certiorari or an order in the nature of certiorari was extensively discussed by Josephides, J., in Re Efrosyni Michaelidou 30 (supra) 3 . Certiorari was one of the remedies available to the superior Courts at common law to oversee the legality of the action of inferior Courts of record or other bodies exercising 1. See Rules of Court published in the Gazette of 31st December, 1983, No. 1818-Rule 11(a)in particular and Ord. 35, IT. 18&19,of the Civil Procedure Rules. 2. See Halsbury's Laws of England, 3rd Ed., Vol. 11, para. 128. 3. For a detailed discussion of the jurisdiction to grant certiorari and circumstances of its application, see Halsbury's Laws of England, 3rd Ed., Vol. 11, para. 230, et seq. 516 :1tCXIR. ID re HjiCostas Plkis J. judicial or quasijudicial power. Subject to certain exceptions1 that need not concern.us here, certiorari is a discretionary .re­ medy. It is primarily intended to ensure that inferior Courts operate within the bounds of their jurisdiction and observe .5 fundamental rules of law. The jurisdiction of superior Courts is not confined to commondaw Courts-.of recordtbut extends to newly created statutory inferior Courts, provided their juri­ sdiction is within the scope of the High Court 2 . In 'this connection the term "jurisdiction" is -used in the sense ^of the 110 .remedial .powers «within the compass of the -High Court tof Justice in England. The jurisdiction <οΐ.the Supreme(Court(Of Cyprus:toissue:certiorari is.analogous.tothat of.the HigtuCourt of.Justicein England. Consequently,;inasmuch.as-an order.of ejectment can be issued.by,the Supreme Court,jurisdictionican 315 be exercised.to oversee ithe(legality ofjejectment.orders'madeiby •the Rent Tribunal. ,20 ;25 .30 .35 It is .noteworthy that in England ithe jurisdiction »to .issue certiorari and other prerogative writs or orders in the nature ,thereof,.is in certain areas superseded by statute,particularly iby the terms of the Inferior Courts Act, 1779. Under =this Act amenity to invoke certiorari in aid-of execution is not.unbrnited; ejectment orders cannot be reviewed >by way .of icertiorari •Halsbury's Laws-ofiEngland,;3rdrEd., Vol. -11,paras.,241 ,'&*242. For the purposes *of .this (judgment it is ;unnecessary .to^decide whether .these .or tother statutory Jimitations :to ithe sissue .of certiorariapply hrCyprus. Article'155.4.of the Constitution con­ ferring jufisdiction.on.the'Supreme Court to issue, inter;alia,;an order,of certiorari is general in terms and does not appear to'be subject to .the statutory limitations applicable in (England. However,Jimust:not'(be-.taken.as deciding the matter.one.way or the other;foriin.this case we.are,not.concerned with,the:review'by way of certiorariof anejectment order but with an order refusing the.statement.of a case'by way.of appeal for the consideration of the Supreme Court. I am of opinion there is jurisdiction to review the decision under consideration in the<context of the proceedings before me. Theiquestion to'be.resolved is whether there is an enor apparent on the record. To answer that we .must refer to the .facts forming the background .of ithe .case. il. .See para. 263-of;Halsbury*s-.(supra). "2. See para.,253 of Halsbury's'(supra). ,51.7 Pikis-J. In re HjiCostas (1984. The owners applied to the Rent Tribunal for an ejectment order and thelecovery of arrears of rentaswellasmesne profits. When the case was mentioned to the Court in the presence of theparties,directions weregivenfor thesubmission of pleadings. Also a date was set for the hearing of the case, namely, the 5 10th November, 1983. The tenant, applicant in these pro­ ceedings, was present in Court and made a note of the date of hearing. Belatedly he filed his defence, one day before the hearing, but failed to attend the Court on the date of hearing. TheCourtproceeded,asitwas entitled to,tohearthecase inthe 10 absence of the tenant. Having done so, it made an ordei of ejectment and gavejudgment for theowners for the recovery of arrears of rent and mesne profits. A few days later, on the 19th November, 1983,thetenantmadeapplication to theCourt to have the order and judgment set aside, attributing his non- 15 attendancetoa mistake onhispartinnotingthedate of hearing. He recorded it to be the 1 Ith instead of the 10th of November. After hearingevidence, theRentTribunal concluded themistake was genuine but nevertheless inexcusable in view of the pro­ visions of section 6(

1. d)of Law 23/83. It provides that default 20 judgment shall not be set aside if thedefault is due to an act of omission or neglect on thepart of the person in default. Inthe judgment of the Court the mistake of the applicant, though genuine, amounted to an act of omission or neglect on his part. Moreover, the Court was poorly impressed with the defence of 25 the applicant articulated before the Court, lacking in merit. Following the dismissal of his application to set aside the default judgment, the applicant moved the Courtin themanner envisagedbyLaw 23/83 andtheRulesof Courtearliermentioned to state a case for the decision of the Supreme Court. The 30 Rent Tribunal was asked to state three questions, supplemented by a fourth one orally formulated before theCourt. As counsel for the applicant rightly acknowledged before me, three of the questions raised did not refer exclusivelyto points of law. Con­ sequently, the Court was right torefuseto state them. Under 35 section 7 of Law 23/83, only a pure question of law can be stated to the Supreme Courtby way of appeal. The expression "legal point only" (νομικό ·σημείο μόνο) appearing in section 7, leaves no room for any other interpretation. Thefourth question,counselsubmitted,notably question 2ofthe 40 questionnaire,raised a purequestion of law andas suchit ought 518 1 C.L.R. In re HjiCostas Pikis J. to have been made the subject of a case stated to the Supreme Court. The statement of a case to the Supreme Court on apoint of law is not dependent on the exercise of any discretionary powers onthe part of the Rent Tribunal. Itis obligatory. The 5 Rent Tribunal decided that question 2 as well was not confined to a pure point of law but raised mixed questions of law and fact; theiefore, it refused to state it for the decision of the Supreme Court. It becomes necessary to recite the question under consideration in order to decide whether the decision of 10 the Rent Tribunal is, as suggested, obviously wrong in law. Translated in English the question reads: "The trial Court (meaning the Rent Tribunal) wrongly decided that the oversight or default (αβλεψία ή παραδρομή) of the applicant as to the date of hearing of the case constituted an omission or an 15 oversight within the provisions of section 6 of Law 23/83". What amounts to a pure question of law is perhaps easy to define but hard to apply to theparticular circumstances of a case. The question of law raised, whatever its nature,must necessarily be one relevant to the facts of the case. A pure question of law 20 cannot be one extricated or detached from the facts of the case for in those circumstances it would be an academic question of law. Itappears tome thi'.twhenever an issuerevolvesroundthe application of the law to given facts, it raises a pure question of law. So long as the facts to which the Court is required to 25 apply the law are not called in question, the point is a legal one. It merely raises questions bearing on the interpretation and the scope of the law. Exploration of the ambit of the law is always a question of law. In myjudgment the question asked here,though it might have 30 been more happily formulated, raised a pure question of law. It was to this effect: Whether the concept of omission or neglect in the context of section 6(
2. d)of the law encompassed genuine mistakes of the character of the mistake made by the applicantinthis case. It would be a usurpation of the functions 35 of the Court of Appeal, on my part, to attempt to answer the question. It suffices to state that section 6(
3. d)of Law 23/83 has not been, so far, judicially interpreted by the Supreme Court, so far as I am aware. Furthermore, I see no reason for withholidng the exercise of 40 my discretion in favour of the applicant. Had quashing of the 519 Pikis J. IDre HjiCoslas

(1984)ordei of the Rent Tribunal entailed stay of execution, I might viewthematter otherwiseinthelight ofthecontinuing omission of the applicant to pay rent and the consequential accumulation of arrears. As I pointed out at the outset of this judgment, there is no legal obstacle to the execution of judgment. If 5 application ismadetotheRentTribunalfor staypendingappeal, appropriate terms will no doubt be imposed safeguarding the interests of the owners. For thereasonsindicated above 1 quash, intheexerciseofmy discretion,the order of theRentTribunal refusing the statement 10 of a case to the Supreme Court. Following my order the case will necessarily have to go back to the Rent Tribunal. The applicant has not moved the Court to issue an order of mandamus·that would empower this Court to direct the Rent Tribunal to state a case for the decision of the Supreme Court, but 1 15 amin no doubt that the RentTribunal will'proceed accordingly and state the question raised for the decision of the Supreme Court. In all the circumstances I shall make no order as to costs. Orderaccordingly. Noorderasto costs. 20· 520